Joffin and Another v Commissioner of Child Welfare, Springs, and Another

• Jurisdiction: South Africa
• Citation: 1964 (2) SA 506 (T)

Joffin and Another v Commissioner of Child Welfare, Springs, and Another
1964 (2) SA 506 (T)

1964 (2) SA p506

Citation	1964 (2) SA 506 (T)
Court	Transvaal Provincial Division
Judge	Ludorf J and Snyman J
Heard	March 6, 1964
Judgment	March 20, 1964

Flynote : Sleutelwoorde

Minor — Children's Act, 33 of 1960 — Adoption — Sec. 35 (2) — Scope of section.

Headnote : Kopnota

B Section 35 (2) of the Children's Act, 33 of 1960, enjoins the Commissioner to bear the matters mentioned therein in mind and to exercise a discretion in regard thereto.

Case Information

Review by way of summons. Facts not material to this report have been omitted.

G. A. Coetzee, Q.C., (with him P. M. Wulfsohn), for the plaintiffs: The second defendant is given a discretion by sec. 71 (2) (a) read with sec. 35 (2) of Act 33 of 1960. As to the meaning of 'regard shall be had to' see Illingworth v Walmsay, (1900) 2 Q.B.D. 142; Perry v Wright, D (1908) 1 K.B. 441; R v St. Pancras, 24 Q.B.D. 371. The refusal to exercise a discretion caused prejudice and plaintiffs are entitled to relief unless the Court is satisfied that the irregularity did in fact cause no prejudice. The onus is on second defendant to show that there was no prejudice; Stemmer v Sabina and Another, 1910 T.S. 483; Jockey Club of S.A v Feldman, 1942 AD 340; le Roux and Another v. E Grigg-Spall, 1946 AD 244; Administrator of South West Africa v Jooste Lithium Mines, 1955 (1) SA 557. C

A. S. Botha, for the defendants.

Cur adv vult.

Postea (March 20th). F

Judgment

Ludorf, J.:

These proceedings were initiated by way of review summons in which the real relief claimed by the plaintiffs is an order directing the second defendant to grant the application of the plaintiffs for the adoption of the child Frederick James Nepgen.

G The history and the facts are largely common cause. In January, 1962, plaintiffs requested that their names be placed on the waiting list for purposes of adopting a child. They were married in June, 1957, and adhere to the Jewish faith. The first plaintiff is 33 years of age, holds a B.Sc. engineering degree and has a record of continuous H employment since 1951, his present income being R400 per month. He has been actively engaged in communal work for several years, especially as a leader of youth movements. The second plaintiff is 34 years of age. She is a qualified teacher and expected to graduate with the degree of Bachelor of Arts at the University of South Africa at the end of 1963. The papers do not disclose if she did. The plaintiffs have a comfortable home and live a settled happy married life. They lost their first child and the second plaintiff had several miscarriages

1964 (2) SA p507

Ludorf J

since, but a child was born to them in June, 1963. Testimonials by responsible people attached to the affidavits show that both plaintiffs are of very good character and that as a teacher second plaintiff has a 'kind, tolerant and understanding approach to children'.

A The child Federick James Nepgen, to whom I shall refer as 'the child', was born at Springs to Miss J. M. Nepgen (now Mrs. Britz) on 7th August, 1962, as an illegitimate child. The child has since about 30 days after its birth been virtually in the continuous care and custody of the plaintiffs with the consent and at the express wish of the mother, who is a member of the Dutch Reform Church.

In September, 1962, the plaintiffs applied to the first defendant for B an order for adoption and for his consent to have the child placed with them in terms of sec. 10 (4) of the Children's Act. There is a dispute of fact at this stage but this much is clear that the first defendant expressed the view that the differences in the religious background of the child and the religion of the plaintiffs may prove to C be a serious obstacle in the way of an adoption order. Upon hearing this the mother withdrew her consent and consequently both applications fell away. Within days the mother changed her mind and again consented to the adoption. Application for his consent was renewed and in October, 1962, he notified plaintiffs of his refusal. As the plaintiffs were at D that time living within the jurisdiction of the second defendant he made an order on 1st October, 1963, directing the probation officer to remove the child from the custody of the plaintiffs. This order was stayed from time to time and eventually by order of the Witwatersrand Local Division the order was stayed pending the outcome of these proceedings.

E During the...