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Du Toit v. Ministers for Welfare and Population Development and Others, Constitutional Court of South Africa (10 September 2002)

Procedural Posture

The applicants challenged the constitutionality of Sections 17(a), 17(c), and 20(1) of the Child Care Act in the Pretoria High Court. The Minister for Welfare and Population Development, the Minister of Justice and Constitutional Development, and the Commissioner of Child Welfare were joined as respondents. They all withdrew their opposition and gave notice of their intention to abide by the High Court’s decision. The Pretoria High Court ruled that all of the impugned legislation violated the Constitution.

Section 172(2)(a) of the Constitution stated that rulings of constitutional invalidity had no force unless confirmed by the Constitutional Court. The applicants therefore appealed to the Constitutional Court to enforce the ruling of the High Court in Pretoria.


The applicants were in a longstanding lesbian relationship and had lived together since 1989. Their relationship was formally – though not legally – recognised in a commitment ceremony in September 1990. They pooled their financial resources, jointly owned property, and had a joint will bequeathing the surviving partner the other’s share of property. They were also beneficiaries of each other’s insurance policies.

In 1994 the applicants underwent the screening process required for all prospective adoptive parents. As prescribed by the Child Care Act, this process included psychological screening, home visits, and family recommendations. The authorities accepted the applicants as adoptive parents. In December 1994, two siblings were placed in the applicants’ care. The children had remained in the applicants’ care since then and considered both applicants their parents. In 1995 the applicants applied to legally adopt the children. However, legislation prevented them from doing so, because they were not married and at the time same-sex marriage had not been legalised in South Africa. As a result, only one of the applicants legally adopted the children. The other applicant had no legal rights or responsibilities regarding the children.


Whether Sections 17(a), 17(c), and 20(1) of the Child Care Act violated the Constitution by permitting only married persons to jointly adopt and be guardians of children, and, if so, whether the unconstitutionality was permissible because no statutory regulations protected children if their same-sex adoptive parents separated.

Domestic Law

Child Care Act 1983, Sections 17(a), 17(c) and 20(1).

Constitution of South Africa, Sections 9 (Equality), 10 (Human Dignity), and 28 (Children).

Reasoning of the Court

The Court stated that marriage and family provided security in society and played a pivotal role in rearing children. Family, according to the Court, could exist in different ways and “legal conceptions of the family and what constitutes family life should change as social practices and traditions change”. The Court observed that a longstanding and stable same-sex couple could form a family.

The Court found that the prohibition of joint guardianship for couples like the applicants violated Section 28(2) of the Constitution. Section 28(2) provided that “a child’s best interests are of paramount importance in every matter concerning the child”. By denying a same-sex couple joint guardianship, Section 17 of the Child Care Act violated the best interest principle. Preventing same-sex couples from adopting defeated the purpose of adoption, which is to provide “stability, commitment, affection and support important to a child’s development”.

The Court also considered Section 9(3) of the Constitution which prohibited discrimination based on sexual orientation. The Court found that sections 17(a) and (c) of the Child Care Act violated this provision by discriminating against couples based on their sexual orientation, because “their status as unmarried persons, which currently precludes them from joint adoption” was “inextricably linked to their sexual orientation”.

Furthermore, Section 10 of the Constitution provided that everyone had an “inherent dignity and the right to have their dignity respected and protected”. The Court found that the non-legal guardian, who acted in the role of a parent and who was viewed as a parent by the children, had a constitutional right to be legally recognised as their guardian. Denying her legal recognition was “demeaning” and violated her constitutionally protected right of dignity.

Although no explicit statutory regulations existed to protect adopted children in the event of a same-sex couple separating, the Court viewed the current system for children of divorced parents as applicable to unmarried couples as well. There was thus no reasonable justification for the challenged provisions of the Child Care Act.

Du Toit v. Ministers for Welfare and Population Development and Others, Constitutional Court of South Africa (full text of judgment, PDF)