Does the treatment of arrear maintenance claims of children under the Insolvency Act 24 of 1936 constitute a violation of their constitutionally protected rights to social welfare and human dignity? An exposition

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 340-353
• Author: Legodi Thutse
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a21

340 2023 De Jure Law Journal

Does the treatment of arrear maintenance

claims of children under the Insolvency Act

24 of 1936 constitute a violation of their

constitutionally protected rights to social

welfare and human dignity? An exposition

Legodi Thutse

LLB LLM (UP)

Lecturer, School of Law, University of KwaZulu-Natal

SUMMARY

The time and space for the reformation of the Insolvency Act 24 of 1936

has presented itself through the introduction of a constitutional order in

1996. However, the legislature has thus far proven to fail in its

responsibility to align consumer insolvency legislation with the values and

rights that are contained in the Constitution of the Republic of South

Africa, 1996. The Constitution appreciates the vulnerability of children and

thus affords special protection to the rights of children, including their

rights to social welfare. It further guarantees children that their best

interest reign supreme in every matter concerning them. The Constitution

also guarantees children the right to human dignity, which right is also a

value underlying South African constitutional jurisprudence. These

constitutionally guaranteed rights of children to social welfare and human

dignity do not enjoy protection under South African consumer insolvency

law, particularly in the treatment of arrear maintenance claims of children

against the estate of an insolvent debtor. Children’s maintenance arrear

claims do not enjoy any preference as they are treated as concurrent

claims. This also burdens them with the liability to contribute towards the

costs of sequestra tion if t hey have successfully proven claims and where

there are insufficient funds in the free residue account. Children’s

maintenance arrear debts are not exempt from the discharge of pre-

sequestration debt under South African consumer insolvency

jurisprudence. The overall approach to the treatment of children’s arrear

maintenance claims compromises the rights of children to social welfare

and human dignity as guaranteed in the Constitution.

1Introduction

The constitutional dispensation in South Africa has introduced a

completely new societal paradigm that is founded on the values of

human dignity, the achievement of equality, and the advancement of

human rights and freedoms.1 The 1996 Constitution enjoys supremacy

1 This article is partially drawn from my LLM dissertation.

1 S 1(a) of the Constitution of the Republic of South Africa, 1996 (hereinafter

the Constitution).

How to cite: Thutse ‘Does the treatment of arrear maintenance claims of children under the Insolvency Act 24

of 1936 constitute a violation of their constitutionally protected rights to social welfare and human dignity? An

exposition’ 2023 De Jure Law Journal 340-353

http://dx.doi.org/10.17159/2225-7160/2023/v56a21

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