By Themba Alfred Ndaba
Parenthood automatically results in the obligation of a parent to support a child (DSP Cronje and J Heaton South African Family Law 2ed (Durban: LexisNexis 2004) at 291). This obligation is a common law duty that arises on the child’s birth and is also provided for in s 15(3)(a) of the Maintenance Act 99 of 1998, regardless of whether the child is born in or out of wedlock. The parent’s primary duty to support the child is an obligation expected to continue until the child becomes self-supporting. When one of the child’s parents passes away, the primary obligation to maintain the child will rest with the surviving parent. However, if both parents cannot support the child, this obligation will extend to the grandparents of the child in accordance with the general principles set out in this article. This obligation will pass on to the siblings of the child only if the grandparents have passed away or if they do not have sufficient means to provide support.
In principle, the obligation of a parent to support a child can only be terminated by the child’s death and not by the parent’s death, since in the latter case the child has a right to claim maintenance from the deceased parent’s estate (Ex Parte Insel and Another 1952 (1) SA 71 (T)).
General principles of maintenance in South Africa
Parents
Generally, in terms of the common law and the Maintenance Act (s 15), the primary responsibility to support, a child is vested in the parents. On the death of either one or both parents, the legal remedy under South African law is to render a deceased parent’s estate liable for a child’s maintenance (Lloyd v Menzies NO and Others 1956 (2) SA 97 (N)), regardless of whether the child’s parents were married or not (L Van Zyl Handbook of the South African Law of Maintenance 2ed (Durban: LexisNexis 2005) at 16). However, it is uncertain if the estate should be burdened if the remaining parent can support the child (Cronje (op cit) at 291).
The obligation on the estate of a deceased parent to support the child takes priority over all bequests.
Grandparents
If the deceased parent’s estate is insufficient to cover the child’s support, or if there is no estate at all and the remaining parent is unable to support the child, the duty of support will be extended to the child’s maternal and paternal grandparents (Gliksman v Talekinsky 1955 (4) SA 468 (W); Ex Parte Jacobs and Spouse 1936 OPD 31 and Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C)). However, the position is still unclear in South African law whether the estate of the deceased grandparent may be liable to support the grandchild (Cronje (op cit) at 292). In the Lloyd case it was found to be liable but in Barnard NO v Miller 1963 (4) SA 426 (C) the court held a completely different view).
Siblings
There is an obligation in South African law on siblings to support each other. This means that if the remaining parent, the deceased parent’s estate or the grandparents are unable to support the child, the obligation to support will rest with the child’s siblings. Cronje and Heaton ((op cit) at 292) submit that a sibling who claims maintenance must be indigent and that this duty exists in accordance with siblings’ respective means.
The state
Although the primary responsibility to support a child is placed on parents for the upbringing and development of the child (see article 27(2) of the Convention on the Rights of the Child, 1989), South Africa is a democratic state that recognises the right of every child to an adequate standard of living. This quantifies the state’s commitment to taking appropriate measures to assist parents and other people responsible for the maintenance of the child in the implementation of the right to an adequate standard of living (B Clark ‘The duty of the state to support children in need’ (2000) 117 (2) SALJ 342 at 343). This notion is also applicable in cases where either one or both parents have passed away and there is no other responsible person who is financially able to support the child. Visibly the child is in need of support and such child may be eligible for maintenance grants provided by the state.
In general, the state in South Africa, particularly through its laws, is adhering to the constitutional imperatives by providing social grants to children in need of support. However, there is no single and/or specific piece of legislation authorising the courts to grant an order obliging the state to provide support to children in need of maintenance. This means that it is in the discretion of the government institution providing children’s grants to designate according to its means and tests which children are in need of support and which should be awarded such support.
However, art 27(4) of the Convention on the Rights of the Child obliges state parties to take all appropriate measures to secure the recovery of maintenance for the child from the parents or others responsible for maintenance both from within the state party and abroad. This means that there is a duty on the state in South Africa to secure the recovery of maintenance for the child not only nationally but internationally too. In this regard, the state has both national and international measures that it must take to secure the recovery of maintenance for children in need of support. The state does this by providing for maintenance laws and maintenance courts to assist in the implementation and enforcement of maintenance orders.
Legislation
Maintenance Act 99 of 1998
The Maintenance Act was promulgated in 1998 to, inter alia, secure the recovery of maintenance for children from parents or other persons with a financial responsibility for the child. Section 15(1) states that a maintenance order is directed at the enforcement of the common law obligation of the parents to support their child that exists at the time of the issue of the maintenance order and that is expected to continue. In terms of s 15(3)(a) of the Act, the duty to support a child is an obligation the parents incur jointly. This obligation should be apportioned between the parents in accordance with their respective financial means.
The general principles of the South African law of maintenance are that, in order for a maintenance court to grant an order for child maintenance, the following four requirements should be met –
If one of the above requirements is not met, the court will not grant an order of maintenance.
However, the following are the shortcomings in the Maintenance Act that I have identified and which need the legislature’s urgent attention:
This means that in the above instances children whose parents have passed away, before or after the issuing of a maintenance order, will find no protection under the Act. These children will, however, be accorded protection automatically by operation of the law in that, according to South African law, the duty to support a child is an obligation that continues until the child becomes self-supporting. This duty exists irrespective of whether a maintenance order has been issued or not and it exists from the child’s birth.
In light of the above predicament, the Act should not be read and interpreted in isolation to any other law aiming to secure a child’s maintenance. The rescue provisions for children who have not approached the maintenance court for a maintenance order will therefore take place automatically by operation of law. In other words, they can lodge their maintenance claim against the executor of the deceased parent’s estate.
Children’s Act 38 of 2005
The Children’s Act came into operation on 30 April 2010 and encompasses almost every aspect pertaining to children. It quantifies the standard of the best interests of the child in s 9 and, in s 18, it sets out the parental responsibilities and rights a person may have in respect of the child. The latter includes the responsibility and the right to care for the child and to contribute to the maintenance of the child. In addition, the Children’s Act gives a children’s court the powers to issue a contribution order against the parents of the child, which will have the effect of a maintenance order in terms of the provisions of the Maintenance Act. This Act read with the Maintenance Act produces the result that both parents have an obligation to support their children in accordance with their respective financial means.
The Children’s Act further brings South Africa’s child care and protection law in line with the Bill of Rights (www.blacksash.org.za, accessed on 23-7-2010).
It is noteworthy to mention that the Children’s Act has the effect of placing the primary duty to support a child with the child’s parents and, secondly, it has the effect of bringing South Africa’s child care and protection law, including maintenance law, in line with the Bill of Rights by emphasising the care and protection of children.
The further impact of the Children’s Act on child maintenance is to introduce a system of pre-trial maintenance mediation in s 21(3)(a) in instances where there is a dispute between the parties regarding, among other things, the fulfilment by a parent of his maintenance obligation in respect of the child. It requires that the matter be referred to a family advocate, social worker, social service professional or other suitably qualified person who will endeavour to resolve the dispute.
It can be deduced from the above section that even in the situations where a child is claiming maintenance from a deceased parent’s estate, in the case of a dispute between the surviving parent and the executor representing the deceased parent’s estate, the matter will have to be referred to an independent professional to be resolved in accordance with the provisions of the Children’s Act prior to the matter being referred to trial. Disputes that may arise include those about the amount of maintenance to be paid.
Case law
South African case law also provides for a remedy where a duty of support is extended to the grandparents of the child, regardless of whether the child was born in or out of wedlock. This is emphasised by the decision in the Petersen case, where it was found that paternal grandparents are as liable to support their grandchildren as maternal grandparents are.
The courts in South Africa do grant orders authorising a maintenance claim from the deceased parent’s estate. However, they fail to provide for a maintenance remedy in situations where the estate is too small or is burdened with debts or where there is no estate at all. See, for example, the Ex Parte Insel decision, where it appeared that the obligation to support a child extended to a deceased parent’s estate and that this obligation took priority over all other bequests. However, in many decisions, including the Barnard case, it emerged that even though a child’s maintenance claim enjoys preference over the claims of heirs and legatees, it cannot enjoy same over the estate’s creditors .
However, as indicated above, it remains unclear whether the estate of the grandparents should be liable for a child’s maintenance.
Constitutional law
Constitution
The Constitution provides, in s 28(1)(b) and (c), that every child has the right to family or parental care or to appropriate alternative care when removed from the family environment, and has the right to basic nutrition, shelter, basic health care services and social services. It further provides, in s 28(2), that the best interests of the child are of paramount importance in every matter concerning the child. This provision envisages that the best interests of the child criterion should determine the outcome of every matter pertaining to a child and this includes a child’s right to maintenance since it is in the best interests of every child. This is in line with the earlier decision of Fletcher v Fletcher 1948 (1) SA 130 (A), where it was emphasised that the best interests standard must undoubtedly be the main consideration in matters involving children.
Convention on the Rights of the Child
The Convention on the Rights of the Child was ratified by South Africa in 1995. Article 3 provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Ratification by a state means that children who are in need of support may be eligible for special maintenance grants from the state.
Conclusion
Parental death has a great impact on the maintenance of a child. The parental estate may therefore be considered for possible settlement of a child’s maintenance.
However, the duty of support may extend to the nearest blood relations, including grandparents and siblings, after the death of either one or both of the parents.
Themba Alfred Ndaba LLB (University of Limpopo) is a maintenance prosecutor in the North West. This article is written in his personal capacity.
This article was first published in De Rebus in 2012 (March) DR 26.
