South Africa Case Law

Minister: Western Cape Department of Social Development v BE obo JE and Another (379/2019)

Minister: Western Cape Department of Social Development v BE obo JE and Another (379/2019) [2020] ZASCA 103; [2020] 4 All SA 650 (SCA); 2021 (1) SA 75 (SCA) (16 September 2020)

Court

Supreme Court of Appeal

Case number

379/2019

Judges

Ponnan, Wallis, Makgoka, Dlodlo, Nicholls

The Supreme Court of Appeal held that the Minister and the Department of Social Development act as regulators, not operators, of places of care. The statutory framework, including the Child Care Act and its regulations, does not impose a legal duty on the Minister to ensure the operational safety of playground equipment. Responsibility for the design, maintenance, and safety of such equipment lies with the operators and local authorities. The court found that imposing liability on the Minister for injuries arising from defective equipment would be unduly burdensome, contrary to public policy,…

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• Wrongfulness
• Legal Duty Of Care
• Child Care Act
• Quality Assurance Review
• Public Policy Considerations
• Statutory Interpretation

S v Tono (R1/2020)

S v Tono (R1/2020) [2020] ZAFSHC 13 (29 January 2020)

Court

Free State High Court, Bloemfontein

Case number

R1/2020

Judges

Opperman, Naidoo

On special review, the High Court set aside a guilty conviction entered under a repealed statute and remitted the matter for trial de novo.

• Repeal Of Statute
• Child Care Act
• Children S Act
• Special Review
• Conviction Set Aside
• Special-review

Child Welfare South Africa Stilfontein and Others v Commissioner of Child Welfare Klerksdorp and Others (45636/2007)

Child Welfare South Africa Stilfontein and Others v Commissioner of Child Welfare Klerksdorp and Others (45636/2007) [2010] ZAGPPHC 66 (21 July 2010)

Court

North Gauteng High Court, Pretoria

Case number

45636/2007

Judge

N M Mavundla

The High Court dismissed a review of a child welfare detention order, discharged the interim order, and held that Baby Venter should be returned to the third respondent.

• Child Custody
• Review Of Administrative Action
• Best Interests Of The Child
• Child Care Act
• Interim Orders
• Child-custody

Swart v Vorster NO and Others (1220/2004)

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

Court

High Courts - Eastern Cape

Case number

1220/2004

Judges

Pickering, Plasket

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 c…

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• Adoption Order Review
• Parental Consent
• Best Interests Of Child
• Promotion Of Administrative Justice Act
• Child Care Act
• Rescission Of Adoption

L A S v Vorster NO and Others (1220/2004)

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

Court

High Courts - Eastern Cape

Case number

1220/2004

Judges

Pickering, Plasket

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 indi…

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• Adoption Order Review
• Parental Consent
• Best Interests Of Child
• Child Care Act
• Promotion Of Administrative Justice Act

AD and Another v DW and Others (CCT48/07)

AD and Another v DW and Others (CCT48/07) [2007] ZACC 27; 2008 (3) SA 183 (CC); 2008 (4) BCLR 359 (CC) (7 December 2007)

Court

Constitutional Court

Case number

CCT48/07

Judges

Sachs, Langa, Moseneke, Madala, Mpati, Ngcobo, Nkabinde, Skweyiya, Van der Westhuizen, Yacoob

The Constitutional Court held that while the High Court’s jurisdiction to grant sole custody and sole guardianship orders to foreigners is not ousted by law, such orders should not be used to bypass the Children’s Court adoption process except in truly exceptional cases. The Children’s Court is the appropriate forum to determine the best interests of the child in adoption matters, as it provides necessary safeguards and procedures. The principle of subsidiarity, which prioritises placement within the child’s country of origin, must be applied flexibly and subordinated to the paramountcy of th…

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• Inter Country Adoption
• Subsidiarity Principle
• Best Interests Of Child
• Sole Custody And Guardianship
• Child Care Act
• Children S Act

S v Mangwane and Another (913/07)

S v Mangwane and Another (913/07) [2007] ZAFSHC 141 (6 December 2007)

Court

Free State High Court, Bloemfontein

Case number

913/07

Judges

Rampai, Ebrahim

High Court review setting aside two juvenile convictions and referring the matters to the children’s court after failed reform-school placement.

• Juvenile Offenders
• Reform School Placement
• Children S Court Referral
• Criminal Procedure Act
• Child Care Act
• Juvenile-offenders

DG and Another v W and Others (379/06)

DG and Another v W and Others (379/06) [2007] ZASCA 87; 2007 (5) SA 184 (SCA) (1 June 2007)

Court

Supreme Court of Appeal

Case number

379/06

Judges

Heher, Ponnan, Theron, Hancke, Snyders

The majority of the Supreme Court of Appeal held that the High Court should not sanction the removal of a child from South Africa under a custody and guardianship order for the purpose of inter-country adoption, as this circumvents the statutory safeguards and procedures established for adoption in the children’s court. The principle of subsidiarity, which requires that inter-country adoption be considered only when no suitable local care is available, was not satisfied on the evidence. The procedural route chosen by the appellants denied the child the protections afforded by domestic and int…

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• Inter Country Adoption
• Best Interests Of Child
• Subsidiarity Principle
• Child Care Act
• Hague Convention
• Guardianship Vs Adoption

DG and Another v W and Others (25316/05)

DG and Another v W and Others (25316/05) [2006] ZAGPHC 34; 2006 (6) SA 51 (W) (21 April 2006)

Court

High Courts - Gauteng

Case number

25316/05

Judge

Goldblatt

The High Court declined to grant the relief sought, holding that inter-country adoptions must be processed through the Children’s Court in accordance with the Child Care Act and the Hague Convention. The court found that bypassing these procedures by seeking sole custody and guardianship via the High Court circumvents statutory protections and international obligations, including the subsidiarity principle and the requirement that the best interests of the child be determined by the competent authority. The court emphasized that commissioners of child welfare are better equipped to assess ado…

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• Intercountry Adoption
• Child Custody
• Guardianship
• Subsidiarity Principle
• Child Care Act
• Hague Convention

Van Wyk v Van Wyk and Another (366/2006)

Van Wyk v Van Wyk and Another (366/2006) [2006] ZANWHC 24 (30 March 2006)

Court

North West High Court, Mafikeng

Case number

366/2006

Judge

M.T.R. Mogoeng

The High Court restored custody of two minor children to their mother, holding that the Children’s Court process could not effectively override the existing custody order.

• Custody Of Minors
• Urgent Interdict
• Child Care Act
• Best Interests Of Child
• Child-custody
• Urgent-application