Abstract

Since Roman law times and throughout the different phases of development of South African common law descendants have been held liable for the maintenance of needy ancestors if the alleged debtor is financially in a position to provide maintenance to the claimant. This legal duty founded in the objective norms of South African common law but not reflected in English common law at all, cannot be waived nor can the debtor distance himself from it as nothing more than an unwelcome moral obligation. This duty has never been abrogated by disuse or statutory intervention. There is no reason to excuse the potential debtors of this duty to the detriment of the public purse or the taxpayers. With the enactment of the Maintenance of Surviving Spouses Act 27 of 1990 the legislature never intended to displace the prevailing common-law position and to exchange the common-law duty of descendants with a duty resting on the estate of the deceased spouse to maintain the surviving spouse notwithstanding the fact that the descendants of the claimant are financially in a position to maintain the surviving spouse as their ascendant if it is proven that the latter is no longer in a position objectively to be self-proficient regarding her reasonable maintenance needs. To interpret the hierarchical position of these ostensibly competing claims as if descendants of the claimant are let off the hook owing to Act 27 of 1990 results in the unjustified enrichment of the liable descendants as primary debtors of the claimant at the expense of the legitimate beneficiaries according to the applicable laws of succession governing the administration of the deceased’s estate. The statutory claim against the estate of the first dying spouse is intended only as a last safety net to safeguard the objectively needy claimant from absolute destitution and from being compelled to live her last days in the proverbial gutter without even a roof over her head when there is no descendant who can be held liable. In this contribution the position in South African common law is revisited and compared with the comparable position in the European Continental legal systems that share the same fundamental principles as the South African common law derived from the shared Roman and Germanic heritage. It is concluded that lately judgments handed down by higher courts, including the constitutional court and supreme court of appeal, do not convince as to the level of mastery of the underlying legal principles. Some of these recent judgments seem to be premised on the wrong assumption that the primary duty for maintenance of a surviving spouse is no longer on her descendants but falls to the estate of the first dying spouse. As a consequence it results in a shameless disregard for the testamentary disposition of the testator and in the unintended enrichment of the estate of the claimant irrespective of whether the successful claimant will in reality outlive the actuarial calculated life expectancy or may remarry after a couple of months after which she will no longer be in need of maintenance at all because her new husband is then primarily responsible for her maintenance. Should she pass away in any of the sketched scenarios the residue of the erstwhile “maintenance” money that was paid as a lump sum will form part of her estate although it was never the intention of the legislature to provide an alternative set of principles governing the division of the estate of the first dying spouse in contravention of the principle of freedom of testation.