THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 556/2021

In the matter between:

Z                                                                                                               APPELLANT
and
Z                                                                                                            RESPONDENT

Neutral citation:
Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022)

Coram:
Schippers, Nicholls and Carelse JJA, and Meyer and Matojane AJJA
Heard:
4 May 2022
Delivered:
21 July 2022

Summary: Divorce – Maintenance – Adult dependent child – Divorce Act 70 of 1970
– s 6 – whether parent has locus standi in judicio to claim maintenance from other
parent for and on behalf of adult dependent child of their marriage upon their divorce.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Port Elizabeth (Zilwa J,
sitting as court of first instance):
1.
The appeal is upheld with costs, including those of two counsel.
2.
The order of the court below is set aside and replaced with the following:
‘The defendant’s special plea is dismissed with costs.’
__________________________________________________________________________________
JUDGMENT
___________________________________________________________________

Meyer AJA (Schippers, Nicholls and Carelse JJA and Matojane AJA concurring)

[1] ‘The material shows that on the breakdown of a marriage or similar
relationship it is almost always mothers who become the custodial
parent and have to care for the children. This places an additional
financial burden on them and inhibits their ability to obtain remunerative
employment. Divorced or separated mothers accordingly face the
double disadvantage of being overburdened in terms of responsibilities
and under-resourced in terms of means. Fathers, on the other hand,
remain actively employed and generally become economically
enriched. Maintenance payments are therefore essential to relieve this
financial burden.’
The issues that arise for consideration in this appeal call to mind these sentiments
expressed by Mokgoro J two decades ago in Bannatyne v Bannatyne and Another.1

[2] The appeal is against the order of the Eastern Cape Division of the High Court,
Port Elizabeth (Zilwa J), upholding with costs a special plea in divorce proceedings
that a parent lacks locus standi in judicio to claim maintenance for and on behalf of
the parties’ adult dependent children from the other parent. The respondent abides
the decision of this Court.

1 Bannatyne v Bannatyne and Another [2002] ZACC 31; 2003 (2) SA 363 (CC) (Bannatyne) para 29.

[3] The pertinent facts are neither unusual nor controversial. The appellant, Mrs Z
(the mother), and the respondent, Mr Z (the father), married each other on 10 January
1995. Two major, but still financially dependent, children were born from their
marriage; a son, R, born on 21 May 1997, and a daughter B, born on 13 March 1999.
The marriage relationship between the mother and father deteriorated over time,
ultimately resulting in the father moving out of the matrimonial home in April 2018.

[4] On 9 April 2019, the mother initiated divorce proceedings against the father.
Apart from claiming a decree of divorce, she inter alia claimed maintenance for herself
as well as for R and B from the father. In his counterclaim, the father also inter alia
claimed a decree of divorce. It is common cause that R and B are financially
dependent and in need of maintenance from their parents. The father filed a special
plea, averring that the two children have reached the age of majority and accordingly
have the necessary locus standi to pursue maintenance claims against him in their
own names, and that the mother lacks the requisite locus standi to do so on their
behalf. The mother relies on the provisions of s 6 of the Divorce Act 70 of 1970 (the
Divorce Act), which she contends authorises a parent to claim maintenance from the
other parent on behalf of a major dependent child in divorce proceedings between
the two parents.

[5] Section 6 is titled ‘[s]afeguarding of interests of dependent and minor children’
and provides as follows:
‘(1) A decree of divorce shall not be granted until the court-
(a) is satisfied that the provisions made or contemplated with regard to the welfare of
any minor or dependent child of the marriage are satisfactory or are the best that can
be effected in the circumstances; and
(b) if an enquiry is instituted by the Family Advocate in terms of section 4(1)(a) or 2(a) of
the Mediation in Certain Divorce Matters Act, 1987, has considered the report and
recommendations referred to in the said section 4(1).
(2) For the purposes of subsection (1) the court may cause any investigation which it deems
necessary, to be carried out and may order any person to appear before it and may order the
parties or any one of them to pay the costs of the investigation and appearance.
(3) A court granting a decree of divorce may, in regard to the maintenance of a dependent
child of the marriage or the custody or guardianship of, or access to, a minor child of the
marriage, make any order which it may deem fit, and may in particular, if in its opinion it would

be in the interests of such minor child to do so, grant to either parent the sole guardianship
(which shall include the power to consent to the marriage of the child) or the sole custody of
the minor, and the court may order that, on the predecease of the parent to whom the sole
guardianship of the minor is granted, a person other than the surviving parent shall be the
guardian of the minor, either jointly with or to the exclusion of the surviving parent.
(4) For the purposes of this section the court may appoint a legal practitioner to represent a
child at the proceedings and may order the parties or any one of them to pay the costs of the
representation.’

[6] There are conflicting high court decisions on the question of whether a parent
has locus standi in judicio to claim maintenance from the other parent on behalf of an
adult dependent child in divorce proceedings between the two parents. Some have
held that a parent has the requisite locus standi to do so,2 whilst others have held to
the contrary.3 In determining the father’s special plea, the latter view seems to have
found favour with the high court. On 9 March 2021, it issued the following order:
‘1. The special plea succeeds. The plaintiff is held to lack the locus standi to pursue the
maintenance claims on behalf of the parties’ dependent adult children as sought in
prayers (b) and (c) of the amended particulars of claim.
2.
The plaintiff is ordered to join the parties’ adult dependent children, [R] . . . and [B] . . .
as parties to the divorce action under Case No. 903/2019 of this Court.
3.
The hearing of the divorce action shall only proceed after the joinder referred to in
paragraph 2 above and after all the relevant Pre-Trial proceedings have been concluded.
4.
The plaintiff is ordered to pay the costs of the special plea.’

[7] The father’s special plea raised the proper interpretation of s 6 of the Divorce
Act. The now well-established test on statutory interpretation is this:
‘A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in absurdity. There are three
important interrelated riders to this general principle, namely:
(a) the statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and

2 JG v CG 2012 (3) SA 103 (GSJ) (JG) paras 22 et seq; AF v MF 2019 (6) SA 422 (WCC) (AF) paras
71-77; SJ v CJ 2013 (4) SA 350 (GSJ) (SJ) paras 6-7.
3 Smit v Smit 1980 (3) SA 1010 (O) (Smit) at 1018B-D; Butcher v Butcher 2009 (2) SA 421 (C) (Butcher)
para 15.

(c) all statutes must be construed consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought to be interpreted to preserve their constitutional
validity. This proviso to the general principle is closely related to the purposive approach
referred to in (a).’4
Thus, what needs to be undertaken is a linguistic, contextual, purposive and
constitutional5 interpretative analysis.

[8] The age of majority was reduced from 21 years to 18 years in terms of s 17 of
the Children’s Act 38 of 2005 (the Children’s Act), which became effective on 1 July
2007. The parents of a minor child or of an adult dependent child are both under a
common law and a statutory duty to support their minor children and their major
dependent children in accordance with their respective means. It is an inescapable
fact of modern life that marriages often end in divorce.6 The parents’ duty to support
their children is not terminated by the dissolution of their marriage by divorce.

[9] In Bursey v Bursey and Another,7 this Court stated the following:
‘According to our common law both divorced parents have a duty to maintain a child of the
dissolved marriage. The incidence of this duty in respect of each parent depends upon their
relative means and circumstances and the needs of a child from time to time. The duty does
not terminate when the child reaches a particular age but continues after majority. (In re
Estate Visser 1948 (3) SA 1129 (C) at 1133-4; Kemp v Kemp 1958 (3) SA 736 (D) at 737 in
fine; Lamb v Sack 1974 (2) SA 670 (T); Hoffmann v Herdan NO and Another 1982 (2) SA
274 (T) at 275A.) That the duty to maintain extends beyond majority is recognised by s 6 of
the Divorce Act 70 of 1979. Section 6(1)(a) provides that a decree of divorce shall not be
granted until the Court is satisfied that the provisions made or contemplated with regard to
the welfare of any minor or dependent child of the marriage are satisfactory or are the best
that can be effected in the circumstances. Section 6(3) provides that a Court granting a
decree of divorce may make any order it deems fit in regard to the maintenance of a

4 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC) para 28.
5 Section 39(2) of the Constitution provides as follows: ‘When interpreting any legislation, and when
developing the common law, every court, tribunal or forum must promote the spirit, purport and
objectives of the Bill of Rights’. In Investigation Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others
v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC) para 23, the Constitutional Court said
that ‘judicial officers must prefer interpretations of legislation that fall within constitutional bounds over
those that do not, provided that such an interpretation can be reasonably ascribed to the section’.
6 S v S and Another [ZACC] 22; 2019 (8) BCLR 989 (CC) para 1.
7 Bursey v Bursey and Another 1999 (3) SA 33 (SCA) at 36D-H.

dependent child of the marriage. This provision must be contrasted with the provision in the
subsection relating to the custody or guardianship of, or access to, a minor child. A
maintenance order does not replace or alter a divorced parent’s common-law duty to maintain
a child. In Kemp v Kemp (supra) Jansen J stated at 738A-B that as a matter of expediency
the Court, as the upper guardian of the child, usually regulates the incidence of this duty as
between the parents when it grants the divorce and that its order for maintenance is ancillary
to the common-law duty to support.’

[10] The Divorce Act governs the law relating to divorce and provides for incidental
matters. A ‘divorce action’ is defined in s 1 to mean ‘an action by which a decree of
divorce or other relief in connection therewith is applied for’. A marriage between
spouses may, in terms of s 3, be dissolved by a court by a decree of divorce only on
the grounds of the irretrievable breakdown of the marriage relationship between the
parties to the marriage as contemplated in s 4 or mental illness or the continuous
unconsciousness of the defendant as contemplated in s 5. The lis relating to the claim
for a decree of divorce, therefore, is one between the parties to the marriage. A
decree of divorce between those parties, however, will not be granted until the court
is satisfied that the provisions made with regard to the welfare of any minor or
dependent child of the marriage are satisfactory or are the best that can be effected
in the circumstances (s 6(1)(a)). A court granting a decree of divorce may, inter alia
in regard to the maintenance of a dependent child of the marriage, make any order
which it may deem fit (s 6(3)).

[11] Unsurprisingly, ss 6(1)(a) and 6(3) do not differentiate between a minor child
and a major dependent child of the marriage in regard to the payment of maintenance.
For, as was observed by the Constitutional Court in Centre for Child Law v Minister
of Justice and Constitutional Development and Others (National Institute for Crime
Prevention and the Re-Integration of Offenders, as Amicus Curiae),8 albeit in a
different context,
‘. . . there is no intrinsic magic in the age of 18, except that in many contexts it has been
accepted as marking the transition from childhood to adulthood’.

8 Centre for Child Law v Minister of Justice and Constitutional Development and Others (National
Institute for Crime Prevention and the Re-Integration of Offenders, as Amicus Curiae) [2009] ZACC
18; 2009 (2) SACR 477 (CC) para 39. Also see Centre for Child Law and Others v Media 24 Ltd and
Others [2019] ZACC 46; 2020 (4) SA 319 (CC) para 102.

And in Smit,9 it was said about a 21 year old university student that he,
‘. . . though well on the way towards being self-supporting, is, because of his youth and the
resultant absence of the completion of his training, still legally a child within his father’s
household and a member who shares his family’s mode and standard of living.’

[12] The court may, in terms of s 6(3), also in regard to the maintenance of an adult
dependent child of the marriage, ‘make any order which it may deem fit’. The
concomitant of that power of a court granting a decree of divorce between the parties
to the marriage, is the legal standing of a spouse or both spouses to claim and
counterclaim the payment of maintenance for and on behalf an adult dependent child
of the marriage. In so doing, the parent will plead the necessary facta probanda, such
as their relative means and circumstances, the needs of the adult dependent child,
the most fitting method of payment - i.e. directly to a parent or to the adult dependent
child or in parts to a parent, to the adult dependent child, to an educational institution,
lump sum or periodic payments, and so on – in order to persuade the court what is
most satisfactory or best to be effected in the circumstances regarding the payment
of maintenance.

[13] As was said in SJ:10
‘The parties in the process of the divorce will provide all the relevant data concerning their
assets and liabilities, income and expenses and the relevant evidence required for the trial.
To the extent that there is any inadequacy in the production of evidence, the parties in the
pursuit of their own claims inter se will deal with such inadequacies. In the course of doing
so the data required by the court to assess the respective amounts each party is to pay will
become apparent.’

[14] Furthermore, s 6(2) empowers the court to cause any investigation which it
may deem necessary to be carried out and may order any person to appear before it
for the purpose inter alia of being satisfied that the provisions made or contemplated
with regard to the welfare of any minor or dependent child of the marriage are
satisfactory or are the best that can be effected in the circumstances. Section 6(4)
further empowers the court to appoint a legal practitioner to represent a child at the

9 Smit fn 3 at 1021H-I.
10 SJ fn 2 para 18.

proceedings. Sections 6(2) and 6(4) respectively empower the court to order the
parties or one of them to pay the costs of the investigation and appearance and of
the representation. It is to be noted that the adjectives ‘minor’ and ‘dependent’ used
in ss 6(1)(a) and 6(3) are not used in s 6(4), but only the noun ‘child’. The dictionary
meanings of the noun or adjective ‘minor’ includes a ‘person under age’, the noun or
adjective ‘dependent’ includes ‘one who depends on another for support’ or
‘maintained at another’s cost’, and of the noun ‘child’ includes ‘son or daughter (at
any age)’, ‘offspring’ or ‘descendent’.11 Section 6(4), therefore, also finds application
to the incidence of the duty to support a major dependent child as between the
parents when the court grants the divorce between the parties to the marriage
relationship.

[15] Given their ordinary grammatical meaning, properly contextualised, the words
used in ss 6(1)(a) and 6(3) of the Divorce Act support an interpretation of s 6 that a
parent is allowed to claim maintenance on behalf of adult dependent children upon
divorce. The lis relating to the claim for a decree of divorce is one between the parties
to the marriage. The purpose of s 6 is crystal clear: it serves to safeguard the welfare
of both adult dependent and minor children of the marriage. Unless and until the court
is satisfied that the provision made or contemplated with regard to, inter alia the
maintenance of an adult dependent child is satisfactory or the best that can be effected
in the circumstances, the marriage between the spouses ‘shall not’ be dissolved by
the court granting a decree of divorce. The onus is on the parties to the marriage to
so satisfy the court, and the court itself is given extensive discretionary powers to
cause any investigation which it may deem necessary and or to appoint a legal
practitioner to represent the adult dependent child at the divorce proceedings. There
is no legal requirement in the Divorce Act for the adult dependent child to be a party
to or to be joined to the divorce proceedings between his or her parents. A court order
issued upon divorce between the parties to the marriage would only bind the parents
and the adult dependent child would still be free to institute her or his own maintenance
proceedings against an errant parent in terms of s 6 of the Maintenance Act 99 of
1999.12

11 The Concise Oxford Dictionary 5th ed at 206, 327 and 771.
12 Section 6 of the Maintenance Act provides as follows:
‘(1) Whenever a complaint to the effect-

[16] An interpretation of s 6 of the Divorce Act that excludes a claim for maintenance
by a parent on behalf of a dependent child who has attained majority would not
preserve its constitutional validity and result in absurdity. It would implicate the
constitutionally entrenched fundamental rights to human dignity,13 emotional
wellbeing14 and equality.15 Most children are not financially independent by the time
they attain majority at age 18: Many have not even concluded their secondary
education and only commence their tertiary education or vocational training after they
have attained the age of majority.16 A further reality is that it often takes time for young
adults to obtain employment. Such interpretation of s 6 of the Divorce Act would in a
given case result in the absurdity that a parent, usually the mother, in divorce
proceedings claims maintenance for a school-going minor child from the other
divorcing parent but would have no standing to claim maintenance for and on behalf
of another school-going child of the marriage, simply because he or she has attained
the age of 18. That would also implicate the dependent major child’s fundamental right
to equality.

[17] Dependent children should also remain removed from the conflict between their
divorcing parents for as long as possible, unless they elect to themselves assert their
rights to the duty of support.17 It is undesirable that they should have to take sides and
institute a claim together with one parent against the other; they should preferably

(a)   that any person legally liable to maintain any other person fails to maintain the latter person;
(b)   that good cause exists for the substitution or discharge of a maintenance order; or
(c)   that good cause exists for the substitution or discharge of a verbal or written agreement in respect
of maintenance obligations in which respect there is no existing maintenance order,
has been made and is lodged with a maintenance officer in the prescribed manner, the
maintenance officer shall investigate that complaint in the prescribed manner and as provided in
this Act.
(2) After investigating the complaint, the maintenance officer may institute an enquiry in the
maintenance court within the area of jurisdiction in which the person to be maintained, or the
person in whose care the person to be maintained is, resides, carries on business or is employed
with a view to enquiring into the provision of maintenance for the person so to be maintained.’
13 Section 10 of the Constitution: ‘Everyone has inherent dignity and the right to have their dignity
respected and protected.’ In Dawood and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and
Others 2000 (3) SA 936 (CC) para 35, the Constitutional Court held that human dignity is a value that
informs constitutional adjudication at a range of levels and the interpretation of many, possible all other
rights. It is not only a value fundamental to our Constitution, but also a justiciable and enforceable right
that must be respected and protected.
14 Section 12(2) of the Constitution: ‘Everyone has the right to bodily and psychological integrity . . .’.
15 Section 9(1) of the Constitution: ‘Everyone is equal before the law and has the right to equal
protection and benefit of the law.’
16 Butcher fn 3 paras 13 and 14; JG fn 2 para 48.
17 JG fn 2 para 46.

maintain a meaningful relationship with both their parents after the divorce. The
institution of a separate claim for maintenance by an adult dependent child against his
or her parent or parents would further lead to a piecemeal adjudication of issues that
arise from the same divorce and are intrinsically linked to other issues in the divorce
action, such as claims for maintenance for spouses and other minor children born from
the marriage.18 Further, the invidious position of an indigent adult child in this situation
is clearly evident.

[18] Professors Heaton and Kruger South African Family Law19 concisely
summarise the prejudicial position faced by young adult children when s 6 of the
Divorce Act is improperly interpreted, thus:
‘Firstly, it is generally accepted that it is undesirable for children to become involved in the
conflict between the divorcing parents by being joined as parties in divorce proceedings.
Secondly, the adversarial system of litigation still forms part of the divorce process. Although
our courts permit a relaxation of the adversarial approach in cases involving children, this
approach does not benefit young adults as they are no longer children. Thirdly, it may be very
awkward for the parent with whom the child lives to expect the adult child to pay over some of
the maintenance received as a contribution to the child’s living expenses. Further, some adult
dependent children refuse to institute their own maintenance claims, thereby placing an even
heavier burden on the parent with whom they reside, who is usually the mother. This further
exacerbates the already vulnerable position many women find themselves in after divorce.’20
(Reference omitted.)

[19] Professor M de Jong21 also advocates a similar interpretation of inter alia s 6 of
the Divorce Act. In doing so, she persuasively advances the view that-22
‘In the context of family law, policy considerations therefore include the values of equality and
non-discrimination and the obligation of parents to maintain their children in accordance with
their ability, as well as the needs of the children. Other policy considerations that should
accordingly be taken into account are the following: the fact that adult dependent children’s
general reluctance to get involved in litigation against one of their parents and institute their
own separate maintenance claims upon their parents’ divorce may perpetuate and exacerbate

18 M de Jong A better way to deal with the maintenance claims of adult dependent children upon their
parents’ divorce 2013 THRHR 654 at 655.
19 Jacqueline Heaton and Hanneretha Kruger South African Family Law 4th ed (2015) at 187.
20 See JG fn 2 paras 45-47; Butcher fn. 3 para 14.
21 Footnote 18.
22 Ibid at 661.

women’s social and economic subordination to men and real inequality of the sexes; the fact
that the duty to support their minor children should be borne equally by both parents; and
possibly the fact that it could have negative repercussions for adult dependent children if their
maintenance claims were to be adjudicated in isolation or after the date of their parents’
divorce . . . ‘

[20] In AF23 it was correctly observed that,
‘. . . courts should be alive to the vulnerable position of young adult dependants of parents
going through a divorce. They may be majors in law, yet they still need the financial and
emotional support of their parents. The parental conflict wrought by divorce can be profoundly
stressful for young adult children, and it is particularly awkward for the adult child where the
parents are at odds over the quantum of support for that child. Moreover, where one parent is
recalcitrant, the power imbalance between parent and child makes it difficult for the child to
access the necessary support. It is unimaginably difficult for a child to have to sue a parent for
support — the emotional consequences are unthinkable.’
I also agree with the conclusion reached that, 24
‘. . . it is important to protect the dignity and emotional wellbeing of young adult dependants of
divorcing parents by regulating the financial arrangements for their support in order to
eliminate family conflict on this score and create stability and security for the dependent child.’

[21] In Bannatyne25 the Constitutional Court stated that the disparities between
mothers who upon divorce face the double disadvantage of being overburdened in
terms of responsibilities and under-resourced in terms of means and fathers who
remain actively employed and generally become economically enriched,
‘. . . undermine the achievement of gender equality which is a founding value of
the Constitution. The enforcement of maintenance payments therefore not only secures the
rights of children, it also upholds the dignity of women and promotes the foundational values
of achieving equality and non-sexism. Fatalistic acceptance of the insufficiencies of the
maintenance system compounds the denial of rights involved. Effective mechanisms for the
enforcement of maintenance obligations are thus essential for the simultaneous achievement
of the rights of the child and the promotion of gender equality.’ (Reference omitted.)

23 AF fn 2 para 75.
24 Ibid 76.
25 Bannatyne fn 1 para 30.

[22] An interpretative analysis, therefore, leads to the inevitable conclusion that ss
6(1)(a) and 6(3) of the Divorce Act vest parents with the requisite legal standing to
claim maintenance for and on behalf of their dependent adult children upon their
divorce. Given the words used in their ordinary grammatical meaning, properly
contextualised, and the manifest purpose of s 6, an interpretation that preserves its
constitutional validity is reasonably possible. It follows that the father’s special plea
must fail.

[23] In the result the following order is made:
1. The appeal is upheld with costs, including those of two counsel.
2. The order of the court below is set aside and replaced with the following:
‘The defendant’s special plea is dismissed with costs.’

________________________
P A MEYER
ACTING JUDGE OF APPEAL

Appearances

For appellant:
E Crouse SC (assisted by AN Masiza)

Instructed by:
Annali Erasmus Inc., Port Elizabeth

C/o Legal Aid South Africa, Bloemfontein

For respondent:
No appearance

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
21 July 2022
Status:
Immediate

The following Summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal.
Z v Z (556/2021) [2022] ZASCA 113 (21 July 2022)

Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with costs,
including those of two counsel, an appeal against the decision of the Eastern Cape Division
of the High Court, Port Elizabeth (the high court). The high court upheld with costs a special
plea in divorce proceedings that a parent lacks locus standi in judicio to claim maintenance for
and on behalf the parties’adult dependent children from the other parent.
The primary issue before the SCA concerns the interpretation of ss 6(1)(a) and 6(3) of the
Divorce Act 70 of 1970 (the Divorce Act). Section 6(1)(a) provides that ‘[a] decree of divorce
shall not be granted until the court . . . is satisfied that the provisions made or contemplated
with regard to the welfare of any minor or dependent child of the marriage are satisfactory or
are the best that can be effected in the circumstances’. Section 6(3) provides that ‘[a] court
granting a decree of divorce may, in regard to the maintenance of a dependent child of the
marriage or the custody or guardianship of, or access to, a minor child of the marriage, make
any order which it may deem fit, and may in particular, if in its opinion it would be in the
interests of such minor child to do so, grant to either parent the sole guardianship (which shall
include the power to consent to the marriage of the child) or the sole custody of the minor,
and the court may order that, on the predecease of the parent to whom the sole guardianship

of the minor is granted, a person other than the surviving parent shall be the guardian of the
minor, either jointly with or to the exclusion of the surviving parent’.
An interpretative analysis, the SCA held, leads to the inevitable conclusion that ss 6(1)(a)
and 6(3) of the Divorce Act vest parents with the requisite legal standing to claim maintenance
for and on behalf of their dependent adult children upon their divorce. Given the words used
in their ordinary grammatical meaning, properly contextualised, and the manifest purpose of
s 6, an interpretation that preserves its constitutional validity is reasonably possible. It
followed that the father’s special plea must fail.

~~~~ends~~~~