Zinta Heunis

“A child’s best interests are of paramount importance in every matter concerning the child”– Section 28(2) of the Constitution of the Republic of South Africa, 1996 (the Constitution)

Section 15 of the Maintenance Act 99 of 1998 further places an obligation on the biological parents of minor children (children under 18 years of age who has not been emancipated) to ensure maintenance towards the needs of the child. Both biological parents are jointly liable for the maintenance even if the child is born out of wedlock.

The maintenance contribution will be determined in relation to the income of the biological parents respectively. Therefore the parent who earns more, will have to make a greater contribution towards the maintenance of the child than the other parent.

However, what happens if one or both biological parents are no longer in a position to contribute maintenance towards the minor children due to death or unemployment?

In terms of the common law the maintenance liability will automatically fall on the biological maternal and paternal grandparents.[1]

The above is established in the case of N v B, where the court found that grandparents can only be held liable for maintenance ‘in the absence of a prior maintenance order against the minor child’s parent’ where after all possible avenues have been exhausted against the biological parent/(s).[2]

The obliged contribution of the grandparents will be determined by firstly, establishing the needs of the children (school fees, clothes, shelter and food) and secondly, determining whether the maternal and paternal grandparents have the means to contribute towards the maintenance.

The contribution of the biological maternal and paternal grandparents will be determined pro rata to their respective incomes.

In conclusion, grandparents should be aware that a maintenance order can be granted in instances where their children cannot provide for their own children.

[1]Johannes Voet 25.3.7 en toegepas in Barnes v Union and South West Africa Insurance Co Ltd 1977 3 SA 502 en N v B (WCC) (unreported case no 6573/14, 19-6-2014).
[2]N v B (WCC) (unreported case no 6573/14, 19-6-2014).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.