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[2015] ZAGPJHC 131
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T v T and Others (13040/2013) [2015] ZAGPJHC 131; [2015] 3 All SA 631 (GJ) (19 June 2015)
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REPUBLIC
OF SOUTH AFRICA
OFFICE
OF THE CHIEF JUSTICE
IN
THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 13040/2013
DATE:
19 JUNE 2015
REPORTABLE
In
the matter between:
[T……..]
[I…….]
[G………]
....................................................................................................
Applicant
[T………..]
[J…….]
[C……..]
......................................................................................
First
Respondent
[L…….]
[J……..]
......................................................................................................
Second
Respondent
THE
REGISTRAR OF
ADOPTIONS
......................................................................
Third
Respondent
JUDGMENT
MOKGOATLHENG
J
INTRODUCTION
[1]
The applicant in terms of
section 243(1)(c) of The Children’s
Act No 38 of 2005 (‘The Act”)
seeks the
rescission of the adoption orders granted in his favour in respect of
the children [E……] and [I……]
[T……]
at the Alberton Children’s Court on 26 June 2007.
[2]
The first and second respondents who as the biological parents of
[E…….] and [I…….] consented to
their
adoption in terms of
section 233(1)(a) of The Act
are
not opposing this application. The Registrar of Adoptions who
represents the interests of [E……] and [I…..]
[T……] as adopted children, opposes the relief sought by
the applicant.
[3]
Prior to the hearing of this matter, the court issued an order
requesting the Family Advocate to interview the applicant, the
first
and second respondents, [E…..] and [I……] [T…….].
The Family Advocate was requested that
pursuant to such interview she
should compile a report indicating the effect if any, of the
rescission of the adoption orders on
the adopted children, and
thereafter incorporate her findings and recommendations, taking into
account the best interests of the
children.
The
Jurisdictional Issue
[4]
The third respondent’s opposition is premised on the ground
that this application was instituted after the expiry of the
prescription period of two years in contravention of
section
243(2) of The Act
which provides
that:
“
An
application in terms of subsection (1) must be lodged within a
reasonable time but not exceeding two years from the date of the
adoption.”
The
third respondent’s counsel argued that because the adoption
orders sought to be rescinded were granted on 26 June 2007,
six (6)
years prior to the institution of this application, the court was
precluded from adjudicating this matter.
[5]
Counsel also argued that this court does not have the competence to
grant the relief sought “
because a court’s inherent
power to regulate its own processes is pursuant to
section
173 of The Constitution
is limited and does not extend to
the assumption of jurisdiction the court does not otherwise have or
which is not conferred upon
the court by statute,
nor can the
court exercise its inherent power in conflict with a statute.”
See
National Union of Mine Workers of South Africa and Others v
Fry’s Metal (Pty) Ltd
2005 (5) SA 433
(SCA); Oosthuizen v Road
Accident Fund
2011 (6) SA 311
(SCA) para 17
.
[6]
Counsel further contended that it was impermissible for the court to
grant the relief sought because by so
doing the court would be
usurping the role and power of the Legislature in contravention of
the constitutional principle of the
separation of powers.
[7]
Counsel’s final contention was that pursuant to
section
243 (2) of The Act
, the rescission of an adoption order may
only be granted if it is in the best interests of the child, further
that in addition
it is a prerequisite that the applicant should also
comply with the provisions of
section 243 (3)(c) of The
Act
by alleging that at the time of making the adoption
orders he did not qualify to be an adoptive parent as envisaged in
terms of
section 231 of The Act
. Because of the
applicant’s failure to do so, counsel’s submission was
that the applicant had failed to comply with
the jurisdictional
prerequisites antecedent to the rescission of an adoption order,
consequently, the application was susceptible
to be dismissed. I
demur.
[8]
Generally a court’s inherent jurisdiction cannot be exercised
in conflict with a statute. In accordance
to the dictates of the rule
of law and the supremacy of the Constitution the source from which
this court derives its inherent
power is
section 173 of The
Constitution
pursuant to which it has the inherent power to
regulate its own processes taking into account the interests of
justice. In this
particular case because it concerns the rescission
of adoption orders, this court is enjoined to take into account the
paramountcy
of the best interests of the children in terms of
section
28(2) of The Constitution
which provides that: “
[a]
child’s best interests are of paramount importance in every
matter concerning the child.”
[9]
Further this court as the upper guardian of children is enjoined to
intervene where there is an apparent conflict between the
provisions
of
section 243(2) of The Act
and sections 2,
28(1
) and
28(2) of The Constitution. Section 28(2)
read
with
section 28(1) of The Constitution
set out the
legal framework pertaining to the children’s rights which
obliges the courts to enforce within reasonable limits.
The spirit,
ambit and purport of the Constitution enjoin the courts to interpret
the provisions of these sections purposively in
the furtherance of
protecting and advancing the best interests of the children. In the
new constitutional order the scope of the
best interests of the
children principle has been greatly enlarged. See
Brandt v S
[2005] 2 All SA 1
(SCA) at paras 15-6.
[10]
Justice Goldstone pointed out in
Minister of Welfare and
Population Development v Fitzpatrick and Others 2000 (3) SA422 (CC)
at para 17
that
section 28(1)
which
provides a list of enforceable substantive rights… is not
exhaustive of children’s rights; because “
section
28(2)
requires that a child’s best interests have
paramount importance in every matter concerning the child. The plain
meaning of
the words clearly indicate that the reach of
section
28(2)
cannot be limited to the rights enumerated in
section 28(1) and 28(2).
These sections must be
interpreted to extend beyond those provisions.” It was with
reference to this purposive interpretation
that the Constitutional
Court in
Sonderup v Tondelli
2001 (1) SA 1171
(CC) at para
29F
referred to
section 28(2)
as…
“an expansive guarantee” that a child’s best
interests will be paramount in every matter concerning
that child.”
[11]
Justice Albie Sachs in
S v M (Centre For Child Law as Amicus
Curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) para 25 D-F
observed that ”
the
far-reaching phrase “in every matter concerning the child”,
…taken literally, it would cover virtually all
laws and all
forms of public action, since very few measures would not have a
direct or indirect impact on children, and thereby
which concern the
children. Similarly, a vast range of private actions will have some
consequences for children. This does not
mean that the direct or
indirect impact of a measure or action on children must in all cases
oust or override all other considerations.
If the paramountcy
principle is spread too thin it risks being transformed from an
effective instrument of child protection into
an empty rhetorical
phrase of weak application, thereby defeating rather than promoting
the objective of
section 28(2).
The paramountcy
principle must be applied in a meaningful way without unduly
obliterating other valuable and constitutionally-protected
interests.
…
This
Court has held that
section
28(2),
like the other rights
enshrined in the Bill of Rights, is subject to limitations that are
reasonable and justifiable in compliance
with
section
36
of
The Constitution.”
[12]
In
S v M (supra) at para 15 D
the Court cited with
approval Prof J Sloth-Nielsen who wrote:
“
[T]he
inclusion of a general standard (“the best interest of a child)
for the protection of children’s rights in the
Constitution can
become a benchmark for review of all proceedings in which decisions
are taken regarding children. Courts and administrative
authorities
are constitutionally bound to give consideration to the effect their
decisions will have on children’s lives.”
[13]
Pursuant to
section 173 of The
Constitution
this court has the
inherent power to regulate its own processes taking into account the
interests of justice. In this particular
case because it concerns the
rescission of adoption orders, this court is also enjoined to take
into account the paramountcy of
the best interests of the children in
any matter concerning the children in terms of
section
28(2) of The Constitution
which
provides that:
“
[a}
child’s best interests are of paramount importance in
every matter concerning the child.”
This
court by exercising its inherent power to regulate its process which
it derives from
section 173 of The
Constitution
is complying with the
constitutional imperative of the supremacy of the best interests of
children in all matters concerning their
welfare as decreed by
sections 28(1) and 28(2) of The
Constitution
.
[14]
The court is further empowered by
sections 7 of The Act
to adjudicate this matter pursuant to the constitutional imperative
of the principle of the children’s best interests as
decreed
by
section 2 of The Constitution
despite the peremptory
prescriptive injunction of
section 243 (2) of the Act.
Considered from this perspective it is trite that
sections
2, 28(1) and 28(2) of The Constitution
trump the prescriptive
peremptory injunction of
section 243 (2) of The Act.
[15]
Despite the fact that there appears to be an apparent inconsistency
between the peremptory prescriptions of
section 243(2) of The
Act and sections 2, 28(1) and 28(2) of The Constitution
which
conjunctively read espouse the supremacy of the Constitution and the
paramountcy of the best interests of the children. In
my view there
is no conflict between the provisions of these respective sections
which precludes this court from adjudicating this
matter pursuant to
the constitutional imperative of the supremacy of constitutional
provisions
vis-à-vis
statutory provisions, and by
having regard to paramountcy of the principle of the children’s
best interests. In any event,
despite this apparent inconsistency
the constitutional provisions of
sections 2, 28(1) and
28(2) of The Constitution
must prevail over the provisions of
section 243 (2) of The Act
.
[16]
Although
section 243(3)(a) of The Act
, requires that in
addition to the best interest principle, the applicant should fall
within the ambit of
section 243(3)(c) of The Act
, this
court is not precluded from adjudicating this matter because neither
the prescriptive provisions of
section 243(2) of The Act
nor the normative prerequisites of
section 243(3)(c)
can supercede the pre-eminent constitutional prerogative of the
supremacy of the principle of the best interest of the children
because in adoption matters the provisions of
sections 243(2)
and 243(3)(c) of The Act
are superseded by and subservient to
the provisions of
sections 2, 28(1) and 28(2) of The
Constitution.
[17]
Further in my view the paramountcy of the children’s best
interest rights are constitutionally justifiable
in terms of
section
36 of The Constitution,
consequently
, sections 2, 28(1)
and 28(2) of The Constitution
purposively interpreted, the
best interests of the child principle overrides the applicant’s
non-compliance with the respective
prescripts of
sections
243(2) and 243(3)(c) of The Act.
[18]
Having regard to the preceding legal discourse, it can be cogently
argued that in enacting
section
243(2) of The Act,
the Legislature
was not prescribing that the two year prescriptive period within
which to institute the rescission of adoption
orders should override
the fundamental
section 2
constitutional principle of the supremacy of the principle of the
best interests of the children in every matter concerning children.
Considered from the aforegoing analysis
sections
243(2) and 243(c) of The Act
are
not mutually destructive of or immutably inconsistent with the
provisions of
sections 2, and 28(2)
read with
section
28(1) of The Constitution
which
provide an expansive guarantee regarding the supremacy of a child’s
best interest in every matter concerning the child.
The
Factual Matrix
[19]
I now turn to the peculiar factual matrix which distinguishes this
matter despite the apparent inordinate delay
of over six years in
launching this application. The first and second respondents who were
formerly married divorced in 2005. Pursuant
to the divorce the first
respondent was awarded custody of [E……] and [I…..].
The applicant and the first respondent
married on 14 June 2006.
[20]
The applicant adopted the [E……] and [I……]
on 26 June 2007. The first and second respondents
consented to the
adoption. Factually the motivation of the first respondent’s
consent was predicated on the fact that after
her marriage to the
applicant she wanted him to be a parental father figure to [E……]
and [I……..].
[21]
The applicant and the first respondent divorced on 23 October 2008.
In terms of the settlement agreement the first respondent
was awarded
the custody of [E…….] and [I……]. The
purported legality of the award of the custody of
[E…..] and
[I……] to the first respondent in conflict with the
adoption orders issued in respect of [E…….]
and [I…….]
is an issue addressed later in this judgment.
[22]
After the adoption of [E…..] and [I……], the
second respondent continued having contact with
[E……]
who still regarded him as a father figure. As a consequence of such
constant contact, the applicant and the
second respondent concluded
an oral agreement in terms whereof the second respondent would be
responsible for the maintenance of
[E…..]. The second
applicant did not exercise contact with [I……] because
she had emotionally bonded with the
applicant prior to his marriage
to the first respondent. [I……..] regarded the applicant
as a father figure.
[23]
The first and second respondents often quarrelled about the latter’s
exercise of contact with [E……]
and his erratic
maintenance payments. The applicant was barred by the first
respondent from expressing his opinion regarding this
issue. The
first respondent made all the decisions pertaining to the welfare of
[E……] and [I……] and
did not allow the
applicant to exercise any meaningful parental rights, obligations and
responsibilities as the adoptive parent
of the children pursuant to
section 242 (2)(a) of The Act
.
[24]
The marital relationship between the applicant and the first
respondent irretrievably broke down in March 2008. Around
this time
the first respondent told the applicant in no uncertain terms that he
was not the biological father of her children,
and could not exercise
any parental rights, obligations and responsibilities over the
children without her consent. Subsequent
to these utterances the
applicant’s parent-child relationship with [E…..] and
[I…….] deteriorated. Specifically
because of the first
respondent’s negative influence over [E…] and [I…..],
they in turn lost respect for the
applicant as their adoptive father.
[25]
When [E…….] or [I……..] behaved rudely and
the applicant tried to reprimand or discipline
them, the first
respondent sided with the children. The first respondent constantly
undermined and humiliated the applicant in
the presence of the
children, with the consequence that the applicant lost parental
authority over them.
[26]
In June 2008 the first respondent and the applicant separated. The
first respondent left the common with [E…..]
and [I……]
to live with her parents. Subsequent to the separation, the first
respondent prevented the applicant from
having contact with the
children. She cut the plaintiff off completely out of the children’s
lives and prevented him from
communicating with them without her
consent.
[27]
The first respondent informed the applicant that she no longer wanted
the applicant to exercise parental authority over
the children. She
refused to allow the children to visit the applicant or to sleep at
his house over weekends or during school
holidays in breach of the
divorce settlement agreement which purportedly entitled the applicant
to have contact with the children.
[28]
The first respondent informed the applicant that the biological
father of her children was the second respondent,
that the latter
enjoyed precedence over the applicant regarding the children’s
social and educational lives. The applicant
was no longer invited to
the children’s birthday parties and was excluded from their
school and social activities, and Christmas
holiday festivities.
[29]
The first and second respondents enjoyed the benefit of the parental
relationship with the children but left the
financial obligations in
respect of their welfare and maintenance to the applicant. In an
e-mail dated 9 October 2014 the first
respondent requested the
applicant’s permission to change the surname of the children
from Turner to Dixon (her maiden name),
but still wanted him to
remain as their legal guardian and to continue maintaining them.
[30]
Physically [E……] and [I……] ceased to have
any meaningful contact with the applicant
after his separation from
the first respondent in June 2008. The applicant does not want
resuscitate any physical or emotional
contact with[E…..] and
[I……] nor does he desire to revive the parent-child
relationship between himself and
the children because of the
intrusion by the first respondent in preventing him from exercising
his parental obligations and responsibilities
as the adoptive parent
of [E…..] and [I……].
[31]
The situation has become intolerable and untenable to the applicant
who believes it will be in the interests of
the children that the
adoption orders be rescinded to enable the first and second
respondents to assume their lawful role as the
biological parents and
legal guardians of the children as envisaged in section
244(1)
(b) of The Act
.
The
Third Respondent’s Case
[32]
The third respondent contends that the application seems to be
motivated by the applicant’s unwillingness
to continue paying
maintenance in respect of both children despite the fact that he
still harbours love and affection for them.
The third respondent
argues that although the applicant separated from the children in
June 2008, he remained a father figure in
their lives until December
2012 when he ceased contact with them.
[33]
The third respondent contends that applicant’s difficulty in
paying for the maintenance of someone else’s
children is
understandable but argues that is a consequence the applicant should
have been alive to when he adopted the children
because it is
impermissible for the applicant to sever his adoptive parental
responsibilities because of financial considerations.
[34]
Further the third respondent states that the setting aside of the
adoption orders would not be in the best interest
of the children
because the children have physically and emotionally bonded with the
applicant whom they still regard as their
father figure. The third
respondent’s counsel further pointed out that the court had a
constitutional obligation to protect
the children’s best
interests and emphasised the applicability of
section 28(1)
read with
section 28(2) of The Constitution
which
provide amongst others that every child has a right to family and
parental care or appropriate alternative parental care when
removed
from the family environment.
The
Legal Framework
[35]
In weighing up the children’s best interests in adoption
matters, the court is obliged to consider the effect the
rescission
of the adoption orders will have on the children, especially where a
considerable period of time has elapsed since the
granting of such
adoption orders and the children have formed a bond with their
adoptive parent.
[36]
The application of
sections 2, 28(2)
and 28(1) of The Constitution and section 7(1) of The Act
involve the weighing up of various competing interests and rights,
and at times the limitation of the children’s best interest.
The fact that the best interest of the child are paramount does not
imply that the child’s best interest right is absolute.
At
times the best interests of the child as incongruous as this may
sound, may limit a child’s best interests (see
Skelton
“Constitutional Protection of Children’s Rights”
282-283; Friedman, Pantazis and Skelton “Children’s
Rights” 47, 40-46; Sonderrup v Tondelli
2001 1 SA 1171
(CC);
Harris v Minister of Education
2001 4 SA 1297(CC).
[37]
In
S v M (supra)
Justice Albie Sachs observed that:
“
Section 28(2)
read with
section 28(1)
establishes a set of children’s rights that courts are obliged
to enforce. The question is not whether
section 28
creates enforceable legal rules, which it clearly does, but what
reasonable limits can be imposed on their application. The ambit
of
the provisions is undoubtedly wide. The comprehensive and emphatic
language of
section 28
indicates that the
provisions must be interpreted in a manner which favours protecting
and advancing the interests of children.
Further the courts must
function in a manner which at all times shows due respect for
children’s rights.”
[38]
Section 28(1)
read with the best interest principle in
section 28(2)
requires the court to make the best
possible effort to avoid where possible any breakdown of family or
parental care that may place
the children’s best interests at
risk.
Section 28(1)(b) of The Constitution
guarantees a
child’s rights to adoptive care by providing for the child’s
right to alternative care when removed from
the family environmental.
[39]
Section 7(1) of The Act
sets out a lengthy list of
factors for courts to consider when determining a child’s best
interests under
The Act and The Constitution
. Such
factors include, but are not limited to, the nature of the personal
relationship between the child and the (adoptive) parent;
the child’s
physical and emotional security; the need for a child to be brought
up within a stable family; and the relevant
characteristics of the
child.
[40]
In considering the best interests of the child, the court in
Fraser
v Naude and Others 1999 (1) SA (CC)
and also in
AS v Vorster NO and
Others supra at 117F-118A
not only
referred to the provisions of the
Child
Care Act
but also invoked the
provisions of
section 28(2) of The
Constitution
and
sections 6(2), 7 and 9 of The Children’s Act.
In the context of determining whether the setting aside of the
adoption order was in the best interest of the child the Court
specifically referred to the factors listed in
section
7(1) of The Act.
[41]
In
Belo v Steenkamp, Commissioner of
Child Welfare, Johannesburg and Others 2002 JDR 0301 (W).
The biological father of a child who was adopted by his stepfather
failed to convince the court to condone the late noting of an
appeal,
despite the fact that the biological father’s consent was
wrongly dispensed with and therefore not obtained as required.
The
court concluded that the delay of seven years in noting the appeal
was so inordinately long that it would not be in the best
interest of
the child to interfere with the adoption order. The facts in the
present matter are distinguishable from the
Belo
case (supra)
.
The
De Jure
Adoption Fiction
[42]
In the present matter the circumstances predicating the application
for the rescission of the adoption orders are
extraordinarily
peculiar and exceptional. The adoption of [E…..] and [I……]
was forged on an unsound legal
and moral foundation as this analysis
of the dichotomy of the purported lawful adoption indicates.
[43]
Fact of the matter is the adoption of [E…….] and [I……]
was in essence an abstract circumstantial
fictional adoption
predicated on the first applicant’s need that [E…..] and
[I……] must have a father
figure after her divorce
from the second respondent. The adoption was also predicated on the
emotional convenience to accommodate
the applicant’s emotional
bond to Indigo because he regarded himself as her father as a result
of having provided emotional
and psychological support to the first
respondent during her pregnancy with Indigo, and because he was
present at her birth and
was the first person to hold her. The bond
between the applicant and Indigo was cemented during the applicant’s
pre-marital
co-habitation with her biological mother and as a
consequence of this emotional bond Indigo regarded the applicant as
her father.
[44]
In the adjudication of this matter it is crucial to establish whether
one is confronted with a legal fiction regarding:
(i)
The legality of the efficacy of the
de jure
adoption orders
granted in respect of [E…..] and [I……];
(ii)
The
de facto
non-recognition by the first respondent of the
legal consequences of the effect of consenting to an adoption
pursuant to
section 233 (1) (a) of the Act;
(iii)
The legal effect of an adoption order pursuant to which
section
242(1) (a)
terminates the first and second respondents
parental responsibilities over their children [E…….]
and [I……];
and
(iv)
section 242(2)(a) of The Act
which confers full
parental responsibilities and rights to the applicant in respect of
the children in order to establish whether
in law objectively
speaking there was a
bona fide
adoption of [E……]
and [I……] predicated on
section 239(1)(a) of The
Act.
[45]
It is crucial to factually accept the objective reality that in
analysing the apparent adoption of [E…..]
and [I……]
by the applicant on 26 June 2007 one is confronted with the stark
recognition that the
de jure
adoption of [E……]
and [I……], was in reality objectively
de facto
a legal fiction because the first respondent did not recognise or
accept the legal effect and consequences of the adoption of her
children by the applicant, that in law immediately after such
adoption their parental rights and responsibilities regarding the
lives of [E……] and [I…..] were terminated
pursuant to
section 242(2) of The Act
.
[46]
Objectively speaking although
de jure
the applicant adopted
[E…..] and [I……] on 26 June 2007,
de facto
this purported adoption was a legal fiction because the first
respondent although she had consented to the adoption of [E……]
and [I……] by applicant,
de facto
she never
relinquished her parental rights, obligations and responsibilities
and “
the legal guardianship
” as the biological
mother of [E…….] and [I……].
[47]
It must be borne in mind that we are dealing here with the adoption
of children, who although their biological
parents consented to their
adoption by the applicant pursuant to
section 233 of The Act,
the objective reality that there was never an absolute physical
classical clean break and severance of the parent child relationship
between the first respondent and her biological children [E……]
and [I…..]. The nucleus of the family unit
between the first
respondent, [E…..] and [I…..] endured and was never
terminated even up to the present.
[48]
De jure
although the second respondent consented to the
adoption of [E…..] and [I…..] by the applicant,
de
facto
he never relinquished his parental rights, obligations and
responsibilities to [E…..] as decreed by
section
242(2)(a) of The Act
. After his divorce from the first
respondent in July 2005, the second
respondent has always had contact
with [E……], but
critically [E……] still regarded the second respondent
as his real father to the detriment
and exclusion of the applicant
despite the act that the full rights and responsibilities in respect
of [E…….] were
conferred on the applicant upon the
adoption of [E…..].
[49]
The adoption of [E…..] and [I……] was not
predicated on any of the statutory legal requirements prescribed
by
section 230(3) of The Act
pertaining to the adoption of children. Prior to the adoption,
of [E……] and [I…..] there is no physical
or
emotional evidence that the first and second respondents abused or
neglected their biological children. Further the social and
financial
status of the first and second respondent’s prior to the
adoption of Ethan and Indigo did not fall within the provision
of
section 230 of The Act
which rendered their biological children [E…..] and [I…..]
to be lawfully fall within the purview of the definition
categorising
them as candidates for adoption. Prior to the adoption of [E….]
and [I……] the first and second
respondents were not
financially destitute nor mentally or physically incapable of looking
after [E….] and [I…..].
[50]
The adoption of [E…..] and [I……] was not
predicated on the statutory prescripts of
section 231 of The
Act
but was engineered by the first respondent with the
connivance of the second respondent and the compliance of the
applicant, because
the first respondent after marrying the applicant,
wanted a father figure for [E…..] and [I…..], and as
result she
persuaded the applicant to adopt the [E…..] and
[I……].
[51]
The gravamen of the matter is that after the divorce of the applicant
and the first respondent, the family unit
consisting of the
applicant, the first respondent, [E…..] and [I……]
effectively broke down in June 2008 when
consortium between the
applicant and the first respondent ceased. But more pertinently in
June 2008 after separating from and thereafter
becoming divorced from
the applicant, the first respondent created a new family unit
consisting of herself, [E…..] and [I……].
[52]
It is patent that the applicant and the first respondent during their
divorce proceedings, fraudulently misrepresented
that [E…..]
and [I….] were born of their marriage. The applicant and the
first respondent did not appraise the court
of the fact that [E…..]
and [I……] were not children born of their marriage. At
the time of the divorce the
first respondent although she was the
biological mother of [E…..] and [I…..], she was no
longer their legal guardian
because after their adoption by the
applicant pursuant to
section 242(2)(a)
the full
parental responsibilities and rights in respect of the children were
conferred upon the applicant. Further the parental
responsibilities
and rights and claims to contact by the first and second respondent
to the adopted children were terminated upon
adoption pursuant to
section 242(1)(a)(b) and (c) of The Act
.
[53]
Legally speaking the court could not have issued a decree of divorce
incorporating the settlement agreement which
declared that custody of
[E…..] and [I.…] was awarded to the first respondent.
Consequently, the legality of the
divorce decree settlement agreement
awarding the custody of [E…..] and [I……] to the
first respondent is legally
untenable, in fact such custody award is
a nullity as the existence of the adoption orders in respect of
[E…..] and [I….]
were legally still extant, valid and
binding until rescinded.
[54]
Regarding the relief sought, the Family Advocate, the Family
Counsellor and the Social Worker share the view that the
adoption
orders should be rescinded and in reaching this conclusion they were
aware that the rescission application was launched
outside the two
years statutory period prescribed by
section 243 (2) of The
Act
, but despite that they considered that it was in the best
interests of the children that the adoption orders should be set
aside,
because of the overriding fact that the parental rights,
obligations and responsibilities which the biological parents have
continuously
exercised in respect of their biological children should
be lawfully restored to them.
Family
Advocate’s Report
.
[55]
The Family Advocate and Family Counsellor’s findings are that
the rescission of the adoption orders will
not have any permanent
deleterious psychological and emotional effect on [E……]
and [I…….] and hold
that in actual fact the rescission
of the adoption orders will merely give legal effect to the
de
facto
situation which has existed since June 2008 when the
applicant and the first respondent separated.
[56]
The applicant no longer exercises his parental rights,
responsibilities and obligations except for the financial
contribution he makes towards the children’s maintenance. The
children’s perception of the applicant is not that of
a father
figure but it is influenced by the material gains they derive from
the applicant’s continued financial involvement
in their lives.
[57]
The children need a father figure to provide emotional and
psychological support in their lives. The applicant
has decided not
be a part of the children’s lives any more. The relationship
between the children and the applicant has irretrievably
broken
down. The applicant and the children no longer enjoy a
meaningful parent-child relationship. The erratic contact the
applicant experienced with the children between July 2008 and
December 2012 is not sufficient to have formed a permanent emotional
and psychological bond of attachment between him and the children.
[58]
The objective situation is that the applicant as the adoptive father
is in fact rejecting his adopted children
who have since birth never
being separated in the sense of a clean break as a family unit from
their biological parents. It is
unconscionable to impose the
applicant on the adopted children when he is prevented by the
biological mother who has permanently
resided with the children since
their birth up to the present.
[59]
According to the Social Worker there is the probability of rejection
if the applicant is forced to carry on interacting
with the children.
The second respondent who is the children’s biological father
is enjoying a normal child-parent relationship
with both children.
There is no possibility under these circumstances of the restoration
of the emotional and psychological trust
required between the
applicant, [E…..] and [I……].
[60]
The applicant has stated in no uncertain terms that he is not
interested in rebuilding the bond between him and
the children
neither does he intend continuing a his parent-child relationship
with the children. The children’s psychological
circumstances
and their physical and emotional security will not necessarily change
in light of the fact that the applicant has
not been a vital part of
their lives since June 2008.
[61]
The first respondent is a teacher and the second respondent is an
electrician and both biological parents possess the financial
capacity to adequately maintain and educate their biological
children. The formality of setting aside the adoption orders will
afford the first and second respondents and the children an
opportunity to strengthen their already existing parent-child
relationship,
because the first respondent has
de facto
always
had the custody of the children whilst regarding the second
respondent his legal guardianship over the children will be
restored,
further the de facto family unit existing between the children and
their biological parents will be lawfully formalised.
The
Order
[62] In the premises
the following order is made:
[a]
the adoption orders of the minor children [E……] and
[I…….] [T…….] made on the 26 June
2007 in
regard to both minor children respectively in favour of the applicant
by the Children’s Court under Case Number 14/1/2-19/06
Registrar’s reference Number 52/4-12/12/6/2 Adoption Register
Number 48729/07 and 48730/07 date of registration 10 July 2007
are
hereby rescinded and set aside with effect from the 23 April 2015;
[b]
paragraphs 1.2, 1.3.1.1, 1.3.2, 2.1, 3.1 and 3.2 of the Memorandum
Agreement
made and order of the Central Divorce Court under Case
Number 10199/08 pursuant to the decree of divorce granted on 23
October
2008 are hereby rescinded and set aside;
[c]
the third respondent is ordered to endorse the records of the
Adoption Register regarding the rescission and setting aside of
the
minor children’s adoption orders; and
[d]
there is no order as to costs.
MOKGOATLHENG
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG,
LOCAL DIVISION, JOHANNESBURG
APPEARANCES:
COUNSEL
FOR THE APPLICANT: K FOULKES-JONES SC
INSTRUCTED
BY: BEDER-FRIEDLAND INC
COUNSEL
FOR THE THIRD RESPONDENT: N CASSIM SC
ASSITED
BY MANAKA
INSTRUCTED
BY: STATE ATTORNEY-JOHANNESBURG
DATE
OFHEARING:
DATE
OF DELIVERY OF THE JUDGMENT: 19 JUNE 2015