The Children’s’ Act[1]defines an ‘adopted child’ as a child adopted by a person in terms of any law. Understandably so, the matter of the validity of cultural or customary[2]law adoptions has come into scrutiny over the years. The nature and the legalities around cultural adoptions have been considered on various legal platforms with including the Long Term Insurance Ombudsman. In a determination made under Case 28 of 2018[3] the Long Term Insurance Ombudsman dealt with the question of whether a child who has been adopted in terms of the customary law could be regarded as legally adopted in terms of the then Child Care Act which has since been replaced by the Children’s’ Act.

 

In Case 28 the Complainant had approached the Ombudsman after he had claimed a funeral benefit subsequent to the passing of his nephew (born by the Complainant’s sister). The Complainant claimed the “immediate family benefit” which extended to an insured’s “own, step or legally adopted unmarried child who is younger than 21.”[4]The Complainant could have used alternative avenues to claim for non- immediate family at an extra cost but he declined to do so because stood by the fact that his nephew was his legally adopted child.[5]The insurer Metropolitan Life denied the complainant’s claim offering the Complainant a reduced cover amount until he could provide legal adoption documentation to substantiate the adoption.[6]

 

The complainant now sought to make his case before the Ombudsman. To substantiate the validity of the adoption the Complainant provided an affidavit by his deceased nephew’s  mother and a document signed by Induna on a letterhead of the Traditional Council as evidence that there was an agreement equivalent to an adoption agreement between deceased child parents that the child would now be the Complainant’s child in terms of customary law. A decision was then made by all the adult parties involved that it would be in the best interest of the child for him to maintain his biological father’s surname which no way impacted the validity of the adoption.[7]

 

The complainant’s representative further cited authority stating that since cultural adoptions are done in full view of community and publicly known to the community “the adoption should be regarded as valid even in cases where there is no court order of the magistrate’s court of the district in which the child resides”[8]

 

Ultimately the Ombudsman foundthat, based on the evidence before it, the Insurer was compelled to assess the Complainant’s claim on the basis that the deceased was his legally adopted child. This position was in line with precedent on cultural adoption including the case of Maneli v Maneli[9]where the Court found that that the recognition of customary law is expressly provided for in our Constitution[10]and that as long as such a customary adoption was in the best interest of the child it should be given effect and deemed to be a legally valid adoption in terms of common law as well as the Constitution.[11]The Court further emphasized that precedent showed that even in instances where the customary adoption was incomplete or did not comply with all the statutory requirements it was up to the Court to consider the merits of the case and still give effect to the customary adoption if it was in the best interest of the child.[12]In the case of Maswanganye v Baloyi N.O and Another[13]the court outlined some principles for determination of the validity of a customary adoption which is not registered.  Some of the factors highlighted by the Court included a)proof of an agreement between biological and adoptive parents, b)the nature of the relationship between the child and alleged adoptive parent/s and  c) the degree of assumption of parental rights and responsibilities by the adoptive parents.[14]

 

 

[1]38 of 2005.

[2]Described hereafter under the single term “cultural adoptions” which should be taken to mean customary/ cultural adoptions.

[3] CR- 28 accessible at: https://www.ombud.co.za/useful-information/final-determinations

[4]CR- 28 para 3.

[5]Ibid.

[6]CR- 28 para 4.

[7]CR-28 para 8.

[8]CR-28 para 29.1.

[9][2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010).

[10]At para 20.

[11]At para 23.

[12]At para 30 & 31.

[13](62122/2014) [2015] ZAGPPHC 917 (4 September 2015).

[14]At para 16- 22.