By Sechaba Mohapi
The grandparents’ duty of support was recently considered by the Western Cape Division of the High Court in N v B (WCC) (unreported case no 6573/14, 19-6-2014) (Butler AJ). The case concerned a maintenance officer’s directive that sought to hold a grandparent liable for maintenance in the absence of a prior maintenance order against the minor child’s parent.
Common law duty to support
It is trite that parenthood automatically ex lege, gives rise to the parental duty to support children (DSP Cronje & J Heaton South African Family Law 2ed (Durban: LexisNexis 2004) at 291). It is a sui generis common law duty (L Van Zyl Handbook of the South African Law of Maintenance 2ed (Durban: LexisNexis 2005) at 4), which arises on the child’s birth and in respect of which, both parents are obliged to support their children (Van Zyl (op cit); see also B Van Heerden, A Cockrell & R Keighthley (general editors) Boberg’s Law of Persons and the Family 2ed (Kenwyn: Juta 1999) at 241) proportionately and according to their respective means (Van Zyl (op cit)). This common law duty has been duly incorporated in s 15(3)(a) of the Maintenance Act 99 of 1998 (the Act), which provides the following:
‘(3)(a) Without derogating from the law relating to the support of children, the maintenance court shall, in determining the amount to be paid as maintenance in respect of a child, take into consideration –
(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;
(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and
(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.’
In terms of the common law, the duty of support is based on notions of ‘piety or affection’, arising ex ratione pietatis (by reason of respect) or ex aequitate caritateque sanguinis (out of fairness and the affection of a blood relationship) (Van Zyl (op cit); see also S v Badenhorst 1997 (1) SACR 311 (W)) and ex ratio naturalis (for natural reasons)). The common law duty of support is furthermore based on the principle that family ties entail responsibilities (AH Van Wyk ‘Familiereg’ 1984 Modern Business Law 18).
As acknowledged in s 15(3)(a) of the Act, it is furthermore trite that a parent’s duty to support arises, regardless of whether the child is born in or out of wedlock, and it subsists until the child becomes self-supporting, irrespective of the child’s attainment of the age of majority (TA Ndaba ‘Child maintenance after a parent’s death’ 2012 (March) DR 26 at 27). However, a major child is not entitled to support on as generous a scale as a minor child of the same parent (B v B 1997 (4) SA 1018 (SE) at 1021; Gliksman v Talekinsky 1955 (4) SA 468 (W)), and the onus will rest on the child to show their maintenance needs (Sikatele and Others v Sikatele and Others [1996] 2 All SA 95 (Tk)).
When a parent dies, this primary obligation to support the child will not cease or be extinguished, but will instead lie against the estate of the deceased parent (see Carelse v Estate de Vries (1906) SC 532; Goldman NO v Executor Estate Goldman 1937 WLD 64; Ex Parte Insel and Another 1952 (1) SA 71 (T); Lloyd v Menzies, NO and Others 1956 (2) SA 97 (N); and also LA Kernick Administration of Estate and Drafting of Wills 4ed (Cape Town: Juta 2006) at 22). Where a deceased parent’s estate is insufficient to cover the child’s support, or if there is no estate remaining to meet the maintenance needs of the child, the duty to support will be extended to the child’s maternal and paternal grandparents jointly (Ndaba op cit at 27).
Grandparents’ duty to support
The common law recognises a hierarchical duty of support. Voet (Percival Gane The selective Voet being the Commentary on the Pandects Paris edition of 1829, vol 4 (Durban: Butterworths & Co 1956) 363-364) sets a hierarchy of the duty of support requiring grandparents, and failing them, great-grandparents – in that ascending order – before considering relatives in the collateral line such as siblings. In Voet (Gane op cit), it is put thus:
‘Failing parents, grandparents jointly liable to maintain grandchildren – If father and mother are lacking or are needy, the burden of maintaining grandchildren and other further descendants has been laid by the Civil law on the paternal and maternal grandfather and the rest of the ascendants; with the reservation that much is left to the discretion of the judge. It follows from this that by the customs of today the giving of maintenance to needy grandchildren, just as it is deemed a common burden on father and mother, so also is the burden deemed to be common to grandfather and grandmother.’
In Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E) at 510, the court affirmed that there is an ‘order of priority’ and that if parents are not able to support their children, the duty to support falls on paternal and maternal grandparents. And in Petersen v Maintenance officer, Simon’s Town Maintenance Court and Others 2004 (2) SA 56 (C), the court recognised that paternal grandparents have a duty of support towards a grandchild despite the child being born out of wedlock.
These authorities relating to the grandparents’ duty to support are consistent with the Supreme Court of Appeal’s (SCA) relatively recent framing of the grandparent’s ‘rights and responsibilities’ under the Children’s Act 38 of 2005 (Children’s Act) in FS v JJ and Another 2011 (3) SA 126 (SCA). In that case – said to be the first reported grandparents’ dispute since the enactment of the Children’s Act (A Louw ‘Children and Grandparents: An overrated attachment?’ (2013) 24(3) Stellenbosch Law Review 618 at 634 – 635) – the SCA essentially found that a parent’s rights and responsibilities ‘outrank’ those of grandparents and on that basis, it overruled a ‘care order’ that had been issued in the grandparent’s favour. Consequently, Louw has levelled the following criticism against FS v JJ (at 634 – 35):
‘Judging from the outcome of the dispute in FS v JJ it seems as though the courts still regard the co-assignment, of at least care and guardianship, as an intrusion upon the biological parent’s exercise of those responsibilities and rights. This approach contradicts the expectation of a new approach in terms of which it is deemed in the child’s best interests to have as many persons as possible assuming a parenting role. The new approach would create what could rightfully be regarded as a “democracy of parenthood” instead of a dictatorship by parents.
The multiple parenting scheme is far more likely to become viable where there are no longer parents who can dictate the role to be played by the non-parents – a scenario which is unfortunately becoming more and more common in South Africa as the devastation of the HIV/AIDS epidemic takes its toll’ (my italics).
This criticism, seems fair in light of the changed legal landscape owing to provisions of s 28 of the Constitution, as well as the Children’s Act, which further notes the following (at 620):
‘While the lack of legal recognition of grandparents in the past could perhaps have been justified by the emphasis placed on the preservation of the nuclear family and the exercise of parental rights, the continuation of such disregard has become questionable in the light of a number of developments including, inter alia, –
(i) the entrenchment of a child’s constitutional right to “family care” in section 28(1)(b) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”);
(ii) the growing recognition of non-parents and the multiple parenting scheme which the new Children’s Act ostensibly seems to promote; and
(iii) the generally held belief that a child’s attachment to a grandparent is of such importance that to disregard its benefits would be detrimental to the child’s best interests and therefore constitute an infringement of a (grand) child’s rights in terms of section 28(2) of the Constitution.’
Apart from the child becoming self-supporting as already mentioned, the duty to support is only terminated –
Regulation 3 of the Act
It is evident from the above discussion relating to the duty to support that there is no presumption concerning the maintenance needs of the claimant, nor is there one relating the defendant’s means to support. This justifies the legislative scheme of the Act and regulations, which of necessity enable and empower the maintenance officer to issue reg 3(1) directives to enable him or her to investigate or inquire into aspects of the –
(a) maintenance needs of the claimant on the one hand; and on the other
(b) the maintenance obligations and means of the defendant.
Regulation 3(1) provides the following:
‘A maintenance officer may, in investigating a complaint and with due consideration to expediting the investigation of that complaint, direct the complainant and the person against whom a maintenance order may be or was made to –
(a) appear on a specific time and date before him or her; and
(b) produce to him or her on the date of appearance information relating to the complaint and documentary proof of the information, if applicable’ (my italics).
The regulation thus clearly confers a discretion on the maintenance officer, which enables him or her to investigate a maintenance complaint. Thus, ‘information relating to the complaint’ necessarily includes evidence refuting maintenance liability. In the context of the hierarchy of the duty of support, such evidence (comparably akin to the surety’s benefits of excussion) would for instance include a grandparent’s proof absolving them from paying maintenance on the basis that a maintenance order may first be sought against a parent or that the parent has means to support.
Regulation 3(1) and the powers it gives to a maintenance officer to exercise a discretion in calling grandparents to determine their maintenance liability is necessary as there are different duties to support categories recognised by the law and the maintenance officer must be afforded the procedural means to investigate what will yet be placed before a Maintenance Court, where defendants will still be able to oppose the claim before the court makes a determination on their maintenance liability. Thus, when the maintenance officer issued the directive against a grandparent in N v B, the grandparent could have made legal representations to the maintenance officer that a claim against the parent, be first pursued, before invoking the grandparent’s duty to support (De Klerk v Groepies NO and Others (GSJ) (unreported case no 31156/2012, 28-8-2012) (Kgomo J)). For it is intrinsic in the maintenance officer’s discretion and powers under the regulation that he or she duly considers any such representations in the proper exercise of such discretion and powers.
Sechaba Mohapi (LLB) NWU is a law researcher at the Supreme Court of Appeal in Bloemfontein. Article written in personal capacity.
This article was first published in De Rebus in 2016 (April) DR 28.
