Cul­tural adoptions carry weight in law

Sowetan - - Your Money - By Char­lene Steenkamp

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

/ 123RF

The con­sti­tu­tion is geared towards the greater pro­tec­tion of chil­dren.

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