The legal implications of customary law adoptions in South Africa

Abstract

Customary law is an integral part of South African law. Various pieces of legislation were enacted under the Constitution , resulting in the statutory regulation of certain aspects of customary law. The primary rationale for doing so is improving women's and children's lives. However, the Children's Act indirectly caters for common law adoption only, and customary law child adoption is excluded. Customary law adoptions are, therefore, dealt with on a case-by-case basis. Customary law adoption is also an area where differentiation between the common and customary law systems creates inequality before the law. The legal implications of customary law adoptions are uncertain, undermining their status. Factors contributing to the uncertainties include the pre-constitutional nonrecognition of customary law, cultural considerations, and a lack of uniform judicial interpretations and other views, including interpreting customary law adoptions as informal or de facto , even under the Constitution . Determining the legal implications of customary law adoptions would require conceptualisation through analysing judicial interpretation and the Children's Act as an option for providing for customary law adoptions. However, determining the legal implications of customary law adoptions first requires understanding the context in which common and customary law adoptions operate; otherwise, legal reform results in paper law. Roman-Dutch law did not recognise adoption, but the need for regulation in South Africa was apparent. Consequently, the first South African common law adoption legislation took effect in 1924. Similarities and differences exist between adoption under Roman law and adoption under customary law. However, it is important to note that the similarities do not mean that customary law adoptions must be assumed to be purely family-centred instead of child-centred. Customary law adoptions have developed, and adoption under customary law is an established practice. On the other hand, Roman law did not affect adoption in Holland; as mentioned, adoption in Roman-Dutch law was not recognised. Therefore, no legal consequences were attached to adoption agreements in the Cape. Yet, a need for regulation arose. The 1923 adoption legislation that took effect in 1924 and the three acts that preceded the Children's Act clarified the legal consequences of adoptions. Informal, unofficial or de facto adoptions did and still do not attract legal consequences under common law. Meanwhile, customary law showed resilience and communities continued to practice their adoption laws in accordance with African values and the workings of the African family. In the African family, a child "belongs". Depending on the parents' marital status, a child may refer to more than one person as "father" and belong to either the father's or the mother's family. Consequently, consent from a to-be-adopted child's biological father or mother is not necessarily needed for a customary law adoption. Members of an African family know that one lives "through" other people. Though African values aim to ensure that every child has a home, the reality is that many African children need a family. Customary law adoptions also occur outside the family set-up, and different "forms" of customary law adoptions have developed; several types of customary law adoptions exist within and outside the family. The motive(s) behind customary law adoption is multi-faceted. The adoptions may not be dismissed for being conducted to save a family from extinction and not having regard for a child's best interests, though the matter of a child's best interests is a study on its own. The generic requirements of a valid customary law adoption are an adoption agreement between the families and the publication of the adoption. Reporting the adoption to a traditional leader was established as a relative requirement as opposed to being obligatory. However, the reality is that there are many practical reasons (such as keeping children safe) why reporting and keeping a record of customary law adoptions should be a validity requirement. Specifics pertaining to customary law adoption agreements and publication must not be unclear. The continued existence of uncertainties in this respect would lead to the piece-meal recognition of customary law adoptions and interpreting, viewing and branding them as de facto , leading to the overall devaluing of the status of customary law. This thesis enquired into the legal implications of customary law adoptions. Determined legal implications of customary law adoptions include conferring ilobolo rights in an adopted daughter on the adoptive parent(s) and conferring an obligation on the adopted parent(s) or their family to deliver ilobolo for their adopted son's first iv marriage. In the context of customary law adoptions, ilobolo does not amount to the buying and selling of a child. The adopted child is provided with their adopted parent(s)’ surname and is recognised as their intestate heir with a right to succession. The child has a right to maintenance, too. With customary law adoption, the status of several role-players changes. However, the status of the child and other relevant people may change without the biological parent(s) or the child consenting to the adoption. In some instances, valid adoption also takes place by being inferred. While showing regard for the context in which customary law adoptions operate, legislation must clarify the legal implications of customary law adoptions. The Children's Act must recognise customary law adoptions, particularly removing the risk of abolishing otherwise valid customary law adoptions through the 2020 Children's Amendment Bill .