A.S and Others v Childrens Court for District of Johannesburg North Held at Randburg and Others (2025/240823) [2025] ZAGPJHC 1328 (22 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1328 | Noteup | LawCite sino index ## A.S and Others v Childrens Court for District of Johannesburg North Held at Randburg and Others (2025/240823) [2025] ZAGPJHC 1328 (22 December 2025) A.S and Others v Childrens Court for District of Johannesburg North Held at Randburg and Others (2025/240823) [2025] ZAGPJHC 1328 (22 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1328.html sino date 22 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy FLYNOTES: FAMILY – Children – Adoption – Child lived in South Africa since early childhood with biological mother and stepfather – Neither retained consent rights nor qualified as a prospective adoptive parent – Child and prospective adoptive parent are ordinarily resident in South Africa – National adoption – Delaying matter beyond child’s eighteenth birthday would permanently extinguish adoption rights – Declarations granted confirming child’s ordinary residence and national nature of adoption. IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG Case number: 2025-240823 [1]  REPORTABLE: YES [2]  OF INTEREST TO OTHER JUDGES: YES [3]  REVISED: NO DATE: 22 DECEMBER 2025 In the matter between: A[…] S[…] (Identity Number: 7[…])                                                        First Applicant T[…] K[…] Second Applicant (Passport Number: N[…]) S[…] H[…] Third Applicant (Passport Number: N[…]) and CHILDREN'S COURT FOR THE DISTRICT First Respondent OF JOHANNESBURG NORTH HELD AT RANDBURG THE PRESIDING MAGISTRATE KOPEDI Second Respondent THE MEMBER OF THE EXECUTIVE COUNCIL Third Respondent FOR SOCIAL DEVELOPMENT, GAUTENG ELISE MORGENROOD Fourth Respondent SUMMARY Children’s Act, 2005 – adoption - joinder of biological parent for consideration as a prospective adoptive parent – interpretation of section 237(7). This provision must be read together with sections sections 231(2) and (3). A parent who has been divested of parental responsibilities and rights by a court order or is a person contemplated in section 236(1) is a not fit and proper person to assume parental rights and responsibilities over the child. Accordingly, such a person does not have an interest in the child’s adoption and is not a necessary party to litigation pertaining to a child where its adoption is in issue, nor is it a necessary party to the adoption proceedings. Instanter , the child’s biological father abandoned the child after the conclusion of divorce proceedings in 2011. In these divorce proceedings, the court granted full guardianship to child’s biological mother and his whereabouts since then are unknown. Children’s Act, 2005 – interpretation and application of Chapters 15 and 16 – in circumstances where the child and the prospective adoptive parent are both ordinarily resident in the Republic, the adoption of the child is one in terms of Chapter 15. For these purposes, the nationality and residential status of the child is irrelevant. Children’s Act, 2005 – interpretation of Children’s Court’s powers in terms of sections 44(1)(j) and 46(1)(c). The Children’s Court must consider an application for adoption by taking into account all relevant factors. Section 240(1) is not exhaustive of the relevant factors. The letter contemplated in section 239(1)(d) is not definitive of the outcome of an adoption application. It is one of the relevant factors that must be considered. An interpretation that the proposed adoption must be supported by the provincial head of the social development in its section 239(1)(d) letter leads to an absurdity because it results in the powers of the Children’s Court being usurped by a functionary who not empowered to decide an adoption application. JUDGMENT PULLINGER AJ On 19 December 2025, I gave the order in paragraph 92 below. These are my reasons. # # INTRODUCTION INTRODUCTION [1] At issue in this matter is the right of a minor child (" S ") to be adopted by the first applicant (" A "), the man who has since February 2016 been married to her biological mother, the second applicant (" T "), and who has been her de facto father since then. S is the third applicant before me. [2] On the evidence before me: [2.1] S last saw her biological father (" H ") sometime before April 2011. [2.2] S, who attains the age of majority on 15 January 2026, lives with A, T, and her two half siblings borne of the marriage between A and T. [2.3] A is the sole breadwinner of the family and takes care of all the financial and educational needs of S and her siblings. [2.4] T was granted a decree of divorce from H by the Sharia Court of the Syrian Arab Republic in April 2011: [2.4.1] in terms of the decree of divorce, T was appointed as S's sole legal guardian; [2.4.2] the whereabouts of H are unknown. This is confirmed by a report dated 19 May 2025 submitted to the second respondent by Ms Morganrood, a duly qualified social worker, who is cited as the fourth respondent herein. Ms Morganrood states, in respect of H, that: "The biological father of [S]’s [sic] whereabouts are unknown as he abandoned his daughter after the divorce. In terms of South African and International laws, the father’s legal rights and responsibilities were terminated and sole custody was granted to [T], the biological mother. The wording of the Syrian Court’s terminology differs, but the meaning is the same." [2.5] S has established roots in the community in which she lives; she has attended schools in the Republic and has lived together with her family in the family home in Bryanston for more than 9 years. Here, the family has established business and community roots. [2.6] S has no connection to Syria or Turkey. Her home with A, T and her siblings is the only home she knows. S identifies as South African and, with the assistance of A and T has attempted, since 2022 to obtain South African citizenship. [2.7] S’s attempts to obtain South African citizenship since 2022 was met with obstacles, including the Department of Home Affairs’ incorrect records. These records suggested that A was deceased and occasioned many delays in this process and in respect of A and T’s ability to secure visas to remain in South Africa. These records took many years to correct. [3] The founding affidavit chronicles the steps taken by T and S to become permanent residents of the Republic from 2022 onwards and the steps taken by A, T and S for S's adoption from 2024. There were missteps along the way. Some of these missteps were occasioned by advice, from professionals in the field of immigration, received by A, T and S; and, having taken professional advice and acted in accordance therewith they cannot reasonably be said to have been culpable in the delays which ensued. Similarly, the delays they experienced by court inefficiencies and what I perceive to be obstructiveness by the Gauteng Department of Social Development (" the Department ") does not result in their approach to this Court, by way of urgency, being "self created" as contemplated in the authorities. This is an issue to which I will return below. [4] This is a matter of great importance to A, T and S. The reason is manifest; once S obtains the age of majority on 15 January 2026, she will no longer be eligible for adoption by her de facto father; she will then be deprived of the same rights enjoyed by her siblings that she would otherwise enjoy but for her adoption being finalised before 15 January 2026. [5] Accordingly, the applicants have approached this court seeking relief in the following terms: "1. Dispensing with the forms and service provided for in the Uniform Rules of Court and directing that this matter be heard as one of urgency in terms of Rule 6(12). 2. Declaring that the minor child, [S], is "ordinarily resident" within the jurisdiction of the First Respondent as contemplated in Section 44 of the Children's Act 38 of 2005 . 3. Declaring that the immigration status or nationality of the minor child is irrelevant for the purposes of determining the jurisdiction of the First Respondent. 4. Declaring that the adoption application of the minor child is a national adoption to be determined in terms of Chapter 15 of the Children's Act 38 of 2005 . 5. Declaring that the correspondence from the Third Respondent dated 21 October 2025 constitutes a letter of non-recommendation sufficient to satisfy the requirements of Section 239(1)(d) for the purposes of adjudication by the First Respondent. 6. Directing the First and Second Respondents to: 6.1.      Take all necessary steps within their statutory power to process and enrol the adoption application forthwith; 6.2.      Enrol the application for hearing by no later than 31 December 2025; and 6.3       Finalise and conclude the adoption application before 5 JANUARY 2026. 7. Ordering any opposing Respondents to pay the costs of this application jointly and severally, the one paying the other to be absolved." [6] This application is opposed by the Department. It does so in circumstances where it has no knowledge of any facts peculiar to this matter outside of that stated in the founding affidavit. The answering affidavit makes speculative averments and advances legal argument that are divorced from the Department’s Constitutional responsibilities, and, arguably, repugnant to any measure of consideration for S’s best interests. [7] The Department contends that this application ought to be struck from the roll for lack of urgency. It contends that the urgency asserted by the applicants is "self created". Even if this were so, it failed to appreciate the Constitutional rights at stake, the importance of this matter to the applicants and the effective guillotine that 15 January 2026 presents – that being S reaching the age of majority and no longer entitled to be adopted by A. [8] As a further obstacle to the hearing of this matter and S’s adoption application proceeding, it contends that H is a necessary party, not only to these proceedings, but also to the proceedings for S's adoption before the Children's Court. [9] It is in this context, and in the course of a debate on joinder, that I required Mr Nombewu, who appeared for the Department, to take a firm and unequivocal instruction from his client. I wanted to know whether it was his instruction and the Department's intention that the applicants' rights be delayed and frustrated such that they would be left without a remedy at all. [10] The answer I received, and the manner in which this matter was further conducted, are incapable of reconciliation. Here the Department’s failure to understand the provisions of, and operation of, the Children’s Act, 2005 (" the Act ") becomes manifest. [11] The Department does not take issue with A’s right to adopt S or S’s corresponding right to be adopted. [12] The Department contends that it has no intention of preventing S's adoption application from being considered by the Children’s Court, but nonetheless vociferously argued and persisted in its contentions that this matter should not be heard as one of urgency and concomitantly, that the order sought in paragraph 6 of the applicants’ notice of motion should not be granted, because H is a necessary party both to these proceedings and the adoption proceedings before the Children's Court. [13] The nub of its opposition to this application rests on the proposition that H is a necessary party, as aforesaid, and an order requiring the Children’s Court to enrol and determine the adoption application before 15 January 2026 may not be possible, given that it considers H to be a necessary party to those proceedings. [14] The Department’s joinder point is, however, mis-conceived and arises from its failure to understand the applicable legislative provisions in the Act and how these provisions operate. [15] The Department, further, takes issue with the declaratory relief sought by the applicants. In this regard it contends that the decision in KNS [1] upon which the applicants rely has been wrongly decided and then delves into the question of separation of powers. [16] The ultimate proposition advanced by the Department results in it being the final decision maker in adoption applications and not the Children’s Court. The Department, in advancing this argument, failed to make any reference to those decisions following on KNS that are adverse to the proposition it contends for. [17] The point is analogous to that in Estate Friedman [2] which holds that, where a statute appoints a decision maker and creates a framework within the decision maker is required to make a decision, the decision making power must be exercised by that decision maker and no another. [18] In the instant case, the Act creates the Children’s Court, empowers it to make decisions on, inter alia , adoptions and prescribes the process in terms of which an adoption application is made. The effect of that contended for the by the Department offends against sections 45 and 46 of the Act, contrary to the process prescribed in the Act and those authorities on that which the Children’s Court is required to consider when adjudicating an adoption application. # # CONSTITUTIONAL AND LEGISLATIVE SETTING CONSTITUTIONAL AND LEGISLATIVE SETTING [19] I begin by placing this application in its proper constitutional setting. [20] Section 28(1)(b) of the Constitution makes every "child" the bearer of the right to family care or parental care. For these purposes, section 28(3) defines a "child" as meaning a person under the age of 18 years old. [21] Section 28(2) of the Constitution, prescribes that the best interests of the child concerned are of paramount importance in every matter concerning a child. [22] Goldstone J, in the Constitutional Court’s decision in Fitzpatrick [3] explains the ambit of section 28(1) of the Constitution and the "best interests" consideration as follows: "[17] Section 28(1) is not exhaustive of children's rights. Section 28(2) requires that a child's best interests have paramount importance in every matter concerning the child. The plain meaning of the words clearly indicates that the reach of s 28(2) cannot be limited to the rights enumerated in s 28(1) and s 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in s 28(1). This interpretation is consistent with the manner in which s 28(2) was applied by this Court in Fraser v Naude and Others . [18] In 1948 the Appellate Division first gave paramountcy to the standard of the 'best interests of the child'. It held that in deciding which party should have the custody of children on divorce the 'children's best interests must undoubtedly be the main consideration'. The decision ran counter to the traditional approach in terms of which the 'innocent spouse' in divorce proceedings was granted custody of the children. Since then the 'best interests' standard has been applied in a number of different circumstances. However, the 'best interests' standard appropriately has never been given exhaustive content in either South African law or in comparative international or foreign law. It is standard should be flexible as individual circumstances will determine which factors secure the best interests of a particular child." (footnotes omitted) [23] Sachs J, in the later decision of that Court in S , [4] made the point that: "Section 28(2) of the Constitution provides that " [a] child’s best interests are of paramount importance in every matter concerning the child. " South African courts have long had experience in applying the "best interests" principle in matters such as custody or maintenance. In our new constitutional order, however, the scope of the best interests principle has been greatly enlarged. (Footnotes omitted) [24] In respect of the section 28 right (and all the rights in the Bill of rights), section 7(2) of the Constitution obliges the State to respect, protect, promote and fulfil those rights. Section 8(1) of the Constitution makes it plain that those rights apply to all law and binds the legislature, the executive, the judiciary and all organs of state. It, further, empowers a Court in section 8(3) where a provision of the Bill of Rights is being applied, to give effect to those rights and, where necessary, develop the common law to the extent that the legislation does not give effect to that right. [25] The Constitutional Court’s judgment in Welkom High School, [5] per Khampepe J, holds, with reference to its earlier decision in Glenister [6] the Supreme Court of Appeal’s decision in Van Duivenboden , [7] that the State’s obligations in section 7(2) of the Constitution " goes beyond a mere negative obligation not to act in a manner that would infringe or restrict a right" and that it has "a positive duty to act in the protection of the Bill of Rights". [26] There is, then, the further right contained within the Bill of Rights, that being section 34 of the Constitution. The ambit of the right is not only to entrench a fair hearing and a proper decision on the dispute, [8] but also an effective remedy. [9] [27] In the Constitutional Court’s recent decision in Commissioner, SARS , [10] Kollapen J, in the context of a court of review’s jurisdictional powers, restated long established principles concerning the ambit of the section 34 right in the resolution of disputes before courts. He said, in the relation to a dispute, adjudicable in law, that: "T he right of access to court must then facilitate the resolution of that dispute. This court has consistently emphasised the importance of that right in our constitutional democracy. In Barkhuizen it said: 'Our democratic order requires an orderly and fair resolution of disputes by courts or other independent and impartial tribunals. This is fundamental to the stability of an orderly society. It is indeed vital to a society that, like ours, is founded on the rule of law. Section 34 gives expression to this foundational value by guaranteeing to everyone the right to seek the assistance of a court.'." (footnotes omitted) [28] To give effect to the rights in, inter alia , sections 7,8 and 28 of the Constitution, the Act was promulgated and came into effect in April 2010. [29] It is necessary for the discussion that follows to give a brief overview of the material provisions of the Act. [30] The preamble to the Act records both the rights of a child entrenched in section 28 of the Constitution and the State’s duty to respect, protect and fulfil those rights. [31] Chapter 1 concerns the interpretation, objects, application and implementation of the Act. Section 2 of the Act, which deals with the objects thereof, makes it plain that its objects are, amongst others, "the preservation and strengthen of families" and "to give effect" to a child’s Constitutional rights, particularly, those of "family or parental care" and, "generally, to promote the protection, development and well being of children". [32] Chapter 2 concerns general principles. These are set out in section 6. This provision recognises that in all proceedings concerning a child, the "best interest" standard set out in section 7 must be respected, protected and promoted. [11] In this way, the Act seeks to give effect to sections 7, 8 and 28 of the Constitution. It recognises, further, that where it is in a child’s best interests, the views of its family must be heard. [12] It also requires that delays in any action or decision that affects a child must be avoided as far as possible. [13] [33] Chapter 3 concerns parental responsibilities and rights. Material to this matter are sections 18, 20 and 28. [33.1] Section 18 deals, in general, with parental responsibilities and rights. Subsections 3 to 5 provide: (3)      Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child's property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or ( c) give or refuse any consent required by law in respect of the child, including- (i)     consent to the child's marriage; (ii)    consent to the child's adoption; (iii) consent to the child's departure or removal from the Republic; (iv)   consent to the child's application for a passport; and (v)   consent to the alienation or encumbrance of any immovable property of the child. (4)      Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c) ." [33.2] Section 20 of the Act provides that the biological father of a child enjoys full parental responsibilities in respect of a child, if, inter alia , he was married to the child’s mother at the relevant time. These rights are not only limited in time, being only capable of exercised or enforced for so long as the child concerned is younger that 18 years old, it may also be terminated by a court. [33.3] Section 28 concerns the termination of parental responsibilities and rights by a court and the circumstances in which these may be terminated. [34] Chapter 4 establishes the Children’s Court. [14] It has the same status of a magistrate’s court at district level [15] and enjoys jurisdiction, inter alia , over the area where the relevant child is "ordinarily resident". [16] It has the power, inter alia , to adjudicate upon adoption matters [17] and make an adoption order. [18] [35] As this matter concerns adoption, the provisions of chapters 15 and 16 of the Act are relevant. [35.1] Chapter 15 of the Act concerns adoptions generally whereas chapter 16 concerns inter-country adoptions. Chapter 16 applies in circumstances where one or other of the prospective adopting parent or child is not ordinarily resident in the Republic. [19] [35.2] Regrettably, the Act is less than clear on certain matters, particularly, the adoption of children who are not South African citizens or who have not obtained permanent resident status in the Republic notwithstanding that they are "ordinarily resident" in the Republic and, in matters concerning their adoption, are subject to the jurisdiction of the Children’s Court in the area they are so resident. [35.3] The purpose of adoption is stated, in section 229 of the Act as being to protect and nurture children by providing a safe, healthy and nurturing environment, and promote permanency by connecting children to safe and nurturing family relationships. [35.4] Section 230(3) identifies whether a child may be adopted. [20] For these purposes, the subsections (c), (f) and (g) are of application in this matter. [35.5] Section 231 concerns who may adopt a child. In this case, section 231(1)(c) is of application. [21] For these purposes, the adoptive parent must be, inter alia , fit and proper to assume full parental rights and responsibilities over the child, [22] which is to be assessed by a social worker, regard being had to, inter alia , the child’s culture and that of the prospective adoptive parent. Subsection 7(a) is of particular importance. The section provides: "The biological father of a child who does not have guardianship in respect of the child in terms of Chapter 3 or the foster parent of a child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption." [35.6] Section 233 concerns consent to adoption and prescribes that a child may only be adopted if the consent of those identified in sub-section (1) has been given, save where such a person is excluded by operation of section 236. Subsections 3 and 5 are, again, important, and provide: “ (3) If the parent of a child wishes the child to be adopted by a particular person the parent must state the name of that person in the consent.” and “ (5) The eligibility of the person contemplated in subsection (3) as an adoptive parent must be determined by a children's court in terms of section 231 (2).” [35.7] Section 236(1) concerns instances where the consent of a parent or guardian is not required. It lists a series of instances when such a person would be disqualified from giving consent or is divested of the right to consent (or refuse consent). [35.8] Section 238 requires that notice of the proposed adoption be given to those people identified in section 233. [35.9] Naturally, notice need not be given to those people listed in section 236(1). [35.10] Section 239 deals with the formal requirements of an adoption application. One of these formal requirements is a letter from provincial head of social development recommending the adoption of the child. [35.11] Finally, for purposes of this overview, section 240 sets out what the Children’s Court is required to consider in an adoption application. Subsection (1) stipulates that the court must have regard to all relevant circumstances. The use of the word “including” demonstrates that the relevant circumstances are not a closed list. Thus, facts such as the time the child has lived with the prospective adopting parent and such familial relationships that have been developed are also relevant. Subsection 2 stipulates that the Children’s Court may only grant an adoption order if the requirements of the subsection have been met. [36] It is in this context that I now address the Department’s opposition to this application. # # URGENCY URGENCY [37] This Court's decision in Chung Fung [23] holds that, in appropriate circumstances, the right to approach a Court for urgent relief, where a remedy in law would otherwise be defeated, forms an inextricable part of the right guaranteed in section 34 of the Constitution. Here it was said: "[21]       It must be apparent, therefore, that the right to approach the Court for urgent relief is inextricably tied to a litigant's rights under section 34 of the Constitution. In Chief Lesapo , the Constitutional Court said: '[a]n important purpose of s 34 is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law…' and '… s 34 and the access to courts it guarantees for the adjudication of disputes are a manifestation of a deeper principle; one that underlies our democratic order.' [22] It said further: "[t]he right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable." (emphasis added). [23] It is against this fundamental consideration that the question of substantive relief in due course should always be measured. [24] A court should be slow to refuse to hear a matter where a litigant will be deprived of substantial redress in due course. In deciding whether an applicant will be able to obtain redress at a hearing in due course, the delay between the hearing before the urgent court and a court in the ordinary course is a weighty consideration." [38] The Chung-Fung principle applied to the facts of this case, demonstrates why the relief claimed by the applicants is urgent. If this matter were to be struck from the roll without a consideration of the merits of the applicants’ case, as the Department suggests it should, the consequence would be demonstrably to deprive A and S of any remedy in due course. This demonstrates, further, why the line of argument taken by the department is inappropriate in the circumstances. The point ought, properly, to have been conceded. [24] [39] Chung-Fung refers to this court’s decision in Luna Meubels [25] on the question concerning the reasonableness of the abridgement of time periods to be considered. [26] This is, fundamentally, a question of prejudice to a respondent. It asks the question whether a respondent, in an urgent application, has sufficient time to place its case before Court. [27] In this instance, no issue of prejudice was raised by the Department and I do not give any further consideration to this aspect. [40] Chung Fung also addresses "self created" urgency. It holds that a degree of contrivance on the part of a party seeking urgent relief is an element of "self created" urgency. [28] It refers to the example of a litigant that has for an extended period known of the impending peril but who chose not to exercise its rights timeously. [41] There are no facts before me that lead to a conclusion of the applicants being supine much less a conclusion that there is some degree of contrivance to create a state of affairs that could have been avoided. To my mind, the contrary position is clear. [42] But, even if the applicants could be said to have been dilatory, the real point at issue herein is this: a hearing in the ordinary course will deprive S of the right to be adopted by A. This is incapable of dispute by the Department. On this issue, I take guidance from the Appellate Division where Corbett JA, in Safcor , [29] said "… it is for the Court to decide whether the matter is really one of urgency and whether the circumstances warrant a departure from the normal procedures. To hold otherwise would, in my view, make the Court the captive of the Rules. I prefer the view that the Rules exist for the Court, rather than the Court for the Rules." [43] The facts of this matter are such that demands the urgent attention, not only of this court but also that of the Family Court and I rule accordingly. # # JOINDER JOINDER [44] I commence my discussion on the joinder of H by following the approach in Tamela [30] which holds on this issue that: "[41] There is … very little room for debate on the issue of joinder where there are third party rights that are directly implicated and affected by the relief sought in proceedings or that an order cannot be given effect without the participation of that party. In these instances, joinder of that party must be ordered. And, joinder of that party is a requisite to the matter proceeding. [42] In each case where the question of joinder arises, care must be taken to ascertain the right concerned, whether the party said to be affected is the holder of that right and whether that right is implicated and could be detrimentally affected by the relief sought." (footnotes omitted) [45] In answering the question whether H is a necessary party to these proceedings or those before the Family Court by virtue of him being the bearer of a right that may be affected by the outcome of this matter or the intended proceedings before the Family Court, I take guidance from the Supreme Court of Appeal's decision in Gordon . [31] [46] Mlambo JA, following earlier decisions of that Court, postulated the correct approach as being, first, one which asks whether the third party would have locus standi to claim relief concerning the same subject matter and, second, to examine whether as a result of the non joinder of that third party, any order of the Court would be res judicata against him entitling him to approach the Courts again on the same subject matter and, possibly, obtain an order irreconcilable with the order made in the first instance. [47] This approach to the question of joinder was followed and endorsed by the Constitutional Court in Zulu . [32] [48] It is with these principles in mind, that I proceed to test whether H can be said to be the bearer of a right of the nature contemplated in Tamela that would afford him locus standi in any proceedings concerning S’s right to be adopted as contemplated in Gordon . [49] The approach to statutory interpretation was succinctly stated by Majiedt J, in Cool Ideas , [33] as follows: "A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this general principle, namely: (a) that statutory provisions should always be interpreted purposively; (b) the relevant statutory provision must be properly contextualised; and all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso to the general principle is closely related to the purposive approach referred to in (a)." [50] Section 18(3) read with subsection 5 requires that all those who have guardianship over a child must give their consent in relation to those matters in subsection 3(c) – this includes adoption. Section 233 provides, further, that a child may only be adopted with the consent of each of its parents, unless that parent is a person referred to in section 236. [34] [51] In the instant case, [51.1] pursuant to the divorce decree granted by the Syrian Court, T is S’s sole guardian. In GM , [35] this court, in dealing with section 28(1)(a) of the Act said: "P arental responsibilities and rights are, for the most part, two sides of the same coin. Thus on a purposive interpretation of s 28(1) (a) , an order which terminated rights but left in place responsibilities, would be difficult, if not impossible, of application. Such a result could never have been intended by the legislature." [51.2] I understand Fisher AJ to say that the termination of parental rights, save as otherwise preserved by the common law, bring with it a termination of responsibilities. Put differently, parental responsibilities and rights as contemplated in section 20 of the Act go hand in hand and co-exist. The one cannot exist without the other. [51.3] S is an "abandoned child". [36] She has no knowledge of the whereabouts of H. [51.4] For purposes of this matter, at least, the grounds in section 236(1)(b) and (e) are present. Consequently, section 238(1) does not find application. [52] As such, H’s consent to S’s adoption is not required. But, does this mean H lost all other rights in relation to S’s Adoption? [53] Section 231(7) suggests that H may well enjoy the right to be considered as an adoptive parent. But, this section cannot be read in isolation. To do so, would be to ignore the spirit and purpose of the Act, the context in which the provision is set and, most importantly, be an affront to section 28(2) of the Constitution. [54] Section 231(7) must be read together with sections 231(2) and (3) which as, already stated, concern whether a prospective adoptive parent is fit and proper to assume full parental responsibilities and rights in respect of the child. [55] Necessarily the parent of an abandoned child (as defined) or one that has been divested of any parental responsibilities or rights, does not meet the criterion to be considered as a prospective adoptive parent. [56] Returning to the principles discussed above, H does not have locus standi to claim or be considered as an adoptive parent for purposes of S's adoption. [57] In the result, I find that H is neither a necessary party to these proceedings nor to the proceedings before the Children's Court. # # THE DECLARATORY RELIEF THE DECLARATORY RELIEF [58] The High Court's power to grant declaratory relief is a power afforded to it in terms of section 21(c) of the Superior Court's Act, 2013 . [59] The section empowers the Court: "(c) in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination." [60] In Pasiya [37] the Supreme Court of Appeal restated the test in Cordiant [38] where it was said: "It seems to me that once the applicant has satisfied the court that he/she is interested in an ‘existing, future or contingent right or obligation’, the court is obliged by the subsection to exercise its discretion. This does not, however, mean that the court is bound to grant a declarator but that it must consider and decide whether it should refuse or grant the order, following an examination of all relevant factors. In my view, the statement in the above dictum, to the effect that once satisfied that the applicant is an interested person, ‘the Court must decide whether the case is a proper one for the exercise of the discretion’ should be read in its proper context. Watermeyer JA could not have meant that in spite of the applicant establishing, to the satisfaction of the court, the prerequisite factors for the exercise of the discretion the court could still be required to determine whether it was competent to exercise it. What the learned Judge meant is further clarified by the opening words in the dictum which indicate clearly that the enquiry was directed at determining whether to grant a declaratory order or not, something which would constitute the exercise of a discretion as envisaged in the subsection…" [39] [61] The declaratory relief sought by the applicants in paragraphs 2, 3 and 4 of their notice of motion arises from the stance adopted to S's adoption that it is an inter country adoption as contemplated in Chapter 16 of the Act. I am called upon to determine the correct application of the Act for purposes of S’s adoption. The questions upon which the applicant’s seek declaratory relief inform the substantive relief claimed. The form of this relief is not to pre-empt the Children’s Court determination, but establishes the applicants’ rights for purposes of that determination. [62] To this end, I take guidance from the decision in Clarke [40] which analyses the instances when it is proper for a court to exercise its discretion in making declaratory orders and holds that, in the absence of guiding judicial pronouncements, that is proper for a court to determine the legal position. [63] In the present case, the main issue concerns whether S’s adoption is to be determined in terms of Chapter 15 or Chapter 16 of the Act. [64] The Department's stance that the latter is applicable is set out in an email to the applicants' attorneys dated 21 October 2025 and records: "In relation to the above captioned matter kindly receive the below mentioned information provided by our Ms. Thelma Hyde:- Child: S[…] H[…] (F) Dob: 2008.01.15: • The Section 239 application in this matter was submitted to GDSD on 1st August 2025. • The biological mother (Ms. Khaled) was married to the biological father of the child and they were divorced on 21st April 2011. • Ms. Khaled came to SA in February 2016. • Ms. Khaled applied for the spousal visa on 20 October 2017 and this expired on 19th October 2019. • She again applied for the spousal visa on 20th September 2019 and this expired on 19th September 2021, • She again applied on 24th November 2021 and this expired on 23 November 2023. • Her passport is valid until 27th January 2031. • The child's visa (relative visa) expired 12th February 2024 and the passport will expire on 19th March 2026 In summary, both the mother and the child are currently in RSA on passport ONLY as they are Citizens of Syrian Arab Republic • On 6th February 2025 the prospective adoptive parent's legal representative contacted the NDSD Central Authority. • On 11th March 2025 the CA (Dr Mabe) responded that they noted the correspondence Indicating that they will provide update as soon as they receive it. • On 1st April 2025, the CA indicated that they have not received feedback and suggested that the legal representative contact the Embassy directly and provided the contact person and details. • No updates have been received since then. Conclusion: • Both the mother and the child are not citizens/permanent residents of RSA. • Hence this Is viewed as a national adoption with an element of intercountry adoption. • This matter does therefore not comply with the requirements of a national adoption and a Section 239 application. • The child will be tuning 18 years old in less than 3 months, thereafter she can apply for permanent residency and citizenship. We trust that the above is of assistance with your enquiry." [65] Chapter 16 of the Act does not deal with an instance where both the child and the prospective adopting parent reside within the Republic. There is no doubt that A is a citizen of the Republic. And, while S is a Syrian national, she is ordinarily resident in the Republic and subject to the Children’s Court’s jurisdiction. Syria is not a party to the Hague Convention on Inter-country Adoption. Notionally, therefore, S’s application is one contemplated in section 265 of the Act. Subsection 1 thereof provides: " A person habitually resident in the Republic who wishes to adopt a child habitually resident in a non-convention country must apply to the Central Authority." [66] The meaning of "habitually resident", and its synonym, "ordinarily resident" has been considered, at some length, by various courts. [67] In Smith [41] Foxcroft J, considered what the phrase "habitually resident" for purpose of the Hague Convention on the Civil Aspects of International Child Abduction Act, 1996 meant: "The question of habitual residence was also raised before me, and I was also referred to English decisions in Re M (Abduction: Habitual Residence) 1996 [1] FLR, page 887 and Re A (Abduction: Habitual Residence) 1996 [1] FLR, page 1. In these cases, the English courts laid down that habitual residence is a question of fact and not to be treated as a legal concept. Habitual or ordinary residence refers to a person’s abode in a particular place or country. As Millett LJ said in the English Court of Appeal in Re M , 'The question whether the person is or is not habitually resident in  a particular country is a question of fact. ... The concept of habitual residence is not an artificially legal construct' [at 895]. These decisions follow the well-established meaning of "habitual residence" which appears in the speech of Lord Brandon in Re J , a minor (Abduction: Custody Rights) 1990 [2] AC 562 at 758–759, where it was stated that the expression "habitually resident" in article 3 of the Charter, namely a child who was habitually resident immediately before the wrongful removal or retention, is not defined in the Convention and must therefore be given its ordinary and natural meaning. In Re A 1996 (1) FLR page 1, Cazalet J at page 6 of the Report, refers to authority stating that the habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves. There is some debate in the papers before me, as also at the Bar, as to whether the parents were habitually resident in England during the relevant period, but I am satisfied, to use the words of Waite J that 'Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their for the time being whether of short or of long duration" [see re B [Minors: Abduction] No 2 1993 [1] FLR 993 at 995].'." [68] In Ad Hoc Central Authority [42] Cloete J, considering the same legislation as that considered by Foxcroft J, dealt with the question of "habitual residence" with reference to the English Appeal Court's decision of In re F [43] which holds that a child cannot acquire a place of habitual residence in isolation from those who care for it thus, where a child lives with its parents, he shares their common habitual residence. It holds, further, that habitual residence is attained over an appreciable period of time and a settled intention to become so resident. Then, with reference to Houtman [44] Cloete J pointed to the expression of “habitual residence" as being interpreted in accordance with the ordinary and natural meaning thereof and as a question of fact to be decided by reference to all the circumstances of a particular case. [69] This appears to be the same approach taken by Opperman J in LC [45] where the Learned Judge said: "South African Courts have adopted a hybrid of the models in determining habitual residence of children. It appears to be based upon the life experiences of the child and the intentions of the parents of the dependant child. The life experiences of the child include enquiries into whether the child has established a stable territorial link or whether the child has a factual connection to the state and knows something culturally, socially and linguistically. With very young children the habitual residence of the child is usually that of the custodian parent." (Footnotes omitted) [70] Returning to the facts before me; A, T and S are all habitually or ordinarily resident in South Africa. [71] The Act is, for these purposes, not concerned with citizenship or permanent residence. It concerns the factual question of where the prospective adopting parent and child ordinarily live, the place of their roots and their community. [72] In the result, the declaratory relief sought by the applicants in paragraphs 2, 3 and 4 of their notice of motion is competent and well founded. [73] On the question of the Department's letter of non recommendation dated 21 October 2025 which I have already quoted, that non recommendation is predicated on the incorrect assumption that Chapter 15 of the Act concerns itself with permanent residence or citizens. [74] In KHD [46] Ranchod J discusses the section 239(1)(d) letter. The learned Judge held: "[27] The question that arises for determination is whether the word "recommending" in section 239(1)(d) also includes a letter "not recommending". The applicants (so too, belatedly, the respondents) suggest that it does. There are, at least, three reasons why the position adopted by the parties appears to me to be correct. [28] The first reason relates to the legislative purpose of the impugned provision. It has been held that the legislative purpose of the impugned provision is, at least, three-fold: One, it ensures that the legislative prescripts are adhered to by accredited social workers within the framework of their professional ethics and responsibilities.  Two, it provides for the best interests of the child by ensuring that first respondent (and her counterparts in other provinces) is given an opportunity to consider factors that are specifically and particularly within her own knowledge. Three, it provides statutory oversight by public officials in the employ of the first respondent (and her counterparts in other provinces) in order to, inter alia , prevent human trafficking. [29] A letter "not recommending" the adoption of a child achieves these self-same things: It provides the Children's Court with the first respondent's (and her counterparts in other provinces) views on whether the statutory prescripts have been adhered to by the accredited social worker. It further provides the Children's Court with their views on facts that are within their " peculiar knowledge " and its impact (if any) on an assessment of best interest. Lastly, it provides the first respondent (and her counterparts in other provinces) with an opportunity to fulfil their oversight function and report to the Children's Court on any findings and concerns he or she may harbor. It follows that the legislative purpose of the letter is achieved, regardless of the nature of the response. [30] The second reason relates essentially to the jurisdiction of the Children's Court to hear adoption applications. The purpose of the letter implicitly recognizes that it is the Children's Court that must make a decision on the evidence before it on whether or not to grant an adoption. The Children's Court would, logically, consider the letter either recommending or not recommending the adoption in its assessment of, inter alia , 'best interests'.  I am fortified in this view if regard is had to instances where there is no letter of recommendation. A Children's Court is not absolutely barred from hearing an application but rather may, in exceptional circumstances, condone that failure.  In XN the court held: '[19]      However, although the best interests of the child cannot be sacrificed at the altar of formalism, if the requirement of the s 239(1)(d) is not complied with, the objectives of the Children's Act will be lost. The Children's Courts are charged with overseeing the wellbeing of children, examining the qualifications of applicants for adoption and granting adoption orders . To carry out their functions effectively and conscientiously they rely on the efficient collaboration of all stakeholders, the department and social workers to comply with their respective obligations in terms of the Act. Non-compliance with the provisions of the Act will delay the speedy facilitation of adoption applications, bringing the administrative processes to a halt, if not into disrepute. It should be a concern when those who are empowered by legislation to fulfil their functions appear recalcitrant, especially in matters involving the vulnerable members of our society. Nevertheless, in my view this does not give the child commissioner carte blanche to condone non-compliance with the provisions of the Act. This can only be done if the circumstances are exceptional and warranted, as in this case .' (My underlining.) [31] It must then follow that a Children's Court that is in possession of a letter - albeit a letter not recommending the adoption - would still be entitled to consider the adoption application. If this were not so, it would lead to the absurd conclusion that a Children's Court is bound by the decision of the first respondent correct and, in fact, would do violence to the separation of powers doctrine and defeat the very purpose of the Children's Court. [32] The third reason is that a converse finding would not only run contrary to the spirit and purport of the Children's Act but would also violate several fundamental rights of children including: firstly, the purpose of the Children's Act as articulated in its Preamble; secondly, the objectives of the Children's Act, generally , and the objectives of adoption, specifically; thirdly, a child's right to 'family life'; fourthly, the child's right to appropriate alternative care; and fifthly, a child's right to have his or her best interests considered of paramount importance, particularly insofar as it deprives a child to 'family life' and leads to undue delay." [75] I align myself with this reasoning. I am not persuaded by the Department’s argument that the decision fails to properly apply the proper interpretive principles. [76] The Department argues that in respect of the section 239 letter, the non recommendation of the adoption crosses the divide between interpretation and legislation. The proposition is that, sans the Department supporting the intended adoption, it cannot be granted. Put otherwise, if it has not given a letter of support, the requirement of the Act is not satisfied. It argues that Ranchod J was incorrect in his conclusion in KHD because the Act expressly uses the word “recommending” in relation to the proposed adoption. The Cool Ideas principle is that words should be given their ordinary meaning unless it results in an absurdity. [77] The contention advanced on behalf of the Department is not one that can, readily, be accepted as it results in precisely the outcome in respect of which it criticises the KHD decision. It results in the Department being the ultimate decision maker whether an adoption order ought to be made rather than a court. This gives rise to the absurdity contemplated in Cool Ideas because it leads to an interpretation to be at odds with the purpose for which the Children’s Court was created, its functions and powers. [78] The Department's recommendation or non recommendation, as the case may be, is one of the matters that the Children's Court must consider in the proper and lawful exercise of its statutory power. [79] Section 240(1), read in the manner required in Cool Ideas , requires that the Children’s Court “take into account a report contemplated in section 239(1)(b)”. Section 240(2) does not include as ground to refuse an adoption application, a report contemplated in section 239(1)(b) which does not support the proposed adoption. It this were to be the case, the Children’s Court’s powers would be usurped as it would unable to exercise the powers afforded to it in sections 45(1)(j) and 46(1)(c) because it would not be adjudicating the matter. [80] The point was made, thus, by Seegobin J in National Adoption Coalition : [47] "[33] The issues in this matter relate almost exclusively to the process, procedure and issuing of the section 239 letter of recommendation. While the purpose of a section 239 letter is not immediately apparent from the Act it has, however, been held to serve as an oversight role by public officials in the social workers assessment process and to prevent children being used for human trafficking. [34] In re XN the court made reference to the opinions expressed by the child commissioner: ’ [12] This court subsequently wrote to the child commissioner for the transcript of the adoption proceedings and to the department in regard to the non-compliance with the s 239(1) (d) letter. According to the child commissioner ‘it did not seem logical to send letters to departments who are not aware of their functions’. In her opinion ‘this does not give the court carte blanche to condone non-compliance with the Act, but if one looks at the requirements in this instance it is absurd’. Furthermore, in her opinion, the commentary in A Practical Approach to the Children’s Act G by Hester Bosman-Sadie & Lesley Curie suggest that this measure (the s 239(1) (d) letter) was implemented for purposes of quality control, and to channel reports of social workers in private practice.’ [35] As the applicant undoubtedly accepts, this letter serves an important purpose in the adoptions process. It contends, however, that the letter is not dispositive of the matter. The children’s court, as the judicial authority vested with the power to grant an adoption, is still required to consider the matter in its entirety, and with reference to the best interests principle, it is required to decide whether the adoption should be granted or not." (Footnotes omitted) [81] The principle in National Adoption Coalition was applied by Dippenaar J in TT [48] where the Learned Judge said: "[101]  Our courts have held that the measure of a s 239(1)(d) letter was implemented for purposes of quality control and to channel reports of social workers in private practice. It is a formal requirement under the Act, thereby involving oversight by public officials in the social worker’s assessment process. [102] In KHD it was held that the purpose of a s 239 letter is at least threefold. First, to ensure that the legislative prescripts are adhered to by accredited social workers within the framework of their professional ethics and responsibilities. Second, it provides for the best interests of a child by ensuring that the provincial head of social development is given an opportunity to consider factors that are specifically and particularly within her knowledge. Third, it provides statutory oversight by public officials in the employ of the department of social development to inter alia prevent human trafficking. [103] The Department, via the third respondent, is obliged to deliver a letter setting out its views on the adoption application, which may either recommend the adoption or not recommend it. In the latter instance, reasons should be provided to enable the Children’s Court to consider them. The Children’s Court would still be entitled to consider the application, even if the letter does not recommend adoption. As held in KHD : 'If this were not so, it would lead to the absurd conclusion that a Children’s Court is bound by the decision of the third respondent and, in fact, would do violence to the separation of powers doctrine and defeat the very purpose of the Children’s Court'. [104] It is the duty of the Children’s Court to ensure that untoward practices do not result from adoptions. It is also the Children’s Court which is charged with the wellbeing of children, examination of the qualifications of applicants for adoption and the granting of adoption orders. [105] The Department, via the third respondent, is not entitled to enquire generally, as the Children’s Court would, and to decide the issue of what is in a child’s best interests. The Department must rather consider whether it has any further information omitted by the adoption social worker that may impact on the adoption social worker’s conclusions and recommendations and to provide that information to the Children’s Court for consideration. If it has any misgivings about the adoption, the Department must provide reasons for such misgivings to the Children’s Court, thereby allowing that court to fulfill its statutory functions and thereafter monitor the proceedings. [106] It is not for the Department to assume the functions of the Children’s Court and to take it upon itself to perform that function or to dictate to the Children’s Court what must happen, as it seems to have arrogated to itself. As stated in KHD , that would violate the separation of powers doctrine. [107] The Children’s Court considers the adoption application in accordance with the provisions of s 240 of the Act. It is obliged to take into account all relevant factors, including those listed in s 240(1). Those factors include the religious and cultural background of the child, the parents of the child and the prospective adoptive parents, all reasonable preferences expressed by a parent and stated in the consent and the report contemplated in s 239(1)(b). [108] The Children’s Court may make an order only if the requirements set out in s 240(2) are met. These include that the adoption is in the best interests of the child, the prospective adoptive parents comply with s 231(2) and consent has been given in terms of s 233, subject to s 241 of the Act. [109] It cannot be concluded that there is merit in the interpretations of the various sections advanced by the Department. Rather, those interpretations evidence a concerning lack of understanding of the adoption process, the relevant provisions of the Act and the relevant principles enunciated in the case law. It is concluded that the Department’s interpretation of the relevant provisions is for the reasons provided, misconceived." [82] In terms of section 45(1)(j) the Children's Court has the power to adjudicate applications for the adoption of a child and is empowered, in terms of section 46(1)(c) to make an adoption order. In so doing, it must consider the Department’s letter, but it is not bound to adopt the Department’s stance and act as a mere rubber stamp as the Department would have it. [83] In the result, the declaratory relief sought by the applicants in paragraph 5 of their notice of motion is also well founded. # # THE RELIEF AGAINST THE FIRST AND SECOND RESPONDENTS THE RELIEF AGAINST THE FIRST AND SECOND RESPONDENTS [84] The relief in paragraph 6 of the applicants' notice of motion is couched in the form of a mandamus. It is directed at enforcing A and S's respective rights. The requirements for such relief have, long, been established. [85] The classical formulation is set out in the well-known decision of Setlogelo [49] as follows: " The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy." [86] For the reasons already stated, both A and S enjoy a clear right to have the adoption application determined. Section 6(4)(b) affords the applicants a right to this determination without delay. [87] It must then, as of necessity, be determined expeditiously for, in the absence thereof, their constitutional right to effective relief will, forever, be lost. [88] This constitutes irreparable harm and in respect of which there is no alternative remedy. # # CONCLUSION CONCLUSION [89] I have, above, concluded that the applicants are entitled to the relief they seek. [90] On the question of costs, the applicants have been successful and there is no reason to depart from the general rule that costs follow the event. But, this was not an easy application nor, for the reason of the obstacles placed in the way by the Department, could it be said to be run of the mill. [50] [91] The Department has been unnecessarily obstructive and has forgotten its duties and obligations. Instead of being facilitative it has been obstructive. It has all, but, succeeded in preventing S from having an application for her adoption considered. This manifests itself not only in the Department's inexplicable lack of understanding of the legislation which goes both to its letter of non recommendation and the joinder point taken herein, but also to its resistance in having this matter heard as an urgent application. [92] In the result, I make the following order: 1. It is declared that: 1.1. the minor child, S[…] H[…], is ordinarily resident within the jurisdiction of the First Respondent as contemplated in section 44 of the Children’s Act 38 of 2005; 1.2. the adoption in respect of the minor child constitutes a national adoption, to be determined in accordance with the provisions of Chapter 15 of the Children’s Act 38 of 2005; 1.3. the correspondence issued by the Third Respondent on 21 October 2025 constitutes a letter of non-recommendation sufficient to comply with section 239(1)(d) of the Children’s Act. 2. The First and Second Respondent are directed to: 2.1.         Take all steps necessary within their statutory powers to process and enrol the adoption application forthwith; 2.2. Enrol the adoption application for hearing by no later than 31 December 2025; 2.3. Finalise and conclude the adoption application on or before 5 January 2026. 3. The Third Respondent is directed to pay the Applicants’ costs with costs to be taxed on Scale C. A W PULLINGER ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION, JOHANNESBURG This judgment was handed down electronically by circulation to the parties’ and/or parties’ representatives by email and by being uploaded to CaseLines. The date and time for hand-down is deemed to be 16h00 on 19 December 2025 . DATE OF HEARING: 17 DECEMBER 2025 DATE OF JUDGMENT: 22 DECEMBER 2025 APPEARANCES: APPLICANTS’ COUNSEL: ADV N STRATHERN APPLICANTS’ ATTORNEYS : ULRICH ROUX AND ASSOCIATES THIRD RESPONDENT’S COUNSEL : ADV M NOMBEWU THIRD RESPONDENT’S ATTORNEYS : THE STATE ATTORNEY, JOHANNESBURG [1] KHD v Head of Department of Social Development, Gauteng 2021 JDR 1313 (GP) [2] Estate Friedman v Katzef 1924 WLD 298 at 306 [3] Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) [4] S v M (Centre for Child Law as amicus curiae ) [2007] ZACC 18 ; 2008 (3) SA 232 (CC) at [12] [5] Head of Department, Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC) at [84] [6] Glenister v President of the Republic of South Africa and Others 2011 (3) SA 374 (CC) at [105] [7] Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at [20] [8] Vodacom (Pty) Ltd v Makate and Another 2025 (6) SA 352 (CC) at [44] to [46] [9] President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 (5) SA 3 (CC) at [51] [10] Commissioner, South African Revenue Service and Another v Richards Bay Coal Terminal (Pty) Ltd 2025 (5) SA 617 (CC) at [94] [11] Section 6(2)(a) [12] Section 6(3) [13] Section 6(4)(b) [14] Section 42(1) [15] Section 43 [16] Section 44(1)(a) [17] Section 45(1)(j) [18] Section 46(1)(c) [19] Sections 261 to 265 [20] Section 230(3) of the Act provides: "A child is adoptable if- (a)   the child is an orphan and has no guardian or caregiver who is willing to adopt the child; (b)   the whereabouts of the child's parent or guardian cannot be established; (c)   the child has been abandoned; (d)   the child's parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; (e)   the child is in need of a permanent alternative placement; (f)    the child is the stepchild of the person intending to adopt; or (g)   the child's parent or guardian has consented to the adoption unless consent is not required." [21] The section provides: A child may be adopted – … … by a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child; … … " [22] Section 231(2) [23] Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others [2023] ZAGPJHC 1162 (13 October 2023) at [21] to [25] [24] Consider: Copper Sunset Trading 220 (Pty) v Spar Group Ltd and Another 2014 (6) SA 214 (LP) at [19] [25] Luna Meubel Vervaardigers (Edms) Bpk v Makin & Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) at 137 F [26] ibid at [20] [27] ibid at [25] and [28] [28] ibid at [26] and [27] [29] Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 (A) at 675 H [30] Tamela Mezzanine Debt Fund I Partnership v KT Wash Detergents Pty Ltd and Others [2025] ZAGPJHC 1271 (12 December 2025) [31] Gordon v Department of Health: Kwazulu-Natal [2008] ZASCA 99 ; 2008 (6) SA 522 (SCA) at [9] [32] Zulu and Others v eThekwini Municipality and Others 2014 (4) SA 590 (CC) at [16] [33] Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) at [28] [34] Section 236(1) applies in this matter. The section provides: "The consent of a parent or guardian of the child to the adoption of the child, is not necessary if that parent or guardian - (a)     is incompetent to give consent due to mental illness; (b)     has abandoned the child, or if the whereabouts of that parent or guardian cannot be established, or if the identity of that parent or guardian is unknown; (c)     has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; (d)     has consistently failed to fulfil his or her parental responsibilities towards the child during the last 12 months; (e)     has been divested by an order of court of the right to consent to the adoption of the child; or (f)      has failed to respond to a notice of the proposed adoption referred to in section 238 within 30 days of service of the notice." [35] GM v KI 2015 (3) SA 62 (GJ) at [14] [36] Section 1(1) of the Act defines an " abandoned child " as meaning: "a child who— (a)     has been deserted by a parent, guardian or care-giver; (b)     or no apparent reason, had no contact with the parent, guardian or care-giver for a period of at least three months; or (c)     has, if applicable, no knowledge as to the whereabouts of the parent, guardian or care-giver and such information cannot be ascertained by the relevant authorities;" [37] Pasiya and Others v Lithemba Mining (Pty) Ltd and Others 2024 (4) SA 118 (SCA). [38] Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA). [39] At [47]. [40] Clarke v Hurst N.O and Others 1992 (4) SA 630 (D) at 634 H to 637 C [41] Smith v Smith [1999] JOL 5397 (C) at page 12 et seq [42] Ad Hoc Central Authority for the Republic of South Africa and Another v DM [2024] JOL 65202 (WCC) [43] In re F (A Minor) (Child Abduction) [1992] 1 FLR 548 [44] Senior Family Advocate, Cape Town v Houtman [2004] (6) SA 274 (C) at [8] [45] Central Authority for the Republic of South and Another v C 2021 (2) SA 471 (GJ) at [63] [46] ibid [47] National Adoption Coalition of South Africa v Head of Department of Social Development, for the Province of KZN and Others 2020 (4) SA 284 (KZD) [48] TT and Another v Minister of Social Development and Others 2023 (2) SA 565 (GJ) [49] Setlogelo v Setlogelo 1914 AD 221 at 227 [50] Mashavha v Enaex Africa (Pty) Ltd 2025 (1) SA 466 (GJ) at [16] sino noindex make_database footer start