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

The applicants were partners in a longstanding lesbian relationship since 1989, formalized through a commitment ceremony in 1990, who lived together as a family with property and finances held jointly. In 1994, they were screened and approved by Cotlands Baby Centre to adopt two siblings. Both applicants were assessed as suitable parents, with full knowledge that the children would be raised in a permanent lesbian partnership. However, under the Child Care Act 74 of 1983, only married couples could adopt jointly. Consequently, only the second applicant was granted adoptive parent status in 1995, despite the first applicant being the primary care-giver. This meant the first applicant had no legal say in important decisions concerning the children and had no legal protection of her relationship with them. The applicants challenged sections 17(a), 17(c), and 20(1) of the Child Care Act and section 1(2) of the Guardianship Act 192 of 1993 as unconstitutional. The respondents did not oppose the application. The Lesbian and Gay Equality Project participated as amicus curiae, and Advocate Stais was appointed as curator ad litem to represent the interests of the children.

• Whether sections 17(a), 17(c), and 20(1) of the Child Care Act 74 of 1983 violate the right to equality (section 9(3)) by discriminating on the grounds of sexual orientation and marital status
• Whether the impugned provisions violate the right to dignity (section 10) of the first applicant by denying her legal recognition as a parent
• Whether the prohibition on joint adoption by same-sex partners violates section 28(2) of the Constitution by failing to accord paramountcy to the best interests of the child
• Whether section 1(2) of the Guardianship Act 192 of 1993, which limits joint guardianship to married couples, is unconstitutional
• Whether the limitations on constitutional rights imposed by the impugned provisions are justifiable under section 36 of the Constitution
• What is the appropriate remedy, particularly whether reading-in is appropriate and whether there should be a suspension of the declaration of invalidity

The Constitutional Court confirmed the High Court order declaring sections 17(a), 17(c), and 20(1) of the Child Care Act 74 of 1983 and section 1(2) of the Guardianship Act 192 of 1993 unconstitutional and invalid to the extent of their omissions. The Court ordered that: (1) Section 17(a) of the Child Care Act be read to include "or by the two members of a permanent same-sex life partnership jointly" after the word "jointly"; (2) Section 17(c) be read to include "or by a person whose permanent same-sex life partner is the parent of the child" after the word "child"; (3) Section 20(1) be read to include "or permanent same-sex life partner" after the word "spouse"; (4) Section 1(2) of the Guardianship Act be read to include "or both members of a permanent same-sex life partnership are joint adoptive parents of a minor child" after the word "marriage". The Court declined to suspend the declaration of invalidity.

The binding legal principles established are: (1) Statutory provisions that limit joint adoption and guardianship to married couples, thereby excluding permanent same-sex life partners, constitute unfair discrimination on the intersecting grounds of sexual orientation and marital status in violation of section 9(3) of the Constitution; (2) Such provisions violate section 28(2) of the Constitution by failing to accord paramountcy to the best interests of children, as they exclude suitable prospective parents and deprive children of the possibility of stable family life; (3) The denial of legal recognition to a person who functions as a parent in a permanent same-sex relationship violates the right to dignity under section 10 of the Constitution; (4) Section 28(1)(b)'s reference to "family or parental care" encompasses diverse family structures, including families headed by same-sex couples; (5) The absence of specific statutory procedures for protecting children upon dissolution of same-sex partnerships does not justify discrimination, as High Courts can exercise their inherent jurisdiction as upper guardian of minors to protect children's interests; (6) Reading-in is an appropriate constitutional remedy where it cures the constitutional defect and provides immediate relief; (7) Each adoption application must still be evaluated on a case-by-case basis to ensure prospective adoptive parents are suitable, regardless of the nature of their relationship.

The Court made several significant obiter observations: (1) The Court noted the growing recognition of same-sex relationships in recent South African cases, statutes, and government consultation documents, indicating a broader social and legal shift toward equality; (2) Justice Skweyiya observed 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"; (3) The Court acknowledged that while it would be "preferable to have statutory guidelines and procedures governing" the dissolution of same-sex partnerships and protection of children in such circumstances, this was not essential to granting the relief sought; (4) The Court suggested that Parliament could and should address the comprehensive regulation of same-sex partnerships, though it did not make this a requirement or suspend the order to allow for legislation; (5) The judgment emphasized the particular importance of expanding adoption opportunities in the South African context given "the social reality of the vast number of parentless children in our country"; (6) The Court noted the importance of appointing a curator ad litem in matters affecting children's interests, flowing from section 28(1)(h) of the Constitution, to ensure children's interests are fully represented and to avoid substantial injustice.

This landmark case was the first Constitutional Court decision to recognize the parenting rights of same-sex couples and to extend adoption and guardianship rights to permanent same-sex life partners. It affirmed that the constitutional concept of "family" in section 28(1)(b) extends beyond traditional heterosexual marriage to include diverse family forms. The decision built upon earlier Constitutional Court jurisprudence protecting LGBTQ+ rights and applied the equality, dignity, and children's rights provisions of the Constitution in an integrated manner. It demonstrated the Court's willingness to use the remedy of "reading in" to cure constitutional defects, rather than merely striking down provisions or suspending invalidity. The judgment recognized that legal conceptions of family must evolve with changing social practices and that discrimination based on sexual orientation and marital status in the family law context is unconstitutional. The case is particularly significant in the context of South Africa's HIV/AIDS crisis and large numbers of orphaned children, emphasizing that expanding the pool of suitable adoptive parents serves children's interests. It paved the way for further recognition of same-sex relationships in South African law, ultimately contributing to the path toward same-sex marriage recognition.