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[2018] ZAWCHC 65
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M.F.I v N.I (A431/2017) [2018] ZAWCHC 65 (11 June 2018)
SAFLII
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case number: A431/2017
In the matter between:
M F
I
Appellant
and
N
I
Respondent
Coram
:
Justice J Cloete
et
Justice G Salie-Hlophe
Heard
:
8 June 2018
Delivered
:
11 June 2018
JUDGMENT
CLOETE
J
:
[1] This is an appeal
against the order of the Wynberg maintenance court dismissing
the
appellant’s application to ‘
suspend and set aside’
a warrant of execution for arrear maintenance of R160 000
payable in respect of his former wife, the respondent, in terms
of
their decree of divorce granted in this court on 9 November 2015
(“the High Court order”).
[2] In essence, the
magistrate found that the maintenance court lacked jurisdiction
to
set aside the High Court order because there was no application for
such relief before it.
[3] In terms of the
High Court order the appellant is liable to pay personal maintenance
to the respondent of R10 000 per month until her death or
remarriage, whichever occurs first.
[4] The appellant did
not defend the divorce action. It is common cause that when
the
matter was called in motion court on 9 November 2015 the
presiding judge enquired of the respondent’s attorney whether
the appellant was aware that the matter was set down that day. On
being advised that he was not aware, the presiding judge requested
the respondent’s attorney to telephone the appellant in order
to ascertain whether he had any objection to the divorce being
granted in terms of the prayers contained in the respondent’s
summons.
[5] The
respondent’s attorney duly contacted the appellant. According
to the respondent, she was standing next to her attorney when this
conversation took place and she heard the attorney’s side
of
the conversation. All that she heard him discuss was that the former
common home in Constantia (an asset of the erstwhile joint
estate and
in which the respondent still resided at the time) would not be sold
immediately, but would be properly marketed and
sold in order that
the parties could obtain the best possible price. The respondent
thereafter heard her attorney say that he would
convey to the
presiding judge that the appellant had no objection to the decree of
divorce being granted in the terms sought, and
she was present in
court when the presiding judge was duly informed thereof.
[6] The appellant’s
version is that during that telephone conversation he
objected to the
respondent becoming entitled to personal maintenance of R10 000
per month. According to him, she received
rental income from tenants
who occupied a portion of the property, and he was continuing to pay
the monthly mortgage bond instalments,
as he had done since their
separation in 2014, together with the municipal account and certain
of the respondent’s personal
expenses. The appellant stated
that he requested that the respondent’s personal maintenance
claim (as well as a maintenance
claim for the parties’ youngest
child who was still a minor and residing with him) be deleted from
the prayers sought. He
alleges that the respondent’s attorney
agreed thereto. This in turn is categorically denied by the
respondent’s attorney,
who supports the respondent’s
version of that telephone conversation in all material respects.
[7] Two days after the
decree of divorce was granted, on 11 November 2015,
the
respondent’s attorney addressed an email to the appellant, the
relevant portion of which reads as follows:
‘
As discussed, the
Court gave an order for division of the joint estate, but this will
not entitle your ex-wife to immediately sell
the property. She now
has to negotiate with you as to what a fair division entails, and if
this is totally unsuccessful she will
then have to go back to the
High Court to ask for a Receiver to divide the joint estate. You must
try to avoid this happening as
it is expensive, and it is better to
negotiate with your ex-wife and reach agreement.’
[8] On 23 November
2015 the appellant wrote to the respondent’s attorney,
in which
he outlined a proposal to divide the net proceeds of the sale of the
property. He estimated that the respondent’s
50% share thereof
would be R1.435 million. However he offered R1.2 million because, on
his version, she had received rental income
of some R420 000
from the tenants at the property as well as R60 000 worth of
cash maintenance and expenses that he had
paid in respect of her
motor vehicle insurance premiums and cell phone. He also stated that
‘
she is also insistent upon a maintenance after the
settlement’.
[9] Accordingly,
not only did the respondent’s attorney make no mention
in his
email dated 11 November 2015 of the so-called agreement relating
to the deletion of the prayer for personal maintenance,
but the
appellant himself by implication acknowledged that the respondent
nonetheless required maintenance to be paid to her once
she received
her share of the proceeds of the sale of the property. If, as the
appellant contends, the respondent had already agreed
to abandon her
claim to personal maintenance, he would not have mentioned that claim
in negotiating how the sale proceeds were
to be divided.
[10] The appellant raised three
additional defences to the warrant of execution in the proceedings
before the magistrate. First, he claimed set-off on the basis that he
had continued to pay the mortgage bond instalments of R15 000
per month until the immovable property was sold during the first half
of 2016, together with the other expenses set out above.
However,
apart from the monthly bond instalments, no details were provided by
the appellant of the amounts so paid by him. His
claim is thus
unquantified. In any event, the respondent did not solely benefit
from the payments that he made, given that the
bulk of them, on his
own version, related to the major asset in the erstwhile joint estate
and he in turn directly benefited therefrom
when the property was
sold.
[11] Second, the appellant alleged
that subsequent to the divorce he expended R315 148
on
renovations and improvements to the property so that it could be
marketed at an optimal selling price. He contended that the
respondent was thus indebted to him for 50% of this amount, i.e.
R157 574. This was denied by the respondent, whose version
was
that those renovations and improvements that had taken place were
paid with funds drawn from the access bond, a liability of
the
erstwhile joint estate, long before the divorce was granted.
[12] Attached to the
appellant’s founding affidavit is the statement of the
transferring
attorneys dated 21 June 2016, reflecting that each
of the parties received 50% of the net proceeds of the sale. If, as
the
appellant maintains, the respondent was indebted to him in any
amount at the time, it is most improbable that he would nonetheless
have consented to her receiving 50% of those net proceeds. It is also
undisputed that the appellant took no steps whatsoever against
the
respondent to recover any of the amounts which he claims are due to
him prior to the warrant of execution being served on him.
[13] In short therefore the
appellant failed to make out a proper case for either set-off or
enrichment. Moreover, these so-called defences are not supported by
the objective facts and the inherent probabilities.
[14] The third and last defence
was that the respondent has income and assets sufficient to
maintain
herself without any assistance from the appellant, whereas the
appellant is himself struggling financially. However, insufficient
details were provided by the appellant concerning the respondent’s
financial position. According to the respondent, she utilised
her
share of the proceeds of the sale to purchase a more modest home for
herself, pay her debts and purchase a motor vehicle. She
is only
employed two days per week and supplements her income from what is
left of her capital, which at the date of deposing to
her answering
affidavit in August 2017 amounted to R400 000. The appellant
failed to disclose his current income and expenses
or details of his
assets and liabilities, and the court is left in the dark as to what
exactly his financial position is. The respondent
also disputes that
the appellant is struggling financially.
[15] As previously stated the
relief sought by the appellant was to ‘
suspend and set
aside’
the warrant, which had been issued in terms of s 27
of the Maintenance Act 99 of 1998 (“the Act”). The
maintenance
court was empowered to issue the warrant of execution,
given that a “maintenance order” for purposes of the Act
includes
a High Court order: see
Turton v Turton
2012 (2) SA
623
(WCC) at para [13] and
M v M and Another
2014 (2) SA 403
(WCC) at paras [6] to [9].
[16] These two decisions, from
single judges in this division, differ however on whether or
not a
High Court warrant of execution may still be obtained to enforce a
maintenance order granted by the High Court, given the
provisions of
Chapter 5 of the Act.
Turton
concluded that it could not
be obtained, whereas
M v M and Another
concluded that it
could.
[17] Chapter 5 of the Act deals
with the enforcement of maintenance orders by civil execution.
Sections 26 to 30 fall under Chapter 5. Section 27(1) authorises the
maintenance court to issue a warrant of execution where it
is alleged
under oath that there has been a failure to comply with a maintenance
order.
[18] Where an execution creditor
armed with a High Court order follows the procedure contained
in
Chapter 5, this does not change the character of the order itself. It
remains a High Court order, and it is only the mechanism
for
enforcement thereof that falls under the auspices of the maintenance
court. That this must be so is evident from the plain
wording of the
definition of “maintenance order” in the Act together
with the absence of any provision in the Act itself
to the contrary.
The situation is different where a maintenance court, following upon
an enquiry in terms of Chapter 3, discharges
or varies an existing
High Court maintenance order under s 16 or s 17 of the Act.
In that event, the High Court order
ceases to exist: see
Purnell v
Purnell
[1993] ZASCA 22
;
1993 (2) SA 662
(A).
[19] Where an execution debtor
wishes to challenge a warrant of execution in the maintenance
court
he or she has two options to pursue on application. The first is
contained in s 27(3) and the second in s 27(4)
of the Act.
[20] Section 27(3) empowers
a maintenance court to set aside a warrant of execution if
it is
satisfied that the execution debtor ‘
has complied with the
maintenance or other order in question’.
In
contradistinction s 27(4) empowers a maintenance court, in its
discretion – hence the use of the word ‘
may’
– to enquire in summary manner into the circumstances mentioned
in s 27(5) and, following upon such enquiry, to suspend
the
warrant
and
make either an emoluments attachment or garnishee
order. Section 27(3) does not provide for a s 27(5) enquiry to
be held.
Only s 27(4) does so.
[21] Section 27(5) provides
that:
‘
At the enquiry the
maintenance court shall take into consideration-
(a)
The existing and
prospective means of the person against whom the warrant of execution
has been issued;
(b)
The financial
needs and obligations of, or in respect of, the person maintained by
the person against whom the warrant of execution
has been issued;
(c)
The conduct of the
person against whom the warrant of execution has been issued in so
far as it may be relevant concerning his or
her failure to satisfy
the maintenance or other order in question; and
(d)
The other
circumstances which should, in the opinion of the court, be taken
into consideration.’
[22] Importantly therefore the
powers of the maintenance court – a creature of statute
–
in respect of an issued warrant of execution are statutorily
curtailed. It cannot consider and determine, for example,
whether the
maintenance order itself should be varied or discharged, nor can it
mero motu
refer this issue for an enquiry under Chapter 3 of
the Act. It can only set aside a warrant if satisfied that the order
giving rise
to it has been complied with (which must necessarily mean
full compliance). It can only suspend a warrant if it simultaneously
makes an emoluments attachment or garnishee order. It cannot suspend
a warrant on any other terms or conditions and it has no power,
in
terms of s 27, to deal with the warrant in any other manner.
[23] I am accordingly in
respectful disagreement with the findings in
Turton
at
paras [9] and [10] that:
‘
9.
…the nature of the enquiry provided in terms of
s 27(3)
and (4) of the
Maintenance Act is
sui generis… It essentially
creates an opportunity to have the question of not only the means of
the debtor to pay investigated,
but also to have his or her liability
to do so revisited
.
10. It is
unlikely to have been the legislature’s intention that there
should be two different systems of
civil enforcement of high court
maintenance orders in existence parallel to each other; the one with
a 10-day moratorium on enforcement,
the other having no such
moratorium; the one providing for a statutory procedure to convert
the enforcement process into an enquiry;
the other attended by no
statutory restraints. An ability by a maintenance creditor to choose
between such alternative enforcement
processes, if the choice were
available, would introduce an arbitrariness in respect of the
consequences for the debtor that would
be difficult to reconcile with
rationality and equality before the law. Moreover, having regard to
the expressed intention of the
Act, being the creation of a fair and
equitable maintenance system under the framework of the statute, the
achievement of that
objective would not be assisted if s 26(1)
were read as merely permissive or enabling in nature, and as allowing
for disparate
but parallel means of enforcement of high court
maintenance orders – the one under the Act, and the other
outside it.’
[24] I agree with the submission
made on behalf of the respondent that, under Chapter 5 and
in
particular under s 27, the maintenance court does not have
jurisdiction to revisit the original maintenance order for the
purpose of varying or substituting it, but can only ameliorate the
circumstances in which the execution debtor finds him/herself
by
suspending the warrant of execution and then issuing either an
emoluments attachment or garnishee order, whichever is deemed
the
most appropriate.
[25] The only instance in which a
maintenance court may revisit a maintenance order, whether
it be a
High Court order or a previous maintenance court order, is in terms
of s 6 of Chapter 3 of the Act which provides
as follows:
Complaints relating to
maintenance.
---
(1) Whenever a complaint to the effect—
(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.’
[26] The manner in which the
maintenance officer must investigate the complaint is contained
in
s 7. This includes obtaining affidavits and gathering
information about the financial position of any person ‘
affected
by such liability’.
It is apparent from these sections of
the Act that the enquiry contemplated therein (referred to in s 9
to s 14 of Chapter
3) can only take place once: (a) a
maintenance officer has investigated the complaint in the prescribed
manner as provided
in the Act; and (b) after investigating the
complaint the maintenance officer has instituted such an enquiry. It
is well known
that the maintenance courts are heavily overburdened,
and while this process takes its course, the consequences to the
affected
parties may be profound.
[27] As was also stated in
M v
M and Another
at paragraph [21], there is a common law
presumption that a statutory provision does not alter or abrogate the
existing law more
than necessary, save in the case of clear
inconsistency.
Section 42(3)
of the
Superior Courts Act 10 of 2013
provides that a High Court has the power to execute its orders by the
attachment of the execution debtor’s property. A similar
provision existed in the now repealed Supreme Court Act 59 of 1959.
Rule 45 of the uniform rules of the High Court gives procedural
effect to s 42(3). This rule has not been amended to exclude
maintenance orders from its operation.
[28] In terms of s 173 of the
Constitution, the Constitutional Court, Supreme Court of
Appeal and
the High Courts have the inherent power to protect and regulate their
own process, and to develop the common law, taking
into account the
interests of justice. The High Court is thus at large, should it be
inclined to suspend a warrant of execution,
to impose whatever
conditions it deems fit. It is not limited to the statutorily
curtailed options contained in Chapter 5 of the
Act.
[29] I therefore respectfully
disagree with the conclusion in
Turton
at para [15] that:
‘
I have been impelled
to the conclusion that Chap 5 of the
Maintenance Act is
intended to
comprehensively regulate the civil enforcement of maintenance orders
(as defined) made by any court in the Republic.’
[30] I am instead in
agreement with the findings in
M v M and Another
at paras [18]
to [25] that:
30.1 The fact that a party is permitted to enforce
a High Court maintenance order in the maintenance court does
not lead
to the necessary implication that the High Court is prevented from
enforcing its own maintenance order;
30.2 As a general rule the court that grants an
order retains jurisdiction to ensure that its order is complied
with,
although that jurisdiction is not exclusive;
30.3 Distinct remedies available to a party who
seeks to enforce an order entitle that party to choose the remedy
which is considered most effective (referring to
Martin v Martin
1997 (1) SA 491
(N) at 496 and
Duncan v Duncan
1984 (2) SA 310
(C));
30.4 The distinctions that exist in the enforcement
mechanisms available in the maintenance court and the High
Court,
rather than introducing arbitrariness, irrationality and inequality,
are factors to be taken into account by a party in
the exercise of
their election; and
30.5 Were no such choice available, this would have
the necessary consequence that all High Court maintenance
orders
would in all circumstances be subject to the moratorium and enquiry
provisions contained in the Act upon steps being taken
to enforce
them; not only would this necessarily diminish the value of the order
obtained, but it would have the potential to cause
prejudice to the
persons that such an order for maintenance seeks by its nature to
protect where enforcement is pursued; and such
a consequence could
not have been intended by the legislature.
[31] Reverting to the present
appeal. The relief sought by the appellant could not have been
granted in the terms sought for the simple reason that the
maintenance court has no power to
suspend and set aside
a
warrant of execution. The appellant’s counsel submitted that
although the notice of motion refers to an application in
terms of
s 27(4) of the Act, when one looks at the substance of the
relief sought it rather falls within the ambit of s 27(3)
thereof. He also submitted that it was not necessary for this court
to consider the conflicting decisions in this division in
Turton
and
M v M and Another
because the appellant did not seek to
have the maintenance order rescinded or set aside. However neither
Turton
nor
M v M and Another
dealt with an application
to set aside a maintenance order. Both concerned the suspension or
setting aside of a warrant of execution
issued pursuant to a High
Court order and it is in the interests of justice that there is
clarity on this issue.
[32] Moreover, if it had indeed
been the appellant’s intention only to rely on s 27(3),
the allegations in the founding affidavit would have been directed
solely at whether or not he had complied with the High Court
maintenance order, directly or otherwise. He went further than that
in making allegations – sparse as they might have been
–
about his inability to pay and the respondent’s financial
position which he maintained was more favourable than his.
He must
thus have envisaged some sort of enquiry by the magistrate for the
purpose of revisiting the High Court maintenance order.
[33] Indeed, in her judgment the
magistrate stated that the appellant’s legal representative
informed her that ‘
the respondent is not entitled to spousal
maintenance, quoting
section 27(4)
of the
Maintenance Act and
the
case of
Turton and Turton
’; and that the
appellant’s attorney ‘
has argued that the word
“enquire” in subsection 27(4) should be read together
with the enquiry referred to in
Section 16
’
.
[34] In the result the appeal must
fail. In dismissing the appellant’s application the
maintenance
court made no order as to costs. The position is different on appeal.
To my mind there is no reason why costs should
not follow the result.
[35]
Accordingly the following
order is made:
“
The appeal is dismissed with costs.”
J I CLOETE
SALIE-HLOPHE
J
I agree.
G SALIE-HLOPHE
For the Appellant:
Adv Andre
Walters
–
4244104
Instructed by
: M Z Solomon Attorneys – 7066029
For the Respondent:
Mr Mark
Elmes
Instructed by:
Haydn Elmes & Elmes Attorneys –
4611227