Abstract

South African common law obliges all children to contribute to the reasonable maintenance needs of their parents if the latter are in need of maintenance in for example their old age. The foundation of this legal obligation ex lege is not a benevolent gesture of love or a voluntary gift towards the needy parent and does not depend on the subjective will of the children to contribute towards the maintenance of their parents in need. The flip side of an obligation to perform has been a claim since Roman law and the obligation of children towards their parents in need has never been abolished by legislation, nor in any of the comparable Continental legal systems that share the applicable common principles with South African law. The claim of the parent in need of maintenance is well established. All claims as rights to performance (dare, facere or non facere) are part of the assets of the holder of the rights. All assets form part of the sum of the estate of the holder as legal subject. Before it can be determined that a surviving spouse is dependent for her maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990, all assets of the claimant must be considered and weighed – including the claims against the children of the claimant. The impression is left that this was not considered in this case – at the expense of the beneficiaries of the testator as the first-dying spouse against whose estate the claim was brought by the claimant as surviving spouse and maintained in terms of Act 27 of 1990 by the supreme court of appeal. Should the successful claimant die two days later, that recognised claim against the estate of the first dying spouse will constitute an asset in her estate – for the benefit of her heirs or creditors. It is doubtful whether this was the intention of the legislature with the act, for nowhere in the act is the common-law obligation of the children of the claimant extinguished or exchanged for the claim against the estate of the first dying spouse and at the expense of the latter’s beneficiaries as identified according to the applicable principles of the law of succession, be it the valid will of the testator or the norms of intestacy. The legislature merely intended to establish an ancillary source for the surviving spouse who is indeed in need of maintenance after exhaustion of all her assets. The legislature did not justify in this act any exclusion or ring fencing of any of the claimant’s assets when calculating her maintenance needs. Because no new ranking is set in the act, this ancillary source comes into consideration only after exhaustion of all other legally recognised assets and not before it. No court can ignore the fact that the claimant keeps R20 million in investments “ring fenced” for his eventual heirs and still maintains the claim against the estate of the first dying spouse under the guise of this act. If the legislature had intended that the common-law dependents should be excused from their obligation to maintain their parent in need, this could easily have been spelled out in the act. It is not. A great deal has already been published on this subject, which, however, has not been mastered nor mentioned in De Bruyn v Master of the High Court, Pretoria ((1388/2024) 2026 ZASCA 92 (26 Jun 2026)) – and it shows.