TINA HOKWANA | Customary law adoptive parents legally bound to maintain their children

“If a child is recognised customarily and paid lobola for by the stepfather, can they inherit legally like natural children?, asked @ramoroaswi on Twitter recently.

The South Gauteng High Court in Maneli v Maneli was called to determine whether the Magistrate’s conclusion that the respondent (husband) had a legal duty to maintain the minor child he and the applicant (wife) adopted in terms of Xhosa customary law, and in holding that in this matter she (the Magistrate) was entitled to develop customary law in terms of sections 39(2) and (3) of the Constitution, was correct.

The facts

The parties married each other in community of property after having first concluded a customary law marriage. No children were born from this marriage. In January 1997 at the insistence of the respondent, the parties adopted an eight-month old baby girl according to Xhosa customary law. The minor child’s biological parents were deceased.

The court recognised that customary law adoption is widely practised by people in the eastern and western cape provinces. Certain rites and rituals are performed 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.

These rituals were performed when the adopted child was taken into the parties’ home. The child was 12 years-old when the matter appeared before the South Gauteng High Court and a fully developed parental and child relationship existed.

Pursuant to the customary law adoption, the parties approached the department of home affairs in Westonaria and registered the minor child “as their own”. The respondent (father) maintained the minor child and paid for her educational and medical needs.

The minor child was emotionally and psychologically attached to the father, to such an extent that even after the parties separated in March 2004, the minor child still regarded the respondent as her father.

After the breakdown of the marital relationship, the applicant (mother) lodged a maintenance application against the respondent in terms of Section 10 of the Maintenance Act at the Westonaria Magistrate’s Court. Magistrate Khan found that the respondent had a legal duty to maintain the customary law adopted minor child.

The issue was before the South Gauteng High Court in Johannesburg. 

At the centre of it was whether the respondent who has not 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 Maintenance Act.

The common law, the Constitution, the Maintenance Act, the Child Care Act and the Children’s Act are the legal sources which affect this issue.

The legal framework

The respondent’s counsel argued that the court could not issue any maintenance order against the respondent because in terms of sections 6(1)(A) and 15(3)(a)(iii) of The Maintenance Act and section18 of the Child Care Act 74 of 1983, because 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. Consequently he was not legally obliged to maintain the minor child.

Section 15(3) of the Maintenance Act provides that an adopted minor child be for all purposes regarded as a legitimate child of the adoptive parents as though it was born from such parent or from his or her marriage.

Section 28(2) of the Constitution states that a child’s best interests are of paramount importance in every matter concerning the child.

Section 211(3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

In determining the best interests of the child, the court made reference to section 9 of the Children’s Act. The section provides: “In all matters concerning the care, protection and wellbeing of a child the standard that the child’s best interest are of paramount, must be applied.”

Section 7(1)(c) and (d) of the Children’s Act which provides that the factors to be taken into consideration when applying the standard of the best interest of the child, includes the nature of the personal relationship between the child and the parent(s), the attitude of the parents towards the child and the exercise of the parental rights and responsibilities in respect of the child, the capacity of the parents to provide for the needs of the child, including emotional and intellectual needs and the likely effect on the child of any change in the child’s circumstances, including the effect on the child of any separation from either of the parents.

The court held that the words “for the adoption of children” enunciated in the preamble of the Child Care Act should be read 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.

In its determination, the court held that in terms of Xhosa customary law, the respondent and applicant both have a legal 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 without legal sanction and that the legal duty to maintain the minor child under customary law is legally enforceable.

The court concluded that “the respondent has a legal duty to maintain the minor child as a consequence of the development of the common law and customary law in accordance with the precepts of the Bill of Rights and promotes the values that underlie an open and democratic society based on human dignity, equality and freedom.”

The court further held that the director-general of the department of home affairs is ordered in terms of s2 of the Births and Deaths Registration Act 51 of 1992 to register the minor child as the adopted child of the applicant and respondent.

The court ordered the Magistrate of the Westonaria Maintenance court to determine the amount of maintenance that the respondent should contribute towards the minor child.

Judgment: Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010).