The Factual Matrix: Customary Bonds, Competing Heirs and a Contested Legacy
The dispute in Tshali and Another v Nandi and Others (5307/2022) [2025] ZAECMHC 39 arose from a heartfelt claim by the applicants, Nandipha Tshali and her son, who alleged that they were the customarily adopted descendants of the late Nompumelelo Veronica Tshali. Based on this claim, they sought declaratory relief that would have rendered them intestate heirs of the deceased, thereby invalidating the existing liquidation and distribution account and related documents approved by the Master of the High Court.
The deceased had taken the first applicant under her care from a young age, and she, in turn, contended that she had raised her own son—the second applicant—under the same household. The applicants regarded the deceased not only as a guardian but effectively as their mother, based on the emotional, financial, and familial roles she had assumed during their upbringing. These assertions were central to the relief sought, including the setting aside of the redistribution agreement entered into by the deceased’s biological siblings, and an interdict against the executor from distributing the estate based on the current Master-approved plan.
At the core of their case was reliance on section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, which defines a “descendant” to include a person accepted as a child in accordance with customary law, even if not legally adopted. However, this claim was squarely challenged by the biological family of the deceased, including the sixth respondent who is the first applicant’s biological father. He denied ever relinquishing his parental rights and obligations, thereby refuting the possibility of a lawful customary adoption.
Further complicating the applicants’ position was the absence of any customary ritual or family consensus, as required under Xhosa customary law, to formally recognise such adoption. Expert testimony from Professor Ndima, who was cited for his authority on customary law, reinforced this procedural deficiency. His view—accepted by the Court—was that customary adoption is a public affair requiring ritualistic and communal acknowledgment, not merely informal acceptance or compassionate caregiving. This distinction would prove pivotal.
Despite the applicants’ earnest belief that they were rightfully entitled to benefit from the deceased’s estate, Acting Deputy Judge President Dawood concluded that they had failed to discharge the requisite onus. The judgment reflects not only a legal determination but also a subtle recognition of the emotional and societal dissonance that may arise when legal principles rooted in formalism confront human bonds shaped by compassion and historical caregiving.
Legal Issues and Judicial Reasoning: The Limits of Customary Adoption and the Role of Succession Law
The central legal issue in the matter concerned whether the applicants had successfully established that they were descendants of the deceased in terms of the statutory definition under section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, and thereby entitled to inherit under the Intestate Succession Act 81 of 1987. The Court scrutinised the statutory meaning of “descendant” and whether the applicants fell within its ambit.
While the applicants relied on the deceased’s care and documentation (such as her medical aid card, records from the Department of Transport, and beneficiary designations in her retirement annuity), the Court found that such informal gestures did not amount to a customary law adoption. The statutory definition requires not mere acceptance, but acceptance “in accordance with customary law”.
Relying on expert opinion, particularly the report by Professor Ndima, the Court confirmed that a valid customary law adoption among Xhosa people requires a formal ceremony involving the biological and adoptive families, community recognition, and a ritualised relinquishing of parental rights. These elements serve not only to affirm family membership but also to convey inheritance rights. None of these requirements were met.
The Court further applied the principles from Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51, reinforced in National Director of Public Prosecutions v Zuma [2009] ZASCA 1, to resolve the dispute on the papers. It accepted the sixth respondent’s denial that he had ever relinquished his parental rights, as there was no credible basis to reject his version under the evidentiary standard established in those authorities.
In addition, the Court referred to Doreen Maureen Maswanganyi v Dhumela Cathrine Baloyi N.O & Another 62122/2014 (GP), where it was held that adoption is never a unilateral act and must involve a formal agreement between the biological and adoptive families. Similarly, in the Maneli v Maneli 2010 (7) BCLR 703 (GSJ) case, the importance of a formal customary adoption ceremony was reaffirmed.
The applicants’ legal strategy was further undermined by the internal inconsistency between the relief sought in the notice of motion—seeking to be declared “customarily adopted”—and the factual case put forward in affidavits, which did not support the existence of any such ceremonial or communal recognition.
In the result, the Court found that the applicants did not meet the threshold for legal recognition as descendants of the deceased and therefore were not entitled to inherit. The Liquidation and Distribution Account and the Redistribution Agreement, reflecting the deceased’s biological siblings as heirs, remained valid.
Significance of the Judgment: Upholding Customary Formalities in the Context of Inheritance Claims
The judgment underscores the judiciary’s commitment to preserving the integrity of customary law within the broader framework of South African succession jurisprudence. While the Constitution recognises customary law as a legitimate and evolving source of legal norms, this case reaffirms that its application must be consistent with established cultural protocols and not reduced to informal or sentimental associations.
A significant outcome of the judgment is the clarity it offers regarding the evidentiary threshold required to prove a customary adoption capable of conferring intestate succession rights. The Court firmly drew the line between benevolent care and legal entitlement, holding that acts of kindness and moral duty, however laudable, cannot supplant the procedural requirements embedded in customary tradition. The ruling serves as a cautionary tale for litigants seeking to elevate lived experience into legal entitlement without conforming to the structural norms of the applicable legal system.
The case also contributes to the evolving jurisprudence around the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, by illustrating how courts will interpret the phrase “accepted in accordance with customary law”. It is now even more evident that acceptance must be procedurally embedded within customary rites, not inferred from circumstantial or bureaucratic indicators such as listing on benefit forms or medical records.
Importantly, the judgment balances this legal rigour with a humane understanding of the applicants’ circumstances. Although their claim was unsuccessful, the Court refrained from making an adverse cost order, acknowledging their belief in the legitimacy of their entitlement and recognising the failure by the Master to engage with the dispute meaningfully. This signals a broader judicial awareness of the socio-cultural realities facing individuals who find themselves navigating the intersection between law and lived experience, especially in contexts where customary obligations and statutory regimes are in tension.
The broader implication is that individuals asserting inheritance rights through customary law must ensure that the full procedural framework of that tradition has been satisfied. In doing so, the decision fortifies both legal certainty and cultural authenticity, ensuring that customary law retains its distinctiveness and coherence within South Africa’s plural legal system.
Questions and Answers
What was the principal legal issue in the case of Tshali and Another v Nandi and Others (5307/2022) [2025] ZAECMHC 39?
The central legal question was whether the applicants could be recognised as descendants of the deceased under the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, and thereby entitled to inherit from her estate in terms of the Intestate Succession Act 81 of 1987.
On what statutory definition did the applicants rely to claim heirship?
They relied on the definition of “descendant” in section 1 of the 2009 Act, which includes a person accepted by the deceased as his or her own child in accordance with customary law, even if not biologically related.
What relief did the applicants seek from the Court?
They sought to be declared the customarily adopted children of the deceased and consequently her intestate heirs, as well as the setting aside of the redistribution agreement and the liquidation and distribution account approved by the Master.
What factual foundation did the applicants present in support of their claim?
They claimed the deceased had raised and cared for them as her own, supported them financially, and treated them as her children for purposes such as medical aid and beneficiary nominations.
Did the Court accept the applicants’ version of customary law adoption?
No, the Court found that the applicants had failed to establish that a customary law adoption, with all its procedural and communal requirements, had taken place.
What evidentiary standard did the Court apply in evaluating the disputes of fact?
The Court applied the Plascon-Evans rule, which holds that where there are factual disputes in motion proceedings, a final order may only be granted if the respondent’s version can be rejected as far-fetched or clearly untenable.
What role did the biological father of the first applicant play in the proceedings?
He was the sixth respondent and he denied ever relinquishing his parental rights, which was a significant factor in the Court’s rejection of the claimed adoption.
Was there any expert evidence considered by the Court?
Yes, Professor Ndima, an expert in customary law, provided a report explaining that customary law adoption requires a public and formal process involving family consensus and ritual, none of which was present in this case.
How did the Court interpret the phrase “in accordance with customary law”?
The Court held that this requires more than mere acceptance or care; it demands observance of customary practices, including ceremonies and family consensus on adoption.
Were any earlier legal precedents referred to in the judgment?
Yes, among others, the Court referred to Doreen Maureen Maswanganyi v Dumelela Cathrine Baloyi N.O & Another and Maneli v Maneli, both of which emphasised the necessity of formal custom-compliant adoption processes.
Did the Master of the High Court file a report in this matter?
No, the Master did not file a report, a fact the Court noted as unfortunate given the complexity of the issues and the status of the estate proceedings.
How did the Court address the applicants’ reliance on the deceased’s informal acts of care?
The Court accepted that the deceased showed compassion and Ubuntu, but it held that such acts do not equate to legal adoption in terms of customary law.
Was any cost order granted against the applicants?
No, the Court exercised its discretion not to award costs against the applicants, recognising their genuine belief in their entitlement and the complexity of the legal issues involved.
What does the judgment illustrate about the intersection between customary law and statutory succession?
It demonstrates that while customary law is constitutionally protected, it must be applied in accordance with its own procedural integrity, especially when interfacing with statutory inheritance regimes.
What is the broader importance of this case for customary law and inheritance in South Africa?
It reaffirms the need for formal observance of customary practices when asserting legal rights derived from custom and underscores the judiciary’s role in balancing compassion with legal certainty.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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