Nandipha Tshali and Another v Nokwanela Abegail Nandi and Others

The deceased, Nompumelelo Veronica Tshali, died intestate. The first applicant (Nandipha Tshali) was the biological daughter of the sixth respondent, and the second applicant (Lubabalo Tshali) was the first applicant's son and grandson of the sixth respondent. The applicants claimed they were customarily adopted by the deceased, who raised them and accepted them as her own children. The deceased supported them financially, listed them on her medical aid card, reflected them as her children in her employment records, and named them as beneficiaries in her retirement annuity. The applicants sought to be declared the deceased's customary adopted descendants and intestate heirs under the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The first to sixth respondents were the deceased's biological siblings who opposed the application. The sixth respondent, as the first applicant's biological father, denied ever relinquishing his parental rights and stated the deceased merely cared for his daughter on his behalf. No evidence was presented that any customary law adoption ceremony or formalities were conducted, including family meetings, agreements between biological and adoptive parents, or public ceremonies before the community.

• Whether the applicants qualified as 'descendants' of the deceased under section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
• What constitutes acceptance 'in accordance with customary law' for purposes of establishing descendant status under the Act
• Whether the requirements for a valid customary law adoption were met in the absence of formal ceremonies, family agreements, and relinquishment of parental rights by biological parents
• Whether factual disputes on affidavits should be resolved according to the Plascon-Evans rule in motion proceedings

The application was dismissed with no order as to costs

For a person to qualify as a 'descendant' under section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, they must have been accepted by the deceased 'in accordance with customary law' as the deceased's own child. This requires compliance with customary law adoption formalities, which include: (1) an adoption agreement between the biological parent(s) and the adoptive parent(s); (2) a meeting of the families in the presence of the community leader; (3) a public announcement and ceremony where the adoptive parent announces taking the child as his/her successor; and (4) relinquishment of parental rights by the biological parents prior to acceptance by the adoptive parents. Customary law adoption is not a unilateral act but requires agreement between biological and adoptive parents. Mere factual care, support, and acceptance of a child, even if demonstrated through listing the child on official documents or as beneficiaries, is insufficient to constitute adoption 'in accordance with customary law' without compliance with the prescribed formalities. The biological parent's explicit denial of having relinquished parental rights is fatal to a claim of customary adoption.

The court observed that it was unfortunate the Master of the High Court failed to file any report in the matter and that the family did not resolve the matter amicably amongst themselves. The court expressed sympathy for the applicants' genuine belief that they were the children of the deceased, who was the only real parent they knew, and distinguished this from bad faith litigation. The court noted that while the applicants' attorney may have failed to properly consider the provisions of the Act, this failure was not of such a nature to be construed as grossly reckless or negligent as to warrant a de bonis propriis costs order against the attorney. The court emphasized that had the Act intended mere acceptance to suffice, it would have stopped at the words 'had accepted them as her own' without adding the qualifying phrase 'in accordance with customary law'. The court noted that customary law, like any other law, must accord with the Constitution and has a status that requires respect as an integral part of South African law and an independent source of norms within the legal system.

This case provides important clarification on the requirements for customary law adoption in South Africa, particularly in the context of intestate succession under the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. It establishes that the phrase 'accepted in accordance with customary law' in section 1 of the Act requires strict compliance with customary law formalities, not merely factual acceptance or care. The judgment reinforces that customary law adoption is an agreement requiring relinquishment of parental rights by biological parents and formal acceptance by adoptive parents through prescribed ceremonies involving families and the community. It distinguishes between acts of Ubuntu and compassion (informal care and support) and legally recognized customary adoption. The case is significant for estate administration and succession planning in customary law contexts, clarifying that documentary evidence of a child being listed as a dependant or beneficiary is insufficient to establish customary adoption. It also demonstrates the application of the Plascon-Evans rule in succession disputes involving customary law.