KZN girl may lose R8m German inheritance because home affairs won't implement court order
An eight-year-old South African girl stands to lose out on an R8m life-changing overseas inheritance because the department of home affairs has refused to comply with a court order to amend her birth certificate.
The order was granted in November last year. Now the attorneys acting for the girl’s mother have launched an urgent application in the Pietermaritzburg high court, seeking to declare the minister and director-general in contempt and putting them on terms to say why they should not be jailed for 30 days or fined.
The child, who hails from a rural area in KwaZulu-Natal, is embroiled in an international inheritance battle for the estate of a wealthy German woman — the mother of deceased Unisa law professor Hans Schulze.
Schulze was involved in a five-year relationship with the child’s mother and, just before he died from cancer early last year, they married in a civil ceremony.
In the initial court application, it was stated that Schultze had adopted the girl in terms of “cultural laws”.
He paid R60,000 lobola at a traditional ceremony and, in terms of Zulu custom, the child was “handed over to him” with the blessing of the extended family, the biological father and traditional leaders and in the presence of an executor of his estate.
The adoption agreement was then reduced to writing.
While it was his intention to formally adopt her, he died, leaving his assets to his wife and the child.
Eight months later, Schulze’s own mother, a widow, died in Germany, leaving behind about €400,000 which was claimed by a local doctor, who alleged he was her life partner.
In terms of German inheritance law, a descendant can inherit, even if they are not named in a will.
But the court in Germany insisted that the child’s birth certificate reflect Schulze as her father, which would entitle her to German citizenship and place her as a direct descendant of the Schulze family and heiress to the estate.
The hearing in Germany to decide on who should inherit was put on hold until April this year, and the child’s mother, with the assistance of her attorney Sihle Mdludla, secured a court order directing home affairs to amend her birth certificate within three days.
But, nine months later, the department has still not complied.
In the contempt application, which will be heard on Tuesday, the mother said when the order was taken in November, the department was represented by counsel, briefed by the state attorney's office, who did not formally oppose the application and were given a copy of the order.
It was then served on the national office the next day.
She had personally visited the home affairs offices in Centurion at least four times, but received no help: “in fact they were cold and hostile to me”.
“They said they were not going to give me special treatment by issuing the certificate within three days. In one instance I demanded to see the senior manager, he was not helpful either. He told me I must wait and be patient.”
She said on another occasion she was told that a “dead person” cannot adopt a child.
She said the department had not communicated to her and her legal representatives at all showing “blatant contempt of the court and disregard for the rule of law”.
The situation had now become “extremely urgent”.
While the German court had been “gracious”, it now required that the documents be filed before August 24 this year “after which the court will finalise the matter with or without the documentation”.
“My daughter stands to be disinherited due to the lackadaisical, wilful and mala fide action of officials entrusted with the discharge of such important services to the South African public.”
The respondents have been served with the application but have not yet filed a notice of intention to oppose, or answering affidavits.