children. They could not do so jointly because current legislation confines the right to adopt children jointly to married couples. Consequently, the second applicant alone became the adoptive parent.
Some years later, the applicants brought an application in the Pretoria High Court challenging the constitutional validity of sections 17(a), 17(c) and 20(1) of the Child Care Act and section 1(2) of the Guardianship Act which provide for the joint adoption and guardianship of children by married persons only. In the High Court, the relevant provisions of the Child Care Act were challenged on the grounds that they violate the applicants’ rights to equality and dignity and do not give paramountcy to the best interests of the child as required by section 28(2) of the Constitution. Kgomo J found that these provisions of the Child Care Act and the Guardianship Act violated the Constitution and ordered the reading in of certain words into the impugned provisions so as to allow for joint adoption and guardianship of children by same-sex life partners. The applicants now seek confirmation by this Court of the High Court order in terms of section 172(2)(a) of the Constitution.
- Act 74 of 1983.
- Act 192 of 1993.
- Section 9 of the Constitution, n 22 below.
- Section 10 of the Constitution, n 28 below.
- The High Court judgment is reported as Du Toit and Another v Minister of Welfare and Population Development and Others 2001 (12) BCLR 1225 (T).
- Section 172(2)(a) provides that: “The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”