## Facts

- Suzanne Du Toit and Anna‑Marié De Vos were long‑term same‑sex partners; at the time, South African law did not recognize same‑sex marriage.
- They were screened and accepted as suitable adoptive parents on the understanding that they would raise children together.
- In 1994, two young siblings were placed in their care and were raised as part of their family; the children regarded both women as their parents.
- In 1995, Du Toit and De Vos applied to the Pretoria Children’s Court to adopt the siblings jointly.
- Section 17 of the Child Care Act 74 of 1983 limited joint adoption to “a husband and wife,” which meant the Children’s Court could not grant a joint adoption order to the applicants.
- The Children’s Court denied the joint adoption application; instead, only De Vos was granted a single‑parent adoption order, leaving Du Toit (the children’s primary caregiver) without legal parental status.
- The applicants challenged the constitutionality of provisions that confined joint adoption and related parental authority to married couples, including sections 17(a), 17(c), and 20(1) of the Child Care Act and section 1(2) of the Guardianship Act 192 of 1993.
- The Transvaal Provincial Division (High Court) held the provisions unconstitutional and ordered a reading‑in to extend joint adoption and joint guardianship to permanent same‑sex life partners.
- Because a High Court order declaring legislation invalid requires confirmation by the Constitutional Court, the applicants sought confirmation. The Constitutional Court appointed a curator ad litem for the children and admitted the Lesbian and Gay Equality Project as amicus curiae; the state respondents ultimately did not oppose confirmation.

## Issues

1. Whether statutory provisions restricting joint adoption and joint guardianship to married persons (in practice excluding permanent same‑sex life partners) violate constitutional rights to equality and dignity and the rule that a child’s best interests are of paramount importance.
2. Whether any infringement could be justified under the Constitution’s limitations clause.
3. What remedy is appropriate for unconstitutional under‑inclusion in the adoption and guardianship statutes (including whether reading‑in is suitable).

## Decision

- The Constitutional Court unanimously confirmed the High Court’s order declaring the challenged provisions unconstitutional to the extent that they excluded permanent same‑sex life partners from jointly adopting children and from holding joint guardianship.
- The Court held that the “husband and wife” limitation amounted to unfair discrimination, including discrimination based on sexual orientation and marital status, given that same‑sex couples could not marry at the time.
- The Court held that denying recognition to a person who functioned as a parent impaired that person’s dignity by withholding legal acknowledgment of an existing family relationship.
- The Court held that the exclusion conflicted with section 28(2) of the Constitution because it harmed children by depriving them of the security and protections that follow from having two legally recognized parents in a stable family setting.
- The Court confirmed a reading‑in remedy (with language framed to fit the statutory scheme) so that permanent same‑sex life partners could be treated in the same way as married couples for purposes of joint adoption and joint guardianship, while leaving intact the requirement that adopters must otherwise be suitable and that adoption must serve the child’s best interests.

## Legal Principles

- A legal rule that restricts joint adoption to married couples, in a context where same‑sex couples cannot marry, can constitute unfair discrimination on the grounds of sexual orientation and marital status.
- Denying legal recognition to a person who is, in fact, a co‑parent can violate the constitutional right to dignity by refusing equal status to that family relationship.
- Section 28(2) requires that a child’s best interests be of paramount importance in every matter concerning the child; adoption rules that reduce children’s legal security and stability may be unconstitutional.
- When legislation is unconstitutional because it is under‑inclusive, a court may cure the defect through reading‑in where doing so is consistent with the statute’s purpose and provides an effective remedy without rewriting the legislative scheme.
- A High Court order declaring an Act of Parliament invalid has no force unless confirmed by the Constitutional Court (Constitution, section 172(2)(a)).

## Conclusion

The Constitutional Court confirmed that the Child Care Act and Guardianship Act provisions limiting joint adoption and joint guardianship to married spouses were unconstitutional insofar as they excluded permanent same‑sex life partners, and it ordered a reading‑in to allow such partners to adopt jointly and share guardianship, based on equality, dignity, and the paramount importance of children’s best interests.


Du Toit and De Vos v. Minister for Welfare and Population Development, 2002 WL 31676201 (Const Ct (SA) 2002) Case CCT 40/01 (10 September 2002)