Page:Du Toit v Minister of Welfare.djvu/13

Rh

The constitutional context

Recognition of the fact that many children are not brought up by their biological parents is embodied in section 28(1)(b) of our Constitution which guarantees a child’s right to “family or parental care”. Family care includes care by the extended family of a child, which is an important feature of South African family life. It is clear from section 28(1)(b) that the Constitution recognises that family life is important to the well-being of all children. Adoption is a valuable way of affording children the benefits of family life which might not otherwise be available to them.

The institutions of marriage and family are important social pillars that provide for security, support and companionship between members of our society and play a pivotal role in the rearing of children. However, we must approach the issues in the present matter on the basis that family life as contemplated by the Constitution can be provided in different ways and that legal conceptions of the family and what constitutes family life should change as social practices and traditions change. I turn now to consider the constitutionality of the impugned provisions.

Rh