Page:Du Toit v Minister of Welfare.djvu/17

Rh cannot do so. The impugned provisions of the Child Care Act thus deprive children of the possibility of a loving and stable family life as required by section 28(1)(b) of the Constitution. This is a matter of particular concern given the social reality of the vast number of parentless children in our country. The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children and I conclude that, in this regard, sections 17(a) and (c) of the Act are in conflict with section 28(2) of the Constitution.

Equality

The argument advanced by the applicants in the High Court and in this Court was that the impugned provisions, in effect, differentiate on the grounds of sexual orientation and marital status, both of which are listed grounds in section 9(3) of the Constitution.

The High Court referred to the judgment of this Court in Harksen v Lane which comprehensively describes the three stage test which is undertaken to determine whether a right Rh