Phillipa Susan van Zyl NO v Getz NO

Bianca Turok, a psychiatric patient unable to support herself, is the granddaughter of the late Solomon Yale Turok. Her parents are divorced; her father failed to maintain her and his whereabouts and financial means were unknown, while her mother supported Bianca to the best of her limited ability. After Solomon’s death, a maintenance claim was lodged against his estate, which was solvent and had been distributed to his widow as sole heir. The executors rejected the claim relying on the common-law rule that a grandparent’s deceased estate owes no duty of support to grandchildren (as stated in Barnard NO v Miller). Acting through her curatrix ad litem, Bianca instituted action seeking damages and constitutional development of the common law to recognise such a duty. By agreement, certain legal issues were separated under rule 33(4) and determined on a stated case without evidence. The High Court decided the separated issues in favour of the executor without reasons after a delay of more than two years. An appeal was brought to the Supreme Court of Appeal.

The appeal was dismissed with no order as to costs. The Registrar of the Supreme Court of Appeal was directed to forward a copy of the judgment to the Judicial Service Commission to investigate the conduct of Acting Judge Kose.

The case reaffirms that courts will not develop the common law or decide constitutional questions in the absence of a proper factual foundation. It underscores the limits of using Rule 33(4) to determine abstract legal issues, particularly in sensitive areas such as maintenance and succession. The judgment also strongly reinforces judicial accountability, stressing the obligation to deliver timely, reasoned judgments, and demonstrates the SCA’s willingness to refer judicial misconduct to the Judicial Service Commission.