Kewana v Santam Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Goldin JA, Dumbutshena JA, Davies JA
• Judgment Date: 02 February 1993
• Citation: 1993 (4) SA 771 (TkA)
• Hearing Date: 02 February 1993
• Court: Transkei Appellate Division

Goldin, JA.:

This is an appeal against a decision that a child adopted according to the customary law is not entitled to compensation for loss of I support resulting from the negligent killing of the adoptive parent.

The parties had agreed at a conference held in terms of Rule 37 of the Rules of Court:

'1.

. . . (T)hat the only issue for trial is whether the deceased was under a legal duty to support and maintain the minor child Andile J Mangali, a boy born on 15 June 1971, both in fact and in law, save

Goldin JA

A that the defendant admits that the said minor child was in fact receiving support and maintenance from the deceased at the time of her death.

The parties agree that, in the event of plaintiff proving the issue in her favour, judgment should be entered for plaintiff in the sum of R10 901 for the child Andile.' B

The appellant's case, as stated by the Chief Justice, was that:

'(a)

Customary law in Transkei allows single women to adopt a child.

(b)

Andile was adopted by the deceased according to customary law.

(c)

In consequence of such customary law adoption the deceased was under a legal duty to maintain and support Andile with the result that the C defendant company is obliged to compensate Andile for the loss of that legal right to receive support.'

The respondent disputed each of these contentions and both sides led evidence including expert evidence. The Chief Justice

D 'summoned to (his) assistance an expert in the field of tribal customs in Transkei, Dr Russel Kaschula of the University of Transkei, (who sat) in an advisory capacity as an assessor in terms of s 3(3) of the Supreme Court Act 5 of 1983 (Tk)'.

The Court decided the first two issues in favour of the appellant but found that although the child was

E 'adopted by the deceased in terms of the tribal custom no common law or statutory right is enjoyed by him to claim compensation for loss of support'.

The appellant appeals against the decision of the Court in favour of respondent ('Santam') and Santam appeals against the decision upholding the first two issues, namely that Andile was adopted by deceased according F to customary law. I consider it convenient to deal firstly with the cross appeal.

Andile's father died when Andile was an infant. His father came from a different locality to that where Andile's family resided and still resides and nobody is aware what members of his family still exist or where they might be found. After the death of his father, his mother, Nodoli, began G to show symptoms of insanity. When her condition deteriorated she could not be accommodated at a hospital and she was released into the custody of her sister, Mkatsomo, who has cared for her ever since. Mkatsomo, a widow, could not provide for her insane sister as well as for Andile. The appellant, a widow, is the sister of Mkatsomo and the mother of H Nolungephi, the deceased. Nolungephi was in employment and was in receipt of income. It was therefore decided that Andile should reside with appellant and Nolungephi regularly sent money home for the support of her mother (the appellant) as well as for her own child born out of wedlock and for Andile.

Appellant and her sister decided that Nolungephi should adopt Andile and I Nolungephi agreed to do so. A traditional ceremony was held attended by appellant's family, the local chief and neighbours. The appellant's late husband's brother was present in his capacity as the 'eye', a position of responsibility in his family, and he informed the gathering that the purpose of the ceremony was that the boy Andile (then aged about nine J years) was accepted and recognised as the child of Nolungephi. A sheep

Goldin JA

A was slaughtered for the enjoyment of the guests and a goat was slaughtered, as the Chief Justice found, 'to give the occasion the significance and solemnity of an act being done in accordance with tribal customs'. Nolungephi was present, as the ceremony was arranged in December when she returned home on leave.

The dispute concerns whether it was an adoption and whether such B adoption is part of customary law, particularly as Nolungephi was a woman.

Plaintiff said that Andile 'was pleased to be son of Nolungephi and was accepted and recognised as such'. Upon adoption she became responsible for her adopted child and could not terminate the relationship. Under C cross-examination she said that she did not know of adoption according to 'the written law of the land'. She only knew of adoption under customary law.

Appellant explained that the ceremony was to proclaim to the world the acceptance of responsibility for Andile. In answer to a question, she said: 'We could not expel him because he appears as if he was our child D born by us.' The deceased was killed about two years after she had adopted the child during which period he treated her as, and called her, his mother and she provided for him and accepted him as her child.

Professor Richard Mqeke, a professor of the University of Transkei, who specialises in customary law, who heard the evidence concerning the E ceremony, including the presence of the chief and the slaughtering of the sheep and the goat, said that what was described was 'adoption in terms of customary law'. He also said that the ceremony is held to give publicity to the act of adoption so that the neighbours and members of the public at large 'should know about the effects of adoption'. He described and F emphasised the acceptance of emancipation of women, particularly those who earned their own income. He had 'personal knowledge of adoption cases by customary law'. He went on to say that 'it is a widespread practice in all areas of the Transkei'. He had observed cases where young and unmarried females, especially professionals, 'had actually adopted the kids of their relatives'. He explained that he was speaking of adoption and not...