This case involves a dispute between an unmarried couple regarding the adoption of their biological child. Between 1994-1995, the couple lived together in a commune in Johannesburg, during which time the woman (“Respondent 2”) became pregnant with their child. Shortly after learning of the pregnancy, Respondent 2 decided that it was in the child’s best interests to put him up for adoption. The man (“Respondent 1”) adamantly opposed the adoption, and filed a claim to prevent her from putting his biological son up for adoption. The lower court vacated his initial claim, but the Minister of Justice issued an immediate stay on adoption proceedings until the matter was resolved. Respondent 2 gave birth to a boy on December 12, 1995.
Considerable litigation ensued on the parental rights of the biological (but unmarried) father and the issue of the father’s consent to adoption in Children’s Court. Respondent 2 continually sought to stay the adoption proceedings pending the submission of an application to the Constitutional Court challenging the constitutionality of Section 18(4)(d) of the Child Care Act 74 (1983) (“Act”), which does not require paternal consent of the adoption of an illegitimate child. In May 1996, the court in Pretoria set aside the adoption order submitted by Respondent 1.
At issue in this case is whether Section 18(4)(d) of the Child Care Act 74 (1983) (“Act”) is inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 (the “interim Constitution”). Respondent 1 challenged Section 18(4)(d) because it requires a Children’s Court to obtain the consent of both parents before it may issue an order for the adoption of a child born to married parents, but does not require paternal consent for the adoption of a child born to unmarried parents.
Under the Act, the term “legitimate” includes those children born of a relationship solemnized by a civil marriage recognized by the State. Under Section 27 of the Act, “legitimate” children also includes children born of a customary union solemnized according to Black law or custom, as defined by the Black Administration Act.
The Court determined that Section 18(4)(d), read in conjunction with Section 27, was inconsistent with the equality provision in Section 8 of the interim Constitution. Therefore, the Court held that the Section 18(4)(d) discriminates between fathers in Black customary unions and fathers in marriages contracted according to religious rites. The Court said that the violation of the equality provision was unreasonable and unjustifiable in an open and democratic society that is based on freedom and equality.
The Court agreed with the argument that Section 18(4)(d) unfairly discriminated against fathers based on their gender and/or their marital status, and that such discrimination could lead to anomalous and unfair results. For example, under the Act, paternal consent to the adoption of his “illegitimate” child is unnecessary even if the child was eighteen years old and had a strong relationship with the father; and yet maternal consent is required even if she has not shown the slightest interest in the child. The Court determined that a simple deletion of the provisions of Section 18(4)(d) that are inconsistent with the Constitution would not remedy the situation, because such a deletion would make every parent’s consent necessary for every proposed adoption of a child, regardless of the circumstances. For example, this change would even require the consent of a rapist if the rape survivor attempts to put the child up for adoption.
The Court concluded that it must take a nuanced and balanced consideration of the factual demographic picture in South Africa, the nature of parental relationships, and the interests of the child before the challenged section could be remedied.
The Court therefore held that Parliament, in the interests of justice and good government, had two years to correct the defect in the contested provision. Section 18(4)(d) of the Act thus was to remain in force pending its correction by Parliament.