CONCEPTUALISING CUSTOMARY LAW ADOPTIONS IN SOUTH AFRICA: THE MOTIVE(S) OR REASON(S) BEHIND, AND REQUIREMENTS OF, A VALID CUSTOMARY LAW ADOPTION

Abstract

An adoption can be legally effected under customary law. The motive(s) or reason(s)1 behind customary law adoption are multifaceted. Social anthropologists have identified several reasons for the adoption of children in Africa, including childlessness and providing for orphans and abandoned children. Customary law adoption should not be dismissed for being conducted only to save a family from the termination of its lineage and not having regard for a child’s best interests (one should of course remain cognisant of the fact that the matter of a child’s best interests involves a wholly distinct matter in own right). Still, though African children “belong” to an extended family and are cared for within such a family, the reality is that many children need a home. It is, therefore, unfortunate that, for various reasons, the specifics pertaining to the validity requirements for customary law adoptions are uncertain. The Children’s Act also does not mention customary law adoptions at all. The continued existence of uncertainties in this respect has led to the piecemeal recognition of customary law adoptions and interpreting, viewing and, in some instances, branding them as de facto, leading to the overall devaluing of the status of customary law. However, the latter is not the focus of the discussion here. Instead, this paper conceptualises customary law adoptions by critically discussing the reasons behind them and unravelling their validity requirements as a step towards considering future law reform in the interest of legal certainty. An analysis of case law sheds light on the requirements, with some reference to the Children’s Act. The generic requirements of a valid customary law adoption are confirmed as an adoption agreement between the families and the publication of the adoption, whilst reporting the adoption to a traditional leader is established as a relative requirement (as opposed to being obligatory). Yet, many practical reasons exist (such as keeping children safe) for reporting and keeping a record of customary law adoptions as a validity requirement. Consequently, the specifics pertaining to customary law adoption agreements, publication, reporting, and record-keeping must not be uncertain.