by Ranen Salikram / Candidate Attorney / Mooney Ford Attorneys 

South African parents hold broad authority over decisions affecting their children. That authority is legally recognised and courts are generally reluctant to interfere with it. The judgment in Red Cross War Memorial Children’s Hospital v MD and Another (2026/049305) [2026] ZAWCHC 150, handed down by the Western Cape High Court in March 2026, confirms that parental authority has limits: where a refusal of consent to medical treatment places a child’s life at direct risk, and where no medically accepted alternative to the proposed treatment exists, the Court will intervene.

THE FACTS

In January 2026, a six-year-old girl, AD, was admitted to Red Cross War Memorial Children’s Hospital in Cape Town suffering from meningococcal septicaemia, a severe bacterial infection that causes damage to blood vessels, leading to clotting, poor circulation and tissue death. The disease had caused gangrene in both her feet. The orthopaedic team concluded that amputation was the only available treatment: a below-knee amputation of the left leg and a Syme amputation of the right. Delay carried a risk of further infection, more extensive amputation and permanent loss of mobility.

AD’s parents refused consent. Their position was grounded in religious, traditional and cultural belief. They wished to pursue traditional healing, including through a ceremony in the Eastern Cape, and sought AD’s discharge from hospital for that purpose.

The hospital engaged the parents over several weeks before approaching the Court. Three traditional healers were arranged to assess AD in the orthopaedic ward. The family’s elders were consulted directly. The treating team, social workers and palliative care specialists met with the parents on multiple occasions. The hospital’s ethics committee, convened with the involvement of the University of Cape Town, considered the matter in full and concluded that discharge was not safe. None of the traditional healers proposed a medically accepted alternative to surgery, and the gangrene continued to spread.

The Medical Superintendent brought an urgent application before the Western Cape High Court in March 2026. By the time the matter was heard on 11 March 2026, AD’s mother had consented to the surgery. The father had not. He attended the first day of the hearing but confirmed telephonically on the second that he was in George and would not return. No opposing papers were filed and the medical evidence accordingly stood uncontroverted.

THE STATUTORY FRAMEWORK

The governing framework is section 129 of the Children’s Act 38 of 2005. Because AD was under twelve years of age, both medical treatment and surgical intervention required the consent of her parents in terms of sections 129(4) and 129(5) respectively, read with section 31. The mother’s late consent did not resolve the matter: section 129(1) required the consent of both parents, and the father’s refusal was sufficient to necessitate court intervention.

Section 129(10) proved to be the critical provision. It states that a parent may not withhold consent to medical treatment or a surgical operation by reason only of religious or other beliefs, unless the parent can demonstrate that there is a medically accepted alternative choice to the proposed treatment. That burden rests on the parent. The proposals advanced by the traditional healers, comprising oral medication, topical creams and ointments, did not constitute a medically accepted alternative. The Court found further that those proposals fell outside the definition of “health services” under the National Health Act 61 of 2003 entirely. The defence afforded by section 129(10) was accordingly not available to the parents.

Section 129(6) empowers a hospital superintendent to consent to a surgical operation on a child, without parental consent, where the treatment is necessary to preserve the child’s life or save her from serious or lasting physical injury or disability, and where the need is so urgent that it cannot be deferred. Section 129(9) goes further, empowering a High Court or children’s court to consent in all instances where a person who may give consent refuses or is unable to do so.

THE COURT’S ORDER AND ITS BASIS

The hospital’s primary relief was framed under section 129(6). Given the father’s complete disengagement from proceedings, counsel invited the Court to grant the alternative relief under section 129(9), in terms of which the Court itself consented to the surgical intervention. Pangarker J granted that order.

The governing principle, drawn from section 9 of the Children’s Act read with section 28(2) of the Constitution, is that a child’s best interests are paramount in all matters concerning that child. The Court’s jurisdiction to act flows from its longstanding common law role as upper guardian of all minor children within its area of jurisdiction, confirmed in Calitz v Calitz 1939 AD 56 and Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA).

The Court acknowledged that the parents’ rights to religious freedom under section 15(1) of the Constitution and to cultural participation under section 30 are constitutionally protected. Both provisions, however, require that the exercise of those rights be consistent with the other provisions of the Bill of Rights. Weighed against the parents’ rights were AD’s right to life under section 11, her right to dignity under section 10, and the right of every child to basic health care services under section 28(1)(c).

The Court referred to two earlier decisions in support of its order. In Hay v B and Others 2003 (3) SA 492 (WLD), the Court overrode a religious objection to a blood transfusion for an infant, holding that a child’s best interests are the single most important factor when competing rights must be weighed. In Life Health Care Group (Pty) Ltd v JMS (As Parent and Guardian of the Infant Child MT) [2014] ZAGPJHC 299, the Gauteng Local Division applied section 129(9) in comparable circumstances, finding the parents’ refusal unlawful and authorising the procedure. Pangarker J found both decisions applicable to the facts before her.

The limitation on the parents’ constitutional rights was held to be justified in terms of section 36 of the Constitution. The father’s stated intention not to return AD to Cape Town following traditional healing, the absence of any medically accepted alternative and his non-participation in proceedings collectively placed the child’s life, dignity and health at unacceptable risk.

PRACTICAL CONSIDERATIONS FOR PRACTITIONERS

Several points of practical significance emerge from this judgment.

Section 129(10) places the burden squarely on the parent. A religious or cultural objection to medical treatment will not, on its own, justify a refusal of consent. The parent must identify a medically accepted alternative. That is a substantive requirement and the threshold is meaningful. Practitioners advising parents in these circumstances must assess carefully whether that standard can be met before recommending that a refusal be maintained.

The extent of engagement with the family will be scrutinised. Pangarker J commended the hospital’s conduct throughout, finding that the obligation under section 7(2) of the National Health Act to take all reasonable steps to obtain consent had been satisfied in full. The level of engagement in this matter was extensive: multiple traditional healer visits, direct contact with family elders, ethics committee involvement and ongoing palliative care support. Practitioners advising hospitals should treat this as the benchmark when preparing an application of this nature.

Urgency does not need to be established as a separate enquiry. The Court confirmed the settled position that matters involving minor children are inherently urgent where their constitutional rights are actively being infringed. Founding papers should focus on setting out the medical position clearly and comprehensively rather than on urgency as a discrete issue.

A comprehensive evidentiary record is essential. The medical evidence in this matter was entirely uncontroverted. It comprised a founding affidavit, a specialist orthopaedic report, confirmatory affidavits from the treating team and social worker, and a psychological report. No answering affidavit was filed. Applications of this nature should be supported by a complete, multidisciplinary record from the outset.

CONCLUSION

The judgment in Red Cross War Memorial Children’s Hospital v MD and Another confirms that parental authority over medical decisions affecting a child is subject to clear statutory and constitutional limits. Where a parent’s refusal of consent is grounded solely in religious or cultural belief, and where no medically accepted alternative to the proposed treatment is available, section 129(10) of the Children’s Act forecloses that defence. The Court, acting in its capacity as upper guardian, will give effect to the paramountcy of the child’s best interests.

For hospitals and their legal advisers, the case provides a clear framework for when and how to approach the Court. For practitioners advising families in similar circumstances, it is an important reminder of what the law requires before a refusal of consent can be sustained.