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7 committed a gross irregularity in not affording Mr Eraser a proper hearing.
The question as to whether section 18(4)(d) of the Child Care Act 74 of
1983 ("the Act") was inconsistent with the Constitution and invalid insofar
as it dispensed with a father's consent for the adoption of an illegitimate
child, was referred to the Constitutional Court for determination. Leave
to appeal was granted to this Court. The judgment of the court a quo is
reported as Fraser v Children's Court, Pretria North, and Others 1997(2)
SA 218 (T).
Jurisdiction
At the commencement of his argument Mr Trengove, who appeared
for Mr Fraser, raised the question whether this Court had jurisdiction to
entertain the appeal. When the events giving rise to this appeal occurred,
the Constitution of the Republic of South Africa Act 200 of 1993 ("the
interim Constitution") applied. In Fedsure Life Assurance Limited and
11 13 been in force and of application in relation to Timothy's adoption. 17 acting in terms of section 7(3) of the Act, announced that he had appointed 18 intervene in the proceedings". He disavowed that the application was one. 20 in the context of any decision to be made by the assistant with regard to 23 jurisdiction. It is required and obliged to follow and give effect to the 24 Act, on the grounds of lack of constitutionality. As I have pointed out, 26 could have satisfied him with regard to the matters mentioned in section 38 Conclusion
8
Others (a judgment of this Court in case no 328/97 delivered on 23 March 1998 and as yet unreported) it was held (at page 9 of the judgment) that in terms of the interim Constitution any attack on any administrative action on the ground that such administrative action was not lawful fell within the jurisdiction of the Constitutional Court, and for that reason outside the jurisdiction of this Court, because of the express provisions of section 101(5) of the interim Constitution (see also Rudolph and Another v Commissioner for Inland Revenue and Others 1996(2) SA 886 (A)).
The short answer (as suggested by Mr Trengove himself) would seem to be that adoption proceedings are dealt with by a children's court in the exercise of its judicial function; at the very least adoption proceedings are sui generis, having a judicial component and not being purely administrative in nature. (Napolitano v Commissioner of Child
9 Welfare, Johannesburg and Other 1965(1) SA 742 (A)at 745 F;Ex Parte
Commissioner of Child Welfare, Durban: In re Kidd 1993(4) SA 671 (N)
at 673 B - C.) Such proceedings are therefore unaffected by the decision in the Fedsure case. In any event, this Court now has constitutional jurisdiction in terms of the provisions of the Constitution of the Republic of South Africa 108 of 1996 ("the new Constitution"). In terms of section 17 of Schedule 6 to the new Constitution "[a]ll proceedings which were pending before a court when the new Constitution took
effect, must be disposed of as if the new Constitution had not been enacted, unless the interests of justice require otherwise". This Court may therefore assume a constitutional jurisdiction it would not otherwise have had if the interests of justice require it to do so. It is not necessary to consider the precise meaning of that phrase in the context of the present matter. Mr Trengove submitted, and I agree, that the interests of justice, which
would, as a
10
primary consideration, encompass the interests and well-being of Timothy,
require this Court to hear and dispose of the appeal. The common law position of an unmarried father.
Tills Court recently re-affirmed in B v S 1995(3) SA 571 (A) at 575
G-H that
"in Roman-Dutch law an illegitimate child fell under the parental authority, and thus the guardianship and custody, of its mother; the father had no such authority."
As a consequence, current South African law does not accord a father an
inherent right of access to his illegitimate child. It does, however,
recognise that access is available to the father if that is in the child's best
interests (B v S at 583 G-H; see also T v M 1997(1) SA 54 (A)).
The common law rules referred to may require reconsideration
having regard to the provisions of the new Constitution relating to, inter
alia, equality (section 9), the rights of a child (section 28) and the
requirement that a court, when developing: the common law, "must, promote the spirit, purport and objects of the Bill of Rights" (section 39(2)). This, however, is not something which need concern us further in the present appeal.
The constitutionality and applicability of section 18(4)(d) of the Act Section 18(4)(d) of the Act requires only the consent of the mother of an illegitimate child for the adoption of the child. The validity of this provision, following on the referral by the court a quo, was determined by the Constitutional Court in Fraser v Children's Court, Pretoria North and Others 1997(2) SA 261 (CC). That Court held (at 272, para 21) that the section offended section 8 of the interim Constitution because it impermissibly discriminated between the rights of a father in certain unions and those in other unions. For trenchant reasons that appear from paragraphs 47 to 49 of the judgment (at 282/3), the Court held that it could
12
not simply sever certain words from the section and declare them invalid,
nor could it simply declare the whole of section 18(4)(d) of the Act to be
invalid without invoking the proviso to section 98(5) of the interim
Constitution. It accordingly made the following order:
"1. It is declared that s 18(4)(d) of the Child Care Act 74 of 1983 is inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and is therefore invalid to the extent that it dispenses with the father's consent for the adoption of an illegitimate' child in all circumstances.
2.
In terms of the proviso to s 98(5) of the Constitution,
Parliament is required within a period of two years to
correct the defect in the said provision.
3.
The said provision shall remain in force pending its
Judgment was given on 5 February 1997. Parliament has not yet corrected
correction by Parliament or the expiry of the period
specified in para 2."
the defect in the provision. The effect of the Constitutional Court's
judgment is that section 18(4)(d) of the Act must be regarded as having
Adoption
Adoption was not part of Roman-Dutch law. It was introduced into our law in 1923 in terms of the Adoption of Children Act 25 of 1923. Adoptions are currently statutorily regulated by sections 17 to 27 of the Act, and the Regulations promulgated in terms of the Act ("the Regulations"). It may fairly be accepted that these statutory provisions are the product of long experience in adoption matters.
Adoption is the legal process through which the rights and obligations between a child and its natural parent or parents are terminated, and a new parental relationship enjoying full legal recognition is created between the child and its adoptive parent or parents. Following upon adoption the child is deemed to be the legitimate child of the adoptive parent or parents as if it were bom of a lawful marriage (section 20(2) of
14 the Act). Adoption thus supplants the, rights of natural parents in favour
of adoptive parents, while severing a child's rights in respect of the former
and transferring them to the latter. It is a process which calls for a delicate
balance to be struck when considering and weighing up the respective
interests of all the parties concerned, subject always to the best interests of
the child being paramount. The Act and Regulations give recognition to
these competing interests (see e g section 18(6) of the Act and regulation
21(3) and (7)). Regulation 21(3) is designed to avoid the simultaneous
presence of a natural and an adoptive parent in the Children's Court in the
interests of the latter's anonymity. In this respect I agree with what was
said by the judge a quo at p 233 F - H of the judgment:
"A cornerstone of an adoption hearing is the anonymity which attaches to the adoptive parents, (See, for example, reg 23(2) and 28(6).) The reasons are manifest. If the anonymity of the adoptive parents is in any way compromised, the best interests of the child will be subverted. It is clearly
15
undesirable that natural parents, especially the applicant, for example, who is so determined to stop the adoption by the adoptive parents, should become aware of their identity. It would in all probability lead to a prolonged tug-of-war, persisting even after an adoption. This would be inimical to the interests of the child."
The Children's Court's proceedings in relation to Timothy's adoption.
The events that took place on 27 December 1995 and at subsequent appearances are dealt with in the judgment of the court a quo at 221 I to 223 J. I do not propose to canvass them afresh or in detail, but shall concentrate on what I consider to be the important aspects in relation to the present appeal.
There were appearances before the commissioner on 27 December 1995, 25 January 1996 and 15 February 1996. (These dates do not coincide with those reflected in the judgment of the court a quo but are correct as far as the record goes.) An analysis of the addresses to the court
16
by Mr Fraser's attorney (Mr Soller) establishes conclusively that what was
sought throughout was leave to intervene as a party in the pending adoption application. This approach was no doubt premised, correctly in my view, on the basis that only if such leave was granted could Mr Eraser became a party to any proceedings relating to the application for Timothy's adoption by the adoptive parents. (See in this regard section 8(2) of the Act, and particularly regulation 4(2), with which I shall come to deal.) Mr Soller's attitude on behalf of Mr Fraser was made clear at the outset when he stated, at the commencement of his address on 27 December 1995, that "[m]y application is for permission to intervene." The matter did not proceed further at that stage as the other interested parties were not present or represented. It was postponed in order to allow them an opportunity to oppose Mr Fraser's application.
The proceedings resumed on 25 January 1996. The commissioner,
Miss L Grobbelaar to act as the Children's Court's assistant ("the
assistant"). Mr Soller then again made it clear that he was applying "for
leave to intervene in these proceedings". He went on to outline "the
purpose of applying to intervene in the proceedings". He also hinted at a
possible postponement or stay of the proceedings pending an application
to the Constitutional Court to have section 18(4)(d) of the Act declared
unconstitutional. (In the event nothing came of this at that stage and no
recourse to the Constitutional Court was formally sought until the review
proceedings were launched.) He further raised the question of Mr Eraser
applying for the adoption of Timothy (Mr Fraser being qualified to do so
in terms of section 17(b) of the Act). After a response by counsel (Mr
Davis) appearing for Ms Naude and the (prospective) adoptive parents Mr
Soller again reiterated "this application
was an application to
that related to the merits. The matter was then further postponed to 15 February, because in the words of the commissioner, "I think in all fairness we should grant all the parties the opportunity of putting their cases before the court".
At the resumption of the proceedings the commissioner's opening remark was that "[w]e will proceed in this application in terms of regulation 4(2) of the Child Care Act". No objection was raised to this statement. The significance of this is that there was never any suggestion that the application to intervene was anything other than one under regulation 4(2). In the interim Mr Fraser had launched a counter-application for the adoption of Timothy and certain written reports and other documents had been filed in support thereof. In his address Mr Soller pointed out that there were now two competing applications for
19 adoption, and went on to add:
"I do not believe with respect in any event that it is necessary for you any longer to give a judgment in respect of the application to intervene because that has been overtaken by an application brought by the father to adopt his own child."
Notwithstanding this, when pertinently asked by the commissioner
whether that meant that the application to intervene (and join as a party)
was being withdrawn, Mr Soller replied "Not at all, I am persisting with
my application to join". Nothing could be clearer than that. And if further
confirmation of this attitude is needed it is to be found in a later comment
made by Mr Soller, when replying to the submissions of Mr Davis, that his
client "ought to be given permission to intervene in the present adoption
proceedings. That is basis number one".
It was also in reply that Mr Soller raised for the first time, almost as
an afterthought, the question of evidence being heard. He did so mainly
whether Ms Naude had unreasonably withheld her consent to Mr Fraser
adopting Timothy.
The commissioner gave judgment on 23 February 1996. What
transpired on that occasion is set out in the following paragraphs from Mr
Fraser's founding affidavit in the review proceedings:
"17 On 23 February 1996, the First Respondent [the commissioner] delivered an oral judgment wherein he held that I had no entitlement to intervene in the pending adoption proceedings
18
Thereafter the Children's Court Assistant delivered the results of her investigation into the refusal by the Second Respondent [Ms Naude] to consent to the adoption application brought by me. The Childrens's Court Assistant found that no reasonable grounds existed to dispense with the Second Respondent's consent
Thereafter on 23 February 1996, the First
19
18
21
Respondent finalised the adoption application
brought by the Third Respondent [the adoptive parents] and granted an order of adoption in favour of the Third Respondent."
(The salient aspects of the commissioner's judgment are set out in the
judgment of the court a quo at 224 A-E.)
The learned judge in the court a quo came to the conclusion (at 223
I-J) that
"whatever may have been sought or submitted on the first two days, the applicant's [Mr Eraser's] claim on the final day was to have his counter-application for adoption decided by viva voce evidence. Whether his claim was adequately considered and dealt with must be tested as against the children's court judgment upon this claim."
He went on to hold (at 233 B)
"I find that the applicant sought to have his claim for adoption decided by viva voce evidence, to which I am satisfied he was entitled. The Commissioner's judgment frustrated the applicant's attempt and in the circumstances amounted to such prejudice as to constitute a gross
22
irregularity. In short, he was not afforded a proper hearing on.
his claim for the adoption of his own son."
As will appear from what I have set out above these findings, in my view,
do not entirely accurately reflect what transpired, and overlook the real
thrust of Mr Eraser's application. In any event, having regard to what
occurred, I do not agree, for reasons that follow, with the conclusion
reached.
Was the commissioner's decision liable to review?
It is common cause that the only ground on which Mr Eraser sought to have the decision of the commissioner to grant the adoptive parents'
adoption application reviewed and set aside, is that contained in section 24(1) of the Supreme Court Act 59 of 1959, namely, "gross
irregularity in the proceedings".
The children's court is a creature of statute. It has no inherent
provisions of the Act and the Regulations. The commissioner was
accordingly bound to deal with the matters before him strictly in
accordance with the Act and Regulations. Where their provisions vested
him with a discretion, he was required to exercise his discretion judicially
with proper regard to all relevant facts and circumstances pertaining to its
exercise. Neither this Court, nor the court a quo, may simply substitute its
view for that of the commissioner. The latter's exercise of his discretion
is only open to attack on certain circumscribed and well-known grounds
(Ex Parte Neethling and Others 1951(4) SA 331 (A)at335D-E;Reyneke
v Wetsgenootskap van Die Kaap Die Goeie Hoop 1994(1) SA 359 (A) at
369 E - F).
Mr Eraser did not in his review application seek to impugn any of
the provisions of the Act or Regulations, other than section 18(4)(d) of the
although declared unconstitutional by the Constitutional Court, the
provisions of section 18(4)(d) continue to apply in terms of that Court's
order until such time as it is amended by Parliament or a period of two
years has elapsed from the time of such order. The commissioner was
obliged to give effect to its provisions, as must this Court as matters stand
at present, despite the anomalous situation that its provisions are
unconstitutional. The unfortunate result, as far as Mr Eraser is concerned,
is that he does not at present stand to benefit personally from the
declaration of unconstitutionality, although parents similarly placed are
likely to do so in future.
Regulation 21(1) and (2) provides as follows:
"(1) If a social worker's report is lodged with the children's court to the effect that the proposed adoptive parent or parents have been selected as such by a social worker
25
and have received counselling in respect of the proposed adoption and the court has satisfied itself on the strength of the said report and such other information as it may obtain, as regards the matters mentioned in section 18(4) of the Act, the court may, in its discretion, consider the application and make an order without giving a hearing to any person. (2) If an application has not been or cannot be disposed of in terms of subregulation (1), the clerk of the children's court shall fix a date for the hearing of the application by the children's court and he shall notify the prospective adoptive parent or parents of the inquiry and shall, at the request of the children's court assistant, issue a subpoena in the form of Form 1."
It is common cause that a social worker's report was lodged in
respect of Timothy's adoption application which satisfied the requirements
of regulation 21(1). In terms of section 18(4)(d) of the Act, because
Timothy was illegitimate, only the consent of Ms Naude was required for
his adoption. The consent of Mr Eraser was by necessary implication
excluded. The information available to the commissioner was such as
18(4) of the Act. Consequently, before Mr Fraser appeared through, his
attorney on 27 December 1995 to pursue what he perceived to be his rights
in relation to the adoption application, the commissioner was in a position
to exercise his discretion to dispose of the adoption application without the
need for a hearing. There was no need for an inquiry at that stage, and
nothing to suggest that the commissioner intended to embark upon any
inquiry as envisaged in regulation 21(2).
Because of what follows, it will be convenient at this point to set out
the provisions of regulation 4(1) and (2). They provide:
"(1) Subject to the provisions of regulation 21(3) and (7) a parent or an adoptive parent of a child in respect of whom a children's court holds an inquiry, the child and a respondent shall have the same rights and powers as a party to a civil action in a magistrate's court in respect of the examination of witnesses, the production of evidence and of address to the court.
27
(2) A commissioner may allow any person who, in his opinion, has a substantial interest in the proceedings of the children's court concerned to join the proceedings, and a person who so joins shall for the purposes of these regulations be deemed to be a party to those proceedings and shall have the same rights and duties as a party referred to in subregulation (1)."
It does not follow simply from the fact that Mr Fraser put in an
appearance on 27 December 1995 that the adoption application was no
longer capable of being dealt with and disposed of in terms of regulation
21(1). His appearance per se did not convert the proceedings into an
inquiry as envisaged by the regulations, nor did it oblige the commissioner
to convert them into an inquiry at that stage. The first consideration was
whether, in the exercise of his discretion, the commissioner was prepared
to allow Mr Fraser, whom he accepted had a substantial interest in the
proceedings, to join the proceedings. It was to this end that Mr Fraser
sought leave to intervene in the proceedings in terms of regulation 4(2).
28
In the course of his judgment the judge a quo said (at 229 B -D):
"I do not agree that the proceedings before the commissioner were reg 21(1) proceedings. The applicant applied to be heard. The commissioner at no time refused to hear him on the strength of reg 21(1). On the contrary, the commissioner did accord him a hearing of a sort and then dismissed his application.
In my view, reg 21(1) gives the commissioner a discretion to deal with certain adoptions administratively without hearing persons. That is the situation where there are no disputing parties and where the hearing is accordingly unnecessary. As soon as a party with an interest objects to a proposed adoption, the matter cannot proceed administratively without hearing such party. Regulation 21(1) accordingly would have been inappropriate for the hearing which took place."
To the extent that the views expressed by the judge are at variance
with what I have said above, I respectfully disagree with them. The effect
of the second quoted paragraph is that as soon as a party with an interest
objects to a proposed adoption an inquiry perforce must be held. There is
nothing in the Act or Regulations which expressly says, or from which it
29
may necessarily be inferred, that that is the case. Furthermore, to so hold
would mean that Mr Eraser, as a parent (assuming, without deciding, that the judgment of the court a quo at 228 B - H was correct on this point) of a child in respect of whom an inquiry is held, would automatically (subject to regulation 21(3) and (7)) acquire the rights and powers conferred by regulation 4(1). This would render the provisions of regulation 4(2) largely if not entirely nugatory, for it would deprive the commissioner not only of the control over the adoption proceedings that regulation 4(2) envisages, but also deny him the discretion it affords him. It would also deprive him of his power to determine whether the matter was one which could be disposed of under regulation 21(1), or whether it would be necessary to invoke the provisions of regulation 21(2). As is apparent from the resume of the relevant events before the Children's
Court, Mr Eraser never sought to rely on regulation 4(1), and never claimed a right
30
in terms of the Act or Regulations to be a party to the pending adoption
application. What he sought was leave to intervene in the proceedings in terms of regulation 4(2). To the extent that he seeks to build a case on a foundation not previously laid, he is precluded from doing so (cf Administrator, Transvaal, and Others v Theletsane and Others 1991(2)
SA 192 (A) at 195 F - 196 E, 200 G).
As appears from regulation 4(2), a person with a substantial interest in adoption proceedings does not have a right to join such proceedings. Whether or not such a person will be allowed to join depends upon the exercise of the commissioner's discretion in his or her favour. Regulation 4(2) is intended, in my view, to operate as a sifting mechanism. It enables the commissioner in exercising his discretion also to
exercise control over who will be permitted to participate in the proceedings. Relevant considerations in this regard would include the general circumstances that
31
bear on the matter; the nature of the applicant's interest; what the
applicant's underlying purpose or motive is; what bond, if any, exists between the applicant and the child whose adoption is being sought; the need to have regard to, and maintain a balance between, the competing interests of the various concerned parties; and the need to protect the identity of the persons seeking to adopt (the list is not intended to be exhaustive). Thus if the child concerned was born in consequence of rape, the rapist would probably be turned away if he sought to join the proceedings. So too might someone who seeks to intervene from an ulterior motive and whose concern does not lie with the child; or someone whose participation in the proceedings would pose a threat to the anonymity of the prospective adoptive parents and the future well-being of the child. No blanket rule can be laid down. Ultimately each case falls to be dealt with in relation to its own particular merits (or demerits).
32 In the passage from the judgment of the court a quo which I have
quoted above reference is made to Mr Eraser having been accorded "a
hearing of a sort". This could create a wrong impression. The fact of the
matter is that it has never been suggested that the commissioner did not
give Mr Fraser a proper hearing in regard to his regulation 4(2)
application. Indeed, as the record shows, the commissioner went out of his
way to accommodate Mr Fraser and to ensure that all the interested parties,
and particularly Mr Fraser, be given a full opportunity of being heard. Nor
has it ever been contended that in exercising his discretion against Mr
Fraser by refusing to allow him to intervene in the proceedings the
commissioner acted unreasonably, arbitrarily, capriciously or with an
improper motive or purpose - in short, that he failed to exercise his
discretion judicially. The review application never sought to challenge the
way in which the commissioner exercised his discretion in this regard.
33
Once the commissioner refused Mr Fraser's application for leave to
intervene, the position effectively reverted to what it was at 27 December 1995 before Mr Fraser put in his appearance, save for the counter-application for Timothy's adoption subsequently lodged by Mr Eraser. Did this disentitle the commissioner from proceeding in terms of regulation 21(1) and oblige him to embark upon an inquiry in terms of regulation 21(2)? In my view not. On the law as it stood and had to be applied the counter-application was doomed to failure. It did not carry with it Ms Naude's consent, an essential pre-requisite in terms of section 18(4)(d) of the Act, unless unreasonably withheld. In terms of section 19 of the Act no consent in terms of section 18(4)(d) shall
be required from any parent who is withholding his or her consent unreasonably. In terms of regulation 21(4) it was for the assistant in the first instance to investigate whether reasonable grounds existed for dispensing
with Ms
34 Naude's consent. She formed the opinion that no such grounds existed.
Her opinion was reached with regard to the considerations mentioned in the report she presented after Mr Eraser's application to intervene had been dismissed. In effect she concluded that Ms Naude's consent had not been unreasonably withheld, a conclusion which (so it must be inferred) was accepted by the commissioner. Once that conclusion was reached there was no need for the clerk of the court to serve the notice contemplated in regulation 21(4) requiring the person withholding consent, viz Ms Naude, to appear at a stated time and place to show why her consent should not be dispensed with. The effect of that conclusion was also that the counter-application had no prospect of success because the law precluded it being granted. Any hearing of evidence in relation thereto would
have served no purpose. It must be borne in mind that to the extent that an opportunity was sought to have evidence heard its purpose was to advance Mr Eraser's
35 counter-application. This would have been an exercise in futility. It was
never sought to lead evidence, designed to defeat the adoptive parents' application for adoption, directed at showing that certain provisions of section 18(4) of the Act had not been satisfied.
It is correct that the assistant did not hear any evidence before forming her opinion, as Mr Soller in his final address suggested that she should. She had, however, been present during the presentation of argument on 25 January and 9 February 1996. She had available to her the reports and other documents filed by Mr Eraser in support of his counter-application. To that extent her opinion was an informed one. A right to be heard does not necessarily include a right to lead evidence. But in any event, her conclusion was never the subject of any attack in the review application on the ground that she failed to give Mr Fraser a hearing, nor was any challenge directed at its acceptance by the commissioner.
36
The counter-application consequently presented no obstacle to the
disposal of the adoptive parents' application in terms of regulation 21(1). As the matter before the commissioner was not one incapable of being disposed of in terms of regulation 21(1), there was no need to invoke the provisions of regulation 21(2). The fact that the commissioner did not make specific mention of regulation 21(1) does not detract from the conclusion that he, if the events that occurred are placed in proper perspective, acted in terms thereof. As there was no reason for the commissioner, on the information available to him, not to have
been satisfied with regard to the matters mentioned in section 18(4) of the Act, there was no bar to his granting the adoptive parents' application for adoption.
It was claimed that Mr Fraser was in any event entitled to a hearing in respect of the adoption proceedings in terms of the audi alteram partem
37
principle at common law. In Administrator, Transvaal, and Others v
Traub and Others 1989(4) SA 731 (A) at 748 G - H Corbett CJ stated the
position as follows:
"The maxim expresses a principle of natural justice which is part of our law. The classic formulations of the principle state that, when a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty or property or existing rights, the latter has a right to be heard before the decision is taken .... unless the statute expressly or by implication indicates the contrary."
The commissioner was alive to the fact that any decision taken by him in
regard to the adoption application or counter-application would be one
affecting Mr Eraser's interests. He was bound, however, to proceed in
terms of the Act and Regulations. Their provisions, as the events
unfolded, precluded (at least by implication) any hearing other than in
respect of the regulation 4(2) application. There was accordingly no
breach of the audi principle.
In my view the commissioner conducted the proceedings in the Children's Court in a proper manner and in consonance with the provisions of the Act and Regulations. He allowed Mr Eraser a full hearing in regard to his regulation 4(2) application. He did not commit any gross irregularity in the proceedings, nor was he guilty of any improper exercise of his discretion. Consequently the court a quo erred in granting the review application, and the appeal must succeed.
One final point. The heads of argument filed on behalf of Mr Fraser foreshadowed the possible referral of certain issues to the Constitutional Court. These were never clearly formulated and no proper basis, factual or otherwise, was laid for such referral. Mr Fraser is obviously free to pursue any constitutional rights he considers he may have
in that Court
39 ORDER
A.
The appeal is allowed, with costs.
B.
The orders of the court a quo, with the exception of order 2,
are set aside and there is substituted in their stead the
following:
"Application dismissed, with costs, such costs to include the reserved costs of 26 March, 2 April and 17 April 1996,"
J W SMALBERGER JUDGE OF APPEAL
Schutz JA )
Scott JA )Concur
Plewman JA)
Case no: 150/97
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between :
Adriana Petronella Naude
First Appellant
The Adoptive Parents
Second Appellant
and
Lawrie John Fraser
Respondent
Before : Smalberger, Schutz, Scott, Plewman JJA and Melunsky AJA
Heard: 8 May 1998
Delivered : 26 June l998
3 these statutes do require application, I confess to finding less difficulty in
understanding them. In the first place it helps to place regulation 4 in
I
6
him in general terms, but must hold an inquiry at the behest of that parent.
Apart from the wording of the regulations, common sense demands that the
commissioner's discretion should not be fettered in the way suggested. Take
the case in which the social worker has reported that both (legitimate) parents
are drunk through most of their waking hours. Or take the case of the man
who is the father by virtue of an act of rape, or one whose object is blackmail.
These examples cannot be brushed aside as extreme or implausible ones.
They illustrate why the commissioner ought to have an all-inclusive
discretion. And they illustrate, in my opinion, why Melunsky AJA errs in his
view that a parent, merely by virtue of being a parent, has an absolute right
to insist on an inquiry being held under reg 21(2). That the legislation does
not accept the paramountcy of pa
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