‘Granny was the true parent’: Cautious reflection is required on the court ruling allowing a caregiver grandparent to inherit

Some media reports heralded the “ground-breaking judgment” as a success, after the court recognised the grandmother as the “true parent” and revoked the biological father’s right to receive benefits from the estate of the deceased child. I suspect that various legal arguments will be made about whether the court can revoke the natural father’s right to inherit, but I will leave that issue to the legal scholars. This article is focused on the reality of the judgment for caregivers, especially those in multigenerational households such as in the Wilsnach case.

Upon reading the judgment there are several concerns and considerations that need to be highlighted. First, the reach of this judgment is limited by the fact that the grandmother in this case has obtained parental rights and responsibilities before the death of the child. In fact, the grandmother was successful in applying for the natural fathers’ parental rights and responsibilities to be revoked. This is the starting point for this case and judgment. We need to ask ourselves the following question: what would have happened if the grandmother had not obtained full parental rights and responsibilities in 2018? Would she still have been able to make a claim on the estate? 

The fact that the grandmother at the centre of the case had full parental rights and responsibilities is the crucial fact, without which she would have had no claim. In understanding this case and reading this judgment we should not ignore the fact that the “true parent” in this case, the grandmother, was legally recognised as a parent. In many other instances, grandmothers are recognised as social parents or primary caregivers. In fact, 4.1 million children who do not have co-resident parents were living with other family members and about 2.7 million children live with grandparents in the absence of their biological parents. In these cases, the grandparents are not all legally recognised as being “parents”, rather social parents and primary caregivers.

In the Wilsnach case, the Pretoria High Court ruled that the grandmother who looked after a child should benefit from the child’s estate and this is commendable. The estate, valued at R15-million at the time of the judgment, was the outcome of a payout from the Department of Health for the future care of the child as a result of negligence during his birth. As described in the judgment, the father of the child had not seen the child since he was six months old and had no involvement in his life or upbringing. 

Putting the difficult health circumstances of the child aside, such cases are not unique and occur frequently in South Africa. This is a case where the grandmother is a primary carer in the (partial) absence of the parents. There are valid economic, social and cultural reasons for why biological parents may be absent and I do not intend to delve into the familiar tropes or moral myths around “absent fathers”. But this particular case and subsequent judgment raise important questions about who should be eligible to inherit, especially in multigenerational families where resources (in the form of time, money and care) are shared across generations. 

If about two thirds of all children live in extended families, why are the laws on succession designed around nuclear families? Within this group of multigenerational family living arrangements, at least 21% of children live without either parent. The judgment shines a light on the flaws of the 1987 Intestate Succession Act that do not recognise the right of grandparents or relatives, other than members of the nuclear family of the deceased, to support from the deceased’s estate. 

Our research findings from an extensive review of succession in living customary law, which is governed by similar statutory legislations (the Reform of Customary Law of Succession and Regulation of Related Matters Act, which provides for the application of the Intestate Succession Act with some accommodation for customary law practices,) shows that too narrow a definition is applied to priority beneficiaries. This is to the detriment of key caregivers classified as extended family members, who receive little or no subsequent support despite the significant contributions they’ve made to a child’s upbringing. 

Ageing parents or grandparents are often equally vulnerable as surviving spouses and children. In practice, this narrow concept of family and heirs does not align with the needs of the wider family and multigenerational families, who represent the majority of family units in South Africa.

While the Wilsnach judgment is celebrated in some circles, it should remind us that many laws introduced in the post-apartheid era — intended to help families — derive from common law and are based on narrow definitions of a nuclear family. These laws have been adapted, often to protect the rights of women, but are generally ill-suited to fit multigenerational family patterns and realities. The case should actually highlight the vulnerability of being the social parent without the necessary legal recognition and protection. 

In the context of extensive multigenerational living, this case reminds us that the laws often fail to reflect and support the lived reality of family and care arrangements. There is an urgent need to consider this issue, specifically in the application of the succession rules under any law to the people living in extended families. DM/MC

Elena Moore is an associate professor in the Department of Sociology at the University of Cape Town.