The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Du Toit

Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae)  () SA  (CC) CASE SUMMARY Facts The applicants were a lesbian couple who had been in a life partnership since . They wished to adopt jointly two children. However, the relevant adoption legislation only allowed for heterosexual couples to adopt children jointly. The second applicant alone therefore became the adoptive parent of the children. Several years later the applicants brought an application in theTransvaal Provincial Division for an order declaring unconstitutional and invalid sections (a), (c), and () of the Child Care Act  of  and section () of the Guardianship Act  of  on the grounds that they prohibited homosexual couples from adopting children. The applicants argued that these provisions provided for the joint adoption and guardianship of children by married persons only, and therefore the rights to dignity and equality of members of a same-sex life partnership were infringed and the best interests of the child were not given paramount consideration as required by section () of the Constitution. This case came before the Constitutional Court some years prior to the extension of marriage to include same-sex couples. Legal History The High Court found that the provisions of the two acts violated the Constitution and ordered the reading in of certain words into the impugned provisions so as to Du Toit allow for joint adoption and guardianship of children by same-sex life partners. The applicants sought confirmation by the Constitutional Court of the High Court order. The respondents did not oppose confirmation. Issues Do the statutes limiting joint adoption to heterosexual unjustifiably infringe the rights to dignity and equality of members of a same-sex life partnership and fail to give paramount consideration to the best interests of the child? Decision of the Constitutional Court In a unanimous judgment of Acting Justice Skweyiya (as he then was), the Court held that preventing children from being adopted jointly by same-sex couples who were otherwise eligible to be parents deprived those children of a loving and stable family life as required by section ()(b) of the Constitution. The provisions of the Child Care Act therefore failed to give paramount importance to the rights of the child and were inconsistent with the Constitution for that reason (paragraph ). These provisions also constituted unfair discrimination on the grounds of sexual orientation. The failure by section () of the Guardianship Act to allow same-sex couples to adopt children jointly infringed their right to dignity as it failed to recognize the equal worth of the applicants as parents (paragraph ).This provision was therefore also inconsistent with the Constitution. Acting Justice Skweyiya held that these limitations on the applicants’ rights and the best interests of the child were not justifiable. Order The court confirmed the order of the High Court permitting joint adoption. Comment The court held that the failure to permit same-sex couples to jointly adopt a child violated the rights to equality and dignity of the would-be adoptive parents and the principle that the best interests of a child are paramount. It was not argued, nor did the court consider, whether the legislation also violated the right to dignity of the child. Surely an adoptive child and adoptive parents share an interest, protected by the right to dignity, in having their relationship recognized by the law? Or is the right to dignity of a child already encapsulated in the principle of the paramountcy of the best interests of the child? ACTING JUSTICE SKWEYIYA The Constitutional Context [] [. . .] Recognition of the fact that many children are not brought up by their biological parents is embodied in section ()(b) of our Constitution which guar-  Legal Cases (–) antees a child’s right to “family care or parental care.” Family care includes care by the extended family of a child, which is an important feature of South African family life. It is clear from section ()(b) that the Constitution recognizes that family life is important to the well-being of all children. Adoption is a valuable way of affording children the benefits of family life that might not otherwise be available to them. [] The institutions of marriage and family are important social pillars that provide for security, support, and companionship between members of our society and play a pivotal role in the rearing of children. However, we must approach the issues...