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M v M (14/3/2-234/05) [2010] ZAGPJHC 74 (19 February 2010)

82 Reportability
Family Law
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Brief Summary

Maintenance — Customary law adoption — Legal duty to maintain adopted child — Respondent and applicant, married in community of property, adopted a minor child under Xhosa customary law — After separation, applicant sought maintenance from respondent for the child — Respondent argued he had no legal obligation to maintain the child as he did not adopt her under statutory law — Court held that customary law adoption creates a legal duty to maintain the child, aligning with constitutional principles prioritizing the best interests of the child and recognizing customary law as integral to South African law.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a special review before the South Gauteng High Court (Johannesburg) in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The matter was referred by a magistrate (Magistrate Fatima Khan) for the High Court to determine whether the magistrate’s conclusion was correct that the respondent bore a legal duty to maintain a minor child who had been adopted by the parties in terms of Xhosa customary law, and whether such a conclusion could be supported through the development of the common law under section 39(3) (as framed in the referral) of the Constitution.


The parties were N S R M (applicant) and Z G M (respondent). Their dispute arose after the breakdown of their marriage and the applicant’s pursuit of maintenance for the child through the statutory maintenance system.


Procedurally, after the parties separated, the applicant lodged a maintenance complaint at the Westonaria Magistrate’s Court under section 10 of the Maintenance Act 99 of 1998. Following an enquiry, the magistrate found that the respondent had a legal duty to maintain the child notwithstanding that the adoption had occurred according to customary law rather than by an order of the Children’s Court in terms of the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005. That conclusion prompted the referral to the High Court for determination.


The general subject-matter of the dispute was whether a customary law adoption (here, Xhosa customary adoption accompanied by traditional rites and later registration at Home Affairs) could ground a legally enforceable duty of support in maintenance proceedings, in the face of arguments that only biological parenthood, civil adoption, or foster placement creates such a duty for purposes of the Maintenance Act and related legislation.


2. Material Facts


The court proceeded from a factual matrix that was largely treated as established for purposes of the legal question posed. The parties entered into a relationship that included both a customary law marriage and later a civil marriage in community of property, concluded on 22 October 1992. No children were born of the marriages.


In January 1997, at the instance of the respondent, the parties jointly decided to adopt an eight-month-old female minor child whose biological parents had died. The adoption occurred in terms of Xhosa customary law, after the performance of Xhosa traditional rites and rituals. The child was taken into the parties’ household at approximately eight months of age and, by the time of the proceedings, was about twelve years old. The judgment accepted that a fully developed parent–child relationship existed between the parties and the child.


After the customary adoption ceremony, the parties approached the Department of Home Affairs (Westonaria) and registered the child “as their own child”, and the child was given the name J M. The respondent maintained the child and paid for educational and medical needs. The child regarded the parties as her parents and remained emotionally and psychologically attached to the respondent even after separation.


In March 2004, following marital breakdown and separation, the applicant lodged a maintenance complaint under the Maintenance Act in the Westonaria Magistrate’s Court. After a maintenance enquiry, the magistrate found that the respondent had a legal duty to maintain the child adopted under customary law.


The central factual premise for the legal dispute was not that the customary adoption had not occurred, but that the respondent had not adopted the child through the statutory civil adoption process under the Child Care Act or the Children’s Act, and the child was not placed in foster care under the statutory schemes referenced in argument.


3. Legal Issues


The central legal question was whether the respondent, who had not lawfully adopted the minor child by an order under the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005, nevertheless had a legally enforceable duty to maintain the child for purposes of a maintenance order under section 10 of the Maintenance Act 99 of 1998, given that the child had been adopted in terms of Xhosa customary law.


This dispute was primarily concerned with law, and more specifically with the application of constitutional and statutory principles to established facts. The enquiry required a determination of the legal status and consequences of customary adoption in relation to maintenance duties, including whether and how courts should apply customary law and develop the common law to ensure consistency with the Constitution, particularly the constitutional emphasis on the best interests of the child.


A further issue (as framed by the referral) was whether the magistrate was entitled to reach the conclusion by developing the common law with reference to the Constitution, including the constitutional injunctions relating to customary law and children’s rights.


4. Court’s Reasoning


The High Court approached the matter within a constitutional framework that recognises customary law as part of South African law, subject to constitutional consistency. It emphasised that the Constitution is the supreme law, and relied on provisions including section 28(2) (the child’s best interests are paramount), section 211(3) (courts must apply customary law when applicable, subject to the Constitution and legislation dealing with customary law), section 30 (cultural participation subject to the Bill of Rights), and section 39(2) (when interpreting legislation and developing common or customary law, courts must promote the spirit, purport and objects of the Bill of Rights). The judgment treated these provisions as requiring a purposive and constitutionally aligned engagement with customary law adoption and the duty of support.


The respondent’s argument, as recorded, was that no maintenance order could be made because the respondent was not the biological parent, had never adopted the child through the statutory adoption framework, and the child was not in foster care placement; reliance was placed on provisions referenced from the Maintenance Act and on section 18 of the Child Care Act 74 of 1983. The court, however, treated the decisive question as whether the legal system (including customary law and common law as developed through constitutional norms) recognises a duty of support flowing from a customary law adoption that creates a real parent–child relationship and a publicly acknowledged assumption of parental responsibility.


The judgment reasoned that Xhosa customary adoption is a recognised and widely practised institution, with a defined social and legal purpose: to proclaim and signify acceptance of parental responsibility for a child, after which the child is regarded by the parties and society as their child. It held that such an institution is not, in itself, inconsistent with public policy or the Bill of Rights, and that the Constitution does not exclude the existence of rights and obligations arising from customary law where they are consistent with constitutional values.


In addressing the relationship between customary adoption and statutory adoption requirements, the court accepted that, under the common law, adoption ordinarily requires a judicial act, and that statutes such as the Child Care Act and the Children’s Act provide for adoption and guardianship through Children’s Court orders. However, it reasoned that this did not justify treating customary adoption as legally irrelevant for purposes of maintenance, particularly where the Constitution obliges courts to apply customary law when applicable and to develop the law to align with constitutional norms. The court drew support from authority recognising customary adoption as capable of producing legally cognisable consequences, including Kewana v Santam Insurance Co. LTD 1993 (4) SA 771 (TkA) (recognising loss-of-support claims arising from customary adoption) and Metiso v Padongelukfonds 2001 (3) SA 1142 (T) (recognising an enforceable duty of support arising in the context of customary adoption, and treating enforcement as consistent with boni mores and as a logical development of the common law).


The court also relied on Constitutional Court jurisprudence emphasising the post-constitutional status of customary law as an integral part of South African law and an independent source of norms, including Alexkor Ltd and Another v The Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC), Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC), and Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC). These decisions were used to reinforce the propositions that customary law must be applied where applicable and must be developed where necessary, and that such development serves constitutional objectives, including harmonisation with human rights and affirmation of legal pluralism under the Constitution.


In evaluating the practical and child-centred implications, the court placed weight on the fact that a stable parent–child bond had existed for many years, that the respondent had historically maintained the child, and that the child remained attached to the respondent even after separation. The judgment framed the enforcement of a duty of support as consonant with the best interests standard, and as a constitutionally legitimate development that would support the functioning of the maintenance system for communities regulated by customary law.


The court further considered that Xhosa customary adoption was sufficiently established and ascertainable to be recognised without requiring expert evidence, referring to the ability of courts to take judicial notice of indigenous law under the Law of Evidence Amendment Act 45 of 1988, and citing Thibela v Minister Van Wet en Orde en Andere 1995 (3) SA 147 (T) and Masenya v Seleka Tribal Authority and Another 1981 (1) SA 522 (T) in that context. It reasoned that customary adoption is “readily ascertainable” with “sufficient certainty” for the court to engage with it as law.


On this basis, the court concluded that recognising and enforcing the respondent’s duty to maintain the child—arising from customary adoption and supported through constitutional development of the law—was not contrary to public policy, boni mores, natural justice, or the constitutional project. It also stated that the Child Care Act, the Maintenance Act, and the Children’s Act did not repeal or modify Xhosa customary law adoption, and it endorsed a purposive approach to statutory interpretation that would not read adoption provisions as excluding customary adoption where not inconsistent with constitutional norms.


5. Outcome and Relief


The court confirmed, in substance, that the respondent bore a legal duty to maintain the minor child adopted in terms of Xhosa customary law and that this duty could be enforced within the maintenance system.


The court ordered the Director-General of the Department of Home Affairs, in terms of section 2 of the Births and Deaths Registration Act 51 of 1992, to register the minor child J M as the adopted child of N S R M and Z A M.


The court further ordered that the magistrate determine the amount of maintenance to be contributed by the respondent towards the maintenance of the minor child.


The judgment extract does not record a separate costs order.


Cases Cited


Alexkor Ltd and Another v The Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC).


B v B and Another 1997 (4) SA 1018 (SO).


Bursey H v Bursey and Another 1999 (3) SA 33 (HHA).


Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC).


Kewana v Santam Insurance Co. LTD 1993 (4) SA 771 (TkA).


Masenya v Seleka Tribal Authority and Another 1981 (1) SA 522 (T).


Metiso v Padongelukfonds 2001 (3) SA 1142 (T).


Raff v Cohen 1956 (4) SA 426 (K).


Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC).


Smit v Smit 1980 (3) SA 1010 (O).


Thibela v Minister Van Wet en Orde en Andere 1995 (3) SA 147 (T).


Legislation Cited


Births and Deaths Registration Act 51 of 1992.


Child Care Act 74 of 1983.


Children’s Act 38 of 2005.


Children’s Act 33 of 1960.


Compulsory Motor Vehicle Insurance Act 25 of 1977 (Tk).


Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).


Criminal Procedure Act 51 of 1977.


Law of Evidence Amendment Act 45 of 1988.


Maintenance Act 99 of 1998.


Rules of Court Cited


No rules of court are cited in the judgment extract provided.


Held


The High Court held that a minor child adopted in terms of Xhosa customary law could found a legally enforceable duty of support on the part of the adoptive parent for purposes of maintenance proceedings, notwithstanding the absence of a statutory adoption order under the Child Care Act or the Children’s Act. The court treated customary law adoption as a recognised institution consistent with constitutional norms and held that the law should be applied and developed in a manner that advances the best interests of the child and the constitutional status of customary law.


The court also held that Xhosa customary law adoption is sufficiently ascertainable for judicial recognition, and that recognising the maintenance duty flowing from such adoption is not contrary to public policy or constitutional values.


Relief was granted directing the Director-General of Home Affairs to register the child as the adopted child of the parties and directing the magistrate to determine the amount of maintenance payable by the respondent.


LEGAL PRINCIPLES


Customary law is an integral part of South African law and must be applied by courts when applicable, subject to the Constitution and any relevant legislation. Courts must treat customary law as an independent source of norms whose validity and development are assessed through constitutional standards rather than through a purely common-law lens.


In matters concerning children, the best interests of the child are of paramount importance. This best-interests standard informs both the interpretation of legislation and the development of the common law and customary law, particularly where a child’s welfare and established parent–child relationships are implicated.


Courts are empowered and obliged, when appropriate, to develop the common law or customary law to promote the spirit, purport and objects of the Bill of Rights. Where customary practices such as customary adoption are consistent with constitutional values and public policy, the legal system may recognise their consequences, including the imposition and enforcement of a duty of support.


Statutory schemes governing adoption and parental responsibilities do not, merely by providing formal procedures, necessarily negate or extinguish customary law institutions, particularly where the Constitution protects cultural practices subject to the Bill of Rights and directs courts to apply customary law when applicable.


A duty of maintenance may be recognised and enforced where, on the facts accepted by the court, parties have assumed parental responsibility through a customary adoption that establishes a genuine and socially acknowledged parent–child relationship; such enforcement may be supported as a constitutionally consistent development of the law and as compatible with public policy and boni mores.

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[2010] ZAGPJHC 74
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M v M (14/3/2-234/05) [2010] ZAGPJHC 74 (19 February 2010)

IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
Reportable
Case
Number
:
14/3/2-234/05
Magistrate Serial No: 19/07
LB626/05
Special Review No: 19/07
DATE: 19/02/2010
In the
matter between:
N
S R M Applicant
and
Z
G M Respondent
___________________________________________________________
JUDGMENT
MOKGOATLHENG
J
INTRODUCTION
This matter was referred to me by Magistrate
Fatima Khan in terms of
section
304
(4) of the
Criminal Procedure Act No 51 of 1977
to determine whether:
her conclusion that the respondent had a legal duty to maintain the
minor child he and the applicant had adopted in terms of
Xhosa
customary law; and
in holding that the respondent had a legal duty
to support the minor child, she was entitled to develop the common
law in terms
of
section 39(3) of
the Republic of South Africa Constitutional Act 108 of 1996 “the
Constitution”.
THE FACTUAL MATRIX
The parties married each other in community of
property on the 22 October 1992 after having first concluded a
customary law
marriage. No children were born of the said marriages.
In January 1997 at the instance of the
respondent, the parties jointly decided to adopt in terms of Xhosa
customary law an eight
months old female minor child whose
biological parents had deceased.
The minor child was lawfully adopted by the
parties in terms of Xhosa customary law subsequent to the
performance of Xhosa traditional
rites and rituals. The minor child
was taken into the parties’ home at the age of eight months
and is now twelve years
old. A fully developed parent/child
relationship exists.
The rationale of a customary law adoption ceremony is to proclaim
and signify to the world that the adoptive parents have formally

accepted parental responsibility for the minor child. The adopted
minor child is thereafter accepted and regarded by the parties
and
the society as a child of the parties. Customary law adoption is
widely practiced by Xhosas in the Eastern and Western Cape
Provinces
of the Republic of South Africa.
Pursuant to the customary law adoption, the
parties approached the Department of Home Affairs in Westonaria and
registered the
minor child “
as
their own child
”. The parties
named the minor child J M.
The respondent maintained the minor child and
paid for its educational and medical needs. The minor child regards
the parties
as its parents. The minor child has bonded with the
parties and is also emotionally and psychologically attached to the
respondent,
to such an extent that even after the parties had
separated in March 2004, it still regards him as its parent.
In March 2004 after the breakdown of the parties
marital relationship, the applicant lodged a maintenance complaint
against the
respondent in terms of
section
10 of The Maintenance Act No 99 of 1998 (“The Act”)
at the Westonaria Magistrate’s Court. An enquiry was held at
the end whereof, the Magistrate found that the respondent
had a
legal duty to maintain the customary law adopted minor child.
THE ISSUE
The cardinal issue is whether the respondent who
has not lawfully adopted the minor child in terms of
the
Child Care Act 74 of 1983
or
the Children’s Act
38
of 2005
is legally obliged to pay
maintenance for the minor child as envisaged by
section
10
of
“The
Act”
. The common law,
the
Constitution, “The Act”, the Child Care Act 74 of 1983
and the Children’s Act
38
of 2005
,
are the legal sources which impact on this issue.
THE
LEGAL FRAME WORK
The respondent’s counsel argued that the
court could not issue any maintenance order against his client,
because in terms
of
sections 6(1)(A)
and 15(3)(a)(iii) of “The Act”
and section 18 of the Child Care
Act 74 of 1983
the respondent was
not the biological parent and had never legally adopted the minor
child, nor was it placed in his foster care
in terms of
Chapter
3 or 6 of the Child Care Act or
section 290
of the
Criminal
Procedure Act, 51 of 1977
;
consequently he was not legally obliged to maintain the minor child.
S
ections
15(3) of “The Act”
provides: “
the duty of biological
parents to support children exists irrespective whether the child
was born in or out of wedlock. An adopted
minor child is for all
intents and purposes regarded as a legitimate child of the adoptive
parent as though it was born from
such parent or from his or her
marriage”.
The Constitution
is the supreme law, any act or conduct inconsistent with it is null
and void.
Section 28(2) of the
Constitution
provides: “
A
child's best interests are of paramount importance in every matter
concerning the child
”.
Section 211 (3) of the Constitution
provides: “
The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.”
Section 30
of
the Constitution
provides:
“Everyone has the right
to use the language and to participate in the cultural life of their
choice, but no one exercising
these rights may do so in a manner
inconsistent with any provision of the Bill of Rights.”
Section 39(1) of the Constitution
decrees: “
When interpreting the
Bill of Rights, a court, tribunal or forum-
must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
must
consider international law; and
may
consider foreign law.
Section 39(2) the Constitution
provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights
”
.
Section 39(2) of the Constitution
entitles a court to develop the
customary law with the object of promoting the spirit, purport and
object of the Bill of Rights.
The Bill of Rights does not eschew the
existence of Xhosa customary law of adoption. In fact the Xhosa
customary law of adoption
promotes the values that underlie an open
and democratic society based on human dignity, equality and freedom
and is not anathema
to public policy nor
contra
bonos mores
.
The recognition of common law receives express
recognition in the Constitution which is the supreme law. In the
development of
common law it is necessary to consider international
conventions pertaining to the rights of children adopted by the
United Nations
General-Assembly in terms of
resolution
44/25
of 20 November 1989 which came
into force on 2 September 1990 in terms of
Article
49
.
Under the common law, a judicial act is required
in order to effect an adoption. Xhosa customary law of adoption is
not in conflict
with
The Bill of
Rights
or
section 18(1)(a) Child Care Act
74
of 1983 and sections 23 and 25 of the Children’s Act No 38 of
2005,
decree
that adoption or guardianship must be effected by an order of the
Children’s Court.
In
Kewana v
Santam Insurance Co. LTD
1993 (4) SA 771
(TkA)
it
was held: “
A child adopted
according to customary law in Transkei is entitled to compensation
for loss of support resulting from the negligent
killing of such
child's adoptive parent. Such an action can be maintained under
the
Compulsory Motor Vehicle Insurance Act 25 of 1977 (Tk)
”
and that the previous
Children’s
Act 33 of 1960
,
did not affect customary law.
Section 7(1)(c) and (d) of the Children’s
Act No 38 of 2005
provides:
“Best interests of child standard-
(1) Whenever a provision of this Act requires the best interests
of the child standard to be applied, the following factors must
be
taken into consideration where relevant, namely-
(a) the nature of the personal relationship between-
(i) the child and the parents, or any specific parent; and
(ii) the
child and any other care-giver or person relevant in those
circumstances;
(b) the attitude of the parents, or any specific parent, towards-
(i) the child; and
(ii) the
exercise of parental responsibilities and rights in respect of the
child;
(c) the capacity of the parents, or any specific parent, or of any
other care-giver or person, to provide for the needs of the child,

including emotional and intellectual needs;
(d) the
likely effect on the child of any change in the child's
circumstances, including the likely effect on the child of any
separation from-
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver
or person, with whom the child has been living.”
The words “
for
the adoption of children
”
enunciated in the preamble
of the
Child Care Act No 74 of 1983
should be read and interpreted purposively not to exclude adoption
by customary law as it is not contrary to this law of general

application, consequently a minor child adopted in terms of Xhosa
customary law should be deemed to be legally adopted in terms
of the
common law and
The Constitution of
the Republic of South Africa.
The development of customary law in this matter
is consonant with promoting the best interest of the minor child.
Section 28 (2) of the Constitution
of the Republic of South Africa Act No 108 of 1996,
provides:
“A child’s best
interests is of paramount important in every matter concerning the
child.
Section 9 of the Children’s Act No 38
of 2005
provides:
“In
all matters concerning the care, protection and well-being of a
child the standard that the child’s best interest
are of
paramount, must be applied.”
The Constitutional Court in the case of
Alexkor
Ltd and Another v The Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA
460
(CC) on page 478 paragraph 51
held:
“
While
in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law. Like
all law it
depends for its ultimate force and validity on the Constitution. Its
validity must now be determined by reference not
to common law, but
to the Constitution. The courts are obliged by
section
211 (3) of the Constitution
to
apply customary law when it is applicable, subject to the
Constitution and any legislation that deals with customary law…;
In the result, indigenous law feeds into,
nourishes, fuses with and becomes part of the amalgam of South
African law.”
In
Shilubana and
Others v Nwamitwa
2009 (2) SA 66
(CC)
in paragraph 43 it was held: “
The
import of this section, in the words of Langa DCJ in
Bhe
,
is that customary law 'is protected by and subject to the
Constitution in its own right'. Customary law, like any other law,

must accord with the Constitution. Like any other law, customary law
has a status that requires respect. As this court held in
Alexkor
v Richtersveld Community
,
customary law must be recognised as 'an integral part of our law'
and 'an independent source of norms within the legal system'.
It is
a body of law by which millions of South Africans regulate their
lives and must be treated accordingly”
.
It is pertained that courts must be cognizant of the fact that
customary law, like any other law, regulates the lives of people.
In case
of
Gumede v President of the Republic of South Africa and Others
2009
(3) BCLR 243
(CC) at 21-22
it was
held:
“
Courts are required not only to apply customary law but
also to develop it…
”
“
The
adaptation of customary law serves a number of important
constitutional purposes. Firstly, this process would ensure that
customary
law, like statutory law or the common law, is brought into
harmony with our supreme law and its values,
and
brought in line with international human rights standards. Secondly,
the adaptation would salvage and free customary law from
its stunted
and deprived past. And lastly, it would fulfill and reaffirm the
historically plural character of our legal system,
which now sits
under the umbrella of one controlling law–the Constitution. In
this regard we must remain mindful that an
important objective of our
constitutional enterprise is to be “united in our diversity.”
In its desire to find social
cohesion, our Constitution protects and
celebrates difference. It goes far in guaranteeing cultural,
religious and language practices
in generous terms provided that they
are not inconsistent with any right in the Bill of Rights. Therefore,
it bears repetition
that it is a legitimate object to have a
flourishing and constitutionally compliant customary law that lives
side by side with
the common law and legislation.”
The Constitution
does
not abjure the existence of any rights recognized or conferred by
the common law, or customary law to the extent that they
are
consistent with the Bill of Rights. In the case of
Metiso
v Padongelukfonds
2001 (3) SA 1142
(T)
Bartelsman
J held;
“Act of adoption possibly
incomplete - Offer to adopt children a binding offer which can and
should be enforced on behalf
of children. Recognition of such duty
to maintain enforceable in terms of customary law and reconcilable
with boni mores - Insofar
as such duty not recognised by common law,
it is logical extension thereof - Acceptance of validity of duty to
maintain minor
children which arises from promise made in context of
(possibly) incomplete customary adoption merely a logical further
step
in development of common law.”
The
Learned Judge further held: “
Gemeenregtelik
is 'n onderhoudsplig wat voorspruit uit 'n ooreenkoms, en nie suiwer
uit bloedverwantskap of ouerskap nie, reeds
ten minste in beginsel
en by implikasie deur ons Howe erken, vergelyk
Raff
v Cohen
1956 (4) SA 426
(K); Smit v Smit
1980 (3) SA 1010
(O); B v B
and Another
1997 (4) SA 1018
(SO); en, op appèl, Bursey H v
Bursey and Another
1999 (3) SA 33
(HHA)
”.
The Learned Judge further held in
Metiso
v Padongelukfonds,
that the
deceased had a legal duty to maintain the minor children, because he
had adopted them according to customary law. The
Learned Judge found
that it was in the children’s best interests to give effect to
the deceased’s duty, and accordingly
refused to declare the
customary adoption invalid for failure to comply with all the
statutory requirements.
The respondent’s legal obligation to
support the adopted minor child as a consequence of the development
of common law is
not contrary to public policy,
bonis
mores,
the principles of natural
justice or the spirit, purport and objects of the Bill of Rights.
The
Child Care Act, the
Maintenance
Act
or
The Children’s Act
do not repeal or modify Xhosa customary law of adoption.
The recognition of the duty to maintain a minor
child in terms of customary law and the civil law is reconcilable
with the common
law and a Bill of Rights. The logical extension and
development of the common law to accommodate customary law adoption
is not
inconsistent with the prescripts of
The
Constitution
.
In
Thibela
v Minister Van Wet en Orde en Andere
1995 (3) SA 147
(T)
Van Dyk J
applied customary law by virtue of the provisions of
section
1(1)
of the
Law of Evidence Amendment Act 45 of 1988
which provides:
“
Any court may take judicial notice of
the law of a foreign state and of indigenous law in so far as such
law can be ascertained
readily and with sufficient certainty:
Provided that indigenous law shall not be opposed to the principles
of public policy and
natural justice: Provided further that it shall
not be lawful for any court to declare that the custom of lobola or
bogadi or other
similar custom is repugnant to such principles.”
The facts in the
Thibela’s
case are distinguishable from the facts
in the present case, but s
ection (17)
of the
Law of Evidence Amendment Act
nevertheless
applies, and empowers any court to take judicial notice
of indigenous law insofar as such law can be ascertained readily and
with
sufficient certainty. Xhosa customary law adoption is readily
ascertainable, with sufficient certainty to dispense with the
requirement
of an expert to adduce expert evidence to establish it as
a fact.
See
:
Masenya v Seleka Tribal Authority and Another
1981 (1) SA 522
(T)
In
Human
Rights and African Customary Law and a Source book of African
Customary Law for South Africa at page 291
Bennett J states:
‘
Courts…….
have
assumed protective jurisdiction as upper guardian of all minor
children, which they exercise at any time when, a child is without
a
guardian, the guardian has neglected his or her duty, or the natural
guardians cannot agree on what is best for the child. In
the second
place the welfare of the child is deemed to be of paramount
importance………..’
Statutory
provisions governing the procedure and effect of adoption do not
per
se
override customary law.
It is not inconsistent with the Bill of Right for
persons to marry in terms of Xhosa customary law and thereafter
marry in terms
of the civil law. It is not inconsistent with the
Bill of Rights for persons to adopt a child in terms of Xhosa
customary law
and not in terms of the civil law. No law of general
application declares unlawful a person’s right to adopt a
child by
customary law.
The Republic of South Africa subscribes to the
tenets of the
Hague
Convention on the Protection of Children and Co-operation in Respect
of Inter-Country –Adoption signed at The Hague
on 25 October
1980, Article 3
states:
“The best interest of the child shall be of primary
consideration to ensure the child such protection and care as is

necessary for its wellbeing taking into account the rights and
duties of parents, legal guardians and other individuals legally

responsible for it.
Article 5
recognizes the applicability of the local customs of each country.”
In terms of Xhosa customary law the respondent
and applicant both have a duty to maintain and support the minor
child. The parties
cannot terminate or abandon their parent/child
relationship in respect of the adopted minor child. The legal duty
to maintain
the minor child under customary law is legally
enforceable. There is no reason why such legal duty having regard to
section 39(2) of the Constitution
Act
should not be enforceable
against the respondent under the common law.
Customary law adoption is an established
institution and is practised by millions of people who adhere to
Xhosa customary law
and traditions. Customary law adoption by a
patriarch who has no male progeny of his own, to inherit his estate
it is a custom
that accepted and recognised in Xhosa customary law
to be one which is in the best interests of a minor child.
Consequently,
customary law must be adapted and developed to put the
minor child’s interests first and to harmonise them with the
following
sources of authority,
the
Constitution, the
Child
Care Act, The Childrens Act, The
Maintenance Act, Public
Policy, and
the United Nations Conventions.
The development of the common law in this matter
will assist in the improvement of the effectiveness of the
application of the
maintenance system as there is a huge number of
people in the population who are regulated by customary law who find
themselves
in the same situation and the circumstances as pertaining
in this matter. Such people will be encouraged to approach the
courts
and have access to the state maintenance legal services
without hesitation to enforce the legal rights to maintenance of
customary
law adopted minor children.
The Director of Public Prosecutions in his
written submissions argued that this was a matter in which the facts
entitle the High
Court to develop the common law in terms of
section
39(2) of the Constitution
in order
to harmonise the efficacy relating to the constitutional right to
maintenance of minor children adopted in terms of customary
law.
The development of the common law will be seen by
the public not only as a progressive positive contribution to the
advancement
of the “
undocumented
customary law maintenance practices
”
but also as a development of the common law and its jurisprudence.
From a minor child’s point of view,
placement in a family carries material and educational advantages.
Children develop
fully only under the protective umbrella of their
culture of origin. For the minor child’s dignity, sense of
identity and
psychological well being, it is preferable if it grows
up in the social milieu from which it originates. The minor child’s

long-term emotional and psychological well-being is of paramount
importance in circumstances where a customary law adoptive parent

unlawfully relays to carryout its parental duties and obligations.
In the premises the conclusion that the
respondent has a legal duty to maintain the minor child as a
consequence of the development
of the common law is in accordance
with the precepts of justice.
THE ORDER
The Director General of the Department of Home
Affairs is ordered in terms of s
ection
2
of
The
Births and Deaths Registration Act 51 of 1992
to register the minor child J M as the adopted child of N S R M and
Z A M.
The Magistrate is ordered to determine the amount
of maintenance to be contributed by the respondent towards the
maintenance of
the minor child J M.
Signed at Johannesburg on this the 17
th
day of February 2010.
________________________
MOKGOATLHENG J
JUDGE OF
THE HIGH COURT
DATE OF JUDGMENT: 19 February 2010
TO THE MAGISTRATE WESTONARIA
THE RESPONDENT
THE NATIONAL DIRECTOR
OF
PROSECUTIONS
PRETORIA

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