Section 28(1)(c) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services and social services. In addition our common law provides that both parents have a legal duty to support their children according to their means.
A large majority of the public considers the legal obligation of maintenance to only be the responsibility of the parents of the child and that no one else can have the legal obligation placed upon them. This is incorrect.
While the legal obligation to maintain a child primarily rests on the parents of the child in question it is accepted that other relatives of the child have to support the child in circumstances where a parent is deceased or unable to support/maintain the child.
In circumstances where a parent is deceased or unable to support/maintain their children the general rule is that the support/maintenance must always be sought from the nearest relative to the child, and only if that support/maintenance is not forthcoming from that relative, then it can be sought from more remote relatives.
As a result of the accepted common law principles, our courts have held that there is a reciprocal duty of support between grandparents and their grandchildren (Barnard v Miller 1963 (4) SA 426 (C)), and that if parents are not able to support their children, the duty of support falls on paternal and maternal grandparents of the child (Barnes v Union and South West Africa Insurance Co Ltd 1977 (3) SA 502 (E)).
Accordingly in South Africa there can be no doubt that both maternal and paternal grandparents can be required to support/maintain their grandchildren, but it must always be remembered that this can only happen in circumstances where a parent is deceased or unable to maintain their child themselves. In this regard it has been held by some of our courts that grandparents can defend maintenance claims against them by insisting that the claims first be pursued against a parent.
