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