L A S v Vorster NO and Others (1220/2004) [2008] ZAECHC 16 (28 February 2008)

L A S v Vorster NO and Others (1220/2004) [2008] ZAECHC 16 (28 February 2008)

The court found that although the applicant had validly given written consent to the adoption on 25 July 2003, she unequivocally withdrew her consent within the statutory 60-day period by taking her child back into her custody. The social workers erred in not arranging for a formal written withdrawal, but the substance of her actions amounted to a de facto withdrawal. Consequently, the adoption order was wrongly granted. However, the court held that even where an adoption order is irregularly obtained, it cannot be set aside unless it is in the best interests of the child. Expert reports indicated that the child had formed strong attachments to her adoptive parents and would suffer severe...

Citation
[2008] ZAECHC 16
Parties
Applicant: Lisa Ada Swart; Respondent: J.W. Vorster N.O.; Respondent: E. Du Toit N.O.; Respondent: Niko White; Respondent: Charmaine White; Respondent: Eloise Loots; Respondent: Margaretha Bezuidenhout; Respondent: Judy Rudd; Respondent: Suzette Marais N.O.
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
28 February 2008
Case Number
1220/2004
Procedural Posture
Review Application / Judgment on Application to Review and Set Aside Adoption Order
Outcome
Application dismissed with no order as to costs.
Judges
Pickering, Plasket
Legal Topics
Adoption Order Review, Parental Consent, Best Interests of Child, Child Care Act, Promotion of Administrative Justice Act
Family and Children Administrative Law Adoption Order Review Parental Consent Best Interests of Child Child Care Act Promotion of Administrative Justice Act

Case Brief

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Parties

Lisa Ada Swart

Applicant

J.W. Vorster N.O.

Respondent

E. Du Toit N.O.

Respondent

Niko White

Respondent

Charmaine White

Respondent

Eloise Loots

Respondent

Margaretha Bezuidenhout

Respondent

Judy Rudd

Respondent

Suzette Marais N.O.

Respondent

Procedural Posture

Review Application / Judgment on Application to Review and Set Aside Adoption Order

Legal Issues

  1. 1 Whether the applicant's consent to the adoption of her child was lawfully obtained.
  2. 2 Whether the adoption order should be set aside due to invalid consent.
  3. 3 Whether setting aside the adoption order is in the best interests of the child.

Ratio Decidendi

The court found that although the applicant had validly given written consent to the adoption on 25 July 2003, she unequivocally withdrew her consent within the statutory 60-day period by taking her child back into her custody. The social workers erred in not arranging for a formal written withdrawal, but the substance of her actions amounted to a de facto withdrawal. Consequently, the adoption order was wrongly granted. However, the court held that even where an adoption order is irregularly obtained, it cannot be set aside unless it is in the best interests of the child. Expert reports indicated that the child had formed strong attachments to her adoptive parents and would suffer severe...

Court Disposition

Application dismissed with no order as to costs.

Orders

  • The application to review and set aside the adoption order is dismissed.
  • No order as to costs; each party to pay their own costs.