The Facts: A Six-Year-Old, Gangrenous Feet and a Family’s Unyielding Faith
On 19 January 2026, a six-year-old girl, referred to as AD to protect her identity, was admitted to the Red Cross War Memorial Children’s Hospital in Cape Town in a critical condition. She presented with meningococcal septicaemia — a life-threatening blood infection caused by bacteria that releases toxins damaging blood vessels, leading to clots, poor circulation and tissue death. AD was placed in the intensive care unit, intubated, ventilated for four days and required inotropic support. By 22 January 2026, her feet had become progressively discoloured, indicative of ischaemia and gangrene of both feet.
The hospital’s orthopaedic team, led by Associate Professor Anria Horn and Dr Sicelo Mkhize, assessed AD and concluded that she was not a candidate for revascularisation. The only available treatment was bilateral amputation — a below-knee amputation of the left leg and a Syme amputation of the right leg. Delay carried a grave risk: further infection around the necrotic tissue could necessitate higher amputations and severely compromise AD’s long-term mobility.
AD’s parents, however, refused to consent. Their refusal was rooted in their religious, traditional and cultural beliefs. They were convinced that traditional healing could cure their daughter’s condition without surgical intervention, and they sought to have AD discharged so that she could travel to the Eastern Cape to undergo a traditional healing ceremony. The hospital’s multidisciplinary team, rightly mindful of AD’s condition and her dependence on strong pain medication including opioids, determined that discharge would be dangerous and potentially fatal.
What followed was a prolonged and genuinely admirable effort by the hospital to accommodate the parents’ beliefs. The hospital arranged for no fewer than three traditional healers to visit AD in the orthopaedic ward. Each healer proposed oral traditional medication, topical creams and ointments as a cure. The hospital, however, was unable to permit traditional healing within its premises, and neither healer offered what section 129(10) of the Children’s Act 38 of 2005 requires — a medically accepted alternative to the proposed surgical operation. The hospital’s social workers also contacted the father’s uncle, Mr Dengane, who confirmed that the family was aware of the severity of AD’s condition but remained firm in their position. By 10 February 2026, the gangrene was progressing and new areas of necrosis were appearing on AD’s limbs.
The hospital also sought a clinical psychological assessment of AD through Hilda du Plooy, a clinical psychologist from the hospital’s Division of Child and Adolescent Psychiatry. AD’s mother refused this assessment too, viewing it as another attempt to persuade the parents to consent to surgery.
After exhausting every reasonable avenue, the hospital’s Medical Superintendent, Dr Jessica Browne, brought an urgent application before the Western Cape High Court on 10 March 2026 in terms of Rule 6(12) of the Uniform Rules of Court. AD’s father appeared on the first day of the hearing but failed to attend on 11 March 2026, confirming telephonically that he was in George and would not return. No opposing papers were filed. Remarkably, by the time the matter was heard, AD’s mother had relented and provided her consent — but the father’s refusal remained resolute.
The Legislative Framework: Section 129 of the Children’s Act and the Limits of Parental Refusal
The legal framework governing consent to medical treatment and surgical intervention in respect of minor children is primarily located in section 129 of the Children’s Act 38 of 2005. Since AD was under twelve years of age, consent to both medical treatment and surgical intervention fell to be given by her parents in terms of sections 129(4) and 129(5) respectively, read with section 31 of the Children’s Act.
Critically, section 129(10) places an important statutory limitation on parental authority. A parent or guardian may not refuse or withhold consent on the grounds of religious or other beliefs alone, unless they can demonstrate that there exists a medically accepted alternative to the proposed treatment or operation. This provision proved decisive. Neither of the traditional healers who assessed AD in hospital offered anything approaching a medically accepted alternative. The burden rested squarely on the parents to provide such an alternative, and they failed to do so.
Where parental consent is refused, section 129(6) of the Children’s Act empowers the superintendent of a hospital to consent to treatment or a surgical operation on a child, provided two requirements are met: the treatment must be necessary to preserve the child’s life or to save her from serious or lasting physical injury or disability, and the need must be so urgent that it cannot be deferred to obtain the consent that would otherwise have been required. Both requirements were plainly satisfied on the facts.
The hospital also had to navigate the requirements of the National Health Act 61 of 2003. Section 7(1), read with section 1, provides that health services may only be rendered with the informed consent of the user — or, in the case of a minor child, her parents or guardians. Section 7(2) obliges a health care provider to take all reasonable steps to obtain that consent. As Pangarker J found, the hospital’s sustained and sensitive engagement with the parents over several weeks more than satisfied this obligation.
The constitutional dimension could not be overlooked either. Section 27(1) of the Constitution of the Republic of South Africa, 1996 protects every person’s right of access to health care services, while section 28(1)(c) guarantees every child the right to basic health care services. Section 28(2) — which provides that a child’s best interests are of paramount importance in every matter concerning the child — served as the constitutional anchor for the entire enquiry. These rights stood in direct tension with the parents’ rights under section 15(1), which protects freedom of religion, conscience, belief and opinion, and section 30, which recognises the right to participate in the cultural life of one’s choice. Significantly, however, both sections make clear that the exercise of these rights must not be inconsistent with any other provision in the Bill of Rights.
The High Court as Upper Guardian: Balancing Religious and Cultural Rights Against a Child’s Best Interests
The hospital’s Notice of Motion sought, as its primary relief, an order authorising the Medical Superintendent to consent to AD’s surgical intervention in terms of section 129(6) of the Children’s Act 38 of 2005. However, given the father’s continued and unyielding refusal to attend Court or provide his consent, counsel for the hospital invited Pangarker J to instead grant the alternative relief sought — namely, that the Court itself consent to the surgical intervention in terms of section 129(9) of the Children’s Act. That section empowers a High Court or children’s court to consent to medical treatment or a surgical operation on a child in all instances where a person who may give consent refuses or is unable to do so.
The Court’s jurisdiction to act was further grounded in the common law, which vests the High Court with the authority and role of upper guardian of all minor children within its area of jurisdiction, as confirmed in Calitz v Calitz 1939 AD 56 and Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA). It is in this capacity that the Court was ultimately called upon to resolve the conflict between the competing rights at play.
The guiding principle was section 9 of the Children’s Act, read with section 28(2) of the Constitution — that in all matters involving minor children, the best interests of the child are paramount. Pangarker J applied this as the overarching principle when choosing to grant relief under section 129(9) rather than section 129(6).
In reaching this conclusion, the Court drew on two important authorities. In Hay v B and Others 2003 (3) SA 492 (WLD), the Court was confronted with parents who objected on religious grounds to a life-saving blood transfusion for their infant. The Hay case affirmed that the best interests of the child constitute the single most important factor when balancing competing rights and interests concerning children, and that the duty to afford children protection falls ultimately on the Court as upper guardian of all children. Although the Hay case predated the Children’s Act, Pangarker J aligned herself fully with its approach and reasoning.
A similar conclusion was reached in Life Health Care Group (Pty) Ltd v JMS (As Parent and Guardian of the Infant Child MT) [2014] ZAGPJHC 299, where the Gauteng Local Division authorised a life-saving blood transfusion for an infant despite the parents’ religious objections. The Court in the JMS case found the parents’ refusal unlawful and exercised its power under section 129(9) of the Children’s Act to authorise the treatment. Pangarker J found the JMS case directly persuasive in the circumstances before her.
Applying these principles, Pangarker J found that the father’s insistence on removing AD to the Eastern Cape for traditional healing, his stated intention never to return her to Cape Town for surgery, the absence of any medically accepted alternative, and his persistent refusal to engage with Court proceedings, collectively placed AD’s health, dignity and life at serious risk. The limitation that section 129(10) of the Children’s Act places on parental religious and cultural rights in these circumstances was, in the Court’s view, a justified limitation under section 36 of the Constitution.
The Court accordingly granted an order in terms of section 129(9) of the Children’s Act consenting to the surgical intervention, directed that AD remain at the hospital until her rehabilitation and psychological counselling were complete, and prohibited her parents from removing her from the hospital during that period.
Pangarker J found that the hospital had satisfied the requirements of the Children’s Act and the National Health Act and was accordingly entitled to approach the Court on an urgent basis for the relief sought.
Key Takeaways for Legal Practitioners: When Hospitals Can — and Must — Approach the Court
This judgment offers several important lessons for practitioners who advise hospitals, medical professionals, or families navigating the intersection of children’s rights, parental authority and medical decision-making.
The first concerns the threshold for court intervention. This case confirms that section 129(9) of the Children’s Act 38 of 2005 is not a provision of last resort in a merely technical sense — it is a substantive and readily available remedy where parental refusal places a child’s life or health at genuine risk. Practitioners advising hospitals should not hesitate to recommend this route where engagement with parents has been exhausted and the medical evidence is clear and uncontroverted.
The second concerns the evidentiary foundation required. Pangarker J placed considerable weight on the fact that the hospital’s medical evidence — comprising Dr Browne’s founding affidavit, Professor Horn’s expert orthopaedic report, the confirmatory affidavits of Dr Mkhize and Mr Dlwati, and Ms du Plooy’s psychological report — stood entirely uncontroverted. No answering affidavit was filed. Practitioners should ensure that applications of this nature are supported by a comprehensive, multidisciplinary evidentiary record from the outset. Photographs, clinical notes and confirmatory affidavits from all members of the treating team significantly strengthen such applications.
The third concerns the role of the Family Advocate. Although this matter did not involve a care and contact or guardianship dispute, Pangarker J proactively requested a Memorandum from the Family Advocate regarding AD’s best interests. Practitioners should be alert to this as a useful tool in urgent applications involving minor children, even where the matter does not fall squarely within the Family Advocate’s traditional domain. The Family Advocate’s participation added an important independent layer of scrutiny to the process and was clearly appreciated by the Court.
The fourth concerns the section 129(10) defence — or rather, the absence of it. Practitioners advising parents in similar circumstances must understand that a religiously or culturally motivated refusal of consent is not legally sustainable under the Children’s Act unless the parents can point to a medically accepted alternative treatment. This is not a low bar. The proposals of traditional healers offering oral remedies, topical creams and ointments did not come close to satisfying it. Counsel advising parents in these situations must engage seriously with the medical evidence and, if an alternative is to be advanced, it must carry genuine medical credibility.
The fifth concerns urgency. Pangarker J confirmed the well-established principle that matters involving minor children are regarded as inherently urgent. Where a child’s constitutional rights to life, dignity and basic health care services are actively being infringed, delay is itself a harm. Practitioners should be prepared to move quickly and should ensure that the founding papers convey the medical urgency with clarity and precision.
Finally, this judgment serves as a powerful reminder of the broader constitutional framework within which these disputes are resolved. The rights of parents to religious freedom and cultural practice are real and constitutionally protected, and courts will not lightly override them. However, as this case demonstrates, those rights yield when their exercise directly imperils a child’s life and health, and where no medically accepted alternative exists. The paramountcy of the child’s best interests, as entrenched in both the Constitution and the Children’s Act, remains the lodestar by which these tensions are resolved.
Questions and Answers
What statutory provision empowered the Court to consent to AD’s surgical intervention in place of her parents?
Section 129(9) of the Children’s Act 38 of 2005 empowers a High Court or children’s court to consent to medical treatment or a surgical operation on a child in all instances where a person who may otherwise give consent refuses or is unable to do so. It was under this provision that Pangarker J granted the order on 11 March 2026.
Why did the Court grant relief under section 129(9) rather than section 129(6) of the Children’s Act?
The hospital’s primary relief sought authorisation for the Medical Superintendent to consent under section 129(6). However, given the father’s continued and resolute refusal to attend Court or provide consent, counsel invited the Court to grant the alternative relief under section 129(9), which vests the consent power directly in the Court itself. Pangarker J preferred this route, guided by the paramountcy of AD’s best interests as the overarching principle.
What are the two requirements that must be satisfied before a hospital superintendent may consent to treatment under section 129(6) of the Children’s Act?
The treatment or operation must be necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability, and the need for the treatment must be so urgent that it cannot be deferred for the purpose of obtaining the consent that would otherwise have been required. Both requirements were satisfied on the facts of this matter.
What does section 129(10) of the Children’s Act provide in relation to religiously motivated refusals of parental consent?
Section 129(10) provides that no parent, guardian or care-giver may refuse to assist a child or withhold consent to medical treatment or a surgical operation by reason only of religious or other beliefs, unless that parent or guardian can demonstrate that there is a medically accepted alternative choice to the treatment or operation concerned. This provision significantly curtails the extent to which religious or cultural convictions may lawfully obstruct a child’s access to necessary medical care.
Did the traditional healers who assessed AD provide a medically accepted alternative as contemplated by section 129(10) of the Children’s Act?
They did not. Both traditional healers who attended the hospital proposed oral traditional medication, topical creams and ointments as a means of curing AD’s gangrenous feet. Neither proposal constituted a medically accepted alternative choice to the surgical intervention as required by section 129(10). The burden of establishing such an alternative rested on the parents, and it was not discharged.
What obligation does section 7(2) of the National Health Act 61 of 2003 place on a health care provider in relation to consent?
Section 7(2) of the National Health Act obliges a health care provider to take all reasonable steps to obtain the informed consent of the user, or in the case of a minor child, that of her parents or guardians. Pangarker J found that the hospital’s sustained, sensitive and multifaceted engagement with AD’s parents over several weeks amply satisfied this obligation.
What is the common law basis for the High Court’s jurisdiction to intervene in matters concerning minor children?
The common law vests the High Court with the authority and role of upper guardian of all minor children within its area of jurisdiction. This principle was confirmed in the Calitz case and the Oosthuizen case, and it underpinned the Court’s jurisdiction to grant the order in terms of section 129(9) of the Children’s Act, balancing the competing rights of the parents against AD’s best interests.
How did the Court approach the tension between the parents’ constitutional rights and AD’s constitutional rights?
The Court recognised that the parents’ rights to religious freedom under section 15(1) of the Constitution and to cultural participation under section 30 are genuine and constitutionally protected. However, both provisions expressly require that these rights be exercised consistently with the Bill of Rights. On the other side of the scale stood AD’s rights to dignity, life and basic health care services under sections 10, 11 and 28(1)(c) of the Constitution respectively, together with the paramountcy of her best interests under section 28(2). The Court found that the parents’ exercise of their religious and cultural rights, in the circumstances, could not be permitted to override AD’s fundamental rights.
How did the Court justify the limitation of the parents’ rights under section 36 of the Constitution?
Pangarker J found that the limitation placed by section 129(10) of the Children’s Act on the parents’ rights to exercise their religious beliefs and cultural customs was justified under the general limitations clause in section 36 of the Constitution. The father’s persistent refusal to consent, his stated intention never to return AD to Cape Town after traditional healing, and the absence of any medically accepted alternative, collectively placed AD’s health, dignity and life at unacceptable risk, making the limitation of parental rights constitutionally justifiable in the circumstances.
What did the Court hold regarding the hospital’s locus standi to bring the application?
The Court held that both the hospital and Dr Browne as Medical Superintendent had the necessary locus standi to launch the application. Locus standi was established in terms of sections 8(2) and 15(2) of the Children’s Act, read with section 129(6). The hospital, as a public health establishment, was entitled to approach the Court in AD’s best interests and to seek the protection of her rights. The fact that Dr Browne was not separately cited as an applicant was found to be of no material consequence.
What role did the Family Advocate play in this matter and on what basis was the Family Advocate’s involvement requested?
Pangarker J proactively requested a Memorandum from the Family Advocate, Cape Town, regarding the best interests of the minor child, notwithstanding that the matter did not involve a care and contact or guardianship dispute. Advocate Hofmeester attended to the matter and provided the Memorandum. The Family Advocate’s participation provided an important and independent assessment of AD’s best interests, which the Court found valuable in reaching its decision.
How did the Hay case influence the Court’s reasoning?
In the Hay case the Court held that a child’s best interests constitute the single most important factor when balancing competing rights and interests concerning children, and that the duty to afford children protection falls ultimately on the Court as upper guardian. Although the Hay case was decided before the enactment of the Children’s Act and therefore before the statutory limitation in section 129(10) existed, Pangarker J aligned herself fully with its approach and reasoning, finding it directly applicable to the conflict between parental religious objections and a child’s right to life-saving medical treatment.
How did the JMS case support the order granted in this matter?
In the JMS case the Gauteng Local Division was confronted with parents who refused on religious grounds to consent to a life-saving blood transfusion for their infant. The Court found the refusal unlawful and exercised its power under section 129(9) of the Children’s Act to authorise the treatment. Pangarker J found the JMS case directly persuasive, as it confirmed that section 129(9) is an appropriate and available remedy where parental religious objections place a child’s life and health at risk and no medically accepted alternative exists.
What constitutional rights of AD were found to be at risk as a result of the father’s continued refusal of consent?
Pangarker J found that AD’s constitutional right to life under section 11, her right to dignity under section 10, and her right to basic health care services under section 28(1)(c) of the Constitution were all actively being infringed while her father’s consent remained withheld. The Court held that any further delay in granting the order would perpetuate those infringements, reinforcing the conclusion that the application was extremely urgent.
What is the significance of the requirement in section 129(1) of the Children’s Act that both parents must consent to surgical intervention?
Section 129(1) of the Children’s Act requires that consent to medical treatment or a surgical operation on a child must be given in accordance with the relevant subsections of section 129. Where both parents are holders of parental responsibilities and rights, as was the case with AD, the consent of both is required. This meant that even though AD’s mother eventually consented on the day of the hearing, the father’s continued refusal was sufficient to necessitate the Court’s intervention under section 129(9), since the statutory requirement of parental consent had not been fully satisfied.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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