Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006 ; 2003 (2) SA 198 (CC) (10 September 2002)

Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006 ; 2003 (2) SA 198 (CC) (10 September 2002)

The Constitutional Court held that the exclusion of same-sex life partners from joint adoption and guardianship under the Child Care Act and Guardianship Act constitutes unfair discrimination on the grounds of sexual orientation and marital status, violating sections 9(3), 10, and 28(2) of the Constitution. The impugned provisions fail to accord paramountcy to the best interests of the child, as they deprive children of the possibility of a loving and stable family life with suitable same-sex parents. The Court found no justification for these limitations under section 36. The appropriate remedy is to confirm the High Court’s order and read in words to the statutes to permit joint...

Citation
[2002] ZACC 20
Parties
Applicant: Suzanne Du Toit; Applicant: Anna-Marié de Vos; Respondent: Minister for Welfare and Population Development; Respondent: Minister of Justice and Constitutional Development; Respondent: Commissioner of Child Welfare, Pretoria; Appellant: Lesbian and Gay Equality Project; Appellant: Advocate P Stais
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
10 September 2002
Case Number
CCT40/01
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Order Declaring Statutory Provisions Unconstitutional
Outcome
The Constitutional Court confirmed the High Court’s order declaring the impugned provisions unconstitutional and invalid, and ordered the reading in of words to permit joint adoption and guardianship by permanent same-sex life partners.
Judges
Skweyiya, Chaskalson, Langa, Ackermann, Du Plessis, Goldstone, Kriegler, Madala, Ngcobo, O'Regan, Sachs
Legal Topics
Equality Clause, Best Interests of Child, Joint Adoption, Same Sex Partnerships, Reading in Remedy, Human Dignity
Constitutional Law Family and Children Equality Clause Best Interests of Child Joint Adoption Same Sex Partnerships Reading in Remedy Human Dignity

Case Brief

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Parties

Suzanne Du Toit

Applicant

Anna-Marié de Vos

Applicant

Minister for Welfare and Population Development

Respondent

Minister of Justice and Constitutional Development

Respondent

Commissioner of Child Welfare, Pretoria

Respondent

Lesbian and Gay Equality Project

Appellant

Advocate P Stais

Appellant

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Order Declaring Statutory Provisions Unconstitutional

Legal Issues

  1. 1 Whether the exclusion of same-sex life partners from joint adoption and guardianship under the Child Care Act and Guardianship Act violates the Constitution.
  2. 2 Whether the impugned provisions infringe the rights to equality, dignity, and the paramountcy of the best interests of the child.
  3. 3 Whether the limitation of these rights is justifiable under section 36 of the Constitution.

Ratio Decidendi

The Constitutional Court held that the exclusion of same-sex life partners from joint adoption and guardianship under the Child Care Act and Guardianship Act constitutes unfair discrimination on the grounds of sexual orientation and marital status, violating sections 9(3), 10, and 28(2) of the Constitution. The impugned provisions fail to accord paramountcy to the best interests of the child, as they deprive children of the possibility of a loving and stable family life with suitable same-sex parents. The Court found no justification for these limitations under section 36. The appropriate remedy is to confirm the High Court’s order and read in words to the statutes to permit joint...

Court Disposition

The Constitutional Court confirmed the High Court’s order declaring the impugned provisions unconstitutional and invalid, and ordered the reading in of words to permit joint adoption and guardianship by permanent same-sex life partners.

Orders

  • The order made by Kgomo J in the High Court is confirmed.
  • It is declared that the omission from section 17(a) of the Child Care Act 74 of 1983 after the word 'jointly' of the words 'or by the two members of a permanent same-sex life partnership jointly' is inconsistent with the Constitution and invalid.