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The case of Van Zyl NO v Getz NO [2020] 3 All SA 730 (SCA) presented a golden opportunity for the Supreme Court of Appeal (SCA) to provide the long-awaited clarity regarding a legal question that has been surrounded by uncertainty for decades. Unfortunately, the opportunity was missed owing to poor strategic litigation and ignominious judicial service in the High Court. However, the SCA’s approach is not beyond reproach as it could have done more than it did in the interests of justice and legal certainty. The ‘further reason’ for its conclusion is potentially problematic as it may unduly fetter the powers of the courts to develop the common law in terms of ss 8(3) and 39(2) of the Constitution. This article is a critique to the court’s approach.
B a minor stayed with her mother and her father left South Africa (SA) to reside in the United States (US). The appellant (B’s curatrix ad litem) alleged that her father could not be traced. She also alleged that B’s mother could not meet B’s financial needs. When B’s grandfather died, she lodged a maintenance claim against his estate and alleged that the deceased was able to maintain B during his lifetime and that his estate was able to do so after his death. The claim was rejected by the executors of the estate on the basis that the common law, as enunciated in Barnard, NO v Miller 1963 (4) SA 426 (C), does not recognise such a claim. The appellant instituted legal proceedings in the Western Cape Division of the High Court (WCC) claiming damages against the executors for their failure to recognise B’s claim. On agreement between the parties, the issues for determination were separated in terms of r 33(4) of the Uniform Rules of Court and were determined without leading any evidence. The High Court made an order in favour of the respondent, without furnishing reasons. On appeal to the SCA, the parties agreed to have the matter determined without oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013 and based on the stated case containing both facts and assumptions. The allegations made by the appellant, although some were denied by the respondent, were assumed for purposes of adjudicating the stated case.
To surmount the jurisprudential hurdle posed by Barnard, the appellant implored the SCA to develop the common law in terms of ss 8(3) and 39(2) of the Constitution to recognise a grandchild’s claim for maintenance against the estate of a grandparent.
She argued that a failure to recognise the claim is inconsistent with ss 10 and 28 of the Constitution. The respondent argued that the agreed and assumed facts do not support the suggested development and that there are constitutional and public policy considerations that militate against judicial interference with the right of individuals to arrange their private affairs. Lastly, that the proposed development should be ‘left to Parliament as the major engine for law reform’ as it goes ‘beyond the ordinary scope of judicial functions’. The suggested development was to occur against the backdrop of conflicting judgments in Barnard and Lloyd v Menzies, NO and Others 1956 (2) SA 97 (N) at 102. In Lloyd, the court held that ‘it would be illogical not to maintain the liability upon the estate of anyone who, if living, is under the duty to provide support’ and rejected the argument that recognising the claim would ‘interfere unduly with freedom of testation’ and that it would be ‘contra bonos mores’. However, the reasoning in Lloyd was rejected by the court in Barnard on the basis that the claim could not be recognised based on ‘presumed illogicality’ and that the question is not ‘whether it would be illogical’ to recognise the claim but whether doing so is ‘warranted by our law’. It stated that recognising it based on ‘supposed logic’ would be to usurp the functions of the legislature.
The SCA stated that the common law develops incrementally through the rules of precedent and that the development does not occur in a ‘factual vacuum’. It found that the suggested development was not supported by the agreed and assumed facts and that it entailed a complete change of a common law rule which could only be undertaken ‘after hearing all the evidence’ and in ‘light of all circumstances of the case, with due regard to all the relevant factors’. It found that the inability of B’s father to support B had not been established and that the obligation could not be assumed or transferred to B’s grandparents or their estates. Moreover, that the inability of B’s living grandparents to support her had not been established. The court also observed that the suggested development implicated the right to human dignity, equality, and freedom of testation and that it was ‘inappropriate’ because of its ‘nature’ and ‘effect’ ‘on the law of succession and other foundational values of the Constitution’. The court concluded that the development was ‘quite drastic’ as it dealt with ‘social policy’ regarding the maintenance of children by their parents and the freedom of testation of grandparents and that only Parliament should ‘decide whether the common-law rule should be developed and, if so, how’.
The way the case was litigated and adjudicated in the High Court is undoubtedly ignominious. Instead of sanctioning the ill-considered procedural choices of the litigants, the High Court should have exercised its discretion as the ‘upper guardian in matters involving the best interests of the child’ and ordered a full hearing of the matter (Kotze v Kotze 2003 (3) SA 628 (T) at 630F). Absent the critical facts underscored by the SCA and a reasoned High Court judgment, the SCA was implored to develop the common law in a ‘factual vacuum’ and as a court of first instance. This could not be done. The ‘delicate and difficult’ task of developing the common law should begin in the High Court (Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) at para 79). The process requires ‘close and sensitive interaction’ among the High Courts, the SCA and CC (Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) at para 55). Therefore, the ‘views and approach’ of the High Court – not just the SCA – ‘are of particular significance and value’ when developing the common law (Lane and Fey NNO v Dabelstein and Others 2001 (2) SA 1187 (CC) at para 5). For these reasons, one can hardly fault the SCA for declining to develop the common law in this case. But did it do enough as the custodian of the common law? I think not. The court should have devised means to clear the identified procedural labyrinths to enable the necessary development of the common law. It could have called for and received further evidence in terms of s 19(b) of the Superior Courts Act regarding the skimpy factual details. Alternatively, it could have remitted the matter to the High Court for a full hearing with necessary instructions in terms of s 19(c). The court enjoys inherent powers to protect and regulate its own process (s 173 of the Constitution) and was at liberty to explore the potential viability of a grandchild’s claim against an estate of a grandparent without making a finding on the facts of the case. This attractive approach was adopted by the Constitutional Court (CC) in H v Fetal Assessment Centre 2015 (2) SA 193 (CC). It was arguably in the interests of justice for the SCA to provide clarity on this area of the common law given the fact that it implicated the rights of the most vulnerable of our society – children. Moreover, Lloyd and Barnard are judgments of different divisions of the High Court and, a division of the High Court is not necessarily bound by a decision of another division (The Law of South Africa vol 10 3ed (Durban: LexisNexis) at p 527). As Mohamed Paleker rightly observed, ‘the courts have not overwhelmingly rejected such claims, nor have they strongly endorsed them’ (Mohamed Paleker ‘A grandchild’s claim to maintenance from a deceased grandparent’s estate’ (2014) 1 Acta Juridica 41). Therefore, both Lloyd and Barnard are good law as they have not been expressly overruled by the SCA. The fact that the common law in this area is in a ‘state of flux’ calls for the SCA’s authoritative voice. It is necessary to re-evaluate both Lloyd and Barnard against extant public policy and constitutional values as the two judgments are from a pre-constitutional dispensation.
The SCA’s ‘further reason’ for declining to develop the common law is, with respect, unconvincing as it implies that, even with all the relevant facts, the court would have declined to develop the common law. The upshot of it is that the suggested development is drastic and overreaching and should be left to the legislature to undertake. Short of its linguistic veneer, it is a separation of powers argument. The argument is unconvincing and was rightly rejected by the court in Lloyd. The argument may have held sway then, but it cannot now – at least not assuredly. Sections 8(3) and 39(2) of the Constitution bestow the courts with explicit and extensive powers to develop both the common law and customary law as required by the spirit, purport, and objects of the Bill of Rights. Deferring development of the common law to the legislature is no longer fashionable. The courts have indeed handed down judgments that drastically changed the rules of the law of succession both in the common law and customary law areas (Petersen v Maintenance Officer, Simon’s Town Maintenance Court, and Others 2004 (2) SA 56 (C) and Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC)). In some instances, they have altered legislation governing the law of succession (Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) and Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC)). This is emblematic of the extensive nature of the courts’ powers to align the law with the dictates of the Constitution. The invocation of the doctrine of separation of powers as the basis for refusing to develop common law rules is therefore unconvincing to say the least (Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) at para 115). More so in this case because the courts have, on several occasions, developed the common law rules governing succession, untrammelled by the doctrine. Judicial development of the common law cannot be considered ‘inappropriate’ simply because it implicates foundational values of the Constitution or a panoply of constitutional rights. If anything, that invites judicial intervention to balance the contesting values and rights appropriately. The courts should be wary of deferring common law development to Parliament as the latter is always at liberty to alter the common law through legislation even after the courts have developed it. Doing so, without compelling reasons, may be considered an abdication of responsibility.
The way the Van Zyl NO case was litigated and adjudicated in the High Court deserves the censure expressed by the SCA. Both the High Court and the litigants should have done better. However, the SCA could, arguably, have done more than it did. The litigation and adjudicative bloopers in the High Court simply demonstrate that the duty to align our laws with the dictates of the Constitution requires a collaborative effort between judicial officers and legal practitioners as officers of the courts. Thus, transformative adjudication requires legal practitioners to assist the courts by properly identifying constitutionally misaligned areas of the law and choosing apposite litigation techniques to align them. Such a collaborative approach would foster incremental and timely transformation of the South African legal system. As Van der Westhuizen J observed extra-curially, the suffusion of the South African legal system with constitutional values requires a ‘massive joint effort’ from various role players, including the legal profession (Van der Westhuizen J ‘A few reflections on the role of courts, government, the legal profession, universities, the media and civil society in a constitutional democracy’ (2008) 8 AHRLJ 251 at 257).
Ndivhuwo Ishmel Moleya LLB (Univen) LLM (Unisa) is a legal practitioner at Cheadle Thompson & Haysom Inc in Johannesburg and writes in his personal capacity.
This article was first published in De Rebus in 2021 (July) DR 16.
