- Government social workers delayed two adoptions while attempting to place the children with their biological grandparents.
- The appeal court found that departmental guidelines imposed additional adoption requirements not authorised by the Children’s Act.
- The appeal was dismissed with costs, leaving in place an order referring the social workers’ conduct to their professional body.
Government social workers unlawfully interfered in two child adoptions by ignoring the mothers’ consent and putting biological family ties first, the Supreme Court of Appeal has ruled.
In a judgment delivered on 20 October 2026, Judge of Appeal Nambitha Dambuza dismissed an appeal by the Minister of Social Development, the Gauteng MEC for Social Development, and the head of the Gauteng Department of Social Development, against a ruling by Judge Alma de Wet Dippenaar in the Johannesburg High Court. The High Court had found that the officials’ conduct was inconsistent with the Children’s Act 38 of 2005 and the Constitution.
University students face adoption decision challenges
The case concerned two children, identified as B and L, whose mothers were university students when they decided to place their babies for adoption. Both women consented before a magistrate and wanted to keep their pregnancies and adoption decisions private from their families.
B’s mother was 23 when she fell pregnant. She feared her conservative parents would disown her and jeopardise her studies. His biological father, also a student, suggested terminating the pregnancy and subsequently ended contact with her when she rejected the suggestion.
With assistance from private adoption social worker Ms Wasserman, B’s mother arranged his adoption. B was born prematurely and remained in hospital for a week after his mother’s discharge. The prospective adoptive parents initially chosen by his mother withdrew because of uncertainty surrounding the process.
Government social worker Evelyn Mahlangu believed they should trace B’s biological father. Social workers Sinah Phiri and Livhuwani Mufamadi-Malaka later insisted that his maternal grandparents had to be told and considered for his care, even though his mother objected.
In August 2018, the department obtained a Children’s Court order to move B from the hospital on the basis that he was a child in need of care and protection. His mother was not informed of the application. He spent four months in temporary care before being placed with his current adoptive parents.
The department kept trying to persuade the grandparents to take him in. Although they were not unwilling, they were unsure, and they had never met B. His adoption proceedings were postponed 15 times between 2018 and 2020.
The Children’s Court eventually found that adoption by his prospective adoptive parents was in his best interests and directed the department to issue the required recommendation. Instead, the department issued a letter refusing to recommend the adoption.
L’s mother had already experienced rejection by her family. Her parents expelled her from their home when they learnt of her first pregnancy, although she was allowed to return five months later. When L was born, she decided to arrange an adoption with Ms Wasserman’s assistance and expressly told government social worker Pearl Hlatshwayo that she did not want her parents informed.
Hlatshwayo later said she had a court order requiring her to notify the grandparents and intended to visit their home. L’s mother obtained a High Court order preventing the department from disclosing the adoption to her parents.
The department initially recommended L’s adoption in October 2020 but subsequently launched proceedings to have its own recommendation reviewed and set aside. Both adoptions were finalised in 2023.
Department wanted adoption processes restarted
The department argued that Ms Wasserman and the magistrates had failed to comply with the Children’s Act. It maintained that the adoption applications were defective and that the children should be removed from their adoptive parents and placed with their grandparents while the processes started afresh.
The authorities also relied on departmental guidelines prioritising biological family placement, cultural connections and adoption within a child’s community. They argued that the High Court had misunderstood their position concerning the statutory requirements.
The mothers and the South African Council for Social Service Professions opposed the appeal. The Centre for Child Law participated as a friend of the court.
Appeal court rejects departmental approach
Judge Dambuza found that the department had conflated two distinct processes under the Children’s Act: proceedings concerning children in need of care and protection, and adoption proceedings.
Adoption does not generally require a prior finding that a child needs care and protection. Once the mothers had consented and the fathers’ lack of interest was clear, officials had to perform the duties prescribed by law, including assessments, counselling and recommendations.
The court rejected the argument that the mothers’ consent had not been exercised independently. It also found that the departmental guidelines introduced additional requirements that the Act did not authorise. “The overarching consideration is the best interests of the child,” Judge Dambuza said.
Although cultural identity and family relationships must be considered, they cannot automatically override other factors when assessing a child’s best interests. The suitability of prospective adoptive parents is central to that assessment.
The court also rejected suggestions that Ms Wasserman had participated in an organised network of unlawful adoptions, finding no compelling evidence to support the allegation.
Criticising the officials’ disclosure of the pregnancies, interference with court processes and disregard of statutory procedures, the court said their conduct showed a troubling lack of appreciation of their responsibilities and the mothers’ rights to dignity and privacy.
“There is no conceivable reason why they should be wrenched from their families,” Judge Dambuza said of the children’s established relationships with their adoptive parents.
The court found that B and L’s interests lay in remaining with their current families. It dismissed the appeal with costs, including the costs of three counsel, leaving in place the order referring the social workers’ conduct to the South African Council for Social Service Professions.
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