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[1998] ZACC 13
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Fraser v Naude and Another (CCT14/98) [1998] ZACC 13; 1999 (1) SA 1; 1998 (11) BCLR 1357 (23 September 1998)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 14/98
LAWRIE JOHN FRASER Applicant
versus
ADRIANA PETRONELLA NAUDE First
Respondent
THE ADOPTIVE PARENTS Second Respondents
Decided on : 23 September
1998
JUDGMENT
CHASKALSON P:
[1] This case concerns a little boy whose parents never married. Mr Fraser,
the father of the child, has applied to this Court for
special leave to appeal
against a decision of the Supreme Court of Appeal, alternatively for direct
access to this Court. It is
not necessary to set out the details of the long
history of this matter. That is done in the judgments of the Supreme Court of
Appeal
[1]
and other reported judgments
dealing with this matter.
[2]
For the
present purposes it is sufficient to say the following. Mr Fraser wanted to
have contact with his child and to retain his
status as a parent in the face of
proceedings for the child to be placed by the mother for adoption. The law as
it then stood was
against him. As the unmarried father of a child, his consent
to the adoption was not required. Ms Naude, the mother of the child
and the
first respondent in these proceedings, was the only person recognised by the law
as having that right. If she consented,
the adoption could proceed. If she
withheld her consent, and did not act unreasonably in doing so, the adoption was
not permissible.
[2] The proceedings for the adoption of the child were brought by the
adoptive parents, who are the second respondents in this matter.
The adoption
application was dealt with in the Children’s Court in Pretoria North. Mr
Fraser sought to intervene in the proceedings
in order to oppose the adoption.
He also applied to adopt the child himself. Ms Naude refused her consent to his
application.
The refusal of consent was not found to be unreasonable. Mr
Fraser’s application was accordingly dismissed. Ms Naude gave
her consent
to the application made by the adoptive parents, which was then considered by
the Children’s Court and granted.
Implicit in that decision was a finding
that the adoptive parents were of good repute, that they were fit and proper
persons to
be entrusted with the custody of the child, and that the adoption
would serve the interests and welfare of the
child.
[3]
Since birth the child has
been brought up by the adoptive parents as their child. He knows them as his
parents. Their family is
his family. He has had no contact with Mr Fraser.
[3] Mr Fraser has never accepted the adoption and has engaged in litigation
to have it set aside. He challenged the constitutionality
of section
18(4)(d)
[4]
of the Child Care Act 74
of 1983, which required the mother, but not the father, of a child of an
unmarried mother to consent to
an adoption. He succeeded, but secured no
relief, as this Court for good reason suspended its order to enable Parliament
within
2 years to change the law in a manner which would not disturb completed
adoptions.
[4] Mr Fraser also challenged the validity of the adoption, contending that
he had not had an adequate hearing in the Children’s
Court, and that as a
result, the adoption order should be set aside. He succeeded in the Transvaal
High Court
[5]
but the decision in his
favour was set aside on appeal by the Supreme Court of
Appeal.
[6]
Mr Fraser now seeks leave
to appeal to this Court against the decision of the Supreme Court of Appeal
upholding the original decision
of the Children’s Court.
[5] We obtained a copy of the full appeal record from the Supreme Court of
Appeal, which includes a record of the proceedings in
the Children’s Court
and have given consideration to it, to the detailed arguments lodged on behalf
of the parties in that
matter, to the judgments of the High Court and the
Supreme Court of Appeal, and to the averments made in the affidavits lodged in
support of and in opposition to the application for leave to appeal to this
Court.
[6] Mr Fraser has raised various issues placing reliance on the provisions
of section 33 of the Constitution
[7]
which makes provision for just administrative action and on section
28
[8]
which makes provision for the
rights of a child. Other arguments are also advanced dealing with the common
law, and the interpretation
of the Child Care Act and the regulations under it.
It should be mentioned that in the proceedings in the High Court, Preiss J
appointed
a curator ad litem to represent the interests of the child. It
appears from the judgment of Preiss J that the curator ad litem opposed
the
application for review and supported the adoption order
made.
[9]
[7] The Constitution requires that provision be made for a litigant to
appeal to this Court against the decision of any other court,
“when it is
in the interests of justice and with leave of [this]
Court.”
1
[0]
The prospects of
success are obviously an important issue in deciding whether or not to grant
leave to appeal. But they are not
the only issue to be considered when the
interests of justice are being
weighed.
1
[1]
[8] It is now almost three years since the adoption order was made.
Although Mr Fraser is not to blame for any delay in the proceedings,
nor the
time that elapsed between the judgment of the High Court and the judgment of the
Supreme Court of Appeal, we cannot ignore
the passage of time.
[9] The matter concerns the status and well-being of the young adopted
child. The interests of the child are
paramount.
1
[2]
We are conscious of
the importance of such an issue and of the strong emotions to which it has given
rise. All the parties to this
litigation have suffered as a result of the
prolonged proceedings. But even if the application for leave to appeal were to
be granted,
and Mr Fraser were ultimately to succeed in his application to have
the adoption order set aside, it would not be the end of the
matter. The
adoption proceedings would have to be re-opened and the dispute could again drag
itself out through the courts. Continued
uncertainty as to the status and
placing of the child cannot be in the interests of the child.
[10] The matter must now be brought to an end. Accordingly, even if it
could be shown that there were reasonable prospects of success
in respect of the
complicated procedural and jurisdictional issues that have been raised (and we
express no opinion thereon), it
is not in the interests of justice that a
further appeal should be heard on them. In these circumstances no purpose would
be served
by setting down the application for leave to appeal and direct access
to debate the issues that have been raised. The applications
must therefore be
refused. It is not appropriate that any order be made as to costs.
[11] Where applications of this kind are dismissed summarily it is not the
practice of this Court to give reasons for its decision.
We considered it
appropriate, however, that brief reasons should be given in the present
case.
[12] The application for special leave to appeal against the decision of the
Supreme Court of Appeal, alternatively for direct access
to this Court, is
refused.
Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J,
O’Regan J, Sachs J and Yacoob J concur in the judgment
of Chaskalson
P.
For the Applicant: Söller & Manning
For the First Respondent: Van der Walt & Hugo c/o Blakes Mpanga
For the Second Respondent: Dion Rhoder & Heunis c/o Shapiro & De
Meyer Inc
[1]
Naude and Another v
Fraser
1998 (8) BCLR 945 (SCA).
[2]
Fraser v Children’s
Court, Pretoria North, and Others
[1997] ZACC 1
;
1997 (2) SA 218
(T);
Fraser v
Children’s Court, Pretoria North, and Others
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC).
[3]
Section 18(4)
of the Child Care Act 74 of 1983 provides in relevant part that:
“A children’s court to which application for an order of adoption is
made . . . shall not grant the application unless
it is satisfied
-
(b) that the applicant is or that both applicants are of good repute and a
person or persons fit and proper to be entrusted with
the custody of the child;
and
(c) that the proposed adoption will serve the interests and conduce to the
welfare of the
child”.
[4]
Section
18(4) of the Child Care Act provided at the material time that:
“A children’s court to which application for an order of adoption is
made . . . shall not grant the application unless
it is satisfied
-
(d) that consent to the adoption has been given by both parents of the child,
or, if the child is illegitimate, by the mother of
the child . .
.”.
[5]
Fraser
(T) above n 2.
[6]
Naude
above n
1.
[7]
Section 33(1) of the
Constitution of the Republic of South Africa, 1996, provides that:
“Everyone has the right to administrative action that is lawful,
reasonable and procedurally
fair.”
[8]
Section
28(1) of the 1996 Constitution provides in relevant part that:
“Every child has the right
-
(b) to family care or parental care, or to appropriate alternative care when
removed from the family
environment”.
[9]
Fraser
(T) above n 2 at 228I, 229E and
230B.
1
[0]
Section 167(6) of the
1996 Constitution provides that:
“National legislation or the rules of the Constitutional Court must allow
a person, when it is in the interests of justice
and with leave of the
Constitutional Court
-
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
[1]
1
S v Pennington and
Another
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at paras 25-26;
Oranje Vrystaatse Vereniging vir Staatsondersteunde Skole
and Another v
Premier, Province of the Free State, and Others
[1998] ZACC 4
;
1998 (3) SA 692
(CC);
1998
(6) BCLR 653
(CC) at para 5.
1
[2]
This is recognised both in
section 30(3) of the interim Constitution and in section 28(2) of the 1996
Constitution.