[133]Ordinarily a successful litigant should receive at least some practical relief. This, however, is not an absolute rule. In Fraser (1)[1] this Court declared invalid a provision of the Child Care Act[2] to the extent that it dispensed with the father's consent for the adoption of a child born out of marriage in all circumstances. Mahomed DP held that the consent of some fathers would be necessary, but not of all fathers. In deciding to give Parliament an opportunity to correct the defect, the Court took account of the difficulties of distinguishing between meritorious and non-meritorious fathers in these circumstances and “the multifarious and nuanced legislative responses which might be available to the legislature”.[3] Mohamed DP went on to point out that the applicant in that matter was not the only person affected by the impugned provision and that proper legislation was required to regulate the rights of parents in relation to the adoption of any children born out of a relationship between them which had not been formalised by marriage.[4] In the meanwhile it would be chaotic and prejudicial to the interests of justice and good government to invalidate any adoption order previously made.[5] What was called for was an order allowing the section to survive pending its correction by Parliament.[6] Regard being had to the complexity and variety of the statutory and policy alternatives which might
- ↑ Fraser v Children’s Court, Pretoria North, and Others 1997 (2) SA 261 (CC); 1997 (2) BCLR 153 (CC). [Fraser (1).]
- ↑ Act 74 of 1983.
- ↑ Fraser (1) above n 125 at para 50.
- ↑ Id
- ↑ Id at para 51.
- ↑ Id
