Kobus Herbst, Kenneth Williams Tempitope v The Presiding Office of the Children’s Court, Johannesburg (A3025/2018) [2018] (12 November 2018)

/ / News, 2018, Family Law


This is an appeal in respect of the decision by the Children’s Court of Johannesburg in which the Appellants’ adoption application for a minor child (“M”) was dismissed. The Appellants are a same sex couple with the second appellant being a Nigerian citizen. M was placed in the care of the Appellants in terms of section 168(1)(b) and (2) of the Children’s Act 38 of 2005 (the “Act”) (leave of absence for a child in temporary safe care) when he was nine months old. Once M was in the care of the Appellants, they applied to formally adopt him.

The adoption application was postponed for more than 4 (Four) years and, upon adjudication, was dismissed by the Court a quo on the basis that the second applicant was not eligible to adopt in terms of either Chapter 15 (local adoption) or Chapter 16 (inter-country adoption) of the Act. The Children’s Court held that the adoption could not be sanctioned as the second appellant was not a South African citizen and the adoption was not in the best interests of M. The Appellants accordingly approached the High Court to appeal the order of the Children’s Court.

The High Court considered whether the adoption was in the best interests of M. The Court referred to the definition of adoption as per section 228 and section 229 of the Children’s Act, which states that the purpose of adoption is to “protect and nurture children by providing a safe, healthy environment with positive support.”



The High Court held that the Court a quo erred in its assessment of Chapter 15 to exclude a person based on his/her nationality and erred further in finding that Chapter 16 is applicable to the current matter, as Chapter 16 specifically applies where a child or a prospective adopting parent is not habitually resident in the Republic of South Africa. Given that the second appellant and M are habitually within the Republic, there was no need to regard this an inter-country adoption.

The Court stated that the interpretation of the legislative framework for adoption calls for a purposive interpretation and that the adoption provisions are interpreted to accord with our constitutional imperative.

A child’s right to parental care is a core constitutional right in our Bill of Rights. The Court further held that adoption procedure must be approached and addressed with empathy, understanding and flexibility whilst being vigilant for dangers to children such as human trafficking.

The Court held that it is mandatory when interpreting Chapters 15 and 16 of the Children’s Act relating to adoption that these provisions be considered through the prisms of a child’s right and their best interests.

The Judge held that the court a quo’s order failed to balance the best interest of M against a fatally flawed interpretation of Chapters 15 and 16 of the Children’s Act and there was no basis to dismiss the adoption application. The Court further held that the appeal is upheld and M is declared to be adopted by the Appellants.



This case highlights the current unnecessary delays in the adoption procedure which plays a part in impeding a child’s right to family and parental care. Additionally, a purposive approach is applicable when interpreting the adoption provisions of the Children’s Act.

Written by Jeannique Booysen and supervised by Jarryd Spargo, 21 November 2018

Share Article: