On 7 June 2024, the Pretoria High Court handed down a judgment in the case of LL v AM and Others.[1] The court dismissed an exception raised by the executors of a deceased estate (“the Defendants”) against a maintenance claim by the mother of the deceased’s children (“the Plaintiff”).
Facts of the case
The Plaintiff is the biological mother and sole guardian of two minor children whose biological father passed away in 2021. She submitted a maintenance claim to the Defendants on behalf of her children. Based on an actuarial report, the total maintenance due to the children from the estate was over R2,6 million. The Defendants rejected her claim because she failed to provide details of her ability to support and maintain the children. The Plaintiff then instituted legal proceedings against the Defendants. In response, the Defendants raised an exception to the Plaintiff’s particulars of claim. The Defendants believed that she did not disclose a cause of action because she did not assert that she could not maintain the children. The Defendant also argued that the Plaintiff should have included an explanation on how her actuary made his calculations. The exception was set down for a hearing before the court.
Maintenance against a deceased’s estate
In South Africa, parents have a common-law duty to maintain their minor children, and this duty does not end when the parent dies.[2] This obligation is also included in the Maintenance Act.[3] This right to maintenance comes from the family relationship between parent and child, and not out of any principle of inheritance.[4] Therefore, the maintenance of a minor is a debt owed by the estate of a deceased parent. This debt must be satisfied before any inheritance payments are made.[5] A child’s claim for maintenance is against the executor who has ‘stepped into the shoes of the deceased’.[6]
Judgment
Neukircher J rejected the Defendant’s position that a claim in the deceased estate only arises where the surviving spouse or parent is unable to support a minor child.[7] Accordingly, it was unnecessary for the Plaintiff to prove this in her pleading. The court refuted precedent suggesting that a claim only lies against a deceased estate when a surviving spouse or parent cannot support the minor child. The court’s reasoning was as follows:[8]
- There is a clear obligation on a deceased estate to support a minor child;
- A parent’s obligation to support their child arises from both the common law and the Maintenance Act;
- A child is defined as a person under the age of 18 years;[9]
- Minor children are unable to support themselves;
- The best interests of the child as outlined in the Children’s Act and the Constitution cannot be ignored;[10] and
- The duty of support falls on both parents according to their means.
In light of the above, the court affirmed that the deceased estate does bear a duty of support. The only thing in question is the extent of that duty, which will be determined by the evidence placed before the trial court.
Although the court’s reasoning is sound and well-founded in the law, the nexus between the court’s decision and reasoning is not clearly stated. It is assumed that the court’s intention is to protect the best interests of the child by ensuring that maintenance claims against a deceased estate are not unduly restricted by the surviving spouse or parent’s financial means.
Consequently, the court found that the Defendant’s exception must fail. Additionally, the Defendant’s argument that the Plaintiff’s pleadings should have included an explanation on how her actuary made his calculations was rejected. The court held that the failure to plead the evidentiary facts or facta probantia does not render a pleading excipiable. This aligns with the well-established principle that the material facts or facta probanda must be pleaded. However, the pleader does not need to inform the opposing party of how they intend to prove these material facts at trial.[11]
Position before the judgment
Prior to this judgment, it was unclear whether a deceased estate would have a duty of support where the surviving spouse or parent is able to support the child.[12] The court in In re Estate Visser left the question of whether the estate and surviving spouse would share the duty of support for maintenance unanswered.[13] Some academics are of the opinion that the duty of support rests with the surviving spouse or parent first.[14]
Others believe that both the estate and surviving spouse or parent should bear this duty of support.[15] They hold the view that the duty of support of the deceased parent’s estate should not be dependent on whether the surviving spouse or parent is able to provide for the child. This viewpoint has received support in the literature, and it is argued that it should be preferred on the ground of equity.[16] The court’s decision in this case has provided clarity by confirming that a claim for maintenance against a deceased estate is not dependent on whether or not the surviving spouse or parent is able to support the child. This position aligns with academic discourse and reaffirms the best interests of the child principle in the Constitution and the Children’s Act.
Cost Order
The court imposed a cost de bonis propriis order against the Defendants. A court will generally make this order against a litigant holding a fiduciary position (e.g. an executor) where they have acted negligently, unreasonably, or in bad faith.[17] The court held that the exception raised by the Defendants was “ill-advised and ill-founded” in its construction of the law.[18]
The court’s reasoning for this cost order is premised on the judgment of In re Alluvial Creek Ltd.[19] In this case, the court held that a costs de bonis propriis order is sometimes awarded where the court finds the proceedings are vexatious or have the effect of being vexatious, regardless of one’s intent.[20] Although the litigant might have entered into litigation with ‘the most upright purpose and a most firm belief in the justice of their cause’, these proceedings may still be regarded as vexatious because they have put the other side through unnecessary trouble and expenses that they should not have to bear.[21]
However, in applying the judgment of the court in In re Alluvial Creek Ltd, the court in City Council of Johannesburg v Television & Electrical Distributors (Pty) Ltd held that the court must not censure a party through the use of a special costs order when ‘with the benefit of hindsight, a court of action taken by a litigant turns out to have been a lost cause’.[22] Furthermore, the court must exercise their discretion to grant costs order judicially to bring about a fair result.[23] The court in Mukanda v South African Legal Practice Council held that a punitive cost order was not appropriate where an applicant was misguided in launching their application.[24]
In light of the applicable case law, it is arguable whether the cost order imposed by the court was justifiable.
Conclusion and recommendations
This judgment must be commended for advancing the best interests of the child and ensuring the continued support of minor children after the death of their parents on an equitable basis. As a result of this judgment, it is recommended that testators make provision for maintenance for their children in their estate planning. Additionally, legal practitioners assisting clients or executors with similar maintenance claims should advise them of this new position.
This article was written by Tamrin Slager and supervised by Sushila Dhever.
[1] 2025 (1) SA 455 (GP).
[2] Du Toit NO v Thomas NO and Others 2016 (4) SA 571 (WCC), at para 17.
[3] Section 15(1) of Act 99 of 1998.
[4] Van Zyl v Serfontein 1989 (4) SA 475 (C) at 477G – J.
[5] Goldman NO v Executor Estate Goldman 1937 W LD 64.
[6] 2016 (4) SA 571 (WCC), at para 18.
[7] 2025 (1) SA 455 (GP), at para 18.
[8] 2025 (1) SA 455 (GP), at para 18-20.
[9] Section 1 of the Children’s Act 38 of 2005.
[10] Section 9 of Act 38 of 2005; Section 28(2) of the Constitution of the Republic of South Africa.
[11] Millman NO v Klein 1986 (1) SA 465 (C) at 477G–I.
[12] H Kruger ‘Maintenance for Children’ in T Boezaart (2 ed) Child Law in South Africa (Juta Law 2018) 52 at footnote 147.
[13] 1948 (3) SA 1129 (C) at 1129.
[14] HR Hahlo The South African Law of Husband and Wife (5 ed) (1985) 409.
[15] JD Van der Vyver & DJ Joubert Persone- en familiereg (Juta 1991) 628
[16] L Van Zyl Handbook of the South African Law of Maintenance (2005) 16-17; N van Schalkwyk ‘Maintenance for children’ in T Boezaart (ed) Child Law in South Africa (2009) 58; J Heaton & H Kruger South African Family Law (4 ed) (LexisNexis 2015) 350.
[17] In re Potgieter’s Estate 1908 TS 982.
[18] 2025 (1) SA 455 (GP) at para 30.
[19] 1929 CPD 532 at 535.
[20] Ibid.
[21] Ibid.
[22] City Council of Johannesburg v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA 455 (A) at 472F-G.
[23] Mukanda v South African Legal Practice Council [2020] JOL 49404 (GP) para 13.
[24] Ibid.
