Swart v Vorster NO and Others (1220/2004) [2009] ZAECHC 26 (28 February 2009)

Swart v Vorster NO and Others (1220/2004) [2009] ZAECHC 26 (28 February 2009)

The court found that although the applicant had signed written consent for the adoption, she unequivocally withdrew her consent within the statutory 60-day period by taking her child back into her custody. The social workers erred by not formalising the withdrawal, but the substance of her actions amounted to a de facto withdrawal of consent. 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. After considering expert reports, the court concluded that the child had formed strong psychological bonds with her adoptive parents and would...

Citation
[2009] ZAECHC 26
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 2009
Case Number
1220/2004
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with no order as to costs.
Judges
Pickering, Plasket
Legal Topics
Adoption Order Review, Parental Consent, Best Interests of Child, Promotion of Administrative Justice Act, Child Care Act, Rescission of Adoption
Family and Children Administrative Law Adoption Order Review Parental Consent Best Interests of Child Promotion of Administrative Justice Act Child Care Act Rescission of Adoption

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

Legal Issues

  1. 1 Whether the applicant's consent to the adoption of her child was validly obtained.
  2. 2 Whether the adoption order should be set aside due to lack of valid consent.
  3. 3 Whether it is in the best interests of the minor child to rescind the adoption order.

Ratio Decidendi

The court found that although the applicant had signed written consent for the adoption, she unequivocally withdrew her consent within the statutory 60-day period by taking her child back into her custody. The social workers erred by not formalising the withdrawal, but the substance of her actions amounted to a de facto withdrawal of consent. 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. After considering expert reports, the court concluded that the child had formed strong psychological bonds with her adoptive parents and would...

Court Disposition

Application dismissed with no order as to costs.

Orders

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