Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010)

Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010)

The court held that Xhosa customary law adoption is a recognised and established institution, widely practised and accepted in South Africa. The Constitution does not abrogate rights conferred by customary law, provided they are consistent with the Bill of Rights. The best interests of the child, as enshrined in the Constitution and the Children's Act, require that the minor child adopted under customary law be afforded the same legal protection and maintenance rights as a child adopted under statutory law. The court found that the respondent, having adopted the child under customary law and acted as a parent, has a legal duty to maintain the child. The development of the common law and...

Citation
[2010] ZAGPJHC 22
Parties
Applicant: Nobongile Sweetness Ria Maneli; Respondent: Zandisile Garnet Maneli
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 April 2010
Case Number
14/3/2-234/05
Procedural Posture
Special Review / High Court Review of Magistrate's Maintenance Order
Outcome
The court confirmed the legal duty of the respondent to maintain the minor child adopted under Xhosa customary law and ordered the child to be registered as the adopted child of both parties.
Judges
Mokgoatlheng
Legal Topics
Customary Law Adoption, Maintenance of Children, Best Interests of Child, Development of Common Law, Bill of Rights Application, Judicial Notice of Customary Law
Family and Children Civil Procedure Constitutional Law Customary Law Adoption Maintenance of Children Best Interests of Child Development of Common Law Bill of Rights Application +1 more

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Parties

Nobongile Sweetness Ria Maneli

Applicant

Zandisile Garnet Maneli

Respondent

Procedural Posture

Special Review / High Court Review of Magistrate's Maintenance Order

Legal Issues

  1. 1 Whether a parent who has adopted a child under Xhosa customary law has a legal duty to maintain that child under South African law.
  2. 2 Whether the court may develop customary law and the common law to harmonise with constitutional principles regarding children's rights.
  3. 3 Whether the maintenance order can be issued against a non-biological, non-statutory adoptive parent.

Ratio Decidendi

The court held that Xhosa customary law adoption is a recognised and established institution, widely practised and accepted in South Africa. The Constitution does not abrogate rights conferred by customary law, provided they are consistent with the Bill of Rights. The best interests of the child, as enshrined in the Constitution and the Children's Act, require that the minor child adopted under customary law be afforded the same legal protection and maintenance rights as a child adopted under statutory law. The court found that the respondent, having adopted the child under customary law and acted as a parent, has a legal duty to maintain the child. The development of the common law and...

Court Disposition

The court confirmed the legal duty of the respondent to maintain the minor child adopted under Xhosa customary law and ordered the child to be registered as the adopted child of both parties.

Orders

  • The Director General of the Department of Home Affairs is ordered to register the minor child Jonese Maneli as the adopted child of Nobongile Sweetness Ria Maneli and Zandisile Garnet Maneli.
  • The Magistrate of the Westonaria Maintenance Court is ordered to determine the amount of maintenance to be contributed by the respondent towards the maintenance of the minor child Jonese Maneli.