South Africa: Court declares Soweto woman customary law heir to prevent eviction
On 8 May 2012, the Johannesburg High Court declared that a girl taken in and treated as a daughter by a woman in Soweto could inherit as her customary law heir. Judge Coppin declared the daughter (who prefers to remain anonymous and will be referred to as ‘Ms K’) to be the descendant of a woman who died intestate in 2006. This was despite the fact that the woman never formally adopted Ms K and was not her birth mother. Lawyers for the Socio-Economic Rights Institute (SERI) successfully argued that Ms K had been adopted in terms of customary law and should be recognised as her mother’s descendant in terms of the Reform of Customary Law and Succession and Regulation of Related Matters Act 11 of 2009.
In 1992, Ms K was taken in by the Soweto woman, who treated her as more than just a foster child, and by agreement with Ms K’s biological mother, changed her surname to her own. For almost 15 years, the two women lived together as daughter and mother, with the woman even informing Ms K’s school that she was her mother. Ms K barely saw her birth mother, and had no familial relationship with her.
In 2006, Ms K’s mother died intestate and without having formally adopted Ms K in terms of the Child Care Act 74 of 1983. She had no other biological or adoptive children. Ms K was left to look after a disabled man and a 17 year-old girl, who were being cared for by her mother until the time of her death. Soon after, one of Ms K’s cousins started harassing her and removing furniture from the house. On the basis that he was Ms K’s mother’s surviving natural heir, he had Ms K’s home transferred into his name, and brought an application to evict Ms K and the two other occupants from their Soweto home.
Lawyers from SERI then stepped in, arguing that Ms K, while not adopted in terms of the Child Care Act, had been adopted in terms of customary law. In terms of the Customary Law and Succession Act, customary adoption practices are recognised and protected.
Teboho Mosikili, SERI attorney acting for Ms K, said "This is a great result. Our client fully deserves to be treated as her adoptive mother’s heir, and has experienced many years of pain and insecurity after her mother's death. We are all very happy that her claim to be recognised as her mother’s descendant has been upheld. I have no doubt that this is what her mother intended before she died."
Dr Julian Brown, of the National Research Foundation Chair in Local Histories and Present Realities at the University of the Witwatersrand gave expert evidence on behalf of Ms K. He said "It is important that customary law be recognised and protected in practice. Customary law is an active part of many people's lives in South Africa. Its precepts must be given effect to, especially where, as here, substantial injustice and hardship would otherwise have resulted."
Ms K was represented in court by Advocate Nkosikhona Gama.
Contact details:
Teboho Mosikili, attorney at SERI: 072 248 2199 / [email][email protected]
ENDS