A S v Vorster NO and Others

• Jurisdiction: South Africa
• Judge: Pickering J and Plasket J
• Judgment Date: 28 February 2008
• Docket Number: 1220/2004
• Hearing Date: 07 February 2008
• Counsel: B Hartle and R Laher for the applicant. P Scott for the third and fourth respondents. No appearances for the second, fifth, sixth, seventh and eigth respondents. E Crouse for the minor child.
• Court: South Eastern Cape Local Division

Pickering J:

A On 28 May 2003 the applicant gave birth out of wedlock to a daughter, A. On 11 February 2004 the first respondent, a commissioner of child welfare at the Port Elizabeth Children's Court, granted an order in terms of s 18 of the Child Care Act 74 of 1983 (the CCA) whereby A was adopted by the third and fourth respondents, a married B couple.

Applicant now seeks an order calling upon the respondents to show cause why:

'1.

The adoption order granted by the first respondent at Port Elizabeth on 11 February 2004 in respect of the applicant's C daughter, AS, should not be reviewed and set aside;

2.

The administrative actions of the first to eighth respondents referred to in the applicant's affidavits should not be judicially reviewed in terms of the Promotion of Administrative Justice Act no 3 of 2000;

3.

The third and fourth respondents should not be directed to restore D the custody of Angel Swart to the applicant;

4.

If any of the respondents oppose the application they should not be directed to pay the costs of the application.'

First, second and eighth respondents are cited as respondents in their official capacities as commissioners of child welfare. Third and fourth E respondents are cited by virtue of their being the adoptive parents of A. Fifth, sixth and seventh respondents are accredited social workers within the meaning of the CCA and are part of an adoption unit operating under the guidance of a consultant. Fifth and sixth respondents are employed by Procare, an association of social workers in private practice. Seventh F respondent is employed by Procare as a part-time counsellor.

It is applicant's case in essence that her consent to the adoption of A was never lawfully obtained, in that the prescribed statutory procedures set out in the CCA were not complied with, alternatively, that her alleged consent was vitiated by the actions of fifth, sixth and seventh respondents. G

The sequence of events leading up to the eventual granting of the adoption order on 11 February 2004 is largely common cause. What is not common cause are applicant's reasons and motivations for her various actions during this period. In this regard, applicant cast serious H aspersions on the professional conduct of fifth, sixth and seventh respondents. She alleged, inter alia, that despite the fact that they were aware that she was not in a position'emotionally or spiritually' to make any rational decision concerning the adoption of A, they had misled, intimidated and pressurised her to such an extent that her resistance had crumbled and she had acted to her prejudice in performing certain I actions which led to the adoption order being granted. These allegations were denied by the fifth, sixth and seventh respondents who each filed an affidavit in answer thereto in which they stated that they had acted in a professional manner throughout.

In the meantime, on 19 October 2006, an order was granted requesting J the family advocate, Port Elizabeth, to investigate whether the relief

Pickering J

sought by applicant in prayers 1 - 3 of the notice of motion was in the best A interests of the minor child and appointing Ms Crouse as curator ad litem to represent the minor child in the further conduct of the application. The family advocate duly filed extensive reports, including a report from an educational psychologist and family counsellor, Mr Gerhardt Goosen. Ms Crouse has also furnished a thorough and helpful report and the court B is indebted to her for her assistance in that regard, as also for her appearance and submissions made at the hearing of the matter. At the hearing Ms Hartle, together with Ms Laher, appeared pro bono for the applicant and Mr Scott appeared for third and fourth respondents. The court is indebted to them for their assistance in arguing what is obviously an emotionally traumatic matter for both applicant, as well as for the C third and fourth respondents. There was no appearance for any of the other respondents.

In her affidavit, applicant set out in considerable detail her physical circumstances and her state of mind at the time that she became pregnant with A. At the same time as she was involved with A's natural D father, she was also involved in an intimate relationship with a married man, one P, upon whom she relied for financial support. She states that her pregnancy threw her life and her relationships into turmoil. Eventually, shortly before her confinement, she made contact with sixth and seventh respondents and moved, with her 5-year-old daughter, into a E home for pregnant and unmarried mothers, known as Sisters Incorporated, in Cape Town. While there, applicant had certain discussions with seventh respondent concerning the possible adoption of her baby. According to applicant, the issue of adoption arose more particularly because of pressure exerted upon her by P. At some stage prior to giving F birth, applicant left the home. It had been agreed, however, that she would contact seventh respondent when she went into labour and she duly did so. There is a heated dispute on the papers as to whether or not applicant had agreed immediately prior to the birth that the baby be put up for adoption upon her birth. Be that as it may, as soon as A was born she was separated from applicant. It is common cause, however, that G after five days applicant advised sixth and seventh respondents that she definitely did not want A to be adopted and she was therefore reunited with her on 3 June 2003. Procare accordingly closed their file relating to A's adoption.

During July 2003 applicant again came into contact with seventh H respondent. According to her she was at that time in possession of a learner driver's licence which was due to expire on 18 August 2003. It was, she said, imperative for her to obtain her driver's licence so as to be more marketable as an employee. She could not get a booking for her driver's licence test in Cape Town but was able to arrange one in I Pietermaritzburg. She had to make arrangements for the care of A in the meantime, and one means of doing this was to have A placed in the care of a so-called kangaroo mother during her absence. According to applicant, seventh respondent was prepared to help but only on the basis that applicant sign an 'open' consent in terms of s 18(6) of the CCA for the adoption of A. These allegations are denied by sixth and seventh J

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A respondents who aver that applicant, in fact, advised them that she could not cope with A and had decided that it was in her best interests that she be adopted.

Be that as it may, it is common cause that on 25 July 2003 applicant appeared before eighth respondent at the children's court, Bellville, B where she signed a consent to adoption in the requisite form (Form 12 of the Regulations to the CCA published under GN R26121 in GG 1054). In that form, applicant states that she consents to the adoption of A by 'a person or persons unknown to me'. The form further records that applicant was informed that'she may withdraw this consent in writing C before any commissioner of child welfare at any time during a period of up to 60 days after having given this consent' and also that she was 'not entitled to be present when the application for adoption is considered unless allowed to be present in the interests of the child at the discretion of the court'.

D According to applicant, she knew that what she was doing was 'wrong' but she stated that she did not use the facilities of Procare 'in a deliberately deceitful way'. She was, however, desperate to have A placed in the care of the kangaroo mother whilst she went to Pietermaritzburg. At the time of signing the consent, she 'already had it in mind to withdraw it'.

E After her return from Pietermaritzburg, she told sixth respondent that she wanted A back, and A was indeed restored to her custody on 25 August 2003. Sixth and seventh respondents confirmed that A was returned to applicant because she advised them that she did not wish to proceed with the adoption. Procare's file was then again closed. The F adoption application filed in the children's court was, however, never formally withdrawn, it being the view of sixth and seventh respondents that, should applicant yet again change her mind concerning the adoption, that application could, with applicant's permission, be revived.

Matters, however, did not become any easier for applicant and, eventually, G during November 2003, she contacted seventh respondent and told her that she wanted to proceed with the adoption of A by a couple of whose profile she approved. In consequence, A was taken from applicant's custody and placed in the care of the same kangaroo mother with whom she had previously been.

H On 12 December 2003 applicant attested to an affidavit at the children's court, Bellville, in which she stated as follows:

'I am the biological mother of AS born 28 May 2003. I signed consent for her adoption on 25 July 2003 she has not been placed yet but I want the adoption to be finalised now. I understand that the 60 days have I expired and that I don't have any rights to change my mind any more. I believe that adoption will be in A's best interests.'

A was placed in the custody of third and fourth respondents the same day.

On or about 14 December 2003 applicant contacted fifth respondent J and informed her that she wanted A back. Fifth respondent advised her

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that the affidavit signed by applicant had finalised the adoption process A and that applicant could not change her mind in this regard. According to applicant she'suddenly realised the finality of the matter'. She spoke to the head consultant of Procare, one Van den Bergh, and fifth respondent thereafter spoke to third and fourth respondents in order to ascertain whether they would not...