Surrogacy Advisory Group NPC v Minister of Health (038988/2022) [2024] ZAGPPHC 431 (7 May 2024)

Surrogacy Advisory Group NPC v Minister of Health (038988/2022) [2024] ZAGPPHC 431 (7 May 2024)

The court found that the Surrogacy Advisory Group NPC failed to demonstrate genuine standing to bring the application in the public interest, as required by section 38(d) of the Constitution. The applicant did not provide sufficient evidence of direct or personal interest, nor did it present affidavits from affected individuals or members of the public supporting the challenge. The founding papers were inadequate and did not establish the applicant’s legal capacity at the time of launching the proceedings. Furthermore, the failure to join the Minister of Social Development, a necessary and affected party under the Children’s Act, was fatal to the application. The court held that both the...

Citation
[2024] ZAGPPHC 431
Parties
Applicant: Surrogacy Advisory Group NPC; Respondent: Minister of Health
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 May 2024
Case Number
038988/2022
Procedural Posture
Constitutional Application / Final Judgment
Outcome
Application dismissed on grounds of lack of standing and non-joinder of an interested party.
Judges
Retief
Legal Topics
Public Interest Standing, Non Joinder, Artificial Fertilisation Regulation, Surrogacy Agreements, Bill of Rights Limitation
Constitutional Law Civil Procedure Family and Children Public Interest Standing Non Joinder Artificial Fertilisation Regulation Surrogacy Agreements Bill of Rights Limitation

Case Brief

Summary, issues, holding and outcome

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Parties

Surrogacy Advisory Group NPC

Applicant

Minister of Health

Respondent

Procedural Posture

Constitutional Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant has locus standi to bring a constitutional challenge in the public interest.
  2. 2 Whether the Minister of Social Development should have been joined as an interested and affected party.
  3. 3 Whether the founding papers adequately demonstrate a direct and personal interest in the challenge to regulation 10(2)(a).

Ratio Decidendi

The court found that the Surrogacy Advisory Group NPC failed to demonstrate genuine standing to bring the application in the public interest, as required by section 38(d) of the Constitution. The applicant did not provide sufficient evidence of direct or personal interest, nor did it present affidavits from affected individuals or members of the public supporting the challenge. The founding papers were inadequate and did not establish the applicant’s legal capacity at the time of launching the proceedings. Furthermore, the failure to join the Minister of Social Development, a necessary and affected party under the Children’s Act, was fatal to the application. The court held that both the...

Court Disposition

Application dismissed on grounds of lack of standing and non-joinder of an interested party.

Orders

  • The respondent is granted condonation for the late filing of its answering affidavit.
  • The application is dismissed with costs of two counsel, one being Senior Counsel. Senior Counsel’s costs to be recovered and taxed on scale C and junior Counsel’s costs to be recovered and taxed on scale B.