'Can we raise her as our own without paying damages to the family?'

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"Courts have the discretion to apply and take judicial notice of the applicable customary law." Photo: Getty Images
"Courts have the discretion to apply and take judicial notice of the applicable customary law." Photo: Getty Images

One reader emailed us a question about the possibility of raising her fiancé's child after the child's mother passed away, without paying the damages to the girl's family first.

Read her question here:

Evening,

I need help or information about a situation where my fiancé had impregnated a girl, and she died. Now we want to take the child and raise her as our own...

I need to know if that is possible without paying the family things like inhlawulo or damages...

If possible, how do we go about that route?

Thank you.

Read: Why marriage is important for African family building

News24 sought advice from Alexandra Shardlow, a consultant Attorney at Di Siena Attorneys who specialises in family and divorce law.

Shardlow told us that an unmarried father's parental rights and responsibilities are regulated in Section 21 of the Children's Act, 38 of 2005.

Which states that the biological father of a child who does not automatically have parental responsibilities and rights in respect of a minor child may acquire full parental responsibilities and rights under the following conditions:

• At the time of the child's birth, he was living with the mother in a permanent life partnership

• If he consents to be identified or successfully applies in terms of Section 26 to be recognised as a father or pays damages in terms of customary law.

• Contributes or has attempted to contribute in good faith to the child's upbringing for a reasonable period.

• Contributes or has attempted in good faith to contribute towards expenses in connection with the child's maintenance for a reasonable period.

Also read: My late husband married another woman without my knowledge and left his estate to her. What can I do?

She told the reader that if her fiancé fulfils the requirements stated above, he may apply to a court to be declared and confirmed that he holds full parental responsibilities and rights, including the responsibility and right to care for the minor child, maintain her and act as her guardian.

"It would further be necessary that your fiancé be declared that the child's primary place of residence is to be with you," says Shardlow.

She emphasised that the extended maternal family does not automatically obtain rights and responsibilities to the minor child as those rights vest in the biological parents of the minor child.

"For the assignment of such rights of care and contact of the extended maternal family to the minor child, Shardlow told us that an application would have to be brought to court.

Must read: Can a woman be forced to change her children's surname to their father's surname, in customary marriage?

However, she says that "it must be noted that in respect of a dispute arising from customary law, courts have the discretion to apply and take judicial notice of the applicable customary law."

"It must be noted that potentially, the customary law may be incompatible with the bill of rights and the provisions of the Children's Act," added Shardlow.

"Accordingly, your fiancé may proceed with an application to enforce his rights in terms of Section 18 and 21 of the Children's Act and will likely be successful on the basis that he fulfils the requirements to be attributed to unmarried biological fathers of children in terms of Section 21," she says.

Shardlow says, "The court is merely obligated to take notice of the customary law and must continuously be born in mind that the general elements and principles relating to our common law have not yet been clearly crystallised in customary law."

' ...it formalises the relationship between the maternal side and the paternal side'

We also talked to Gogo Dineo Ndlazi, a pioneering sangoma and spiritual teacher who has successfully merged African spirituality with modern thinking about this topic.

Since teaching is at the heart of Gogo Ndlazi's work, she first corrected how inhlawulo is described as 'damages' in English. Gogo Ndlazi says that damages have a negative connotation and, therefore, impairs a child's identity.

She says that when a child is born out of wedlock, a father coming in to pay is a way to acknowledge the child's paternity even though the family might be aware of his relationship with mother. 

"Therefore, by coming forward and acknowledging paternity, it formalises the relationship between the maternal side and the paternal side," says Gogo Ndlazi.

With regards to this couple, she says that they need to start conversations about acknowledging paternity with the maternal side of the family. In doing so, the couple gives that child an identity, and it provides the child with ancestral roots and home, says Gogo Ndlazi.

"As Africans, for us to be home and to be rooted, there are rituals that are performed such as Imbeleko, a ritual of announcing, connecting and rooting the child to their fathers and sisters or to their parents and sisters and the ancestors of that family," she explains.

When paternity is not acknowledged through imhlawulo 

When the child's paternity is not acknowledged through imhlawulo, and the child was born into the family's maternal side, the child belongs to the maternal side of the family, says Gogo Ndlazi.

If Imbeleko is also not done, there might be complications that the child might face, such as experiencing misfortunes, unexplainable illnesses or diseases, because they have no support system in the spirit world, she says.

"The role of ancestors is to protect and guide as an aid in facilitating so they help us create the lives that we are desiring. We are co-creators of our reality," says Gogo Ndlazi.

It is also important not to make inhlawulo about money or the time the child spent with their father before paternity was acknowledged, she says. 

Gogo Ndlazi says that sometimes those things hinder people from doing right by their children because "now we want the father to pay irrespective of whether this woman is dead or not". 

"So there has to be a process, and a conversation that happens between the two families, as to how do we do it in a way that honours this child," she says.

She says that it is also essential to consider the father's financial standing when making the decisions around inhlawulo because affordability also comes into play. 

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