A de facto adoption doctrine for South Africa?

Abstract

Despite this seemingly bright-line distinction between adopted and non-adopted children, the South African courts have in recent times shown an increased willingness to grant de facto adopted children some, if not all, the rights reserved for formally adopted children. The approach adopted by the judiciary in such cases has raised the question of whether, or to what extent, a doctrine of de facto adoption has been created in South Africa. If such a doctrine is found to exist, it would imply that the judiciary is increasingly inclined to treat de facto and de jure adopted children alike. The article investigates the various contexts within and the extent to which the courts have been willing to recognise de facto adoptions. Based on the trends apparent from the judgments in question, the article concludes that a doctrine of de facto adoption has evidently been created in the context of finding a duty of support. The application of such a doctrine in the context of customary law, adoptions and baby-swop cases are for different reasons found to be inappropriate, while the extension of such a doctrine on a case-by-case basis to find a right to intestate succession is regarded as worth considering and pursuing.