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 Bianca Gittele Turok)
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):
The appeal is dismissed with no order as to costs.
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.

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] The background to the matter is the following. The appellant, Phillipa Susan
Van Zyl, in her capacity as the curatrix ad litem to Bianca Gittele Turok (Bianca)
instituted action for damages on behalf of Bianca against the respondent in his
capacity as an executor in the estate of the late Solomon Yale Turok in the Western
Cape Division of the High Court, Cape Town (high court). She alleged that Bianca
suffered damages as a result of the respondent’s and his co-executor’s failure to
recognise Bianca’s claim for maintenance in the estate of her deceased
grandparent. The respondent and Noemi Turok (Noemi) were appointed co-
executors in the estate of the late Solomon Yale Turok (Solomon or the deceased),
Bianca’s grandfather. Noemi was Bianca’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 Noemi. The net value of the
estate was R554 799.82. A claim for maintenance was lodged on behalf of Bianca
against the deceased’s estate. This claim exceeded the total value of the estate
available for distribution. The executors rejected Bianca’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 Noemi was in contravention of s 35 of the Administration of
Estates Act 66 of 1965 and was wrongful and caused Bianca 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 Bianca’s
claim for maintenance against Solomon, 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 Solomon Yale Turok, if
he could do so he was legally obliged to maintain his granddaughter Bianca Gittele Turok
(“Bianca”) to the extent that his son, who is Bianca’s father, Laurence Lee Turok
(“Laurence”) did not do so and Bianca’s mother Tessa Turok (“Tessa”) could not do so;
5.2.
whether, at all relevant times after Solomon’s death, his deceased estate was
legally obliged to maintain Bianca to the extent that Laurence did not do so and Tessa
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,

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).

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 Bianca was born of the marriage between Tessa and Laurence,
the son of Solomon and his wife Noemi. Bianca is thus the granddaughter of
Solomon and Noemi.

(b) Bianca is a psychiatric patient with bipolar affective disorder, mild intellectual
disability and an autism spectrum disorder. Consequently, at all relevant times
during Solomon’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 Laurence and Tessa 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 Bianca was awarded
to Tessa and Laurence was obliged to maintain Bianca until she became self-
supporting.

(d) Prior to the grant of the divorce order, Laurence left South Africa to reside in
the USA. He has failed to keep in contact with Tessa and Bianca. The appellant
alleged that despite sustained attempts by Tessa she has been unable to trace
him. The fact that Laurence could not in fact be traced or that all reasonable efforts
were made to establish his whereabouts was not admitted by the respondent.

(e) Laurence has failed to maintain Bianca in terms of the divorce order or at all.
Laurence’s financial position and the extent to which he has been or is able to
maintain Bianca are not known. Bianca receives a government disability grant of
R1 410 per month which is insufficient for her needs.

(f) At all relevant times Tessa has been Bianca’s only other source of financial
support and has maintained her to the best of her ability. Tessa has been unable
to meet all Bianca’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 Solomon’s lifetime he was able to
maintain Bianca to the extent that Laurence did not do so and Tessa 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, Solomon died. In his will he left the whole of his estate
to his wife Noemi and appointed the respondent, who is an attorney, and Noemi,
as the executors of his estate.

[17] At all times after Solomon’s death and until the payment of R554 799.82 by
Getz and Noemi (in their capacities as executors of the estate) to Noemi (in her
personal capacity as Solomon’s sole heiress) described below, the estate was able
to maintain Bianca to the extent that Laurence did not do so and Tessa 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
Bianca against Solomon’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

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.

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 Vries7 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 Goldman10 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

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.

[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.’

13 Lloyd v Menzies NO & Others 1956 (2) SA 97 (N); [1956] 2 All SA 155 (D).

[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

14 Glazer, NO v Glazer 1962 (2) SA 548 (W); Glazer v Glazer NO 1963 (4) SA 694 (A) at 706H-
707C.

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 WZ15 (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

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 para 29.

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 Thebus20 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.)

19 Ibid para 30.
20 S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC) para 28.

[43] Finally the Constitutional Court noted with reference to Mokone v Tassos
Properties CC21 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.

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.

[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 Health24 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 Tessa has taken reasonable steps to locate the whereabouts
of Laurence 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] Tessa 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 Laurence since
2001 after she became aware that Laurence 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, Tessa took no steps to contact the deceased or Noemi 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 Tessa’s lack of financial means to meet the needs of Bianca. What

24 Para 29.

further complicates this case is the lack of evidence regarding Laurence’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. Laurence may have the
means to support Bianca 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 Tessa’s parents, more specifically the extent to which
they may have supported Bianca 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 Municipality25
this Court referred to Denel26 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

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.

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 Laurence 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

27 Para 29.

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 Bianca, are superior to other fundamental rights.28 Freedom
of testation also enjoys protection under s 25(1) of the Constitution. This Court in
Harvey29 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

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.

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:
The appeal is dismissed with no order as to costs.
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
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

6 July 2020
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

Phillipa Susan van Zyl NO v Getz (548/19) [2020] ZASCA 84 (6 July 2020)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal against a judgment of the Western
Cape Division of the High Court, Cape Town (the high court).
Central to this appeal was whether it was 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.
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 the court was
asked to develop so that the common law would recognise a duty of support on the part of a
grandparent’s deceased estate.
The appellant, Phillipa Susan Van Zyl, in her capacity as the curatrix ad litem to Bianca Gittele Turok
(Bianca) instituted action for damages on behalf of Bianca against the respondent in his capacity as an
executor in the estate of the late Solomon Yale Turok as a result of the respondent’s and his co-
executor’s failure to recognise Bianca’s claim for maintenance in the estate of her deceased
grandparent. The co-executor was Noemi, Bianca’s grandmother, who was married to the deceased
and sole beneficiary of the deceased’s estate. She sadly passed away on 21 October 2012.
Bianca was born of the marriage between Tessa and Laurence, the son of the late Solomon and his
wife Noemi. When the marriage between Laurence and Tessa was dissolved, sole custody and sole
guardianship of Bianca was awarded to Tessa and Laurence was obliged to maintain Bianca until she
became self-supporting. However, prior to the grant of the divorce order, Laurence left South Africa to
reside in the USA. He has failed to keep in contact with Tessa and Bianca. The appellant alleged that
despite sustained attempts by Tessa she has been unable to trace him. Laurence has failed to maintain

Bianca in terms of the divorce order or at all. Bianca is a psychiatric patient with bipolar affective
disorder, mild intellectual disability and an autism spectrum disorder. Consequently, at all relevant times
during Solomon’s lifetime and after his death she was not self-supporting and required maintenance
and that remains the position. The appellant alleged that at all times during Solomon’s lifetime he was
able to maintain Bianca to the extent that Laurence did not do so and Tessa could not do so. Following
Solomon’s death, a maintenance claim was lodged on behalf of Bianca against Solomon’s estate.
The executors rejected Bianca’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. As a result, 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.
This court found, on a factual level, the appellant’s case is deficient. The appellant sought 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 Tessa to trace the
whereabouts of Laurence and to establish his financial situation was disputed by the respondent.
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. In this case the child’s father, who is
primarily responsible for the child’s maintenance, may be able to financially support the child and this,
according to the Court, would then render it unnecessary to develop the common-law rule. Thus, there
is no sufficient basis to do so.
This Court held accordingly 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. Further, the concerns relating to 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 which are all implicated in development of the common-law rule are, in this Court’s view,
legitimate and were not adequately addressed by the appellant.
It was further held that poor judicial service was rendered in this matter as a result of an inordinate delay
by Acting Judge Kose, as it took her more than two years to make an order in this matter.  Once the
order was made, Kose AJ further failed to furnish reasons for her decision. This Court found the delay
to have been grossly unreasonable and lamentable, and that Kose AJ’s failure to supply written reasons
for her decision to be equally lamentable.

As a result, the appeal was dismissed with no order as to costs. The Registrar of the court was directed
to forward a copy of this judgment to the Judicial Service Commission to investigate the conduct of
Acting Judge Kose.
- END -