QG and Another v CS and Another (32200/2020) [2021] ZAGPPHC 366 (17 June 2021)

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[2021] ZAGPPHC 366
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QG and Another v CS and Another (32200/2020) [2021] ZAGPPHC 366 (17 June 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 32200/2020
In
the matter between:
QG
FIRST
APPLICANT
MB
SECOND APPLICANT
and
CS
FIRST
RESPONDENT
AW
SECOND
RESPONDENT
and
PROFESSOR
DW
THALDAR
AMICUS CURIAE
JUDGMENT
KOLLAPEN,
J
Introduction
[1]
Kahlil Gibran, the Lebanese poet in his seminal work the Prophet,
offers the following
observation about children: -
‘
Your
children are not your own
They are life’s
longing for itself
They come through
you but not from you
And though they are
with you yet they belong not to you ‘.
[2]
This case is about a young child and while the dispute in law relates
to contact and
further rights to the child, in many respects it
raises philosophical questions as to who children are and who, if
anyone, they belong
to, if not to themselves.
The
parties
[3]
The first applicant is a self-employed interior decorator. He is
currently a partner
in a long-term homosexual relationship. The first
applicant is also the gamete donor (spermatozoa) (hereinafter also
referred to
as “the sperm donor” and/or “gamete donor”), in
terms of a “Gamete Donor and Recipient Agreement for the Purposes
of Artificial
Fertilisation” (hereinafter “the donor agreement”)
which donor agreement was concluded between himself and the
respondents
on or about 22 May 2015.
[4]
The second applicant is self-employed in the interior decorating
sphere and manages
a nursery on a smallholding owned by the first
applicant. The second applicant is also the mother of the first
applicant and lives
on one of the smallholdings owned by the first
applicant.
[5]
The first and second respondents are a lesbian couple who have been
in a committed relationship
for about 19 years - since about 13 June
2002. They became married to each other on the 12 June 2015 and live
as a family together
with their minor child at Mooiplaats, Pretoria.
The first respondent is employed in the hospitality industry whilst
the second
respondent is a homemaker.
[6]
An application was received from Professor Donrich Thaldar who has
written and researched the area around
the enforceability of sperm
donor agreements to be admitted as an
amicus curiae.
He is
also the Chair of the Health Law and Ethics Research Group at the
School of Law at the University of Kwa-Zulu Natal. Both parties
having indicated they had no objection to the application and the
Court satisfied that Professor Thaldar could by reason of his
research
and expertise assist the Court, made an order admitting him
as an
amicus curiae
. He submitted written argument and also
made an oral presentation during the hearing of the matter.
Factual
background
[7]
The facts in this matter are complex and raise many disputes about
how the parties see
and understand their relationship with each other
as well as in particular how the applicants characterize their
relationship with
the minor child who shall be referred to as L in
this judgment.
[8]
During 2011, the first and second respondents desirous of starting a
family began exploring
the possibility of procuring a gamete donor
(spermatozoa) to fulfil their shared desire of having a child.
[9]
Between 30 November 2011 and 29 September 2014, the first respondent
was supplied with
donor spermatozoa on eight occasions and took part
in an artificial insemination process in an attempt to fall pregnant.
That process
proved unsuccessful, and the respondents embarked on a
different strategy in their quest to have a child. During this period
the
first applicant was not known to the respondents and was unaware
of the attempts by the respondents at artificial insemination making
use of an anonymous donor.
[10]
During February or March 2015, the first respondent placed a post on
various social media platforms,
including Facebook, wherein she
invited potential willing sperm donors to assist her and the second
respondent to have a child. The
first applicant responded to the
first respondent’s Facebook post soon after it was posted and
expressed his willingness to be
such a donor.
[11]
A meeting was thereafter arranged between the first applicant and the
respondents during which the parties
discussed in quite general terms
the idea of a sperm donation without tying down any specific
arrangement.  About one week after
this meeting the first
respondent contacted the first applicant to inform him that they had
chosen him to be their sperm donor.
[12]
The respondents say they then approached an attorney to draft a
sperm donor agreement and that on the
22 May 2015, after signing the
agreement themselves e-mailed the donor agreement to the first
applicant. The first applicant was
not required to sign the donor
agreement immediately, but did so on 25 May 2015, when he visited the
respondents at their home.
The respondents say that the first
applicant signed the donor agreement after they had a discussion
about it and all the parties
indicated that they were satisfied and
understood the contents of the agreement.
[13]
The terms of the donor agreement contained the following provisions:
-
13.1
The first respondent is described as the biological mother and
recipient;
13.2
The second respondent is described as the co-parent and spouse of the
recipient;
13.3
The first applicant is described as the gamete donor;
13.4
“Child” is defined as any child born to the first respondent as a
result of fertilisation by sperm provided
by the first applicant;
13.5
“Parental Rights” are defined as all rights accruing to a parent,
whether derived from statute or common
law, including but not limited
to rights related to the child’s health, education, adoption,
guardianship, religion and place or
country of residence;
13.6
The first respondent has made a decision to conceive and raise a
child;
13.7
The first and second respondents and any child born to the first
respondent shall constitute a family unit
for all purposes;
13.8
The first and second respondent have the financial resources to
support and provide for a child;
13.9
The first applicant agrees to donate gametes to the first respondent
for the purposes of fertilisation at no
cost, the donation is further
made to both respondents;
13.10  The
first applicant is willing to be the respondents’ gamete donor due
to his conviction that the respondents shall
be good parents. The
first applicant does not want to be a parent to any child born to the
first respondent, at the time and in the
future, although the
agreement made provision for remote or personal visitation with the
child should the respondents feel, it shall
serve the child’s best
interest.
13.11  The
first applicant will produce a sample to the first respondent, which
shall be for her sole use, and she is prohibited
to sell or transfer
same to any person or for any reason.  The first respondent
shall destroy the gametes not used for fertilisation.
The first
applicant is aware of the intended use of the gametes and shall have
no rights towards the gametes or the child at the
time of conception,
pregnancy, termination of the pregnancy, birth of during the raising
of the child.
13.12  The
first respondent shall not be inseminated by any other man’s
gametes, by any method, during the period of time she
receives
gametes from the first applicant. The first respondent shall not
engage in any activity that might cause confusion in identifying
whose genetic material caused a conception to occur. The first
applicant’s genetic material shall be what produces the child;
13.13  All
parties acknowledge and agree that, through the procedure of
artificial fertilisation, it is the first respondent’s
intention to
become pregnant, and thereafter have joint responsibility with the
second respondent for the raising of the child. The
intention of the
parties is that, if conception occurs from such artificial
fertilisation, the first applicant shall not be a legal
parent of the
resulting child and shall not have a role in the raising of the
child;
13.14  All
parties acknowledge and agree that the first applicant will provide
his gametes for the purpose of the said artificial
fertilisation and
does so with the clear understanding that he shall not demand,
request or compel any guardianship, custody, or
visitation rights
with any child born from the artificial fertilisation procedure.
Further, the first applicant acknowledge that
he fully understands
that he shall have no parental responsibilities and rights whatsoever
as set out in
section 18(2)
of the
Children’s Act, 38 of 2005
with
the child and he shall not have any authority of any kind with
respect to the child, or any decisions regarding the child nor
will
he seek the aforementioned parental responsibilities and rights in
future;
13.15  All
parties acknowledge and agree that the respondents have relinquished
any and all rights that either of them might
otherwise have to hold
the first applicant legally, financially or emotionally responsible
for any child that results from the artificial
fertilisation
procedure. The respondents further agreed that they will not demand,
request or compel the first applicant to provide
any financial
support.
13.16  All
parties relinquished and released any and all rights he or she may
have had to bring a suit to establish paternity;
13.17  The
first applicant agreed to assist the respondents in any court
proceedings to facilitate any matters that could result
in a legal
requirement for his assistance, including signing a legal document or
sworn affidavit regarding the process by which the
child was
conceived;
13.18  The
first applicant’s relatives shall not have any rights or
relationship with regard to the child as first applicant
renounced
his rights in the agreement;
13.19  The
first applicant warranted that to the best of his knowledge, he did
not suffer from any sexually transmitted diseases
and shall take
precautions not to be infect by such diseases until the first
respondent has conceived a child. The first applicant
further
warranted that his personal health information provided was true and
correct;
13.20  The
first applicant shall not impede any local or international travel of
the child and he understands that the child
may be born in, brought
up in and hold the citizenship of any country or countries;
13.21  The
respondents shall make all financial, health and personal decisions
about the pregnancy;
13.22  The
first applicant shall have no parental responsibility, financial or
otherwise, during the pregnancy;
13.23  The
child’s name shall be chosen by the respondents;
13.24  The full
name and identity of the first applicant shall not be made known to
anyone other than the child without his written
approval, or unless
the first applicant discloses the information voluntarily, or if
required by law or for medical reasons. The
first applicant’s
identity may only be made known to the child, to other legal
guardians of the child, to notaries, lawyers, beneficiaries
of the
first applicant’s will or anyone that needs to see a copy of the
agreement in the course of a legal context or procedure.
The intent
of the parties is that the first applicant’s identity will only be
made known to anyone other than the child, by the
respondents, if
absolutely necessary;
13.25  The
respondents’ identities shall only be made know to anyone other
than the first applicant, unless the respondents
approve such
disclosure in writing, or unless the information is voluntarily
disclosed by the respondents, or if required by law.
The intent
of all the parties is that the respondents’ identities will only be
made know to anyone other than the first applicant
if absolutely
necessary;
13.26  The
first applicant shall provide the respondents with the requested
medical exam results including those requested prior
to conception,
any exams related to pre-pregnancy or pregnancy and in relation to
the child’s health in future. The first applicant
shall provide the
respondents with a detailed family medical history and a description
of family traits and particular characteristics
that the child may
share, if requested and as may be requested from time to time insofar
it relates to the child’s health, education,
well-being or
development.
[14]
The first applicant says that he was not acquainted with agreements
of this nature but does not say however,
that he was unaware of what
the sperm donor agreement provided for in general terms nor that he
had any difficulty with those terms.
He says in addition
that no investigation or evaluation of a medical, psychological,
social or cultural nature was undertaken to assess
and determine the
suitability of all of the parties to enter into the agreement and to
discharge their respective roles envisaged
in the agreement.
[15]
The first applicant was informed by the respondents that they
intended to attempt insemination themselves
at their residence and he
accordingly made gamete deposits at the place of residence of the
respondents. None of these attempts were
successful.
[16]
During or about June 2015, the respondents requested the first
applicant to attend the fertility division
of Die Wilgers Hospital
with them in order to have artificial insemination process undertaken
by a qualified medical professional.
The first applicant made
the gamete deposits at the direction of the clinic and the first
respondent was thereafter successfully
inseminated which pregnancy
led to the birth of L on 20 April 2016.
[17]
The first applicant was not actively involved in the pregnancy but
remained in contact with the respondents.
Both applicants visited the
first and second respondents and L at Die Wilgers Hospital on 22
April 2016, two days after L’s birth.
[18]    The
applicant described that visit, its impact on him and the consequence
of that visit in both the short term
and the long term in the
following words in his founding affidavit: -
“
From
the first moment I held L in my arms, I felt a bond with him. I also
recognised some of my physical features in him and there
was no doubt
that biologically speaking, he is my son. At the hospital, where I
first saw L, I realised that I was not psychologically
prepared for
the impact which his birth shall have on me and that I was naïve to
think that I can simply make an altruistic donation
and not have the
need to be in the child's life. “
[19]
These moving sentiments in many respects began to lay the foundation
for the present dispute as it must
be evident from the stance taken
by the first applicant and the bond that he says he felt with L and
his desire and intention to
be in the life of L would set him on a
path of conflict with the respondents.
[20]
The respondents allowed the applicants to visit L from time to time
whilst he was an infant during the
course of 2016 and about four
visits took place in 2016.   There was limited contact
between the applicants and L in 2017
and the applicants would have
seen L on two occasions in that year, one of which was on L’s first
birthday on  20 April 2017.
[21]
There was no contact between the applicants and L in the year 2018,
but towards the end of that year
respondents were seeking to secure
new accommodation at a rental that was affordable and that would
enable them to effect some savings
which they hoped would contribute
to their coffers as they were planning to immigrate to Australia.
They concluded an agreement
with the first applicant to lease a
smallholding he owned. At the time which was about May 2019 the first
applicant and his partner
lived on an adjacent smallholding while the
second applicant and her fiancé occupied the smallholding opposite
to the one occupied
by the respondents and L. The first applicant and
his partner moved from the smallholding soon after May 2019.
[22]
There is some dispute as to whether the respondents were given a
special dispensation on the rental they
paid as the first applicant
says was the case or whether they in fact paid a market related
rental. The relevance of this is that
the first applicant relies on
his version as part of his attempt to contribute to the well-being of
L based on his concern for L
and the bond that he says he felt
between himself and L.
[23]
The respondents rented the first applicant’s property for a period
of approximately nine months and
during this time there was a greater
level of interaction between the applicants and L but all of this
occurred subject to the concurrence
and approval of the respondents.
It would be fair to say that L enjoyed fairly regular visits with the
second applicant who owned
a nursery as well as with the first
applicant and his partner even though there is some dispute with
regard to the regularity of
the time the applicants spent with L and
the intensity of the contact during that period.
[24]
It was however, also during this time that the relationship between
the applicants and the respondents
started showing signs of strain
and the first applicant makes reference to incidents and issues which
he says raised concern on his
part with regard to the well-being of L
and which it appears may have also contributed to the strained
relationship between the parties.
[25]
These incidents and issues include: -
a)
The schooling of L. The
first applicant says he was concerned that the respondents had
decided to home school L and his concern was
deepened by what he says
was the inappropriateness of the second respondent as a home
schoolteacher given that she had only passed
standard 7. In response
the respondents point out that L was too young to start attending
school and they were so advised but that
he commenced school in April
2021.  It must be recalled that L was only 3 years old when the
respondents moved with him to the
smallholding, and I am not sure if
school attendance at that age is necessary as part of the development
of a young child.
b)
Visits to the local
pub. The first applicant complains that the respondents regularly
visit a local pub called ‘Die Vlakvark’
at all times of the week
and spend hours there with L. He says that it is an age-inappropriate
place where alcohol is served openly
and is frequented by intoxicated
guests. The respondents strenuously dispute this and have procured a
letter from the owner of the
‘Die Vlakvark’ taking issue with the
first applicant’s characterization of the business as a pub and
pointing out that it is
an upmarket family restaurant with a
children’s play area appropriate for visits by families with
children.
c)
The November 2019
incident. L was hurt when he fell injuring his mouth and face. The
applicants say that it was caused by the negligence
of the
respondents who allowed L to exit from a moving vehicle, this
according to the second applicant who says she witnessed the
incident.  The respondents deny this and point out that L was
strapped into his car seat inside the vehicle, was assisted out
of
his car seat when the vehicle stopped and then ran in excitement to
play with his dogs and in doing so stumbled across some toys
in the
driveway, fell and hurt himself. Of interest and worth noting is that
the second applicant in describing the incident says
she ‘could
clearly infer that respondents returned from a visit at their
favourite pub ‘. It is not clear at all how she was
able to reach
this conclusion but her suggestion that alcohol would have played a
role in the incident is clear.
d)
The first applicant
also says that on an occasion L asked about why he did not have a dad
and from this question by L, he concludes
that the respondents did
not explain to L the nature and uniqueness of his family. His
suggestion is clearly that L was enquiring
about and in need of a
father figure. Again, the respondents point out that they have,
regard being had to L’s age, broached this
topic and have used a TV
programme called ‘Hey Duggie‘, that depicts families with
different structures and that may be regarded
as different.
[26]
While all of the issues relate to what may be termed the welfare of L
and may not have direct relevance
to part A of the relief sought,
what they collectively do is to raise, on the part of the applicants,
doubt about the parenting abilities
of the respondents and their
commitment to the well-being of L.  I will return to this
later
[1]
.
[27]
After the November 2019, incident when L fell and hurt himself the
relationship between the applicants and
the respondents became
hostile and deteriorated and during January 2020, the respondents
having given the first applicant due notice,
vacated the smallholding
they had been leasing from the first applicant.
[28]
There has been no further contact between the applicants on the one
hand and the respondents and L on
the other hand, since January 2020.
The applicants then instituted these proceedings in July 2020.
Relief
[29]
This
application is brought in two parts with the relief sought in Part A
of the notice of motion currently before this Court.
In Part A
the
applicants, seek relief that includes an
investigation by the Family Advocate into the best interest of the
minor child, including
the issue of contact between the minor child
and the applicants. Part B of the application is to be postponed
sine
die
pending the findings of the Family Advocate. The relief
sought in Part A and Part B is the following:
“
PART
A
1.
That
the Family Advocate be ordered to conduct an investigation into the
best interest of the minor child, L[……] W[………]-S[……..]
born 20 April 2016 (hereinafter ‘the Minor Child’), this
investigation, including but not limited to the issue of contact with
the Applicants, and report back to the Court on its findings;
2.
That
pending the finalization of Part B of this application the Applicants
shall enjoy the following contact with the Minor Child
in terms of
Section 23
of the
Children’s Act, 38 of 2005
:
3.
a.
Every
alternative Saturday from 09h00 to 17h00;
b.
Reasonable
electronic and telephonic contact on a Tuesday and Thursday between
17h00 and 17h30;
c.
On
the Minor Child’s birthday for at least 3 (three) hours;
d.
On
both the Applicants’ birthdays for at least 3 (three) hours;
e.
Christmas
Day for at least 3 (three) hours, alternatively, on New Year’s Day
for at least 3 (three) hours;
4.
That
Part B of this application be postponed
sine
die
;
5.
That
anyone of the parties may set Part B of the application down for
hearing after receipt of the Family Advocate’s report, and
both
parties may supplement their papers for purposes of determining Part
B of the application;
6.
No
order as to costs, alternatively, and only in the event of opposition
by the Respondents, the cost in Part A of the application
shall be
cost in the application;
7.
Further
and/or alternative relief;
PART
B
1.
The
Applicants are granted rights of contact and care towards the Minor
Child in terms of
Section 23
of the
Children’s Act, 38 of 2005
;
2.
The
First Applicant is granted guardianship over the Minor Child, with
the Respondents, in terms of
Section 23
of the
Children’s Act, 38
of 2005
;
3.
The
Applicants shall enjoy the following rights of contact towards the
Minor Child:
3.1
Every alternative weekend from 17h00 on the Friday to
17h00 on the
Sunday;
3.2
Every alternative public holiday and long weekend from
17h00 on the
day before the public holiday or long weekend until 17h00 on the
public holiday or the last day on the long weekend,
as the case may
be, with the understanding that a public holiday directly abutting a
weekend shall be regarded as part and parcel
of the long weekend and
shall not be singled out as a public holiday.
3.3
Every alternative short school holiday and half of every
long school
holiday, Christmas and Easter to alternate between the Parties
annually;
3.4
On the Minor Child’s birthday for at least 3 (three)
hours if this
day falls in the week and from 09h00 to 13h00 if this day falls on a
weekend;
3.5
On
the Applicants’ respective birthdays for at least 3 (three)
hours;
3.6
On Christmas Day for at least 3 (three) hours; alternatively
on New
Year’s Day for 3 (three) hours;
3.7
Reasonable telephonic and electronic contact at all reasonable
times.
4.
That
the Minor Child receive play therapy by a therapist agreed on between
the Parties within a period of 10 (ten) days after the
granting of
the order with the purpose to give effect to clause 4.5 of the Gamete
Donor and Recipient Agreement for the Purposes
of Artificial
Fertilisation dated 22 May 2015;
5.
Further
and/or alternative relief;
6.
Costs,
only in the case of opposition.”
In limine
[30]
Apart from opposing the relief sought on the merits, the respondents
have also placed in issue the
locus
standi
of the applicants to bring this application in terms of section 23 of
the Children’s Act
[2]
(‘the Act”).
[31]
The first respondent submits that the applicants have failed to make
out a case that they are persons
having an interest in the care,
well-being and development of L and that on account of that they lack
the necessary
locus standi
to advance the relief they seek. In
particular they contend that section 23 of the Act was not intended
to give a wide range of persons,
substantially not connected with a
child, the right to invoke the relief that the section contemplates.
[32]
In addition they rely on the provisions of section 40 of the Act as
well as the terms of the donor agreement
in arguing that no rights of
the kind that the applicants seek to assert in these proceedings
could have come into existence or are
capable of being recognized for
the purpose of a section 23 application.
Legislative
framework
[33]
The first and second applicants bring this application in terms of
section 23 of the Act. The applicants
disavow reliance on the sperm
donor agreement as well as on the biological link between the first
applicant and L. The biological
link, however, at least factually
appears to be a significant feature in this matter and is a matter I
will return to
[3]
.
[34]
The applicants’ counsel placed on record that the relief sought in
Part A was confined to contact and
did not extend to care of the
minor child. This will be relevant with regard to the allegations of
the inappropriate treatment and
care of L which have been levelled at
the respondents.
[35]
Section 23 of the Act determines the basis upon which “any person
having an interest in the care, well-being
or development of a child
may apply to the High Court” for the assignment of rights specified
therein and provides as follow:
“
23.
Assignment of contact and care to interested person by order of

court
(1)
Any
person having an interest in the care, well-being or development of a
child may apply to the High Court, a divorce court in divorce
matters
of the children’s court for an order granting to the applicant, on
such conditions as the court may deem necessary-
(a)
contact
with the child;
(b)
care
of the child.
(2)
When
considering an application contemplated in subsection (1), the court
must take into account-
(a)
the
best interest of the child;
(b)
the
relationship between the applicant and the child, and any other
relevant person and the child;
(c)
the
degree of commitment that the applicant has shown towards the child;
(d)
the
extent to which the applicant has contributed expenses in connection
with the birth and maintenance of the child; and
(e)
any
other fact that should, in the opinion of the court, be taken into
account.
(3)
.
. .
(4)
The
granting of care or contract to a person in terms of this section
does not affect the parental responsibilities and rights that
any
other person may have in respect of the same child.”
[36]
Section 26
of the
Children’s Act provide
as follow:
“
26
Person
claiming paternity
(1)
A person who is not married to the mother of a child and who is or
claims to be the biological father
of the child may-
(a)
apply for an amendment to be effected to the registration of birth of
the child in terms of
section
11 (4)
of
the
Births and Deaths Registration Act, 1992
(
Act
51 of 1992
),
identifying him as the father of the child, if the mother consents to
such amendment; or
(b)
apply to a court for an order confirming his paternity of the child,
if the mother-
(i)
refuses
to consent to such amendment;
(ii)
is
incompetent to give consent due to mental illness;
(iii)
cannot
be located; or
(iv)
is deceased.
(2)
This section does not apply to-
(a)  .
. .
(b)   any
person who is biologically related to a child by reason only of
being a gamete
donor for purposes of artificial fertilisation.”
[37]
Section 40(3)
of the
Children’s Act provides
as follow:
“
40.
Rights of child conceived by artificial fertilization
(3)
Subject
to
section 296
, no rights, responsibility, duty of obligation arises
between a child born of a woman as a result of artificial
fertilization and
any person whose gamete has or gametes have been
used for such artificial fertilization or the blood relations of that
person, except
when-
(a)
that
person is the woman who gave birth to that child; or
that
person was the husband of such women at the time of such artificial
fertilization.”
Analysis
Locus
Standi
[38]
While our Courts have recognized that in general unmarried fathers
and grandparents may well constitute
a part of the category of
persons who have an interest in the care, well-being and development
of a child
[4]
,
the question arises as to how wide the door to
section 23
should be
opened.
The
suggestion that it be limited to someone who would constitute a
de
facto
parent may well be too restrictive and may ultimately not accord with
the best interests of the child principle.
[39] On the other
hand what may be required is some tangible and clearly demonstrable
interest and connection to the child, regard
being had to the facts
and the relationship (if any) that may have come into being between
the child and the person/s seeking contact
rights.  While it is
difficult to define precisely what interest would be sufficient, it
would invariably depend on the facts
of each particular case and a
fleeting, incidental interest may not be sufficient while on the
other hand an interest akin to that
of a parent may set the bar too
high.
[40]
At the same time I do not consider section 40 of the Act to create an
insurmountable hurdle to someone
seeking to invoke section 23. I
understand     section 40 to do no more than
simply provide that no rights or
obligation arise
ex lege
between a child and a sperm donor where such child is born as a
result of the sperm donation. In such instances a sperm donor cannot
rely on the biological link evidenced by the sperm donation to argue
for the recognition of such right on that basis alone. At the
same
time, it cannot operate as an absolute bar to such a person seeking
care and contact as in this case. Section 23 and Section
40 seek to
achieve different objectives and are consistent with each other –
the former creates the opportunity for an interested
person to obtain
certain defined rights while the latter simply precludes the vesting
of such rights automatically on the basis of
a genetic link through
artificial insemination.
[41]
Both section 40 and
section 26(2)(b)
of the
Children’s Act make
it
clear that a gamete donor (except a spouse) is not legally regarded
as the parent of any child born using from their gametes,
and
therefore does not acquire any parental rights and responsibilities
relating to the donor-conceived child because of their genetic
link.
[42]
In both the above provisions, the legislature clearly and
deliberately excludes gamete donors from having
any claim to
parenthood of the donor-conceived child. The unequivocal purpose of
the sections is to make it so that in the eyes of
the law a
donor-conceived child is the child of the person(s) who intended to
act as the child’s parent(s); and the gamete donor
relinquishes any
claim to parenthood, and the attendant rights and responsibilities
that come with it, by virtue of becoming gamete
donors.
[43]
The legal certainty provided through the two sections is essential
for sustaining the artificial reproduction
system in South Africa. If
this legal certainty is compromised, donors would not be willing to
donate, recipients would not be willing
to accept donations, and
infertility would become an unsolvable burden.
[44]
The two provisions entail that a gamete donor does not acquire
parental rights and responsibilities towards
a donor-conceived child
by virtue of their genetic link. A person does not qualify as a
‘person having an interest in the care,
well-being or development
of a child; as contemplated in
sections 23(1)
and
24
(1) of the
Children’s Act because
of a genetic link caused by gamete donation.
An interest in the care, well-being or development of a child
therefore needs to be
based on facts other than genetic relatedness
caused by gamete donation.
[45]
The existence of the sperm donor agreement and its extensive
provisions cannot oust the Court’s jurisdiction
nor its duty to
consider the best interest of the child principle. While the terms of
the agreement as well as the intention of the
parties when the
agreement was concluded may be relevant in dealing with the merits of
the dispute the Court is called upon to adjudicate,
the agreement
cannot stand as an obstacle to the Court discharging its
constitutional obligations nor can it,
ipso facto
operate as
an immutable bar to the first applicant invoking
section 23.
While
contractual freedom is important in ensuring certainty and
predictability in the constitutional order, we live in, that freedom
must be exercised consistently with the values and imperatives of the
Constitution.
[46]
It is for these reasons that it may be inappropriate to dispose of
the
locus standi
arguments
in limine
but rather to let
the proper adjudication of them stand over to be dealt with
concurrently with the merits given how, in this application
those two
issues are inextricably intertwined.
The claim to
contact located in section 23
[47]
The thrust of the applicants case is that they have over time and
with the concurrence of and the acquiescence
of the respondents
become involved in the life of L, spent time with him, shared in his
interests and his life to such an extent
that a bond has developed
between them and L and that it would not be in the best interests of
L for this bond to be terminated as
the respondents have elected to
do. They say that beyond the bond that has developed their ongoing
presence in the life of L which
an order in terms of section 23 would
facilitate, would endure for the best interests of L, as they bring
love and commitment to
L and are also able to contribute materially
to his well-being.
[48]
The respondents on the other hand deny that a bond exists between the
applicants and L saying that at
best the applicants may feel a bond
towards L but this is considerably different from saying that a
mutual bond of affection exists.
They point to the limited time in
the life of L from his birth to the current time when the applicants
had some form or other contact
with him. In addition, it is the
respondent’s case that as a couple they took a conscious decision
to start a family and to have
a child and to be the parents of the
child and in seeking a sperm donor did not expect nor contemplate nor
agree that the sperm donor
would play a role in the life of the
child.
[49]
A key feature of this application is the twin questions of whether a
bond has formed between the applicants
and the child and related to
that whether it can be said that the respondents were responsible for
allowing such a bond to develop
by allowing and supporting the
contact between the applicants and L and therefore by implication
must accept the consequences of
that development.
[50]
From the outset and in particular when the sperm donor agreement was
reached the parties were clear that
the respondents would be the
parents of L and no role was envisaged for the first applicant in the
life of L. Even leaving aside
the terms of the written sperm donor
agreement, the parties are not in dispute in what they understood the
sperm donation would entail
and the consequences of it, namely that
the first applicant would have no claim of rights to the child and
would not play any role
in the life of L.
[51]
That the first applicant as well as his mother, the second applicant,
were allowed to have some contact
with L is not in dispute and it is
also not in dispute that this occurred with the consent of the
respondents. However, what the
respondents say, and this is not
unreasonable, is that out of a sense of gratitude they allowed the
applicants to have some limited
contact with L but that in doing so
they did not open the door to the kind of rights the applicants now
seek. They also say that
they were at all times secure in the
knowledge that the agreement they had concluded with the first
applicant and what they say was
the common intention of the parties
gave them a sense of security that the rights they had in L as his
parents would not be unduly
interfered with by anyone else and that
the conduct of the first applicant, is an attempt to insert himself
into their lives and
that of L which is unacceptable and not in the
best interests of L.
[52]
It is important in this regard to recognise that the decision by the
respondents to have a child and
constitute a larger family is one
that triggers a number of rights in the Bill of Rights, and they
include the right to dignity
[5]
in being able to make the choices that relate to one’s personal and
family life and have those choices protected. They also impact
on the
child’s right to family as set out in section 28 as well as the
right to association encapsulated in section 18 and the
right to
privacy
[6]
.
[53]
A family has traditionally been accepted to consist of the so-called
nuclear family, that is, a unit
consisting of a mother, father and
their biological children.
[7]
However, this traditional notion of a nuclear family unit has in
recent years imploded as a result of the gradual recognition
of other
forms of family structures in South Africa.  The advent of
democracy and the Constitution has in many respects heightened
the
recognition of other forms of family structures by affording legal
recognition to non-traditional ideals of family relationships.
The move toward a less traditional and more liberal definition of
what constitutes a ‘family unit’ in South Africa is evinced
by
the fact that only 25% of children in South Africa are actually part
of a traditional nuclear family unit, with the remaining
percentage
either being a part of a single parent headed family or a family unit
consisting of same sex parents.
[8]
[54]
In
Dawood
v Minister of Home Affairs; Shalabi v Minister of Home Affairs;
Thomas v Minister of Home Affairs
,
[9]
the Constitutional Court confirmed a wider understanding of the
notion of family and held that:
“
Families
come in many shapes and sizes. The definition of family also changes
as social practices and traditions change. In recognising
the
importance of family, we must take care not to entrench particular
forms of family at the expense of other forms.”
[55]
In
Mubake
and Others v Minister of Home Affairs and Others
,
[10]
which was a case concerning the Refugees Act
[11]
and the
Children’s Act,
[12
]
the court, per Makgoka J, held–
“
This, in my
view, ties in with the definition of a family member in section 1(d)
of the Children's Act, which is not restricted to
the nuclear family,
but also includes "any other person with whom the child has
developed a significant relationship, based
on psychological or
emotional attachment, which resembles a family relationship". I
therefore agree with the submission by Prof
Skelton, for the
applicants, that the Children's Act takes a broader, more African
view to the concept of family, and that this should
dispose this
Court towards a more flexible approach to the interpretation of a
"dependant" in section 1 of the Act.”
[13]
[56]
The cases of
Volks
NO v Robinson and Others
[14]
and
Gory
v Kolver NO and Others (Starke and Others Intervening)
[15]
not
only highlight a stark distinction between the approach of the courts
to domestic partnerships depending on sexual orientation,
but both
cases in turn play an important role in highlighting the fact that
the dynamics of relationships have evolved as couples
no longer feel
the need to be bound by the institution of marriage in order to live
together as ‘husband and wife’ and exercise
the same
responsibilities and obligations as married couples.  As such,
the call for greater recognition of domestic partnerships
through
case law and even through legislation is indicative of the changing
norms in society and a greater push for non-nuclear family
units in
South Africa to be fully embraced.
[57]
In
S
v M
[16]
the process of weighing up the best interest of the child received
detailed attention. Sachs J attempted to describe what he called
“
an
operational thrust for the paramountcy principle”.
[17]
“
The
paramountcy principle, read with the right to family care, requires
that the interest of children who stand to be affected receive
due
consideration. It does not necessitate overriding all other
considerations. Rather, it calls for appropriate weight to be given
in each case to a consideration to which the law attaches the highest
value, namely the interest of children who may be concerned.
[58]
It must be so that family is often about intimate space and special
bonds that are nurtured through both
easy and difficult times and
that bind those in it in more ways than are imaginable. While that
space may often be open to scrutiny,
in particular when, it involves
the best interest of the child principle, it is also a space that
requires protection and where appropriate
must be insulated from
undue outside interference.
[59]
There is in this regard nothing about the conduct of the respondents
that suggests that they opened their
family space to the applicants
in the manner described. If they were motivated by a sense of
gratitude to allow the applicants to
see the child on limited
occasions, there is nothing wrong with that and it would be incorrect
to describe it as having opened the
door of their lives to the
applicants in a way that now binds them to afford far reaching rights
to the applicants.
[60]
It is a far stretch to suggest that someone who out of goodwill and
gratitude reaches out and is warm
and inviting to another must then
carry the consequence that such conduct, which is not beyond the
ordinary expectation of decent
human beings, may trigger a rights
claim on the part of the other. This is not tenable and if it were
allowed it would be chilling
in its effect on ordinary human
relations. On this aspect it is important to also recognize that this
application is not a contest
between the parties, but its starting
point must be the recognition that the respondents are the parents of
L and they have by all
accounts done a good job thus far.
[61]
At this juncture, and even though this application is about contact
and not care, I briefly reflect on
the allegations advanced by the
applicants, that suggest that the respondents may not always act in
the best interest of L. I have
described the various incidents and
events the applicants have made reference to and it is an unfortunate
attempt to cast doubt on
the parenting abilities of the respondents.
That the second respondent has a Standard 7 formal education has
absolutely no bearing
on her ability to support the educational
development of her son. There are millions of others with little
formal education who play
a vital role in the educational development
of their children. Similarly, the suggestion that the respondents
visit a pub almost
daily with L is mischievous when it appears to be
a respectable family restaurant. In addition, the incident when L was
hurt is a
part of the growing up of a young child.
[62]
In regard to the incident that occurred on 27 November 2019 in which
the minor child was injured the
following simple but profound
observation was noted in
Wilford
v Little
[18]
a
decision of the California Court of Appeals that "an infant is
afraid of nothing and in danger of everything when left
to his own
devices".
[63]
In addition the unwarranted suggestion that alcohol played a part in
the incident together with the other
issues I have referred to appear
collectively to seek to advance the suggestion that somehow the best
interest of L is imperiled
by the conduct of the respondents –
there is no justification for this.
[64]
Finally, there is the reference to L enquiring about a father figure
and the suggestion that the respondents
have not explained this to
him. Apart from the explanation the respondents have offered and the
reference to the “
Hey
Duggie”
kids
TV program, it must also be recalled that in
Van
der Linde v Van der Linde
[19]
,
the Court held that the concept of mothering is determined by the
quality and function thereof and is no longer determined by the
gender of the parent and the proposed role that they are classified
as in society. A father can be as a good a "mother"
as the
biological mother of the child, whilst a mother can be as a good a
"father" of as the biological father of the child.
It is
inconceivable how in a society that is committed to the eradication
of discrimination on the basis of sexual orientation, concepts
such
as a father figure can be sued to cast doubt on the appropriateness
of a lesbian couple to be parents of a child. Ultimately
it must be
about the environment of love and caring that is created for a
growing child and not the sexual orientation of its parents.
[65]
Accordingly on this aspect I must conclude that the choice of the
respondents to have a family that would
include L, the manner in
which they have demonstrated their commitment as parents to L and the
privacy and dignity that they are
entitled to are important
considerations in ensuring that their life choices and the identity
and the construction of their family
are protected. Certainly, on
that score there is nothing to suggest that the conduct of the
respondents in their role as parents
have somehow imperiled the best
interests of L.
[66]
That however, is not the end of the enquiry and it may well be,
notwithstanding that the respondents
are not blameworthy, that the
best interest of L may be advanced by having contact with the
applicants, I examine the nature of the
relationship  between
the applicants and L and also the genesis of that relationship and
how the applicants see that relationship
in the fullness of time and
the rights to L they seek in the long term and as set out in Part B
of this application.
[67]
In examining the extent of the contact between the applicants and L
then the following is largely not
in dispute: -
2016
First applicant
saw L on six occasions – this would have been when L was an
infant
2017
Two visits took
place
2018
No visits
2019
Visits over a
nine-month period, with the last visit being end November 2019
2020
No visits
2021
No visits
[68]
If regard was had to just the number of visits, then it was hardly
significant and in the five years
of the life of young L, he has had
no continuous contact with the applicants for about three of those
years while the contact that
was had in the first year of his life
was as an infant. Under these circumstances of quite limited contact,
one must question whether
it can be said a mutual bond exists between
the applicants and L.
[69]
From the description given by the applicants of their feelings
towards L, I must accept that they feel
a closeness to him and
subjectively from their side they hold the view that a bond exists.
This is not unreasonable and in this regard
the feelings and
affection they hold for L are indeed sincere. Certainly, on the part
of the first applicant those feelings and the
bond he describes can
be traced back to the birth of L and the description of the first
applicant when he held L for the first time.
The immediate bond he
felt, the similarity in the physical features of L he identified and
his own conclusion that L was his biological
son, all contributed to
his realization that he was naïve to think that he could simply make
an altruistic donation and let the
matter end there. At that point in
his own words, he felt the need to be a part of L’s life.
[70]
This candid and moving account of what occurred when the first
applicant saw and held L for the first
time is telling in
understanding the actions and the conduct of the first applicant
since then. Clearly and whatever the respondents
may have done in
‘opening the door’ as he describes, his own trajectory and the
mould for that in his relationship with L had
been set when he held L
for the first time – he wanted to be a part of L’s life.
[71]
I have considerable understanding for what may have been the anguish
and the dilemma the first applicant
found himself in. In making the
donation it was clear that he did not harbor any thoughts of contact
with or, a relationship with
the child, still to be born. However,
all of that changed as I have described, and the seeds of the current
dispute were probably
sown after L’s birth when the applicants
visited L.
[72]
The first applicant at no stage during this time shared with any of
the respondents the deep emotion
and bond that he felt when he first
saw L and his feeling at the time that he wanted to be a part of L’s
life. I am not sure how
this would have affected the relationship
between the parties if he had done so, but I cannot imagine the
polite and cordial relationship
they enjoyed for some time would have
endured or that the respondents would have allowed even the limited
contact between the applicants
and L as they did.
[73]
The first applicant also did not seek any professional assistance in
dealing with the dilemma he had
found himself. Whatever the status of
the sperm donor agreement may have been, he would have known that the
respondents and himself
saw the donation as altruistic, with him
playing no role in L’s life thereafter, while on the other hand his
own view of the matter
had changed quite dramatically from the time
of L’s birth.
[74]
Therefore and even accepting that the there is still a strong feeling
of affection on the part of the
applicants and that they both feel a
deep bond towards L, the reality is that that situation arose largely
through no fault of the
respondents but rather as a result of the
probably unexpected and deep reaction the birth of L evoked in the
first applicant.
[75]
The consequences of that are probably the most difficult and complex
feature of this dispute. How does
a Court deal with the claim of
contact of someone who sincerely holds strong feelings towards L and
always wanted to be a part of
his life but did not express any of
this to L’s parents who on their part are capable parents and may
rightly feel that there is
no place in L’s life for the applicants
and that allowing them contact rights would undermine their own self
determination as a
family, their integrity as a family and the proper
respect for their dignity.
[76]
Under these circumstances and whatever the applicants may feel
towards L, I am not sure if L’s best
interests would be advanced by
allowing the contact that the applicants seek.
[77]
While the applicants have denied that they see themselves as parents
of L or that they seek to insert
themselves into the life of L, the
first applicants conduct from the time of L’s birth to the bringing
of this application was
about asserting and giving effect to the bond
he says he felt for L from the time of his birth.
[78]
In addition, if one has regard to the nature of the relief the
applicants seek in Part B of this application
which includes rights
of guardianship to L, it certainly envisages a significant role in
the life of L and includes care and contact,
access which includes
weekend sleepovers and school holidays as well as guardianship. There
can be little doubt that what the applicants
seek will in effect mean
them playing a role in the life of L, similar to that which the
respondents currently play; that they will
take major decisions in
the life of L and that they seek to become a permanent, integral and
substantive part of L’s life. What
is envisaged is that L will have
two sets of parents, two homes and three people who will exercise
guardianship over him.
[79]
While as matter of principle this may not be objectionable, in the
context of this application and on
the facts before me, I have
serious reservations whether it is warranted but more importantly
whether it will serve L’s best interests.
Mindful that Part B is
not before me, the relief that the applicants seek in Part A, is a
precursor to the relief they seek in Part
B.
[80]
Section 23 (2) requires the Court, in adjudicating an application of
this nature, to have regard to the
following factors: -
(2)
When considering an application contemplated in subsection (1),

the court must take into account-
(a)
the
best interest of the child;
(b)
the
relationship between the applicant and the child, and any other
relevant person and the child;
(c)
the
degree of commitment that the applicant has shown towards the child;
(d)
the
extent to which the applicant has contributed expenses in connection
with the birth and maintenance of the child; and
(e)
any
other fact that should, in the opinion of the court, be taken into
account.
[81]
I have already considered the facts as well as the analysis and the
evaluation of those facts against
the applicable legal principles
found in section 23 as well as the values and the imperatives of our
Constitution. They all point
strongly in the direction of refusing
the relief sought. For the sake of completeness however, I list the
considerations set out
in section 23 (2) and my conclusions in
respect of each of them, mindful that what is required ultimately is
what would advance the
best interests of L.
a)
The best
interest of the child
[82]
By all accounts L is well cared for and lives in a family that is
both sensitive and responsive to his
needs. There is no evidence that
has emerged that contact with the applicants will redound to his best
interests. If anything, it
may well cause confusion, create new,
alternate and possibly conflicting centers of focus in his young
life. All of this may well
open up a path of great uncertainty for L
and given my conclusion that L’s best interests are already
adequately catered for by
the respondents, granting contact rights to
the applicants will not be in L’s best interests.
b)
The relationship
between the parties and the child
[83]
I have already dealt with the relationship between the respondents
and L as well as that between the
applicants and L and while I have
concluded that the applicants feel deeply and strongly for L, it
simply cannot follow that the
existence of that level of affection
and concern should trigger an entitlement to have contact. In this
regard it must be recalled
that the applicants have not had contact
or interaction with L for a major part of his life and certainly no
contact for the past
18 months or so. This has not had any disruptive
effect in the life of L and while I would characterize the
relationship between
the applicants and L as being warm and
affectionate while it existed, it was a relationship of limited
duration and limited interaction
and while it brought great joy to
the applicants, it was in all respects a tangential and subsidiary
relationship to the one that
L enjoys with his parents which is a
close and loving one.
c)
The degree of
commitment that the applicants has shown towards the child
[84]
While the applicants are committed to L and want the best for him,
that commitment (without undermining
it) occurred in the context of a
limited relationship and in any event cannot be dispositive of the
matter.
d)
Contribution to
towards expenses
[85]
The applicants have provided gifts to L from time to time but all of
L’s essential needs have been
taken care of by the respondents. In
this regard I note the applicants offer to contribute in more
substantial ways to L’s upbringing
including paying for his
education, the reality though is that the respondents have within
their available resources provided well
for L. There is the issue of
the rental premises the respondents occupied and leased from the
first applicant and even if I accept
that this was the first
applicant’s way of contributing to L’s well-being, there was at
no stage any request by the respondents
for assistance. The
significance of this is to recognize their dignity in wanting to be
able to provide for their son and is not
about the respective ability
of the parties and what they can do for L. This is about the best
interest of L and not a competition
about who has the best resources.
e)
Any other factor
[86]
The first applicant has said that this application is not premised on
his biological link with L but
on the development of the bond that
has developed between him and the second applicant, on the one side
and L on the other
[20]
.
Despite this, all of the evidence points in a different direction –
that in his mind the biological bond, the physical likeness
and him
reneging on his altruistic donation to the respondents, suggest that
he sees himself as the father of L intent on playing
such a role and
in the future being the guardian of L.
[87]
He seeks all of this, mindful of the relationship between the
respondents, their desire nurtured over
time to have a child of their
own and their great joy in having L and having him as part of their
family to love and to cherish.
They are surely entitled to that
little special place they have created for themselves and while
keeping the applicants out of that
space may appear to be harsh, it
is ultimately what is needed to respect and protect the intention and
the choice of the respondents
in constituting their family and being
able to live as a family in the best manner they see fit.
[88]
Simply and unequivocally put, that means bringing up L without the
involvement of the applicants which
is the relief the applicants
seek.
Comparative
Law
[89]
In Re
Patrick
[21]
,
Guest J of the Family Court of Australia dealt with the issue of
whether a gay sperm donor, known to the lesbian mother of the child,
had a right under Australian law to regular contact with the child.
Guest J held that the sperm donor was allowed contact with the
child
to the extent that this was in the child's best interests. Guest J
did, however, find that due to the way in which particular
provisions
of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor
cannot be regarded as the ‘parent’ of the child,
and accordingly
called for legislative reform to recognise the rights of known sperm
donors wanting involvement with the child.
[90]
In
Mason
v Parsons
[22]
,
decided by Australia’s apex court, the High Court. In
Mason
,
the applicant, a known sperm donor, was entered on her birth
certificate as the child’s father; he was actively involved in the
child’s life; and he had an ongoing role in the child’s financial
support, education, health and general welfare since birth.
Based on
the applicant’s ongoing involvement and relationship with the child
–
not
the
genetic link – the High Court held that the applicant was indeed
the child’s parent for legal purposes.  The High Court
further
held
obiter
that it was unnecessary to decide whether being a sperm donor
per
se
is relevant to being a parent for legal purposes.
[91]
It does seem and with respect correctly so, that the approach of the
Court as that the involvement and
the nature of the relationship
between the applicant and the child and not the genetic link would be
the dominant consideration in
a claim for contact rights.
[92]
In
TJ
v CV & Ors
[23]
,
application was made by the biological parent (who was the known
sperm donor) seeking contact and parental responsibility for his
son
who was now part of the applicant’s sister’s same sex family. No
parental responsibility order was made and a limited contact
order
was granted. The applicant's sister, S, was in a stable civil
partnership with CV. They had various unsuccessful attempts at
creating a family before turning to the applicant as a possible
sibling sperm donor. This was agreed and CV successfully gave birth.
There was however a dispute as to whether the child’s conception
was through natural means or through artificial insemination.
[93]
The applicant's case was that the three of them had agreed he would
have regular contact and a role in major
decision-making whereas S
and CV maintained that he was merely to have an avuncular role. The
disagreement had caused the parties
to become estranged. In this
judgment Hedley J observes that the depth of feeling caused by such
arrangements often comes as a shock
to those involved. However, he
had to consider the issues from the viewpoint of the child's welfare.
He concluded that giving the
applicant parental responsibility would
not be wise as he would be likely to use it to force greater
involvement in the future. He
also rejected any form of restricted
parental responsibility but was reluctant to dismiss the application
as the essential conditions
for parental responsibility had been met:
he therefore made no order. The Judge did make an order for contact
as the child needed
to know from an early stage that the applicant
was more than just an uncle as that fact would inevitably be revealed
at some stage.
However, the contact was restricted to four occasions
a year as it was not intended that such contact should develop a
relationship
that might be considered parental.
[94]
What the cases appear to highlight is that the genetic link is hardly
an overwhelming or substantial
consideration in adjudication claims
of this nature. In the South African context, the irrelevance of such
a link is highlighted
by section 40 of the Act and from this it must
therefore follow that a claim in terms of section 23 for contact and
/or care must
be predicated on the factors that are outlined in the
section and which I have dealt with. To somehow infuse the genetic
link into
the process, as the first applicant in fact does but at the
same time disavows reliance on such a link, does an injustice to the
regime that section 40 contemplates which is to provide legal
certainty in the artificial reproduction system in South Africa.
Conclusion
[95]
For these reasons the relief sought in Part A of this application
must fail and it fails primarily not
on account of the fact that the
applicants are ill suited in their commitment to L but rather in
recognition that the family that
the respondents have made for
themselves in their relationship with their child L, are intimate and
special and are both worthy and
deserving of constitutional
protection from outside interference, even if the latter is well
meaning. In any event and for the reasons
already given, the granting
of the contact rights sought will not ultimately be in the best
interests of L.
Costs
[96]
There is no reason why costs should not follow the result. The
respondents have had to expand financial
resources in opposing this
part of the application which they have done successfully and they
should be entitled to their costs.
Order
[97]
I make the following order: -
Part A of the
application is dismissed with costs.
N KOLLAPEN
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
PRETORIA
Appearances
For
the applicants:
Adv LC Haupt (SC)
Adv
B Bergenthuin
Instructed
by:
Adam & Adams Attorneys
For
the respondents:
Adv CD Alton
Adv
L Pearce
Instructed
by:
Cilliers & Gildenhuys Attorneys
Date
of hearing:
14 April
2021
Date
of judgment:
17 June 2021
[1]
See
paragraph [61],[63]-[65].
[2]
Act 38
of 2005.
[3]
See
paragraphs [69]-[70] and [86].
[4]
S v
J and another
[2011] 2 All SA 299
(SCA);
LH
and another v LBA
[2013] JOL 29947 (ECG).
[5]
Section
10 of the Bill of Rights.
[6]
Section
14
Supra.
[7]
See,
for example, Regulations published in terms of the now repealed
Social Assistance Act 59 of 1992. These Regulations defined
“family”
in section 1 as: “the parent or parents and his or her dependent
child or children”. “Family” is undefined
in the current
Regulations: Regulations relating to the Application for and Payment
of Social Assistance and the Requirements or
Conditions in respect
of Eligibility for Social Assistance (GN R898
Government
Gazette
31356
22 August 2008. The White Paper for Social Welfare defines “family”
as “individuals who either by contract or agreement
choose to live
together intimately and function as a unit in a social and economic
system”. See GN 1108
Government
Gazette
18166,
8 August 1997.
[8]
2018
Children, Families and the State report published by the Children’s
Institute at the University of Cape Town.
[9]
2000
8 BCLR 837
(CC); 2000 3 SA 936 (CC) at para
31. See also Smit in Olivier and Kuhnle (eds) Norms and
Institutional
Design: Social Security in Norway and South
Africa 265.
[10]
2016
(2) SA 220 (GP).
[11]
130
of 1998.
[12]
38
of 2005.
[13]
Supra
n 7 at para 20.
[14]
2005
(5) BCLR 446 (CC).
[15]
2007
(4) SA 97 (CC)\.
[16]
[2007] ZACC 18
;
2008
(3) SA 232
CC at [42].
[17]
Skelton
‘Too much of a good thing? Best interest of the child in South
African jurisprudence’ 2019 De Jure Law Journal 557-579
at 565.
[18]
Civ.
No. 21469. Second Dist., Div. One. Sept. 17, 1956.
[19]
[1996]
1 All SA 43
(0) - quoting from Editor's Summary.
[20]
Founding
Affidavit page 001-37 at 4.43.
[21]
[2002]
FamCA 193.
[22]
[2019]
HCA 21
(19 June 2019).
[23]
[2007]
EWHC 1952
(Fam).