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[2020] ZASCA 84
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Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84; [2020] 3 All SA 730 (SCA) (6 July 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 548/19
In
the matter between:
PHILLIPA
SUSAN VAN ZYL NO
APPELLANT
(In
her capacity as
curatrix ad litem
to B T)
and
KEITH
GETZ
NO RESPONDENT
Neutral
citation:
Phillipa
Susan van Zyl NO v Getz
(548/19)
[2020] ZASCA 84
(6 July 2020)
Coram:
MAYA P and ZONDI,
SCHIPPERS and PLASKET JJA and GORVEN AJA
Heard
:
No oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 6 July 2020.
Summary:
Uniform
Rules of Court – rule 33(4) – stated case to determine
whether estate of deceased grandparent has duty to support
grandchild
– both parents alive – father’s whereabouts and
financial means unknown – no facts showing mother’s
support inadequate – not a proper case to decide legal issue
separately under rule 33(4) – inappropriate to determine
whether common law should be developed in terms of secs 39(2) and 173
of the Constitution to provide for said duty – order
by court
below two years after hearing without reasons – improper –
duty of Judge to deliver judgment expeditiously.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Kose AJ, sitting
as
court of first instance):
1 The appeal is dismissed with no
order as to costs.
2 The Registrar of the court is
directed to forward a copy of this judgment to the Judicial Service
Commission to investigate the
conduct of Acting Judge Kose.
JUDGMENT
Zondi
JA (Maya P and Schippers and Plasket JJA and Gorven AJA concurring)
[1]
The issue in this appeal is whether it is appropriate to develop two
rules of the common law that govern the legal duty of support
of
grandchildren by grandparents. The first basic rule provides
that where a grandchild is in need of support, his or her
grandparent
will have a legal duty to maintain him or her, only if both parents
are unable to support the child and the grandparent
is able to
provide support.
[1]
The rule is not
clear as to a situation where the parents or one of them is able but
unwilling to support the grandchild, or cannot
be found. The second
rule as set out in Barnard NO v Miller
1963 (4) SA 426
(C) is that a
legal duty to support a grandchild is not enforceable against a
grandparent’s deceased estate. It is this rule
that we were
asked to develop so that the common law would recognise a duty of
support on the part of a grandparent’s deceased
estate.
[2]
The background to the matter is the following. The appellant,
Phillipa Susan Van Zyl, in her capacity as the
curatrix
ad litem
to B T (B) instituted action for damages on behalf of B against the
respondent in his capacity as an executor in the estate of
the late S
T in the Western Cape Division of the High Court, Cape Town (high
court). She alleged that B suffered damages as a result
of the
respondent’s and his co-executor’s failure to recognise
B’s claim for maintenance in the estate of her
deceased
grandparent. The respondent and N T (N) were appointed co-executors
in the estate of the late S T (S or the deceased),
B’s
grandfather. N was B’s grandmother and was married to the
deceased. She sadly passed away on 21 October 2012. Neither
she nor
her executor participated in the proceedings in the high court.
[3]
In his will, the deceased left his entire estate to N. The net value
of the estate was R554 799.82. A claim for maintenance
was
lodged on behalf of B against the deceased’s estate. This claim
exceeded the total value of the estate available for
distribution.
The executors rejected B’s claim for maintenance on the basis
that there is no obligation in law on a grandparent’s
estate to
maintain a grandchild. This rejection was in accordance with the
common-law rule as set out in
Barnard
.
The basis for the claim instituted by the appellant was that the
payment made to N was in contravention of
s 35
of the
Administration
of Estates Act 66 of 1965
and was wrongful and caused B to lose her
claim for payment against the deceased’s estate.
[4]
As the common-law rule set out in
Barnard
stood
in the way of B’s claim for maintenance against S, the
appellant sought an order in terms of
s 172(1)
(a)
of
the Constitution declaring that the common-law rule in
Barnard
is inconsistent with the Constitution and invalid. The appellant
further sought an order in terms of secs 8(2)
(a)
and
173 of the Constitution declaring that henceforth, the common-law
rule is that when parents or their deceased estates are unable
to
support their children who are in need of support and the
grandparents are deceased, there is a duty on the grandparents’
deceased estates, if they are able to do so, to support the
grandchildren.
[5] The parties agreed, in terms of
rule 33(4) of the Uniform Rules of Court, that certain issues be
separately adjudicated from
and prior to all other issues. The
high court issued a direction to this effect in terms of rule 37(8).
The separated issues
were the following:
‘
5.1.
whether, at all relevant times during the lifetime of the late S T,
if he could do so he was legally obliged to maintain his
granddaughter B T (“B”) to the extent that his son, who
is B’s father, L T (“L”) did not do so and
B’s
mother T T (“T”) could not do so;
5.2.
whether, at all relevant times after S’s death, his deceased
estate was legally obliged to maintain B to the extent that
L did not
do so and T could not do so;
5.3.
whether the Court should make an order in terms of section 172(1)(a)
of the Constitution of the Republic of South Africa, 1996
(“the
Constitution”) declaring that the common-law rule articulated
in
Barnard NO v Miller
1963 (4) SA 426
(C) that the deceased
estates of grandparents are not liable to maintain the deceased’s
grandchildren is inconsistent with
the Constitution and invalid;
5.4.
whether the Court should make an order in terms of sections 8(2)
(a)
and 173 of the Constitution declaring that henceforth the common-law
rule is that:
5.4.1.
when parents or their deceased estates are unable to support their
children who are in need of support; or
5.4.2.
one of the parents does not support his or her children who are in
need of support and that parent cannot be traced and the
other parent
or his or her deceased estate is unable to support such children; or
5.4.3.
both of the parents do not support their children who are in need of
support and both parents cannot be traced; and
5.4.4.
the grandparents are deceased
or one of the grandparents is
deceased
, there is a duty on the grandparents’ deceased
estates,
or on the grandparent’s deceased estate
, if
they
are or it is
able to do so, to support the said
grandchildren; and
5.5.
the costs of the separated proceedings.’
[6]
The parties further agreed on a stated case containing the facts and
assumptions relevant to the determination of the separated
issues and
that the separated issues would be determined on the basis of the
stated case alone, without any evidence being led.
[7]
The matter was heard by Kose AJ on 6 September 2016. She reserved
judgment. Some two years later, on 15 October 2018, following
entreaties from the parties’ legal representatives and attempts
by the Judge President to get her co-operation, she made
an order,
without furnishing reasons. She decided the separated issues in
favour of the respondent and directed that each party
pay its own
costs.
[8]
The appellant sought leave to appeal to this Court without requesting
and waiting for reasons from Kose AJ. This was because
she had long
since ceased serving as an acting judge of the court below and due to
fear that this would again result in an inordinate
delay. On 30 April
2019, Judge President Hlophe heard and granted the application for
leave to appeal to this Court. The parties
agreed to have the appeal
determined without an oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
.
[9]
Before setting out the facts and assumptions contained in the stated
case, I am compelled to comment on two disturbing features
of this
case. The first is the inordinate delay by Kose AJ to deliver
judgment. As I have pointed out above, it took her more than
two
years to make an order in this matter and this was only done after
the intervention of the Judge President. The delay is grossly
unreasonable and is lamentable.
[10] Secondly, Kose AJ’s failure
to supply written reasons for her decision is equally lamentable. The
appellant, fearing
further delays, was forced to apply for leave to
appeal without reasons. Leave to appeal was granted to this Court and
we considered
the appeal without the benefit of a reasoned judgment.
[11]
I can do no better than quote with approval what the Constitutional
Court stated in
Strategic
Liquor Services
:
[2]
‘
It
is elementary that litigants are ordinarily entitled to reasons for a
judicial decision following upon a hearing, and, when a
judgment is
appealed, written reasons are indispensable. Failure to supply them
will usually be a grave lapse of duty, a breach
of litigants’
rights, and an impediment to the appeal process. In
Botes
and Another v Nedbank Ltd
,
Corbett JA pointed out that “a reasoned judgment may well
discourage an appeal by the loser”:
“
The
failure to state reasons may have the opposite effect. In addition,
should the matter be taken on appeal, as happened in this
case, the
Court of Appeal has a similar interest in knowing why the Judge who
heard the matter made the order which he did”.’
[12] The court went on to hold at para
17:
‘
.
. . Judges ordinarily account for their decision by giving reasons –
and the rule of law requires that they should not act
arbitrarily and
that they be accountable. Furnishing reasons─
“
explains
to the parties, and to the public at large which has an interest in
courts being open and transparent, why a case is decided
as it is. It
is a discipline which curbs arbitrary judicial decisions. Then, too,
it is essential for the appeal process, enabling
the losing party to
take an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal. It assists
the appeal Court to
decide whether or not the order of the lower court is correct. And
finally, it provides guidance to the public
in respect of similar
matters.”’
(Footnotes
omitted.)
[13]
In
Mphahlele
,
[3]
the Constitutional Court observed that although there is no express
constitutional provision requiring the judges to furnish reasons
for
their decisions, a reasoned judgment is indispensable to the appeal
process.
[14]
It is clear that poor judicial service was rendered in this matter.
The delay to take a decision as well as a failure to give
reasons for
the order that was made, was unreasonable. It is for this reason that
it was decided that the Registrar of this Court
should be directed to
forward a copy of the judgment to the Secretariat of the Judicial
Service Commission for it to inquire into
the conduct of Kose AJ.
[15] With this background I return to
the facts of this matter. The stated case contained the following
facts and assumptions:
(a)
On 7 July 1990 B was born of the marriage between T and L, the son of
S and his wife N. B is thus the granddaughter of
S and N.
(b)
B is a psychiatric patient with bipolar affective disorder, mild
intellectual disability and an autism spectrum disorder.
Consequently,
at all relevant times during S’s lifetime and
after his death she was not self-supporting and required maintenance
and that
remains the position.
(c)
On 25 July 2001, the marriage between L and T was dissolved by an
order of divorce of the Western Cape Division of the High
Court, Cape
Town. In terms of the order sole custody and sole guardianship of B
was awarded to T and L was obliged to maintain
B until she became
self-supporting.
(d)
Prior to the grant of the divorce order, L left South Africa to
reside in the USA. He has failed to keep in contact with T and
B. The
appellant alleged that despite sustained attempts by T she has been
unable to trace him. The fact that L could not in fact
be traced or
that all reasonable efforts were made to establish his whereabouts
was not admitted by the respondent.
(e) L has failed to maintain B in
terms of the divorce order or at all. L’s financial position
and the extent to which he
has been or is able to maintain B are not
known. B receives a government disability grant of R1 410 per
month which is insufficient
for her needs.
(f)
At all relevant times T has been B’s only other source of
financial support and has maintained her to the best of her
ability.
T has been unable to meet all B’s financial needs and that
remains the position. These allegations were not admitted
by the
respondent but the parties assumed its correctness for the purposes
of adjudicating the stated case.
(g)
The appellant alleges that at all times during S’s lifetime he
was able to maintain B to the extent that L did not do
so and T could
not do so. The respondent did not admit this allegation but its
correctness was assumed for the purposes of adjudicating
a stated
case.
[16]
On 29 August 2004, S died. In his will he left the whole of his
estate to his wife N and appointed the respondent, who is an
attorney, and N, as the executors of his estate.
[17]
At all times after S’s death and until the payment of
R554 799.82 by Getz and N (in their capacities as executors
of
the estate) to N (in her personal capacity as S’s sole heiress)
described below, the estate was able to maintain B to
the extent that
L did not do so and T could not do so. In this regard, it is recorded
in the stated case that although the respondent
denied these
allegations, for purposes of adjudication of their stated case the
parties proceeded on the assumption that they are
correct.
[18] As I have already stated, a
maintenance claim that was lodged on behalf of B against S’s
estate was rejected by the respondent
relying on the common-law rule
as set out in
Barnard.
The current legal position in
regard to the duty of support
[19]
Liability to maintain ex lege
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.
[4]
[20]
The common law recognises 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.
Section 18(2)
of the Children’s Act 38
of 2005 maintains this position. There is a reciprocal duty of
support between parents and children.
If parents are unable to
support their children who are in need of support, other relatives
including grandparents, may be obliged
to support them.
[5]
But that duty is imposed first upon a nearer relative before it moves
to remoter ones.
[6]
[21]
The duty of maintenance or support between certain relatives was
fairly well-established under the common law. But it was not
clear
whether such duty ended with the death of a person responsible or
whether it was transmitted to his or her heirs (or estate).
Professor
Beinart deals with this subject extensively in
1958 Acta Juridica 92
in his article entitled
Liability
of a Deceased Estate for Maintenance
.
He points out that under the Roman law the duty of support (
alimenta
)
could arise either from contract, or from legacy, or by operation of
law. After a thorough review of old authorities including
Voet (D
34.1) who dealt with transmissibility of the duty of support arising
from contract or from legacy; he concludes at 95,
that the principle
of transmissibility was well-established in the case of legacies. And
the duty could even pass to the heirs
of the legatee initially
charged with the legacy until the duty was discharged. It was only
where the tenor of the will implied
the contrary that there would be
no transmission of the duty.
[22]
As regards the transmissibility of a duty of support imposed by law,
Beinart at 101, states that the Roman law did not recognise,
nor felt
the need for recognising the principle of transmissibility of the
duty of support except in the case of extreme need of
the person to
be maintained. This was so, Beinart explains, because the Romanists
generally regarded the duty of support as highly
personal to the
person owing the duty and accordingly the duty would transmit to the
heirs of such person. With regard to the position
under the Dutch law
of succession Beinart points out that it would seem that the Roman
rule had received little extension in the
Netherlands. Support
ex
lege
was dealt with in D 25.3. He observes at 104 that although
Groenewegen discussed transmissibility in connection with legacies of
alimenta
,
he is silent on the point when he commented on D 25.3 dealing with
alimenta
ex
lege
.
[23]
It is clear from this historical analysis of a maintenance claim
against deceased estates that in Roman-Dutch law the estate
of a
deceased person did not assume his or her liability to maintain a
grandchild. However, in
Carelse
v Estate de Vries
[7]
the court, relying mistakenly on Groenewegen, ad D 34.1.15, held that
the duty to maintain was transmissible to the estate of a
deceased
person. Beinart points out at 104, that the court in
Carelse
misread a passage in Groenewegen.
[8]
He notes that Groenewegen, although he discusses transmissibility in
connection with legacies of
alimenta
,
is silent on the point when commenting on D 25.3 dealing with
alimenta
ex
lege
.
Despite this Court acknowledging that it had been extended to
parents’ estates in error,
Carelse
and subsequent decisions to similar effect were held to be settled
law.
[9]
As to how the child’s claim for maintenance was to be treated
in the parent’s estate the court held in
Goldman
[10]
that it is a debt resting on the estate which must be satisfied
before any payments of legacies are made. Payment of the estate’s
debts takes precedence over payment of claims for support.
[11]
The success of a claim does not depend on whether the parent’s
estate is still intact or not.
[12]
[24]
While the liability of a parent’s estate for the child’s
maintenance is now well-established, liability of the
grandparent’s
deceased estate for the support of the grandchildren still remains
open.
Lloyd
,
[13]
has been said to extend the rule in
Carelse
to
hold a grandfather’s estate liable to support grandchildren.
The court stated that it would be illogical not to do so,
because,
had the grandfather been alive, he would indeed have had a duty to
support.
[25] In
Lloyd
the court was
concerned with a claim by a widowed mother against her father’s
estate for the maintenance of her three children.
Her father’s
estate was under administration, in terms of his will, in trust in
the hands of three trustees. In paragraph
1 of her notice of motion
the widow sought an order:
‘
That
with effect from the date of the death of (their father) . . . the
administrators testamentary in the estate of the late Patrick
Sarsfield McNamee, be and they are hereby authorised and empowered
out of the surplus income of the estate to expend a sum not
exceeding
seven hundred and fifty pounds (£750) per annum to maintain and
educate in such manner as they may consider desirable
the three minor
children of (the applicant). . .’.
[26] In paragraph 2 she sought:
‘
That
such monies as may be expended by the said administrators in terms of
clause 1 of this order shall be debited against such
monies as (the
applicant) may become entitled to from the estate of the late Patrick
Sarsfield McNamee, or if such monies be insufficient
therefor, then
against such monies as the said three minor children may become
entitled to from the said estate.’
[27] The court at 100 characterised
the widow’s claim as follows:
‘
It
will have been observed that the applicant does not claim an order on
the administrators to provide maintenance for her children,
but seeks
authority and power for them to expend a sum not exceeding £750
per annum; and that the applicant contemplates
refund being made to
the estate of so much as is so expended.’
[28] The administrators (trustees)
opposed the application on the following grounds:
‘
(a)
It would interfere unduly with freedom of testation to hold a
grandfather’s estate liable;
(b)
A father is directly responsible for the existence of his offspring
and it would accordingly be contra bonos mores to allow
a father to
bring children into the world and avoid responsibility for them by
himself departing from the world. That is why the
father’s
estate is liable. This argument does not apply to grandparents.’
[29]
The court observed at 102E that the question whether the estate of a
deceased parent was liable for the support of his child
was a matter
of conflict between Voet and Groenewegen; noting that the former
answered in the negative and the latter in the affirmative.
Relying
on
Carelse,
which
adopted Groenewegen’s view, and subsequent cases which followed
Carelse
,
the court held that because it was accepted that a deceased parent’s
estate could be held liable for maintenance, it would
be ‘illogical
not to maintain the liability upon the estate of anyone, who, if
living, is under the duty to provide support.’
[30] Consequently the court made an
order in terms of the relief the widow sought in para 1 of the notice
of motion and also in
para 2 in amended form which read:
‘
That
such monies as may be expended by the said administrators in terms of
clause 1 of this order shall be debited against such
monies as (the
applicant) may become entitled to from the estate of the late Patrick
Sarsfield McNamee, or if such monies be insufficient
therefor, then
the monies, or balance thereof, expended by the administrators in
respect of each such minor child shall be debited
against such monies
as each such child respectively may become entitled to receive from
the said estate.’
It
should be noted that, rather than this being a claim for maintenance
against the deceased estate, it was tantamount to the amendment
of
the provisions of the trust created in the will of the deceased.
[31]
The reasoning in
Lloyd
that it would be illogical not to extend a duty of support to a
grandparent’s estate was criticised by Hahlo
(1959) 76 SALJ 234
and by Ludorf J in
Glazer
.
[14]
It was also criticised by Bloch J in
Barnard
who declined to follow it.
[32] Hahlo doubted the soundness of
the extension of the
Carelse
principle to a grandfather’s
deceased estate. The basis of his criticism (at 236) is that:
‘
Liability
to maintain
ex
lege
is based on three factors: the claimant’s inability to support
himself; his relationship to the person from whom he claims
support;
and the latter’s ability to provide maintenance. With the death
of the person who has the obligation of support,
two of these factors
undergo a change. The deceased’s earned income ceases and his
estate devolves upon heirs who may or
may not be liable to support
the claimant. To hold as a general rule that liability to provide
maintenance
ex
lege
is in every case transmitted to the estate of the person under
obligation is to treat an estate as if it were the continuation
of
the deceased’s personality and may well result in shifting the
burden of maintenance on to persons who are not legally
liable to
carry it.’
[33] In
Barnard
the court was
concerned with a claim based on the
condictio indebiti
by the
father of three minor children against the heir of the children’s
maternal grandfather. The father’s case was
that the deceased
estate of the maternal grandfather was under a duty to maintain the
three children. No such claim for maintenance
had been made during
the grandfather’s lifetime or before his deceased estate had
been fully administered upon the payment
of the amount due to his
heiress. The first such claim to be made was against the heir of the
heiress after her deceased estate
too had been fully administered and
the bequest due to him had been paid. Bloch J rejected the claim. He
declined to follow the
reasoning of Caney J in
Lloyd
, namely
that it would be illogical not to extend the
Carelse
principle
to cover the estates of grandparents because parents and grandparents
were both classes of persons who, if living, are
under a duty to
provide support to their children or grandchildren. The reasons for
Bloch J’s decision appear from the following
excerpts of his
judgment (428B-D):
‘
The
question is not one as to whether it would be illogical or otherwise
to extend a remedy, but whether such extension is warranted
by our
law. Certainly under the old law such an extension was not permitted,
and to make the extension to-day merely on the grounds
of supposed
logic would be for the Court to arrogate to itself the functions of
the law-maker.
I
also have difficulty with the virtue which seems to have been derived
out of the fact that the estate was still intact at the
time when an
order of maintenance was made against it by CANEY, J. If the
transmissibility to an estate is to be permitted I see
no reason for
incorporating a requirement that the estate must still be intact at
the moment when the question falls to be decided,
and this seems to
me to be a quite irrelevant factor.’
[34] And he went on to state at
428D-G:
‘
As
I see our common law no case before that of
Lloyd
v Menzies
lays down that there is a transmissibility of obligation to the
estate of a grandparent. If anything, our law has erroneously gone
further than the authorities permit in finding transmissibility in
the case of the estate of parents themselves. It may be too
late, and
undesirable, to alter what has already been generally laid down, but
no case seems to have been made out for extension
of liability to the
case of the estate of a grandparent, whether on the paternal or
maternal side. The case of
Glazer,
N.O v Glazer
[1962 (2) SA 548
(W)] is an illustration of the refusal of the Court
to enter the province of lawmaking. The law did not admit maintenance
of a
wife out of the estate of her deceased husband. Questions of
logic do not enter into the consideration. I similarly feel that in
the case of maintenance through an estate of a grandparent there had
been no basis in law at all prior to the decision in
Lloyd
v Menzies
,
and I do not regard the latter decision as sufficient in itself to
warrant a legal extension of transmissibility.’
[35] And Bloch J had this to say at
428G-H:
‘
For
myself I can see every reason why there should not be
transmissibility to the estates of grandparents. The door would be
opened
wide to complete uncertainty as to the devolution of the
estate of a grandparent. The uncertainty would necessarily have to
prevail
for a considerable period of time until it could be
established finally and completely that there would be no claim made
upon a
grandparent’s estate or upon his heir/s by
grandchildren. Such uncertainty, it seems to me, is extremely
undesirable. If
it were necessary, the necessity should be created,
if at all, by the lawgiver and not by a Court of law.’
[36]
Barnard
has not been
without criticism.
Mackintosh & Paleker
(2014) Acta
Juridica 41
at 59 state:
‘
The
reason evinced in
Barnard
v Miller
and
subsequently endorsed by some academic writers for the reluctance to
recognise a claim for maintenance against a deceased grandparent’s
estate may have held sway in the past, but they certainly cannot
justify a denial of the claim today, especially in light of the
Bill
of Rights. It is submitted that the non-recognition of a grandchild’s
claim for maintenance may be inconsistent with
the rights of the
child
(s 28)
and the right to dignity
(s 10).
It is further submitted
that once an infringement of these rights has been established,
neither freedom of testation, which falls
within the ambit of the
property rights
(s 25)
, nor the general limitations clause (s 36) of
the Constitution will offer adequate justification for such
infringement.
Once
unconstitutionality has been determined, either the common law would
have to be developed or a court would have to suspend
the declaration
of constitutional invalidity in order to afford the legislature a
reasonable opportunity to investigate, formulate
and promulgate
appropriate legislation.’
[37]
The appellant submits that the common-law rule that the deceased
estates of grandparents are not liable to maintain their
grandchildren is inconsistent with the rights to human dignity (s 10)
and with the principle that a child’s best interests
are of
paramount importance in every matter concerning the child (s 28 (2)).
She says the common law must be developed in order
to be consistent
with the Constitution.
[38]
The respondent contends that it would be inappropriate to develop the
common law in the two respects sought by the appellant
and advances
three grounds for this contention. He argues, first, that the agreed
and assumed facts as set out in the stated case
do not support these
developments. Secondly, that constitutional and public policy
considerations not mentioned by the appellant
point away from the
relief she seeks which include the values of dignity and freedom that
inhere in the right of individuals to
arrange their private affairs,
including how their estate will be dealt with on their demise.
Thirdly, that the proposed developments
of the common law are not
incremental in nature and go beyond the ordinary scope of judicial
functions. In this regard he points
out that changing the legal
duties which attach to relationships between grandparents and
grandchildren have complicated implications
and consequences for
other relationships and legal duties. The respondent argues that the
suggested changes to the rules of law
governing private
relationships, have multifaceted implications for the duties of
support’ which involve making hard choices
among competing
constitutional values, are best left to Parliament as the major
engine for law reform.
[39]
The question is whether the common law should be developed and, if
so, the extent of such development. In
MEC
for Health and Social Development, Gauteng v DZ obo WZ
[15]
(
MEC
for Health
)
the Constitutional Court set out how development of the common law is
to be undertaken. With reference to
K
v Minister of Safety and Security
,
[16]
the Constitutional Court stated that the common law develops
incrementally through the rules of precedent, ‘which ensure
that like cases are treated alike’. This development occurs not
only when a common-law rule is changed altogether or a new
a rule is
introduced, but also when a court needs to determine whether a new
set of facts falls within or beyond the scope of an
existing rule. It
was for this reason the court stated that development of the common
law cannot take place in a factual vacuum.
[17]
The Court stressed that ‘where a common-law rule is to be
changed altogether, or a new rule is to be introduced, it will
usually be better to make a decision only ‘after hearing all
the evidence’ so that the decision can be given in the
light of
all circumstances of the case, with due regard to all relevant
factors’.
[18]
[40]
In this case we are asked to develop the common-law rule enunciated
in
Barnard
,
which is contended to be inconsistent with the Constitution to the
extent that it does not recognise the grandchild’s claim
against the estate of the deceased grandparent. It is submitted that
the non-recognition of a grandchild’s claim for maintenance
violates the child’s right to human dignity in s 10; the right
not to be unfairly discriminated against under s 9 and the
children’s
rights under s 28 of the Constitution. Section 39(2) of the
Constitution enjoins the courts, including this Court,
to promote the
spirit, purport and objects of the Bill of Rights when developing the
common law. This requires the courts to be
alert to the normative
framework of the Constitution not only when some startling new
development of the common law is in issue,
but in all cases where the
incremental development of the rule is in issue.
[19]
[41]
The Constitutional Court in
S
v Thebus
[20]
stated that development of the common law may be necessary in the
following circumstances:
‘
The
first would be when a rule of the common law is inconsistent with a
constitutional provision. Repugnancy of this kind would
compel an
adaptation of the common law to resolve the inconsistency. The second
possibility arises even when a rule of the common
law is not
inconsistent with a specific constitutional provision but may fall
short of its spirit, purport and objects. Then, the
common law must
be adapted so that it grows in harmony with the “objective
normative value system” found in the Constitution.’
[42] The Constitutional Court in
MEC
for Health
para 31 provides guidance as to how development of the
common law under s 39(2) should be approached:
‘
The
general approach to development of the common law under section 39(2)
is that a court must: (1) determine what the existing
common law
position is; (2) consider its underlying rationale; (3) enquire
whether the rule offends section 39(2) of the Constitution;
(4) if it
does so offend, consider how development in accordance with section
39(2) ought to take place; and (5) consider the wider
consequences of
the proposed change on the relevant area of the law. (Footnote
omitted.)
[43]
Finally the Constitutional Court noted with reference to
Mokone
v Tassos Properties CC
[21]
that in some instances a common-law rule may be deficient even if it
does not offend s 39(2). A court will then develop the rule
utilising
its inherent power in s 173 of the Constitution taking into account
the broader interests of justice. After making these
remarks the
Constitutional Court went on to emphasise that ‘when exercising
their authority to develop the common law, courts
should be mindful
that, in accordance with the principle of the separation of powers,
the major engine for law reform should be
the legislature’.
[22]
[44]
Against this background I return to the consideration of the issue
before us. The question is whether the common-law rule in
Barnard
offends
the normative structure of the Constitution; and, if not, whether
there are wider interests of justice consideration that
require their
further development. It is important to emphasise the context in
which this Court is requested to develop the common-law
rule. The
court a quo was asked to adjudicate the legal issues identified in
the stated case on separated basis under rule 33 of
the Uniform Rules
of Court. This means that the court was only called on to decide the
questions of law put forward by the parties
in their stated case and
had to do so only on the basis of the facts agreed by them.
[23]
[45]
It is correct that in terms of rule 33(1) parties to a dispute may
agree upon a statement of facts in the form of a special
case for the
adjudication of points of law. The written statement sets out the
facts agreed upon and the questions of law in dispute
between the
parties as well as their contentions. In terms of rule 33(3) the
court has the discretion to draw any interference
of fact or law from
the facts and documents as proved at trial. But the resolution of a
stated case must proceed on the basis of
a statement of agreed facts.
[46]
In my view, the development of the common law in the respects sought
by the appellant is not supported by the agreed and assumed
facts.
The appellant seeks a complete change of the common-law rule relating
to the liability of the estates of the grandparents
for the support
of their grandchildren. The Constitutional Court in
MEC
for Health
[24]
cautioned that where a common-law rule is to be changed altogether,
or a new rule is to be introduced, it will usually be better
to make
a decision only ‘after hearing all the evidence’ so that
‘the decision can be given in the light of all
circumstances of
the case, with due regard to all the relevant factors’.
[47]
On a factual level, the appellant’s case is deficient. The
appellant seeks on the stated facts to impose a duty to support
a
grandchild on a grandparent and his or her deceased estate where the
parent of a grandchild cannot be traced. But it does not
seem that T
has taken reasonable steps to locate the whereabouts of L after he
left South Africa to live in the United States of
America or that she
has exhausted all reasonable options open to her to find him.
[48]
T in her reply to the respondent’s request for further
particulars, set out the nature of the steps she had taken to
locate
the whereabouts of L since 2001 after she became aware that L left
South Africa. It is apparent from the steps she took
that she never
approached the office of the Family Advocate for assistance since the
matter involved the maintenance of a disabled
child and there is no
explanation for her failure to approach that office. Furthermore, for
many years, T took no steps to contact
the deceased or N at their
known address to establish the whereabouts of their son.
[49]
Financial inability by a person from whom maintenance
ex
lege
is sought must be established before that obligation is assumed by,
or transferred to, another person. The statement of facts does
not
establish this requirement. The court is not told of T’s lack
of financial means to meet the needs of B. What further
complicates
this case is the lack of evidence regarding L’s financial
position. The appellant seeks to impose a duty to maintain
a
grandchild on the estate of a deceased grandparent through the
development of the common law in circumstances where the child’s
father, who is primarily responsible for the child’s
maintenance, may be able to financially support the child. L may have
the means to support B which will then render it unnecessary to
develop the common-law rule. Yet this Court is asked to develop
the
common law by burdening the estates of deceased grandparents with
liability to maintain grandchildren in circumstances where
there is
no sufficient basis to do so. Further, nothing is said in the pleaded
case about T’s parents, more specifically
the extent to which
they may have supported B or been able to do so. An inability on the
part of the parents to maintain a child
must be established before a
grandparent will be legally liable to do so.
[50]
This case demonstrates that in certain cases the objectives of rule
33(4) – facilitating the convenient and expeditious
disposal of
litigation – may not be achieved by adjudicating the issues
separately. This Court has repeatedly cautioned that
a separation of
issues should not be resorted to readily where the issues that arise
are intertwined. In
City
of Tshwane Metropolitan Municipality
[25]
this
Court referred to
Denel
[26]
where it was held:
‘
Before
turning to the substance of the appeal, it is appropriate to make a
few remarks about separating issues. Rule 33(4) of the
Uniform Rules
– which entitles a Court to try issues separately in
appropriate circumstances – is aimed as facilitating
the
convenient and expeditious disposal of litigation. It should not be
assumed that that result is always achieved by separating
the issues.
In many cases, once properly considered, the issues will be found to
be inextricably linked even though, at first sight,
they might appear
to be discrete. And even where the issues are discrete, the
expeditious disposal of the litigation is often best
served by
ventilating all the issues at one hearing, particularly where there
is more than one issue that might be readily dispositive
of the
matter. It is only after careful thought has been given to the
anticipated course of the litigation as a whole that it will
be
possible properly to determine whether it is convenient to try an
issue separately.’
[51]
The appellant asks this Court to change the common-law rule
altogether on the basis of the facts and assumptions contained
in the
stated case. But the evidence regarding the sufficiency of steps
taken by the appellant to trace the whereabouts of L and
of his
financial situation is disputed by the respondent.
[52]
These are some of the issues which the parties should have properly
considered before submitting the stated case to the court
for
adjudication. It is clear that insufficient thought by the parties
and the court a quo was given to whether rule 33(4) should
have been
resorted to and applied particularly having regard to what the
Constitutional Court in
MEC
for Health
,
[27]
stated in relation to how the common law should be developed.
[53]
There is a further reason why it is inappropriate for this Court to
develop the common-law rule in the manner sought by the
appellant.
The appellant contends that the common-law rule is inconsistent with
the rights to human dignity and equality in the
Bill of Rights and
also with the principle that a child’s interests are of
paramount importance in every matter concerning
the child to the
extent that it does not recognise a grandchild’s right to seek
maintenance from the estate of a grandparent
where both of the
grandchild’s parents are unable to do so; or where one parent
is unable to do so, and the other parent
does not do so and cannot be
traced; or both parents do not support their child and cannot be
traced; and the grandparents are
deceased, or one of the grandparents
is deceased.
[54]
The development of the common-law rule sought by the appellant
implicates the foundational values of human dignity, equality
and
freedom of the testator to decide how he or she wishes to have his or
her property distributed upon his or her demise. The
extension of the
Carelse
principle
to the grandparents’ deceased estates will have a considerable
impact on the rules of succession in South African
private law and in
particular on the freedom of testation. If such claim is recognised,
it has the potential to compete with the
heirs of a deceased
grandparent. It could also compete with other claims for maintenance
that may arise, including by a surviving
spouse or child. These
concerns which are, in my view, legitimate are not adequately
addressed by the appellant other than by stating
that the consequent
adverse impact on the grandparents’ human dignity is far
outweighed by the invariable infringement of
needy grandchildren’s
human dignity that will occur if their right to the material support
they need to live a decent life
is cut off just because their
grandparents have died without making provision or adequate provision
for them in their wills.
[55]
It is correct that the right to human dignity in s 10 of the
Constitution underlies the duty of parents and grandparents to
support their children and grandchildren because, without support,
the children or grandchildren will be poverty-stricken and poverty
reduces a human in his or her dignity. But that does not mean that
the interests of a child, and in particular of a grandchild
with
mental impairment, such as B, are superior to other fundamental
rights.
[28]
Freedom of testation also enjoys protection under s 25(1) of the
Constitution. This Court in
Harvey
[29]
held that:
‘
Freedom
of testation, which is an important facet of the right to dignity,
protects an individual’s right not only to unconditionally
dispose of her property, but also to choose her beneficiaries as she
wishes.’
[56]
I disagree with the appellant that if the
Carelse
principle
is extended to grandparents’ deceased estates, the result will
be the same as they are in relation to parents’
deceased
estates. This is so because the common-law rule as regards the
maintenance of children and grandchildren stipulates that
parents are
the primary caregivers of children. Only if the child’s parents
or their estates cannot support her or him will
other ascendants and
descendants be liable to support; a legal duty to support a child is
imposed first on the nearest relative
who can support her or him,
before it is imposed on a relative who is not close.
[57]
In other words, the structure of the common-law rule as it currently
exists, recognises the special role and responsibility
that parents
have in raising children in South African law. It also recognises
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, and to the larger community,
where parents are
unable to fulfil them.
[58]
The appellant seeks the extension of the
Carelse
principle
so as to render the estates of the deceased grandparents liable to
support grandchildren in circumstances where it is
not clear whether
a parent is unable to discharge that duty. Thus, it has the potential
to upset the order in which obligations
to maintain children are
imposed. The development of the common law would therefore be
inappropriate due to the nature of the development
sought and the
effect it may have on the law of succession and other foundational
values of the Constitution. The common-law
rule sought to be
changed deals with social policy in relation to the maintenance of
children by their parents and grandparents
and the grandparents’
freedom of testation. Unfortunately, it is a type of policy that this
Court is not competent to engineer.
It is for Parliament to decide
whether the common-law rule should be developed and, if so, how.
[59]
In conclusion, I hold that due to the insufficiency of the evidence
upon which to develop the common-law rule enunciated in
Barnard
and
the wider consequences the proposed change will have on the rules of
the law of succession, it would be inappropriate for this
Court to
develop the common law. The development sought by the appellant is
quite drastic and may implicate various constitutional
values.
Parliament is the forum best suited to undertake such development if
it is considered appropriate.
[60]
As regards costs, the respondent did not ask for a costs order
against the appellant if the separated issues should be decided
in
his favour. In addition, the case raises important common law and
constitutional issues relating to the duty of support and
freedom of
testation. The appellant and the respondent are before court in their
capacities as
curatrix
and
executor respectively. In the circumstances justice and fairness
require that neither party should be burdened with an order
of costs.
[61] The following order is made:
1 The appeal is dismissed with no
order as to costs.
2 The Registrar of the court is
directed to forward a copy of this judgment to the Judicial Service
Commission to investigate the
conduct of Acting Judge Kose.
_________________
ZONDI JA
JUDGE
OF APPEAL
Appearances:
For
appellant: A M Breitenbach SC
Instructed
by: Bisset Boehmke McBlain, Cape Town
Webbers,
Bloemfontein
For
respondent: L A Rose-Innes SC
Instructed
by: ENSAFRICA, Cape Town
Lovius
Block, Bloemfontein
[1]
Ford v Allen and
Others
1925 TPD 5
at 7;
Motan
and Another v Joosub
1930 AD 61
;
Ex
parte
Jacobs
et Uxor
1936 OPD 32
; Van Heerden et al
Boberg’s
Law of Persons and the Family
2 ed (1999) at 252-3.
[2]
Strategic
Liquor Services v Mvumbi NO and Others
[2009]
ZACC 17
;
2010 (2) SA 92
(CC);
2009 (10) BCLR 1046
(CC) para 15.
[3]
Mphahlele v
First National Bank of South Africa Ltd
[1999]
ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC).
[4]
Hahlo
Book
Reviews
- Acta Juridica
(1959) 76 South African Law Journal at 236.
[5]
Ford v Allen and Others
1925
TPD 5
at 7.
[6]
Ex Parte Pienaar
1964 (1) SA 600
(T) at 606A.
[7]
Carelse v
Estate de Vries
(1906)
23 SC 532.
[8]
Tractatus de
Legibus Abrogatis
.
[9]
Glazer v Glazer
1963 (4) SA 694
(A) at 707(A).
[10]
Goldman NO v
Executor Estate Goldman
1937
WLD 64.
[11]
In re
Estate
Visser
1948 (3) SA 1129
(C) at 1135.
[12]
Barnard
at
426.
[13]
Lloyd v Menzies
NO & Others
1956
(2) SA 97 (N); [1956] 2 All SA 155 (D).
[14]
Glazer, NO v
Glazer
1962
(2) SA 548
(W);
Glazer
v Glazer NO
1963
(4) SA 694
(A) at 706H-707C.
[15]
MEC for Health
and Social Development, Gauteng v DZ obo WZ
2018
(1) SA 335 (CC).
[16]
K v Minister of
Safety and Security
[2005]
ZACC 8
;
2005 (6) SA 419
(CC) para 16.
[17]
MEC for Health
para
28.
[18]
Ibid p
ara
29.
[19]
Ibid p
ara
30.
[20]
S v Thebus and
Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) para 28.
[21]
Mokone v Tassos
Properties CC and Another
[2017]
ZACC 25; 2017 (5) SA 456 (CC).
[22]
MEC for Health
para
34.
[23]
Mtokonya v Minister of Police
[2017] ZACC 33
;
2018 (5)
SA 22
(CC) para 15.
[24]
Para
29.
[25]
City of Tshwane
Metropolitan Municipality v Blair Atholl Homeowners Association
[2018]
ZASCA 176
para 51.
[26]
Denel (Edms)
Bpk v Vorster
2004
(4) 481 (SCA) para 3.
[27]
P
ara
29.
[28]
Freedom of Religion South Africa v
Minister of Justice and Constitutional Development and Others
[2019]
ZACC 34
;
2020 (1) SA 1
(CC)
para 58.
[29]
Harvey v
Crawford
[2018]
ZASCA 147
;
2019 (2) SA 153
(SCA) para 64.