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Judge says grandparents have to pay

Children born out of wedlock now have a right denied for 70 years to maintenance from paternal grand- parents.

This is thanks to a ruling from Justice Burton Fourie in the Cape High Court yesterday.

Extramarital children are an extremely vulnerable group, he said, and children should not be allowed to suffer on account of their birth.

The case was brought before court by an 18-year-old mother who sought an order allowing her to claim maintenance from her illegitimate son's paternal grandparents.

She was represented pro bono (without cost) by advocate Muhammad Abduroaf
'Law conveys notion they do not have same dignity '

The child, who may not be named, requires monthly maintenance of R1 000, and his poverty-stricken mother approached the maintenance court for relief.

His father said in court he could afford only R200.

She then turned to his parents, but maintenance officers and a magistrate said there was no legal basis for them to make the grandparents pay.

By law, both the maternal and paternal grandparents have an obligation to support grandchildren if the parents cannot afford to.

However, in the case of illegitimate children, only the maternal grandparents are obliged to support them.

This was due to a 1930 appeal court ruling, where it was held that, in terms of the country's common law, the paternal grandfather of an illegitimate child owed no duty of support.

But the issue in the court application was whether the common-law ruling passed constitutional muster.

In a judgment handed down yesterday Mr Justice Fourie said the court was bound by the decision, but added that the constitution provided that the court had the power to develop the common law, taking into account the interests of justice.

"I am of the opinion that this common-law rule, which differentiates between children born in wedlock and extra- marital children, not only denies extramarital children an equal right to be maintained by their paternal grandparents, but conveys the notion that they do not have the same inherent worth and dignity as children who are born in wedlock," he said.

He found that this constituted unfair discrimination on the ground of birth and amounted to an infringement of the dignity of such children.

The judge found that the limitation imposed by the common-law rule was unreasonable and unjustifiable.

He also felt it was not necessary to deal with matters of access or custody.

He ordered that the paternal grandparents had a legal duty to support the child.

Full credit for this news article goes to: The Star

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