The Eastern Cape High Court's judgment in Tshali v Nandi and Others highlighted a significant and recurring issue within many African communities namely the appointment and recognition of guardianship over children, and the frequent failure to comply with the requisite procedures prescribed by both the common law and customary law.
This non-compliance sometimes arises from a genuine belief that customary law has been followed, when in actual fact customary law procedures have not been observed. This judgment also highlights the need to follow the correct customary procedures and further illustrates the need for making customary law more accessible to those who want to rely on it.
Factual background
In the abovementioned case, Nandipha Tshali (“Ms Tshali”) and her child Lubabalo Tshali (“Lubabalo”) sought inter alia the following declarations from the Eastern Cape Division of the High Court of South Africa:
- Ms Tshali and Lubabalo are customarily adopted children or descendants of the late Nompumelelo Veronica Tshali (“the deceased”), who passed on without a Will, and, consequently, are her intestate heirs; and
- The siblings of the deceased who were cited as the first to sixth respondents (“the deceased's siblings”) are not the intestate heirs of the deceased.
There were other ancillary orders that were sought by Ms Tshali and Lubabalo, such as the setting aside of the Liquidation and Distribution Account that reflects the deceased's siblings as the heirs of the deceased, a declaration that any distribution made pursuant to the Liquidation and Distribution Account is null and void and the ownership of the assets of the deceased's estate be restored to the estate.
In support of the relief sought, Ms Tshali and Lubabalo argued that the deceased accepted and raised them as her own children. They contended that this relationship was evidenced by several factors: firstly, their inclusion on the deceased's medical aid card; secondly, records from the Department of Transportation, where the deceased was employed, which listed Ms Tshali and Lubabalo as her children; and thirdly, the fact that they are named as beneficiaries and referred to as the deceased's descendants in her Sanlam Retirement Annuity.
Ms Tshali and Lubabalo also relied on section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009 (“the Act”). Section 1 of the Act 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”. [own emphasis added]
It was noted by the court that Ms Tshali and Lubabalo did not meaningfully dispute the averments on the requirements for customary law adoption, which were set out by Professor Ndima, a customary law expert, in his report on adoption. In his report, Professor Ndima asserted that:
“…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 members because it affects the adopted child's family membership and or his /her clan”.
In opposing Ms Tshali's claim, Ms Tshali's biological father (who is the deceased's brother) contended that he has never relinquished his parental rights and obligations in respect to Ms Tshali. He further argued that the deceased merely took care of Ms Tshali on his behalf. In respect to Lubabalo, Ms Tshali's father asserted that he received damages from Lubabalo's biological father. In this regard, Ms Tshali's biological father denies that there had been any customary law adoption of both Ms Tshali and Lubabalo.
Court's findings
The court ultimately found that Ms Tshali and Lubabalo failed to discharge the onus resting upon them for the relief sought and dismissed their case for the following reasons:
- Section 1 of the Act requires the deceased to have considered Ms Tshali and Lubabalo as her own in accordance with customary law. Thus, the Act envisaged the act of acceptance by the deceased to be done in accordance with customary law.
- There was no evidence that the deceased's act of acceptance was in accordance with customary law. The deceased had not approached Ms Tshali's biological parents to have them relinquish their rights, nor had families undertaken a public ceremony prior to deceased's acceptance.
- Ms Tshali also did not mention that she had relinquished her rights and obligations in respect to Lubabalo.
- Ms Tshali did not provide evidence which contradicts her father's contentions. The court therefore accepted Ms Tshali's father's contention.
- Ms Tshali and Lubabalo made no averment that any customarily law formalities were adhered to in order to establish a customary law adoption, save that they lived with the deceased, and she provided them with support during her lifetime.
Conclusion
The court appreciated that Ms Tshali and Lubabalo considered the deceased as their mother and guardian. In these circumstances, the court held that a cost order ought not to be awarded against them. The court further held that 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 grossly negligent, such as to warrant a de bonis propriis cost order against him. The application was dismissed with no order as to costs.
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