Minister of Welfare and Population Development v Fitzpatrick and Others

• Jurisdiction: South Africa
• Citation: 2000 (3) SA 422 (CC)

Minister of Welfare and Population Development v Fitzpatrick and Others
2000 (3) SA 422 (CC)

2000 (3) SA p422

Citation	2000 (3) SA 422 (CC)
Case No	CCT 08/00
Court	Constitutional Court
Judge	Chaskalson P, Langa DP, Madala J, Goldstone J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
Heard	May 9, 2000
Judgment	May 31, 2000
Counsel	R F van Rooyen for the applicant.; D Unterhalter (with him T Mosikatsana) for the amicus curiae (the Centre for Applied Legal Studies).

Flynote : Sleutelwoorde E

Minor — Adoption — Of child born of South African citizen by person F not South African citizen — Child Care Act 74 of 1983, s 18(4)(f) — Section 18(4)(f) absolutely proscribing such adoptions — Such provision not giving paramountcy to best interests of children and to that extent is inconsistent with provisions of s 28(2) of Constitution of the Republic of South Africa Act 108 of 1996 and hence invalid — No grounds justifying such G limitation in terms of s 36 of Constitution — Public interest and interests of justice not served by order in terms of s 172(1)(b)(ii) of Constitution suspending operation of order of invalidity.

Headnote : Kopnota

The provisions of s 18(4)(f) of the Child Care Act 74 H of 1983 (which absolutely proscribed the adoption of a child born of a South African citizen by a non-citizen or by a person who has the necessary residential qualification for the grant of South African citizenship but has not applied for a certificate of naturalisation) are too blunt and all-embracing to the extent that they provide that under no circumstances may a child born to a South African citizen be adopted by non-South African citizens. To that extent they do not give I paramountcy to the best interests of children and are inconsistent with the provisions of s 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 (which provides that '(a) child's best interests are of paramount importance in every matter concerning the child') and hence invalid. There are no grounds justifying the limitation in terms of s 36 of the Constitution. (Paragraph [20] at 429D - E/F.) J

2000 (3) SA p423

If non-South African citizens apply for the adoption of a child born to A a South African citizen, the provisions of the Child Care Act enable the children's court to prevent the abuses and other concerns raised in support of a suspension in terms of s 172(1)(b)(ii) of the Constitution of the operation of an order of invalidity, namely (a) the inability of the Department of Welfare and Population Development (the Department) to facilitate thorough background investigations of non-citizens; (b) insufficient B legislative protection against trafficking in children; and (c) inadequate provision to give effect to the principle of subsidiarity. Accordingly, the public interest, 'the interests of justice and good government' will not be served by an order suspending the declaration of invalidity. (Paragraphs [34] and [36] read with para [23] at 433E/F - F, 434G - G/H and 430D - E/F.)

The declaration of invalidity made in Fitzpatrick and Others v Minister of Social Welfare and Pensions 2000 (3) SA 139 (C) C confirmed but the order suspending the operation of the order reversed.

Cases Considered

Annotations

Reported cases

B v S 1995 (3) SA 571 (A): considered

Bethell v Bland and Others 1996 (2) SA 194 (W): considered D

Ex parte Critchfield and Another 1999 (3) SA 132 (W): considered

Fitzpatrick and Others v Minister of Social Welfare and Pensions 2000 (3) SA 139 (C): confirmed in part and reversed in part

Fletcher v Fletcher 1948 (1) SA 130 (A): considered

Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC) (1997 (2) BCLR 153): distinguished E

Fraser v Naude and Others 1999 (1) SA 1 (CC) (1998 (11) BCLR 1357): compared and applied

K v K 1999 (4) SA 691 (C): considered

McCall v McCall 1994 (3) SA 201 (C): considered F

S v Howells 1999 (1) SACR 675 (C): considered.

Statutes Considered

Statutes

The Child Care Act 74 of 1983, s 18(4)(f): see Juta's Statutes of South Africa 1999 vol 5 at 2-96

The Constitution of the Republic of South Africa Act 108 of 1996, ss 28(2), 36, 172(1)(b)(ii): see Juta's G Statutes of South Africa 1999 vol 5 at 1-150, 1-151, 1-172.

Case Information

Application for confirmation of an order declaring s 18(4)(f) of the Child Care Act 74 of 1983 invalid and suspending the declaration of invalidity for two years (Foxcroft J), reported at 2000 (3) SA 139 (C). The facts appear from the reasons for judgment.

R F van Rooyen for the applicant. H

D Unterhalter (with him T Mosikatsana) for the amicus curiae (the Centre for Applied Legal Studies).

Cur adv vult.

Postea (May 31). I

Judgment

Goldstone J:

Introduction

[1] Mr and Mrs Fitzpatrick (the respondents) are British citizens who have been living permanently in South Africa since March 1997. Mr J

2000 (3) SA p424

Goldstone J

Fitzpatrick works for a United States corporation and expects to be A transferred to the United States. The respondents wish to adopt a minor child, to whom I shall refer as 'the child', who was born to a South African citizen. However, s 18(4)(f) of the Child Care Act [1] (the Act) absolutely proscribes the adoption of a child born of a South African citizen by a non-citizen or by a person who has the necessary residential qualifications for the B grant of South African citizenship but has not applied for a certificate of naturalisation. [2]

[2] The respondents applied to the Cape of Good Hope High Court for an order declaring s 18(4)(f) to be inconsistent with the Constitution and therefore invalid. In the alternative they applied to be appointed as joint guardians of the child and to be C awarded joint custody and control of the child. Mr D A J Uijs SC, the third respondent, was appointed by the High Court as curator ad litem to represent the child in the proceedings. I shall refer to him as 'the curator'. He supported the grant of the relief sought by the respondents.

[3] In the High Court the Minister for Welfare and Population D Development (the Minister) conceded that the provisions of s 18(4)(f) were unconstitutional to the extent that they proscribed the adoption of a child born of a South African citizen by persons who are not South African citizens or persons who qualify for naturalisation but have not applied therefor. However, she sought and E was granted an order suspending the declaration of invalidity for a period of two years in order to allow Parliament to correct the defect in the legislation. It follows that during the period of the suspension it is not possible for the respondents to adopt the child. With the support of the Minister, the High Court appointed the respondents as the joint guardians of the child and awarded them joint custody and F control of the child.

[4] In terms of the provisions of ss 167(5) [3] and 172(2)(a) and (d) [4] of the Constitution (the Constitution of the Republic of South Africa Act 108 G

2000 (3) SA p425

Goldstone J

of 1996) the Minister now approaches this Court for confirmation of the order of the A High Court. The curator was invited by the Court to furnish it with a written report on whether the interests of the child are likely to be affected by any order this Court might make in the confirmation proceedings. In his report, the curator informed us that there would be no appearance on behalf of the respondents who are possessed of no B further funds with which to pursue their opposition to the suspension of the order and accept that they will not be able to adopt the child until the period of suspension has expired. However, in the view of the curator, the child's interests would best be served by an immediate adoption order in favour of the respondents and for that reason he opposed the suspension of the order of invalidity. C

[5] Having regard to the non-appearance of the respondents, the Centre for Applied Legal Studies at the University of the Witwatersrand was requested by the Court to act as an amicus curiae and to submit written argument. The amicus was invited also to make oral submissions and that was done most helpfully by Professors Unterhalter and Mosikatsana. Their assistance is D much appreciated by the Court.

The background

[6] The suitability of the respondents as parents of the child is not in dispute. However, it would be for the children's court, and not this Court, to assess an application by the respondents for the E adoption of the child. I refer to the respondents' circumstances only as illustrative of why the child's best interests may be prejudiced by the current formulation of s 18(4)(f) of the Act.

[7] The respondents were married in England and four children were born of their marriage. The eldest is 12 years and the F youngest five years. From November 1994 to March 1997 the respondents lived in the state of Oklahoma in the United States of America. During that period they qualified to foster infant children and fostered ten infants with stays ranging from a few weeks to 15 months. After their arrival in Cape Town, the respondents contacted G and were interviewed by the Child Welfare Society of South Africa and obtained approval to act as foster parents in South Africa. The Child Welfare Society of South Africa employs social workers as defined by the Act [5] who are registered in terms

2000 (3) SA p426

Goldstone J

of the provisions of the Social Service Professions Act. [6] In October 1997 the respondents had two-month-old twins placed with them for three weeks after which the twins were placed with their adoptive mother.

[8] In November 1997, the child, then aged two-and-a-half months, was placed with the respondents. He had been neglected and then abandoned by his biological parents soon after his...