Du Toit and Another v Minister of Welfare and Population Development and Others

The two applicants were partners in a long-standing lesbian relationship who had lived together as life partners since 1989, formalising their union with a commitment ceremony in 1990. Functioning as a married couple in community of property, they pooled resources, owned property jointly, and took all major life decisions together. In 1994, they underwent a joint screening process at Cotlands Baby Centre, where social workers assessed them together as prospective parents aware of their permanent same-sex partnership. They were approved and a sister and brother were placed in their care. However, in 1995, the children's court could only grant custody and guardianship to the second applicant alone, because the Child Care Act 74 of 1983 confined the right to adopt children jointly to married couples. The first applicant, despite being the primary caregiver, had no legal parental rights.

• Whether sections 17(a), 17(c), and 20(1) of the Child Care Act 74 of 1983, which permit joint adoption only by married couples, violate the 'best interests of the child' principle enshrined in section 28(2) of the Constitution.
• Whether the impugned provisions of the Child Care Act unfairly discriminate against same-sex life partners on the grounds of sexual orientation and marital status, contrary to section 9(3) of the Constitution.
• Whether the exclusion of the first applicant from legal recognition as a parent infringes her right to dignity under section 10 of the Constitution.
• Whether section 1(2) of the Guardianship Act 192 of 1993 is constitutionally invalid insofar as it does not provide for joint guardianship by same-sex life partners.
• Whether the limitations on the identified rights are justifiable under section 36 of the Constitution.
• What the appropriate, just, and equitable remedy is, including whether a 'reading in' or a suspended declaration of invalidity should be ordered.

The order of the High Court was confirmed. The Constitutional Court declared that the omission of words providing for permanent same-sex life partners from sections 17(a), 17(c), and 20(1) of the Child Care Act and section 1(2) of the Guardianship Act was inconsistent with the Constitution and invalid. Words were read into each of these provisions to allow for joint adoption and joint guardianship by the two members of a permanent same-sex life partnership.

Legislation that permits the joint adoption of children and joint guardianship by married couples but excludes partners in permanent same-sex life partnerships is unconstitutional. Such exclusion violates the paramountcy of the child's best interests (section 28(2)), constitutes unfair discrimination on the intersecting grounds of sexual orientation and marital status (section 9(3)), and infringes the right to dignity (section 10) of the non-recognised partner. The flexible, constitutional standard of the child's best interests, enforced by the High Courts as upper guardian of minors, provides sufficient protection for children in such families pending comprehensive legislative reform.

The Court observed that while it would be preferable for Parliament to pass legislation to provide a comprehensive statutory framework for the protection of children upon the termination of same-sex partnerships, the existing high court jurisdiction as upper guardian of all minors was sufficient in the interim. The judgment also noted the broader legislative and jurisprudential developments in South Africa that increasingly recognise the legitimacy and value of same-sex permanent life partnerships.

This is a landmark judgment in South African family and equality law. It extended the legal recognition of same-sex life partnerships beyond the spousal benefits context into parental rights, affirming that lesbian and gay couples are equally capable of providing for the best interests of children. It constitutionally mandated the 'reading in' of same-sex life partners into the joint adoption and guardianship framework, dismantling a legislative scheme predicated solely on heterosexual marriage. The judgment advanced the evolving understanding of the family in South African law, aligning it with constitutional values of dignity, equality, and the paramountcy of children's welfare.