TT and Another v Minister of Social Development and Others (20/43969) [2022] ZAGPJHC 931; [2023] 1 All SA 803 (GJ); 2023 (2) SA 565 (GJ) (19 November 2022)

TT and Another v Minister of Social Development and Others (20/43969) [2022] ZAGPJHC 931; [2023] 1 All SA 803 (GJ); 2023 (2) SA 565 (GJ) (19 November 2022)

The court found that the Department and its social workers unlawfully interfered with the adoptions of B and L by misinterpreting and misapplying the Children’s Act and the Guidelines, causing unjustified delays and breaching the constitutional rights of the applicants and the minor children. The Department’s Practice Guidelines on National Adoption were declared invalid as they were inconsistent with the Constitution and the Children’s Act, imposed requirements not contemplated by law, and were promulgated ultra vires. The Department’s refusal to issue a recommendation letter for B’s adoption was reviewable and set aside, as it was based on material errors of law, irrelevant...

Citation
[2022] ZAGPJHC 931
Parties
Applicant: TT; Applicant: BM; Respondent: Minister of Social Development; Respondent: Member of the Executive Council for Social Development, Gauteng; Respondent: Head of Department, Gauteng Department of Social Development; Respondent: Sinah Phiri; Respondent: Livhuwani Mufamadi-Malaka; Respondent: Pearl Hlatshwako; Respondent: Member of the Executive Council for Health, Gauteng; Respondent: Evelyn Mahlangu; Respondent: Goitsemang Botes; Respondent: South African Council for Social Service Professions; Respondent: MBC; Respondent: TLC; Respondent: MT; Respondent: BAT; Amicus Curiae: Centre for Child Law
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 November 2022
Case Number
20/43969
Procedural Posture
Review Application / Final Judgment After Opposed Application
Outcome
Application granted. The Department’s Practice Guidelines on National Adoption declared invalid and set aside. The letter of non-recommendation for B’s adoption is reviewed and set aside, substituted with a recommendation for adoption. The pending review proceedings regarding L’s adoption are permanently stayed....
Judges
E F Dippenaar
Legal Topics
Adoption Procedure, Children S Act Interpretation, Best Interests of Child, Administrative Review Under Paja, Privacy and Confidentiality, Doctrine of Legality
Family and Children Administrative Law Constitutional Law Adoption Procedure Children S Act Interpretation Best Interests of Child Administrative Review Under Paja Privacy and Confidentiality +1 more

Case Brief

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Parties

TT

Applicant

BM

Applicant

Minister of Social Development

Respondent

Member of the Executive Council for Social Development, Gauteng

Respondent

Head of Department, Gauteng Department of Social Development

Respondent

Sinah Phiri

Respondent

Livhuwani Mufamadi-Malaka

Respondent

Pearl Hlatshwako

Respondent

Member of the Executive Council for Health, Gauteng

Respondent

Evelyn Mahlangu

Respondent

Goitsemang Botes

Respondent

South African Council for Social Service Professions

Respondent

MBC

Respondent

TLC

Respondent

MT

Respondent

BAT

Respondent

Centre for Child Law

Amicus Curiae

Procedural Posture

Review Application / Final Judgment After Opposed Application

Legal Issues

  1. 1 Whether the Department of Social Development and its social workers unlawfully interfered with the adoptions of minor children B and L.
  2. 2 Whether the Department's Practice Guidelines on National Adoption are inconsistent with the Constitution and the Children’s Act 38 of 2005.
  3. 3 Whether the Department's refusal to issue a recommendation letter for the adoption of B was lawful and reviewable under PAJA or the principle of legality.

Ratio Decidendi

The court found that the Department and its social workers unlawfully interfered with the adoptions of B and L by misinterpreting and misapplying the Children’s Act and the Guidelines, causing unjustified delays and breaching the constitutional rights of the applicants and the minor children. The Department’s Practice Guidelines on National Adoption were declared invalid as they were inconsistent with the Constitution and the Children’s Act, imposed requirements not contemplated by law, and were promulgated ultra vires. The Department’s refusal to issue a recommendation letter for B’s adoption was reviewable and set aside, as it was based on material errors of law, irrelevant...

Court Disposition

Application granted. The Department’s Practice Guidelines on National Adoption declared invalid and set aside. The letter of non-recommendation for B’s adoption is reviewed and set aside, substituted with a recommendation for adoption. The pending review proceedings regarding L’s adoption are permanently stayed....

Orders

  • The court file is declared confidential and anonymity of the applicants, minor children, and prospective adoptive parents is to be maintained.
  • The first to third respondents must redact all documents on CaseLines within three days, removing personal details of the applicants, minor children, and third parties.