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[2021] ZAGPJHC 895
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Tislevoll v Minister of Social Development and Others (30278/2020) [2021] ZAGPJHC 895 (15 February 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
CASE NO: 30278/2020
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: YES
REVISED.
15 FEBRUARY 2021
In the matter between:
TISLEVOLL:
GURO MARIE
Applicant
and
MINISTER
OF SOCIAL DEVELOPMENT
First Respondent
MEC
FOR SOCIAL DEVELOPMENT
Second Respondent
GAUTENG DEPARTMENT OF
SOCIAL
DEVELOPMENT
Third Respondent
SAVF
HEIDELDERG
Fourth Respondent
DIRECTOR-GENERAL FOR
SOCIAL
DEVELOPMENT
Fifth Respondent
J U D G M E N T
Mode
of delivery:
this judgment is
handed down
electronically by circulation to the parties’ legal
representatives by email. The date and time for hand-down
is deemed
to be 11:00am on 15 February 2021.
Summary
–
Family
law -
whether chapter 15 and 16 of
the Children’s Act are at the disposal a foreign national who
intends to undertake the domestic
adoption of a child under
circumstances where she has been habitually resident in South Africa
for less than one year.
Held: chapter 15 and 16
of the Children’s Act are not at the disposal of a foreign
national who seeks to adopted a child domestically
under these
circumstances.
MODIBA
J
INTRODUCTION
[1]
This
application brings the interplay between The Hague Convention on the
Protection of Children and Co-operation in respect of
Inter-Country
Adoption (“The Hague Convention”),
[1]
and the inter-country and domestic adoption procedures provided for
in the Children’s Act
[2]
into sharp focus.
[2]
The crux of this application is whether
chapter 15 and 16 of the Children’s Act are at the disposal a
foreign national who
intends to undertake the domestic adoption of a
child under circumstances where she has been habitually resident in
South Africa
for less than one year.
[3]
The applicant is Norwegian. She has been
residing in South Africa since August/September 2020. She intends to
adopt a minor child,
who was born in South Africa in 2017.
Alternatively, she seeks appointment as a foster parent for the minor
child.
[4]
To protect the identity of the minor child,
in this judgment, the court refers to her as “the minor child”.
[5]
The proceedings relating to the placement
of the minor child with other prospective adoptive parents are
currently pending before
the Children’s Court. The court refers
to these prospective adoptive parents as “Family X”.
Although this court
is not ceased with the pending adoption
application, the applicant seeks a suite of relief from this court
that would enable her
to give effect to her intention to adopt the
minor child or to be appointed as a foster parent for the minor
child.
[6]
The applicant seeks the said relief on the
basis of urgency in terms of Rule 6(12) of the Uniform Rules of
Court.
[7]
The first respondent, the Minister for
Social Development (“the Minister”) and the fifth
respondent, the Director-General
in the National Department Social
Development are jointly opposing the application. The second
respondent, the Member of the Executive
Council for Social
Development in Gauteng (“the MEC”), the third respondent,
the Gauteng Department of Social Development
(“the Department”)
did not enter the fray.
[8]
The
Director-General in the National Department for Social Development is
the designated South African Central Authority (“SACA”)
in terms of The Hague Convention.
[3]
Given that his role as SACA is central to his citation in these
proceedings, unless the context requires otherwise, it is convenient
to refer to the Director-General as SACA whenever individual
reference is made to him in this judgement.
[9]
Cited as the fourth respondent is SAVF
Heidelberg (“SH”). SH has mounted a separate opposition
to the application.
[10]
For
brevity, the court jointly refers to the Minister, SACA and SH as the
respondents. Where it is necessary to draw a distinction
between the
National and Gauteng Department for Social Development, reference is
made to “the National Department”
and “the
Department” respectively. All the respondents initially opposed
both the urgency and the merits of the application.
By the time the
application was heard, the respondents had abandoned the issue of
urgency. It is trite that urgency is not founded
on the agreement
between the parties. The party alleging it ought to set out the basis
for it in her founding papers.
[4]
As I find below, the applicant does not meet the test for urgency.
The basis on which this court proceeded to deal with the application
is set out in this judgment.
[11]
This judgment follows the following scheme.
After this introduction, the applicable legislative framework is
detailed. Then, an
extensive background of the application is set out
to give context to the issues to be determined in the application. A
brief outline
of the applicant’s case is then set out followed
by the relief sought by the applicant. The relief sought by the
applicant
is elaborate. It is for this reason that it set out in
detail. The respondents’ basis for opposition is then outlined,
followed
by the issues to be determined. Then, the question of
urgency, the preliminary issues raised by some of the respondents and
the
merits of the application are determined. An order that is
consistent with the findings made by this court concludes the
judgment.
THE APPLICABLE
LEGISLATIVE FRAMEWORK
[12]
The
Hague Convention sets out internationally accepted inter-country
adoption standards. South Africa acceded to The Hague Convention
on 1
December 2003. Norway acceded to The Hague Convention on 1 March
1998. Therefore, South Africa and Norway are convention countries
as
envisaged in The Hague Convention. Inter-country adoption between the
two countries is regulated by The Hague Convention. Chapter
16 of the
Children’s Act which regulates inter-country adoptions in South
Africa, domesticates or incorporates The Hague
Convention into South
African law.
[5]
The Hague
Convention takes precedency over the Children’s Act where there
is a conflict between the two instruments.
[6]
[13]
Chapter 15 of the Children’s Act
regulates domestic adoptions. Except where otherwise specified, the
two Chapters set out
distinct requirements that are applicable to
domestic and inter-country adoptions respectively.
[14]
Chapter 12 regulates foster care.
[15]
Unless otherwise specified reference in
this judgement to a chapter or section of an Act of parliament is to
the Children’s
Act.
The Hague Convention
[16]
The
Hague Convention recognizes that growing up in a family is of primary
importance and essential for the happiness and healthy
development of
the child.
[7]
The Hague
Convention also observes that inter-country adoption may offer the
advantage of a permanent family to a child for whom
a suitable family
cannot be found in his or her country of origin. The Hague Convention
was therefore borne out of the recognition
of inter-country adoption
as a valuable solution offering a permanent family to a child for
whom a suitable family cannot be found
in his or her country of
origin. The Hague Convention was developed to establish safeguards
which ensure that inter-country adoptions
take place in the best
interest of the child and with respect for the child’s
fundamental rights.
[17]
The Hague Convention sets out clear
procedures and provides greater security, predictability and
transparency for all parties to
the adoption, including prospective
adoptive parents. It also establishes a system of co-operation
between authorities in countries
of origin and receiving countries,
designed to ensure that inter-country adoption takes place under
conditions which help to guarantee
the best adoption practices and
eliminates abuses.
[18]
The Hague Convention requires states to
consider national solutions first before resorting to an
inter-country adoption. This is
known as the principle of
subsidiarity. The principle recognizes that a child should be raised
by his or her birth family or extended
family whenever possible. If
that is not possible or practicable, other forms of permanent care in
the State of origin should be
considered. Only after due
consideration has been given to national solutions should
intercountry adoption be considered, and then
only if it is in the
child’s best interest. If inter-country adoption is needed as
part of such a national child care system,
it must be ethical and
child-centered.
[19]
The Hague Convention also requires States
to ensure that the child is adoptable, preserve information about the
child and his or
her parents, evaluate thoroughly the prospective
adoptive parents, match the child with a suitable family and impose
additional
safeguards where needed.
[20]
Only
competent authorities may perform Convention functions. Hence, The
Hague Convention provides for a system of Central Authorities
(CAs)
in all Convention States and imposes certain general obligations on
them, such as: co-operation with one another through
the exchange of
general information concerning intercountry adoption; the elimination
of any obstacles to the application of the
Convention
[8]
and a responsibility to deter all practices contrary to the objects
of the Convention.
[9]
Convention
States are required to designate a CA to discharge the duties which
are imposed by the Convention upon such authorities.
[10]
[21]
The
objects of The Hague Convention are to establish safeguards to ensure
that intercountry adoption takes place in the best interest
of the
child and with respect for his or her fundamental rights as
recognized in international law, establish a system of co-operation
amongst contracting States to ensure that the safeguards are
respected and thereby prevent the abduction and sale of, or traffic
in children, and secure the recognition in contracting States of
adoptions made in accordance with the Convention.
[11]
[22]
The
Hague Convention applies where a child habitually resident in one
Convention State ("the State of origin") has been,
is
being, or is to be moved to another Convention State ("the
receiving State") either after his or her adoption in the
State
of origin by spouses or a person habitually resident in the receiving
State, or for the purposes of such an adoption in the
receiving State
or in the State of origin.
[12]
An inter-country adoption within the scope of The Hague Convention
occurs only when the CA of the receiving State has:
22.1
determined that the prospective adoptive
parents are eligible and suited to adopt;
22.2
ensured that the prospective adoptive
parents have been counselled as may be necessary;
22.3
determined
that the child is or will be authorised to enter and reside
permanently in that State.
[13]
[23]
A
person who is habitually resident in the receiving State, who wishes
to adopt a child habitually resident in the State of origin
shall
apply to the CA in the State of their habitual residence.
[14]
If the CA of the receiving State is satisfied that the applicants are
eligible and suited to adopt, it shall prepare a report including
information about their identity, eligibility and suitability to
adopt, background, family and medical history, social environment,
reasons for adoption, ability to undertake an intercountry adoption,
as well as the characteristics of the children for whom they
would be
qualified to care.
[15]
The
latter factor is an important consideration in the context of this
case because the pre-identification of a child for the purposes
of
adoption is generally not allowed.
[16]
To put it differently, a prospective adoptive parent may not
personally identify and select the child they wish to adopt.
[24]
The
receiving State shall transmit the report to the CA of the State of
origin. If the CA of the State of origin is satisfied that
the child
is adoptable, it shall prepare a report including information about
his or her identity, adoptability, background, social
environment,
family history, medical history including that of the child's family,
and any special needs of the child; give due
consideration to the
child's upbringing and to his or her ethnic, religious and cultural
background; ensure that consents have
been obtained in accordance
with Article 4; and determine, on the basis in particular of the
reports relating to the child and
the prospective adoptive parents,
whether the envisaged placement is in the best interest of the
child.
[17]
The CA of the State
of origin shall transmit to the CA of the receiving State its report
on the child, proof that the necessary
consents have been obtained
and the reasons for its determination on the placement, taking care
not to reveal the identity of the
mother and the father if, in the
State of origin, these identities may not be disclosed. It is
important to mention that the Children’s
Act prohibits such
disclosures. It also limits the giving of notice of a proposed
adoption only persons who are required to consent
to the adoption of
the child.
[18]
Chapter 16 -
Inter-Country Adoption
[25]
The relevant section of Chapter 16 is
section 261. It provides as follows:
“
261
Adoption of child from Republic by person in convention country
“
(1)
A person habitually resident in a convention country who wishes to
adopt a child habitually resident in the Republic must apply
to the
central authority of the convention country concerned.
“
(2)
If the central authority of the convention country concerned is
satisfied that the applicant is fit and proper to adopt, it
shall
prepare a report on that person in accordance with the requirements
of The Hague Convention on Inter-Country Adoption and
any prescribed
requirements and transmit the report to the Central Authority of the
Republic.
“
(3)
If an adoptable child is available for adoption, the Central
Authority will prepare a report on the child in accordance with
the
requirements of The Hague Convention on authority of the convention
country concerned.
“
(4)
If the Central Authority and the central authority of the convention
country concerned both agree on the adoption, the Central
Authority
will refer the application for adoption together with all relevant
documents and the reports contemplated in subsections
(2) and (3) to
the Children’s Court for consideration in terms of section 240.
“
(5)
The court may make an order for the adoption of the child if the
requirements of section 231 regarding persons who may adopt
a child
are complied with, the application has been considered in terms of
section 240 and the court is satisfied that-
“
(a)
the adoption is in the best interest of the child;
“
(b)
the child is in the Republic;
“
(c)
the child is not prevented from leaving the Republic-
“
(i)
under a law of the Republic; or
“
(ii)
because of an order of a court of the Republic;
“
(d)
the arrangements for the adoption of the child are in accordance with
the requirements of The Hague Convention on Inter-Country
Adoption
and any prescribed requirements;
“
(e)
the central authority of the convention country has agreed to the
adoption of the child;
“
(f)
the central authority of the Republic has agreed to the adoption of
the child;
“
(g)
the name of the child has been in the RAPCAP for at least 60 days and
no fit and proper adoptive parent for the child is available
in the
Republic.
Chapter 15 - Adoption
[26]
The
purpose of adoption is to protect and nurture children by providing a
safe, healthy environment with positive support and to
promote the
goals of permanency planning by connecting children to other safe and
nurturing family relationships intended to last
a lifetime.
[19]
A child is adopted if the child has been placed in the permanent care
of a person in terms of a court order.
[20]
An adoption terminates all claims to contact, guardianship and legal
duties over the child and any previous court orders in respect
of the
child unless otherwise specified in the adoption order.
[21]
[27]
In terms of section 231 (1) (b) and (c), a
child may be adopted by an unmarried person and the foster parent of
the child. Section
231 (2) prescribes the following qualification for
a prospective adoptive parent:
“
A
prospective adoptive parent must be-
“
(a)
fit and proper to be entrusted with full parental responsibilities
and
rights in respect of
the child;
“
(b)
willing and able to undertake, exercise and maintain those
responsibilities and rights;
“
(c)
over the age of 18 years; and
“
(d)
properly assessed by an adoption social worker for compliance with
paragraphs (a) and
(b).”
[28]
In
terms of section 232(1) the Director-General keeps the Register of
Prospective Adoptive Children and the Register of Prospective
Adoptive Parents (“RAPCAP”). This is a record of
adoptable children and fit and proper prospective adoptive parents.
The name of a child may be entered into RAPCAP when the child becomes
adoptable.
[22]
A prospective
adoptive parent may be registered in RAPCAP if section 231 (2) has
been complied with and if the person seeking registration
is a
citizen or a permanent resident of South Africa.
[23]
[29]
Concerning access to RAPCAP, section 232
(6) provides:
“
Only
the Director-General and officials in the Department designated by
the Director-General have access to RAPCAP, but the Director-General
may, on such conditions as the Director-General may determine, allow
access to-
“
(a)
a provincial head of social development or an official of a
provincial department of social development designated by the head
of
that department;
“
(b)
a child protection organisation accredited in terms of section 251 to
provide adoption services; or
“
(c)”
a child protection organisation accredited in terms of section 259 to
provide inter-country adoption services.”
[30]
Concerning a notice to be given regarding
the adoption of a child, section 238 provides:
“
238
Notice to be given of proposed adoption
“
(1)
When a child becomes available for adoption, the presiding officer
must without delay cause the sheriff to serve a notice on
each person
whose consent to the adoption is required in terms of section 233.
“
(2)
The notice must-
“
(a)
inform the person whose consent is sought of the proposed adoption
of the child; and
“
(b)
request that person either to consent to or to withhold consent for
the adoption, or, if that person is the biological father
of the
child to whom the mother is not married, request him to consent to or
withhold consent for the adoption, or to apply in
terms of section
239 for the adoption of the child.”
[31]
Concerning access to the adoption register,
section 248 provides:
“
248
Access to adoption register
“
(1)
The information contained in the adoption register may not be
disclosed to any person, except-
“
(a)
to an adopted child after the child has reached the age of 18 years;
“
(b)
to the adoptive parent of an adopted child after the child has
reached the age of 18 years;
“
(c)
to the biological parent or a previous adoptive parent of an adopted
child after the child has reached the age of 18 years,
but only if
the adoptive parent and the adopted child give their consent in
writing;
“
(d)
for any official purposes subject to conditions determined by the
Director-General;
“
(e)
by an order of court, if the court finds that such disclosure is in
the best interest of the adopted child; or
“
(f)
for purposes of research: Provided that no information that would
reveal the identity of an adopted child or his or her adoptive
or
biological parent is revealed.”
[32]
In terms of section 249(1), making or
receiving any consideration in cash or kind for the adoption of the
minor child or inducing
any person to give up the minor child for
adoption is prohibited.
Chapter 12 –
Foster Care
[33]
Foster
care is one of the forms of alternative placement of a child in need
of care which the Children’s Court or the Provincial
Head of
Social Development may authorise.
[24]
A child may be placed in foster care when the child has been deemed
by the Children’s Court to be a child in need of care
and
protection as defined in section 150 or if a child is transferred to
this type of placement in terms of section 171.
[34]
In terms of section 181, the purpose of
foster care is:
“
(a)
to protect and nurture children by providing a safe, healthy
environment with positive support;
“
(b)
promote the goals of permanency planning, first towards family
reunification, or by connecting children to other safe and nurturing
family relationships intended to last a lifetime; and
“
(c)
respect the individual and family by demonstrating a respect for
cultural, ethnic and community diversity.”
[35]
In terms of section 180 (3) (a) to (c), a
child may be placed in foster care with a person who is not a family
member of a child,
a family member who is not the parent or guardian
of the child or in a registered cluster foster care.
FACTUAL BACKGROUND
[36]
On 7 August 2017, the minor child was born
at a hospital in South Africa to a woman of Mozambican descent.
Following the birth of
the minor child, her biological mother opted
to give her up for adoption. It is for this reason that the minor
child was placed
in temporary safe care with an organization referred
to in this judgement as TLC. The placement of the minor child with
TLC was
effected in terms of the Children’s Act. The child’s
biological mother attended the first Children’s Court
proceedings
concerning the child. She failed to attend subsequent
Children’s Court sessions despite being warned to remain in
attendance.
Her whereabouts are unknown.
[37]
Attempts to trace the minor child’s
biological mother in South Africa did not yield any results. So were
attempts to trace
the minor child’s biological mother and/ or
her family through the Mozambican Government. The Mozambican
Government found
no trace of the minor child’s biological
mother’s records in Mozambique. As a result, the government of
South Africa
assumed responsibility for the care of the minor child
as there is no legal basis for the Mozambican Government’s
involvement
in the arrangements for the care of the minor child.
[38]
When this application was heard, the minor
child was still in temporary care at TLC. As already mentioned,
proceedings for her placement
with Family X are underway in the
Children’s Court.
[39]
At the commencement of 2017, the applicant
was residing in Norway. She was due to complete her matric in June
2017. She intended
taking a gap year to serve as a volunteer
rendering social services to the poor in South Africa for about one
year after completing
matric.
[40]
She arrived in South Africa on 1 August
2017 and enlisted as a volunteer with TLC. She served in this
capacity until June 2018.
The applicant alleges that during this
time, she met and took care of the minor child’s physical and
emotional needs. The
child spent most time in her arms, indicating
her need for human contact. The respondents dispute this. In their
view, the applicant
pre-identified the child as the one she prefers
to adopt and developed a close relationship with the child - a
practice they consider
prohibited in terms of The Hague Convention.
[41]
In March/ April 2018, the applicant
commenced adoption procedures in relation to the minor child. She
first attempted an inter-country
adoption through the Norwegian
Government. When that fell through, she relocated to South Africa to
pursue a domestic adoption.
[42]
I deal in more detail below with the
process followed by the applicant with her attempts firstly to adopt
the minor child inter-country
and subsequent efforts to adopt the
child domestically.
The applicant’s
attempts to adopt the minor child inter-country
[43]
On 10 April 2018, the applicant instructed
her attorney to address a letter to SACA to draw SACA’s
attention to the circumstances
of the minor child, her intention to
adopt the minor child and the efforts she has taken in an attempt to
adopt the minor child
inter-country. She alluded to the advice she
was given by an official of the National Department to pursue
inter-country adoption
of the minor child through the Norwegian
Government because she has bleak prospects of adopting the minor
child domestically. She
also alluded to the obstacles that she
encountered to adopt the minor child inter-country through the
Norwegian Government and
expressed confidence that she has overcome
the obstacles and will be positively assessed by the Norwegian
Government. She expressed
her awareness that an inter-country
adoption becomes an option after all the local options have been
explored and expressed her
opinion that the minor child’s
interest, which will best be served when the applicant adopts her due
to the deep psychological
bond that she has developed with the minor
child ought to supersede all the applicable requirements. She further
let SACA know
that the minor child will become adoptable and placed
with either Impilo or Wandisa, the adoption agencies that TLC works
with.
She contended that placing the minor child with Impilo or
Wandisa will be prejudicial to her because Impilo or Wandisa do not
facilitate
inter-country adoptions. Hence, she requested that the
minor child be placed with an adoption agency that facilitates
inter-country
adoptions, namely Abba.
[44]
SACA replied to her attorneys on 25 May
2018 essentially expressing their displeasure with the applicant’s
approach to adopting
the minor child as pre-identification of a
prospective adoptive child is prohibited in terms of the Practical
Guidelines for Inter-Country
Adoptions.
[45]
SACA also noted the obstacles that stood in
the applicant’s path to become eligible to pursue an
inter-country adoption of
the minor child through the Government of
Norway. SACA advised the applicant’s attorney that the minor
child would first
have to be declared adoptable. Most importantly,
SACA informed the applicant that it is unable to consider the
applicant’s
request to adopt the minor child due to the
applicant’s non-compliance with the prescribed procedure and
the relevant legislative
framework.
[46]
In July 2018, the applicant returned to
Norway to elicit the Norwegian’s Government’s assistance
to adopt the minor
child through an inter-country adoption process.
The Norwegian Central Authority (“NCA”) initiated contact
with SACA
on this issue on 22 October 2018. In its correspondence to
SACA, the NCA noted receipt of the applicant’s request for an
advance approval to adopt the minor child. The NCA advised SACA that
it does not know if the applicant meets the eligibility requirements.
It noted its procedural and substantive requirements and the
exceptions to the applicable requirements provided that, amongst
other exceptions, the applicant has a close relation with the child
which was not established with the intention to adopt the child.
The
NCA informed SACA that it may consider to offer the applicant an
adoption preparation course and to screen her if the South
African
Government needs an inter-country adoption. The NCA also noted that
the prospective adoptive parent may not mediate their
own application
with SACA but should use an adoption agency failing which it is the
NCA that ought to apply to SACA and to interact
with the latter
government in respect of the application. The NCA specifically
requested SACA to let it know if an inter-country
adoption of the
minor child is out of question.
[47]
On 16 August 2018, the applicant addressed
another letter to SACA, letting SACA know that she is desirous to be
considered as the
prospective adoptive parent of the minor child and
enquiring on the adoptability status of the minor child. On 7
September 2018,
SACA informed the applicant that the minor child’s
family circumstances must first be investigated in order to establish
the adoptability status of the minor child, that the
pre-identification of the minor child is not allowed and that the
application
for the inter-country adoption of the minor child should
be handled through SACA and the NCA.
[48]
On 23 October 2018, SACA responded to the
NCA reiterating its response to the applicant but most notably,
letting the NCA know that
it does not recommend that the NCA screens
the applicant for the adoption of the minor child as the
pre-identification of prospective
adoptive children is discouraged.
SACA advised the NCA that it may screen the applicant for the
adoption of any other child in
South Africa as the two countries are
convention countries.
[49]
On 26 October 2018, the NCA informed the
applicant in writing that her request to adopt the minor child is
unsuccessful, setting
out detailed reasons consistent with the
position taken by SACA on the matter.
The applicant’s
efforts to adopt the minor child domestically or to be appointed as
the foster parent for the minor child
[50]
Between November 2018 and June 2019, the
applicant returned to South Africa several times to exercise contact
with the minor child.
TLC allowed the applicant to have contact with
the minor child. In August 2019, the applicant relocated to South
Africa with a
view to apply for the foster care or adoption of the
minor child and to maintain contact with the minor child.
[51]
During August 2019, the applicant tried to
re-establish contact with the minor child. TLC refused to afford her
contact with the
minor child. TLC granted the applicant contact with
the minor child in December 2019 upon further request. It appears
that in this
instance, contact was approved by the minor child’s
social worker on condition that it does not give rise to the
applicant’s
expectation to succeed in her attempts to adopt the
minor child and further, that the applicant does not take the minor
child out
of the TLC premises. The minor child’s social worker
also let the applicant know that the minor child is yet to be
declared
adoptable, the process will take long as the whereabouts of
the minor child’s biological mother are yet to be traced
through
the Mozambican government.
[52]
The applicant exercised further contact
with the minor child until March 2020. During this time, the
applicant continued making
enquiries with TLC, the child’s
social worker and the Department regarding whether she could adopt or
foster care the minor
child. She made contact directly to the
Meyerton Children’s Court concerning the adoption of the minor
child, which the minor
child’s social worker frowned upon.
[53]
In March 2020, the minor child’s
social worker advised the applicant that she has taken the child
outside the TLC premises
inappropriately, that he is still busy with
investigations concerning the child’s adoptability status and
that the applicant
is unduly interrupting the process. He suspended
the applicant’s contact with the minor child until further
notice.
[54]
For the next three months, the applicant
did nothing further due to the COVID-19 lockdown. On 28 July 2020,
she instructed her attorney
to enquire with the Department why the
minor child has not been declared adoptable, why is the applicant not
being considered as
a prospective adoptive parent and why her contact
with the minor child has been terminated. The applicant’s
attorney sought
written reasons in this regard. The Department
referred this enquiry to the minor child’s social worker.
[55]
On 29 September 2020, the minor child’s
social worker forwarded a comprehensive written response to the
applicant’s
attorney giving the minor child’s background
and informing her that:
55.1
when the minor child was placed with TLC,
her prospective adoptive parents were to hand;
55.2
the child’s screening has been
delayed by efforts to trace the minor child’s biological
mother;
55.3
the applicant should approach an adoption
agency in her area in order to follow the correct adoption
procedures.
[56]
The minor child’s social worker also
raised concerns regarding how the applicant obtained the minor
child’s background
information and the applicant’s
pre-identification of the minor child. She requested the attorney to
furnish her with the
volunteer agreement between TLC and the
applicant, which ought to contain a confidentiality clause and a
prohibition against a
volunteer using children’s information to
the volunteer’s advantage. It does not appear that this request
was met.
[57]
The applicant launched this application on
9 October 2020.
THE RELIEF SOUGHT BY
THE APPLICANT
[58]
The applicant is aggrieved by the manner in
which the respondents as well as the minor child’s social
worker handled her request
to be considered as a prospective adoptive
parent for the minor child. She complaints that:
58.1 for several
months the Department maintained that the minor child’s
adoptibility status was yet to be determined.
Yet on 29 September
2020, the minor child’s social worker informed her attorney
that the minor child has been declared adoptable
from the outset.
58.2 the minor
child’s social worker accused her of child shopping yet he
engaged in child shopping even before the
parents whom he is
considering for the adoption of the child where approved as adoptive
parents.
58.3 the process
followed by the minor child’s social worker is prejudicial to
her, he acts as a gate keeper and has
failed to comply with the
Children’s Act, in particular, section 230 (1) (c) which
requires that Chapter 15 of the Children’s
Act ought to be
complied with.
[59]
As I demonstrate later in this judgment,
this is a misrepresentation of what the minor child’s social
worker communicated
to the applicant’s attorney in his letter
of 29 September 2020.
[60]
The relief that the applicant seeks is
elaborately set out in her notice of motion. She essentially seeks to
review and to have
set aside the decisions that the relevant
respondents and the child’s social worker have taken or failed
to take concerning
the minor child and the applicant’s
suitability or otherwise to adopt or foster parent the child. She
also seeks a suit of
interdictory, declaratory, compelling, referral
and/or access to information relief and other ancillary relief. She
wants the Children’s
Court orders concerning the minor child to
be suspended. Further, she wants this court to remove the minor
child’s social
worker and order the Department to replace the
minor child’s social worker and to direct the new social worker
to assess
her as the minor child’s prospective adoptive parent.
[61]
To ensure that the elaborate relief that
the applicant seeks is fully dealt with, it is detailed below, but
paraphrased where necessary
to avoid prolixity:
If the minor child has
not been declared adoptable
61.1
In the event that the minor child has not
been declared adoptable, the applicant seeks an order:
61.1.1
reviewing and setting aside the first to
fourth respondent’s decisions or failure to make a decision
and/ or a recommendation
in terms of section 230 of the Children’s
Act;
61.1.2
directing the first to fourth respondent’s
to make a decision and/ or recommendation in terms of section 230 of
the Children’s
Act regarding the adoptability of the minor
child within thirty days of this order or within a period determined
by this court;
61.1.3
alternative to the order in 61.1.2 above,
an order declaring that the minor child is adoptable;
61.1.4
directing the first to fourth respondent to
inform the applicant of the decision declaring the minor child
adoptable to enable the
applicant to commence adoption procedures in
respect of the minor child within 10 days of such decision;
61.1.5
if the first and fourth respondent do not
declare the minor child to be adoptable, they are to furnish this
court with reasons for
their decision;
In the event that the
minor child has been declared adoptable
61.2
In the event that the minor child has been
declared adoptable, the applicant requests this court to:
61.2.1
suspend any adoption procedures in respect
of the minor child, including any order issued by the Children’s
Court in respect
of the minor child in terms of section 23 (3) (b);
61.2.2
compel the first to fourth respondents to
disclose to the applicant the name of the Children’s Court
seized with the matter
and the Children’s Court case number
allocated to the matter;
61.2.3
in the alternative to the prayers set out
in prayers 61.1.2 to 61.1.5 and 61.2.1 above, an order compelling the
respondents to disclose
to the applicant the following information
within five date from the date of such an order:
(a)
the date on which the minor child became
adoptable in terms of section 230 of the Children’s Act;
(b)
whether the peremptory letter referred to
in section 239 (1) (d) has been obtained;
(c)
whether a report was provided in terms of
section 239 (1) (b);
(d)
whether an assessment was conducted in
terms of section 239 (2) (d);
(e)
whether an adoption order has been granted
and, if so, the date of the adoption order;
(f)
whether the minor child was placed on the
Register of Adoptable Children (“RAPCAP”), if so, the
date the child was placed
on the RAPCAP;
(g)
whether Family X has been registered in the
Register of Prospective Adoptive Parents and if so, when;
(h)
whether Family X complies with the
requirements set out in section 231 (2);
(i)
whether section 231 (7) has been complied
with;
(j)
whether the steps detailed in section 246
have been taken and if so, the details of the steps taken;
Further relief
61.3
The applicant also seeks the following
relief:
61.3.1
an order in terms of section 239 (3)
allowing the applicant the permission to access the documents lodged
with the Children’s
Court seized with the matter;
61.3.2
an order reviewing and setting aside any
decision that the first to fourth respondents have made concerning
the applicant in terms
of section 231. Alternatively, an order
reviewing failure by these respondents to make a decision concerning
the applicant in terms
of section 231;
61.3.3
an order compelling the respondents to
appoint a new social worker for the minor child within 10 days of the
order and to direct
the newly appointed social worker to conduct the
assessment contemplated in section 231 (2) (d) in respect of the
applicant within
40 days of his or her appointment;
61.3.4
if the appointed social worker makes a
decision not to recommend the applicant to be considered as a
prospective adoptive parent
for the minor child, an order directing
the social worker to provide written reasons within five days of
making such a decision;
61.3.5
if the applicant’s assessment is
successful, an order directing the fifth respondent to place the
applicant’s name on
the register of prospective adoptive
parents within 5 days of the assessment being successful;
61.3.6
an order compelling the applicant to bring
an application in terms of section 239 within 10 days of her name
being placed on the
register of prospective adoptive parents;
61.3.7
an order suspending any foster care
procedure including any order issued by the Children’s Court in
relation to the minor
child;
61.3.8
an order directing the newly appointed
social worker to assess the applicant’s suitability to act as a
foster parent to the
minor child within 40 days of such an order;
61.3.9
if the social worker does not recommend the
applicant to be considered as a prospective foster parent for the
minor child, an order
directing the respondents to provide written
reasons for the decision within five days of such a decision;
61.3.10
an order in terms of section 23 (3)
referring the matter to the Family Advocate to furnish this court
and/ or the Children’s
Court with a report concerning the best
interest of the minor child;
61.3.11
an order compelling the first to third
respondent to investigate whether any circumstances referred to in
section 249 (1) exist
in relation to the adoption and/ or foster care
of the minor child and to report to this court in writing within 60
days of this
order;
[62]
All the respondents contend that the
applicant has failed to meet the requirements for a review in terms
of PAJA and for the other
relief that she seeks. In that:
62.1
the applicant fails to meet the
requirements set out in Chapter 15 of the Children’s Act;
62.2
the applicant seeks to adopt a
pre-identified child of her choice – a prohibited practice;
62.3
this court lacks jurisdiction over the
application;
[63]
The SH
also takes issue with the
applicant’s
locus standi
in this application. The gravamen of the SH’s
basis for opposition is that the
applicant does not qualify for a domestic adoption of the minor child
in that she does not have
permanent resident status in South Africa.
She also does not qualify for an inter-country adoption as she is not
habitually resident
in Norway.
[64]
To the extent that counsel for the
applicant contends that a
lacuna
exists in the law in that Chapter 15 and 16 fail to accommodate the
applicant’s peculiar circumstances, counsel for SH
contends that this is an entirely
new case not borne out of the applicant’s founding affidavit.
QUESTIONS TO BE
DETERMINED
[65]
In the premises, the following questions
stand to be determined:
65.1 whether the
applicant meets the requirements for the determination of this
application on the basis of urgency;
65.2 whether the
applicant has
locus standi
in this application;
65.3 whether this
court has jurisdiction over the application;
65.4 whether the
applicant makes out a case:
65.4.1 to review and have
set aside the respondent’s decisions or recommendations or
failure to make a decision or recommendation
in relation to the minor
child and/ or the applicant as prayed for in the notice of motion;
65.4.2 for granting of
the variety of interdictory, declaratory, compelling, referral and/
or access to information relief as prayed
for in the notice of
motion;
65.4.3 the suspension of
any decision that the Children’s Court has made concerning the
minor child;
65.4.4 the removal of the
minor Child’s social worker by the Department or by this court;
URGENCY
[66]
The applicant contends for the urgency of
the application on the following grounds:
66.1
she has developed a relationship with the
minor child over a period of two years;
66.2
if she brings the application in the
ordinary course, it is highly likely that the minor child will be
placed on adoption with other
parents. If the minor child is so
placed, the minor child will develop a close bond with the adoptive
parents;
66.3
permitting the minor child to develop a
close bond with the adoptive parents does not serve the child’s
best interest;
66.4
if
the minor child’s social worker’s conduct is found to
fall short of the requirements in the children’s Act,
it is
liable to be reviewed in terms of the Promotion of Administrative
Justice Act
[25]
and set aside;
[67]
The respondents deny that the applicant
meets the requirements for urgency. However, they urged the court to
deal with the application
on the basis of urgency in the interest of
the minor child, hence they abandoned their opposition to the
applicant’s prayer
for urgency.
[68]
The applicant’s approach to this
court has been extremely tardy. Courts, particularly the urgent
court, continued to function
during the Covid-19 lockdown period.
Therefore, the Covid-19 lockdown does not justify the applicant’s
tardy approach to
the court.
[69]
It
is trite that the question of urgency does not turn on the expediency
with which an applicant approaches the court. The ultimate
test for
urgency is whether the applicant will be denied substantive redress
in due course if her application is not dealt with
on the basis of
urgency;
[26]
[70]
As I determine in this judgment, the
applicant fails to establish her entitlement for the relief that she
seeks. For that reason,
she can hardly be denied any redress in due
course if she is not afforded urgency. Therefore, she fails to meet
the ultimate test
for urgency.
[71]
Although the applicant fails to meet the
test for urgency, given that the matter has been specially allocated
to a judge who is
not on urgent duty due to its large volume, this
court exercised a discretion to hear the matter in the interest of
the minor child.
Otherwise an order striking the application off the
urgent roll with punitive costs would have been appropriate.
[72]
The
court is compelled by the Constitution of the Republic of South
Africa, 1996 (‘the Constitution”) to consider the
child’s
best interest as the child’s best interest are paramount in any
proceedings concerning the child.
[27]
The minor child has been in temporary care since 2017. The
proceedings for the minor child’s placement with Family X have
been kept in abeyance pending this application. Removing the
application from the roll would result in the Children’s Court
proceedings being kept in abeyance for longer while the application
awaits hearing on the ordinary Special Motion Court roll. The
minor
child has been in temporary care since 2017. It is in the minor
child’s best interest that her permanent placement
is resolved
without further delay.
THE APPLICANT’S
LOCUS STANDI
[73]
The SH’s ’s
locus
standi
point lacks merit. SH’s
contention that the applicant does not qualify for a domestic
adoption of the minor child in that
she is not a South African
permanent resident and that she also does not qualify for an
inter-country adoption as she is no longer
habitually resident in
Norway does not disentitle the applicant of standing to have the
dispute between the parties determined
in these proceedings.
Therefore, SH’s
locus standi
point is dismissed.
THE JURISDICTION OF
THIS COURT
[74]
No basis for the lack of jurisdiction of
this court has been established. The substantial relief that the
applicant seeks is a review
in terms of PAJA. This cause of action
falls within the jurisdiction of this court. Therefore, the
jurisdiction point is also dismissed.
THE MERITS
[75]
In
her papers, the applicant did not specify whether she seeks the
various decisions or omissions by the respondents reviewed and
set
aside in terms of PAJA or whether she bases her cause of action on
the legality review. An applicant who seeks to review and
have an
administration action set aside ought to bring the application in
terms of PAJA. She may only bring a legality review where
PAJA is
incompetent.
[28]
[76]
Section 1 of PAJA defines administration
action to include:
“
any
decision taken, or any failure to take a decision, by:
“
(a)
an organ of state, when:
“
(i)
exercising a power in terms of the Constitution or a provincial
constitution;
or
“
(ii)
exercising a public power or performing a public function in terms of
any legislation;”
[77]
The
grounds which render an administrative action vulnerable for review
are set out in section 6 (2) of PAJA.
[29]
[78]
On the basis of the trite
Plascon
Evans
rule, the respondent’s
version that the minor child does not have a strong bond with the
applicant is accepted by this court.
The respondents’ version
is not far-fetched. On her own version, it is unlikely that the
applicant is the only person who
had human contact with the minor
child. The minor child arrived at TLC a few months after the
applicant arrived at TLC. The minor
child remained at TLC after the
applicant left TLC. It is not the applicant’s case that TLC
afforded her contact with the
minor child between 2018 and 2020
because the minor child was not coping without the applicant. There
is no basis to find on the
papers before court that the applicant’s
contact with the minor child was child-centered. Evidently, the
applicant actively
pursued the contact and is aggrieved that TLC and
the minor child’s social worker have terminated it.
[79]
The determination that it is in the best
interest of the minor child for the minor child to be placed in
foster care with the applicant
or adopted by her is one the applicant
personally makes in these proceedings. It is not supported by the
minor child’s social
worker or TLC as the organization where
the minor child is in temporary care or any of the respondents in
these proceedings. More
importantly, it is not supported by any
expert opinion. The best interest of the minor child may not be
determined on the mere
say so of a party.
[80]
The
applicant has not advanced reasons why it is not in the minor child’s
best interest for the minor child to be placed with
another adoptive
parent(s). Even if this court accepted the applicant’s version,
that the applicant has developed a strong
bond with the minor child
does not mean that placing the minor child with other adoptive
parents does not serve the minor child’s
best interest. The
minor child’s social worker has introduced the minor child to
Family X. The minor child is responding
well to Family X. On this
issue the present facts are distinguishable from those in
Fitzpatrick
[30]
where the court found that it was in the child’s best interest
for the child to be placed with the Fitzpatricks as placing
her with
other adoptive parents was not in the child’s best interest.
This is not a finding that was merely made. The child
had been in
foster care with the Fitzpatricks for several years. The Fitzpatricks
were about to relocate back to the United States
of America. The
child had been placed in temporary care with other parents and was
not coping. The facts in this matter and in
Fitzpatrick
are therefore distinguishable.
[81]
The order that the applicant seeks for the
referral of the matter to the Family Advocate to assess the minor
child and furnish this
court and/ or the Children’s Court with
a report on the best interest of the minor child may not simply be
granted because
the applicant has prayed for it. The applicant has to
establish her entitlement and basis for calling for such a report.
[82]
Although this court is not seized with an
application for the adoption of the minor child, invariably, the
court has to assess the
applicant’s entitlement to the relief
that she seeks against the requirements for adoption and foster care
as set out in
the Children’s Act because her right to the
relief that she seeks hinges on her meeting the applicable statutory
requirements.
[83]
Therefore, Chapter 12, 15 and 16 of the
Children’s Act is the basis to determine whether the
administrative actions complained
of fall short of section 6(2) of
PAJA, rendering the applicant entitled to the relief that she seeks.
[84]
It is common cause that the applicant
pursued an inter-country adoption process through the NCA and SACA.
She did so as a habitual
resident of Norway, seeking to adopt a child
in South Africa.
[85]
By the time SACA responded to the
applicant’s letter of 16 August 2018, the difficulties that the
applicant faced had become
evident from the correspondence exchanged
between her, SACA and the NCA. She inappropriately side-stepped the
NCA by corresponding
directly with SACA either personally or through
her attorneys, despite being informed not to do so. Her application
was not mediated
by an adoption agency. Her application was in
relation to the adoption of a pre-identified child. The child’s
adoptability
status was yet to be determined. Options for the
domestic adoption of the child had not been exhausted. The NCA had
not yet assessed
her. The NCA seemed loath to assess the applicant in
futility, hence it sought SACA’s views on the prospects of the
intended
adoption. SACA and the NCA had not agreed to the adoption of
the child as required by section 261(5)(e) and (f). SACA did not
recommend
her assessment by the NCA.
[86]
I pause to mention that given the role of
CAs in inter-country adoption, the applicant’s direct
inter-action with SACA either
personally or through her attorney,
particularly under circumstances where she had applied to the NCA for
the inter-country adoption
of the minor child was utmost
inappropriate.
[87]
The applicant was not successful in her
inter-country adoption efforts. The outcome of her efforts was
communicated to her by both
SACA and the NCA in writing. She was also
furnished with detailed reasons for these decisions.
[88]
The decision by SACA not to consider the
applicant’s adoption request is consistent with The Hague
Convention and Chapter
16 of the Act.
[89]
It appears that the applicant has accepted
SACA’s decision because she is not seeking a review and setting
aside of SACA’s
decision in these proceedings.
[90]
To the extent that the applicant seeks to
rely on Chapter 16 to establish the relief that she seeks in these
proceedings, the applicant
has established no affront to her right to
administrative justice as envisaged in section 6(2) of PAJA.
[91]
From the papers before court, it does not
seem that the applicant intends continuing with her inter-country
adoption efforts. If
the applicant seeks to continue with her efforts
to adopt the minor child inter-country, the applicant has not
complied with section
261 (1) to (4). A literal reading of section
261 (1) and indeed the whole of chapter 16, as well as The Hague
Convention does not
make provision for the convention country and the
recipient country to be the same. It envisages the adoption of a
child who is
in the origin country by a prospective adoptive parent
who is habitually resident in the recipient country. This is the
position
adopted by both SACA and the NCA in their correspondence in
respect of the applicant’s initial attempts to adopt the minor
child inter-country, which the applicant seems to have accepted.
[92]
Given that applicant has since become
habitually resident in South Africa, the applicant has no entitlement
to be considered for
the adoption of the minor child in terms of
Chapter 16 because both the minor child and the applicant are
habitually resident in
South Africa.
[93]
The interpretation promoted by counsel for
the applicant that South Africa is both an origin and a recipient
country under Chapter
16 is a misconstruction of this Chapter. The
purpose of Chapter 16 is to facilitate the implementation of The
Hague Convention
and not its avoidance. That The Hague takes
precedence in the event of a conflict with Chapter 16 supports a
construction that
Chapter 16 exclusively applies to inter-country
adoption as envisaged in The Hague Convention.
[94]
If the applicant seeks to further pursue
the adoption of the minor child inter-country, the applicant has not
followed the correct
procedure in terms of section 261. The applicant
ought to apply for the adoption of the child through the CA of the
country where
she is habitually resident. This is the recipient
country as envisaged in section 261 and article 2 of The Convention.
Further,
the CA of the recipient country must be satisfied that the
applicant is fit and proper to adopt the child, in which case the CA
of the recipient country will prepare a report on the applicant in
accordance with The Hague Convention principles and transmit
it to
the CA in the origin country. The latter country is the country where
the prospective adoptive child is located.
[95]
Under the present circumstances, South
Africa being the country where the applicant is habitually resident
and where the minor child
is located is neither a convention or a
recipient country as envisaged in Chapter 16 of the Children’s
Act and The Hague
Convention. An adoption in terms of Chapter 16 and
The Hague Convention is incompetent.
[96]
Chapter
15 applies to an inter-country adoption scenario where a person
habitually resident in South Africa intends to adopt a child
from
another convention or non-convention country in terms of section 266
or 268 and SACA has refused to recognize the adoption,
having
determined that the adoption is manifestly contrary to public policy
in South Africa taking into account the best interest
of the
child.
[31]
In such a case, the
prospective adoptive parent may apply to the Children’s Court
for the adoption of the child in terms
of section 271 (1).
[97]
Section 271 (2) authorizes the Children’s
Court to determine such an application in terms of Chapter 15 with
the necessary
adaptations as required by the circumstances of a
particular case.
[98]
Given that the minor child is not in
another convention or non-convention country for the purpose of
Chapter 16, section 271 (1)
does not apply. Further, SACA has not
declined to recognize the adoption of the minor child for the reasons
stated in section 271
(1). Therefore, I find that the Children’s
Court lacks the jurisdiction envisaged in section 271 (2) under the
prevailing
circumstances.
[99]
The applicant seeks to rely on Chapter 15
in her continued efforts to adopt the minor child. In terms of
section 232(4), the applicant
does not qualify for registration on
RAPCAP because she does not have a permanent resident status in South
Africa. Unfortunately
for the applicant, she simply does not qualify
to adopt the minor child in terms of Chapter 15 until she becomes a
permanent resident
of South Africa. Under these circumstances,
conducting an assessment on the applicant for the purpose of adoption
will be pointless.
[100]
The applicant conflates the respondents’
position regarding the minor child’s adoptability status and
Family X’s
assessment status. The minor child’s social
worker informed the applicant’s attorney in his letter of 29
September
2020 that the child’s adoptability status must first
be determined. This has always been the position even when the
applicant
was pursuing the inter-country adoption. The minor child’s
social worker never informed the applicant’s attorney that
the
minor child was declared adoptable from the outset. This clearly
appears from the 29 September 2020 letter.
[101]
The minor child’s social worker
informed the applicant’s attorney that Family X has been
assessed and that his efforts
to determine the child’s
adoptability status were delayed by the investigations he undertook
to trace the minor child’s
mother. Under these circumstances,
there is no basis for the applicant to accuse the respondents for
failing to make a decision
regarding the child’s adoptability
status. There is also no basis for the applicant’s allegation
that section 230 (1)
has not been complied with and/ or that Family X
has not been assessed.
[102]
The applicant has not established any basis
for this court to upset the processes, decisions or failure to make a
decision regarding
the child’s adoptability status. As already
determined, the applicant is not being considered to adopt the minor
child because
she does not qualify to adopt the minor child. She
therefore has no right to any relief that she seeks concerning the
assessment
or placement of the minor child.
[103]
The minor child’s social worker
identified and assessed Family X and introduced the minor child to
Family X as part of his
statutory duties in respect of the minor
child. There is no basis on the papers before court to find that his
activities amount
to child-shopping as alleged by the applicant.
[104]
The minor child’s social worker has
furnished the applicant with written reasons for the decisions he has
taken concerning
the applicant’s contact with the minor child.
Given his statutory role in respect of the minor child, the child
social worker’s
concerns regarding how the applicant obtained
information on the minor child’s background and that she is
using the information
on the minor child to her advantage is not only
reasonable, it is consistent with the statutory protection of such
information.
[105]
The prospective adoption of the minor child
by Family X presents a serious hurdle for the applicant’s
efforts to become the
child’s foster parent. As argued by
counsel for SH, foster parenting is part of permanent placement
planning. Considering
the applicant as a foster parent for the minor
child may not promote permanent planning and may result in the child
remaining in
temporary care for a prolonged period of time. Under
these circumstances, it will be irrational for the minor child’s
social
worker to consider the applicant as the foster parent for the
minor child because the applicant does not qualify to adopt the minor
child. For this reason, the applicant’s lack of permanent
residency remains an issue even on the question of her eligibility
to
be appointed as the minor child’s foster parent, particularly
under circumstances where prospective adoptive parents for
the minor
child are to hand. There is no guarantee that the applicant will
qualify for permanent residency in the future. If she
does ever
qualify for permanent residency, it is unknown how long the process
will take. This court finds that the approach that
the minor child’s
social worker has taken in this matter is not only rational, it is
consistent with the purpose of foster
care as provided for in the
Children’s Act.
[106]
This court finds that it would be
irrational for the child’s permanent placement to be placed in
abeyance and for the minor
child’s prospects for placement with
Family X to be interfered with under these circumstances.
[107]
The applicant has not made out a case for
the removal of the minor child’s social worker. She has also
not made out a case
for this court to assume an executive function by
granting an order for the removal of the minor child’s social
worker.
[108]
The relief which the applicant seeks in
terms of section 249 (1) is far-reaching relief that may not be
granted in pursuit of a
fishing expedition. A case for this relief
ought to be made out in the papers. This court finds no basis to
compel the first to
third respondent to investigate whether any
person made or received any consideration in cash or kind for the
adoption of the minor
child or induced any person to give up the
minor child for adoption in terms of section 249(1).
[109]
The applicant has not established any basis
for this court to find that any of the respondents breached the
applicant’s right
to just administration action in terms of
section 6 (2) of PAJA. Neither has the applicant made out a case for
this court to suspend
any order made by the Children’s Court
concerning the minor child.
[110]
The applicant has not established any basis
for complaining that section 231 (7) has not been complied with, nor
has she established
the basis for her to make any issue about the
alleged non-compliance. She is not the child’s foster parent as
envisaged in
231(7).
[111]
Section 246 deals with the registration or
the birth and adoption of a child born outside South Africa. There is
no basis for the
relief that the applicant seeks in terms of this
section as the child was born in South Africa. Even if the child was
born outside
South Africa, the applicant has not established her
entitlement for the minor child’s registration information.
[112]
Access to information relating to the
adoption of children is severely restricted in the best interest of
children. The applicant
does not meet the statutory requirements to
access the information in terms of section 232(6), 237, 238 and 248.
Further, she has
not established the basis for this court to allow
her such access in terms of section 248 (1) (e).
[113]
Chapter 15 and 16 are clear as they apply
under these circumstances. In her attorney’s 10 April 2018
letter to SACA, the applicant
demonstrated a clear understanding and
acceptance of the distinction between domestic and inter-country
adoption and the respective
and distinctly applicable legislative
framework. The applicant’s failure to meet the requirements to
adopt the minor child
domestically or inter-country does not imply a
lacuna
in
the law. Further, as contended by SH, the applicant makes no such
case in the papers.
[114]
The applicant contends for costs on the
basis of the trite
Biowatch
principle in the event that she is unsuccessful in the application.
The basis for the application of the
Biowatch
principle does not exist in this case as the applicant is not
asserting a constitutional right in these proceedings. That the right
to administrative justice finds its genesis in section 33 of the
Constitution, does not imply that every PAJA review application
falls
within the purview of
Biowatch
,
particularly in cases such as this where the litigation is frivolous.
[115]
There is also no basis to depart from the
general principle that costs follow the course. The respondents have
always maintained
a position consistent with the substantial findings
of this court and furnished the applicant with reasons for their
decisions.
The applicant has not accepted the respondents’
decisions under the guise of the child’s best interest when
what she
is in fact pursuing are her interest. Her conduct has been
self-serving and utmost unreasonable. This court would have strongly
considered a punitive cost order against the applicant if the
respondents had sought it.
[116]
In the premises, the following order is
made:
ORDER
1.
The application is dismissed with costs.
MADAM
JUSTICE
L T MODIBA JUDGE OF THE HIGH
COURT,
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
APPEARENCES
Counsel for
applicant:
Advocate S Spangenberg
Attorney for
applicant:
Mathys Krog Attorneys
Counsel for 1
st,
and
5
th
respondent:
Advocate T Mlambo
Attorney for 1
st,
and 5
th
respondent:
State Attorney
Counsel for 4
th
respondent:
Advocate L Van Der Westhuizen
Attorney for 4
th
respondent:
State Attorney
Date of hearing:
27 November 2020
Date of judgment:
15 February 2021
[1]
The
Hague Convention developed by The Hague Conference on Private
International Law. It was concluded on 29 May 1993 and entered
into
force on 1 May 1995.
[2]
38
of 2005.
[3]
Section
257, Children’s Act
[4]
Luna
Meubel Vervaardigers (Edms) Bpk v Makin & Another (t/a Makin’s
Furniture Manufacturers)
1977 (4) SA 135 (W)
[5]
Section
254 and 256 (1)
[6]
Section
256 (2)
[7]
The
preamble to The Hague Convention
[8]
Article
7(2) (b)
[9]
Article
8
[10]
Article
6
[11]
Article
1
[12]
Article
2
[13]
Article
5
[14]
Article
14
[15]
Article
15
[16]
Article
65 of the Practical Guidelines for Inter-Country Adoption
[17]
Article
16
[18]
Section
238
[19]
Section
229
[20]
Section
228
[21]
Section
242
[22]
Section
232 (2)
[23]
Section
232 (4)
[24]
Section
171.
[25]
3
of 2000
[26]
Rule
6(12). See also
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
ZAGPJHC 196 (23 September 2011)
[27]
Section
28 (2)
[28]
State
Information Technology Agency SOC Ltd v Gijima
2017 (2) SA 63.
In
Gijima
Constitutional Court
,
reported at
2018 (2) SA 23
(CC), the Constitutional Court disagreed
with the SCA on this principle on the basis that organs of State do
not have the right
to review their own decisions in terms of PAJA.
This principle remains good under the current circumstances where
the administrator
is not reviewing his own decision.
[29]
Section
6(2) of PAJA provides that a court or tribunal may judicially review
an administrative action if:
“
(a)
The administrator who took it:
“
(i)
was not authorised to do so by the empowering provision;
“
(ii)
acted under a delegation of power which was not authorised by the
empowering provision;
Or
“
(iii)
was biased or reasonably suspected of bias;
“
(b)
a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
“
(c)
the action was procedurally unfair;
“
(d)
the action was materially influenced by an error of law;
“
(e)
the action was taken:
“
(i)
for a reason not authorised by the empowering provision;
“
(ii)
for an ulterior purpose or motive;
“
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
“
(iv)
because of the unauthorized or unwarranted dictates of another
person or body;
“
(v)
in bad faith; or
“
(vi)
arbitrarily or capriciously;
“
(f)
the action itself:
“
(i)
contravenes a law or is not authorised by the empowering provision;
or
“
(ii)
is not rationally connected to:
“
(aa)
the purpose for which it was taken;
“
(bb)
the purpose of the empowering provision;
“
(cc)
the information before the administrator; or
“
(dd)
the reasons given for it by the administrator;
“
(g)
the action concerned consists of a failure to take a decision;
“
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which
the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power
or performed
the function; or
“
(i)
the action is otherwise unconstitutional or unlawful.”
[30]
Minister
of Welfare and Population Development v Fitzpatrick and Others
2000 (3) SA 422 (CC).
[31]
See
section 270.