Page:Du Toit v Minister of Welfare.djvu/17

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Skweyiya AJ

cannot do so. The impugned provisions of the Child Care Act thus deprive children of the possibility of a loving and stable family life as required by section 28(1)(b) of the Constitution. This is a matter of particular concern given the social reality of the vast number of parentless children in our country. The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children and I conclude that, in this regard, sections 17(a) and (c) of the Act are in conflict with section 28(2) of the Constitution.


Equality

[23]The argument advanced by the applicants in the High Court and in this Court was that the impugned provisions, in effect, differentiate on the grounds of sexual orientation and marital status, both of which are listed grounds in section 9(3) of the Constitution.[1]

[24]The High Court referred to the judgment of this Court in Harksen v Lane[2] which comprehensively describes the three stage test which is undertaken to determine whether a right


  1. Section 9 of the Constitution provides―
    “(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
    (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
    (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
    (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
    (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”
  2. Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at para 53; 1997 (11) BCLR 1489 (CC) at para 52.
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