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[2008] ZAWCHC 196
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Flynn v Farr NO and Others (13967/2007) [2008] ZAWCHC 196 (12 May 2008)
REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 13967/2007
DATE: 12
MAY 2008
In the matter
between:
JOHANNA
WILHELMINA FLYNN
Applicant
and
LESLIE
WALTER FARR N.O.
1
st
Respondent
GERHARD
BRITS N.O.
2
nd
Respondent
THE MASTER
OF THE HIGH COURT
3
rd
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
4
th
Respondent
LESLIE
WALTER FARR
5
th
Respondent
SHEILA
BLANCHE LE COCK
6
th
Respondent
KENNETH
IVAN REED
7
th
Respondent
DESMOND
EDWARD REED
8th
Respondent
SHIRLEY
ANNE SECOND
9
th
Respondent
ROBERT
JOHN REED
10
th
Respondent
ELIZABETH
BELINDA REED
11th Respondent
LESLIE
JACK REED
12th Respondent
SYLVIA ANN
McCREADIE
13th
Respondent
ILENE
YVONNE ERASMUS
14
th
Respondent
TREVOR
EDWARD FARR
15th Respondent
DEIDRE
THERESE COETZEE
16
th
Respondent
CATHERINE
JANE LAW
17
tth
Respondent
BERNADETTE
MARIA BREACH 18
th
Respondent
JUDGMENT
[1] This is
an application brought by the
executrix
of
the estate of the late William Frederick Flynn ('Flynn") wherein
she seeks relief aimed at obtaining legal recognition of
the
relationship between Flynn and his stepfather, Edwin John Farr in the
context of the law of intestate succession.
[2] The
primary relief sought is either for an order declaring that the words
"adopted child" in
section 1(4)(e)
of the
Intestate
Succession Act 81 of 1987
be interpreted to include both
de
lege
adopted
children as well as
de
facto
adopted
children; alternatively, that a definition of adopted child which
reads as follows be inserted in
section 1(4)(e)
of the Act should
read as follows:
"Adopted
child shalf include both
de
facto
and
de
lege
adopted
children".
There
are further prayers (1) that the omissions in
section 1(4)(e)
of the
Act of that definition be declared to be unconstitutional and
invalid. (2) the Court declare Flynn to be the
de
facto
adopted
child of Farr and further, that Flynn be declared a descendant of
Farr for the purpose of
section 1
(1 )(b).
[3] A further
declaration is sought that Flynn (or Flynn's deceased estate) inherit
the intestate estate of Farr, that the first,
second and third
respondents give effect to the relief as sought.
[4] The
relief has been expressly opposed by the first respondent in his
capacity as executor of the intestate of the late Edward
John Farr
and by the fourth respondent ('the Minister').
The
factual background
[5] This case
has been made all the more difficult because of the poignant facts
which underpin the present application. Flynn was
the son of Mary
Elizabeth Farr. She divorced Flynn's biological father and in 1964,
when Flynn was 14 years old, she married Farr
in community of
property. There can be no doubt, from the evidence placed before this
Court
r
that Farr was part of Flynn's life from the time the little boy was
five years old. He was raised by his mother and Farr in a family
home
located in Plumstead, Cape Town. From all the evidence it appears
that Flynn enjoyed a fine relationship with Farr.
[6] Flynn
grew up to be one of the greatest actors who ever graced the South
African stage. Throughout his career, it appears
that Farr afforded
him the support and the affection which any father would have been
credited for so exhibiting. However, Fiynn
was never legally adopted
by Farr, ostensibly because Flynn's biological father would not grant
his consent for such adoption to
take place. Whatever the reason, a
legal process of adoption was never formally initiated nor in any
other way pursued.
[7] Flynn's
mother died intestate in 1999. Farr was appointed the executor of her
estate and assumed full responsibility for the
winding up thereof.
Her estate, with Farr as executor, was wound up exclusively in favour
of Farr
r
notwithstanding provisions in the Act affording part of the estate to
Flynn. Farr died intestate in 2006. In terms of the Act,
Flynn was
not a descendant and therefore was not entitled to inherit from the
estate of Farr.
[8] Flynn
himself died suddenly in 2007, at a time when it was common cause
that he was in the process of giving instructions to
his attorneys to
bring an application to have his rights to the estate of Farr legally
recognised. The present application is being
brought by his executor
on behalf of his deceased estate.
The legal
framework
:
Adoption
[9] The Act
regulating adoptions from the time Flynn's mother was married to Farr
until approximately the time when Flynn attained
the age of majority
is to be found in the Children's Act, VII of 1966 ("the 1960
Children's Act"). Chapter 7 of the Children's
Act regulated
adoptions at the time. Adoptions had to be effected by the order of
the Children's Court in the district in which
the child resided, upon
appfication of the adoptive parents. Section 71(2} of the 1960
Childrens Act contained a number of peremptory
requirements,
including (1) consent to the adoption to be given by both parents;
(2) if one parent had deserted the child, by the
other parent; (3)
the child, if over the age of 10 years, consented to the adoption.
The consent had to be in writing and signed
in the presence of the
Commissioner of Child Welfare (section 71(3) of the 1960 Childrens
Act).
[10] Section
72 of the 1960 Childrens Act provided that such consent may dispensed
with in an application for adoption, where a
child had been deserted
a parent was deemed to have deserted the child whom he was legally
liable to maintain and has, while able
to do so
r
failed to provide him or her with adequate food, clothing, lodging
and medical care.
[11] In terms
of section 72(2) of the 1960 Childrens Act, where application was
made for an adoption of a child of a parent who
has deserted such
child, the Court shall not grant the application, unless if the place
of residence or address of the parent was
known to the Court such
parent has been given reasonable opportunity to oppose the
application.
Succession
law
[12] So much
for the framework of adoption which is relevant to the dispute. I
turn now to the law of intestate succession. The
South African law of
intestate succession was based on the political ordinance of 1 April
1580, the Interpretation Ordinance of
13 May 1594 and a
piacaat
of
18 December 1599 which enactments were decreed to be in force in the
Cape by a charter granted by the Estates General of the
Netherlands
on 10 January 1661, as confirmed by the Governor in Council on 19
June 1714.
[13] A right
of succession was conferred on the intestacy on the blood relations
of a deceased person but none on a surviving spouse.
However, as
marriage in community of property was the universal rule, such spouse
ipso
facto
took
haFf of the joint estate. The Succession Act 13 of 1934 was passed to
protect the rights of spouses married out of community
of property.
In terms thereof, the surviving spouse, whether married in or out of
community of property, was granted a right to
a share in the
intestate estate of the deceased's spouse.
[14] This Act
was expanded upon and then repealed by the current Act which came
into operation on 18 March 1988 (see Proclamation
42 of Government
Gazette 11188 of 18 March 1988). Under section 74(2) of the 1960
Childrens Act, prior to its partial repeal by
the Child Care Act,
provision was made that an adopted child shall, for all purposes be,
deemed in law to be the legitimate child
of the adoptive parent and
shall not, by virtue of the adoption, become entitled to any property
devolving on any child or his
adoptive parent by virtue of any
instrument executed prior to the date of the order of adoption.
Whether the adoption takes place
inter
vivos
or
mortis
causa,
unless
the instrument clearly conveyed the intention that property shall
devolve upon the adopted child, nor shall the adopted child
inherit
any property by way of intestacy from any relative of his or her
adoptive parent.
[15]
Subsection (3) provides that an order of adoption shall terminate all
the rights and legal responsibilities which may exist
between the
child and his or her natural parents and their relatives, save for
the right of the child to inherit from them by way
of intestacy.
The
categories of intestate heirs as provided in the Act can be
summarised thus:
Surviving
spouse in the absence of any descendant, inherits everything.
The
descendant who, in the absence of a spouse, inherits everything.
For the
surviving spouse to inherit the share of a single child, subject to
a minimum if there is too little in the estate, if
the deceased is
survived by both the surviving spouses and descendants.
Parents who
only inherit in the absence of the spouse or descendant and in the
absence of any one parent, the descendants of that
deceased parent
will inherit his or her share.
In the
absence of a spouse, descendant or parent, descendants of the
deceased's mother who are related to the deceased through
her only,
as well as by descendants of the deceased's father who are related
to the deceased, through him only or through both.
In the
absence of a spouse, descendant, parent or descendant of a parent,
the other blood relation or blood relations of the deceased
who are
related to him or her nearest in degree.
From this
list, it is clear that, although not so defined, a descendant is for
all intents and purposes "a child of the deceased"
and in
terms of section 1(4)(e), this includes an adopted child who, by
virtue of the deeming provision, is deemed to be a descendant
of his
or her adoptive parent or parents and not to be a descendant of his
or her natural parent or parents, save in the case of
a natural
parent who is also the adoptive parent of the child or was at the
time of the adoption married to the adoptive parent
of the child.
[16] Section
1(5) of the Act provides that, if an adopted child is deemed to be a
descendant of his or her adoptive parent or is
deemed not to be a
descendant of his or her natural parent, the adoptive parent
concerned shall be deemed to be an ancestor of
the child or shall be
deemed not to be an ancestor of the child as the case may be. Viewed
thus, the effect of section 1(4){e)
read together with section 1(5)
of the Act is that a child may not be a descendant of his or her
adoptive parents as well as his
or her natural parents and that in
turn both the adoptive and natural parents will not be regarded as
ancestors to the child. A
reciprocity exists between the parent and
the chifd in respect of the relationship on intestacy.
The
applicant's case
[17]
It is clear from this analysis that Flynn would stand to inherit by
way of intestacy from the estate of the late Edward Farr
if he was
regarded as Farr's adopted child. Mr
Hopkins
,
who appeared on behalf of the applicant, correctly noted that, as the
law stands at present, a person is only regarded as the
adopted child
of a parent where that parent has legally adopted the child. As Flynn
was never legally adopted by Farr, notwithstanding
the fact that Farr
may well have regarded him as his child and that he took him into his
home, looked after him, raised him and
treated him at all times as
his own child.
[18] Mr
Hopkins
defined the two key issues with which the Court needs to deal as
follows:
1. A legal
question: Does the law of intestate succession which differentiates
between a
de
facto
and
a de
lege
facto
adopted
child need to be reformed so as to bring it in line with what Mr
Hopkins
described as constitutional values, more generally and section 9 of
the Republic of South Africa Constitution, Act 108 of 1996
{"the
Constitution") in particular.
2. A factual
question: Assuming that the law should treat factually and legally
adopted children in the same way, then was Flynn
factually adopted by
Farr?
The legal
question
[19] I turn
now to deal with the legal question, a positive determination for
applicant which rs crucial to his case. The legal
issues can be
defined thus:
1. Are the
words "adopted child" as employed in section 4(e) of the
Act broad enough to include what Mr
Hopkins
categorised as
de
facto
and
de
lege
adoptions?
2. If the
words "adopted child" as they are used in the Act are
intended to refer only to legal adoptions
{de
lege)
and
not to factual adoptions
(de
facto)
does
such a distinction render the provisions in the Act inconsistent with
the equality protection as enshrined in section 9 of
the Constitution
which provides,
inter
aiia,
that
everyone is equal before the law and that the law may not unfairly
discriminate against any person.
[20] Mr
Hopkins
referred to section 20 of Act 74 of 1983 which deals with the effect
of a legal adoption obtained by a Court order. Section 20{2)
of that
Act provides thus:
"An
adopted child shall for all purposes whatever(sic) be deemed in law
to be the legitimate child of the adoptive parent as
if he was borne
of that parent during the existence of a lawful marriage".
In Mr
Hopkins
1
view, on the basis of existing law, had Farr legally adopted FJynn
and obtained a Court order to that effect, Flynn, for all purposes,
would have been regarded as a descendant of Farr. That would have
meant that as his descendant, Flynn would have inherited from
the
estate of the late Farr by way of intestacy. That conclusion is
reached by virtue of the provisions of the
Act, together
with the provisions of Act 74 of 1983 as I have set them out.
[21] The
problem is that since the late Farr did not legally adopt Flynn, he
cannot be regarded as a descendant for the purposes
of intestate
succession. To that end he submitted that the current interpretation
of an adopted child as that term is employed
in the Act
differentiates and/or discriminates between the factually adopted
child who receives nothing and the legally adopted
child who does
inherit by way of intestacy. The question, as Mr
Hopkins
defined it, is whether this discrimination is inconsistent with the
Constitution. It is to this constitutional challenge that I
must now
turn.
The
eoualitv position
[22]
The legal issue to be addressed is whether it can be said to be
unconstitutional to discriminate between children who are factually
adopted and those that are legally adopted. To the extent that it is
relevant, section 9 of the Constitution provides thus:
1. Everyone
is equal before the law and has the right to equal protection benefit
of the law.
2. Equality
includes the full and equal enjoyment of all rights and freedoms.
3. The state
may not unfairly discriminate directly or indirectly against anyone
on one or more grounds, incfuding race, gender,
sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief,
culture, language and
birth.
4. No person
may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3).
5. Discrimination
on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination
is fair".
[23] Section
9 has been the subject of a number of Constitutional Court judgments
in which the Court has developed and refined the
jurisprudence of
equality. For the purposes of this dispute, reference must be made to
the decision in
Harksen
v Lane N.Q.
1998(1) SA 300 (CC) at para 53 where the Court set out a series of
stages for the constitutional enquiry, as to whether a law or
conduct
which is challenged, breaches the equality protection:
Does
the challenged law or conduct differentiate between
people or categories of people? If so, does the differentiation
bear a rational connection to a legitimate purpose? If it does not,
then there is a violation of section 9(1). What this really
means
is: is there a good reason for treating X differently to Y?
2. Does the
differentiation amount to discrimination that can be regarded as
unfair? This requires a two-stage analysis:
(a) Does the
differentiation amount to discrimination? If the discrimination
happens on the basis of a ground listed in section
9{3) it is
presumed to be discrimination. If one of the fisted grounds is not
so implicated, then whether or not it is discrimination
depends on
whether objectively viewed, the differentiation is based on
attributes and characteristics that have the potential
to impair the
fundamental human dignity of a person who has been treated
differently;
(b)
if the differentiation amounts to discrimination, the next question
asked is whether or not the discrimination is unfair.
If the
discrimination occurs on a ground listed in subsection (3),
unfairness is presumed. If it occurs on a ground that has
not been
so listed, unfairness can still be established by examining the
impact of the discrimination on the person affected
by the law or
conduct.
[24]
Applicant's invocation of the equality clause can be summarised
thus: Current law treats de
facto
and
de
lege
adopted
children differently. Therefore the question must be asked: does the
differentiation of the treatment of these children
amount to
discrimination? Manifestly it cannot be presumed that this
differentiation amounts to discrimination, because it is
not
predicated on a ground listed in subsection (3). Critically the
issue is whether the differentiation may be said to unreasonably
impair the human dignity of that person affected by this
differentiation.
[25]
According to Mr
Hopkins
,
the evidence indicated that Flynn suffered adverse feelings that
support this particular conclusion, as a clear consequence
of the
law failing to recognise that Farr was his father. In this
connection the following letter of Flynn to his attorney
is
instructive:
"A few
days ago my dad's lawyer (Farr) has informed of the very distressing
news - due to my dad's own intestacy, the law
dictates that he and
mom's combined estate, including our family home and everything in
it (all valued around three to four million
rand) will automatically
be passed on to his nearest surviving relatives - namely his elder
brother and younger sister, their
offspring, as well as the
offspring of his deceased brothers and sisters, of which there are
dozens. According to these lawyers
who handled various affairs for
my dad over the years, as a stepson who was never legally adopted I
have no rights or say in
the matter whatsoever - something my dad
and I were totally unaware of. Had he known this I have no doubt
that he would have
immediately created a will - however brief it
might have been. When my mom died without a will he appointed
himself as executor
and handled the entire matter himself at the age
of 73, opening a can of worms process which took him years to
complete - and
it took his toll on his health and his wellbeing.
He vowed to
me and his lawyers that he would make a will - so that I would be
spared having to go through a similar
process.
Unfortunately
throughout
his fife my dad was a great "putter-off" of things - and
so it transpired that his ill-health caught up with
him and he died
rather suddenly -and intestate.
I
now find myself in the very painful situation of having to accept
that the 50 years he and my mom and I spent together as a
very
close-knit family have been simply wiped out as though those years
and that very specific relationship between us never
existed. I am
being most sincere when I say that I am not speaking about any money
I or my son or my mom's side of the family
may have inherited - I
would trade ten times that amount just to have them both stilf alive
and with us. My outrage and dismay
is aimed at the law which decrees
that any verbal post-life issues my parents had - and there were
several - not only to do with
my son and I but with various
charities of church and my mom's sister and her family who have been
struggling financially for
years. These wishes of my parents have
now been consigned to the scrap heap by a law which in situations
like these should be
flexible and open to interpretation - if the
facts and history of the family concerned warrant it - as I believe
they do".
[26] Even if
this kind of evidence is sufficiently supportive of a conclusion
that the legal treatment of Flynn impacted upon
his dignity, that is
not the end of the enquiry. The second question that has to be asked
is whether, on the assumption that
the differentiation is
discrimination, it is fair discrimination that ought to be accepted
by this Court, or whether it is unfair
discrimination which no court
can sanction. Unfair discrimination is clearly unconstitutional and
accordingly unlawful. The fairness
of the discrimination primarily
focuses on the impact that the discrimination may have on the
affected person. According to Mr
Hopkins
,
based on the kind of evidence of which I have cited, Flynn was
adversely affected by the discrimination in a manner which impacted
harshly, onerously and unfairly on him.
[27] Mr
Hopkins
submitted that, in regard to differentiation, a state operating in a
constitutional democracy is expected to act in a rational
manner. It
should not regulate the lives of its citizens in an arbitrary manner
or exhibit manifest "naked preferences"
that can serve no
legitimate purpose. Such conduct would be inconsistent with the
rule of law and the very fundamental premises
upon which a
constitutional state is predicated. A significant purpose of the
equality clause was to ensure that the state was
bound to function
in a rational manner. Accordingly, it could not be said that mere
differentiation infringes the equality clause
in the Constitution.
But where there was no rational relationship between the
differentiation in question and any purpose proclaimed
by government
to validate the action, such differentiation would unquestionably
infringe the protections afforded by the equality
clause.
[28] The
question which now must be asked and which was critical to this case
was the following: is there a rational reason for
only allowing de
lege
adopted
children to inherit and not extending the same benefits to
de
facto
adopted
children? In this connection Mr
Hopkins
referred to the decision of the Constitutional Court in
Daniels
v Campbell N.O. Others
2004(5) SA 331 (CC) which also dealt with section 1 the Act.
[29] In
terms of section 1(a) of the Act, where a person dies intestate but
is survived by a spouse, such spouse shall inherit
the intestate
estate. The courts have traditionally regarded "a spouse"
to mean someone to whom one is legally married.
The law for a long
was recognized that marriage is only legally valid if it is a
monogamous union. Potentially polygamous unions,
such as Muslim
marriages and those which may have been conducted under African
customary law, because they are potentially polygamous,
have not
been regarded as legal marriages. For this reason spouses in these
"non-recognised" unions were not regarded
as spouses for
the purpose of intestate succession.
[30] In
Daniels
,
supra,
the
applicant could not inherit from the estate of her late husband
because she married him in terms of Muslim law and was therefore
not
in law regarded as a spouse. When the matter came before the High
Court, it found the provision to be unconstitutional on
the basis
that it violated section 9 of the Constitution: that is the
interpretation of the word "spouse" in this narrow
manner.
The High Court then made the following order:
"1. The
omission in
section 1
of the
Intestate Succession Act of 1987
of the
following definition is declared to be unconstitutional and invalid
"spouse shall include a husband or wife married
in accordance
with the Muslim rights in a
de
facto
monogamous
union".
2.
Section 1
of the
Intestate Succession Act 81 of 1987
is to be read as though
it included the following paragraph:
"Spouse
shall include a husband or wife married in accordance with Muslim
rights in a de
facto
monogamous
union.
1
'
That
decision was taken on appeal to the Constitutional Court. When the
matter was decided,
Sachs.
J
,
on behalf of the Court, held that the word "spouse" in its
ordinary meaning includes parties to a Muslim marriage.
Such a
reading is not linguistically strained. On the contrary,
Sachs,
J
held that it corresponded with the way that the word was generally
understood and employed. Linguistically it was far more awkward
to
exclude parties to a Muslim marriage from the word "spouse"
than to include them. Both in intent and in impact the
restrictive
interpretation of the word "spouse" was discriminatory and
such discriminatory interpretation was deeply
injurious to those who
were negatively affected by them.
[31] Judge
Sachs
then went on to formulate the central question in cases such as
Daniels
,
not as whether the wife was lawfully married to the deceased, but
rather whether the protection that the Act intended for wives
should
be withheld from a relationship such as the one in the case.
Expressed differently, Judge
Sachs
framed the question thus: it is not whether it had been open to the
applicant to solemnise a marriage under the Marriage Act,
but
whether in terms of common sense and justice and the values of the
Constitution, the objectives of the legislation would
best be
furthered by including or excluding her from the protection so
provided.
[32] Judge
Sachs
concluded that it would be correct, in such a case, to include women
married in terms of Muslim rights within the definition
of "a
spouse". Not only would this be a fair and just conclusion but
it would accord with the common linguistic interpretation
of the
word "spouse".
[33] Applied
to the present case, Mr
Hopkins
submitted that this approach meant that it was competent for this
Court to adopt a similar approach to the word 'adopted' so
as to
include not only legally adopted but factually adopted children. No
good reason existed in his view for excluding
de
facto
adopted
children from the benefits conferred upon other children in terms of
the Act. Further, the purpose of section 4(e) of
the Act was to
ensure that all adopted children inherited from an intestate estate
of their deceased parents.
[34] The
facts, as gleaned from the affidavits deposed in this case,
indicated that Flynn was a person who was intended to be
covered by
these provisions. The law had unfairly discriminated against him
because it did not allow him the same benefits as
would have been
the case had he been legally adopted.
Respondents
case
[35]
Both Mr
Kirkpatrick
on behalf of the first and second respondents, and Ms
Bawa
who appeared together with Ms
Mavosi
for the fourth respondent, contended that the legislature's purpose
in so differentiating between biologically adopted children
on the
one hand and stepchildren on the other is neither arbitrary nor
irrational. In short, their argument was that, while Flynn
may well
have been a stepchild, he was not an adopted child and that the
distinction which was maintained in the law could not
be set aside
on the grounds of caprice, arbitrariness or irrationality. In their
view, the purpose of the differentiation which
was attacked by Mr
Hopkins
was directed at bringing certainty and predictability to the law of
intestate succession.
[36] By
limiting the definition of a child in the Act, multiple difficulties
which may have given rise to uncertainty were avoided
such as:
1. What
would the minimum length of time be during which the person
concerned would have acted as a step-parent.
2. Would all
the stepchildren have rights upon intestacy of the step-parent.
3. What
wouid the position be where a child's natural parents had multiple
marriages.
4. Would a
stepchild retain entitlement to claim under the intestacy of his
nature substitute parent. If so this would then allow
for multiple
rights of inheritance known as "double dipping" with
clearly unsatisfactory consequences.
Within the
context of these problems, the Supreme Court of British Columbia in
McCrea
v Barrett
et
al
(2004)
BCLR (4
th
)
103 rejected a similar challenge. In justifying its conclusion, the
Court said the following:
"Can it
be said that failure of the Act to recognise
de
facto
adoptees
violates a central human dignity and freedom through the imposition
of disadvantaged, stereotyping or political or social
prejudice?
Does the Act, in purpose or effect, threaten s15(1)s purpose of
ensuring laws which conform to a society in which
all person enjoy
equal recognition as human beings or as members of Canadian society,
equally capable and equally deserving of
concern, respect of
consideration? Does the law in purpose or effect perpetuate the view
that de
facto
adoptees
are Jess capable or iess worthy of recognition or value as human
beings or as members of Canadian society?
It is clear
that the Child Welfare Act does not stereotype, devalue or oppress
de
facto
adoptees
in purpose or effect in a manner which conflicts with the
fundamental purpose of s15{1).
There is
nothing pejorative about such terms as adopted or chosen or de
facto
in
common parlance. Certainly not in the sense of requiring
constitutional protection against historical or current
disadvantage,
stereotyping, political or social prejudice. As
indicated above, there may have been in the past a stigma or
disadvantage respecting
people born out of wedlock or children of
divorce, but any such still present finds little public acceptance.
Indeed, education
and laws such as those heretofore referred have
eradicated or reduced the status for its adverse effects in most
instances.
But
even if one can postulate a theory of disadvantage for persons not
adopted, can the disadvantage be attributed to the failure
of the
Child Welfare Act to treat
de
facto
adoptees
in the same way as
de
iure
adoptees?
Indeed,
if the respondent has suffered a disadvantage by virtue of being a
non-adopted person, surely the cause lies not with
the Child Welfare
Act but with the failure of Julia Gregory to adopt the respondent by
availing herself of the provisions of
the legislation.
It
is not necessary in order to find conflict between the impugned
legislation and the purpose of the s15(1) for there to exist
daily,
endemic or palpable discrimination; or that there must be a large
class of individuals affected before a breach is legitimate.
Here,
however, there is difficulty finding any conflict between the Act
and the dignity concerns of non-adoptees as required
in
Law
v Canada's
...statement
of the purpose of s15{1). It follows that the respondent fails part
two of the tripartite test in
Law
v Canada
(supra)
for
establishing protection under analogous ground. Not only do
de
facto
adoptees
not suffer the kind of societal prejudice or differential treatment
contemplated by such phrases as "stereotypical
application of a
presumed group or personal characteristics" or "the view
that the individual is less capable or less
worthy of recognition or
value as a human beings" but it is noted that the very purpose
of the Child Welfare Act in its
deeming provisions is ameliorative",
(at paras 53-57)
[37] The
similar argument that was put up by respondents was the fact that
the Act did not grant a stepchild a right to inherit
upon intestacy
of a step-parent and was thus neither unreasonable nor
unjustifiable. In addition, a person always had the option
of
adopting the step-child should he or she so desire. Section 17(d) of
the Child Care Act specifically provides that a child
may be adopted
"by a married person whose spouse is the parent of the child".
Section 231{1}(c) of the 1960 Childrens
Act provided that a child
may be adopted "by a married person whose spouse is the parent
of a child or by a person whose
permanent life partner is the parent
of a child".
[38]
Furthermore, the legislation specifically provided that the consent
of the other biological parent to the adoption which
would
ordinarily be required could be dispensed with under certain
circumstances. Section 19(b)(iv) of the Child Care Act provided
that
such consent may be dispensed with from any parent "who is
withholding his consent unreasonably". Furthermore,
the
step-parent was able to bestow benefits upon a stepchild by making a
suitable will.
[39] The
approach articulated by the respondents finds analogous support in
the approach adopted by the majority of the Constitutional
Court in
Volks
NO. v Robinson & Others
2005(5) BCLR 446 (CC). Because this case is important in the present
dispute, the facts require some description. The proceedings
had
been initiated by Mrs Robinson who had been a partner in a permanent
life partnership with Mr Shandling from 1985 until his
death in
2001. The couple had not been married, although there was no legat
obstacle to their marriage. Following the death of
Shandling,
Robinson submitted a claim for maintenance against the deceased
estate. The executor of the estate, Volks, rejected
her claim
because she was not "a survivor
1
'
as contemplated by the Act.
[40]
Robinson applied to the Court for an order declaring that she was
entitled to lodge a claim for maintenance in the estate,
alternatively declaring that the Act was unconstitutional and
invalid and this unconstitutionality should be cured by a directive
that section 1 thereof be read as if certain provisions and
definitions were included in it. In particular, she contended its
provisions needed to be read as though "survivor" were
intended to include 'the surviving partner of the life partnership",
that "spouse" for the purpose of the Act should be read to
include a person in a permanent life partnership, that "marriage"
for the purpose of the Act should be read to include a permanent
life partnership and that the omission of the necessary words
in the
definition of these particular words should be declared
unconstitutional and invalid.
[41] Of
relevance to the present dispute is the majority finding of
Skweviva,
J
who upheld the appeal and thus found the existing provisions to
be constitutional. In this connection the learned
Judge
said thus at paras 55-56: "Mrs Robinson never married the late
Mr Shandling. There is a fundamental difference between
her
position and spouses or survivors who were predeceased
by their husbands. Her relationship with Mr Shandling
is one in
which each is free to continue or not and from which each is free to
withdraw at will without obligation and without
legal or other
formalities.
There
are a wide range of legal privileges and obligations that are
triggered by the contract of marriage. In a marriage, the
spouse's
rights are largely fixed by law and not by agreement, unlike in the
case of parties who cohabit without being married.
The distinction
between married and unmarried people cannot be said to be unfair
when considered in the larger context of the
rights and obligations
uniquely attached to marriage. While there is a reciprocal duty of
support between married persons, no
duty of support arises by
operation of law in the case of unmarried cohabitants. The
maintenance benefit of section 2(1) of the
Act falls within the
scope of the maintenance support obligation attached to marriage.
The Act applies to persons in respect
of whom the deceased person
(spouse) would have remained legally liable for maintenance by
operation of law had he or she not
died".
Turning to
the argument that Mrs Robinson's dignity had been infringed by the
allegation of differentiation and hence that discrimination
was
present,
Skweviva,
J
concluded:
"I do
not agree that the right to dignity has been infringed. Mrs Robinson
has not been told that her dignity is worth less
than that of
someone who is married. She is simply told that there is a
fundamental difference between her relationship and a
marriage
relationship in relation to maintenance. It is that people in a
marriage are obliged to maintain each other by operation
of law and
without further agreement or formalities. People in the class of
relationships to which she belongs are not in that
position. In the
circumstances, it is not appropriate that an obligation that did not
exist before death be posthumously imposed",
(para 62)
[42] In
Daniels
,
on which judgment Mr
Hopkins
so heavily relied, the central question was whether the applicant
who married her now deceased husband by Muslim rights, should
be
treated as a "spouse" for the purposes of the
Intestate
Succession Act.
Sachs
,
J
expressed the problem as follows:
"The
central question is not whether the applicant was lawfully married
to the deceased but whether the protection which
the Act intended
widows to enjoy should be withheld from relationships such as hers.
Put another way, it is not whether it had
been open to the applicant
to solemnise her marriage under the Marriage Act, but whether in
terms of 'common sense and justice'
and the values of our
Constitution, the objectives of the Act would best be furthered by
including or excluding her from the
protection provided. The answer,
as in
Amod
,
must be in favour of the interpretation which is consistent with the
ordinary meaning of the word 'spouse' aligns itself with
the spirit
of the Constitution and furthers the objectives of the Act.
It is
important to underline the limited effect of such an inclusive
interpretation. As in
Amod
it eliminates a discriminatory application of particular statutes
without implying a general recognition of the consequences
of Muslim
marriages for other purposes. Accordingly, the recognition which it
accords to the dignity and status of Muslim marriages
for a
particular statutory purpose does not have any implications for the
wider question of what legislative processes must be
followed before
aspects of the s
hariah
may be recognised as an enforceable source under South African
law'
1
,
(paras 25-26)
[43] In
Daniels
,
the parties were "married in terms of the legal system".
The failure to employ the ordinary meaning of spouse emanated
from a
linguistically strained use of the word flowing from a culturally
and racially hegemonic appropriation the need (see
Daniels
at para 19). This present a significant distinction from the case of
Flynn, who was a stepchild of Farr but where the latter
could, but
did not, institute Eegai proceedings to adopt him. In this sense,
the underlying premises of the majority judgment
in
Robinson
are far closer to this dispute than is the factual matrix set out by
Sachs.
J
in
Daniels,
supra.
.
[44] Mr
Hopkins
,
in his well researched argument, referred to a case which had been
heard in the High Court of American Samoa
Estate
of Tuinanau Fuinaono (deceased)
which was heard on 10 November 19992. The headnote to the report of
this case reads:
"An
equitable virtual or de
facto
adoption
for inheritance purposes exists when a descendant performs
parental duties towards a child in his household and
that child
performs filial obligations
in
return
exactly
equivalent to a formally adopted child.
The facts of
the case here. Ato was the deceased's de
facto
son.
The deceased never legally adopted him. The deceased was married to
Ato's biological mother. Ato was 46 years old. From his
early
childhood until the death of the deceased, he was nurtured, reared
by and lived with both mother and the deceased. They
constituted a
coherent family unit. Ato was the deceased's de
facto
son
and the deceased publicly acknowledged Ato as his child. There were
legal documents which gave recognition to this fact, including
those
where the deceased exercised parental power in respect of Ato. There
were also other indications that gave recognition
to the practical
day to day "father and son" relationship that existed
between the two.
The High
Court of American Samoa found that an equitable adoption exists when
a child has 'stood from an age of tender years in
the position
exactly equivalent to a formally adopted child'. The Court went on
to find, from the evidence as set out, that,
in its view, there was
more than sufficient evidence to infer that the deceased intended
Ato to become his son. The fact that
he never actually went as far
as to legally adopt Ato was of no consequence to the inheritance by
Ato of the estate from his
late father by way of intestacy.
[45] Mr
Hopkins
submitted that the significance of this decision was obvious. Not
only were the facts similar to that of the present case, but
the
approach adopted by the Court was premised on the logic that had
been postulated by applicant in this case. In his view,
if ever
there was a case which demanded of a Court that it consider foreign
faw within the enquiry mandated by section 39(1 )(c)
of the
Constitution, this was such a case. This is, of course, a related
argument: should a court interpret the equality guarantee
in the
light of this foreign law. That in turn compels an examination of
the evidence and the concomitant need for such an approach.
Evaluation
[46] I
accept that Flynn regarded Farr as his father. As he concluded, in a
lengthy letter to his attorney, on 18 May 2007:
"If all
that I said does not bear testimony to the fact that Edward was my
father and that he regarded Ryan and I as his
heirs, then nothing
ever will".
However,
the question remains as to whether the alleged differentiation has a
rational purpose.
In her
affidavit, Ms Maria Mebetoa, the chief director of the National
Department of Social Development ("DSD") provides
a number
of compelling reasons for the insistence upon a process of legal
adoption:
[A]
System of factual adoptions is not reconcilable
with keeping track of all adoptions, and
secondly by its
very nature there would be no record or information in the public
domain of such adoptions and it would not be
conducive to a system
of information recordal which, should a child wish in later life to
find out who they are and where they
came from, the DSD would not be
able to assist... Of primary concern to the DSD is the lack of
regulation of the category
of "de
facto"
adopted
children in circumstances, where rights and obligations
flow from such a relationship in a manner sought by
Applicant.
The
DSD is alive to the reality that in the South African context, the
HIV-Aids pandemic has resulted in an increase of the number
of
children being raised outside the traditional family nucleus and who
are in the care of family members, or even concerned
community
members without any forma! legal adoption process having been
followed. This has been exacerbated by increasing drug
use among
parents, teen pregnancy, divorce, the rapid rise of single parent
households, mental and physical illnesses, crime,
child abuse and
neglect and incarceration being but a few of the most common
explanations.
In
some contexts there is an intention to adopt the children but no
steps are taken to actually do so. In others, children are
absorbed
into households simply because they need care and protection and
there is no intention that they be adopted. In customary
law
circumstances there may well be instances where a family may take in
a child with not intention to adopt, e.g. if a brother
passes away
and leaves behind children, those children often are take in to a
surviving brother's household without him ever
intending that they
become his children through official adoption. In addition, an
increasing number of grandparents raising
their young grandchildren
because the children's parents are ill, disabled, imprisoned or
otherwise unable to care for them".
[47] Ms
Mabetoa points to other factors which justifies the present legal
dispensation. For example, inter-country adoptions,
both inward and
outward, require to be monitored. There would be "increasing
difficult in ensuring that children are protected,
especially from
drug and child trafficking, were his to be extended to categories of
factually adopted children across the border
whereas the legal
adoption within the statutory framework provides certainty to the
child and provides proof that the child is
indeed yours on adoption.
She then
continues:
"Another
consequence of adoption is the determination of a reciprocal
relationship between the child and biological parent's
rights and
obligations. The Children's Act also contemplates 'open adoptions'
and the biological parent may still have some contact
with the child
through an access agreement hereby encouraging legal adoptions to
take place with due regard to any relationship
with a biological
parent. To do so in the absence of a legal adoption would place the
adoptive parents in a precarious legal
position and may result in
them being discouraged from adopting a child in the first instance.
It would also not result in the
termination of the legal
relationship between parent and child when it comes to matters where
consent is required by a parent".
[48] On the
evidence, there is no sustainable legal basis by which to conclude
that Mrs Robinson's dignity, in that case, was
offended any less
than that of Flynn. Therefore, the central holding of
Robinson
,
supra,
must
be applicable to the present dispute. Regarding the point of the
relationship between a biological parent and adoptive parent
where
the child is factually adopted, the papers in the present case do
reveal some, even if it is rare, contact between Flynn
and his
biological father.
[49] In my
view, on the papers which form the basis of the application,
particularly the DSD affidavit to which I have made copious
reference, there is justification for the present legal dispensation
which is manifestly rational and connected to a legitimate
purpose.
If this conclusion then leads to a residual enquiry as to whether
form discrimination can still be found, the rationality
of the
measure notwithstanding, one is forced to examine the implications
of the
Robinson
case.
[50] I am
not insensitive to the sadness of this particular case.
Unquestionably, the three central parties in this dispute lived
happily together but hard cases make bad law and that must surely be
the case in a constitutional dispute where, as in the present
case,
the implications go further than simply an individual dispute based
upon the present legal dispensation.
[51]
Mr
Hopkins
was able to find the case of the High Court of American Samoa to
content that there is some precedent in favour of his line of
argument, but there is also the compelling precedent from British
Columbia which goes the other way. Even were one inclined,
therefore, to take more seriousiy the American Samoa case, for
reasons which were never advanced cogently, the evidence as put
up
to justify any differentiation that is shown to exist, is sufficient
to justify the conclusion that section 9 of the Constitution
cannot
be applied in this case. Once the Iega( question is determined
against the applicant, there is no necessity to examine
the factual
questions.
[52] I do
not consider that in this case, any costs order would be appropriate
Accordingly the application is dismissed with no
award as to costs.
DAVIS,
J