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[2021] ZAGPPHC 388
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K.H.D and Another v Head of Department of Social Development, Gauteng and Others (30205/2019, 55642/2019) [2021] ZAGPPHC 388 (17 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number:
30205/2019
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: YES
REVISED.
DATE:17/6/2021
In the application of:
KHD
First Applicant
DTD
Second Applicant
and
HEAD
OF DEPARTMENT OF SOCIAL DEVELOPMENT,
First Respondent
GAUTENG
MEMBER
OF THE EXECUTIVE COUNSEL FOR
Second Respondent
SOCIAL DEVELOPMENT,
GAUTENG
MINISTER
OF SOCIAL DEVELOPMENT
Third Respondent
and
Case Number:
55642/2019
In the application of:
MPS
First Applicant
LPK
Second Applicant
and
HEAD
OF DEPARTMENT OF SOCIAL DEVELOPMENT
First Respondent
GAUTENG
MEMBER
OF THE EXECUTIVE COUNSEL FOR SOCIAL
Second Applicant
DEVELOPMENT, GAUTENG
MINISTER
OF SOCIAL DEVELOPMENT
Third Respondent
Delivered.
This judgment was handed down
electronically by circulation to the parties’ representatives
by email. The date and time for
hand down is deemed to be 10h00 on
June 2021.
JUDGMENT
RANCHOD J
Introduction
[1]
The issues and the relief sought in these two matters are identical.
They were therefore
heard together by direction of the Acting Deputy
Judge President. The respondents in both matters are the same. The
applicants
in the two matters are the prospective adoptive parents of
the minor children ‘J’ and ‘L’ respectively.
[2]
Both matters relate to the proper interpretation of section
239(1)(d)
[1]
of the Children’s Act 38 of 2005 (the Children’s Act) to
recommend an adoption. The applicants are of the view that
such a
letter (recommending an adoption) is not a peremptory requirement and
should be interpreted to include a letter not recommending
an
appointment. They accordingly seek,
inter
alia
,
a declaratory order from this court to the effect that:
2.1 the
letter contemplated in s239(1)(d) of the Children’s Act
includes a letter
not
recommending the adoption (a letter of
non-recommendation); and
2.2
the letter, whether it recommends, does not recommend, or is even
absent, does not oust the jurisdiction of
the Children’s Court
to consider, adjudicate and pronounce on an adoption application.
[3]
The respondents initially opposed both the applications but, by the
time of the hearing,
they first abandoned their opposition in the KHD
matter and later, in MPS as well. The applicants were therefore free
to seek the
declaratory orders on an unopposed basis. However,
counsel for the applicants, Mr Courtenay, informed me that the
parties wished
to make brief oral submissions (the respondents did
not file heads of argument while the applicants did) and that it
would be preferable
that a detailed written judgment be handed down.
The reason is that several Children’s Courts in different
magisterial districts
have interpreted the provisions of s239(1)
differently and a judgment of a High Court would provide clarity to
(and be binding
on) the Children’s Courts. I deemed it
important to hear oral submissions (even though the matter was
unopposed) and ruled
accordingly.
[4]
I should mention at this juncture that when the KHD matter initially
came before Tuchten
J, the learned judge requested the presiding
magistrate in the Children’s Court to provide comment on the
applicants’
interpretation of s239(1)(d) of the Children’s
Act. Magistrate NAJ van Niekerk (Assistant Presiding Officer) duly
provided
his views for which I am grateful. The learned magistrate
says he agrees with the applicants’ interpretation of
s239(1)(d),
albeit for slightly different reasons, regarding the
recommendation, non-recommendation and absence of the letter of
recommendation.
Brief factual
backgrounds
The MPS matter
[5]
The child ‘L’ was born on 19 June 2017 at the Chris Hani
Baragwanath Hospital.
His biological mother, IM, told the nursing
staff that she did not want the child and wished to give it up for
adoption. On 20
June 2017 accompanied by the applicants, IM
approached Ms Catharina Eaton (“Eaton”) the social worker
that had been
assisting the applicants. Ms Eaton is an accredited
adoption social worker as contemplated in section 251 of the
Children’s
Act.
[6]
On their arrival, IM yet again reiterated her desire to have L put up
for adoption
and for him to be adopted by the applicants. IM was
counselled by Eaton on the ramification of her decision to have L put
up for
adoption.
[7]
About a month later, Eaton contacted IM, in order to ascertain
whether (or not) she
wanted to proceed with her decision to have L
put up for adoption. IM confirmed that she did and on 12 July 2017
they met up so
that the necessary consent could be signed. The
consent was signed by IM before a magistrate at the Roodepoort
Magistrate’s
Court.
[8]
On 24 July 2017, Eaton approached the Roodepoort Children’s
Court and filed
a ‘Notice of Adoption’ and a ‘Statement
in support of the application for adoption’. A report was also
prepared and submitted to the first respondent on 27 November 2017.
The report, concludes as follows:
“
Based
on the foregoing it is evident that [L] is an adoptable child as
envisaged in the Children’s Act as his mother signed
consent
for him to be adopted. She did not know his biological father.
The
applicants have been screened and qualify to adopt [L] in terms of
section 251 of the same Act as:
·
They are fit and proper to be entrusted
with the full parental responsibilities and rights in respect of the
child;
·
They are willing and able to undertake,
exercise and maintain those responsibilities and rights;
·
They are over the age of eighteen years;
·
They were properly assessed by an
adoption social worker for compliance with the requirements of the
Act;
·
The biological mother signed consent for
him to be adopted by the applicants;
·
The biological father is unknown.
...
It
is recommended that the application for adoption of [L] by the
applicants be decided in their favour. That the surname of [S]
is
bestowed on him.”
[2]
[9]
The first respondent raised certain queries and ultimately decided
not to recommend
the adoption. It was not entirely clear in the
reasons that accompanied the letter of (non-)recommendation the
precise basis of
the rejection. It is simply recorded that IM was a
Lesotho National
and, consequently, her child L was also a Lesotho National. (There is
no clear indication what bearing, if any, this had on the
decision-making process.) Further, that the family of IM had to be
consulted and that, absent their input the adoption could not
proceed. Finally, that the panel set up by the first respondent to
consider the matter stated that “
...
the main purpose of the Children’s Act (best interests of the
child) ... supersedes the mother’s rights.
”
[10]
On 21 February 2018 Ms Eaton received an email from the Department of
Social Development (DSD)
advising her that the prospective adoption
had ‘
elements of inter-country
adoption.’
[11]
Ms Eaton was of the view that the absence of a positive letter of
recommendation from the first
respondent would stifle any adoption
application. She therefore approached the Centre for Child Law, which
assisted the applicants
to institute the present application.
KHD matter
[12]
The minor child ‘J’, was about two years old when this
application was launched.
His biological parents are ‘RM’
and ‘MS’. When J was born his mother informed the
hospital staff that she
did not wish to keep him and wanted to put
him up for adoption. A social worker employed by the Department of
Health, Gauteng referred
the matter to ABBA Specialist Adoption and
Social Services (ABBA). Ms J.H Theron, an accredited adoption social
worker, is the
designated person who has been dealing with the
matter. She has deposed to the founding affidavit in this matter.
[13]
Ms Theron is assisting the prospective adoptive parents KHD and DTD
in their adoption of J. She
says J has been in the prospective
adoptive parents’ care since he was about eight months old and
he knows them as his only
‘parents’. He was placed in
their care pending finalization of his adoption proceedings by the
prospective adoptive
parents. After a comprehensive investigation, Ms
Theron filed a report in terms of section 230 of the Children’s
Act with
the Tembisa Children’s Court recommending the
adoption.
[14]
As in the MPS matter, they too received a letter from the first
respondent, on 21 February 2018,
not
recommending the adoption on the basis,
inter
alia,
that J did not have a birth
certificate and that his mother was originally from Mozambique and
therefore it was regarded as an
inter-country adoption. The present
application before me followed and, as I said, the same relief is
sought as in the MPS matter.
Consequence of the
letters of non-recommendation
[15]
Consequently, the Children’s Court is uncertain whether it may
adjudicate the matter absent
a review of the decision of the first
respondent.
[16]
It would be apposite to briefly set out the legislative scheme
relating to adoptions.
The relevant
legislative scheme
[17]
The Children’s Act was enacted,
inter
alia
,
to give effect to certain rights of children as contained in section
28 of the Constitution
[3]
and, ‘to make new provision for the adoption of children’.
[4]
It makes detailed provisions relating to adoption of children.
Importantly, for present purposes, section 28(2) of the Constitution
provides:
‘
(2)
A child’s best interests are of paramount importance in every
matter concerning the child.’
This is echoed in section
2 of the Children’s Act, which provides:
(a)
...
(b)
To give effect to the following
constitutional rights of children, namely-
…
(iv) that the best
interests of the child are of paramount importance in every matter
concerning the child.’
... ‘
[18]
Chapter 15 of the Children’s Act deals in detail with the
requirements in relation to the
adoption of a child. It is not
necessary to set out these provisions in any detail in this judgment-
in view of the narrow issue
that this court must deal with, namely,
the meaning to be attributed to s239(1)(d) in the context of the two
matters before me:
‘
239(1)
An application for the adoption of a child must –
...
(d)
be accompanied by a letter by the provincial head of social
development recommending the adoption of the child.
...;’
[5]
[19]
Section 230 provides as follows:
‘
(1)
Any child
may be adopted if –
(a)
the adoption is in the
best
interests of the child
;
(b)
the child is
adoptable
;
(c)
the provisions of this Chapter are complied
with.
(2)
An adoption social worker must make an assessment to determine
whether
a child is adoptable.
(3)
A child is adoptable if –
(a)
the child is an orphan and has no guardian or caregiver who is
willing to adopt the child;
(b)
the whereabouts of the child’s parent or guardian cannot be
established;
(c)
the child has been
abandoned
;
[6]
(d)
the child’s parent or guardian has abused or deliberately
neglected the child, or has allowed
the child to be abused or
deliberately neglected;
(e)
the child is in need of a permanent alternative placement;
(f)
the child is the stepchild of the person intending to adopt; or
(g)
the
child’s parent or guardian has
consented to the adoption
unless
consent is not required.
(My
underlining.)
The
proper approach to statutory interpretation
[20]
The declaratory orders sought involve, principally, the
(constitutionally compliant) interpretation
of the impugned
provision. It is therefore useful to repeat the most relevant
principles.
[21]
The first and perhaps foremost principle of interpretation is the
court’s duty to interpret
statutes in such a way as to best
give effect to the spirit, purport and objects of the Bill of
Rights.
[7]
This duty is one in respect of which “
no
court has a discretion
”
[8]
and must “
always
be borne in mind
”.
[9]
[22]
This duty has two sub-components:
22.1
First
,
the so-called
Hyundai
obligation.
[10]
This component requires a court to interpret a statute through the
prism of the Bill of Rights. If a court is faced with two
interpretations
– one of which is constitutionally valid and
one of which is not – the court must adopt the constitutionally
valid
interpretation provided that to do so would not unduly strain
the language concerned.
22.2
Second
,
the so-called
Wary
obligation.
[11]
This component requires a court in instances where a provision is
reasonably capable of two interpretations – both of which
are
constitutionally valid – to adopt the interpretation that
“
better
”
promotes the spirit, purport and objects of the Bill of Rights.
[23]
The second principle that ought to inform a court’s
interpretation of a statute is that
it must be interpreted
purposively
.
[12]
[24]
The third principle of interpretation was articulated best in the now
often cited judgment of
Natal Joint Municipal Pension Fund v
Endumeni Municipality
as follows:
“
[T]he
proper approach ... is from the outset to read the words used in the
context of the document as a whole and in light of all
relevant
circumstances.
That is how people use and understand language and it is sensible,
more transparent and conduces to greater clarity about the task
of
interpretation for courts to do the same.
”
[13]
and
“
[C]onsideration
must be given to the language used in light of the ordinary rules of
grammar and syntax; the context in which the
provision appears; the
apparent purpose to which it is directed and the material known to
those responsible for its production.
Where more than one meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective
not subjective. A sensible meaning
is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose of the
document. ...
The
‘inevitable’ point of departure is the language of the
provisions itself, read in
context
and having regard to the purpose of the provision and the background
to
the
preparation and production of the document.
”
[14]
(My underlining.)
[25]
In addition to these ‘general principles’ our courts have
also had the opportunity
to further refine the interpretive exercise
when the statutory provision relates to children. The Constitutional
Court has held
that:
“
While
section 28 undoubtedly serves as a general guideline to the courts,
its normative force does not stop there. On the contrary,
as this
court held in De Reuck, Sonderup and Fitzpatrick, section 28(2), read
with section 28(1), establishes a set of children’s
rights that
the courts are obliged to enforce ... The ambit of the provision is
undoubtedly wide. The comprehensive and emphatic
language of section
28 indicates that just as law enforcement must always be
gender-sensitive, so must it always be child-sensitive;
that
statutes
must be interpreted and the common law developed in a manner which
favours protecting and advancing the interests of children
and that
courts must function in a manner which at all times shows due respect
for children’s rights.
”
[15]
Further, it has also held
that also held that, where possible, statutes must be:
“
interpreted
so as to exclude a construction that would be inconsistent with the
principle of the best interests of the child”.
[16]
[26]
In my view, if these principles are applied to the issues in the
matters before me, the interpretations
sought by the applicants (and
encapsulated in their respective notices of motion) are correct.
The section
239(1)(d) letter
[27]
The question that arises for determination is whether the word
“recommending” in
section 239(1)(d) also includes a
letter “not recommending”. The applicants (so too,
belatedly, the respondents) suggest
that it does. There are, at
least, three reasons why the position adopted by the parties appears
to me to be correct.
[28]
The first reason relates to the legislative purpose of the impugned
provision. It has been held
that the legislative purpose of the
impugned provision is, at least, three-fold: One, it ensures that the
legislative prescripts
are adhered to by accredited social workers
within the framework of their professional ethics and
responsibilities.
[17]
Two, it provides for the best interests of the child by ensuring that
first respondent (and her counterparts in other provinces)
is given
an opportunity to consider factors that are specifically and
particularly within her own knowledge.
[18]
Three, it provides statutory oversight by public officials in the
employ of the first respondent (and her counterparts in other
provinces) in order to,
inter
alia
,
prevent human trafficking.
[29]
A letter “not recommending” the adoption of a child
achieves these self-same things:
It provides the Children’s
Court with the first respondent’s (and her counterparts in
other provinces) views on whether
the statutory prescripts have been
adhered to by the accredited social worker. It further provides the
Children’s Court with
their views on facts that are within
their “
peculiar
knowledge
”
[19]
and its impact (if any) on an assessment of best interest. Lastly, it
provides the first respondent (and her counterparts in other
provinces) with an opportunity to fulfil their oversight function and
report to the Children’s Court on any findings and
concerns he
or she may harbor. It follows that the legislative purpose of the
letter is achieved, regardless of the nature of the
response.
[20]
[30]
The second reason relates essentially to the jurisdiction of the
Children’s Court to hear
adoption applications. The purpose of
the letter implicitly recognizes that it is the Children’s
Court that must make a decision
on the evidence before it on whether
or not to grant an adoption. The Children’s Court would,
logically, consider the letter
either recommending or not
recommending the adoption in its assessment of,
inter
alia
,
‘best interests’.
[21]
I am fortified in this view if regard is had to instances where there
is no letter of recommendation. A Children’s Court
is not
absolutely barred from hearing an application but rather may, in
exceptional circumstances, condone that failure.
[22]
In
XN
the
court held:
“
[19]
However, although the best interests of the child cannot be
sacrificed at the altar of formalism, if the
requirement of the s
239(1)(d) is not complied with, the objectives of the Children’s
Act will be lost.
The
Children’s Courts are charged with overseeing the wellbeing of
children, examining the qualifications of applicants for
adoption and
granting adoption orders
.
To carry out their functions effectively and conscientiously they
rely on the efficient collaboration of all stakeholders, the
department and social workers to comply with their respective
obligations in terms of the Act. Non-compliance with the provisions
of the Act will delay the speedy facilitation of adoption
applications, bringing the administrative processes to a halt, if not
into disrepute. It should be a concern when those who are empowered
by legislation to fulfil their functions appear recalcitrant,
especially in matters involving the vulnerable members of our
society. Nevertheless, in my view this does not give the child
commissioner
carte
blanche
to condone non-compliance with the provisions of the Act.
This
can only be done
if
the circumstances are exceptional and warranted, as in this
_
case”
[23]
(My underlining.)
[31]
It must then follow that a Children’s Court that is in
possession of a letter –
albeit
a
letter not recommending the adoption – would still be entitled
to consider the adoption application. If this were not so,
it would
lead to the absurd conclusion that a Children’s Court is bound
by the decision of the first respondent and has no
authority
whatsoever to depart from it. This, in my view, cannot be correct
and, in fact, would do violence to the separation of
powers doctrine
and defeat the very purpose of the Children’s Court.
[24]
[32]
The third reason is that a converse finding would not only run
contrary to the spirit and purport
of the Children’s Act but
would also violate several fundamental rights of children including:
firstly, the purpose of the
Children’s Act as articulated in
its Preamble
[25]
; secondly,
the objectives of the Children’s Act, generally,
[26]
and the objectives of adoption, specifically
[27]
;
thirdly, a child’s right to ‘family life’
[28]
;
fourthly, the child’s right to appropriate alternative
care
[29]
; and fifthly, a
child’s right to have his or her best interests considered of
paramount importance, particularly insofar
as it deprives a child to
‘family life’ and leads to undue delay.
[30]
[33]
I am of the view that for the reasons stated the applications should
succeed.
Costs
[34]
Mr Courtenay informed this court that if the applicants are
successful they will no longer be
persisting with a costs order. An
order that each party pays its own costs would accordingly be
appropriate.
[35]
In all the circumstances I make the following orders:
In
the MPS matter:
1.
It is declared that the letter contemplated
in section 239(1)(d) of the Children’s Act 38 of 2005 includes
a letter not recommending
the adoption of the child.
2.
The letter of recommendation, whether it
recommends, does not recommend or is even absent, does not oust the
jurisdiction of the
Children’s Court to consider and adjudicate
upon an adoption application.
3.
The Children’s Court for the district
of Roodepoort is directed to hear the adoption application of the
minor child L.
4.
There is no order as to costs.
In the KHD matter:
1.
It is declared that the letter contemplated
in section 239(1)(d) of the Children’s Act 38 of 2005 includes
a letter not recommending
the adoption of the child.
2.
The letter of recommendation, whether it
recommends, does not recommend or is even absent, does not oust the
jurisdiction of the
Children’s Court to consider and adjudicate
upon an adoption application.
3.
The Children’s Court for the district
of Tembisa is directed to hear the adoption application of the minor
child J.
4.
There is no order as to costs.
RANCHOD
J
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of hearing:
01 February 2021
Date
of judgment:
17 June 2021
Appearances:
For First and Second
applicants in both matters:
Adv R Courtenay
Instructed by Centre for
Child Law
Room 4-31
University of Pretoria
Pretoria
For First to Third
Respondents in the KHD matter:
Adv T Masevhe
Instructed by State
Attorney
316 Thabo Sehume Street
Pretoria
For First to Third
Respondents in the MPS matter:
Adv M Gwala SC & Adv
Z Madlanga
Instructed by State
Attorney
316 Thabo Sehume Street
Pretoria.
[1]
239
Application for adoption order
(1)
An application for the adoption of a child must-
(a)
be made to a Children’s Court in
the prescribed manner;
(b)
be accompanied by a report, in the prescribed format, by an adoption
social worker
containing-
(i)
information on whether the child is adoptable as contemplated in
section
230(3);
(ii)
information on whether the adoption is in the best interests of the
child;
and
(iii)
prescribed medical information in relation to the child.
(c)
be accompanied by an assessment referred to in section 231(2)(
d)
;
(d)
be accompanied by a letter by the
provincial head of social development recommending the adoption of
the child
; and
(e)
contain such prescribed particulars. (My underlining.)
[2]
Founding
Affidavit, annexure “LE7”, 001-45, para 15-6.
[3]
Constitution
of the Republic of South Africa 1996.
[4]
Explanatory
paragraph at the beginning of the Children’s Act.
[5]
This
requirement has been held to be peremptory. See
JGB
and Another v The Presiding Officer, Children’s Court,
Wynberg, N.O. and 9 Others [2012] All SA 167 (WCC).
[6]
The
term “abandoned” in relation to a child means a child
who-
“
(a)
has obviously been deserted by the parent, guardian or care-giver;
or
(b)
has, for no apparent reason, had no contact with the parent,
guardian, or caregiver for
a period of at least three months”.
[7]
S39(2)
of the Constitution.
[8]
Phumelela
Gaming & Leisure Ltd v Grundlingh
[2006] ZACC 6
;
2007
(6) SA 350
(CC) at 26-7.
[9]
Ibid.
[10]
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motors Distributors
(Pty) Ltd v Smit N.O
[2000] ZACC 12
;
2001
(1) SA 545
(CC) (“
Hyundai
”)
at para 22-3.
[11]
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
[2008] ZACC 12
;
2009
(1) SA 337
(CC) at 46, 84 & 107.
[12]
See,
generally,
Cool
Ideas 1186 CC v Hubbard
2014
(8) BCLR 869
(CC) at 28.
[13]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
2 All SA 262
(SCA) at 24.
[14]
Ibid
at
18.
[15]
S
v M (Centre for Child Law Amicus Curiae)
2007
(12) BCLR 1312
(CC) at 83.
[16]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development
2009
(7) BCLR 637
(CC) at 84.
[17]
National
Adoption Coalition of South Africa v Head of Department of Social
Development, for the Province of KZN and 3 Others
2020 (4) SA 284
(KZD)
at
Order 4(b)(i).
[18]
Ibid
at 4(b)(ii).
[19]
The
court in
National
Adoption Coalition of South Africa
was
at pains to distinguish between relevant facts. The gist, as I see
it, of the judgment on this score is that the first respondent
is
not entitled to enquire, generally, as the court would, and to
‘decide’ the issue on this basis; rather it must
consider whether it has any further information omitted by the
accredited social worker that may impact on the accredited social
worker’s conclusions and/or recommendations.
[20]
Cf.
with
instances where no letter is received. See, generally,
In
re XN
and
JGB
supra
.
[21]
S240
of the Children’s Act sets out a list of factors that must be
considered. The letter mentioned in s239(1)(b) of the
Children’s
Act is not listed but, it seems, would logically form part of the
record of proceedings.
[22]
See,
generally,
In
re XN
and
JGN
supra
.
[23]
In
re XN
at
para 19.
[24]
See,
generally,
AD
and DD v DW and Others, The Centre for Child Law
(Amicus
Curiae)
and
The Department of Social Development (Intervening Party)2008 (4)
BCLR 359 (CC)
and,
particularly, para 34 where the Constitutional Court expressly said
that –
“
From
start to finish the forum most conducive to protecting the best
interests of the child
has
been the Children’s Court. Although the jurisdiction of the
High Court to hear the
application
for sole custody and sole guardianship had not been ousted as a
matter of
law,
this was not one of those very exceptional cases where by-passing
the Children’s
Court
procedure could have been justified. It follows that the question of
the best
interests
of Baby R in relation to adoption was one to be considered by the
High Court,
nor
at a later stage by the Supreme Court of Appeal, but a matter to be
evaluated by the
Children’s
Court. The question was not strictly one of the High Court’s
jurisdiction, but of
how
its jurisdiction should have been exercised.
”
[25]
The
most important of these purposes, being “
to
give effect to certain rights of children as contained in the
Constitution
”
and “
to
make new provisions for the adoption of children
”.
The latter purpose was necessary to remedy all the constitutional
defects contained in the Child Care Act. See, generally,
T
Mosikatsana & J Loffell ‘Adoption’ in T Davel and A
Skelton
Commentary
on the Children’s Act
RS
5 (2012) 15-2.
[26]
See,
generally, s2 of the Children’s Act.
[27]
The
aim of adoption law is to provide a permanent, secure and healthy
family life for children whose biological parents have died
or are
unable to provide them with the care and the affection they require.
See, in this regard,
Mosikatsana
& Loffel
op
cit n 100 at 15-2 and Children’s Act, s229.
[28]
The
correlation between the “to right to family life” and
adoption was articulated in
Du
Toit v Minister of Population Development
2002
(10) BCLR 1006
(CC) at para 18 as follows:
“
Recognition
of the fact that many children are not brought up by their
biological parents
is
embodied in section 28(1)(b) of our Constitution which guarantees a
child’s right to
‘
family
or parental care’. Family care includes by the extended family
of a child, which is
an
important feature of South African family life.
It
is clear from section 28(1)(b) that the
Constitution
recognizes that family life is important to the well-being of all
children.
Adoption
is a valuable way of affording children the benefits of family life
which might not
otherwise
be available to them.
”
On the importance of
“family life”, generally, see
C v Department of
Health and Social Development
2012 (4) BCLR 329
(CC) at para 30
where the Constitutional Court held that:
“
Children’s
rights, and the right to family life, bears tremendous importance in
a caring
constitutional
democracy.
It is for this
reason that:
‘
section
28 requires the law to make best efforts to avoid, where possible,
any
breakdown
of family life or parental care that may threaten to put children at
increased
risk. Similarly, in situations where rupture of the family becomes
inevitable,
the State is obliged to minimize
the consequent negative effect on
children
as far as it can.
’
In
Du Toit, this Court held that ‘[i]t is clear from section
28(1)(b) that the Constitution
recognizes
that family life is important to the well-being of all children’
and in S v M, it
emphasized
‘the importance- of maintaining the integrity of family
care.’.”.
[29]
See,
s28(1)(b) of the Constitution. Adoption is, moreover, an essential
component of South Africa’s formal child-care and
protection
system. A detailed discussion may be found in
Mosikatsana
& Loffel
op
cit n 100 at 15-2.
[30]
See,
in respect of delay,
National
Adoption Coalition of South Africa
paras
48 – 52 and
Herbst
v Presiding Officer of the Children’s Court, Johannesburg
(case
no. A3025/18) (unreported).