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2/9/2010
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I know you have so many questions regarding this so i made you an extract of the Childrens Act regarding adoption for your perusal.
70 Qualifications for adoption of children
(1) Subject to the provisions of subsections (2) and (3) the following persons may adopt any child-
(a) a husband and his wife jointly;
(b) a widower or widow or unmarried or divorced person;
(c) a married person whose spouse is at the time of the adoption, and has been for a continuous period of not less than seven years immediately preceding that time mentally disordered or defective, within the meaning of section two of the Mental Disorders Act, 1916 (Act 38 of 1916);
(d) a married person who is separated from his or her spouse by judicial decree.
(2) No person under the age of twenty-five years shall adopt any child unless-
(a) he or she is a widower or widow or an unmarried or divorced person and the child is a child born of him or her; or
(b) he or she is married and the child is a child born of one of the spouses and is adopted by the spouses jointly and is at least fifteen years younger than the husband, if born of the wife, or at least ten years younger than the wife, if born of the husband.
[Sub-s. (2) substituted by s. 9 (a) of Act 50 of 1965.]
(2)bis No person shall adopt a child of the age of sixteen years or more unless-
(a) he or she is a widower or widow or an unmarried or divorced person and the child is a child born of him or her; or
(b) he or she is married and the child is a child born of one of the spouses and is adopted by the spouses jointly and is at least fifteen years younger than the husband, if born of the wife, or at least ten years younger than the wife, if born of the husband; or
(c) he or she is a widower or widow or an unmarried or divorced person and, if not of the same sex as the child, is at least twenty-five years older than the child, or, if of the same sex as the child, is at least eighteen years older than the child; or
(d) he or she is married and the child, if not of the same sex as the husband, is at least twenty-five years younger than he is and at least eighteen years younger than the wife, or, if of the same sex as the husband, is at least eighteen years younger than he is and at least twenty-five years younger than the wife.
[Sub-s. (2)bis added by s. 9 (a) of Act 50 of 1965.]
(3) No person shall adopt a child who is under the age of sixteen years and less than twenty-five years younger than the said person, unless-
(a) the child is of the same sex as that person; or
(b) that person is a widower or widow or an unmarried or divorced person and is a natural parent of the child; or
(c) that person is married and adopts the child jointly with his or her spouse.
[Sub-s. (3) substituted by s. 9 (b) of Act 50 of 1965.]
[a33y1960s71]
71 Adoption orders
(1) (a) The adoption of a child shall be effected by the order of the children's court of the district in which the adopted child resides, granted on the application of the adoptive parent or parents.
(b) In considering any such application the children's court shall have regard to all the matters mentioned in subsection (2) of section thirty-five.
(2) Save as provided in section seventy-two, a children's court to which application for an order of adoption of a child is made shall not grant the application unless the court is satisfied-
(a) that the applicant is or that both applicants are qualified to adopt the child; and
(b) that the applicant is or that both applicants are of good repute and a person or persons fit and proper to be entrusted with the custody of the child and possessed of adequate means to maintain and educate the child; and
(c) that the proposed adoption will serve the interests and conduce to the welfare of the child; and
(d) that consent to the adoption has been given-
(i) by both parents of the child, or, if the child is illegitimate, by the mother of the child, whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband, as the case may be; or
(ii) if both parents are dead, or, in the case of an illegitimate child, if the mother is dead, by the guardian of the child; or
(iii) if one parent is dead, by the surviving parent and by any guardian of the child who may have been appointed by the deceased parent; or
(iv) if one parent has deserted the child, by the other parent; or
(v) if one parent is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared an habitual criminal, by the other parent; or
(vi) if one parent is dead and the surviving parent has deserted the child or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal, by any guardian of the child who may have been appointed by the deceased parent; and
(e) that the child, if over the age of ten years, consents to the adoption; and
(f) in the case of a child born of any person who is a South African citizen, that the applicant or one of the applicants is a South African citizen resident in the Republic: Provided that the provisions of this paragraph shall not apply-
(i) where the applicant or one of the applicants is a South African citizen or a relative of the child and is resident outside the Republic; or
(ii) where the applicant is not a South African citizen or both applicants are not South African citizens but the applicant has or the applicants have the necessary residential qualifications for the grant to him or them under the South African Citizenship Act, 1949 (Act 44 of 1949), of a certificate or certificates of naturalization as a South African citizen or South African citizens and has or have made application for such a certificate or certificates,
and the Minister has approved of the adoption.
[Para. (f) substituted by s. 10 of Act 50 of 1965.]
(3) The consent mentioned in paragraphs (d) and (e) of subsection (2) shall be in writing and shall, if given within the Republic, be signed by the person or persons giving the consent in the presence of a commissioner of child welfare, who shall attest the consent, or, if given outside the Republic, shall be signed and attested in the manner prescribed and any such consent shall be filed with the records of the application and shall further set out the names of the proposed adoptive parents: Provided that the court on application by them and on proof to its satisfaction that the parents or guardian of the child consents to the non-disclosure to them or him of the identity of the applicants and that the interests of the child will be served thereby may with the approval of the Minister admit as satisfying the requirements of paragraph (d) of subsection (2) a consent which does not set out the names or any other particulars of the proposed adoptive parents: Provided further that the court shall admit as satisfying the requirements of paragraphs (d) and (e) of subsection (2), a consent given outside the Republic which has not been signed or attested in the manner prescribed or which does not set out the names or any other particulars of the proposed adoptive parents, if that consent has been approved of in writing by the Minister for the purposes of this section.
(4) For the purposes of subparagraphs (v) and (vi) of paragraph (d) of subsection (2) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.
(5) If the applicant for an order of adoption of a child is such a person as is described in paragraph (c) or (d) of subsection (1) of section seventy, the court shall not grant the order unless it is satisfied that the condition of mental disorder or defect of the applicant's spouse or the separation between the applicant and his spouse, as the case may be, is likely to be permanent.
(6) The court may take evidence on oath either by affidavit or viva voce concerning any matter as to which it is required by this section to satisfy itself, or concerning any other matter which may appear to it to be relevant.
(7) Before dealing with an application for an adoption order, the court to which the application was made, may direct that the applicant deposit with the clerk of the court a sum of money sufficient to cover all the expenses and allowances which the applicant may have to pay under subsection (8) of section eight.
(8) A court may, on the application of the adoptive parent or adoptive parents of an adopted child, correct any obvious error in an adoption order made under subsection (1).
[a33y1960s72]
72 Circumstances under which consent may be dispensed with
(1) If application is made for an order of adoption of a child-
(a) whose parents are dead, or, in the case of an illegitimate child, whose mother is dead; or
(b) whose parents, or, if one parent is dead, whose surviving parent, or, if the child is an illegitimate child, whose mother-
(i) have or has deserted the child;
(ii) are or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child;
(iii) have or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared habitual criminals or an habitual criminal; or
(c) one of whose parents has deserted him and whose other parent-
(i) is as a result of mental disorder or defect incompetent to give consent to the adoption of the child;
(ii) has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal,
and for whom no guardian has been appointed, the children's court may, notwithstanding the provisions of paragraph (d) of subsection (2) of section seventy-one, grant such application.
(2) Where application is made for an order of adoption of a child of a parent who has deserted such child the court shall not grant the application under subsection (1) unless-
(a) if the place of residence or address of the parent is known to the court, such parent has been given a reasonable opportunity to oppose the application; and
(b) if the parent is a parent who is in terms of paragraph (a) of subsection (1) of section seventy-three deemed to have deserted the child, a report has been obtained from a probation officer or an authorized officer and the court is satisfied that there is no likelihood that the child will in the near future be returned to the custody of the parent if no order for the adoption of the child is made.
(3) For the purposes of subsection (1) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.
[a33y1960s73]
73 Circumstances under which a parent shall be deemed to have deserted a child
(1) For the purposes of this Chapter a parent of a child shall be deemed to have deserted that child also-
(a) if the child has at any time been found to be a child in need of care because his parent has been convicted under section 18 (1) of this Act, of ill-treating or neglecting him or because he was in a state of physical or mental neglect for which his parent was responsible according to the opinion of the children's court which found the child to be a child in need of care, and has in terms of this Act been placed in any custody other than the custody of the said parent or sent to a children's home or school of industries and has for a period of not less than two years not been returned to the custody of his parent: Provided that in calculating such period no period before the commencement of this Act shall be taken into account; or
[Para. (a) amended by s. 19 of Act 74 of 1973 and by s. 1 of Act 49 of 1996.]
(b) if he is legally liable to maintain such child and has, while able to do so, failed to provide him with adequate food, clothing, lodging and medical aid; or
(c) if a contribution order has been made against such parent in terms of section sixty-two and he has, while able to do so, continuously neglected or refused to pay the amount due in terms of the contribution order.
(2) Until such time as the contrary has been proved, a parent shall be deemed to have been able to provide such child with adequate food, clothing, lodging and medical aid or to pay the amount due by him in terms of a contribution order.
[a33y1960s74]
74 Effect of adoption
(1) An order of adoption shall, unless otherwise thereby provided, confer the surname of the adoptive parent on the adopted child.
(2) Subject to the provisions of section eighty-two, an adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parent: Provided that an adopted child shall not by virtue of the adoption-
(a) become entitled to any property devolving on any child of his adoptive parent by virtue of any instrument executed prior to the date of the order of adoption (whether the instrument takes effect inter vivos or mortis causa), unless the instrument clearly conveys the intention that that property shall devolve upon the adopted child;
(b) inherit any property ab intestato from any relative of his adoptive parent.
(3) An order of adoption shall terminate all the rights and legal responsibilities existing between the child and his natural parents and their relatives, except the right of the child to inherit from them ab intestato.
(4) When an order is made for the adoption of any child, any order made in respect of that child under section thirty-one of this Act or section three hundred and forty-two of the Criminal Procedure Act, 1955 (Act 56 of 1955), and any amendment of any such order, shall lapse.
[a33y1960s75]
76 Rescission of order of adoption
(1) A parent of a child for whose adoption an order has been made under this Chapter, or the person who was at the time of the making of the order the guardian of the child or the adoptive parent or parents of such a child, or the Minister may apply to the court by which the order was made for the rescission thereof on one or more of the following grounds, namely-
(a) if the applicant is the parent of the child, that he did not consent to the adoption and that the order of adoption should not have been made without his consent; or
(b) if the applicant is an adoptive parent, that his adoption of the child was induced by fraud, misrepresentation or justus error, or that the child is a mentally disordered or defective person as described in one or other of the Classes III, IV, V and VII mentioned in section three of the Mental Disorders Act, 1916 (Act 38 of 1916), and that the mental disorder or defect existed at the time of the making of the order of adoption; or
(c) that for reasons set out in the application the adoption is to the detriment of the child.
(2) (a) If the application is made on the grounds mentioned in paragraph (a) of subsection (1) it shall be made within a period of six months as from the date upon which the applicant became aware of the fact that an order for the adoption of his child had been made but not later than two years as from the date upon which that order was made.
(b) If the application is made upon the ground mentioned in paragraph (b) of subsection (1) it shall be made within six months as from the date upon which the applicant became aware of that ground.
(c) If the application is made on the ground mentioned in paragraph (c) of subsection (1) it shall be made within a period of two years as from the date upon which the order of adoption was made.
(3) An application on the ground that the child is a mentally disordered or defective person may only be made if the applicant was, or if husband and wife jointly adopted the child in question, they both were, at the time of the making of the order of adoption ignorant of the mental disorder or defect of the child and this ignorance was not due to failure of the adoptive parent or parents to exercise reasonable care in examining the child or causing it to be examined.
(4) If the application is made by a parent of the child, he shall give due notice of the application to the adoptive parent or parents.
(5) If the application is made by an adoptive parent, he shall give due notice to the Minister and to the parent or parents or the person who was prior to the adoption the guardian of the adopted child, if he or they can be found.
(6) If the application is made by the Minister, he shall give due notice to the parent or parents, to the adoptive parent or parents, and to the said guardian, if he or they can be found.
(7) The court to which the application is made shall, after having satisfied itself that the applicant has complied with subsection (4), (5) or (6) and after having afforded any person interested in the application, an opportunity to be heard and after having considered any relevant evidence, whether oral or in the form of an affidavit, which was tendered in support of or in opposition to the application, rescind or confirm the order of adoption: Provided that it shall not rescind an order of adoption on the application of a parent of the adopted child if the court is satisfied that the applicant is unfit to have the custody of the child and that it is in the interest of the child that the order of adoption be confirmed.
(8) On the rescission of an order of adoption the child shall for all purposes be restored to the position in which it would have been if no order of adoption had been made: Provided that the rescission shall not affect anything lawfully done while the order of adoption was in force.
[a33y1960s77
]77 Appeal from order of adoption or from rescission of adoption or from refusal to rescind
(1) An order of adoption and a rescission of an order of adoption and the refusal of an application for the rescission of an order of adoption shall be subject to an appeal to the competent Division of the Supreme Court as if the order, rescission or refusal were a judgment of a magistrate's court.
(2) An appeal against an order of adoption may be brought by the parent or guardian of the adopted child.
(3) An appeal against the rescission of an order of adoption may be brought by a parent, guardian or adoptive parent of the child in question, who did not apply for the rescission.
(4) An appeal against a refusal of an application for the rescission of an order of adoption may be brought by the applicant concerned.
(5) (a) In such an appeal brought by a parent or guardian, the adoptive parent of the child in question shall be cited as respondent, and in such an appeal brought by an adoptive parent, the parent or guardian (if any) of the child in question shall be cited as respondent, unless, in either case, the appeal is brought against a rescission granted upon the application of the Minister, in which event the Minister shall be cited as respondent.
(b) In an appeal brought by the Minister against the refusal of an application made by him for the rescission of an order of adoption, the persons mentioned in subsection (6) of section seventy-six shall be cited as respondents.
(6) In this section 'guardian" means the person who was at the time of making of the order of adoption the guardian of the child in question.
[a33y1960s78]
78 Adoption of adopted child
(1) An adopted child shall be capable of adoption, and upon the making of an order for the adoption of a previously adopted child all the legal consequences of the earlier adoption shall determine, save in so far as the adopted child has acquired any property by virtue of the earlier adoption.
(2) For the purposes of any proceedings for the adoption of a child who has been previously adopted the parents who previously adopted the child shall have the rights and be subject to the obligations conferred and imposed upon parents by any provision of this Chapter, and the terms 'parent' and 'parents' shall in any such provision be construed accordingly.
[a33y1960s79]
79 No consideration in connection with adoption permissible
If-
(a) any person who has obtained an order of adoption of a child or who has applied for such an order or who intends to apply for such an order, gives or undertakes to give any consideration in respect of the adoption;
(b) any person who has obtained an order of adoption of a child or who has applied for such an order, save with the consent of the court which made the order or to which application for the order is made, receives or contracts to receive any consideration in respect of the adoption;
(c) any parent or guardian of a child receives or contracts to receive any consideration in respect of the adoption of the child or, save with the consent of the court which made the order or to which application for the order is made, gives or undertakes to give any consideration;
(d) any other person receives or contracts to receive or gives or undertakes to give any consideration in respect of the adoption of any child,
he shall be guilty of an offence and liable on conviction to a fine not exceeding five hundred pounds or in default of payment of such fine to imprisonment for a period not exceeding five years or to such imprisonment without the option of a fine.
[a33y1960s80]
80 Alteration of births register as a result of adoption
(1) When an order has been made for the adoption of a child whose birth has been registered in the Republic, the Secretary for the Interior, if the child is not a Black, or if the child is a Black, the Secretary for Plural Relations and Development shall on the application of the adoptive parent and on production of the order of adoption or of a certified copy thereof and on payment of the prescribed fee (if any), cause the fact of adoption and a statement whether the name of the adoptive parent was or was not conferred upon the child by virtue of the adoption, to be recorded on the birth register of the child, as defined in the Births, Marriages and Deaths Registration Act, 1963 (Act 81 of 1963), filed in his office.
[Sub-s. (1) substituted by s. 50 of Act 58 of 1970.]
(2) If the name of an adoptive parent has been conferred upon an adopted child and that fact has been recorded on the original birth information form, a birth certificate in the name of the adoptive parent may be issued in respect of the child.
[a33y1960s81]
81 Registration of birth of adopted child born outside Republic
When an order has been made whether before or after the commencement of this Act for the adoption of a child born outside the Republic the Secretary for the Interior, if the child is not a Black, or if the child is a Black, the Secretary for Plural Relations and Development shall on the application of the adoptive parent and on production of-
(a) the order of adoption or a certified copy thereof; and
(b) the birth or baptismal certificate of the child or a certified copy thereof or if no such certificate is available, such documentary evidence relating to the date of birth of the child as such Secretary may deem sufficient or, if the age of the child has been estimated in terms of section 85, a certificate signed by a commissioner of child welfare specifying the age of the child as so estimated; and
(c) the form prescribed under the Births, Marriages and Deaths Registration Act, 1963 (Act 81 of 1963), for use in connection with the registration of a birth, completed as far as may be possible and signed by the adoptive parent,
and on payment of the prescribed fee (if any), cause the birth of that child to be recorded in his registers and shall cause the fact of adoption and a statement whether the name of the adoptive parent was or was not conferred upon the child by virtue of the adoption, to be recorded on the birth register of the child, as defined in the said Act, filed in his office.
[S. 81 substituted by s. 51 of Act 58 of 1970.]
[a33y1960s82]
82 Effect of adoption on marriage
An adoption (whether under this Act or under a law repealed by this Act) shall not have the effect of permitting or prohibiting any marriage or carnal intercourse (other than a marriage or carnal intercourse between the adoptive parent and the adopted child) which, but for the adoption, would have been prohibited or permitted.
[a33y1960s82A]
82A Application of provisions of Chapter VII in connection with Blacks
In the application of the provisions of this Chapter in respect of a person who is a Black, any customary union as defined in section 35 of the Black Administration Act, 1927 (Act 38 of 1927), as the case may be, shall be deemed to be a marriage between the parties concerned, and any reference to a husband, wife, widower, widow, divorced person, married person or spouse shall be construed accordingly.
[S. 82A, formerly s. 82bis inserted by s. 11 of Act 50 of 1965, substituted by s. 20 of Act 74 of 1973 and amended by s. 1 of Act 49 of 1996.]
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Kind Regards
JP
Attorney
Good day!
I know you have so many questions regarding this so i made you an extract of the Childrens Act regarding adoption for your perusal.
70 Qualifications for adoption of children
(1) Subject to the provisions of subsections (2) and (3) the following persons may adopt any child-
(a) a husband and his wife jointly;
(b) a widower or widow or unmarried or divorced person;
(c) a married person whose spouse is at the time of the adoption, and has been for a continuous period of not less than seven years immediately preceding that time mentally disordered or defective, within the meaning of section two of the Mental Disorders Act, 1916 (Act 38 of 1916);
(d) a married person who is separated from his or her spouse by judicial decree.
(2) No person under the age of twenty-five years shall adopt any child unless-
(a) he or she is a widower or widow or an unmarried or divorced person and the child is a child born of him or her; or
(b) he or she is married and the child is a child born of one of the spouses and is adopted by the spouses jointly and is at least fifteen years younger than the husband, if born of the wife, or at least ten years younger than the wife, if born of the husband.
[Sub-s. (2) substituted by s. 9 (a) of Act 50 of 1965.]
(2)bis No person shall adopt a child of the age of sixteen years or more unless-
(a) he or she is a widower or widow or an unmarried or divorced person and the child is a child born of him or her; or
(b) he or she is married and the child is a child born of one of the spouses and is adopted by the spouses jointly and is at least fifteen years younger than the husband, if born of the wife, or at least ten years younger than the wife, if born of the husband; or
(c) he or she is a widower or widow or an unmarried or divorced person and, if not of the same sex as the child, is at least twenty-five years older than the child, or, if of the same sex as the child, is at least eighteen years older than the child; or
(d) he or she is married and the child, if not of the same sex as the husband, is at least twenty-five years younger than he is and at least eighteen years younger than the wife, or, if of the same sex as the husband, is at least eighteen years younger than he is and at least twenty-five years younger than the wife.
[Sub-s. (2)bis added by s. 9 (a) of Act 50 of 1965.]
(3) No person shall adopt a child who is under the age of sixteen years and less than twenty-five years younger than the said person, unless-
(a) the child is of the same sex as that person; or
(b) that person is a widower or widow or an unmarried or divorced person and is a natural parent of the child; or
(c) that person is married and adopts the child jointly with his or her spouse.
[Sub-s. (3) substituted by s. 9 (b) of Act 50 of 1965.]
[a33y1960s71]
71 Adoption orders
(1) (a) The adoption of a child shall be effected by the order of the children's court of the district in which the adopted child resides, granted on the application of the adoptive parent or parents.
(b) In considering any such application the children's court shall have regard to all the matters mentioned in subsection (2) of section thirty-five.
(2) Save as provided in section seventy-two, a children's court to which application for an order of adoption of a child is made shall not grant the application unless the court is satisfied-
(a) that the applicant is or that both applicants are qualified to adopt the child; and
(b) that the applicant is or that both applicants are of good repute and a person or persons fit and proper to be entrusted with the custody of the child and possessed of adequate means to maintain and educate the child; and
(c) that the proposed adoption will serve the interests and conduce to the welfare of the child; and
(d) that consent to the adoption has been given-
(i) by both parents of the child, or, if the child is illegitimate, by the mother of the child, whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband, as the case may be; or
(ii) if both parents are dead, or, in the case of an illegitimate child, if the mother is dead, by the guardian of the child; or
(iii) if one parent is dead, by the surviving parent and by any guardian of the child who may have been appointed by the deceased parent; or
(iv) if one parent has deserted the child, by the other parent; or
(v) if one parent is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared an habitual criminal, by the other parent; or
(vi) if one parent is dead and the surviving parent has deserted the child or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal, by any guardian of the child who may have been appointed by the deceased parent; and
(e) that the child, if over the age of ten years, consents to the adoption; and
(f) in the case of a child born of any person who is a South African citizen, that the applicant or one of the applicants is a South African citizen resident in the Republic: Provided that the provisions of this paragraph shall not apply-
(i) where the applicant or one of the applicants is a South African citizen or a relative of the child and is resident outside the Republic; or
(ii) where the applicant is not a South African citizen or both applicants are not South African citizens but the applicant has or the applicants have the necessary residential qualifications for the grant to him or them under the South African Citizenship Act, 1949 (Act 44 of 1949), of a certificate or certificates of naturalization as a South African citizen or South African citizens and has or have made application for such a certificate or certificates,
and the Minister has approved of the adoption.
[Para. (f) substituted by s. 10 of Act 50 of 1965.]
(3) The consent mentioned in paragraphs (d) and (e) of subsection (2) shall be in writing and shall, if given within the Republic, be signed by the person or persons giving the consent in the presence of a commissioner of child welfare, who shall attest the consent, or, if given outside the Republic, shall be signed and attested in the manner prescribed and any such consent shall be filed with the records of the application and shall further set out the names of the proposed adoptive parents: Provided that the court on application by them and on proof to its satisfaction that the parents or guardian of the child consents to the non-disclosure to them or him of the identity of the applicants and that the interests of the child will be served thereby may with the approval of the Minister admit as satisfying the requirements of paragraph (d) of subsection (2) a consent which does not set out the names or any other particulars of the proposed adoptive parents: Provided further that the court shall admit as satisfying the requirements of paragraphs (d) and (e) of subsection (2), a consent given outside the Republic which has not been signed or attested in the manner prescribed or which does not set out the names or any other particulars of the proposed adoptive parents, if that consent has been approved of in writing by the Minister for the purposes of this section.
(4) For the purposes of subparagraphs (v) and (vi) of paragraph (d) of subsection (2) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.
(5) If the applicant for an order of adoption of a child is such a person as is described in paragraph (c) or (d) of subsection (1) of section seventy, the court shall not grant the order unless it is satisfied that the condition of mental disorder or defect of the applicant's spouse or the separation between the applicant and his spouse, as the case may be, is likely to be permanent.
(6) The court may take evidence on oath either by affidavit or viva voce concerning any matter as to which it is required by this section to satisfy itself, or concerning any other matter which may appear to it to be relevant.
(7) Before dealing with an application for an adoption order, the court to which the application was made, may direct that the applicant deposit with the clerk of the court a sum of money sufficient to cover all the expenses and allowances which the applicant may have to pay under subsection (8) of section eight.
(8) A court may, on the application of the adoptive parent or adoptive parents of an adopted child, correct any obvious error in an adoption order made under subsection (1).
[a33y1960s72]
72 Circumstances under which consent may be dispensed with
(1) If application is made for an order of adoption of a child-
(a) whose parents are dead, or, in the case of an illegitimate child, whose mother is dead; or
(b) whose parents, or, if one parent is dead, whose surviving parent, or, if the child is an illegitimate child, whose mother-
(i) have or has deserted the child;
(ii) are or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child;
(iii) have or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared habitual criminals or an habitual criminal; or
(c) one of whose parents has deserted him and whose other parent-
(i) is as a result of mental disorder or defect incompetent to give consent to the adoption of the child;
(ii) has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal,
and for whom no guardian has been appointed, the children's court may, notwithstanding the provisions of paragraph (d) of subsection (2) of section seventy-one, grant such application.
(2) Where application is made for an order of adoption of a child of a parent who has deserted such child the court shall not grant the application under subsection (1) unless-
(a) if the place of residence or address of the parent is known to the court, such parent has been given a reasonable opportunity to oppose the application; and
(b) if the parent is a parent who is in terms of paragraph (a) of subsection (1) of section seventy-three deemed to have deserted the child, a report has been obtained from a probation officer or an authorized officer and the court is satisfied that there is no likelihood that the child will in the near future be returned to the custody of the parent if no order for the adoption of the child is made.
(3) For the purposes of subsection (1) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.
[a33y1960s73]
73 Circumstances under which a parent shall be deemed to have deserted a child
(1) For the purposes of this Chapter a parent of a child shall be deemed to have deserted that child also-
(a) if the child has at any time been found to be a child in need of care because his parent has been convicted under section 18 (1) of this Act, of ill-treating or neglecting him or because he was in a state of physical or mental neglect for which his parent was responsible according to the opinion of the children's court which found the child to be a child in need of care, and has in terms of this Act been placed in any custody other than the custody of the said parent or sent to a children's home or school of industries and has for a period of not less than two years not been returned to the custody of his parent: Provided that in calculating such period no period before the commencement of this Act shall be taken into account; or
[Para. (a) amended by s. 19 of Act 74 of 1973 and by s. 1 of Act 49 of 1996.]
(b) if he is legally liable to maintain such child and has, while able to do so, failed to provide him with adequate food, clothing, lodging and medical aid; or
(c) if a contribution order has been made against such parent in terms of section sixty-two and he has, while able to do so, continuously neglected or refused to pay the amount due in terms of the contribution order.
(2) Until such time as the contrary has been proved, a parent shall be deemed to have been able to provide such child with adequate food, clothing, lodging and medical aid or to pay the amount due by him in terms of a contribution order.
[a33y1960s74]
74 Effect of adoption
(1) An order of adoption shall, unless otherwise thereby provided, confer the surname of the adoptive parent on the adopted child.
(2) Subject to the provisions of section eighty-two, an adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parent: Provided that an adopted child shall not by virtue of the adoption-
(a) become entitled to any property devolving on any child of his adoptive parent by virtue of any instrument executed prior to the date of the order of adoption (whether the instrument takes effect inter vivos or mortis causa), unless the instrument clearly conveys the intention that that property shall devolve upon the adopted child;
(b) inherit any property ab intestato from any relative of his adoptive parent.
(3) An order of adoption shall terminate all the rights and legal responsibilities existing between the child and his natural parents and their relatives, except the right of the child to inherit from them ab intestato.
(4) When an order is made for the adoption of any child, any order made in respect of that child under section thirty-one of this Act or section three hundred and forty-two of the Criminal Procedure Act, 1955 (Act 56 of 1955), and any amendment of any such order, shall lapse.
[a33y1960s75]
76 Rescission of order of adoption
(1) A parent of a child for whose adoption an order has been made under this Chapter, or the person who was at the time of the making of the order the guardian of the child or the adoptive parent or parents of such a child, or the Minister may apply to the court by which the order was made for the rescission thereof on one or more of the following grounds, namely-
(a) if the applicant is the parent of the child, that he did not consent to the adoption and that the order of adoption should not have been made without his consent; or
(b) if the applicant is an adoptive parent, that his adoption of the child was induced by fraud, misrepresentation or justus error, or that the child is a mentally disordered or defective person as described in one or other of the Classes III, IV, V and VII mentioned in section three of the Mental Disorders Act, 1916 (Act 38 of 1916), and that the mental disorder or defect existed at the time of the making of the order of adoption; or
(c) that for reasons set out in the application the adoption is to the detriment of the child.
(2) (a) If the application is made on the grounds mentioned in paragraph (a) of subsection (1) it shall be made within a period of six months as from the date upon which the applicant became aware of the fact that an order for the adoption of his child had been made but not later than two years as from the date upon which that order was made.
(b) If the application is made upon the ground mentioned in paragraph (b) of subsection (1) it shall be made within six months as from the date upon which the applicant became aware of that ground.
(c) If the application is made on the ground mentioned in paragraph (c) of subsection (1) it shall be made within a period of two years as from the date upon which the order of adoption was made.
(3) An application on the ground that the child is a mentally disordered or defective person may only be made if the applicant was, or if husband and wife jointly adopted the child in question, they both were, at the time of the making of the order of adoption ignorant of the mental disorder or defect of the child and this ignorance was not due to failure of the adoptive parent or parents to exercise reasonable care in examining the child or causing it to be examined.
(4) If the application is made by a parent of the child, he shall give due notice of the application to the adoptive parent or parents.
(5) If the application is made by an adoptive parent, he shall give due notice to the Minister and to the parent or parents or the person who was prior to the adoption the guardian of the adopted child, if he or they can be found.
(6) If the application is made by the Minister, he shall give due notice to the parent or parents, to the adoptive parent or parents, and to the said guardian, if he or they can be found.
(7) The court to which the application is made shall, after having satisfied itself that the applicant has complied with subsection (4), (5) or (6) and after having afforded any person interested in the application, an opportunity to be heard and after having considered any relevant evidence, whether oral or in the form of an affidavit, which was tendered in support of or in opposition to the application, rescind or confirm the order of adoption: Provided that it shall not rescind an order of adoption on the application of a parent of the adopted child if the court is satisfied that the applicant is unfit to have the custody of the child and that it is in the interest of the child that the order of adoption be confirmed.
(8) On the rescission of an order of adoption the child shall for all purposes be restored to the position in which it would have been if no order of adoption had been made: Provided that the rescission shall not affect anything lawfully done while the order of adoption was in force.
[a33y1960s77
]77 Appeal from order of adoption or from rescission of adoption or from refusal to rescind
(1) An order of adoption and a rescission of an order of adoption and the refusal of an application for the rescission of an order of adoption shall be subject to an appeal to the competent Division of the Supreme Court as if the order, rescission or refusal were a judgment of a magistrate's court.
(2) An appeal against an order of adoption may be brought by the parent or guardian of the adopted child.
(3) An appeal against the rescission of an order of adoption may be brought by a parent, guardian or adoptive parent of the child in question, who did not apply for the rescission.
(4) An appeal against a refusal of an application for the rescission of an order of adoption may be brought by the applicant concerned.
(5) (a) In such an appeal brought by a parent or guardian, the adoptive parent of the child in question shall be cited as respondent, and in such an appeal brought by an adoptive parent, the parent or guardian (if any) of the child in question shall be cited as respondent, unless, in either case, the appeal is brought against a rescission granted upon the application of the Minister, in which event the Minister shall be cited as respondent.
(b) In an appeal brought by the Minister against the refusal of an application made by him for the rescission of an order of adoption, the persons mentioned in subsection (6) of section seventy-six shall be cited as respondents.
(6) In this section 'guardian" means the person who was at the time of making of the order of adoption the guardian of the child in question.
[a33y1960s78]
78 Adoption of adopted child
(1) An adopted child shall be capable of adoption, and upon the making of an order for the adoption of a previously adopted child all the legal consequences of the earlier adoption shall determine, save in so far as the adopted child has acquired any property by virtue of the earlier adoption.
(2) For the purposes of any proceedings for the adoption of a child who has been previously adopted the parents who previously adopted the child shall have the rights and be subject to the obligations conferred and imposed upon parents by any provision of this Chapter, and the terms 'parent' and 'parents' shall in any such provision be construed accordingly.
[a33y1960s79]
79 No consideration in connection with adoption permissible
If-
(a) any person who has obtained an order of adoption of a child or who has applied for such an order or who intends to apply for such an order, gives or undertakes to give any consideration in respect of the adoption;
(b) any person who has obtained an order of adoption of a child or who has applied for such an order, save with the consent of the court which made the order or to which application for the order is made, receives or contracts to receive any consideration in respect of the adoption;
(c) any parent or guardian of a child receives or contracts to receive any consideration in respect of the adoption of the child or, save with the consent of the court which made the order or to which application for the order is made, gives or undertakes to give any consideration;
(d) any other person receives or contracts to receive or gives or undertakes to give any consideration in respect of the adoption of any child,
he shall be guilty of an offence and liable on conviction to a fine not exceeding five hundred pounds or in default of payment of such fine to imprisonment for a period not exceeding five years or to such imprisonment without the option of a fine.
[a33y1960s80]
80 Alteration of births register as a result of adoption
(1) When an order has been made for the adoption of a child whose birth has been registered in the Republic, the Secretary for the Interior, if the child is not a Black, or if the child is a Black, the Secretary for Plural Relations and Development shall on the application of the adoptive parent and on production of the order of adoption or of a certified copy thereof and on payment of the prescribed fee (if any), cause the fact of adoption and a statement whether the name of the adoptive parent was or was not conferred upon the child by virtue of the adoption, to be recorded on the birth register of the child, as defined in the Births, Marriages and Deaths Registration Act, 1963 (Act 81 of 1963), filed in his office.
[Sub-s. (1) substituted by s. 50 of Act 58 of 1970.]
(2) If the name of an adoptive parent has been conferred upon an adopted child and that fact has been recorded on the original birth information form, a birth certificate in the name of the adoptive parent may be issued in respect of the child.
[a33y1960s81]
81 Registration of birth of adopted child born outside Republic
When an order has been made whether before or after the commencement of this Act for the adoption of a child born outside the Republic the Secretary for the Interior, if the child is not a Black, or if the child is a Black, the Secretary for Plural Relations and Development shall on the application of the adoptive parent and on production of-
(a) the order of adoption or a certified copy thereof; and
(b) the birth or baptismal certificate of the child or a certified copy thereof or if no such certificate is available, such documentary evidence relating to the date of birth of the child as such Secretary may deem sufficient or, if the age of the child has been estimated in terms of section 85, a certificate signed by a commissioner of child welfare specifying the age of the child as so estimated; and
(c) the form prescribed under the Births, Marriages and Deaths Registration Act, 1963 (Act 81 of 1963), for use in connection with the registration of a birth, completed as far as may be possible and signed by the adoptive parent,
and on payment of the prescribed fee (if any), cause the birth of that child to be recorded in his registers and shall cause the fact of adoption and a statement whether the name of the adoptive parent was or was not conferred upon the child by virtue of the adoption, to be recorded on the birth register of the child, as defined in the said Act, filed in his office.
[S. 81 substituted by s. 51 of Act 58 of 1970.]
[a33y1960s82]
82 Effect of adoption on marriage
An adoption (whether under this Act or under a law repealed by this Act) shall not have the effect of permitting or prohibiting any marriage or carnal intercourse (other than a marriage or carnal intercourse between the adoptive parent and the adopted child) which, but for the adoption, would have been prohibited or permitted.
[a33y1960s82A]
82A Application of provisions of Chapter VII in connection with Blacks
In the application of the provisions of this Chapter in respect of a person who is a Black, any customary union as defined in section 35 of the Black Administration Act, 1927 (Act 38 of 1927), as the case may be, shall be deemed to be a marriage between the parties concerned, and any reference to a husband, wife, widower, widow, divorced person, married person or spouse shall be construed accordingly.
[S. 82A, formerly s. 82bis inserted by s. 11 of Act 50 of 1965, substituted by s. 20 of Act 74 of 1973 and amended by s. 1 of Act 49 of 1996.]
This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.
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JP
Attorney
Good day!
I know you have so many questions regarding this so i made you an extract of the Childrens Act regarding adoption for your perusal.
70 Qualifications for adoption of children
(1) Subject to the provisions of subsections (2) and (3) the following persons may adopt any child-
(a) a husband and his wife jointly;
(b) a widower or widow or unmarried or divorced person;
(c) a married person whose spouse is at the time of the adoption, and has been for a continuous period of not less than seven years immediately preceding that time mentally disordered or defective, within the meaning of section two of the Mental Disorders Act, 1916 (Act 38 of 1916);
(d) a married person who is separated from his or her spouse by judicial decree.
(2) No person under the age of twenty-five years shall adopt any child unless-
(a) he or she is a widower or widow or an unmarried or divorced person and the child is a child born of him or her; or
(b) he or she is married and the child is a child born of one of the spouses and is adopted by the spouses jointly and is at least fifteen years younger than the husband, if born of the wife, or at least ten years younger than the wife, if born of the husband.
[Sub-s. (2) substituted by s. 9 (a) of Act 50 of 1965.]
(2)bis No person shall adopt a child of the age of sixteen years or more unless-
(a) he or she is a widower or widow or an unmarried or divorced person and the child is a child born of him or her; or
(b) he or she is married and the child is a child born of one of the spouses and is adopted by the spouses jointly and is at least fifteen years younger than the husband, if born of the wife, or at least ten years younger than the wife, if born of the husband; or
(c) he or she is a widower or widow or an unmarried or divorced person and, if not of the same sex as the child, is at least twenty-five years older than the child, or, if of the same sex as the child, is at least eighteen years older than the child; or
(d) he or she is married and the child, if not of the same sex as the husband, is at least twenty-five years younger than he is and at least eighteen years younger than the wife, or, if of the same sex as the husband, is at least eighteen years younger than he is and at least twenty-five years younger than the wife.
[Sub-s. (2)bis added by s. 9 (a) of Act 50 of 1965.]
(3) No person shall adopt a child who is under the age of sixteen years and less than twenty-five years younger than the said person, unless-
(a) the child is of the same sex as that person; or
(b) that person is a widower or widow or an unmarried or divorced person and is a natural parent of the child; or
(c) that person is married and adopts the child jointly with his or her spouse.
[Sub-s. (3) substituted by s. 9 (b) of Act 50 of 1965.]
[a33y1960s71]
71 Adoption orders
(1) (a) The adoption of a child shall be effected by the order of the children's court of the district in which the adopted child resides, granted on the application of the adoptive parent or parents.
(b) In considering any such application the children's court shall have regard to all the matters mentioned in subsection (2) of section thirty-five.
(2) Save as provided in section seventy-two, a children's court to which application for an order of adoption of a child is made shall not grant the application unless the court is satisfied-
(a) that the applicant is or that both applicants are qualified to adopt the child; and
(b) that the applicant is or that both applicants are of good repute and a person or persons fit and proper to be entrusted with the custody of the child and possessed of adequate means to maintain and educate the child; and
(c) that the proposed adoption will serve the interests and conduce to the welfare of the child; and
(d) that consent to the adoption has been given-
(i) by both parents of the child, or, if the child is illegitimate, by the mother of the child, whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband, as the case may be; or
(ii) if both parents are dead, or, in the case of an illegitimate child, if the mother is dead, by the guardian of the child; or
(iii) if one parent is dead, by the surviving parent and by any guardian of the child who may have been appointed by the deceased parent; or
(iv) if one parent has deserted the child, by the other parent; or
(v) if one parent is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared an habitual criminal, by the other parent; or
(vi) if one parent is dead and the surviving parent has deserted the child or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal, by any guardian of the child who may have been appointed by the deceased parent; and
(e) that the child, if over the age of ten years, consents to the adoption; and
(f) in the case of a child born of any person who is a South African citizen, that the applicant or one of the applicants is a South African citizen resident in the Republic: Provided that the provisions of this paragraph shall not apply-
(i) where the applicant or one of the applicants is a South African citizen or a relative of the child and is resident outside the Republic; or
(ii) where the applicant is not a South African citizen or both applicants are not South African citizens but the applicant has or the applicants have the necessary residential qualifications for the grant to him or them under the South African Citizenship Act, 1949 (Act 44 of 1949), of a certificate or certificates of naturalization as a South African citizen or South African citizens and has or have made application for such a certificate or certificates,
and the Minister has approved of the adoption.
[Para. (f) substituted by s. 10 of Act 50 of 1965.]
(3) The consent mentioned in paragraphs (d) and (e) of subsection (2) shall be in writing and shall, if given within the Republic, be signed by the person or persons giving the consent in the presence of a commissioner of child welfare, who shall attest the consent, or, if given outside the Republic, shall be signed and attested in the manner prescribed and any such consent shall be filed with the records of the application and shall further set out the names of the proposed adoptive parents: Provided that the court on application by them and on proof to its satisfaction that the parents or guardian of the child consents to the non-disclosure to them or him of the identity of the applicants and that the interests of the child will be served thereby may with the approval of the Minister admit as satisfying the requirements of paragraph (d) of subsection (2) a consent which does not set out the names or any other particulars of the proposed adoptive parents: Provided further that the court shall admit as satisfying the requirements of paragraphs (d) and (e) of subsection (2), a consent given outside the Republic which has not been signed or attested in the manner prescribed or which does not set out the names or any other particulars of the proposed adoptive parents, if that consent has been approved of in writing by the Minister for the purposes of this section.
(4) For the purposes of subparagraphs (v) and (vi) of paragraph (d) of subsection (2) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.
(5) If the applicant for an order of adoption of a child is such a person as is described in paragraph (c) or (d) of subsection (1) of section seventy, the court shall not grant the order unless it is satisfied that the condition of mental disorder or defect of the applicant's spouse or the separation between the applicant and his spouse, as the case may be, is likely to be permanent.
(6) The court may take evidence on oath either by affidavit or viva voce concerning any matter as to which it is required by this section to satisfy itself, or concerning any other matter which may appear to it to be relevant.
(7) Before dealing with an application for an adoption order, the court to which the application was made, may direct that the applicant deposit with the clerk of the court a sum of money sufficient to cover all the expenses and allowances which the applicant may have to pay under subsection (8) of section eight.
(8) A court may, on the application of the adoptive parent or adoptive parents of an adopted child, correct any obvious error in an adoption order made under subsection (1).
[a33y1960s72]
72 Circumstances under which consent may be dispensed with
(1) If application is made for an order of adoption of a child-
(a) whose parents are dead, or, in the case of an illegitimate child, whose mother is dead; or
(b) whose parents, or, if one parent is dead, whose surviving parent, or, if the child is an illegitimate child, whose mother-
(i) have or has deserted the child;
(ii) are or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child;
(iii) have or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared habitual criminals or an habitual criminal; or
(c) one of whose parents has deserted him and whose other parent-
(i) is as a result of mental disorder or defect incompetent to give consent to the adoption of the child;
(ii) has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal,
and for whom no guardian has been appointed, the children's court may, notwithstanding the provisions of paragraph (d) of subsection (2) of section seventy-one, grant such application.
(2) Where application is made for an order of adoption of a child of a parent who has deserted such child the court shall not grant the application under subsection (1) unless-
(a) if the place of residence or address of the parent is known to the court, such parent has been given a reasonable opportunity to oppose the application; and
(b) if the parent is a parent who is in terms of paragraph (a) of subsection (1) of section seventy-three deemed to have deserted the child, a report has been obtained from a probation officer or an authorized officer and the court is satisfied that there is no likelihood that the child will in the near future be returned to the custody of the parent if no order for the adoption of the child is made.
(3) For the purposes of subsection (1) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.
[a33y1960s73]
73 Circumstances under which a parent shall be deemed to have deserted a child
(1) For the purposes of this Chapter a parent of a child shall be deemed to have deserted that child also-
(a) if the child has at any time been found to be a child in need of care because his parent has been convicted under section 18 (1) of this Act, of ill-treating or neglecting him or because he was in a state of physical or mental neglect for which his parent was responsible according to the opinion of the children's court which found the child to be a child in need of care, and has in terms of this Act been placed in any custody other than the custody of the said parent or sent to a children's home or school of industries and has for a period of not less than two years not been returned to the custody of his parent: Provided that in calculating such period no period before the commencement of this Act shall be taken into account; or
[Para. (a) amended by s. 19 of Act 74 of 1973 and by s. 1 of Act 49 of 1996.]
(b) if he is legally liable to maintain such child and has, while able to do so, failed to provide him with adequate food, clothing, lodging and medical aid; or
(c) if a contribution order has been made against such parent in terms of section sixty-two and he has, while able to do so, continuously neglected or refused to pay the amount due in terms of the contribution order.
(2) Until such time as the contrary has been proved, a parent shall be deemed to have been able to provide such child with adequate food, clothing, lodging and medical aid or to pay the amount due by him in terms of a contribution order.
[a33y1960s74]
74 Effect of adoption
(1) An order of adoption shall, unless otherwise thereby provided, confer the surname of the adoptive parent on the adopted child.
(2) Subject to the provisions of section eighty-two, an adopted child shall for all purposes whatsoever be deemed in law to be the legitimate child of the adoptive parent: Provided that an adopted child shall not by virtue of the adoption-
(a) become entitled to any property devolving on any child of his adoptive parent by virtue of any instrument executed prior to the date of the order of adoption (whether the instrument takes effect inter vivos or mortis causa), unless the instrument clearly conveys the intention that that property shall devolve upon the adopted child;
(b) inherit any property ab intestato from any relative of his adoptive parent.
(3) An order of adoption shall terminate all the rights and legal responsibilities existing between the child and his natural parents and their relatives, except the right of the child to inherit from them ab intestato.
(4) When an order is made for the adoption of any child, any order made in respect of that child under section thirty-one of this Act or section three hundred and forty-two of the Criminal Procedure Act, 1955 (Act 56 of 1955), and any amendment of any such order, shall lapse.
[a33y1960s75]
76 Rescission of order of adoption
(1) A parent of a child for whose adoption an order has been made under this Chapter, or the person who was at the time of the making of the order the guardian of the child or the adoptive parent or parents of such a child, or the Minister may apply to the court by which the order was made for the rescission thereof on one or more of the following grounds, namely-
(a) if the applicant is the parent of the child, that he did not consent to the adoption and that the order of adoption should not have been made without his consent; or
(b) if the applicant is an adoptive parent, that his adoption of the child was induced by fraud, misrepresentation or justus error, or that the child is a mentally disordered or defective person as described in one or other of the Classes III, IV, V and VII mentioned in section three of the Mental Disorders Act, 1916 (Act 38 of 1916), and that the mental disorder or defect existed at the time of the making of the order of adoption; or
(c) that for reasons set out in the application the adoption is to the detriment of the child.
(2) (a) If the application is made on the grounds mentioned in paragraph (a) of subsection (1) it shall be made within a period of six months as from the date upon which the applicant became aware of the fact that an order for the adoption of his child had been made but not later than two years as from the date upon which that order was made.
(b) If the application is made upon the ground mentioned in paragraph (b) of subsection (1) it shall be made within six months as from the date upon which the applicant became aware of that ground.
(c) If the application is made on the ground mentioned in paragraph (c) of subsection (1) it shall be made within a period of two years as from the date upon which the order of adoption was made.
(3) An application on the ground that the child is a mentally disordered or defective person may only be made if the applicant was, or if husband and wife jointly adopted the child in question, they both were, at the time of the making of the order of adoption ignorant of the mental disorder or defect of the child and this ignorance was not due to failure of the adoptive parent or parents to exercise reasonable care in examining the child or causing it to be examined.
(4) If the application is made by a parent of the child, he shall give due notice of the application to the adoptive parent or parents.
(5) If the application is made by an adoptive parent, he shall give due notice to the Minister and to the parent or parents or the person who was prior to the adoption the guardian of the adopted child, if he or they can be found.
(6) If the application is made by the Minister, he shall give due notice to the parent or parents, to the adoptive parent or parents, and to the said guardian, if he or they can be found.
(7) The court to which the application is made shall, after having satisfied itself that the applicant has complied with subsection (4), (5) or (6) and after having afforded any person interested in the application, an opportunity to be heard and after having considered any relevant evidence, whether oral or in the form of an affidavit, which was tendered in support of or in opposition to the application, rescind or confirm the order of adoption: Provided that it shall not rescind an order of adoption on the application of a parent of the adopted child if the court is satisfied that the applicant is unfit to have the custody of the child and that it is in the interest of the child that the order of adoption be confirmed.
(8) On the rescission of an order of adoption the child shall for all purposes be restored to the position in which it would have been if no order of adoption had been made: Provided that the rescission shall not affect anything lawfully done while the order of adoption was in force.
[a33y1960s77
]77 Appeal from order of adoption or from rescission of adoption or from refusal to rescind
(1) An order of adoption and a rescission of an order of adoption and the refusal of an application for the rescission of an order of adoption shall be subject to an appeal to the competent Division of the Supreme Court as if the order, rescission or refusal were a judgment of a magistrate's court.
(2) An appeal against an order of adoption may be brought by the parent or guardian of the adopted child.
(3) An appeal against the rescission of an order of adoption may be brought by a parent, guardian or adoptive parent of the child in question, who did not apply for the rescission.
(4) An appeal against a refusal of an application for the rescission of an order of adoption may be brought by the applicant concerned.
(5) (a) In such an appeal brought by a parent or guardian, the adoptive parent of the child in question shall be cited as respondent, and in such an appeal brought by an adoptive parent, the parent or guardian (if any) of the child in question shall be cited as respondent, unless, in either case, the appeal is brought against a rescission granted upon the application of the Minister, in which event the Minister shall be cited as respondent.
(b) In an appeal brought by the Minister against the refusal of an application made by him for the rescission of an order of adoption, the persons mentioned in subsection (6) of section seventy-six shall be cited as respondents.
(6) In this section 'guardian" means the person who was at the time of making of the order of adoption the guardian of the child in question.
[a33y1960s78]
78 Adoption of adopted child
(1) An adopted child shall be capable of adoption, and upon the making of an order for the adoption of a previously adopted child all the legal consequences of the earlier adoption shall determine, save in so far as the adopted child has acquired any property by virtue of the earlier adoption.
(2) For the purposes of any proceedings for the adoption of a child who has been previously adopted the parents who previously adopted the child shall have the rights and be subject to the obligations conferred and imposed upon parents by any provision of this Chapter, and the terms 'parent' and 'parents' shall in any such provision be construed accordingly.
[a33y1960s79]
79 No consideration in connection with adoption permissible
If-
(a) any person who has obtained an order of adoption of a child or who has applied for such an order or who intends to apply for such an order, gives or undertakes to give any consideration in respect of the adoption;
(b) any person who has obtained an order of adoption of a child or who has applied for such an order, save with the consent of the court which made the order or to which application for the order is made, receives or contracts to receive any consideration in respect of the adoption;
(c) any parent or guardian of a child receives or contracts to receive any consideration in respect of the adoption of the child or, save with the consent of the court which made the order or to which application for the order is made, gives or undertakes to give any consideration;
(d) any other person receives or contracts to receive or gives or undertakes to give any consideration in respect of the adoption of any child,
he shall be guilty of an offence and liable on conviction to a fine not exceeding five hundred pounds or in default of payment of such fine to imprisonment for a period not exceeding five years or to such imprisonment without the option of a fine.
[a33y1960s80]
80 Alteration of births register as a result of adoption
(1) When an order has been made for the adoption of a child whose birth has been registered in the Republic, the Secretary for the Interior, if the child is not a Black, or if the child is a Black, the Secretary for Plural Relations and Development shall on the application of the adoptive parent and on production of the order of adoption or of a certified copy thereof and on payment of the prescribed fee (if any), cause the fact of adoption and a statement whether the name of the adoptive parent was or was not conferred upon the child by virtue of the adoption, to be recorded on the birth register of the child, as defined in the Births, Marriages and Deaths Registration Act, 1963 (Act 81 of 1963), filed in his office.
[Sub-s. (1) substituted by s. 50 of Act 58 of 1970.]
(2) If the name of an adoptive parent has been conferred upon an adopted child and that fact has been recorded on the original birth information form, a birth certificate in the name of the adoptive parent may be issued in respect of the child.
[a33y1960s81]
81 Registration of birth of adopted child born outside Republic
When an order has been made whether before or after the commencement of this Act for the adoption of a child born outside the Republic the Secretary for the Interior, if the child is not a Black, or if the child is a Black, the Secretary for Plural Relations and Development shall on the application of the adoptive parent and on production of-
(a) the order of adoption or a certified copy thereof; and
(b) the birth or baptismal certificate of the child or a certified copy thereof or if no such certificate is available, such documentary evidence relating to the date of birth of the child as such Secretary may deem sufficient or, if the age of the child has been estimated in terms of section 85, a certificate signed by a commissioner of child welfare specifying the age of the child as so estimated; and
(c) the form prescribed under the Births, Marriages and Deaths Registration Act, 1963 (Act 81 of 1963), for use in connection with the registration of a birth, completed as far as may be possible and signed by the adoptive parent,
and on payment of the prescribed fee (if any), cause the birth of that child to be recorded in his registers and shall cause the fact of adoption and a statement whether the name of the adoptive parent was or was not conferred upon the child by virtue of the adoption, to be recorded on the birth register of the child, as defined in the said Act, filed in his office.
[S. 81 substituted by s. 51 of Act 58 of 1970.]
[a33y1960s82]
82 Effect of adoption on marriage
An adoption (whether under this Act or under a law repealed by this Act) shall not have the effect of permitting or prohibiting any marriage or carnal intercourse (other than a marriage or carnal intercourse between the adoptive parent and the adopted child) which, but for the adoption, would have been prohibited or permitted.
[a33y1960s82A]
82A Application of provisions of Chapter VII in connection with Blacks
In the application of the provisions of this Chapter in respect of a person who is a Black, any customary union as defined in section 35 of the Black Administration Act, 1927 (Act 38 of 1927), as the case may be, shall be deemed to be a marriage between the parties concerned, and any reference to a husband, wife, widower, widow, divorced person, married person or spouse shall be construed accordingly.
[S. 82A, formerly s. 82bis inserted by s. 11 of Act 50 of 1965, substituted by s. 20 of Act 74 of 1973 and amended by s. 1 of Act 49 of 1996.]
This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.
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Kind Regards
JP
Attorney
Hi agian!
The short answer is that he wont be able to adopt unless your sons consent is obtained or if he can prove that your son has deserted the child.
See section 71 2(d)(i) and section 73.
To discuss this more in detail appoint an attorney who specialize in family law to give you a written opinion as this is unfortunately not my main area of practice. Visit http://www.attorneys.co.za/ and give a written instruction via email.
This answer does not create an attorney-client relationship. Please consult a local attorney in person for legal advice. This information is being provided so you can better discuss legal matters with your attorney.
If you feel that this answer exceeded your expectations feel free to award a bonus.
Kind Regards
JP
Attorney
JP, Attorney
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