Cultural adoptions carry weight in law
The rights of children adopted under cultural law have been recognised in a groundbreaking determination by the ombudsman for long-term insurance.
In a ruling against Metropolitan Life, Judge Ron McLaren, the ombudsman, said customary adoption has the same legal consequences as a state adoption and it cannot be said that only adoptions under the Children’s Act are recognised by the office of the ombudsman.
The case, which is highlighted in the ombudsman’s latest annual report, arose after the uncle of a 16-year-old boy claimed under his funeral policy after his nephew died in an accident. The man had adopted his sister’s child under customary law and listed the boy as a child in the policy which included a benefit of R20 000 for the funeral of any immediate family members.
The insurer, Metropolitan Life, declined the claim, insisting that the adoption was not legal until it had been confirmed by the Children’s Court and the deceased boy was registered by the Department of Home Affairs as the man’s adopted child.
The uncle was forced to take out a loan from African Bank to bury his nephew.
A school teacher who assisted the uncle with his complaint submitted affidavits from the child’s biological mother and father and stepfather as well as letters from two headman to prove that the child had been publicly adopted under customary law.
After receiving the explanation and evidence of the customary adoption, Metropolitan Life then agreed an order of the Children’s Court would not be necessary saying: “We again applied our minds on this and are satisfied that customary adoptions fall outside of the adoption process as envisaged in the Child Care Act”.
However, it continued to challenge the validity of the customary adoption and argued that not all the requirements for one were met.
At a meeting of adjudicators from the ombudsman’s office, McLaren found that as there was a dispute of fact, the case could not be resolved on written correspondence and that a hearing should be held.
Under the rules of the office, both a complainant and the life insurer must agree to a hearing. The boy’s uncle was prepared for a hearing but Metropolitan Life did not agree and said the dispute was best dealt with in a court of law.
The teacher then wrote to the ombudsman criticising the refusal to agree to a hearing as “unfair” and said that its intention was to make methods of proving customary adoption difficult and putting them “beyond the means of most black African families” because litigation is expensive.
Being denied a hearing would be grossly unfair to the boy’s uncle and to many children adopted in terms of customary law, he said. It was also not in line with the objectives of the constitution which is geared towards the greater protection of children, even those living under customary law.
McLaren agreed with the teacher that African customary law must be seen as an integral part of our law and that it depends for its validity on the constitution. He then instructed Metropolitan Life to reassess the claim on the basis that the chils was legally adopted
The constitution is geared towards the greater protection of children.