Maintenance:

Support duties in terms of the Children's Act:

The primary support duttes that arise from the Children's Act are found in section
18(216) (the duty to contribute to the maintenance of the child)% and in the definition
of care in section 10).
Support duties are expressly referred to in part (a) of the definition of care (a suitable
place to live, appropriate living conditions, and the necessary financial support). In
addition, part (g) of the care definition requires parents to secure their children's
education; part (i) requires parents to accommodate any special needs their children
may have; and part (d) requires parents to secure fulfilment of their childrens
constitutional rights, which include the children's rights to food, shelter and health
care.

the common law duty support:

The support duties set out in the Children's Act must be understood against the
backdrop of The support duties. Parents retain all their common law support duties
unless he family lives under customary law.
In terms of the common law, reciprocal duties of support arise between people when
1.There is a particular kind of legal relationship between them. In this chapter, we
focus on the rarent-child relationship. Common law duties of support also arise
between people in Other kinds of legal relationships, for example if they are husband
and wife, and even if they are grandparent and grandchild, or siblings.'
2.The person from whom support is claimed has the necessary means to supply this
support It is not possible to claim support from someone who has nothing to give.
However, people who have legal duties of support must make an effort to earn
enough money to provide this support. In Martins v Martins for example, the court
held that a husband and father could not just resign his job and go back to university.
He had a legal obligation to keep his job and thereby earn enough money to support
his wife and children."
3. The person who is claiming support is in need of support. The duty of support is
limited to
'necessary support, but, as discussed below, this does not mean only the bare
essentials of subsistence. The content and scope of the duty of support depends on
the standard of living of the particular family.
'The parent-child support duty, like all other common-law support duties, is
reciprocal. This means that children may also have duties to support their parents.
When the children are young, the support duty almost always falls on the parents:
the children need support and have no means of their own (sometimes things are
different - for example if the child has a huge inheritance).
When parents grow old and retire, the support duty might operate in the opposite
direction.
Many adults support their elderly parents.
If a child has two parents, the parents share the duty of support on a pro rata basis
according to their means. Pro rata means proportional - the parent who earns more
(or who has more means of other kinds) must provide more child support. For
example if one parent earns twice as much as the other, he or she must contribute
twice as much to the children's support.?
The duty of support that parents owe their children includes the necessities of life,
such as a home, food, and clothing, as well as medical care and education, but it is
'by no means confined to the bare necessities of life? The scope and content of the
duty of support is not the same for all children; it will depend on the standard of living
of the child's family." The courts have held that expensive university education is part
of the duty of support where parents have the means and the child has the ability to
succeed at university." Similarly, education at an expensive private school has been
held to be part of the duty of support." Gold v Gold" involved two minor sons who
were in the army. All their basic needs were met by the South African Defence
Force. The court held, however, that this did not terminate the parental duty of
support - the support duty is not confined to the bare necessities of life. On the other
hand, the scope of the duty of support to children from poor families will be different -
it depends on what the parents are able to afford. In McCallum v Hallen, for example,
the court found that fillings at the dentist were not
'necessaries' because the family could not afford expensive dental services. Instead,
the sons should have obeyed their father's instructions and had their teeth pulled
out?
The duty of support does not terminate when the child reaches the age of majority.
This was the case even when the age of majority was 21,9 and it is even truer now
that the age of majority is 18. As put by the court in Butcher v Butcher: 'many
children have not concluded their secondary education, let alone completed their
tertiary education, when they turn 18, and remain financially dependent on their
parents several years after they attain the age of majority.100
The biological offspring of the parents might have a claim for maintenance even
when they are well over the age of majority. In Gliksman v Talekinsky a father was
ordered to contribute to the support of his widowed daughter and her six children
after the daughter's husband died. '01 However, in the case of children who are in
their late twenties (or even older), the scope and amount of support is reduced.
Indeed, it might be confined to necessaries.102
In principle, the common-law duty of support terminates when the child no longer
needs the support (need' is one of the basic foundational principles that gives rise to
the support duty).
Thus, even if the child is still very young, the common law support duty will lapse if
the child inherits a fortune, for example. The support duty is not terminated by the
death of the parents - children have a support claim against their deceased parents'
estates.!
The parent-child duty of support is based on a blood relationship, 10* and for this
reason, does not extend to step-children. 105 If a person is married in community of
property, the step-children will be supported by the joint estate, which makes the rule
about stepchildren somewhat artificial in this situation. 106 Furthermore, regardless
of their matrimonial property regime, married spouses have a duty to provide
household necessaries to all members of the joint household. This includes step-
children while they are living there,107 In addition, the rule concerning stepchildren
might have been changed by the Constitution. In Heystek v Heystek the court argued
that the constitutional right to family or parental cares is not confined to natural
parents.. but extends to stepparents.! The court held that the common law must be
aligned to serve the constitutional imperatives of the child in a heterogeneous
democratic society.!° Legal commentators have remarked that the court's
interpretation of the impact of the Constitution on the common law rule was not
properly argued or properly substantiated, but it might be true that the right to
parental care imposes a duty of support on a stepparent.

The constitutional duty of support:

In terms of section 28(1) of the Constitution, children have the rights to 'family care or
parental care and to basic nutrition, shelter [and] basic health care services?" In
Government of South Africa y Grootboom, the Constitutional Court held that the
primary responsibilities for fulfilling the rights to food, shelter and health care fall on
the child's parents or other family."4 As we noted in our discussion on the Heystek
case, "S these constitutional provisions will impact on the interpretation of traditional
common law rules.