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

The applicants were partners in a permanent lesbian life partnership. They jointly raised two siblings who had been placed in their care following a formal screening process by adoption authorities. Because the Child Care Act 74 of 1983 permitted joint adoption only by married couples, only the second applicant could legally adopt the children. The first applicant, although the primary caregiver, had no recognised parental or guardianship status. The applicants challenged provisions of the Child Care Act and the Guardianship Act 192 of 1993 that confined joint adoption and joint guardianship to married persons. The High Court declared the provisions unconstitutional and ordered a ‘reading-in’ to include permanent same-sex life partners. The matter came before the Constitutional Court for confirmation of that order.

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 to the extent that they excluded permanent same-sex life partners. The Court confirmed the reading-in of words to allow joint adoption and joint guardianship by permanent same-sex life partners.

This case was a landmark decision recognising same-sex life partners as joint adoptive parents under South African law. It strengthened constitutional protection against discrimination on grounds of sexual orientation, advanced children’s rights by centring the best interests of the child, and affirmed a substantive, inclusive understanding of family life under the Constitution. It paved the way for further legal recognition of same-sex families prior to the legalisation of same-sex marriage.