Notes Chapter 24 & 25

CHAPTER 24 – DUTY TO SUPPORT

 

 

·                 Sec 28(1)© constitution = entitles every child to basic nutrition, shelter etc. parents/family are the primary responsible for caring and providing for the child.  Passes to state only if fails.

·                 Sec 28(1)© imposes providing the child with support.

 

 

 

Persons obliged to support:

·                 child’s parents  (ex lege)  - both according to means –if no $

·                 grandparents – maternal/paternal grandparents (married or not) – if no $

·                 Child’s siblings- brothers/sisters/half-brothers.

·                 Person who has care of the child – if parental rights awarded. If voluntary then sec 32 (1) children’s act does not have a duty to support.

·                 Step-parents – no common –law duty. Heysteck v Heysteck incorrectly held does extend to step-parents.

 

 

Scope of duty to support:

·                 depends on circumstances of each case

·                 standard of maintenance depends – eg tertiary education ( look at performance)

·                 Amount calculation: look at age, needs etc.

·                 Needs first established then maintenance contribution must be calculated

·                 Child 1^st marriage not treated pref to further children.

 

 

Enforcement:

·                 dealt with in Maintenance

·                 further criminal sanction ito children’s act – sec 305(4)

 

 

Recovery of expenses relating to support:

 

·                 Cannot reclaim form child, unless child was self supportive.

·                 Can recover from other parent his share –pro rata

·                 Against 3^rd parties – child support outside household necessity – not recover

 

 

Termination:

·                 Child’s death – not parent’s death. Preferant claim against deceased estate

·                 Adoption

·                 Self supportive child – marriage/civil union

·                 Insolvency of liable person – not terminate but limits the sources

·                 Order- BvB does not lapse auto when self –supportive.  Other courts say it does.

 

 

Reciprocal duty

·                 Child has a duty to support his parents, siblings, grandparents – common law.

·                 Unmarried parents?

·                 Must be in extreme financial need –necessities of life.

·                 Obligation only if the sibling/parent /grandparent dies not have a spouse/partner/child that can support

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 25 – GUARDIANSHIP AND CURATORSHIP

 

Guardianship:

·                 Officially supervised care of estate not part of parental rights.

·                 Known as guardian or tutor.

 

Types:

 

·                 Testamentary guardian/tutor: appoint a person to act as legal guardian – must be in a will – person must be fit and proper. Must consider child’s views. Must accept appointment must be confirmed by Master. More than one all may accept.

·                 Assumed tutor: a testamentary guardian may appoint a guardian to assist him or take his place (if will provides) also confirmed by Master.

·                 Tutor Dative: high court /master can appoint if interest so requires eg when property accrues to child that does not have parent, guardian or curator.

·                 Supposed/putative tutor: acts as guardian while mistaken impression he is guardian.

 

Requirements to be appointed guardian:

 

·                 major

·                 not subject to curatorship

·                 not witness if testamentary tutor

·                 not declared incapable of holding guardianship by court

·                 provided financial security for proper performance of functions

 

Rights & duties of Guardian:

 

·                 no one obliged

·                 rights etc determined by letter of tutorship – generally include :

·                 act in good faith+ best interest of minor;

·                 must within 30days of appointment lodge inventory of property of minor falling under him with master

·                 admin and safeguard property

·                 use minors estate to provide for minor

·                 submit annual report to master

·                 entitled to prescribed remuneration

·                 end of guardianship must give account

 

 

Termination:

·                 minor dies;

·                 majority

·                 guardian dies

·                 period appointed lapsed

·                 discharged /resigns/disqualify/removed

 

 

Curatorship:

 

·                 refers to officially supervised care of the estate of someone who is incapable of managing his affairs/person

·                 Curator for estate = curator /curatrix bonis.

·                 Curator take care of person’s person = curator personae

·                 Litigation = curator ad litem

 

Types of curators:

 

·                 Curator nominate: testator may appoint same if person receiving donation/bequeath is incapacitated. Must be confirmed by master.

·                 Assumed curator: nominated curator may appoint to help /master approved.

·                 Curator dative: high court/master statutory powers to appoint a curator dative to be a curator bonis.

·                 Curator ad litem: appointed by court. Assist with litigation.

 

 

Requirements: very similar –peruse.

 

Rights & duties: very similar

 

Termination: very similar