Fraser v Children’s Court, Pretoria North, and others 1997 (2) SA 261 (CC)

Findings: The question of the constitutionality of s 18(4) (d) was referred for determination to the Constitutional Court in terms of s 102(1) of the Constitution. S 18(4)(d) of the Child Care Act 74 of 1983 provides that a children’s court to which application for an order of adoption is made shall not grant the application unless it is satisfied that consent to the adoption has been given by both parents of the child, or, if the child is illegitimate, by the mother of the child only. Court held that the discrimination entailed by the section could not be justified. It unfairly discriminates against the fathers of certain children on the basis of their gender or their marital status. Every mother was given an automatic right to withhold her consent to the adoption of the child while this right was denied to every unmarried father. An order declaring the section unconstitutional was made whereas order was made to allow the section to survive pending correction by parliament.