Phillipa Susan van Zyl NO v Getz (in his capacity as executor in the estate of the late Solomon Yale Turok)

Bianca Gittele Turok was born on 7 July 1990 to parents Tessa and Laurence (son of Solomon and Noemi Turok). Bianca is a psychiatric patient with bipolar affective disorder, mild intellectual disability and autism spectrum disorder, rendering her unable to be self-supporting and requiring maintenance. On 25 July 2001, Tessa and Laurence divorced, with sole custody and guardianship of Bianca awarded to Tessa. The divorce order obliged Laurence to maintain Bianca until she became self-supporting. Prior to the divorce, Laurence left South Africa to reside in the USA and failed to maintain contact with Tessa and Bianca or to provide maintenance. Tessa has been Bianca's only source of financial support besides a government disability grant of R1,410 per month, but allegedly has been unable to meet all Bianca's needs. Solomon Turok died on 29 August 2004, leaving his entire estate (valued at R554,799.82) to his wife Noemi. The appellant, as curatrix ad litem to Bianca, lodged a maintenance claim against Solomon's estate, which the executors rejected based on the common-law rule in Barnard NO v Miller that a grandparent's deceased estate has no duty to maintain grandchildren. Noemi died on 21 October 2012. The appellant instituted action for damages, alleging the executors' failure to recognize Bianca's maintenance claim caused her loss.

• Whether a grandparent's deceased estate has a legal duty to maintain a grandchild where both parents are alive but one parent's whereabouts and financial means are unknown and the other parent allegedly cannot fully support the child
• Whether the common-law rule in Barnard NO v Miller 1963 (4) SA 426 (C) that grandparents' deceased estates are not liable to maintain grandchildren is inconsistent with the Constitution
• Whether the common law should be developed in terms of sections 39(2) and 173 of the Constitution to impose a duty of support on grandparents' deceased estates in specified circumstances
• Whether it was appropriate to determine these legal issues separately under rule 33(4) of the Uniform Rules of Court on a stated case without full evidence
• The propriety of a judge delivering an order without reasons two years after hearing argument

1. The appeal is dismissed with no order as to costs. 2. The Registrar of the court is directed to forward a copy of this judgment to the Judicial Service Commission to investigate the conduct of Acting Judge Kose.

Development of the common law to impose a duty of support on grandparents' deceased estates is inappropriate where: (1) the factual basis is insufficient, particularly where the financial inability of the parents to support the child has not been properly established; (2) the issues are determined on a stated case under rule 33(4) with assumed facts rather than after hearing all evidence, when a fundamental change to the common-law rule is sought; (3) the development is not incremental but would fundamentally alter the common-law position with significant implications for succession law and constitutional values including freedom of testation; and (4) the development implicates complex social policy choices involving competing constitutional values that are best resolved by the legislature as the major engine for law reform rather than by the courts. The common law's structure of imposing the duty to support children first on parents, and only secondarily on grandparents when both parents are unable to provide support, recognizes the special role and responsibility parents have in raising children and should not be upset without proper factual foundation and legislative consideration.

The Court made important obiter observations on judicial conduct and accountability. Zondi JA stated that a judge's failure to deliver judgment expeditiously and to provide reasons constitutes poor judicial service that is unreasonable. The Court emphasized that although there is no express constitutional provision requiring judges to furnish reasons, a reasoned judgment is indispensable to the appeal process. Judges ordinarily account for their decisions by giving reasons, and the rule of law requires that they not act arbitrarily and that they be accountable. Furnishing reasons: (1) explains to the parties and the public why a case is decided as it is; (2) is a discipline that curbs arbitrary judicial decisions; (3) is essential for the appeal process, enabling the losing party to take an informed decision about appealing; (4) assists the appeal court to decide whether the lower court's order is correct; and (5) provides guidance to the public in similar matters. The Court cited with approval Strategic Liquor Services v Mvumbi NO and Mphahlele v First National Bank. The Court also noted that freedom of testation is an important facet of the right to dignity and protects an individual's right not only to unconditionally dispose of property but also to choose beneficiaries as she wishes (citing Harvey v Crawford). The Court further observed that the right to human dignity underlying the duty to support does not mean children's interests are superior to other fundamental rights.

This case is significant for several reasons: (1) It confirms that the common-law rule in Barnard NO v Miller that grandparents' deceased estates have no duty to maintain grandchildren remains good law and was not developed despite constitutional arguments. (2) It provides important guidance on when development of the common law is appropriate, emphasizing that where a common-law rule is to be changed altogether, courts should hear all evidence rather than decide on a stated case with assumed facts. (3) It clarifies that development of common law implicating complex social policy choices involving competing constitutional values (children's rights, human dignity, freedom of testation) is best left to the legislature. (4) It reinforces the principle that separation of issues under rule 33(4) should not be resorted to readily where issues are intertwined with disputed factual matters. (5) It sends a strong message about judicial accountability and the duty to deliver judgments expeditiously with reasons, directing a judicial misconduct investigation into a judge who took two years to issue an order without reasons. (6) It illustrates the limitations of the common law's incremental development approach when fundamental policy reform is sought.