By operation of law, the liability to maintain someone is based on three factors: firstly, the claimant’s inability to support himself or herself; secondly, his or her relationship to the person from whom he or she claims support; and thirdly, the latter’s ability to provide support.

The common law and the Children’s Act recognise that parents are the primary caregivers of their children by imposing on them a duty of support insofar as they are able to do so. There is a reciprocal duty of support between parents and children.

In terms of the common law, a parent has a legal duty to maintain a child and the deceased estate of a parent also has the legal duty to support the child. Furthermore, the common law recognises that the duty of support of a child will, if both the parents of the child are unable to maintain the child, fall upon the maternal and paternal grandparents of the child if they are able to provide support.

In terms of the common law, however, the duty to support a grandchild is not enforceable against the deceased estate of a grandparent.

In the case Phillipa van Zyl NO v Keith Getz NO, the Supreme Court of Appeal (“the SCA”) was asked to develop the common law by recognizing a duty of support on the part of the deceased estate of a grandparent.

The background to the case considered by the SCA is as follows: Father (F) and mother (M) had a daughter (D) before they were divorced. After the divorce, F left South Africa and went to live in the United States of America. M raised D on her own. D’s paternal grandfather (GF) and grandmother (GM) were both alive at the time of the divorce. GF supported D during his lifetime to the extent that F did not, and M could not. Upon the death of GF, a claim for maintenance was lodged with the executor (E) of the deceased estate of GF, on behalf of D. The claim was rejected by E on the basis that there is no obligation in law on a grandparent’s estate to maintain a grandchild.

The SCA found that the common law, as it currently exists, recognises the special role and responsibility that parents have in raising children, and that the role and responsibilities which attach first to the relationship between parents and their child may only be passed on to other family members where parents are unable to fulfil them.

The SCA ruled against the development of the common law to include a liability on the deceased estate of a grandparent to maintain a grandchild. The SCA held that the development of the common law would be inappropriate, given the effect it may have on the law of succession and other foundational values of the Constitution.

Reference List:

  • Children’s Act 38 of 2005
  • Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84; [2020] 3 All SA 730 (SCA)

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