IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No: 5307/2022
In the matter between:
NANDIPHA TSHALI 1st Applicant
LUBABALO TSHALI 2nd Applicant
and
NOKWANELA ABEGAIL NANDI 1st Respondent
THENJIWE MONICA LOLIWE 2nd Respondent
BUZIWE OLGA CHARLIE 3rd Respondent
FIKILE WELCOME TSHALI 4th Respondent
NKOSINATHI SINDEPHI TSHALI 5th Respondent
MDODANA TSHALI 6th Respondent
AVIWE WELILE CHOPHA, N.O. 7th Respondent
(In his capacity as the Executor of Estate
Late NOMPUMELELO VERONICA TSHALI
·\\. OJ· SCJ\;
No. 002520/2019)
MASTER OF THE HIGH COURT, MTHATHA 8th Respondent
REGISTRAR OF DEEDS, MTHATHA 9th Respondent
JUDGMENT
DAWOOD ADJP:
[1] The applicants herei n sought order s in the following terms: -
“1. First and Second Applicants are declared to be the customarily adopted
children or descendants of the late NOMPUMELELO VERONICA TSHALI
and, conse quently are her intestate heirs.
2. That the siblings of the late NOMPUMELELO VERONICA TSHALI, namely
the First to Sixth Respondents , are not the intestate heirs of the deceased,
and would have been entitled to inherit only if the deceased was not survived
by any descendant in terms of Section 1 (e)(i) (bb) of the Intestate Succession
Act.
Or alternatively to paragraphs 1 and 2 above -
That in the event of a dispute or uncertainty arising in connection with the
status of my claim in relation to the deceased whose estate in terms of the
Reform of Customary Law of Succession and Regulation of Related Matters
Act No. 11 of 2009 devolves in terms of the Intestate Succession Act then the
Eighth Respondent , the Master of the High Court, Mthatha be directed,
subject to Section 5(2) of the former Act, to make such a determination as
may be just and equitable in order to resolve the dispute or remove the
uncertainty.
3. That, in the event of the Applicants being declared as the descendant s and
thereof heirs of the late Nompumelelo Veronica Tshali -
3.1 the Executor be prohibited from proceeding with the distribution of the
deceased’s estate according to the Liquidation and Distribution
Account which was approved by the 8th Respondent during or about
April 2022 to August 2022.
3.2 The Redistribution Agreement entered into by the 1st to the 6th
Respondents and accepted by the 8th Respondent on or about 5th April
2022 be set aside.
3.3 The Liquidation and Distribution Account drawn by the 7th Respondent
reflecting the 1st to the 6th Respondents as the heirs of the late
Nompumelelo Veronica Tshali be set aside and any distribution made
pursuant on the basis of that distribution account be declared null and
void and the ownership of the assets of the estate be restored to it
3.4 The next of kin affidavit reflecting the 1st to the 6th Respondents as the
only next of kin of the late Nompumelelo Veronica Tshali be declared
null and void or alternatively supplemented to reflect the applicant s as
her descendants.
4. That the costs of the application be granted against any of the
Responden ts who opposes the application.
5. Granting such further and/or alternative relief as this Honourable Court may
deem appropriate in the circumstances .
Factual background
[2] The first applicant in support of her case stated that the deceased took her
under her wing and accepted and raised her like her child.1
1 See para graphs 18, 19, 20, 26, 34 of the F ounding Affidavit at page 17.
[3] The first applicant sought to rely on the Reform of Customary Law of
Succession and Regulation of Related Matters Act 11 of 2009. (hereinafter referred
to as the Act) . The applicant wished to rely on the provisions of Section 1 of the Act
which defines a descendant as ‘ a person who is not a descendant in terms of the
Intestate Succession Act, but who, during the lifetime of the deceased was accepted
by the deceased person in accordance with customary law as his or her own child ’.
[4] The applicant did not meaningfully dispute the averments regarding the
requirements for a customary law adoption as illustrated by Professor Ndima, an
expert in customary law, in his report on adoption .2 In his report he inter alia stated
the following :
“…Whilst common law adoption is a public affair that is achieved through a
court order, customary law adoption is a private matter that does not involve
any state institution. Nevertheless, it calls for due attention to the significant
formality of the child’s natural father and the adoptive parent(s) entering into
an adoption agreement in a meeting of the families in the presence of the
community leader. In this meeting the adoptive parent announces that he/she
is taking the child as his/her successor. The latter acquires all the succession
rights from the adoptive parent /house; and loses those of the biological unit.
(none of these happened in this matter) All that this means is that adoption
happens neither automatically nor quietly – it happens at a significant ritual
attended by relevant clan member s because it affects the adopted child’s
family membership and or his /her clan. ”
In his conclusion and recommendations, he stated the following:
“By their own admission, the applicants in this case were never legally
adopted in the prescribed adoptive ceremony that would have rendered them
the deceased’s descendants and inte state heirs. All that they are admitting is
that the deceased benevolently pro vided them with the benefits of life to
2 See pages 147 -150 of the Updated Index to the main application.
ensure their survival and u pbringing as children of her relative(s) – thus
demonstrating tremendous Ubuntu qualities.”
[5] In this case , the sixth respondent who is the biological father of the first
applicant and the grandfather of the second applicant states that he never gave up
his parental rights and obligations to the first applicant but that the deceased had
merely taken care of her on his beha lf. There is a direct denial of any customa ry law
adoption by her biological father and there is no evidence whatsoever from the
second applicant’s father save the averment by the first respondent that the sixth
respondent had been paid damages by the appl icant’s father despite this being
disputed by the first applicant.3
[6] The first applicant in her replying affidavit instead averred that in section 1 of
the Act the definition does not state that one must have been adopted in terms of
customary law but it states that the deceased must have, during his lifetime,
accepted the person in accordance with customary law as his or her own child.4 This
is contrary to the relief she seeks in her Notice of Motion that they be regarded as
the customary adopted children of the deceased.
[7] The first applicant further failed to state that she had relinquished any of her
rights to her son, the second applicant, but merely said that the deceased had taken
over his responsibility.
[8] I shall briefly deal with the argument raised that since the dece ased had
accepted them as her own children as demonstrated by her medical aid card , the
record at the Department of Transport where the deceased worked which reflects
3 See para graph 3 of the 6th Respondent’s Opposing Affidavit at 164 and at para graph 4 he states the
following:
“For instance, there can never be adoption in terms of customary law, without involvement of the
entire family, without the family’s concurrence on the adoption of a child (a concurrence is usually
reached after a family meeti ng is held) and without a traditional celebratory ceremony where the
members of the community are informed about the adoption. The deceased would not have
unilaterally adopted the applicants without our involvement as her family and without a traditional
ceremony. In fact, on any reasonable construction of the founding affidavit; the applicants do not
assert that the deceased had an intention of adopti ng them, in terms of customary law rites. The
first applicant has simply made a series of allegations, whic h do nothing but demonstrate humanity,
compassion and ubuntu.”
4 See para graph 4.5 at page 187 of the Replying Affidavit.
them as her children and the fact that they are the beneficiaries in respect of the
deceased’s Sanlam Retirement Annuity that they are the descendants of the
deceased . If that was what the Act had envisage d, it would have stopped at the
words ‘ had accepted them as her own .’ The Act however went on to say, ‘in
accordance with customary law ’. The Act envisage d that her act of acceptance be in
accordance with the customary law.
There is no evidence that her act of acceptance was in accordance with customary
law. The deceased had not approached the biological parents to have them
relinquish their rights , nor had families undertaken a public ceremony prior to her
acceptance . There needed to be a relinquishing of rights prior to an acceptance of
the rights. A n acceptance cannot be done until and unless something is done by
another person, in this case the parents of the first applicant whereby they give up
their rights . It is only then that it can be accepted and acquired by another. The sixth
respondent expressly disputes that he has done so.5
[9] The applicants in this case: -
(a) did not state that any of the requirements of a customary law adoption
were complied with in terms of which the biological parents publicly
relinquished their rights and obligations to either applicant or the adoptive
parent accepting these rights in a public ceremony.
5 See Doreen Maureen Maswanganyi v Dhumela Cathrine Baloyi N.O & Ano 62122/2014 (GP) where
Makgoka J stated:
“[20] It is so even if the deceased regarded herself as having adopted the applicant. This is
because adoption is an agreement between the biological and adoptive parents, and never a
unilateral act. I have already found that I discern no such agreement between the deceased a nd the
applicant’s parents.”
See also Maneli v Maneli 2010 (7) BCLR 703 (GSJ) where Mokgoatlheng J held inter alia :
“[7] The rationale of Xhosa 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 society as a child of the adoptive
parents. Customary law adoption is widely practiced by Xhosas in the Eastern and Western Cape
Provinces of the Republic of South Africa.”
See also Shilubana and Others v Nwamitwa 2009 (2) SA (CC) in para 43 it was held:
“The import of this section, in the words of Langa DCJ in Bhe, that customary law ‘is protected by
and subject to the Constitutio n in its own right’. Customary law, like any other law, must accord to
the Constitution. Like any other law, customary la w has a status that requires respect. As this court
held in Alexkor v Richtersveld Community , customary law must be recognised as ‘an i ntegral 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 regulates their lives and must be treated accordingly.
(b) sought to rely on the deceased’s acceptance ignoring the fact for a binding
agreement to come into existence there needed to be a relinquishing of rights
first prior to the acceptance of the same .
(c) could not gainsay the sixth respondent’s contention, which this court must
accept having regard to the doctrine applied in Plascon - Evans6 which has
been endorsed by the Supreme Court of Appeal and the Constitutional Court.7
The sixth respondent explicitly stated that he had not relinquished his rights to
the first applicant, and it appears he even received the damages in respect of
the second applicant from the second applicant’s biological father.
(d) The first applicant also did not say that she had relinquished her rights and
obligations vis-a-viz the second applicant which was a requirement prior to the
deceased acquiring such rights and obligations irrespective of the fact that the
deceased acce pted him as her own child as well .
(e) The applicants made no averment that any customarily law formalities
were adhered to in order to establishing a customary law adoption, save that
they lived with the deceased and she provided them with support during her
lifetime.8
6 Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51: 1984 (3) SA 623 (A)
at 634E -635C.
7 In National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) the
court said the following on the principle:
“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are specia l, they cannot be used
to resolve factual issues because they are not designed to determine probabilities. It is well
established under the Plascon –Evans rule that where in motion proceedings disputes of fact arise
on the affidavits, a final order can be granted only if the facts averred in the Applicant’s (Mr Zuma’s)
affidavits, which have been admitted by the Respondent (the NDPP) together with the facts alleged
by the latter, justify such order. It may be different if the Respondent’s version consists o f bald or
uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far -fetched or so
clearly untenable that the court is justified in rejecting them merely on the papers.’ (para 26) The
Plascon –Evans rule has been emphatically endorsed by the Constitutional Court. See for example
President of the Republic of South Africa & Others v M & G Media Ltd 2012 (2) SA 50 (CC): [2011]
ZACC 32 para 34.”
See also P.M.M v D.S.M N.O and Others (5858/2019) [2022] ZAGPPHC 15 (10 January 2022):
where Khumalo J stated: -
“[33] In that case, there being factual disputes, the Plascon Evans Rule is applicable. The factual
disputes are to be resolved on the basis of the principles enunciated in the Plascon Evans Rule that
prescribes that in motion proceedings , if disputes of fact arise on the affidavits, a final order may be
granted if those facts averred in the Applicant's affidavits, which have been admitted by the
Respondent, together with the facts as stated by the Respondent, justify the granting of such relief.”
“[49] In that framework, the court has to determine whether the facts as alleged by the Applicant
do prove at least an adoption in accordance with the Xhosa Customary Law to have taken place so
as to be recognised as the descendent of the deceased.
[59] The Reform of the Customary Succession Act has now codified th e adoption by customary
law to be legal, therefore proof by the Applicant of (customary law adoption having taken place)
[10] I take cognisance of the fact that the applicants considered the deceased their
mother and guardian and accordingly they cannot be faulted for believing that they
were justly entitled to be the heirs to her estate despite this being misguided and
false having regard to both the common law and customary law. The applicants
failed to disc harge the onus resting upon them to establish their entitlement to any
relief sought in the notice of motion .
[11] The applicants unfortunately failed to demonstrate that they were entitled to
any of the relief they sought.
[12] It is rather unfortunate that the Master failed to file any report in this matter
and equally unfortunate that the family did not resolve thi s matter amicably amongst
themselves. The applicants’ belief, despite being contrary to common law and
customary law, that they were the children of the deceased who was the only real
parent they knew , cannot in the circumstances of this case be visited wi th a cost
order being granted against them. Their attorney’s failure to consider the provisions
of the Act properly whilst it may be construed as negligent is not of such a nature to
be construed as grossly reckless or negligent such as to warrant a de bonis propri is
cost order against them. I am accordingly in the exercise of my discretion disposed
to making no order as to costs.
[13] I accordingly make the following order:
(i) The application is dismissed with no order as to costs .
_________________________________
FBA DAWOOD
ACTING DEPUTY JUDGE PRESIDENT
having been accepted by the deceased during his lifetime as his own child in accordance with the
Xhosa customary law will entitle him t o be regarded as a descendent of the deceased, eligible to
inherit in terms of Intestate Succession Act. ”
Appearances
For the Applicants : Mr Mpeto
Instructed by: Graham Mpeto & Associates
26 Madeira Street
MTHATHA
For the Respondents : Adv Ntikinca
Instructed by: Z Mfiki Incorporated
63 Cnr Blakeway & Park Road
MTHATHA
Date heard 06 March 2025
Date delivered 20 May 2025