Customary Law Adoption and Succession: The Importance of Following Proper Procedures

Case Law Discussion: Tshali and Another v Nandi and Others

Introduction: Legal Principles in Customary Law Adoption

Customary law plays a significant role in the lives of many South Africans, particularly regarding family matters such as adoption and succession. Customary law operates alongside common law and statutory law, but it has its own specific procedures and rituals that must be followed for legal recognition. In matters of inheritance, the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009 (“the Act”) is crucial. Section 1 of the Act expands the definition of “descendant” to include persons accepted as children in accordance with customary law, even if they are not biological children. However, for such acceptance to have legal effect, it must strictly comply with customary law procedures.

Facts of the Case

• Parties Involved:
  Ms Nandipha Tshali (“Ms Tshali”) and her child, Lubabalo Tshali (“Lubabalo”), brought an application before the Eastern Cape High Court, Mthatha, following the death of Nompumelelo Veronica Tshali (“the deceased”) who died intestate (without a will).
• Claims:
  Ms Tshali and Lubabalo sought to be declared the customarily adopted children (descendants) of the deceased and therefore her intestate heirs. They also wanted the court to set aside the Liquidation and Distribution Account that listed the deceased’s siblings as heirs, and to restore the estate’s assets.
• Basis of Claim:
  They argued that the deceased had accepted and raised them as her own children, citing:
• Their inclusion on her medical aid card
• Employment records listing them as her children
• Their status as beneficiaries in her retirement annuity
• Section 1 of the Act, which allows for recognition of non-biological descendants if accepted under customary law

Customary Law Requirements for Adoption

The court relied on an expert report by Professor Ndima, which set out that:

• Customary law adoption is a private affair but must follow significant formalities.
• The process requires:
• A meeting between the natural father and adoptive parent(s) in the presence of the community leader
• A public announcement by the adoptive parent, accepting the child as a successor
• Attendance by relevant clan members, as it affects family membership and clan affiliation
• None of these formalities were proven to have occurred in this case.

Respondents’ Position

• Ms Tshali’s biological father (the deceased’s brother) contested the claim, stating:
• He never relinquished his parental rights over Ms Tshali.
• The deceased merely cared for Ms Tshali on his behalf.
• In Lubabalo’s case, he had received damages from Lubabalo’s biological father, indicating no adoption had taken place.

Court’s Decision

The court found that Ms Tshali and Lubabalo had not met the burden of proof required to be recognized as customarily adopted children and thus intestate heirs:

• Key Findings:
• The Act requires acceptance “in accordance with customary law,” not merely informal acceptance.
• There was no evidence of:
• Parental rights being relinquished by biological parents
• A public family meeting or ceremony
• Any customary law formalities being followed
• Ms Tshali did not dispute her father’s account or provide evidence of customary adoption rituals.
• Their evidence only showed that the deceased supported them and treated them as her own, but this was insufficient for legal recognition under customary law.
• Outcome:
• The application was dismissed.
• No cost order was made against Ms Tshali and Lubabalo, as the court acknowledged their genuine belief and emotional attachment to the deceased.
• The attorney’s oversight in not properly considering the Act was not deemed grossly negligent.

Conclusion

The Tshali v Nandi and Others case underscores the critical importance of strictly following customary law procedures for adoption if such relationships are to be recognized for inheritance purposes. Emotional bonds, financial support, and informal acceptance, while meaningful, do not fulfil the legal requirements under customary law or the Act. The court’s decision highlights that:

• Customary law adoption must be formalized through recognized rituals and community involvement.
• Failure to follow these procedures means that individuals cannot claim intestate succession rights as descendants under customary law.
• Legal practitioners must ensure that customary law requirements are fully understood and complied with when advising clients on inheritance and family law matters.