The case concerned an unmarried father, Mr Lawrie John Fraser, whose child was placed for adoption by the child’s mother, Ms Adriana Petronella Naude. Under section 18(4)(d) of the Child Care Act 74 of 1983, the consent of an unmarried father was not required for the adoption of an illegitimate child. Ms Naude consented to the child’s adoption by the second respondents (the adoptive parents). Mr Fraser attempted to intervene in the Children’s Court proceedings, opposed the adoption, and applied to adopt the child himself, but his application failed because the mother’s refusal to consent was not found to be unreasonable. The Children’s Court granted the adoption, and the child had since been raised by the adoptive parents. Mr Fraser subsequently challenged the constitutionality of the statutory provision excluding unmarried fathers’ consent and also sought to have the adoption set aside on procedural grounds. Although he succeeded in having the provision declared unconstitutional in earlier proceedings, the order was suspended and did not affect completed adoptions. His attempt to review and set aside the adoption succeeded in the Transvaal High Court but was overturned by the Supreme Court of Appeal. He then sought special leave to appeal or direct access to the Constitutional Court.
The application for special leave to appeal against the decision of the Supreme Court of Appeal, alternatively for direct access to the Constitutional Court, was refused. No order as to costs was made.
The case underscores the Constitutional Court’s approach to leave to appeal and direct access, particularly in matters involving children. It affirms the paramountcy of the best interests of the child and highlights the importance of finality and stability in adoption proceedings. The judgment illustrates that even potentially arguable constitutional or procedural issues may be outweighed by the child’s welfare and the interests of justice.