IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO:							13967/2007 

DATE:								12 MAY 2008

In the matter between:

and

THE MINISTER OF JUSTICE AND 

					JUDGMENT

[3] A further declaration is sought that Flynn (or Flynn's deceased estate) inherit the intestate estate of Farr, that the first, second and third respondents give effect to the relief as sought.

[4] The relief has been expressly opposed by the first respondent in his capacity as executor of the intestate of the late Edward John Farr and by the fourth respondent ('the Minister').

The factual background

[6] Flynn grew up to be one of the greatest actors who ever graced the South African stage.   Throughout his career, it appears that Farr afforded him the support and the affection which any father would have been credited for so exhibiting. However, Fiynn was never legally adopted by Farr, ostensibly because Flynn's biological father would not grant his consent for such adoption to take place. Whatever the reason, a legal process of adoption was never formally initiated nor in any other way pursued.

[8] Flynn himself died suddenly in 2007, at a time when it was common cause that he was in the process of giving instructions to his attorneys to bring an application to have his rights to the estate of Farr legally recognised. The present application is being brought by his executor on behalf of his deceased estate.

[9] The Act regulating adoptions from the time Flynn's mother was married to Farr until approximately the time when Flynn attained the age of majority is to be found in the Children's Act, VII of 1966 ("the 1960 Children's Act"). Chapter 7 of the Children's Act regulated adoptions at the time. Adoptions had to be effected by the order of the Children's Court in the district in which the child resided, upon appfication of the adoptive parents. Section 71(2} of the 1960 Childrens Act contained a number of peremptory requirements, including (1) consent to the adoption to be given by both parents; (2) if one parent had deserted the child, by the other parent; (3) the child, if over the age of 10 years, consented to the adoption. The consent had to be in writing and signed in the presence of the Commissioner of Child Welfare (section 71(3) of the 1960 Childrens Act).

[11] In terms of section 72(2) of the 1960 Childrens Act, where application was made for an adoption of a child of a parent who has deserted such child, the Court shall not grant the application, unless if the place of residence or address of the parent was known to the Court such parent has been given reasonable opportunity to oppose the application.

Succession law

[15] Subsection (3) provides that an order of adoption shall terminate all the rights and legal responsibilities which may exist between the child and his or her natural parents and their relatives, save for the right of the child to inherit from them by way of intestacy.

The categories of intestate heirs as provided in the Act can be summarised thus:
1.	Surviving spouse in the absence of any descendant, inherits everything.
2.	The descendant who, in the absence of a spouse, inherits everything.
3.	For the surviving spouse to inherit the share of a single child, subject to a minimum if there is too little in the estate, if the deceased is survived by both the surviving spouses and descendants.
4.	Parents who only inherit in the absence of the spouse or descendant and in the absence of any one parent, the descendants of that deceased parent will inherit his or her share.
5.	In the absence of a spouse, descendant or parent, descendants of the deceased's mother who are related to the deceased through her only, as well as by descendants of the deceased's father who are related to the deceased, through him only or through both.
6.	In the absence of a spouse, descendant, parent or descendant of a parent, the other blood relation or blood relations of the deceased who are related to him or her nearest in degree.
From this list, it is clear that, although not so defined, a descendant is for all intents and purposes "a child of the deceased" and in terms of section 1(4)(e), this includes an adopted child who, by virtue of the deeming provision, is deemed to be a descendant of his or her adoptive parent or parents and not to be a descendant of his or her natural parent or parents, save in the case of a natural parent who is also the adoptive parent of the child or was at the time of the adoption married to the adoptive parent of the child.

[16] Section 1(5) of the Act provides that, if an adopted child is deemed to be a descendant of his or her adoptive parent or is deemed not to be a descendant of his or her natural parent, the adoptive parent concerned shall be deemed to be an ancestor of the child or shall be deemed not to be an ancestor of the child as the case may be. Viewed thus, the effect of section 1(4){e) read together with section 1(5) of the Act is that a child may not be a descendant of his or her adoptive parents as well as his or her natural parents and that in turn both the adoptive and natural parents will not be regarded as ancestors to the child. A reciprocity exists between the parent and the chifd in respect of the relationship on intestacy.

The applicant's case

2.	A factual question: Assuming that the law should treat factually and legally adopted children in the same way, then was Flynn factually adopted by Farr?

The legal question
[19] I turn now to deal with the legal question, a positive determination for applicant which rs crucial to his case. The legal issues can be defined thus:

"An adopted child shall for all purposes whatever(sic) be deemed in law to be the legitimate child of the adoptive parent as if he was borne of that parent during the existence of a lawful marriage".

Act, together with the provisions of Act 74 of 1983 as I have set them out.

The eoualitv position
[22] The legal issue to be addressed is whether it can be said to be unconstitutional to discriminate between children who are factually adopted and those that are legally adopted. To the extent that it is relevant, section 9 of the Constitution provides thus:
1.	Everyone is equal before the law and has the right to equal protection benefit of the law.
2.	Equality includes the full and equal enjoyment of all rights and freedoms.
3.	The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, incfuding race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
4.	No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3).
5.	Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair".

1.	Does    the    challenged    law    or    conduct differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate purpose? If it does not, then there is a violation of section 9(1). What this really means is: is there a good reason for treating X differently to Y?
2. Does the differentiation amount to discrimination that can be regarded as unfair? This requires a two-stage analysis:
(a) Does the differentiation amount to discrimination? If the discrimination happens on the basis of a ground listed in section 9{3) it is presumed to be discrimination. If one of the fisted grounds is not so implicated, then whether or not it is discrimination depends on whether objectively viewed, the differentiation is based on attributes and characteristics that have the potential to impair the fundamental human dignity of a person who has been treated differently;

(b) if the differentiation amounts to discrimination, the next question asked is whether or not the discrimination is unfair.   If the discrimination occurs on a ground listed in subsection (3), unfairness is presumed. If it occurs on a ground that has not been so listed, unfairness can still be established by examining the impact of the discrimination on the person affected by the law or conduct.

"A few days ago my dad's lawyer (Farr) has informed of the very distressing news - due to my dad's own intestacy, the law dictates that he and mom's combined estate, including our family home and everything in it (all valued around three to four million rand) will automatically be passed on to his nearest surviving relatives - namely his elder brother and younger sister, their offspring, as well as the offspring of his deceased brothers and sisters, of which there are dozens. According to these lawyers who handled various affairs for my dad over the years, as a stepson who was never legally adopted I have no rights or say in the matter whatsoever - something my dad and I were totally unaware of. Had he known this I have no doubt that he would have immediately created a will - however brief it might have been. When my mom died without a will he appointed himself as executor and handled the entire matter himself at the age of 73, opening a can of worms process which took him years to complete - and it took his toll on his health and his wellbeing.

throughout his fife my dad was a great "putter-off" of things - and so it transpired that his ill-health caught up with him and he died rather suddenly -and intestate.
I now find myself in the very painful situation of having to accept that the 50 years he and my mom and I spent together as a very close-knit family have been simply wiped out as though those years and that very specific relationship between us never existed. I am being most sincere when I say that I am not speaking about any money I or my son or my mom's side of the family may have inherited - I would trade ten times that amount just to have them both stilf alive and with us. My outrage and dismay is aimed at the law which decrees that any verbal post-life issues my parents had - and there were several - not only to do with my son and I but with various charities of church and my mom's sister and her family who have been struggling financially for years. These wishes of my parents have now been consigned to the scrap heap by a law which in situations like these should be flexible and open to interpretation - if the facts and history of the family concerned warrant it - as I believe they do".

[29] In terms of section 1(a) of the Act, where a person dies intestate but is survived by a spouse, such spouse shall inherit the intestate estate. The courts have traditionally regarded "a spouse" to mean someone to whom one is legally married. The law for a long was recognized that marriage is only legally valid if it is a monogamous union. Potentially polygamous unions, such as Muslim marriages and those which may have been conducted under African customary law, because they are potentially polygamous, have not been regarded as legal marriages. For this reason spouses in these "non-recognised" unions were not regarded as spouses for the purpose of intestate succession.

2. Section 1 of the Intestate Succession Act 81 of 1987 is to be read as though it included the following paragraph:

[34] The facts, as gleaned from the affidavits deposed in this case, indicated that Flynn was a person who was intended to be covered by these provisions. The law had unfairly discriminated against him because it did not allow him the same benefits as would have been the case had he been legally adopted.

Respondents case

[36] By limiting the definition of a child in the Act, multiple difficulties which may have given rise to uncertainty were avoided such as:
1.	What would the minimum length of time be during which the person concerned would have acted as a step-parent.
2.	Would all the stepchildren have rights upon intestacy of the step-parent.
3.	What wouid the position be where a child's natural parents had multiple marriages.
4.	Would a stepchild retain entitlement to claim under the intestacy of his nature substitute parent. If so this would then allow for multiple rights of inheritance known as "double dipping" with clearly unsatisfactory consequences.

Indeed, if the respondent has suffered a disadvantage by virtue of being a non-adopted person, surely the cause lies not with the Child Welfare Act but with the failure of Julia Gregory to adopt the respondent by availing herself of the provisions of the legislation.

[37] The similar argument that was put up by respondents was the fact that the Act did not grant a stepchild a right to inherit upon intestacy of a step-parent and was thus neither unreasonable nor unjustifiable. In addition, a person always had the option of adopting the step-child should he or she so desire. Section 17(d) of the Child Care Act specifically provides that a child may be adopted "by a married person whose spouse is the parent of the child". Section 231{1}(c) of the 1960 Childrens Act provided that a child may be adopted "by a married person whose spouse is the parent of a child or by a person whose permanent life partner is the parent of a child".

[38] Furthermore, the legislation specifically provided that the consent of the other biological parent to the adoption which would ordinarily be required could be dispensed with under certain circumstances. Section 19(b)(iv) of the Child Care Act provided that such consent may be dispensed with from any parent "who is withholding his consent unreasonably". Furthermore, the step-parent was able to bestow benefits upon a stepchild by making a suitable will.

[40] Robinson applied to the Court for an order declaring that she was entitled to lodge a claim for maintenance in the estate, alternatively declaring that the Act was unconstitutional and invalid and this unconstitutionality should be cured by a directive that section 1 thereof be read as if certain provisions and definitions were included in it. In particular, she contended its provisions needed to be read as though "survivor" were intended to include 'the surviving partner of the life partnership", that "spouse" for the purpose of the Act should be read to include a person in a permanent life partnership, that "marriage" for the purpose of the Act should be read to include a permanent life partnership and that the omission of the necessary words in the definition of these particular words should be declared unconstitutional and invalid.

There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage, the spouse's rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. While there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit of section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance by operation of law had he or she not died".

"I do not agree that the right to dignity has been infringed. Mrs Robinson has not been told that her dignity is worth less than that of someone who is married. She is simply told that there is a fundamental difference between her relationship and a marriage relationship in relation to maintenance. It is that people in a marriage are obliged to maintain each other by operation of law and without further agreement or formalities. People in the class of relationships to which she belongs are not in that position. In the circumstances, it is not appropriate that an obligation that did not exist before death be posthumously imposed", (para 62)

The High Court of American Samoa found that an equitable adoption exists when a child has 'stood from an age of tender years in the position exactly equivalent to a formally adopted child'.   The Court went on to find, from the evidence as set out, that, in its view, there was more than sufficient evidence to infer that the deceased intended Ato to become his son. The fact that he never actually went as far as to legally adopt Ato was of no consequence to the inheritance by Ato of the estate from his late father by way of intestacy.

Evaluation
[46] I accept that Flynn regarded Farr as his father. As he concluded, in a lengthy letter to his attorney, on 18 May 2007:
"If all that I said does not bear testimony to the fact that Edward was my father and that he regarded Ryan and I as his heirs, then nothing ever will". 

However, the question remains as to whether the alleged differentiation has a rational purpose.

In her affidavit, Ms Maria Mebetoa, the chief director of the National Department of Social Development ("DSD") provides a number of compelling reasons for the insistence upon a process of legal adoption:

The DSD is alive to the reality that in the South African context, the HIV-Aids pandemic has resulted in an increase of the number of children being raised outside the traditional family nucleus and who are in the care of family members, or even concerned community members without any forma! legal adoption process having been followed. This has been exacerbated by increasing drug use among parents, teen pregnancy, divorce, the rapid rise of single parent households, mental and physical illnesses, crime, child abuse and neglect and incarceration being but a few of the most common explanations.
In some contexts there is an intention to adopt the children but no steps are taken to actually do so. In others, children are absorbed into households simply because they need care and protection and there is no intention that they be adopted. In customary law circumstances there may well be instances where a family may take in a child with not intention to adopt, e.g. if a brother passes away and leaves behind children, those children often are take in to a surviving brother's household without him ever intending that they become his children through official adoption. In addition, an increasing number of grandparents raising their young grandchildren because the children's parents are ill, disabled, imprisoned or otherwise unable to care for them".

[47] Ms Mabetoa points to other factors which justifies the present legal dispensation. For example, inter-country adoptions, both inward and outward, require to be monitored. There would be "increasing difficult in ensuring that children are protected, especially from drug and child trafficking, were his to be extended to categories of factually adopted children across the border whereas the legal adoption within the statutory framework provides certainty to the child and provides proof that the child is indeed yours on adoption.

She then continues:
"Another consequence of adoption is the determination of a reciprocal relationship between the child and biological parent's rights and obligations. The Children's Act also contemplates 'open adoptions' and the biological parent may still have some contact with the child through an access agreement hereby encouraging legal adoptions to take place with due regard to any relationship with a biological parent. To do so in the absence of a legal adoption would place the adoptive parents in a precarious legal position and may result in them being discouraged from adopting a child in the first instance. It would also not result in the termination of the legal relationship between parent and child when it comes to matters where consent is required by a parent".

[50] I am not insensitive to the sadness of this particular case. Unquestionably, the three central parties in this dispute lived happily together but hard cases make bad law and that must surely be the case in a constitutional dispute where, as in the present case, the implications go further than simply an individual dispute based upon the present legal dispensation.

[52] I do not consider that in this case, any costs order would be appropriate Accordingly the application is dismissed with no award as to costs.