Page:Du Toit v Minister of Welfare.djvu/10

Rh As a result of the current law the applicants cannot jointly adopt the siblings. Although first applicant is not the legally recognised adoptive parent, she is the primary care-giver. She provides the children with their principal source of emotional support within the family and, because of the constraints of the second applicant’s professional life, she spends more time with them during week days than does the second applicant. Yet, she has no legal say in matters such as granting doctors permission to give either of the children an injection or the signing of school indemnity forms for school tours or sporting activities. More importantly, in the event of the partnership between herself and the second applicant ending, her claim to custody and guardianship of the children would be at risk.

The proceedings in the High Court

To remove the legal bar to the first applicant becoming a joint adoptive parent of the children, the applicants launched application proceedings in the Transvaal High Court challenging the constitutionality of the impugned provisions which prevent them from jointly adopting the siblings. The Minister for Welfare and Population Development, the Minister of Justice and Constitutional Development and the Commissioner of Child Welfare, Pretoria were joined as respondents. They initially opposed the application but subsequently withdrew their opposition and gave notice that they would abide the decision of the High Court. They also abide the decision of this Court.

In the High Court, as in this Court, the applicants argued that the impugned provisions of the Child Care Act violate, first, their rights protected in section 9(3) of the Constitution by Rh