The Constitutional Court recently handed down two positive judgments in the cases VJV, RT v Minister of Social Development & Minister of Justice and Constitutional Development [2023] ZACC 21  and Centre for Child Law v TS & Others [2023] ZACC 22 (VJV case), asserting the rights of children born to unmarried parents to equal protection of the law, similar to children born of married parents.

The VJV case deals with the rights of children conceived through artificial fertilization (‘IVF’) and the concurrent acquisition of parental responsibilities and rights by unmarried partners. The legal question under scrutiny was whether section 40 of the Children’s Act is discriminatory. Section 40 assigns PRR to the partner who donates reproductive cells, but precludes unmarried non-donor partners from acquiring PRR in relation to a child born through IVF.

CCL staff members at the Constitutional Court (Lebohang Dube, Fortunate Mongwai, Liesl Muller , Karabo Ozah , Stanley Malematja & Moyahabo Thoka)

As friends of the court, the Centre for Child Law and argued that section 40 of the Children’s Act is unconstitutional to the extent that it contravenes the child’s right to equality, the right to family care and equal legal protection which undermines the child’s best interests, and impedes the exercise of parental responsibilities and rights (‘PRR’) by the parents of such child/ren.

The Constitutional Court confirmed the High Court’s decision that section 40 is unconstitutional in as far as it unfairly and unjustifiably discriminates against parents on the basis of their marital status and sexual orientation. The Court further held that the terms ‘spouse’ and ‘husband’ must be interpreted to include ‘permanent life partners’, thereby extending legal protection to unmarried parents.  However, where unmarried partners are concerned there must be written consent indicating that both partners’ consent to be recognized as parents of the child/ren born through IVF. 

          CCL Director, Karabo Ozah, arguing before the Constitutional Court

The decision provides legal clarity regarding the acquisition of PRR concerning children born to unmarried parents and conceived through artificial fertilization. Clear determination of parenthood has a major impact on the exercise of care, maintenance, and guardianship of a child and further ensures that children born to married and unmarried parents are afforded equal legal recognition and protection as per the right of every child to parental care and family without distinction regarding the sexual orientation or marital status of parents.

Children involved in disputes regarding Parental Responsibilities and Rights

The Centre for Child Law v TS matter dealt with the right of a child to access justice through the intervention of the Family Advocate. The Constitutional Court unanimously confirmed an order of the Johannesburg High Court declaring section 4 of the Mediation in Certain Divorce Matters Act  (‘Act’) to be inconsistent with the Constitution and invalid to the extent that it precludes children of never-married parents and married parents (who are not going through a divorce), from accessing the services of the Family Advocate without going through undue limitations or cumbersome processes that the children of divorced or divorcing parents are not subjected to. Put differently, the provision unjustifiably restricts access to the Family Advocate for the children of never-married parents and married parents who are not going through a divorce.  

In the High Court CCL was the amicus curiae, however, the applicants and respondents had no interest in taking the matter further following the High Court’s decision. In that premise, CCL saw it necessary to bring an application to the Constitutional Court for confirmation for purposes of ensuring legal certainty and securing the advancement of the best interests of all children who find themselves in the middle of such disputes between their parents.

According to section 4 of the Act, children of divorced parents or parents going through the process of divorce are entitled to make use of the services of the Office of the Family Advocate by simply completing a form and delivering it to the Offices of the Family Advocate, as per the Regulations of the Act. An unmarried or never-married parent, on the other hand, is not entitle to make use of this streamlined process but must rather go through the cumbersome and lengthy process of instituting an application in two parts wherein they seek, among others, an order requiring the Office of the Family Advocate to act.

The effect of this judgment is that where disputes regarding the exercise of PRR are heard in the High Court, children are entitled to access the services of the Office of the Family Advocate on demand, regardless of their parent’s marital status. This judgment is extremely important considering that the function of the Office of the Family Advocate’s investigation and report is intended to establish the best interests of the child and to tender an objective perspective to the court regarding the decision to give effect to the child’s right to dignity as per section 10 and 28(2) of the Constitution, which iterates that “a child’s best interests are of paramount importance in every matter concerning the child”.

CCL Director, Karabo Ozah and in-house counsel Advocate Morgan Courtenay

Both these judgments reiterate the right of all children to equality and dignity as iterated in sections 9 and 10 of the Constitution, and reminds us all that “a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them", as asserted in the now famous dictum of Sachs J in the case S v M (Centre for Child Law as Amicus Curiae).