The Customary Law and Adoption: The ‘O e Gapa le Namane’ Custom

Abstract

Whilst the Children Act of 2005 regulates most aspects regarding the adoption of children, it does not seem to be covering the entire spectrum of the amalgam known as the South African legal system. Indeed the Act regulates issues relating to consent to adopt, procedure relating to adoption of children born out of the wedlock, exclusions regarding consent for such children, as who can adopt a child and provides a list of who can adopt a child. Amongst those who can adopt a child are: A married couple, Partners in a life-partnership (including same-sex partners), a person who has married the natural parent of a child, a single person (a widow or widower or an unmarried or divorced person) with the consent of the Minister. It is further in terms of section 18 of the act required that the adoption of a child be effected by a court order. In effect, it means that, an adoption not endorsed as prescribed is not recognised as an adoption.

Yet this dispensation does not seem to embrace well-established adoption practices such as o e gapa lenamane (Loosely literally translated, it says, “You lead it with its calfâ€) amongst Batswana, which would now have no effect in law regarding adoption of such a namane (calf). It is the argument in this paper that much as customary law is recognised as law in its own right, the courts should be responsive enough to develop the customary law adoption practices; otherwise the opportunity to attain the envisioned inclusive South African law of the 21^st century will be lost.