In the unreported case, N v B, a grandmother applied for an order to review and set aside a directive issued by a Maintenance Officer in terms of regulation 3(4) made in terms of the Maintenance Act 99 of 1995.
The couple involved in the above matter was married with two minor children born of the marriage. They lived in a home worth slightly in excess of R3 million bonded with a remaining balance of R600 000.00. They were involved in acrimonious and protracted divorce proceedings. Although Mrs was the prime caregiver and regardless of the fact that Mr had fallen on hard financial times, she did not apply for interim maintenance in term of rule 43. Mrs earned a modest income and lived in the former matrimonial home. Mrs eventually lodged a complaint with the Maintenance Officer against the grandparents of the minor children for their maintenance and proceeded to set out her assets, means and needs of the minor children in the prescribed claim form. She also disclosed her interest in the matrimonial home and its value. Mr also earned a modest income.
The Maintenance Officer then issued a directive in terms of regulation 3(1) of the Maintenance Act of 1995 in which he directed both grandparents referred to in the act as “Persons against whom a maintenance order may be made to appear before the Maintenance Officer and to produce certain documentation listed in the directive. The directive further informed the grandparents of the possibility of an enquiry being instituted in respect of the maintenance court enquiry.
The grandfather raised an objection to this joinder on the basis that he was not the natural father of the husband to Mrs and that he and the grandmother were not married in community of property and on that basis no maintenance order could ever be made against him.
Subsequently Mrs instituted action for relief in that regard.
On the 17 March 2014 Judge Yekiso granted a declaring order that the directive issued against the grandfather was a nullity but declared further that the declaration did not affect the directive insofar as it related to the grandmother.
The grandmother responded and appeared before the Maintenance Officer, produced the required documentation and presented the following arguments:
- regulation 3(1) of the Maintenance Act permits a directive to be issued in respect of any person against whom a maintenance order may be made. The applicant is not a person against whom a maintenance order may be made (relying on the judgment by Kgomo J in De Klerk v Groepie and others). It was argued that the Mrs was required to obtain a court order against the other parent prior to invoking the duty of support of a grandparent, alternatively the liability of a grandparent cannot be invoked until and unless the parents are completely unable to support the minor children;
- the Maintenance Officer could thus not issue a directive under regulation 3(1) of the Maintenance Act and further is it unlawful and prejudicial to proceed against one grandparent alone. It is trite that the grandparents jointly are liable for the maintenance of a grandchild when that duty can be invoked, but in this case Mrs (wife) was proceeding against one grandparent;
- for the preceding reasons the issuing of the directive was beyond the powers of the Maintenance Officer and was unlawful. This directive must also be subjected to a review under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), alternatively it would be ultra vires in terms of the relevant principles under common law.
Application of law to facts
As mentioned earlier, the court established that the grandmother’s above arguments relied on the decision in De Klerk v Groepie and others.
It was further established that the grandmother also based her argument on the matter of Miller v Miller in which the court held:
‘In my view the duty to support falls upon parents, grandparents, children and brothers and sisters only becomes operative so as to give rise to a claim at law where it is proved that the husband is dead or unable to afford support. Primarily the duty falls upon the husband and it is only when he is dead or unable to provide support that a right to claim support from a parent or child, brother or sister arises.’
In De Klerk v Groepie and others Judge Kgomo stated that:
‘It is a well-established principal of the common law that although grandparents may have a reciprocal duty to support their grandchildren, such a duty does not come into operation or gives rise to a claim in law, unless and until it is established that the parents of those minor children are deceased or are unable to support them
A dependant may thus not claim support from a more remote relative such as grandparent before he / she has gone against the closer relative, in this case their father, FW de Klerk Jnr.’
Judge Butler in the present case held that:
‘Apart from the absence of authority for the proposition relied on (by Kgomo J), I have difficulty comprehending the logical basis for the conclusion reached. If it were correct, it would mean that in instances where one or other parent is already financially destitute and obviously unable to maintain a child, it would nonetheless be necessary to go through the process of issuing proceedings against the parent and obtaining judgment before being able to proceed against the grandparent. There would be an inevitable waste of costs, a delay and the possibility of the process being regarded as an abuse of court. The draining of financial resources in that way would also not be in the interests of the child.’
The present court disagreed on the basis of the above reasons with the conclusion in the De Klerk v Groepie and others case and declined to follow it.
2nd Argument / in the alternative
It was argued that a grandparent cannot in law be liable unless a parent is unable to maintain a grandchild. Mrs, when seeking the directive disclosed that she had assets in excess of R3 million which were bonded only to the extent of R600 000. Based on these facts the grandmother argued that she cannot be a person against whom a maintenance order ‘may’ be granted. The present court agreed that if a parent has a valuable capital assets this might be a strong indication that the parent is not indigent. While the parents might have an equity capital of R2,4 million, it is clear from the facts that is the dispute between the parents that stands in the way of realising the assets and therefore delaying the finalisation of the divorce. It may well be that the grandmother was well resourced and readily able to support the children at least on a temporary bases.
I was argued that it is improper and unfair to proceed against the grandmother as the sole grandparent, given that the liability of the grandparents is coextensive. The present court acknowledged that the liability of the parents was coextensive but understood why the maintenance officer issued the directive to one grandparent. The court concluded that the decision was made by the Maintenance Officer on the basis of the information available at that time. The court found that the Maintenance Officer did not act unlawfully when issuing the directive.
This application subsequently failed.
By Abi Matjila