Petersen v Maintenance Officer and Others (6541/03) [2003] ZAWCHC 61; [2004] 1 All SA 117 (C); 2004 (2) BCLR 205 (C); 2004 (2) SA 56 (C) (11 November 2003)

Petersen v Maintenance Officer and Others (6541/03) [2003] ZAWCHC 61; [2004] 1 All SA 117 (C); 2004 (2) BCLR 205 (C); 2004 (2) SA 56 (C) (11 November 2003)

The common law rule, as interpreted in Motan, which denies a duty of support by paternal grandparents to extra-marital children, constitutes unfair discrimination on the ground of birth and infringes the dignity of such children. This differentiation is not justified under section 36 of the Constitution, as it is unreasonable and unjustifiable in an open and democratic society based on human dignity, equality, and freedom. The court found that the best interests of the child, as well as the rights to equality and dignity, require that the common law be developed to impose a duty of support on paternal grandparents of extra-marital children to the same extent as maternal grandparents. The...

Citation
[2003] ZAWCHC 61
Parties
Applicant: Jade Lee Petersen; Respondent: The Maintenance Officer, Simon’s Town Maintenance Court; Respondent: Gasant Abrahams; Respondent: Saadia Abrahams; Respondent: Beulah Petersen; Respondent: Eugene Bredenkamp
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 November 2003
Case Number
6541/03
Procedural Posture
Review Application / First Instance Judgment
Outcome
Application granted. The common law is developed to impose a duty of support on paternal grandparents of extra-marital children.
Judges
P.B. Fourie
Legal Topics
Duty of Support, Discrimination on Ground of Birth, Best Interests of Child, Development of Common Law, Maintenance Act, Equality and Dignity
Family and Children Constitutional Law Duty of Support Discrimination on Ground of Birth Best Interests of Child Development of Common Law Maintenance Act Equality and Dignity

Case Brief

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Parties

Jade Lee Petersen

Applicant

The Maintenance Officer, Simon’s Town Maintenance Court

Respondent

Gasant Abrahams

Respondent

Saadia Abrahams

Respondent

Beulah Petersen

Respondent

Eugene Bredenkamp

Respondent

Procedural Posture

Review Application / First Instance Judgment

Legal Issues

  1. 1 Does the common law rule that paternal grandparents of an extra-marital child owe no duty of support violate the Constitution?
  2. 2 Should the common law be developed to impose a duty of support on paternal grandparents of extra-marital children?
  3. 3 Is the differentiation between children born in wedlock and extra-marital children unfair discrimination on the ground of birth?

Ratio Decidendi

The common law rule, as interpreted in Motan, which denies a duty of support by paternal grandparents to extra-marital children, constitutes unfair discrimination on the ground of birth and infringes the dignity of such children. This differentiation is not justified under section 36 of the Constitution, as it is unreasonable and unjustifiable in an open and democratic society based on human dignity, equality, and freedom. The court found that the best interests of the child, as well as the rights to equality and dignity, require that the common law be developed to impose a duty of support on paternal grandparents of extra-marital children to the same extent as maternal grandparents. The...

Court Disposition

Application granted. The common law is developed to impose a duty of support on paternal grandparents of extra-marital children.

Orders

  • It is declared that the second and third respondents have a legal duty to support the extra-marital child of the applicant, Jordan Petersen, born on 7 January 2003, to the same extent to which the fourth and fifth respondents are liable to maintain the said child.
  • The first respondent is directed to take the necessary steps for an enquiry to be held in terms of section 10 of the Maintenance Act No. 99 of 1998, with a view to enquiring into the provision of maintenance by the second and third respondents for the said extra-marital child of the applicant.