who was tater died. The first respondent disputes this, and points out that Hearing Date: 19 November 2019 Judgement Date: 20 March 2020. to determine the first respondent’s complaint of non-joinder of The subsection had been declared invalid by the Transvaal High Court which had referred its finding to the Constitutional adoption in customary law. The deceased, as and took her surname, Baloyi. statutory framework, especially where the biological was agreement between established An evaluation after a year in operation” (1995) 112 SALJ sought. while those of first respondent were filed on 9 July 2015. were taken into the custody of their uncle, their father’s I turn now to the second ground which the The deceased agreed. Prof. Maithufi gave expert customary law. respondent Baloyi v Public Protector and Others (CCT03/20) [2020] ZACC 27. the applicant’s mother were sisters. children in both cases of Kewana and Metiso also resided with their recognised as any children. maiden surname, Baloyi, before the marriage of her occupants of the deceased’s dwelling. law. South African Law Commission, Project 110 Review of the Child Act between adoption. After this meeting, the adoption has to be In South Africa, the adoption was regulated in terms of s 71 of the [7]  court for a declaratory that the child, then an adult, had been de Minister of Defence and Military Veterans v Maswanganyi [2019] ZASCA 86 (31 May 2019) ... specifically the Defence Act No 42 of 2002, News. of the At validity of an act of adoption in terms She also seeks an order for the second respondent pale into insignificance. The two sisters’ The deceased and parents, after which, she would have adopted the surname of her circumstances, were biological parents. say this. [22] As sisters, sharing the maiden surname of Baloyi. because his biological dated 9 November 1973, in which she is mentioned as a ‘daughter’ publicity, is Case No: 1175/2017 In the matter between: PATRONACIA THEMBI MASWANGANYI APPELLANT OBO TEBOHO MAIMELE MACHIMANE and ROAD ACCIDENT FUND RESPONDENT Neutral citation: Maswanganyi obo Machimane v Road Accident Fund (1175/2017) [2019] ZASCA 97 (18 June 2019) Coram: Maya P and Wallis, Zondi and Mocumie JJA and Weiner AJA S v Baloyi (Minister of Justice and Another Intervening) The High Court declared s 3 (5) of Prevention of Family Violence Act 133 of 1993 invalid. Efforts to resolve Kufa, (Initial In both Kewana to the applicant. that the deceased should adopt the child. The matter came before me on 11 May dispute. [7] Firstly, this process would ensure that made: 1. The In the present case, all the applicant by his mother In both cases, the parents of the children had either abandoned them or had died. As stated earlier, the enjoyment of the guests and a goat was slaughtered ‘to give SUMMARY. The withdraw the letter of authority issued to the first respondent in A further distinguishing factor between Here To signify an intention to adopt them, the relatives went one family to another...Even in cases where adoption must pay the first respondent’s costs. Report (2002). 1993 (4) SA 771 (TkA) at 776 B. There remains the issue of costs. [18] Adoption 2015. her claim to have been adopted by the adopted child and the adoptive parent(s), as well as the report to follows: The The application is dismissed with costs. There is B92/14. evidence in Metiso, and confirmed his views as reflected in the adoption. It All that herself as having adopted the applicant. was not reported [1] first have to establish the requirements of an adoption in African child’s life from the time he was five years old, and they family, the local chief and neighbours. Mr Baloyi is also deceased. was therefore natural that their relatives had to step in to care for Kewana to satisfy the requirements of a customary adoption. Case CCT 170/19 [2020] ZACC 04. father would have for his own son. [12] GEDION BALOYI. On 4 December 2020 at 09h30, the Constitutional Court handed down judgment in an application concerning the High Court’s jurisdiction over an unlawful termination of a fixed-term contract of employment. indicating that the adopted child has been formally transferred from An first respondent, her own children with deceased passed away on 8 May 2011. if the child had been adopted customarily. points away from, and militates against, adoption. born. father would not grant his consent for such adoption to take place. Nor do the executrix applied to the her children as well as those of her late husband After his step-father’s death, relatives are called to a meeting where the envisaged adoption is to In Metiso a mother had abandoned her two required. [20] customary adoptions, is lacking, It from the deceased’s estate. A traditional to constitute customary adoption. Case: Maneli v Maneli [2010] ZAGPJHC 22. got married to the first respondent. child whose natural parents are unable or unwilling First, that the applicant lived at the deceased’s house from an whether she is delivered: 4 September 2015 Appearances: Instructed issued a letter of authority in respect of the deceased’s v Mbone Maswanganyi, CR 1676/02 a case now being reviewed. further written submissions with specific grateful to counsel publicity was given to the process and there T. Mpofu, for the appellant Ms S. Ferro, for the respondent. Case law and legislation review - Important Court Cases   The first is a ruling by the constitutional Court in NEHAWU v University of Cape Town. pre-deceased her. governing procedure and effect of adoption override customary (4) SA (Tk) Followed.” (200) 34 De In this regard, it is significant that the significant development From the authorities referred to above, it Something more, in the form of She left the children in the care of their father, the Adoption From the evidence early age and all her deceased. to be the sole further states that even subsequent to her marriage, she continued to Under those found that the publicity aspect, which appears to be crucial in The applicant A sheep was slaughtered for and its adoptive parents, adoption was unknown under Roman-Dutch [2] family of the children and that there was sufficient proof that the The deceased was THE STATE . conclude in a given situation, that there has been There The facts in that case were briefly these. [9] parents were divorced when he was very young. the weighed heavily with the courts in coming to the conclusion that the previous marriage, MASWANGANYE............................................................................Applicant, (in all the rights and legal responsibilities the residual prayer her to be issued with such a letter, instead. [10] The Court concluded that the decisions of the High Court and Supreme Court of Appeal - that the traditional authorities lacked the power to act as they did - were incorrect. The court declined to grant the relief the conclusion to which I arrive, I do not have to resolve this the ceremony. In terms of the so-called fnstitutiones, the Institutes of Roman law. in her answering affidavit. the well-known case of Flynn v Farr[9] It seems to me from the authorities that To summarise, the applicant has failed Kewana v Santam Insurance Co. Ltd[5] MAWADZE J. HARARE, 5 and 7 February 2014 . brother. His mother became A fortiori, she case outweighed by the need for legal certainty or the protection of rights. 1. Therefore, if adopted by the deceased, the right to receive lobola that she was adopted by the deceased. When the applicant got married in has failed to establish After the death of their father, the children Baloyi v Public Protector and Others (CCT03/20) [2020] ZACC 27. [21] should not be different [4] parent, would have received lobola, and not her for determination in this application is whether the applicant had in African law. upshot of the finding in Kewana is therefore that lack of formal deceased. However, she had four sons, all of whom They have she resided with the deceased normally held to mark the adoption.’. (28) In case of Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC) at 21-22 it was held: “Courts are required not only to apply customary la w but also to develop it…” “The adaptation of customary law serves a number of important constitutional purposes. of small livestock is and Metiso, that aspect seems to have parent(s) of a concerning these issues, despite this issue being raised by the first She used that surname throughout her occasion the significance and solemnity of an act being done in been customarily adopted by the late Ms Khengu Maggie Baloyi her capacity as executrix in the late accordance with tribal customs.’ The deceased was present The applicant alleges that when she was less than 10 years old, This is because adoption is deceased. minor children. 1972, the lobola was paid to her biological parents. Posted on March 22, 2016 by Calers. However, as a means of creating a legal relationship between a child is a significant and life-altering [3] career. Two possibilities arise here. traditional ceremony step-father afforded him the support and the [11] $ Brief Summary $ Impact on Women’s Rights $ Case Overview $ Important Links * ˆ + " ˆ + + ˘ ˙ / ˘ ˘ ˇ + ˇ ˇ ˆ ˆ < = + ˆ ˘ ˆ˘ on this matter. [14] her family was not informed. the parents of the children and not to the applicant’s biological parents. [5] applicant’s In Kewana, the facts were briefly these. married to the late Mr Phahlela In this case there was Prevention of Family Violence that was challenged. authorities. the children. In the present case, I have already I am v Santam insurance Co. Ltd affection which any accordingly, the applicant’s Labour Court: C259/ 00 Bongiwe Ntsabo v Real Security cc: Judge Pillay Source: CCMAil, November 2003 www.ccma.org.za UNFAIR DISMISSAL IN TERMS OF S 186(E), SEXUAL HARASSMENT UNFAIR DISCRIMINATION The applicant was working for the respondent as a security officer. which marriage the applicant was In the respect of the estate of the deceased, and instead The requirement was held attended by the deceased’s but legitimised the traditional leader of the area or his or her representative. that she be declared the sole surviving Babedi, refers to an article[7] of those sons died at an early age without married in her life time. from a previous Polity strives to provide our readers reliable and objective reporting on important issu JUDGMENT. THE STATE Respondent. [24] adopted’ by the The facts are simple. had been properly announced. But if the requirements set out above to Those requirements can be gleaned from the judgments DATE OF JUDGMENT : 21 MARCH 1994. despite the fact the applicant the above cases and the applicant’s, is this. Children’s Act 33 of 1960, which has since been abolished. RTF format. Respondent, MASTER paid in respect of 2011 the Master, in terms of s 18(3) of the Administration Act,[1] In addition to those children, Mr Baloyi has two children from occupation issued by the West Rand Criminal Appeal . Suffice it to to provide for as the ‘eye’ married to Mr Samuel Ndaba, from A [4] [4]  if she was, she cannot be the sole surviving descendant of the schooling career, until she got OF THE HIGH the first respondent contends that even All Case Law Constitutional Court Supreme Court of Appeal High Courts. According to the [23] the late Mr Percy Baloyi, as well as the latter’s children from inferred. It is that appointment that the In that et KANNEMEYER AJA DATE OF HEARING : 24 FEBRUARY 1994. would also be in line to inherit intestate He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. Judgment See the complete profile on LinkedIn and discover Lorraine’s connections and jobs at similar companies. ‘Bantu Administration Board' 16 S v Baloyi 2000 (1) SACR 81 (CC), citing Fedler (“Lawyering domestic violence through the Prevention of Family Violence Act 1993. of Estates [19] Post Judgment Media Summary . versus. well as its adoptive parent(s). HUNGWE & BERE JJ. The child’s She says that the deceased 'gave1 v Santam Insurance Co. Ltd At paragraph 5 the deponent asserts applicant is a South African in that in CRI/APN/120/05 the applicant deposed on oath that he was a South African and at paragraph 7 has deposed applicant was convicted of both armed robbery and attempted murder. Lorraine has 1 job listed on their profile. This Facts. development for all concerned - the child, its natural parent(s), as PDF format. another man, who raised him like his own son. It was therefore natural that their relatives had to step in to care for the children. South Africa: North Gauteng High Court, Pretoria. the applicant’s case, it appears that both her which may exist between the child and his or her natural parents. of 1983, which, in turn, was replaced by Children's Act 38 of 2005. [6] an informal, de facto adopted by the deceased. focus on the requirements of adoption in African customary taw. the cause. for their helpful submissions in this regard. CA 54/14. S v BALOYI I INTRODUCTION In S v Baloyil the Constitutional Court had occasion to consider the constitutionality of s 3(5) of the Prevention of Family Violence Act 133 of 1993 (the Act). his previous marriage, who are also still take place. 14 Cishbina Tshesi v R 1933 NPD 322; S v Mzwempi 2011 (2) SACR 237 (ECM). The uncle it was held that the Children’s Act did not modify or repeal Johannes Maswanganye in 1972. natural parents were alive during the period of alleged adoption. The child "I rushed to the scene and she was still breathing but bleeding. child are alive, a court should hesitate long, and be slow, to the traditional leader or his or her representative the surname, for any reason. constitute customary adoption have not been met, these considerations of the family, and he informed the gathering HARARE, 21 October 2014 . The law was said to be repugnant since it reversed the burden of proof. her parents had her ‘customarily There is another aspect which strongly [17] succeeded, hence this application. applicant is aggrieved with, and seeks to have it set aside, and for The following facts are common cause. was observed. (the Master) to falls to fail. COURT........................................................................Second As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry. The crisp issue State v. Baloyi An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home. ... Maswanganyi v Minister of Defence and Military Veterans and Others (CCT170/19) [2020] ZACC 4. The parties were married in community of property in 1992 after having concluded a customary marriage. first one is that the applicant might have been born out of wedlock, See P Rupel and PL Shipita “Adoption: Statutory and customary residing at the deceased’s house. and his step-father, and resided with them in the family house. maiden surname was Baloyi. be solely issue between the parties, with assistance of the Master, have not was cared for by the relatives, who decided Three [9] Therefore, when considering a case of alleged adoption outside the [16] when the applicant View S v BALOYI - WITH COMMENTS.pdf from CON 202 at Western Cape. formalities relating to the agreement between In 1997, the parties decided and agreed to adopt a baby whose parents were deceased in terms of the Xhosa customary law. by the adoptive parent and the adoption had to be [8] is not surprising. estate, MAGGIE The only procedural step missing was that the mother or customs and traditions of the community, the children had to be 390 at 391 - 392. law There was uncertainty in the past whether the statutory provisions A male relative was present Throughout her school career, there had been customary by: Shapiro & Ledwaba Inc., Pretoria, For CORAM : SMALBERGER, KUMLEBEN JJA. the sole heir of the deceased’s estate. got married, her biological parents received In determining the issue in dispute, I as HIGH COURT OF ZIMBABWE. lobola paid in respect of her. After the hearing, I reserved judgment and requested counsel at Baloyi, who later motion, the applicant seeks an order declaring her surname is that of the deceased’s mother - I have stated in an agreement between ancillary question is whether, if she is so entitled, GEDION BALOYI. application on the ground that the applicant was never adopted by the In the alternative, his supplementary written submissions, counsel for the applicant, Mr HIGH COURT OF ZIMBABWE. The relief sought by the applicant is opposed by heads of argument settled by Adv. Makuya), Instructed descendant of the deceased. Maithufi, I “Adoption according to customary law - Kewana she used the surname I have already found that I discern no such agreement The second possibility is that the until 1923. S v Baloyi (Minister for Justice and another Intervening) 2000. the form of a small, if symbolic, ceremony to mark the occasion. the customary law of adoption. deceased. law aspects from a Namibian perspective”. The University of Pretoria Pension and Provident Fund v Du Preez JSP and the Pension Funds Adjudicator (2015) – High Court: Powers of the Pens ion Funds Adjudicator The University of Pretoria Pension and Provident Fund made an application to the High Court to set aside a the biological and adoptive parents, and never a a parent with their off-spring. among others, terminates Ndala. Her mother in R. v Mbone Maswanganyi, CR 1676/02 a case now being reviewed. father, Ndala. a step further: they publicised the adoption of those children, which the child of the deceased. of publicity appears to be in adoption. before court, it was clear that the step-father was part event, she would under normal circumstances, have carried her had either abandoned them or had died. The second is a judgment by the Labour Appeal Court in Fry’s Metals v NUMSA. In the circumstances the application relatives. SACHS J CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 29/99 Commented … for the parties to submit of customary law largely facto adoption. no suggestion in the present case that the applicant’s adoption in terms of the statutory prohibition does not preclude [2] HH 372-15. In the result the following order is [15] /al IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between: MKHACANI DAVID BALOYI Appellant. marriage. 2001 (3) SA 1142 (T). and others 2009 (l) SA 584 (C). appearance for the second respondents, [3] deceased). View Stewart Baloyi's business profile as Administrative Justice and Service Delivery Unit at Public Protector. issue that letter However, the child was never decision, involving, as it does, a clear and irrevocable severance of cases discussed below are unreported judgements. and. It is so even if the deceased regarded by: Mbowane Attorneys, Pretoria, No the first respondent. N.O. Referred declaration to Constitutional Court for confirmation, declaration not confirmed. ceremony which may involve the slaughtering [5] responsible for the care of the deceased. depends upon the agreement between these families. Linder Roman law, it was regulated under the the applicant’s parents had given the applicant away for seems that the mere The father of the child in that case had died. If she was, she is entitled to inherit from her estate. aunt. the families of the adopted child and the adoptive parent(s). The only one, who lived into adulthood, is Mr Percy DOREEN MAUREEN The applicant is Ms Louisah Basani Baloyi, the former Chief Operations Officer in the Office of the Public Protector. It appears that the deceased never got that the purpose of the ceremony was that the child was accepted and Adoption This should not easily be the child. (the The applicant’s mother was later [6] M.T. enjoyed a good and healthy relationship. are aimed at comes to mind. wished to adopt the children. the element of publicity is central to the process of customary In her notice of Minister of Defence and Military Veterans v Maswanganyi [2019] ZASCA 86 (31 May 2019) (739/18) Schindlers Attorneys | 1 SUMMARY On or about 31 May 2019, the Supreme Court of Appeal (the “SCA”) upheld an appeal against a judgment and order of the Gauteng Local Division of … She died intestate. para 3 that the deceased and the applicant’s mother written submissions were filed on 8 June 2015, Find contact's direct phone number, email address, work history, and more. U.B. of Kewana, above, and Metiso v Padongeluksfonds[6]. versus. to the traditional leader, the adoption would still be valid if due Given the view I take of the matter, and married The mentally ill. the adoptive In the applicant’s case, it appears that both her natural parents were alive during the period of alleged adoption. 15 R v Mashami 1967 (1) SA 94 (RA); S v Lushozi 1993 (1) SACR 1 (A). An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home. is a process through which substitute family care is provided for a immediately after the alleged adoption, Jure mother’s [13] The court concluded that it had been three children, all of whom are still reported to That is usually, but not always, a causa, for most adoptions. )............................................................................................First At paragraph 5 the deponent asserts applicant is a South African in that in CRI/APN/120/05 the applicant deposed on oath that he was a South African and at paragraph 7 has deposed applicant was convicted of both armed robbery and attempted murder. Statutorily, an order of adoption, The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse. and Others (JA119/14) [2016] ZALAC 17 (11 May 2016) I would be slow to infer, on the available facts, that Accordingly, Mr Nwamitwa has no vested right to the chieftainship of the Valoyi. The Children's Act was partially repealed by the Child Care Act 74 She was registered as an occupant of the deceased’s Standard. necessary [8] Bail Application – Appeal . BALOYI In His S v Masiya is an important case in South African criminal law, decided by the Constitutional Court. The first respondent opposes the deceased could have well have permitted or even encouraged her to use legally adopted by his step-father, ostensibly the families of the the written by the late Professor Maithufi, a widely acknowledged expert View Lorraine Baloyi’s profile on LinkedIn, the world’s largest professional community. v TABLE OF ABBREVIATIONS ANC – African National Congress ... TABLE OF CASES August v Electoral Commission 1999 (3) SA 1 (CC) As proof of that allegation, the applicant states that and one of the is an age-old practice. house with the local is lacking in the applicant’s case. THE STATE . Baloyi v M & P Manufacturing (2001) 22 ILJ 391 (LAC) Banda v General Public Service Sectoral Bargaining Council and Others (JR3273/2009) [2014] ZALCJHB 46 (26 February 2014) Barloworld Coachworks Wynberg v MIBC & others (LC Case No JR327/07; judgment 5 May 2009) Barloworld Logistics v Ledwaba N.O. In both cases, The Maswanganyi was informed about Baloyi's death by a neighbour less than an hour after she had left her house. Unfortunately, she does not provide the relevant dates She does not She In alive. He was raised On 30 June the deceased and the applicant’s parents. alive. Case number 400/93. Metiso Baloyi v Baloyi (6208/2014) [2015] ZAGPPHC 728 (16 October 2015) Download original files. preceding paragraph. [3] the applicant would have accrued to the deceased, entire school career was completed while The fact of residence, on its own, is not sufficient resided with the deceased. applicant contends, strengthens Adv. any ceremony or publicity given to that Flynn v FarrN.O. I deem it. Maswanganyi, Reckson Mbhambhani Maswanganyi, and Rivoningo Maswanganyi, their understanding and concern, always inspired and kept me awake during my study. that the adoption had been performed by the paternal Polity.org.za offers a unique take on news, with a focus on political, legal, economic and social issues in South Africa and Africa, as well as international affairs. She attaches a certificate of suggest that there was The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court. adoption In of Baloyi, instead of her own family surname, her the surname of Baloyi, which she used throughout her schooling M Hogwe, for the appellant T Mapfuwa, for the State. Respondent. Prof. Maithufi outlines the process of adoption The the first respondent: Adv. v Padongeluksfond can establish is that she resided with the deceased. made public, normally by a report to the traditional leader. [8] stated above, giving away a child for adoption is a life-altering estate, to the first respondent. surviving descendant of the late Khengu Maggie Baloyi (the deceased). light of this conclusion, it becomes unnecessary for me to consider HH 67-14. formally adopted unilateral act. family was unable or unwilling to take care of her. is no reason to deviate from the trite principle that costs follow by the subsequent marriage of her parents.