Child adoption is the process where the parental authority over a child is legally transferred from the biological/birth parents of the child to the parents seeking to raise the child as their own. Once this process has been completed the parental authority and parental rights and responsibilities over the child completely rest on the adoptive parents. The adoption process is regulated by the Children’s Act 38 of 2005.

Who is eligible to adopt?

1. Spouses/partners in a life partnership or other persons sharing and forming a permanent home;
2. A widow/er, unmarried or divorced person;
3. The spouse of the child’s parent, i.e., the stepparent of the child; and
4. The father of a child born out of wedlock.

Previously same-sex couples were excluded from being able to adopt children. However, this was changed in the case of Du Toit v Minister for Welfare and Population Development [2002] ZACC 20, 2003 (2) SA 198 (CC) where it was unanimously decided, as per the judgment of Skweyiya AJ, that the provisions of the Child Care Act 74 of 1983 (sections 17(a), 17(c) and 20(1)) and of the Guardianship Act 192 of 1993 (section 1(2)), which reserved the possibility of adopting children to heterosexual married couples and single persons only, violated the Constitution and most importantly, the equality clause, as this exclusion was discriminatory against same-sex couples (based on sexual orientation and marital status). This decision therefore made co-parent adoptions by a same-sex partners possible.

Consent

Consent is written permission by the biological/birth parent/s or the legal guardian/s of the child that is given to the potential adoptive parents to adopt the child. A child who is 10 years or older may also give consent to the adoption. The parent/guardian of a child who has given consent to adoption has the right to withdraw such consent before 60 days lapses. A Children’s court will only make a final order of adoption after the 60 days has lapsed.

Consent for adoption is not required if: the child is an orphan and has no guardian; the parent/guardian is incompetent to give consent; the parent/guardian has abandoned the child or their whereabouts or identity are unknown; the parent/guardian has neglected or abused the child; the parent/guardian has failed to fulfil the parental responsibilities towards the child for a period of 12 months consistently; a court has given an order removing powers from the parent/guardian to give consent; the parent/guardian has failed to respond to the notice of the proposed adoption as per section 238 of the Children’s Act within 30 days of the sheriff of the court having served the notice; if the child was conceived through incest; if  the mother alleges and the court finds (on a balance of probabilities) that the child was conceived through rape of the mother (even though such finding does not constitute a guilty verdict or conviction of the crime of rape); the parent/guardian is the father of the child who was not married to the mother at the time  the child was conceived and has not acknowledged that he is the biological father of the child.

Should written consent be given by the parent/guardian of the child to the prospective adoptive parents and the court gives an order of adoption after the 60 days has lapsed, the Department of Home Affairs, according to section 25 of the Child Care Act 74 of 1983, must record the adoption of the chid in the child’s birth register at the adoptive parents’ request.

Customary law adoption

Customary law adoption was highlighted in the cases of Kewana v Santam Insurance Co. Ltd 1993 (4) SA 771 (TkA) at 776 B, Metiso v Padongeluksfond 2001 (3) SA 1142 (T) and Maswanganye v Baloyi [2015] ZAGPPHC 917. In the case of Metiso the court heard the expert evidence of Professor Maithufi who described customary adoption as follows:

The relatives are called to a meeting where the envisaged adoption is to take place. After this meeting, the adoption has to be reported to the traditional leader of the area or his or her representative. The formalities relating to the agreement between the families of the adopted child and the adoptive parent(s), as well as the report to the traditional leader or his or her representative are aimed at indicating that the adopted child has been formally transferred from one family to another…Even in cases where adoption was not reported to the traditional leader, the adoption would still be valid if due publicity was given to the process and there was agreement between the families of the adopted child and the adoptive parent(s). The validity of an act of adoption in terms of customary law largely depends upon the agreement between these families. A traditional ceremony which may involve the slaughtering of small livestock is normally held to mark the adoption.

In the Baloyi case, the court acknowledged that both the Kewana and Metiso cases relied on the publicity, in the form of a small ceremony, of the customary adoption as a weighty requirement when it comes to considering its validity.

In the case of Maneli v Maneli [2010] ZAGPJHC 22, 2010 (7) BCLR 703 (GSJ) the parties had married each other in community of property after having first concluded a customary law marriage. The parties then decided to adopt. The customary law adoption was done according to the Xhosa customary law. Certain rites and rituals are performed to proclaim and signify to the world that the adoptive parents have formally accepted parental responsibility for the minor child. The child was thereafter accepted and regarded by society as a child of the adoptive parents. Following the customary law adoption, the parties approached the Department of Home Affairs to have the minor child registered “as their own”. The couple then decided to separate. The minor child still regarded the respondent as her father even after the couples’ separation. After the breakdown of the marriage, the applicant lodged a maintenance claim against the respondent in terms of Section 10 of the Maintenance Act 99 of 1998.

The issue before the court was whether the respondent who has not adopted the minor child in terms of the Child Care Act 74 of 1983 or the Children’s Act 38 of 2005 is legally obliged to pay maintenance for the minor child as envisaged by Section 10 of the Maintenance Act, i.e., whether child maintenance applies under customary law adoption.

The court took into consideration the best interests of the child as provided for in Section 9 and Section 7(1)(c) and (d) of the Children’s Act. The court also found that Xhosa customary law is not in any in conflict with the Bill of rights, Section 18(1)(a) of the Child Care Act or even public policy. Section 211(3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. The court considered that customary law ought to be developed as stipulated in section 39(2) of the Constitution. The court then held that the development of customary law in this matter is consistent with promoting the best interest of the minor child as envisaged in Section 28(2) of the Constitution.

The court found that the respondent had a legal duty to maintain the minor child as a consequence of the development of the common law and customary law in accordance with the Bill of Rights and promotes the values that underlie an open and democratic society based on human dignity, equality and freedom (section 39(2) of the Constitution).

The court further 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 applicant and respondent.

Author: Samke Mbuthuma (LLB) (LLM) UKZN

Legal intern: Sister In Law

@snmbuthuma on Instagram