South Africa’s adoption system has been operating with procedural barriers that the country’s courts have now twice found unlawful, and the practical consequences of those barriers were laid bare in two cases that reached the Supreme Court of Appeal.
The appeals court dismissed an appeal brought by the minister of social development, the Gauteng provincial executive council member for social development and the head of the provincial department. In doing so it upheld a ruling by the Johannesburg High Court, which had found that adoption guidelines imposing requirements beyond those set out in the Children’s Act were unconstitutional.
At the center of the case was how the Department of Social Development actually ran the adoption process on the ground. Appeals court judge Nambitha Dambuza found that department officials had improperly conflated two distinct procedures: the process for protecting children from abuse or neglect, and the process for adoption. In practice, the department treated an investigation under a care and protection case as a mandatory prerequisite before an adoption could proceed, even though the law imposed no such requirement. That operational practice, the court found, had no legal foundation.
The two cases considered by the court, involving children identified in the documents as B and L, illustrate how the department’s procedures played out for real families. In B’s case, between 2018 and 2020 the matter was returned to the Children’s Court 15 times while officials weighed placing the child with biological grandparents in order to preserve cultural roots. The social worker who recommended that option had not met either the child or the prospective adoptive parents, and had not examined their circumstances. In L’s case, the mother chose adoption and obtained a court order barring disclosure of her pregnancy to her family. Despite that order, the department attempted to reconsider an adoption recommendation that had already been issued, insisting that the child be removed and the process restarted.
B’s adoption was ultimately completed on May 26, 2023, and L’s on August 8, 2023. The appeals court said it found no evidence that the adoptive parents were unsuitable, and noted that the children had known only these families. The court also declined to set aside an order referring the conduct of the social workers involved to the South African Council for Social Service Professions, meaning that question of professional accountability remains live.
Beyond the specific procedural failures, the judgment also addressed how officials weigh competing considerations when deciding a child’s future. The court disagreed with an approach under which biological relatives, the community or cultural affiliation automatically take priority. Dambuza noted that the law does not establish a hierarchy of factors for such decisions. Cultural and family ties may be considered, but they cannot replace an assessment of the best interests of the specific child.
The ruling does not strip adoption of its statutory safeguards. Consent requirements remain in force, subject to the exceptions defined by law. Prospective adoptive parents must still meet legislative requirements, and any adoption must still serve the child’s best interests. What changes is the removal of an extra layer of procedure that officials had inserted into the process without legal authority, a layer that in the two cases before the court meant years of delay, repeated returns to court and attempts to restart completed work.
For the department and its provincial counterparts, the judgment functions as a directive on how the adoption service must be administered: the process must follow the Children’s Act as written, and decisions must turn on the individual child rather than on an automatic ordering of cultural or family preference. The referral of the social workers’ conduct to the professional council stands. What remains open is whether the officials responsible for running the system will adjust their practice in line with the ruling.