What Are Grandparents’ Legal Duty To Pay Child Maintenance In South Africa?

In South Africa, grandparents can be ordered to pay child maintenance where a parent cannot — even though no statute sets the duty out in express terms. The Supreme Court of Appeal in Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84 confirmed that the obligation is a well-established rule of Roman-Dutch common law, rooted in the family relationship and secondary to the parent’s primary duty. The duty is triggered only where the grandparent has the means to contribute, it is not extinguished by the parent’s death (where the grandparent is alive), and an order against a grandparent is usually sought through the Magistrate’s Maintenance Court under section 16(1)(c) of the Maintenance Act 99 of 1968 in the district where the child lives. Grandparents do not need to have legal custody of the grandchild for the duty to apply.

The Source of the Duty: Common Law, Not Statute

South African family-maintenance duties are not codified in a single statute that names grandparents. The parent’s own duty is set out in section 21 of the Maintenance Act 99 of 1968, but that section does not itself create a duty on grandparents. The grandparent duty is recognised by case law and given procedural force through section 16(1)(c) of the same Act, which permits the Maintenance Court to make a contribution order against a third party who is not the parent.

The controlling authority is the Supreme Court of Appeal decision in Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84. The court confirmed that a grandparent has a legal duty to maintain a grandchild where both parents are unable to support the child and the grandparent has the means to do so. The duty descends from the Roman-Dutch common-law concept of paterfamilias, in which the head of a family is obliged to support those connected to the household by blood and family ties.

Because the duty is common-law-based rather than statutory, it does not depend on any agreement, any prior caring role, or any contract between the parent and the grandparent. It is the family relationship itself that gives rise to the obligation.

When the Duty Actually Arises

Three requirements must be satisfied before a grandparent can be ordered to pay maintenance:

• The parent’s primary duty cannot be met from the parent’s own means. The grandparent’s duty is secondary, not additional. It is not a separate obligation that runs alongside the parent’s; it is a fallback that applies only when the parent is unable to pay.
• The grandparent has the means to contribute. The court looks at real disposable means — not gross salary, but what is actually available after the grandparent’s own reasonable living expenses and any other dependents have been taken into account. A grandparent living on a state pension or basic social grant will not ordinarily be ordered to pay meaningful maintenance.
• The duty is grounded in the family relationship, not in any agreement or assumption of care. A grandparent who has never had day-to-day contact with the grandchild can still be ordered to pay.

Who Can Claim Against a Grandparent

A maintenance claim against a grandparent may be brought by:

• the primary caregiver of the child, usually the other parent or the person in whose care the child actually lives;
• the child, through a guardian or legal representative acting on the child’s behalf; or
• a curator ad litem appointed for the child where both parents are dead or otherwise unavailable.

The Department of Justice and Constitutional Development confirms that maintenance applications are made at the Magistrate’s Maintenance Court in the district where the child lives, and that the maintenance clerk assists the applicant in completing the prescribed forms before the matter is referred to a maintenance officer for assessment.

The Maintenance Court Process for a Grandparent Application

The procedure for an application that joins a grandparent runs as follows:

1. Identify the correct Maintenance Court. The Magistrate’s Court in the district where the child ordinarily lives, or (in some cases) where the grandparent is domiciled.
2. Open a complaint at the court clerk’s office. The applicant completes Form A; the clerk registers the matter and refers it to a maintenance officer for investigation. Where a grandparent is being joined as a third-party contributor, Form C (the form prescribed for a contribution order against a person who is not the parent) is filed alongside the main application.
3. Maintenance officer investigation. The officer investigates both parents’ and, if joined, the grandparent’s means. This typically involves payroll letters, bank statements, IRP5/IT3(b) equivalents, and a sworn statement of income and expenses.
4. Filing of the officer’s report. The report is filed with the court; either party may dispute findings and request that the matter be set down for hearing.
5. Hearing. The magistrate considers the child’s reasonable needs (food, clothing, shelter, education, medical care), each parent’s and the grandparent’s means, and any contributions already being made.
6. Contribution order. The court makes an order under section 16(1)(c) of the Maintenance Act 99 of 1968, fixing quantum as a monthly rand amount or as a percentage share of identified needs.

Where the claim is filed and where Burger Huyser can take instructions

Maintenance claims involving grandparents are filed at the Magistrate’s Maintenance Court, not the High Court. The matter runs under the Maintenance Act 99 of 1968 and is administered by a maintenance officer who investigates means and reports to the magistrate before any contribution order is made. There is no High Court filing layer and no practice-directive overlay of the kind that governs admission-of-attorney work — the entire process is local magistrate’s-court work, which means the question of which attorney to use is decided on practical grounds: proximity to the relevant Maintenance Court, family-law experience, and the ability to handle both the parent’s and the grandparent’s side of the matter if there is a conflict of interest.

Burger Huyser Attorneys’ Family Law Department fields maintenance matters from all eight Gauteng branches — Linden (Randburg, head office), Sandton, Roodepoort, Pretoria (Menlyn), Centurion, Bedfordview, Alberton and Midrand — with intake routed through whichever office is closest to the Maintenance Court where the claim must be filed. Anna-Mi Nel (Director and Head of Family Law, based at Sandton) and the firm’s other family-law attorneys take instructions on both claimant-side and respondent-side grandparent maintenance matters. The firm is a member of the Gauteng Family Law Forum and the Johannesburg Attorneys Association.

What the Court Weighs in Practice

At the hearing, the magistrate works through a familiar set of factors:

• the child’s actual monthly needs and any special needs (medical, educational, therapeutic);
• the parent’s own income and assets, and any reason the parent is unable to contribute (incarceration, disability, abandonment);
• the grandparent’s income, assets and standard of living — not just gross salary but real disposable means;
• other dependents of the grandparent (a retired grandparent supporting an adult child or other grandchildren is assessed differently from a grandparent with no dependents); and
• the relationship between the grandparent and the family — although estrangement does not extinguish the duty, it may be a factor in some assessments of reasonableness and quantum.

What If a Parent Has Died

Where the parent has died and the grandparent is alive, the duty survives the parent’s death and can be enforced against the grandparent directly. Where the deceased parent left an estate, the maintenance claim can also be pursued against the estate as a claim for support, but the practical effect is the same: the available means are assessed and the court makes a contribution order against whichever party has the means to support the children.

Van Zyl NO v Getz NO itself turned on this scenario. The Supreme Court of Appeal used the case to confirm that, during a grandparent’s lifetime, a grandparent can be held liable to maintain grandchildren where the deceased parent’s estate cannot. (The court declined to develop the common law further by extending the duty to a deceased grandparent’s estate itself, following Barnard NO v Miller [1963 (4) SA 426] (C); that distinction matters in estate-planning but does not affect the live-grandparent scenario most claimants face.)

Differences Between a Grandparent and a Stepparent

Aspect	Grandparent	Stepparent
Source of duty	Roman-Dutch common law (case law)	Section 26 of the Children’s Act 38 of 2005
When triggered	Parent cannot pay and grandparent has the means	Stepparent has contributed to the child’s maintenance in a family context
Survival of duty after divorce/separation	Not applicable — the duty flows from blood relationship	Generally ends with the marriage or domestic partnership, unless the stepparent retained a parental role

The two duties often arise in the same family: a biological parent may look first to a new spouse (under section 26 of the Children’s Act 38 of 2005) before joining a grandparent on the common-law basis, and the procedural routes — although both sit in the Magistrate’s Maintenance Court — are framed differently on the form.

What Grandparents Should Not Do

• Do not ignore a maintenance summons. Failing to appear at a Maintenance Court hearing lets the court make a default order against the grandparent. The order can later be varied on application, but only on the basis of a proper change-of-circumstances application supported by full disclosure of the grandparent’s means.
• Do not dispose of assets to defeat a contribution order. The court can set aside transactions made with the intention of avoiding maintenance liability.
• Do not assume the duty can be contracted away. It cannot. A private agreement between the parent and the grandparent not to claim maintenance is not enforceable against the child, whose right to support is independent of any family compact.

Whether you are a caregiver considering an application for a contribution order against a child’s grandparents, or a grandparent who has received a maintenance summons and needs to respond, Burger Huyser Attorneys’ Family Law team can advise on the merits and represent you in the Maintenance Court. The firm practises from eight Gauteng branches — Randburg (Linden, 011 888 0246), Sandton (011 253 3080), Bedfordview (011 201 7190), Roodepoort (011 668 0030), Pretoria/Menlyn (012 471 5700), Centurion (012 644 4990), Alberton (011 439 3990) and Midrand (010 022 4082) — with intake routed through whichever branch is closest to the relevant Maintenance Court. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified) and was awarded Best Family Law Firm 2024 by Lawyers Monthly. Initial consultations are booked directly through the nearest branch.

Frequently Asked Questions

Does a grandparent have a legal duty to pay child maintenance in South Africa?

Yes. Although the duty is not set out in a statute, the Supreme Court of Appeal in Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84 confirmed it as a well-established rule of Roman-Dutch common law, and the Maintenance Court can make a contribution order against a grandparent under section 16(1)(c) of the Maintenance Act 99 of 1968 where the parent cannot pay and the grandparent has the means to contribute.

Can a grandchild’s other parent force the grandparents to pay?

The primary caregiver of the child can apply to the Magistrate’s Maintenance Court for a contribution order against the grandparent, but the court will only make the order if the parent applying has shown that the child’s own parent cannot pay from that parent’s own means, and the grandparent has the financial capacity to contribute.

Does a grandparent need to have custody of the grandchild to be ordered to pay?

No. The duty is rooted in the family relationship, not in day-to-day care. A grandparent who has never had physical custody of the grandchild can still be ordered to pay maintenance if the court finds the parent cannot and the grandparent has the means.

What if the parent has died — can the grandparents still be ordered to pay?

Yes, where the grandparent is alive. The duty survives the parent’s death. In appropriate cases the claim can be pursued against the deceased parent’s estate as well, and in others it can be brought directly against the grandparent with the means to contribute; Van Zyl NO v Getz NO is the leading authority on this scenario.

Can a grandparent ignore a maintenance summons?

No. A grandparent who fails to appear at a Maintenance Court hearing risks a default contribution order being made against them. If the order is later found to have been made on incomplete information about the grandparent’s means, it can be varied on application, but only on the basis of a proper change-of-circumstances application.

Does estrangement from the family cancel the duty?

No. The duty arises from the family relationship, not from the quality of the relationship. Estrangement may be relevant to the court’s assessment of reasonableness and quantum in some cases, but it does not extinguish the underlying duty.