Page:Du Toit v Minister of Welfare.djvu/11

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Skweyiya AJ

unfairly discriminating against gay and lesbian parents on the grounds of sexual orientation and marital status; second, the first applicant’s rights in terms of section 10 of the Constitution[1] in that they deny the first applicant due recognition and status as a parent of her children; and third, section 28(2) of the Constitution[2] because an absolute prohibition of joint adoptions by samesex parents cannot be in the best interests of adoptive children who are placed in the families of adoptive parents involved in permanent same-sex life partnerships. Similarly, they argued that section 1(2) of the Guardianship Act was in conflict with the Constitution on the grounds that it infringes sections 9(3) and 28(2) of the Constitution.

[17]The High Court upheld the application and declared the impugned provisions unconstitutional and invalid. It read into the relevant sections of the two statutes wording which would permit same-sex life partners jointly to adopt and be joint guardians of children. The full terms of the High Court order are as follows:

“1. It is declared that:
1.1. the omission from section 17(a) of the Child Care Act 74 of 1983 after the word ‘jointly’ of the words ‘or by the two members of a

  1. Section 10 of the Constitution, n 28 below.
  2. Section 28(2) of the Constitution provides that “A child’s best interests are of paramount importance in every matter concerning the child.”