Judge Ratha Mokgoatlheng made the order after a woman approached the court to force her former husband to pay maintenance for their 12-year-old girl.
The parties decided to adopt in terms of Xhosa customary law an eight months old female minor child whose biological parents had died. The minor child was lawfully adopted by the parties in terms of Xhosa customary law subsequent to the performance of Xhosa traditional rites and rituals
The cardinal issue was whether the respondent who had not lawfully adopted the minor child in terms of the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005 was legally obliged to pay maintenance for the minor child.
The advocate for the father tried to argue that the court could not issue any maintenance order against his client, because he father was not the biological parent and had never legally adopted the minor child.
The court turned to various sections of the Constitution:
Section 28(2) of the Constitution provides: “A child’s best interests are of paramount importance in every matter concerning the child”.
Section 211 (3) provides: “The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.”
Section 30 of provides: “Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”
Section 39(1): “When interpreting the Bill of Rights, a court, tribunal or forum-
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
Section 39(2) provides: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”.
The court found that The Bill of Rights does not eschew the existence of Xhosa customary law of adoption. In fact the Xhosa customary law of adoption promotes the values that underlie an open and democratic society based on human dignity, equality and freedom, nor is it anathema to public policy or contra bonos mores.
Under the common law, a judicial act is required in order to effect an adoption. Xhosa customary law of adoption is not in conflict with The Bill of Rights or section 18(1)(a) Child Care Act 74 of 1983 and sections 23 and 25 of the Children’s Act No 38 of 20005, decree that adoption or guardianship must be effected by an order of the Children’s Court.
Section 9 of the Children’s Act No 38 of 2005 provides: “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest are of paramount, must be applied.”
The development of customary law in this matter is consonant with promoting the best interest of the minor child as envisaged in Section 28 (2) of the Constitution.
The recognition of the duty to maintain a minor child in terms of customary law and the civil law is reconcilable with the common law and a Bill of Rights. The logical extension and development of the common law to accommodate customary law adoption is not inconsistent with the prescripts of The Constitution.
In terms of Xhosa customary law the respondent and applicant both have a 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. The legal duty to maintain the minor child under customary law is legally enforceable. There is no reason why such legal duty having regard tosection 39(2) of the Constitution Act should not be enforceable against the respondent under the common law or customary law.
The court thus ordered The Director General of the Department of Home Affairs in terms of section 2 of The Births and Deaths Registration Act 51 of 1992 to register the minor child as the adopted child of the adoptive parents and ordered the Magistrate of the Westonaria Maintenance Court to determine the amount of maintenance to be contributed by the father to the mother towards the maintenance of the minor child .
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