CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 94/22
In the matter between:
VJV First Applicant
RT Second Applicant
and
MINISTER OF SOCIAL DEVELOPMENT First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent
and
CENTRE FOR CHILD LAW Amicus Curiae
Neutral citation: VJV and Another v Minister of Social Development and Another
[2023] ZACC 21
Coram: Zondo CJ, Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J,
Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and
Tshiqi J
Judgment: Kollapen J (unanimous)
Heard on: 8 November 2022
Decided on: 29 June 2023
Summary: Children’s Act 38 of 2005 — constitutionality of section 40 —
section is unconstitutional to the extent that it excludes
permanent life partners
ORDER
On application for confirmation of the order of constitutional invalidity granted by the
High Court of South Africa, Gauteng Division, Pretoria. The following order is made:
1. The declaration of constitutional invalidity of section 40 of
the Children’s Act 38 of 2005 (Children’s Act) made by the High Court
is confirmed in the terms set out in paragraphs 2, 3, 4, 5 and 6 of this order.
2. It is declared that the impugned provisions of the Children’s Act unfairly
and unjustifiably discriminate on the basis of marital status and
sexual orientation by excluding the words—
(a) “or permanent life partner” after the word “spouse” and “husband”
wherever such words appear in secti on 40 of the Children’s Act;
and
(b) “or permanent life partners” after the word “spouses” wherever
such word appears in section 40 of the Children’s Act.
3. The declaration of constitutional invalidity referred to in paragraph 1
takes effect from 1 July 2007, but its operation is suspended for 24 months
from the date of this order to afford Parliament an opportunity to remedy
the constitutional defects giving rise to the constitutional invalidity.
4. From the date of the order of this Court section 40 of the Children’s Act
will read as follows – the underlined words being read into the section as
it is currently formulated:
“(1) (a) Whenever the gamete or gametes of any person other than a
married person or his or her spouse or permanent life partner
have be en used with the consent of both such spouses or
permanent life partners for the artificial fertilisation of one
spouse or one permanent life partner , any child born of that
spouse or permanent life partner as a result of such artificial
fertilisation must for all purposes be regarded to be the child
of those spouses or permanent life partners as if the gamete or
gametes of those spouses or permanent life partners had been
used for such artificial fertilisation.
(b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses or permanent life
partners have granted the relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person
have been used for artificial fertilisation of a woman, any child born
of that woman as a result of such artificial fertilisation must for all
purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation
arises between a child born of a woman as a resu lt of artificial
fertilisation and any person whose gamete has or gametes have been
used for such artificial fertilisation or the blood relations of that person,
except when—
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent life partner of such
woman at the time of such artificial fertilisation.”
5. In respect of the period 1 July 2007 until the date of this order, the
following shall be the position:
(a) The reading-in provided for in paragraph 4 above will not apply to
persons who were permanent life partners at the time of the
artificial fertilisation unless they invoke the benefit of this order by
a written declaration signed by both of them. In such event the
provisions of section 40(1)(a) as read-in will apply.
(b) In the event that rights and responsibilities in respect of the
child/children so born has been assigned to any third party/ies in
terms of the Children’s Act or any other legislation, or are enjoyed
by a former partner of the permanent life partnership only, then:
(i) The party seeking to invoke the benefit of this order will
give written notice to the party/ies or former partner of their
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intention to do so and afford the third party or former
partner with an opportunity to object thereto.
(ii) If the third party or former partner objects in writing thereto,
the matter must be referred to the Children’s Court wh ich
will determine the procedure to be followed and issue
appropriate orders and directions within its powers.
(iii) The Children’s Court, after considering the matter may
make any order that is just and equitable and in doing so
shall be guided by what the best interest /s of the
child/children in question require.
6. In the event that Parliament does not remedy the constitutional deficiency
in section 40 within the period provided for in paragraph 3 of this order,
or any extended period granted by this Court, section 40 will be deemed
to read as set out in paragraphs 4 and 5 above.
7. The respondents are to pay the applicants’ costs in this Court , including
the costs of two counsel.
JUDGMENT
KOLLAPEN J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J,
Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring):
Introduction
[1] Traditional notions of family and parenthood have undergone revolutionary
change under our constitutional dispensation. This can be attributed to a number of
factors: the strong commitment to inclusivity and equality our Constitution evinces; the
celebration of diversity as a source of richness rather than of division ; and the
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recognition that for individual autonomy to flourish it must be enabled to be expressed
in its fullest form.
[2] If, pre-constitutionally, South Africa was characterised by an obsession with
difference and exclusion, then the post -democracy era must represent a triumph for
inclusion and diversity. This case is about whether the impugned provisions of
section 40 of the Children’s Act 1 (impugned provisions) are consistent with
the Constitution.
[3] This is an application for confirmation of an order of the High Court of
South Africa, Gauteng Division, Pretoria (High Court) , which declared section 40 of
the Children’s Act unconstitutional to the extent that it excludes permanent life partners.
It held that section 40 of the Children’s Act, which provides for the acquisition of
parental rights by married persons in respect of children born as a result of artific ial
fertilisation, unfairly discriminates against permanent life partners on the basis of
marital status.
1 38 of 2005. Section 40, dealing with the rights of children conceived by artificial fertilisation, provides:
“(1) (a) Whenever the gamete or gametes of any person other than a married person
or his or her spouse have been used with the consent of both such spouses for
the artificial fertilisation of one spouse, any child born of that spouse as a
result of such artificial fertilisation must for all purposes be regarded to be the
child of those spouses as if the gamete or gametes of those spouses had been
used for such artificial fertilisation.
(b) For the purpose of paragraph (a) it must be presumed, until the contrary is
proved, that both spouses have granted the relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person have been used
for the artificial fertilisation of a woman, any child born of that woman as a result of
such artificial fertilisation must for all purposes be reg arded to be the child of that
woman.
(3) Subject to section 296, no right, responsibility, duty or obligation arises between a child
born of a woman as a result of artificial fertilisation and any person whose gamete has
or gametes have been used for such artificial fertilisation or the blood relations of that
person, except when—
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband of such woman at the time of such artificial
fertilisation.”
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Parties
[4] The first and second applicants are women in a permanent life partnership. The
first and second respondents are the Minister of Social Development and the Minister
of Justice and Constitutional Development, respectively. The respondents did not
oppose the application in the High Court and abide the decision of this Court. The
Centre for Child Law (CCL) participated in the High Court proceedings as
amicus curiae and was admitted in that capacity in this Court.
Background
[5] For a long time, the applicants held a desire to have their own children and their
own family. To this end, they were able to utilise the medical advances made i n the
in vitro fertilisation (IVF) process. The first applicant’s gamete and the gamete of a
donor were fertilised during an IVF process.2 The embryos were then transferred into
the uterus of the second applicant resulting in her pregnancy. Consequently, twins were
born to the applicants.
[6] According to the impugned provisions, the minor children are regarded as the
children of the second applicant. Only she has established rights, responsibilities,
duties, and obligations towards the children. The reco gnition of the rights and
responsibilities of the second applicant towards the children is premised on the fact that
she gave birth to the m.3 The first applicant is vested with no such rights and
responsibilities, despite the fact that she and the second applicant are permanent life
partners and that they jointly took and executed the decision to have children.
Moreover, the first applicant’s gamete was fertilised by the donated male gamete in the
IVF process. The problem, says the applicants, is that th e impugned provisions only
recognise parties in a marriage as the parents of a child born through artificial
2 Gametes are reproductive cells. Female gametes are ova and male gametes are sperm cells. Ova are retrieved
from ovaries and fertilis ed by sperm in a lab oratory. The fertilis ed egg (embryo) or eggs (embryos) are then
transferred to a uterus.
3 Section 40(3)(a) of the Children’s Act.
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fertilisation but do not accord the same rights to parties in a relationship other than
marriage, even those in their position who are in a permanent life partnership.
High Court judgment
[7] The applicants brought an application in the High Court and sought relief to
declare section 40 of the Children’s Act unconstitutional and to seek the reading -in of
the words “or permanent life partner” after the words “spouse” or “husband” wherever
such words appear in the impugned provisions.
[8] They also initially sought the amendmen t of the definition of “parent” as it
appears in the Children’s Act, but this relief was abandoned during the course of their
argument before the High Court.
[9] The applicants argued that it is biologically impossible for the gametes from both
female spouses to be used in the artificial fertilisation process, as male sperm is required
for fertilisation to occur. Consequently, same-sex female couples are disproportionately
discriminated against by the impugned provisions regulating artificial fertilisation
processes. Parental rights are not automatically assigned to same -sex female couples,4
and they are required to approach a High Court prior to the birth of the child to ensure
that both parents are holders of parental rights and are recorded as such by the
Department of Home Affairs when their baby is born.5
[10] They argued that the impugned provisions discriminate on the grounds of
marital status and sexual orientation and that this discrimination is unjustifiable.
[11] The CCL supported the contention that the impugned provisions are
unconstitutional. However, the CCL disputed that they unfairly discriminated against
4 Only the partner who births the child is, in terms of the impugned provisions, assigned automatic rights and
responsibilities.
5 Sections 23 and 24 of the Children’s Act provide for the assignment of contact and care and gu ardianship,
respectively.
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the applicants on the basis of sexual orientation. They were also of the view that while
the remedy proposed by the applicants would broadly address the mischief in the Act,
it may create uncertainty in respect of who may be termed a permanent life partner.
[12] The CCL advanced the following arguments:
(a) Section 40(1)(a) introduces a legal fiction that a child born using the
gamete of any person other than those of a married person for the purpose
of artificial fertilisation is regarded as the child of those spouses.6 This is
analogous to the situation of both adoption and surrogacy.
(b) Section 40(1)(a) applies to married persons only , which includes
civil unions. The exclusion of unmarried persons from the ambit of
the section applies in respect of both heterosexual and same -sex
relationships. The posi tion of unmarried persons falls under the
provisions of section 40(2) of the Children’s Act.
(c) The mischief in this matter is not that the provisions unfairly discriminate
on the basis of sexual orientation , but rather that the exclusion of
unmarried pe ople in a committed relationship is constitutionally
unjustifiable.
(d) The remedy proposed by the applicants to have the undefined term
“permanent life partner” read into the Children’s Act will create a
breeding ground for disputes as to when a person ca n be deemed a
permanent life partner. This remedy will probably not cure all the
deficiencies identified by the applicants, as it is a term still open to
interpretation.
[13] The High Court noted that the lack of parental recognition of the first applicant
by the Children’s Act arises from two issues. First, the Children’s Act does not define
the word “spouse” in terms of the context of surrogacy and , second, the definition of
6 Emphasis added.
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“parent” excludes the first applicant as the gamete donor. 7 The High Court held that
the impugned provisions have the effect of automatically affording parental rights and
responsibilities to the second applicant but not to the first applicant. This, said the
High Court, will leave the first applicant in a legally insecure position resulting in a
myriad of unfair consequences.8
[14] The High Court held that the difference between unmarried and married people
is that , through litigation and the extension of the law, the parties and the children
involved in legally regulated relationships are protected.9 It held that the Children’s Act
requires a marriage in order to establish a family and does not provide for families that
do not fit this mould.10
[15] The High Court held that the impugned provisions unfairly discriminate on the
basis of marital status and also violate the rights to equality and dignity of unmarried
people who have had children by way of artificial fertilisation. The Court said that this
violation extends to the rights of children born in such circumstances by violating the
child’s right to family and parental care. All of this, said the Court, was in violation of
section 28 of the Constitution which required the best interests of the child to be
considered in every matter concerning the child.11 The High Court held, however, that
7 Section 1 of the Children’s Act defines “parent” as follows:
“[I]n relation to a child, includes the adoptive parent of a child, but excludes—
(a) the biological father of a child conceived through the rape of or incest with the child’s
mother;
(b) any person who is biologically related to a child by reason only of being a gamete
donor for purposes of artificial fertilisation; and
(c) a parent whose parental responsibilities and rights in respect of a child have been
terminated.” (Emphasis added.)
8 VJV v Minister of Social Development [2022] ZAGPPHC 114 (22 February 2022) (High Court judgment)
paras 12-3.
9 Id at para 18.
10 Id at para 23.
11 The relevant parts of section 28 reads:
“(1) Every child has the right—
. . .
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the discrimination occasioned by the impugned provisions did not do so on the basis of
sexual orientation as the term spouse includes partners in a civil union.12
[16] The High Court declared the impugned provisions unconstitutional and made the
following order:
“(1) That section 40 of the Children’s Act, 38 of 2005 (the Children’s Act) is
declared to be inconsistent with the Constitution of the Republic of
South Africa to the extent that the section does not include the words:
‘or permanent life partner’ after the word ‘spouse’ and ‘husband’ wherever
such words appear in section 40;
‘or permanent life partners’ after the word ‘spouses’ wherever such word
appears in section 40.
(2) That, in section 40 of the Children’s Act, the words:
2.1 ‘or permanent life partner’ are read in after the word ‘spouse’ and
‘husband’ wherever such words appear in section 40;
2.2 ‘or permanent life partners’ are read in after the word ‘spouses’
wherever such word appears in section 40; [and]
2.3 that subsection (c) be inserted after section 1(b).”
(3) That it be declared that section 40 of the Children’s Act is to read as follows:
‘(1) (a) Whenever the gamete or gametes of any person other than a
married person or his or her spouse or permanent life part ner
have been used with the consent of both such spouses or
permanent life partners for the artificial fertilisation of one
spouse or one permanent life partner, any child born of that
spouse or permanent life partner as a result of such artificial
fertilisation must for all purposes be regarded to be the child
of those spouses or permanent life partners as if the gamete or
gametes of those spouses or permanent life partners had been
used for such artificial fertilisation.
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
. . .
(2) A child’s best interests are of paramount importance in every matter concerning the
child.”
12 High Court judgment above n 8 at paras 16-7.
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(b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses or permanent life
partners have granted the relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person
have been used for artificial fertilisation of a woman, any child born
of that woman as a result of such artificial fertilisation must for all
purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation
arises between a child born of a wom an as a result of artificial
fertilisation and any person whose gamete has or gametes have been
used for such artificial fertilisation or the blood relations of that person,
except when—
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent life partner of such
woman at the time of such artificial fertilisation.’
(4) As a temporary solution to the plight of applicants, the words are to be read
into section 40 of the Act as follows and will remain in effec t until the Act is
amended:
‘(1) (a) Whenever the gamete or gametes of any person other than a
married person or his or her spouse or permanent life partner
have been used with the consent of both such spouses or
permanent life partners for the artificial fertilisation of one
spouse or one permanent life partner, any child born of that
spouse or permanent life partner as a result of such artificial
fertilisation must for all purposes be regarded to be the child
of those spouses or permanent life partners as if the gamete or
gametes of those spouses or permanent life partners had been
used for such artificial fertilisation.
(b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses or permanent life
partners have granted the relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person
have been used for artificial fertilisation of a woman, any child born
of that woman as a result of such artificial fertilisation must for all
purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation
arises between a child born of a woman as a result of artificial
KOLLAPEN J
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fertilisation and any person whose gamete has or gametes have been
used for such artificial fertilisation or the blood relations of that person,
except when—
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent life partner of such
woman at the time of such artificial fertilisation.’
(5) This application is declared to be confidential and:
5.1. the Court file and application shall be retained in the Chief Registrar’s
office;
5.2. the identity of the parties to this application, or any facts which may
cause them to be identified, shall not be published and/or made public.
(6) There is no order made pertaining to costs.”
In this Court
Applicants’ submissions
[17] It is the applicants’ case that the impugned provisions:
(a) constitute unfair discrimination;
(b) violate the applicants’ dignity; and
(c) are not in the best interests of the child.
[18] The applicants argue that the impact of unfair discrimination occurs when a
burden is imposed on people who have been victims of past patterns of discrimination
such as women, people of colour, gay people, or unmarried people, or wherever the
fundamental dignity of a person is violated, as in this matter. Where the discriminating
law or action is designed to achieve a worthy or important societal goal, it may,
according to the applicants, make fair what would otherwise be unfair discrimination.
They conte nd that there is no conceivable worthy societal goal that the state is
attempting to achieve by excluding the first applicant , and others similarly situated,
from being regarded as legal parent s. The applicants contend that the discrimination
against the first applicant is based on both, her sexual orientation and her marital status.
KOLLAPEN J
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[19] The applicants rely on J v Director General, Department of Home Affairs ,13 in
which section 5 of the Children’s Status Act 14 was declared unconstitutional, as it did
not provide for the registration of persons in permanent same -sex life partnerships as
parents of children conceived by artificial fertilisati on.15 They contend that the
High Court correctly recognised that the fam ily is one of the core foundational
institutions in all societies and that through family life , people’s values, cultures and
traditions are held in safekeeping and passed on to the generations that follow. They
reiterate that family should not be defined by marriage.
[20] In respect of their claim that the impugned provisions encroach on their right to
dignity, they rely on Dawood.16 There, it was held by this Court that the right to dignity
must be interpreted to afford protection to family life. The applicants argue that, despite
the Constitution not containing an express right to family life, this Court in Ex Parte
Chairperson of the Constitutional Assembly17 said that this right is indirectly protected
by the right to dignity.
[21] The applicants argue that the best interests of their children are not considered in
the impugned provisions. They rely on Fletcher18 where the Appellate Division held
that the most important factor to be considered in matters concerning custody and access
are not the rights of paren ts, but the best interests of the child. They contend that it
would be in the best interests of their children to be regarded as the legal children of
both the first and second applicants. They further argue that it is important that the first
applicant be regarded as the legal parent of the children . This is for many reasons,
13 J v Director General, Department of Home Affairs [2003] ZACC 3; 2003 (5) SA 621 (CC); 2003 (5) BCLR
463 (CC).
14 82 of 1987. This Act has since been repealed by the Children’s Act.
15 The challenged provisions in the Children’s Status Act provided only for the rights and responsibilities of a
“husband” and “wife” of children conceived by artificial fertilisation. This Court confirmed the High Court order
of constitutional invalidity and read in the words “or permanent same-sex life partner” into the section.
16 Dawood v Minister of Home Affairs ; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (CC).
17 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).
18 Fletcher v Fletcher 1948 (1) SA 130 (A).
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including the rights, but also the responsibilities, which are granted to and expected of
a legal parent which would otherwise not apply in this matter, thereby disadvant aging
the child.
[22] The applicants submit that the proposed reading -in would ensure that any
inconsistencies between the Constitution and the Children’s Act are removed. They
argue that the reading-in remedy has been consistently employed to remedy legislation
that confers benefits on the “spouse” of a married person but excludes permanent life
partnerships from the relevant benefits.
The CCL’s submissions
[23] The CCL agrees with most of the submissions made by the applicants, save for
two issues. First, it does not accept that the impugned provisions discriminate based on
sexual orientation. What it says is that it discriminates against unmarried people in a
committed relationship and that such discrimination is not constitutionally justifiable.
[24] Second, the CCL raises concerns in respect of the proposed remedy . While it
supports the proposed reading -in as a temporary measure , it has concerns that the
inclusion of the words “or permanent life partner” as a long -term measure would not
properly cure the defec ts identified , as the term is open to varying interpretations.
Further, it submits that the use of an undefined and unregulated term could create
uncertainty, which would in turn undermine the best interests of the child.
[25] The CCL submits that the undefined term of “permanent life partner” may lead
to unintended consequences in respect of issues surrounding consent and intention. It
submits that the presumption of consent in respect of married persons is less ambiguous
than in the case of unmarried p ersons by virtue of the legal permanency of the
relationship. It says that a partner may believe, erroneously so, that they are in a
permanent life partnership whereas the other partner may not hold the same view. To
provide a measure of certainty , the CCL proposes the inclusion of a provision which
requires the written consent of both permanent life partners prior to embarking on a
KOLLAPEN J
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process of artificial fertilisation in order for them to benefit from the proposed
reading-in.
Analysis
Condonation
[26] The application for confirmation was one day late and was accompanied by an
explanation for the delay. The degree of non -compliance is minimal , the explanation
for the delay adequate and the prospects of success good. A proper case is made out
and condonation is granted.
Confirmation
[27] Does the High Court order of invalidity stand to be confirmed? The impugned
provisions deal with the legal consequences of artificial fertilisation insofar as it relates
to the rights of children born of such a process. It recognises that the gametes of a
person or persons other than the spouses may have to be utilised in order to conceive a
child through artificial fertilisation. Arising out of this, it provides that a child born of
such a process will be regarded as a child of those spouses. In doing so , it assumes for
legal purposes that the gamete or gametes of one or both of those spouses, as the case
may be, have been used. Even though in reality this was not the case. The CCL calls
this a legal fiction – perhaps a necessary one, I may add.
[28] Its effect is to provide a legal mechanism to meet the advances in genetics and
technology that opened the doors to parenthood that were hitherto closed to so many.
That door, however, as the High Court found, was only partially opened , as the benefit
of section 40 is limited to married persons.
[29] This limitation has all kinds of inequitable consequences and inconsistent
outcomes. They include the following:
(a) If an unmarried heterosexual couple have a child through
artificial fertilisation and donor gametes are used, only the woman in that
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relationship will be assigned rights and responsibilities in respect of the
child.
(b) If an unmarried female same -sex couple have a child through
artificial fertilisation and donor gametes are used, only the woman in that
relationship who births the child will be assigned rights and
responsibilities and not the other woman in the relationship.
[30] These consequences will apply irrespective of the nature of the relationship and
the commitment the parties may have to each other and irrespective of whether such
consequences are in the best interests of the child. Thus, a couple married for a short
period will enjoy the full rights and responsibilities that go with parenthood when they
have a child using artificial fertilisation, while an unmarried couple in a n enduring
permanent life partnership, will not enjoy such rights and responsibilities.
[31] What the impugned provisions do i s to single out marriage as the only
relationship that the law recognises and allows for parental rights and responsibilities
to come into existence in respect of a child born as a result of artificial fertilisation. It
raises the obvious question – is this exclusivity justified in law and does it accord with
the social and lived reality of our people?
[32] In Paixao19 the Supreme Court of Appeal reflected on that reality as follows:
“Our courts have emphasised the importance of marriage and the nuclear family as
important social institutions of society, which give rise to important legal obligations,
particularly the reciprocal duty of support placed upon spouses. The fact is, however,
that the nuclear family has, for a long time, not been the norm in South A frica.
South Africans have lower rates of marriage and higher rates of extra -marital
child-bearing than found in most countries.20 Millions of South Africans live together
19 Paixao v Road Accident Fund [2012] ZASCA 130; 2012 (6) SA 377 (SCA).
20 Budlender and Lund “South Africa: A Legacy of Family Disruption” (2011) 42 Development and Change 925
at 927-932.
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without entering into formal marriages. This is simply a fact of life, although, a s
Mokgoro J and O’Regan J observed in Volks, their circumstances differ significantly:
‘Some may be living together with no intention of permanence at all, others
may be living together because there is a legal or religious bar to their marriage,
others may be living together on the firm and joint understanding that they do
not wish their relationship to attract legal consequences, and still others may
be living together with the firm and shared intention of being permanent life
partners.’21
I would add that in addition to legal or religious constraints that the learned judges
mention, many others are unable to marry for social, cultural or financial reasons.”22
[33] The types of arrangements that consenting adults may arrive at in how they
organise their relationships and their private lives are intensely personal. The changing
nature of the form of such relationships and the need for the law to include those in its
recognitive reach are evident.
[34] In Volks, Sachs J cautioned against the dangers of creating legal strangers out of
persons who have enjoyed a lifetime of commitment to each other:
“Should a person who has shared her home and life with her deceased partner , borne
and raised children with him, cared for him in health and in sickness, and dedicated her
life to support the family they created together, be treated as a legal stranger to his
estate, with no claim for subsistence because they were never married? Should
marriage be the exclusive touchstone of a survivor’s legal entitlement as against the
rights of legatees and heirs?”23
[35] In Bwanya,24 this Court, while recognising the value and importance of marriage
as an institution, also made reference to permanent life partnership as a species of
21 Volks N.O. v Robinson [2005] ZACC 2; 2005 (5) BCLR 446 (CC) at para 120.
22. Paixao above n 19 at paras 31-2.
23 Volks above n 21 at para 148.
24 Bwanya v Master of the High Court, Cape Town [2021] ZACC 51; 2022 (3) SA 250 (CC); 2022 (4) BCLR 410
(CC).
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relationship that was equally deserving of the recognition and the protection of the law.
Madlanga J said:
“This question in no way suggests that marriage and permanent life partnerships must
be collapsed into one institution. They are not the same. And for a variety of reasons
some of those who are spouses or partners in one type of institution may even have an
aversion to the other. But where the rationale for the existence of certain legal
protections in the case of marriage equally exists in the case of permanent life
partnerships, the question arises: why are those legal protections not afforded to life
partners? That, to me, is the real question. After all, permanent life partnerships are
intimate relationships that are meant to last until the death of one or both (in the case
of simultaneous death) of the partners. Through agreement – express or tacit – these
life partnerships often feature reciprocal duties of support. They too are the foundation
of family life, whether with or without children.” 25
[36] And so, clearly the emphasis has shifted away from the form of such
relationships to their substance; to the caring and the commitment that is found within
it; to the family that lives and thrives within it and to the dignity and self -worth of the
people who find themselves within it. This is consistent with the values of equality and
dignity that stand at the forefront of our constitutional order.
[37] It is precisely that level of recognition of their parenthood that the applicants
were entitled to expect of the law when they decided to become parents. They were not
seeking a special dispensation as a same -sex couple, but rather a n appeal that the law
25 Id at paras 54-5. Although procreation features prominently in families, it does not necessarily define the idea
of “family”. Here is why, according to National Coalition for Gay a nd Lesbian Equality v Minister of Justice
[1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (NCGLE v Minister of Justice) at para 51—
“[f]rom a legal and constitutional point of view procreative potential is not a defining
characteristic of conjugal relationships. Such a view would be deeply demeaning to couples
(whether married or not) who, for whatever reason, are incapable of procreating when they
commence such relationship or become so at any time thereafter. It is likewise demeaning to
couples who commence such a relationship at an age when they no longer have the desire for
sexual relations. It is demeaning to adoptive parents to sug gest that their family is any less a
family and any less entitled to respect and concern than a family with procreated children. I
would even hold it to be demeaning of a couple who voluntarily decide not to have children or
sexual relations with one another; this being a decision entirely within their protected sphere of
freedom and privacy.”
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treats them as persons equal in worth and dignity instead of affording them and their
children a different status on account of their choice not to marry.
[38] Sachs J reminds us in Volks about the choices that people make in how they live
their lives and its importance in individual autonomy. He said:
“Just as the choice to marry is one of life’s defining moments, so, it is contended, the
choice not to marry must be a determinative feature of one’s life. These are po werful
considerations.”26
[39] In addition, the incidence of infertility has increased over the past 70 years, with
the Centre for Disease Control and Prevention estimating that , in 1950, the global
position was for every woman to have, on average, five children, compared to the
worldwide average of two children for every woman in 2020. 27 Further data indicates
that assisted reproductive technology (including artificial fertilisation processes) has
increased by 5 % to 10% annually.28 In South Africa, it is estimated that one in six
couples suffer from infertility.29 Accordingly, the position of those who are not married,
coupled with rising rates of infertility , is rendered even more precarious by the
exclusionary provisions of section 40. The answer that those who are excluded may
effect their inclusion by getting married is no answer at all . It negates the freedom of
choice to marry or not to marry as the case may be and which Sachs J described as a
determinative feature of one’s life in Volks.30 This is further problematic in
instances - like those recognised by this Court in Bwanya31 – in which those in
permanent life partnerships may not be able to exercise that choice.
26 Volks above n 21 at para 154.
27 Centre for Disease Control and Prevention Division of Vital Statistics, National Centre for Health Statistics
Vital Statistics Rapid Release - Births: Provisional Data for 2018 (Report No. 007, May 2019).
28 Ravitskyl and Kimmins “ The Forgotten Men: Rising Rates of Male Infertility Urgently Require New
Approaches for its Prevention, Diagnosis and Treatment” (2019) 101 Oxford University Press Society for the
Study of Reproduction at 872.
29 Mwaba “An Exploratory Study of South African Women’s Experiences of In Vitro Fertilisation and Embryo
Transfer (IVE-ET) at Fertility Clinics” (2013) 3 Open Journal of Preventive Medicine at 470
30 See Volks above n 21 at para 154.
31 See Bwanya above n 24 at paras 61-6.
KOLLAPEN J
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Does section 40 of the Children’s Act limit the fundamental right of equality , dignity
and the best interests of the child?
Equality challenge
[40] Section 9 of the Constitution provides that:
“(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone
on one or more grounds, including 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). National legislation must be
enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
[41] The applicants argue that the impugned provisions unfairly discriminate against
them on the basis of both marital status and sexual orientation.
[42] Section 9(1) of the Constitution guarantees to everyone the right to the equal
protection of the law while s ection 9( 3) of the Constitution prohibits unfair
discrimination on a range of listed grounds, including marital status and sexual
orientation.
[43] In Harksen, decided in terms of the interim Constitution, this Court set out the
proper approach to a challenge where section 8 (the precursor to section 9 of the
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Constitution) was invoked.32 It said that the first enquiry was to determine whether the
provision in question differentiated between people or categories of people and , if it
did, whether there was a rational connection between the differentiation and a legitimate
governmental purpose it was designed to further or achieve.33 The absence of a
legitimate governmental purpose would result in the impugned provision being in
breach of section 8(1). The existence, however, of a legitimate governmental purpose
would mean the impugned provision would not fall foul of section 8(1) but could still
constitute unfair discrimination under section 8(2) – the current section 9(3). I proceed
to deal with the two legs of the equality challenge.
Marital status
[44] The differentiation that section 40 of the C hildren’s Act creates is to
automatically assign rights and responsibilities to married parents of children born from
artificial fertilisation but fails to assign such rights and responsibilities to
32 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para 50. The
full Harksen test is as follows:
“(a) Does the provision differentiate between people or categories of people? If so, does
the differentiation bear a rational connection to a legitimate government purpose? If
it does not, then there is a violation of section 8(1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a two -stage
analysis:
(i) Firstly, does the differentiation amount to ‘discrimination? If it is on a
specified ground, then discrimination will have been establ ished. If it is not
on a specified ground, then whether or not there is discrimination will depend
upon whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair the fundamental human
dignity of persons as human beings or to affect them adversely in a
comparably serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair
discrimination’? If it has been found to have been on a specified ground, then
unfairness will be presumed. If on an unspecified ground, unfairness will
have to be established by the complainant. The test of unfairness focuses
primarily on the impact of the discrimination on the complainant and others
in his or her situation. If, at the end of th is stage of the enquiry, the
differentiation is found not to be unfair, then there will be no violation of
section 8(2).
(c) If the discrimination is found to be unfair then a determination will have to be made as
to whether the provision can be justified under the limitations clause (section 33 of the
interim Constitution).”
33 Id at para 54.
KOLLAPEN J
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unmarried parents of children born from artificial fertilisation. There is a differentiation
of treatment applied to the two different categories of persons: married and unmarried.
Is there a rational connection between the differentiation and a legitimate governmental
purpose that would save the section from being in breach of the equality guarantee
found in section 9(1)?
[45] This Court’s jurisprudence provides some guidance on what governmental
purpose has previously been advanced in support of the differentiation between married
and unmarried persons. In Bwanya, the exclusion of permanent life partners in matters
relating to succession was viewed by Mogoeng CJ, in a dissent, to be underpinned by a
worthy societal objective. He said it was necessary “to facilitate the realisation of the
undisputable consequences intended to flow from marriage”.34
[46] What this does is to elevate marriage above all other forms of union an d in so
doing attaches undue and unwarranted significance to one form of relationship to the
exclusion of others. The conclusion in that reasoning that only marriage can have such
indisputable consequences is contrary to the important societal recognition of
relationships of a different nature, as the majority judgment of Madlanga J compellingly
affirms in Bwanya. Absent a legitimate governmental purpose for the differentiation ,
the result must be that the impugned provision s constitute a breach of the applicants’
section 9(1) equality rights.
[47] As the differentiation is on a specified ground , namely marital status, Harksen
tells us that it will also constitute discrimination for the purposes of section 9(3) and the
existence of the specified ground will ac tivate the presumption that the discrimination
is unfair. The onus would then shift to the state to rebut the presumption and establish
that the discrimination is fair.35 The state respondents did not oppose the matter in the
34 Bwanya above n 24 at para 136.
35 The fairness test set out in Harksen looks at the following factors:
“(a) the position of the complainants in society, whether they have suffered from past
patterns of disadvantage, and whether the discrimination is on a listed ground;
KOLLAPEN J
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High Court, nor do they do so in this Court. The central enquiry when applying the
fairness test relates to the impact of the discrimination. The impact of the discrimination
on the basis of marital status is far-reaching. The message that is sent is that, although
permanent life partners have made the conscious decision to enter parenthood, such a
choice is less respected than the same choice made by married partners. It devalues the
applicants’ relationship and impacts their dignity. The discrimination from the
perspective of its impact renders it manifestly unfair with the result that the impugned
provisions therefore result in unfair discrimination on the basis of marital status. 36 All
that remains is a determination, despite the finding of unfair ness, w hether the
discrimination can still be justified in terms of section 36 of the Constitution. It is a
matter I will return to.
Sexual orientation
[48] The applicants ’ contention that the differentiation found in section 40 also
constitutes unfair discrimination on the basis of sexual orientation was held by the
High Court to be misplaced.
[49] The High Court found that the differentiation arising from the
impugned provisions applies to all married persons, including those in a civil union in
terms of t he Civil Union Act. 37 It concluded that section 40 of the Children’s Act
applies to heterosexual and same -sex relationships equally, and that the mischief is
therefore not that persons are discriminated against on the basis of sexual orientation.
(b) the nature of the provision or power and the purpose sought to be achieved by it – if it
is aimed at achieving a worthy social goal and not at impairing the complainants it may
be fair;
(c) with due regard to (a) and (b) and other relevant factors, the extent to which the
complainants’ rights or interests have been affected, whether this has led to an
impairment of their fundamental human dignity or c onstitutes an impairment of a
comparably serious nature.”
36 See Pretoria City Council v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) which
illustrates the distinction between unfair discrimination and discrimination that is not unfair. See also Union of
Refugee Women v Director, Private Security Industry Regulatory Authority [2006] ZACC 23; 2007 (4) SA 395
(CC); 2007 (4) BCLR 339 (CC); and President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4)
SA 1 (CC); 1997 (6) BCLR 708 (CC).
37 17 of 2006.
KOLLAPEN J
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[50] All same -sex partners in a civil union and all married heterosexual couples
equally benefit from section 40 in its current form. In addition, all unmarried partners,
whether same-sex or heterosexual are unfairly discriminated against by the impugned
provisions. The case for the applicants however is that the impugned provisions have
a disparate impact on lesbian same-sex life partners given their total reliance on artificial
insemination if they chose to have a biologically related child.
[51] In the category o f persons excluded by section 40 , not all heterosexual life
partners would experience the exclusionary effect of section 40. This is because a
relatively small percentage of parties in such a relationship would have experienced
infertility and therefore would need access to artificial fertilisation.38 In substance, it is
that relatively small group of heterosexual life partners who are unable to reproduce
coitally that section 40 excludes.
[52] On the other hand , it is biologically impossible for two females to reproduce
coitally. They are entirely reliant on artificial fertilisation processes and, by implication,
section 40 of the Children’s Act, to realise their dream of becoming parents to their
biological children. Two men in a same -sex partnership would n ot rely on section 40
of the Children’s Act for the conception of their biological child, as neither man would
be capable of being artificially fertilised .39 Lesbian permanent life partners , who seek
to have biologically related children, have no other alternative but artificial fertilisation.
The automatic assignment of their rights and responsibilities would accordingly, purely
on the basis of their biological reproductive constraints, be exclusively governed by the
impugned provisions. Lesbian permanent life partners are therefore disproportionately
affected by the differentiation occasioned by the impugned provisions.
38 See [40] above.
39 Section 292 of the Children’s Act relates to surrogate motherhood agreements and would apply in these
instances.
KOLLAPEN J
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[53] This Court has recognised in Walker40 and confirmed in Mahlangu41 that “a
seemingly benign or neutral distinction that nevertheless has a disproportionate impact
on certain groups amounts to indirect discrimination”. It is on this basis that I take the
view that the differentiation on sexual orientation nevertheless con stitutes indirect
discrimination. In Mahlangu this Court, in speaking to the intersectionality of
discrimination, said that it required no more than an acknowledgement “that
discrimination may impact on an individual in a multiplicity of ways based on the ir
position in society and the structural dynamics at play ”.42 Similarly in NCGLE v
Minister of Justice,43 this Court said, in recognising that grounds of discrimination can
intersect, that:
“[T]he evaluation of discriminatory impact is done not according to one ground of
discrimination or another, but on a combination of both, that is globally and
contextually, not separately and abstractly.”44 (Footnotes omitted.)
The objective is to determine in a qualitative rather than a quantitative way if the group
concerned is subjected to scarring of a sufficiently serious nature as to merit
constitutional intervention.
[54] These considerations apply to the applicants in this matter and in fact to all
lesbians in a permanent life partnership who wish to have a biologically related child.
Their situation is also unique as described in Mahlangu and their situation must lead to
the conclusion that the exclusion they experience in section 40, when viewed globally
and contextually, is exacerbated simply on account of the fact that they are lesbian
life partners.
40 Walker above n 36.
41 Mahlangu v Minister of Labour [2020] ZACC 24; 2021 (2) SA 54 (CC); 2021 (1) BCLR 1 (CC).
42 Id at para 76.
43 NCGLE v Minister of Justice above n 25.
44 Id at para 113.
KOLLAPEN J
26
[55] There can be no legitimate governme ntal objective for this differentiation
between homosexual and heterosexual relationships. It must therefore follow that
section 40 of the Children’s Act violates section 9(1) of the Constitution and indirectly
discriminates against the applicants, as les bian permanent life partners, on the basis of
their sexual orientation.
[56] This Court’s jurisprudence has recognised that there is no qualitative difference
between discrimination that has occurred directly or indirect ly. Once indirect
discrimination based on a listed ground has been established it is presumed to be
unfair.45
[57] In assessing the unfairness of discrimination this Court held in Hugo46 that “[t]he
more vulnerable the group adversely affected by the discrimination, the more likely the
discrimination will be held to be unfair”. In NCGLE v Minister of Home Affairs 47 this
Court held that “[vulnerability] depends to a very significant extent on past patterns of
disadvantage, stereotyping and the like”. It appropriately quoted from the Canadian
case M v H:48
“[P]robably the most compelling factor favouring a conclusion that differential
treatment imposed by legislation is truly discriminatory will be, where it exists,
pre-existing disadvantage, vulnerability, stereotyping or prejudice experienced by the
individual or group. These factors are relevant because, to the extent that the claimant
is already subject to unfair circumstances or treatment in society by virtue of personal
characteristics or circumstances, persons like him or her have often not been given
equal concern, respect, and consideration. It is logical to conclude that, in most cases,
further differential treatment will contribute to the perpetuation or promotion of their
45 Mahlangu above n 41 at para 92 and Walker above n 36 at paras 31-5.
46 Hugo above n 36 at para 112.
47 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1;
2000 (1) BCLR 39 (NCGLE v Minister of Home Affairs).
48 M v H (1999) 171 DLR (4th) 577.
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unfair social characterization, and will have a more severe impact on them, since they
are already vulnerable.”49
[58] Same-sex couples have f aced significant past patterns of disadvantage ,
vulnerability and stereotyping. Section 40 of the Children’s Act serves to perpetuate
stereotypes such as that same -sex relationships are exclusively sexual and lack the
qualities of consortium, companionship, love, affection and support.50 Or that same-sex
couples are incapable of fostering healthy families as they are unable to procreate
coitally.51
[59] Section 40 of the Children’s Act unfairly discriminates , indirectly, against the
applicants and others simila rly positioned on the basis of sexual orientation. Whether
such discrimination can be justified, will be addressed later.
The right to human dignity
[60] Section 10 of the Constitution provides that “[e]veryone has inherent dignity and
the right to have their dignity respected and protected”. Dignity is about acknowledging
the value and worth of individuals.52 It is about agency – the ability to make meaningful
choices about your life. This Court in Dawood confirmed that the right to dignity
includes the rig ht to family life. 53 It held that the dignity of the parties had been
infringed upon as the impugned provision impeded the achievement of personal
fulfilment.54 Here too, the applicants’ right to dignity, and by extension family life ,
have been limited in that they are unable, through the choices they have made, to
49 Id at para 68.
50 NCGLE v Minister of Home Affairs above n 47 at para 49.
51 Id at para 50.
52 Id at para 28.
53 Dawood above n 16 at para 36. See also Dladla v City of Johannesburg [2017] ZACC 42; 2018 (2) SA 327
(CC); 2018 (2) BCLR 119 (CC) at para 49 and Nandutu v Minister of Home Affairs [2019] ZACC 24; 2019 (5)
SA 325 (CC); 2019 (8) BCLR 938 (CC) at para 60 where this position is confirmed.
54 Id Dawood at para 37. In this matter section 25(9)(b) of the Alien’s Control Act 96 of 1991 (since repealed)
was declared unconstitutional as it required the foreign spouse of a South African, who is not in possession of a
valid temporary residence permit, to leave the country to apply for an immigration permit.
KOLLAPEN J
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achieve the fulfilment of parenthood. Section 40 diminishes the value and worth of the
applicants by saying that they are not worthy of being treated in the same manner as
their married counterparts and constitutes a limitation of the right of the applicants to
have their dignity respected and protected.
Paramountcy of the child’s best interests
[61] Section 28(2) says that “[a] child’s best interests are of paramount importance in
every matter concerning the child”.
[62] When considering whether to assign rights and responsibilities to parents, the
best interests of the child should be at the forefront of that enquiry. A child has the right
to a beneficial legal relationship with both of their parents where such parent s are
obliged to: (a) care and protect them; (b) maintain contact with them; (c) act as
guardians for them; and (d) make financial contributions towards them – this is
consistent with the best interests of the child. 55 Section 40 of the Children’s Act fails
to recognise the first applicant, and others like her, as a parent. This results in a child
born of such circumstances being deprived of automatically assigned and legally
enforceable parental care, contact and guardianship rights.
[63] Section 40 of the Children’s Act treat s children born of unmarried persons
differently from those born of married persons. In Centre for Child Law , this Court
held such differential treatment to be “invidious and unconstitutional”. 56 This Court
further held that the differentiating between children based on their status of being born
out of wedlock is not consistent with the best interests of the child principle. 57 It has
been compellingly demonstrated that the impugned provisions are not consistent with
the best interests of the child and limit their fundamental rights.
55 Section 18 of the Children’s Act.
56 Centre for Child Law v Director General: Department of Home Affairs [2021] ZACC 31; 2022 (2) SA 131
(CC); 2022 (4) BCLR 478 (CC) at para 71.
57 Id at para 79.
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Justification analysis
[64] Having established that the rights of the applicants and their children have been
limited by section 40 of the Children’s Act, can it be said that those limitations pass the
justification test posited by section 36 of the Constitution?58 The respondents have not
opposed the application . Accordingly, no justification has been advanced for the
limitation that section 40 of the Children’s Act has ha d on the rights to equality ,
human dignity and the best interests of the child. In Du Toit,59 this Court held, in dealing
with the state’s failure to proffer a justification for the limitation, that such an enquiry
would nevertheless still be prudent. It said that “[t]he Court must therefore [still]
consider whether the limitations occasioned by the impugned provisions are indeed
justifiable in terms of section 36 of the Constitution”.60
[65] Given the intersectionality between the various rights found to be limited by the
impugned provisions, it would be effective and expedient to undertake the justification
analysis in relation to all those rights together.
[66] A section 36 justification analysis is a balancing exercise, described by this Court
in Manamela,61 as follows:
58 Section 36 of the Constitution reads:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.”
59 Du Toit v Minister of Welfare and Population Development [2002] ZACC 20; 2003 (2) SA 198 (CC); 2002 (10)
BCLR 1006 (CC).
60 Id at para 31.
61 S v Manamela (Director-General of Justice Intervening) [2000] ZACC 5; 2000 (3) SA 1 (CC); 2000 (5) BCLR
491 (CC).
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“[T]he Court must engage in a balancing exercise and arrive at a global judgment on
proportionality . . . . As a general rule, the more serious the impact of the measure on
the right, the more persuasive or compelling the justification must be. Ultimately, the
question is one of degree to be assessed in the concrete legislative and social setting of
the measure, paying due regard to the means which are realistically available in our
country at this stage, but without losing sight of the ultimate values to be protected.”62
The nature of the rights
[67] Dignity is a founding value of the Constitution and a right central to the society
envisaged by the Constitution. Therefore, as was held in Makwanyane,63 only the most
compelling justification will suffice for its limitation. This Court held:
“The rights to life and dignity are the most important of all human rights, and the source
of all other personal rights in Chapter 3. By committing ourselves to a society founded
on the recognition of human r ights we are required to value these rights above all
others.”64
[68] Equality is also a founding value of the Constitution , speaking to the need to
transform the historical systems of prejudice and exclusion that existed for so long in
our country. In Mahlangu, it was observed that “the right to equal protection of the law,
the right not to be discriminated against unfairly and the right to dignity are of singular
importance in our constitutionalism”.65
62 Id at para 32.
63 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
64 Id at para 144.
65 Mahlangu above n 41 at para 117.
KOLLAPEN J
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[69] The paramount nature of the best interests of the child p rinciple is
well-established in the jurisprudence of this Court. 66 In Radhuva,67 although in the
context of the arrest and detention of child offenders, this Court underlined the fact that
the need for society to be sensitive to a child ’s inherent vu lnerability lies behind
section 28(2) of the Constitution.68
The importance of the purpose of the limitation
[70] In the absence of any reason advanced by the state respondents for the limitation
of the rights to dignity, equality and to have the best interests of the child considered by
section 40 of the Children’s Act , I consider an issue raised in a different context by
the CCL.
[71] The CCL argued in relation to remedy that including the undefined term
“permanent life partner” in section 40 could lead to legal uncertainty. It could be argued
the limitation found in section 40 may well be in line with the absence of legal
provisions providing for the registration and regulation of permanent life partnerships.
That, however, could hardly constitute a legitimate purpose as it would again place the
legal and regulatory aspects of a relationship above its inherent worth.
[72] In Du Toit , this Court also grappled with the possible justification for the
limitation of the rights of same-sex adoptive parents, in the absence of state justification.
It said:
“One of the considerations that could have been raised by the respondents to justify the
constitutional limitations in issue, relates to the procedures available for regulating and
66 See generally Centre for Child Law v Media 24 Ltd [2019] ZACC 46; 2020 (4) SA 319 (CC) ; 2020 (3) BCLR
245 (CC); AB v Minister of Social Development [2016] ZACC 43; 2017 (3) SA 570 (CC) ; 2017 (3) BCLR 267
(CC) and Centre for Child Law v Minister for Justice and Constitutional Development [2009] ZACC 18; 2009 (6)
SA 632 (CC); 2009 (11) BCLR 1105 (CC).
67 MR v Minister of Safety and Security [2016] ZACC 24; 2016 (2) SACR 540 (CC); 2016 (10) BCLR 1326 (CC)
(Raduvha).
68 Id at para 57.
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safeguarding the interests of children in the event of the termination or breakdown of
the relationship between same-sex couples who may be joint adoptive parents.”69
[73] This same consideration may be relevant in this matter in support of the view
that the limitation may be justifiable. It could be said that the limitation serves to
mitigate a perceived risk that might be posed by the absence of procedures for
safeguarding the interests of children born of such relationships might pose if and when
that relationship ends.
[74] A striking and admirable feature of our law is the comprehensive manner in
which it has given effect to the best interests of the child principle. It is a principle that
has not been shackled by formalism or bureaucracy. There are sufficient procedures70
available, located across various institutions ,71 that provide a proper legal basis to
ensure that the rights and interests of children will be protected in the event a permanent
life partnership ends for whatever reason. All of these exist against the backdrop of the
69 Du Toit above n 59 at para 33.
70 Sections 18 to 41 of the Children’s Act provide for all instances in which parental rights and responsibilities are
involved. Section 18(2) specifically defines what these rights and responsibilities encompass:
“(2) The parental responsibilities and rights that a person may have in respect of a child,
include the responsibility and the right—
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.”
See also, for example, section 9 of the Children’s Act which requires that:
“In all matters concerning the care, protection and well -being of a chi ld the standard that the
child’s best interest is of paramount importance, must be applied.”
And section 15(1) which provides that:
“Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights or t his Act has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights.”
And section 33(1) which provides that:
“The co -holders of parental responsibilities and rights in respect of a child may agree on a
parenting plan determining the exercise of their respective responsibilities and rights in respect
of the child.”
71 Including Children’s Courts, the Office of the Family Advocate and Maintenance Courts.
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High Court as the upper guardian of all minor children. 72 There is therefore no legal
lacuna or risk in relation to the rights of the child on this aspect that could be used to
justify the limitation of the rights in question.
The nature and extent of the limitation
[75] The limitation that section 40 of the Children’s Act imposes is extensive as it
creates an absolute bar on the automatic acquisitio n of parental rights and
responsibilities by unmarried parents. The impugned provisions do not provide for
exceptions to this exclusion nor are they even remotely open to the consideration of any
relationship other than marriage in assigning rights and responsibilities.
The relation between the limitation and its purpose
[76] In the absence of opposition to these proceedings, we have considered possible
purposes the limitation could serve based largely on the issues raised in other cases. 73
The conclusion we have reached is that the limitation serves no legitimate purpose. It
must follow that in the absence of a legitimate purpose, there is no basis to consider this
issue any further. Simply put, there can be n o relation between the limitation and an
absent or unarticulated purpose.
Less restrictive means to achieve the purpose.
[77] The impugned provisions create an absolute bar to the automatic assignment of
rights and responsibilities to all unmarried persons who have a child through artificial
fertilisation. In doing so , they fail to ackno wledge that even amongst th ose who are
unmarried there exist different types of re lationships – different in form, duration and
commitment. Section 40 does not consider any form of relationship other than marriage
and there is no attempt to explore whether forms of relationships other than marriage
may come into reckoning for the automatic assignment of rights and responsibilities.
72 See section 45(4) of the Children’s Act. See also Girdwood v Girdwood 1995 (4) SA 698 (C) at 708I-709A.
73 See [70] to [74].
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[78] If that exercise was undertaken, there could conceivably have been no reason to
have excluded permanent life partners on the basis that , even if section 40 was to
advance some legitimate societal objective, it fails at the level of not having considered
the less restrictive means to do so. In particular , it fails to have regard to the inclusion
of permanent life partnerships in the automatic assignment of rights and responsibilities
in respect of children born by artificial fertilisation.
[79] The limitation of the applicants’ and their children’s right s to dignity, equality
and to have their best interests considered is not justifiable in terms of section 36 of
the Constitution. Accordingly, section 40 is unconstitutional to the extent that it
excludes permanent life partners as automatic recipients of paren tal rights and
responsibilities.
[80] It is for all of these reasons that the impugned provisions cannot withstand the
constitutional challenge directed at them.
[81] The question arose during argument whether the exclusion of only
permanent life partners was constitutionally offensive or whether the exclusion of
others who may be in a committed relationship that falls short of a permanent life
partnership would be equally offensive. That is an important question, but one that need
not be answered in the context of this challenge. There was no attack on the impugned
provisions on that basis. Nor was there evidence placed before this Court on the further
exclusionary scope, if any, of its impact. This issue may arise again in the future, either
through litigation or through the work of Parliament and there is no need for this Court
to pronounce on it at this stage.
Remedy
[82] Therefore, i t must follow that the High Court ’s order of unconstitutionality
stands to be confirmed in that the impugned provisions unconstitutionally exclude those
in a permanent life partnership from its scope. The High Court had proposed reading
in to section 40 the term “permanent life partner/s”. This limited reading-in is consistent
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with the approach to cure an unconstitutional provision due to an omission.74 This will
include a class of people currently and unconstitutionally excluded by section 40 of
the Children’s Act. That part of the remedy would be appropriate and proper to give
effect to the relief that the applicants seek and the mischief that the section presents.
[83] While the matter of the suspension of the order did not feature in the reasoning
of the High Court, in this Court the CCL submitted that the declaration of invalidity
should be suspended . This was to afford Parliament the opportunity to properly
consider the impugned provisions and to possibly do so beyond the confines of the
constitutional deficiency found to exist in the present case.
[84] As indicated, the question of the scope of the exclusion that has been considered
by this Court is limited but there may be a need for a wider consideration. Parliament
through its deliberative and consultative processes is well placed to do that. That reason
alone would justify the suspension of the declaration of invalidity. A period of
24 months is appropriate. This may appear to be a long period in a relatively
straightforward matter, but law -making is an intensive and time -consuming exercise
which requires careful consideration and wide-ranging consultation in order to properly
hear and consider all views on an issue.75
[85] The proposed reading-in will provide an interim remedy to deal with the
unconstitutionality of the impugned provisions. In the event that Parliament does not
affect the required amendments to t he section within the two -year period , or any
extended period that this Court may grant , then section 40 as read-in, will continue to
74 Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 187.
75 The importance of public participation in legislative process cannot be understated. As was held by Sachs J in
Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC) 2006
(12) BCLR 1399 (CC) at para 235:
“All parties interested in legislation should feel that they have been given a real opportunity to
have their say, that they are taken seriously as citizens and that their views matter and will
receive due consideration at the moments when they could possibly influence decisions in a
meaningful fashion. The objective is both symbolical and practical: the persons concerned must
be manifestly shown the respect due to them as concerned citizens, and the legislators must have
the benefit of all inputs that will enable them to produce the best possible laws.”
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prevail. This will ensure that there is no lacuna with prejudicial consequences that will
arise by the coming into operation of the order of invalidity if Parliament does not act.
What will occur in that scenario is that section 40, with the reading-in, will continue to
endure either permanently or until such time as Parliament effects amendments to the
section. This is the order I intend to make.
[86] The CCL proposed that the reading -in to section 40(1) should provide that the
written consent of parties in a permanent life partnership should be given prior to them
embarking on a process of artificial fertilisation. Section 40(1) as read-in presumes that
the married persons or the permanent life partners have given their consent. I am not
convinced that there should be an additional requirement of written consent in the case
of permanent life partners . In any event , what would the purpose of such consent be?
To prove a permanent life partnership perhaps or to bind the parties to the rights and
responsibilities that flow from the section as read -in. There is no need going forward
to treat permanent life partners any differen tly from married persons in this regard and
in any event the presumption th at the section creates is rebuttable . There are other
provisions in the Children’s Act that refer to the acquisition of rights and responsibilities
by permanent life partners with no additional duty prescribed by legislation to provide
written consent or proof of such a relationship.
Retrospectivity
[87] The doctrine of objective constitutional invalidity 76 must mean that the order of
invalidity takes effect from 1 July 2007 , when section 40 came into force . There
appears to be no good reason to depart from this as its proper effect is to fix the date of
invalidity in an objectively acceptable manner. There are no unintended consequences
76 The doctrine of objective consti tutional invalidity was laid out in Ferreira v Levin N .O.; Vryenhoek v
Powell N.O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) where this Court held at para 27
that finding a law to be in conflict with the Constitution “does not invalidate t he law; it merely declares it to be
invalid”. A law that has been found to be inconsistent with the Constitution ceases to have any legal consequences.
See also Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd [2015] ZACC 12; 2015
(5) SA 370 (CC); 2015 (7) BCLR 761 (CC) in which it was held at para 20 that —
“the consequences that ordinarily flow from a declaration of constitutional invalidity include
that the law will be invalid from the moment it was promulgated. That is, the order will have
immediate retrospective effect. This is the default position.”
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that come with that and there was no suggestion that this part of the order should be any
different.
[88] The question that arises is whether the reading-in has the effect of automatically
applying section 40 as read -in to permanent life partners who had children conceived
through artificial fertilisation in the period 1 July 2007 until the date of this judgment.
There may be a need to distinguish between the legal position that should prevail in the
period 1 July 2007 until the date of this judgment and the position thereafter. It would
be fair to sa y that permanent life partners who had children through
artificial fertilisation before the date of this order will have arranged their affairs and
made decisions in accordance with the law as it then stood. They are accordingly
entitled to expect that th e legal regime that then prevailed will continue to apply in
respect of children who were conceived through artificial fertilisation processes in that
period. That should be the situation , unless those partners or former partners wish,
jointly to invoke t he benefit of the order of this Court, in which event , the post-order
regime will apply to them. In that situation, the presumption of consent will apply to
them, and they will, as permanent life partners, be assigned parental rights and
responsibilities. There is also no reason why this should not apply to the survivor of a
permanent life partnership.
[89] Notwithstanding that the permanent life partnership may have ceased to exist ,
either through death or by agreement, the benefit of the order of this Court could be
invoked provided that rights and responsibilities in respect of the child or children born
have not been assigned in terms of the provisions of the Children’s Act or any other
legislation to anybody and they object to the invocation. In addition , and even in the
absence of rights and responsibilities not having been assigned to any other party, the
former partner in the permanent life partnership may wish to object as well. The
principle should be that a party who was denied rights and responsibilities as a result of
the impugned provisions should be entitled to claim the benefit of the reading-in, while
a third party who has acquired rights and responsibilities, or a former partner should
have the right to object. While caution must be exercised in not unsettling or interfering
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with rights that have been assigned, a party who has been historically excluded from
acquiring such rights should at the very least have the opportunity to invoke the benefit
of this Court’s order. In that case, the part y seeking the assignment of rights and
responsibilities would be required to give written notice of such intention to the
third party or the former partner as the case may be. In the event that the third party or
former partner objects thereto and a dispute arises, the Children’s Court will determine
the dispute and make any appropriate order with regard to the best interest s of the
child principle.
A word about permanent life partners
[90] This judgment has not dealt with what would constitute a permanent life
partnership. It was not necessary to do so in order to consider and deal with the relief
that is being sought. I need to say no more than what this Court said in NCGLE v
Minister of Home Affairs and confirmed in Bwanya, listing the factors relevant in
establishing the existence of a permanent life partnership—
“the respective ages of the partners; the duration of the partnership; whether the
partners took part in a ceremony manifesting their intention to enter into a
permanent partnership, what the nature of that ceremony was and who attended it; how
the partnership is viewed by the relations and friends of the partners; whether the
partners share a common abode; whether the partners own or lease the common abode
jointly; whether and to what extent the partners share responsibility for living expenses
and the upkeep for the joint home; whether and to what extent one partner provides
financial support for the other; whether and to what extent the partners have made
provision for one another in relation to medical, pension and related benefits; whether
there is a partnership agreement and what its contents are; and whether and to what
extent the partners have made provision in their wills for one another.”77
Costs
[91] The applicants seek costs for both the proceedings in the High Court as well as
the costs for the confirmation proceedings in this Court. In the High Court, the
77 Bwanya above n 24 at para 76 confirming NCGLE v Minister of Home Affairs above n 47 at para 88.
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applicants only sought costs in the event of the application being opposed. There was
no opposition in the High Court and th at Court accordingly made no order as to costs.
Under these circumstances, it is inconceivable that the applicants, in this Court, can now
seek to revisit the costs order of the High Court. That order was correctly made and is
unassailable. In any event, there has been no appeal against that order of costs, and it
is impermiss ible for the applicants to seek to revive an issue that has been finally
disposed of. The High Court costs order must stand.
[92] The applicants also seek costs in this Court. They argue that confirmation by
this Court is essential for any relief they seek, and if this Court were to confirm the
order of constitutional invalidity of the High Court, they should be entitled to their costs.
This, notwithstanding that there was no opposition from the State respondents to the
confirmation proceedings.
[93] There are a number of considerations that arise in the determination of an
appropriate costs order in this matter.
[94] First, the remedy that the applicants seek is only rendered complete and effective
if this Court confirms the order of constitutional invalidity made by the High Court.
The confirmation proceedings are therefore a necessary step in the assertion and
vindication of the rights of the applicants.
[95] Second, in Levenstein,78 this Court held the following in respect of confirmation
proceedings where the state respondent elected to abide the decision of the Court:
“These are proceedings which have been brought to this Court in terms of
section 167(5) of the Constitution. The applicants submitted that the Minister must pay
the costs of confirmation proceedings. The Minister disagrees and cites recent
decisions in which costs were only awarded where the confirmation was opposed.
The Minister contends that each party should pay its own costs in this matter , as he
78 NL v Estate Late Frankel [2018] ZACC 16; 2018 (2) SACR 283 (CC); 2018 (8) BCLR 921 (CC) (Levenstein).
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does not oppose confirmation. The applicants succ essfully challenged the
constitutionality of section 18 of the [Criminal Procedure Act] in the High Court where
they were awarded costs. It is the norm to award costs in favour of a successful
applicant for a confirmation, and there is no reason why this principle should not apply
in this matter. The fact that the Minister has not opposed the confirmation proceedings
does not in itself provide a sufficient basis for this Court to deviate from this principle.
In the circumstances the Minister should pay t he costs of the confirmation
proceedings.”79
[96] The approach taken by this Court in respect of costs has been that an applicant’s
successful assertion of a constitutional right should ordinarily entitle them to costs. That
the applicants did not seek costs i n the High Court is of no relevance and cannot
determine how costs in this Court are to be dealt with. Confirmation proceedings are
separate, substantive proceedings and given that the applicants have achieved success
in these proceedings they should be e ntitled to their costs in this Court , which should
include the costs of two counsel.
Order
[97] The following order is made:
1. The declaration of constitutional invalidity of section 40 of
the Children’s Act 38 of 2005 (Children’s Act) made by the High Court
is confirmed in the terms set out in paragraphs 2, 3, 4, 5 and 6 of this
order.
2. It is declared that the impugned provisions of the Children’s Act unfairly
and unjustifiably discriminate on the basis of marital status and sexual
orientation by excluding the words:
(a) “or permanent life partner” after the word “spouse” and “husband”
wherever such words appear in section 40 of the Children’s Act;
and
79 Id at para 79.
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(b) “or permanent life partners” after the word “spouses” wherever
such word appears in section 40 of the Children’s Act.
3. The declaration of constitutional invalidity referred to in paragraph 1
takes effect from 1 July 2007, but its operation is suspended for 24 months
from the date of this order to afford Parliament an opportunity to remedy
the constitutional defects giving rise to the constitutional invalidity.
4. From the date of the order of this Court section 40 of the Children’s Act
will read as follows – the underlined words being read into the section as
it is currently formulated:
“(1) (a) Whenever the gamete or gametes of any person other than a
married person or his or her spouse or permanent life partner
have been used with the consent of both such spouses or
permanent life partners for the artificial fertilisation of one
spouse or one pe rmanent life partner , any child born of that
spouse or permanent life partner as a result of such artificial
fertilisation must for all purposes be regarded to be the child
of those spouses or permanent life partners as if the gamete or
gametes of those spouses or permanent life partners had been
used for such artificial fertilisation.
(b) For the purpose of paragraph (a) it must be presumed, until the
contrary is proved, that both spouses or permanent life
partners have granted the relevant consent.
(2) Subject to section 296, whenever the gamete or gametes of any person
have been used for artificial fertilisation of a woman, any child born
of that woman as a result of such artificial fertilisation must for all
purposes be regarded to be the child of that woman.
(3) Subject to section 296, no right, responsibility, duty or obligation
arises between a child born of a woman as a result of artificial
fertilisation and any person whose gamete has or gametes have been
used for such artificial fertilisation or the blood relations of that person,
except when-
(a) that person is the woman who gave birth to that child; or
(b) that person was the husband or permanent life partner of such
woman at the time of such artificial fertilisation.”
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5. In respect of the period 1 July 2007 until the date of this order, the
following shall be the position:
(a) The reading-in provided for in paragraph 4 above will not apply to
persons who were permanent life partners at the time of the
artificial fertilisation unless they invoke the benefit of this order
by a written declaration signed by both of them. In such event the
provisions of section 40(1)(a) as read-in will apply.
(b) In the event that rights and responsibilities in respect of the
child/children so born has been assigned to any third party/ies in
terms of the Children’s Act or any other legislation, or are enjoyed
by a former partner of the permanent life partnership only, then:
(i) The party seeking to invoke the benefit of this order will
give written notice to the party/ies or former partner of their
intention to do so and afford the third party or former
partner an opportunity to object thereto.
(ii) If the third party or former partner objects in writing thereto,
the matter must then be referred to the Children’s Court
which will determine the procedure to be followed and issue
appropriate orders and directions within its powers.
(iii) The Children’s Court, after considering the matter . may
make any order that is just and equitable and in doing so ,
shall be guided by what the best interest s of the
child/children in question require.
6. In the event that Parliament does not remedy the constitutional deficiency
in section 40 within the period provided for in paragraph 3 of this order,
or any extended period granted by this Court, then section 40 will be
deemed to read as set out in paragraphs 4 and 5 above.
7. The respondents are to pay the applicants ’ costs in this Court including
the costs of two counsel.
For the First and Second Applicants:
For the Amicus Curiae:
A de Vos SC and H Botma instructed by
Adele Van De Walt Incorporated
K Ozah instructed by Centre for
Child Law