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[2018] ZAWCHC 188
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M v Bruwer and Another (12624/18) [2018] ZAWCHC 188; [2019] 4 All SA 165 (WCC) (21 December 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 12624/18
Reportable
In
the matter between:
MRS M
Applicant
and
ESNA BRUWER
First Respondent
MR M
Second Respondent
JUDGMENT
DELIVERED ON 21 DECEMBER 2018
Vos,
AJ
Introduction
[1]
This application has the features of an appeal
against an order of the maintenance court, whereby an existing
maintenance order
in respect of children, was varied.
[2]
But in fact, this is an application to review and
set aside a ‘directive’ (‘the directive’)
issued by a
social worker, while acting as a facilitator, whereby she
purported to vary a maintenance order of the High Court. The
maintenance
order is incorporated in a deed of settlement, which was
made an order of this court upon the granting of a final order of
divorce
by Weinkove AJ.
[3]
In
The Law of Divorce and
Dissolution of Life Partnerships in South Africa
[1]
,
the role of a facilitator, or parenting coordinator, is described as
follows:
‘
Parenting coordination
(or facilitation as it is currently known in the Western Cape and
case management as it is currently known
in Gauteng) is a
child-focused ADR process in which a mental health professional or
legal professional with mediation training
and experience assists
high-conflict parties in implementing parenting plans and resolving
pre- and post-divorce parenting disputes
in an immediate
non-adversarial, court-sanctioned, private forum
.’
The parties and the children involved
[4]
The applicant is Mrs M, a conveyancing secretary
who works for a firm of attorneys in Paarl, Western Cape Province.
She resides
at B… , which is situated on the outskirts of the
town. I shall refer to her as ‘Mrs M’.
[5]
The first respondent is Mrs Esna Bruwer, a social
worker, who practices under the style of Morgenzon Practice, at
Morgenzon Estate,
Northern Paarl, Western Cape Province. I shall
refer to the first respondent as ‘Mrs Bruwer’.
[6]
The second respondent is Mr M, a farmer and
managing director of B… Farms (Pty) Ltd, a major producer of
various agricultural
products of Ceres, Western Cape Province. I
shall refer to the second respondent as ‘Mr M’.
[7]
Mr and Mrs M have three children:
[7.1]
N, who is 19 years old, and she is a first year
student enrolled for a Bachelor of Commerce degree at the North West
University.
[7.2]
L, who is nearly 16 years old, and she is a
learner in grade 10 at the P… School. L attends the boarding
school during week
days, but from time to time, and especially during
examination times, L stays with Mrs M at the B… .
[7.3]
J, who is 12 years old, and in grade 6 at
the P… School. He resides with Mrs M at the B… .
[8]
Although she has not been cited as a party, Mrs
Christina le Roux also features in this application (‘Mrs le
Roux’).
In an affidavit deposed to on 24
October 2018, Mrs le Roux describes herself as an attorney whose name
appears on the roll of non-practising attorneys, and since
2018, she
has become an accredited mediator with FAMAC.
[2]
It will become apparent later on in this judgment that Mrs Bruwer
relied on the expertise and experience of Mrs le Roux, in order
to
issue the directive referred to above, whereby the maintenance was
varied.
Relief sought
[9]
Mrs M seeks an order reviewing and setting aside
the directive dated 29 March 2018, on the following grounds:
[9.1]
As social worker, Mrs Bruwer exceeded her powers
as facilitator, by assuming the role of a court to determine the
maintenance of
the children, while acting impermissibly as a judicial
officer;
[9.2]
The process that Mrs Bruwer followed in order to
arrive at her directive, was in any event unfair;
[9.3]
Mrs Bruwer acted in a biased manner towards Mrs
M.
[10]
Mrs M also seeks an order that Mrs Bruwer should
be removed as the facilitator, having been appointed in terms of a
parenting plan
(‘the parenting plan’), and in the event
of Mr and Mrs M failing to reach agreement on the appointment of
another facilitator,
an order should be issued that FAMAC be
authorised to appoint such new facilitator.
[11]
Mr M opposes the relief that is sought, and he
contends that the directive issued by Mrs Bruwer is binding, and the
process that
was followed, was fair.
[12]
After the application was served on Mrs Bruwer on
19 July 2018, she delivered a notice of her intention to abide the
outcome of
these proceedings, and not to oppose it. However, on 24
October 2018 Mrs Bruwer delivered an affidavit in which she inter
alia
stated that her directive is binding, and she believes that it
is not in the best interests of the children to resign as
facilitator.
Background
[13]
During 2013, and having been married for 15
years, Mr M instituted divorce proceedings against Mrs M. On 16 April
2014 the court
granted a final order of divorce, incorporating a
consent paper and the parenting plan.
[14]
The consent paper is a comprehensive agreement,
running into 26 pages. It records that Mr and Mrs M shall
remain co-holders
of parental responsibilities and rights of care and
contact with the children, as referred to in section 18(2)
(a)
and
(b)
of the Children’s Act 38 of 2005 (‘the Children’s
Act’), subject to the provisions of the attached parenting
plan
.
[15]
The consent paper further records that Mr M will
pay maintenance for the children as follows:
‘
3.
MAINTENANCE IN RESPECT
OF THE CHILDREN
Plaintiff shall maintain the
children until they become self-supporting or complete their tertiary
education (as defined in paragraph
3.8 below), whichever event shall
last occur, as follows:
3.1 Plaintiff shall pay to
Defendant the sum of R 6 000,00 per month per child with effect
from 1 March 2014 until
31 December 2014 and thereafter
R
5 000.00
per month per child with effect from 1 January 2015 on
or before the first day of every month without deduction or set-off
by way
of stop order or electronic transfer into such account as
Defendant may nominate in writing from time to time. Should either
child,
whilst still undergoing tertiary education (as defined in
paragraph 3.8 below), no longer permanently reside with Defendant,
the
cash maintenance in respect of such child payable to Defendant in
terms hereof, shall reduce to one third of the cash amount provided
for herein. (If a child stays at residence he / she will be deemed to
no longer permanently reside with Defendant).
3.2 Plaintiff shall retain
the children, at his cost, on his current medical aid scheme or on a
scheme with similar benefits
and he shall pay the monthly
subscriptions (and escalations) in respect thereof timeously.
3.3 Plaintiff shall pay
the costs of all reasonable expenditure in respect of the medical,
dental, surgical, hospital, orthodontic
and ophthalmological
treatment needed by the children and not covered by Plaintiff’s
medical aid scheme….
3.4 Plaintiff shall pay
all the reasonable educational costs in respect of the children …
’
[16]
The consent paper further provides that Mr M
shall contribute R250 per month in respect of the children’s
cellular telephone
contracts, R10 000 per year per child for the
children’s holidays, costs relating to studies at a tertiary
institution, including
residence fees and travelling costs pertaining
thereto.
[17]
Clause 5 of the consent paper deals with personal
maintenance payable to Mrs M, while clause 6 records that Mr M is
obliged to pay
R2 million to Mrs M. The consent paper further
deals with a property situated at Gansbaai, in respect of which Mrs M
was obliged
to transfer ownership thereof to Mr M. In paragraph 7 of
the consent paper, Mr M and the trustees of the FJ Family Trust
undertook
to make 526 B available to Mrs M and the children, thereby
providing them with accommodation until 30 June 2027. Upon the
termination
of Mrs M’s right of habitatio of the B property, it
will be sold and then she will receive 50 % of the nett proceeds of
the
sale of the property. It is clear that the consent paper
constitutes a ‘package deal’ settlement.
[3]
[18]
The parenting plan makes provision for ‘mediation
and facilitation’ and the appointment of a facilitator, who has
a
wide range of powers.
[19]
A facilitator, or parenting coordinator’s
role is similar to that of a mediator, in that the goal is to
facilitate the parties’
mutual agreement regarding the
resolution of a given dispute. The methods by which those disputes
are resolved, are also somewhat
similar. Parties typically
communicate ex-parte with a mediator in mediation and with a
parenting coordinator, in an effort to
reach a mutual agreement.
[4]
[20]
Clause 6 (b) of the parenting plan
reads as follows:
‘
6 (b)
Powers
of the facilitator
6.4 The facilitator is
authorised to:
6.4.1
facilitate joint
decisions in respect of the children, having regard to the best
interests of the children;
6.4.2
regulate, facilitate and
review the contact / residency arrangements (excluding matters
relating to guardianship and/or relocation
from Ceres or Paarl) in
respect of the children, having regard to the children’s best
interests, provided that residency
arrangements will not be changed
by the facilitator unless by agreement between the parties or as
recommended by a clinical psychologist;
6.4.3
make recommendations in
respect of any issue concerning the welfare and/or affecting the best
interests of the children;
6.4.4
regulate, facilitate and
review issues relating to the children’s maintenance;
6.4.5
resolve conflicts
relating to the clarification, implementation and adaptation of the
agreement or any subsequent Parental Responsibilities
and Rights
Agreement, having regard to the best interests of the children;
6.4.6
issue directives binding
on the parties on any issue concerning the children’s welfare
and/or affecting their best interests
but shall not be authorised to
make a binding directive regarding a change in primary residence or
relocation from South Africa,
Ceres or Paarl (subject to a Court of
competent jurisdiction holding that such directive is not in the
children’s best interest);
6.4.7
resolve conflicts
relating to the clarification, implementation and adaptation of the
Parenting Plan;
6.4.8
engage the services of an
expert professional to assist him/her to issue directives that have a
bearing on the children;
6.4.9
co-opt the services of a
facilitator when reasonably necessary.’
[21]
On 9 December 2016 Mrs M, Mr M and Mrs Bruwer
concluded a ‘Facilitation Agreement’. In terms thereof,
Mrs Bruwer was
appointed as facilitator to make recommendations in
respect of any issue concerning the welfare and matters affecting the
best
interests of the children. In terms of paragraph 2.8 thereof it
was agreed that, if Mrs Bruwer is unable to resolve any dispute
by
way of mediation, she may resolve the issue ‘ by issuing a
directive which shall be binding on the parties unless a court
of
competent jurisdiction overrides such directive’. Paragraph 4.3
of the Facilitation Agreement records that:
‘
The facilitator shall,
when required to issue directives, do so based on his / her
professional opinion and shall not act in a quasi-judicial
capacity
nor shall he/she act as an arbitrator.
’
[22]
During April 2016, Mr M applied to the Paarl
Maintenance Court for a reduction of the maintenance to an amount of
R2000 per child
per month in respect of the cash amount payable in
respect of each child.
[23]
Mrs M opposed the application for a variation of
the High Court maintenance order, and shortly before the court
hearing, Mr M withdrew
his application in the Paarl Maintenance Court
as he was advised that
‘
...
the more correct procedure would be to refer the
maintenance dispute to a facilitator in terms of [their] agreed
parenting
plan’.
Events leading to the issuing of the directive
[24]
During 2017 Mrs Bruwer had various sessions with
Mr and Mrs M, but it appears that a number of issues remained
unresolved. Early
in 2018, Mr M declared a dispute with Mrs M
about the children’s maintenance and he required Mrs Bruwer to
adjudicate
it.
[25]
It is common cause in this application that Mrs
Bruwer ‘… then duly assumed the role of judicial
officer, declaring
that she will review the maintenance payable to
[Mrs M] for the children’.
[5]
[26]
On 6 February 2018 Mrs Bruwer addressed an e-mail
to Mr and Mrs M, inter alia stating the following:
‘
My
proposal is that the current maintenance must be reviewed and also
the contribution for which each parent must take responsibility.
One
child is out of the house and another at boarding school, which has a
significant impact on maintenance. In terms of clause
6.4.4, I must
become involved in the maintenance dispute
’
.
[6]
[27]
On 20 February 2018, Mrs M addressed an e-mail to
Mrs Bruwer in which she specifically recorded her dissatisfaction
with the process,
by stating that the findings or recommendations of
Mrs Bruwer are not enforceable.
[7]
Despite that warning, Mrs Bruwer nevertheless proceeded.
[28]
On 2 March 2018, a meeting was held where Mr and
Mrs M, Mrs Bruwer and Mrs le Roux were present. At that meeting, Mrs
Bruwer apparently
considered the maintenance of the children and
believed that she had the power to act in terms of paragraph 6.4.4 of
the parenting
plan which authorizes her to
‘
regulate,
facilitate and review issues relating to the children’s
maintenance’. She instructed Mr and Mrs M to produce
particulars of their income and expenditure by 20 March 2018.
[29]
On 8 March 2018, Mrs M addressed an e-mail to Mrs
Bruwer in which she recorded her dissatisfaction with the manner in
which Mrs
Bruwer was managing the sessions, and she complained that
she acted in a biased manner.
[8]
Despite this further undisguised admonishment, Mrs Bruwer asserted
her apparent judicial authority by continuing in an unusual
manner
with the determination of the new maintenance that had to be paid.
[30]
Mrs M had to collate vouchers spanning several
months, and due to her full-time employment and the managing of the
two minor children,
she could not meet the deadline of 20 March 2018,
as set by Mrs Bruwer.
[31]
On 27 March 2018 Mrs M had not yet delivered
documents relating to her income and expenses to Mrs Bruwer. Mrs
Bruwer then sent an
e-mail to Mrs M, warning her that if the
documents were not delivered to her office by close of business on 27
March 2018, she
intended issuing a directive as follows:
[31.1]
In respect of N’s maintenance, 30% thereof
would be allocated directly to N;
[31.2]
L’s boarding house fees would be taken into
consideration with regard to the payment of her maintenance; and
[31.3]
The maintenance of J would remain unchanged.
[32]
At the time when Mrs Bruwer warned Mrs M on 27
March 2018 that she intended issuing the abovementioned directive,
she had not yet
been placed in possession of any documents evidencing
the income and expenses of Mrs M.
[33]
Later on 27 March 2018, Mrs M then delivered
particulars of her income and expenditure with supporting vouchers,
to Mrs Bruwer.
[34]
It is common cause between Mr and Mrs M that Mrs
Bruwer did not afford Mrs M the opportunity to have insight into the
‘financial
situation’ of Mr M, or to make representations
not to vary the maintenance, prior to issuing her directive.
[9]
[35]
It means that, prior to the directive, Mrs M did
not even see the documents of Mr M forming the basis of his income
and expenses
to support his claim for a reduction of the children’s
maintenance.
[36]
On 29 March 2018 Mrs Bruwer issued the following
directive
[10]
:
‘
DIRECTIVE
This is a directive issued as a
result of Fanie and Louise M approaching the facilitator with a
dispute. Fanie referred a dispute
in respect of maintenance to the
facilitator in terms of the Court Order granted on 16 April 2014.
In terms of the Court
Order, Fanie’s maintenance obligations
are set out in paragraph 3. Any dispute in respect of maintenance
would be dealt with
through the facilitation process as provided for
in paragraph 6 of the Parenting Plan. In terms of paragraph 6, the
facilitator
is authorized (paragraph 6.4.4) to ‘regulate,
facilitate and review issues relating to the children’s
maintenance’.
In terms of paragraph 6.15:
‘
The parties shall be
bound by the decision of the facilitator until a Court directs
otherwise.’
I have read the documentation
provided by both parties, have met with both Fanie and Louise
(03.02.2018) with a view to trying to
mediate a settlement. However,
it is clear that a mediated solution is unable to be reached and as a
result it is necessary for
me to issue a directive in terms of the
powers granted to me by the Court Order. I have read the
correspondence and documentation
provided, have considered each
parties position and consulted when necessary with experts in order
to reach my decision.
Fanie requested a reduction in
maintenance due to a change in circumstances. Fanie stated that the
change in circumstances related
to the fact that their eldest
daughter, N, is currently attending University in Potchefstroom, away
from the residence with her
mother. As a result hereof, Fanie does
not believe that he is liable to pay the reduced one third cash
maintenance as provided
for in the Court Order in paragraph 3.3.
However, clause 3.1 is clear. Clause 3.1 states:
‘
Should either child,
whilst still undergoing tertiary education (as defined in paragraph
3.8 below), no longer permanently reside
with Defendant, the cash
maintenance in respect of such child payable to Defendant in terms
hereof,
shall reduce
to one third of the cash amount provided for herein
.
(my emphasis).’
First ruling
It is therefore clear that at
the time of signing the agreement, it was foreseen that a child would
not, once undergoing tertiary
education, permanently reside with
Louise. In this event, Fanie had accepted his obligation to pay one
third of the cash maintenance.
I believe no good reason has been put
forward to vary this particularly bearing in mind that a specified
amount was agreed to and
made an Order of Court i.e. ‘shall
reduce to one third of the cash amount’. I therefore find that
Fanie is not entitled
to a further reduction in respect of
maintenance payable for N.
Second ruling
However, the objective of
maintenance paid to a party are (sic) that the children or a specific
child benefit form the amount paid.
In this case more so, because the
settlement agreement provided that Fanie takes full responsibility of
the children’s needs,
including housing and all other aspects
that they might need, which he has proved with relevant documentation
during this process.
I therefore direct that Louise ensures and
provides monthly proof that the one third payment towards N are (sic)
for the sole benefit
of N, by either paying the said amount directly
to N during the months that she is not in her care, or spend the
money on real
needs of N which can be supported by documentation.
Louise may use her own prerogative to allocate or keep the one third
maintenance
payment for the times that N is with her during holidays.
Third ruling
The second issue referred by
Fanie was a reduction in maintenance payable to L. At the time of the
parties signing the agreement,
L was primarily residing with Louise
and attending school at Paarl Gymnasium as a day learner.
Circumstances have changed and L
continues to attend Paarl Gymnasium
but as a weekly border. L therefore has contact to Louise every
second weekend and to Fanie
every other alternate weekend. It is
therefore clear that the expenses incurred in respect of L for Louise
have reduced. It is
also clear that Fanie is now required, in terms
of paragraph 3.4, to cover the boarding/residence fees in addition to
the maintenance.
However, it is fair and equitable that the cost of
boarding/residence fees be taken into account as this is a changed
circumstance
and did not exist at the time of the signing of the
agreement. In the circumstances, I direct that the amount of R3 200
be
deducted form the maintenance payable by Fanie, as this is the
amount which Fanie pays in respect of boarding/residence fees. I
direct that Fanie shall be entitled to deduct the amount of R3 200
from Louise’s monthly maintenance with effect from
1 April
2018.
Fourth ruling
Fanie shall continue to pay the
maintenance as set out in paragraph 3 in respect of J until such time
as J’s circumstances
change. Should J become a weekly boarder
at school, Fanie’s maintenance obligations to Louise shall be
reviewed along the
lines as set out above.
FACILITATORS NOTE
The intention of this directive
is not to place a maintenance obligation on Louise, but rather to
take the change of circumstances
into account since the parties
divorce in 2014. Irrespective of the fact that Louise has since also
became employed, which is a
further change of circumstance, no
additional burden is placed on her to pay towards the children, but
rather a review of costs
in respect of the current needs of the
children and circumstances.’
[37]
On 3 April 2018, Mrs M wrote to Mrs Bruwer, and
informed her that she disputed the directive and would refer the
matter to court.
On 6 April 2018, the attorneys of Mrs M wrote to Mrs
Bruwer, informing her that her directive was subject to being set
aside, and
requested her to tender her resignation as facilitator.
Mrs Bruwer did not accede to that request.
[38]
On 18 April 2018, Mrs M addressed another e-mail
to Mrs Bruwer in which she, inter alia warned Mrs Bruwer of the
consequences should
she not resign, and a court had to find that her
conduct was invalid.
[39]
On 25 May 2018, the attorneys of Mrs M addressed
another letter to Mrs Bruwer in which they contended that Mrs Bruwer
did not follow
a proper process, and that she acted outside of her
powers. She was also asked to recall the directive of 29 March 2018
and to
resign as facilitator.
[40]
On 5 June 2018, Mrs M, Mrs le Roux, Mrs Bruwer
and Ms Maas attended a meeting. Ms Maas represented Mrs M. At that
meeting, Mrs Bruwer
was again requested to withdraw her directive and
to resign as facilitator. Mrs Bruwer did not accede to the request.
[41]
Instead of resigning, and on 26 June 2018, Mrs
Bruwer informed Mr and Mrs M that she had decided to appoint Mr Craig
Snyder as ‘co-parent
coordinator …’ to assist her
with future disputes that might arise.
[42]
On 27 June 2018, Mrs M sent an e-mail to Mrs
Bruwer in which she recorded her objection to the appointment of Mr
Craig Snyder.
Impermissible delegation of
judicial authority?
[43]
Mrs Bruwer and Mr M contend that the directive
was lawfully issued and is binding, and therefore they argue that the
variation of
the High Court maintenance order is valid. In support of
their contentions, they rely on clause 6.4.4 of the parenting plan in
terms of which the facilitator was authorised to ‘regulate,
facilitate and review issues relating to the children’s
maintenance
’
. I turn to consider the
meaning of those words.
[44]
In
S v Twala (South
African Human Rights Commission Intervening)
[11]
it was held that a review, requires a
‘…
reassessment of the case in a broad sense
…’
.
Within the context of a court reviewing a decision or proceedings, it
is trite that the concept of ‘review’, includes
the power
of a court to set a particular decision or proceedings aside.
[12]
In certain instances, a court may impose its own decision as
substitute for the decision of a particular functionary.
[13]
[45]
The Shorter Oxford English Dictionary provides
the following applicable definitions:
‘
regulate’ is defined as:
‘
Control, govern, or
direct by rule or regulations; subject to guidance or restrictions;
adapt to circumstances or surroundings.
Bring or reduce (a person or
group) to order. Alter or control with reference to some standard or
purpose; adjust (a clock or other
machine) so that the working may be
accurate.’
‘
facilitate’ is defined as:
‘
Make easy or easier;
promote, help forward (an action, result etc.) Lessen the labour of,
assist (a person)’.
‘
review’ is defined as:
‘
Hold a review of
(military or naval forces). View, inspect, or examine a second time
or again. Survey; take a survey; look back
on; survey in retrospect.
Submit (a sentence, decision etc.) to review. Look over or through (a
book etc) in order to correct or
improve; revise. Also re-examine;
reconsider.’
[14]
[46]
In giving meaning to the words, regard should
also be had to the context in which they appear in paragraph 6.4 of
the parenting
plan. In that paragraph of the parenting plan, it is
stipulated that the facilitator may not make any binding directive
involving
guardianship, relocation and the place of primary residence
of the children. In respect of the maintenance, there is no similar
restriction of the facilitator’s powers. Therefore, it would
appear that in respect of maintenance, a directive is binding.
[47]
Within the context of the use of the words, and
the applicable meaning thereof as explained above, I am of the view
that the words
‘regulate, facilitate and review issues relating
to the children’s maintenance’, are wide enough to afford
Mrs
Bruwer the power to vary the original maintenance order as it is
contained in the consent paper.
[48]
However, that is not the end of the enquiry. I
have to determine whether the judicial authority that was conferred
upon Mrs Bruwer,
was validly done, because Mrs M submits that
delegation of judicial authority is impermissible. I turn to consider
the relevant
legislation, in order to establish whether such
legislation could be the source of Mrs Bruwer’s authority.
[49]
Currently, there is no legislation in South
Africa that expressly authorises a court to appoint a facilitator or
parenting coordinator
to determine disputes between parents with
regard to maintenance.
[50]
The only reference that I could find, dealing
with statutory authority granted to a facilitator, is contained in
regulation 4
of the
Labour Relations Regulations, promulgated
pursuant to
section 208
of the
Labour Relations Act 66 of 1995
. It is
prescribed that a facilitator has the following powers and duties:
‘
4
Powers and duties of a
facilitator
(1) Unless
the parties agreed otherwise, the facilitator may-
(a)
chair the meeting between
the parties;
(b) decide any issue
of procedure that arises in the course of meetings between the
parties;
(c) arrange further
facilitation meetings after consultation with the parties;
(d) direct that the
parties engage in consultations without the facilitator being
present.
(2) A
decision by a facilitator in respect of any matter concerning the
procedure for conducting the facilitation,
including the date and
time of meetings, is final and binding.
(3) By
agreement between the parties, the facilitator may perform any other
function.’
[51]
In terms of
section 8(1)
of the
Divorce Act 70
of 1979
, a maintenance order made in terms of the Act, may at any
time thereafter be rescinded or varied if ‘… the Court
finds
that there is sufficient reason therefor
…’
.
No similar authority is given to a facilitator.
[52]
In terms of
section 16(1)
(b)
of the
Maintenance Act 99 of 1998
, the
maintenance court has the authority to substitute or discharge a
maintenance order if good cause exists therefore. Similarly,
no
authority is given in the
Maintenance Act to
a facilitator to vary an
existing maintenance order.
[53]
The empowering legislation that deals with
parenting plans, is found in
section 33
of the Children’s Act,
which provides as follows:
‘
Contents of parenting
plans
(1) The
co-holders of parental responsibilities and rights in respect of a
child may agree on a parenting plan
determining the exercise of their
respective responsibilities and rights in respect of the child.
(2) If the
co-holders of parental responsibilities and rights in respect of a
child are experiencing difficulties
in exercising their
responsibilities and rights, those persons, before seeking the
intervention of a court, must first seek to
agree on a parenting plan
determining the exercise of their respective responsibilities and
rights in respect of the child.
(3) A
parenting plan may determine any matter in connection with parental
responsibilities and rights, including-
(a)
where and with whom the
child is to live;
(b)
the maintenance of the
child;
(c)
contact between the child
and-
(i)
any of the parties; and
(ii)
any other person; and
(d)
the schooling and
religious upbringing of the child.
(4) A
parenting plan must comply with the best interests of the child
standard as set out in
section 7.
(5) In
preparing a parenting plan as contemplated in subsection (2) the
parties must seek-
(a)
the assistance of a
family advocate, social worker or psychologist; or
(b)
mediation
through a social worker or other suitably qualified person.’
[54]
In terms of
section 34(1)
(b)
of the Children’s Act, a parenting plan may be
made
an order of court. In this case the parenting plan was made an order
of court. It should be noted that in terms of
section 33(5)
a social
worker may assist in the preparation of the parenting plan when the
parents have difficulties in exercising their responsibilities
and
rights. The role of the social worker is limited to
‘assistance’
and ‘mediation’. No statutory right is given to a
social worker to determine disputes that may arise from such
parenting plan, after it has been made an order of court.
[55]
Mr M contends that the parenting plan determined
the maintenance, as provided for in
section 33(3)
(b)
of the Children’s Act. Because the
parenting plan was elevated to the status of an order in terms of
empowering legislation,
it is finally a court order that empowered
Mrs Bruwer to vary the maintenance order of the High Court. On the
face of it, the argument
is persuasive.
[56]
Counsel for Mr M submitted that a court order
must be obeyed, even if it is wrong, and parties must comply with
such order, unless
it is set aside by a competent court. That
submission is equally convincing.
[57]
With regard to the status of a judgment which has
not been rescinded, the authorities are clear. In
Bezuidenhout
v Patensie Citrus Beherend Bpk
,
[15]
Froneman J emphasised this principle as follows:
[16]
‘
An order of a court of
law stands until set aside by a court of competent jurisdiction.
Until that is done the court order must
be obeyed even if it may be
wrong (
Culverwell v
Beira
1992 (4) SA 490
(W) at 494A-C
).
A person may even be barred from approaching the court until he or
she has obeyed an order of court that has not been properly
set aside
(
Hatkinson v Hatkinson
[1952] 2 All ER 567
(CA); Bylieveldt v Redpath
1982 (1) SA 702
(A) at
714
).’
[58]
That passage was quoted with approval by the
Supreme Court of Appeal in
Minister of Home
Affairs v Somali Association of SA
.
[17]
In that judgment
[18]
it was stated :
‘
The
cornerstone of democracy and the rule of law is the uncompromising
duty and obligation on all persons, more especially state
departments, to obey and comply with court orders. There are
processes in place for those who disagree with court orders. But they
are not free to simply turn a blind eye to the order nor do they have
any discretion to not obey it.’
And at paragraph 35:
‘…
there is an
unqualified obligation on every person against, or in respect of whom
an order is made by a court of competent jurisdiction
to obey it
unless and until that order is discharged. It cannot be left to
litigants themselves to judge whether or not an order
of court should
be obeyed. There is a constitutional requirement for complying with
court orders, and judgments of the courts cannot
be any clearer on
that score.’
[19]
[59]
However, when a judge did not have the authority
to issue a particular order, there is also another principle that
applies to such
an order. In
The Master of the
High Court (North Gauteng High Court, Pretoria) v Motala N.O. and
Others
[20]
and
City Capital SA
Property Holdings Ltd v Chavonnes Badenhorst St Claire Cooper and
Others
,
[21]
the
Supreme Court of Appeal held that where an order or
part thereof amounts to a nullity,
the order may
be ignored and does not have to be set aside.
[60]
In
Department of
Transport and Others v Tasima (Pty) Ltd
[22]
the Constitutional Court criticised
Motala
and said:
‘
Allowing parties to
ignore court orders would shake the foundations of the law, and
compromise the status and constitutional mandate
of the courts. The
duty to obey court orders is the stanchion around which a state
founded on the supremacy of the Constitution
and the rule of law
is built.
’
[23]
And:
‘…
judicial
orders wrongly issued are not nullities. They exist in fact and may
have legal consequences’.
[24]
However,
whether or not an order is ‘
enforceable
’, depends
on whether the judge :
‘…
had the authority to make the decision
that he did
at the moment that he made it
.
’
[25]
[61]
So, in applying the principles in
Tasima
,
it means that if Weinkove AJ did not have the judicial authority to
grant the power to a facilitator to exercise judicial authority,
that
part of the order does not have ‘legal consequences’ and
it is not enforceable. Whether the order has no legal
consequences,
or whether it is unenforceable, it follows in my view that the
facilitator would not derive rights therefrom to exercise
judicial
authority.
[62]
I revert to the Children’s Act. Upon a
reading of section 33 of the Children’s Act, it is evident that
co-holders of
parental responsibilities and rights in respect of a
child may personally determine the maintenance of that child.
However, the
legislature has not given express authority in the
Children’s Act to the co-holders of such parental
responsibilities and
rights to delegate their statutory right of
determining the maintenance, to a third party. So, the Children’s
Act did not
authorise Weinkove AJ to delegate judicial authority to
the facilitator.
[63]
If there is no legislation that empowered the
court to delegate judicial authority to the facilitator, one has to
look for the source
of that authority elsewhere. I turn to consider
the relevant authorities in the United States of America. There, many
jurisdictions
that authorise the appointment of parent coordinators
by statute or court rule, restrict the ambit of the parent
coordinator’s
decision-making authority.
[64]
In Texas
[26]
it is regulated that ‘a parenting coordinator shall not have
the authority to make any decision affecting child support,
child
custody, or a substantial change in parenting time.
’
[65]
In
Morrow v Corbin
[27]
it was held that:
‘
[T]he power thus confided
to our trial courts must be exercised by them as a matter of
non-delegable duty, that they can neither
with nor without the
consent of parties delegate the decision of any question within their
jurisdiction, once that jurisdiction
has been lawfully invoked …’.
[66]
In
Salt Lake City v Ohms
[28]
the court stated that non-judges cannot properly be assigned judicial
duties because: ‘[T]here are no provisions which subject
them
to the constitutional checks and balances imposed upon duly appointed
judges of courts of record’. In
Rae SH
[29]
the court held that ‘Under the separation of powers
doctrine judicial powers may not be complemented, delegated to,
or
exercised by, either non-judicial officers or private parties’.
In
State Farm Mut. Auto. Ins. Co. v Kendrick
[30]
the court held that ‘A trial court cannot delegate the
sole authority to perform a purely judicial function’.
[67]
In
D’Agostino v
D’Agostino
[31]
it was held that ‘A court cannot delegate or abdicate, in whole
or in part, its judicial power
’
. In
Ruisi
v Thieriot
[32]
it was held that a trial court’s authority is ‘…
constrained by the basic constitutional principle that judicial
power
may not be delegated’. In
Zafran v
Zafran
[33]
it was held that it was not an improper delegation of judicial
authority to appoint a case manager which has no decision-making
authority.
[68]
In
Heinonen v Heinonen
[34]
the Oregon Court of Appeals held that a trial court cannot delegate
final decision-making authority to a parenting coordinator,
even with
consent of the parties, but the agreement whereby the parenting
coordinator was allowed to make decisions, did not provide
for the
trial court’s review of that decision. In
Edwards
v Rothschild
[35]
it was held that, to allow a parenting coordinator to make decisions,
constituted an improper delegation of judicial authority,
but that a
parenting coordinator without decision-making authority may validly
be appointed.
[69]
In
William J. Bower v
Michelle A. Bournay-Bower
[36]
the Supreme Court of Massachusetts set aside the appointment of a
parenting coordinator as it amounted to an unlawful delegation
of
judicial authority. Spina J held that:
‘
A judge’s inherent
authority does not extend to compelling a party to submit to the
binding decision-making authority of a
parent coordinator without
that party’s consent.’
[37]
[70]
The court also held that, if the parties had
consented to the appointment, or if the parent coordinator’s
authority had been
limited to assisting the parties in resolving
their disputes by issuing recommendations to the
parties
‘…
the referral to the parent
coordinator may have been permissible as a way to further the court’s
capacity to decide cases
by encouraging resolution of the parties’
disputes by the parties themselves
.’
[38]
[71]
I turn to consider the South African
authorities. In
Hummel v Hummel
[39]
the applicant applied to court for an order that a case manager be
appointed to deal with the conflict about the parenting of his
son,
and be clothed with powers to make a decision which would be binding
on the parties, subject to the overriding jurisdiction
of the High
Court to overturn such a decision.
[72]
Sutherland J held that the notion of a case
manager is one that derives from the practice of the courts and is
not a label used
in the Children’s Act. After considering the
provisions of section 33 of the Children’s Act, the court held
that ‘…
section 33 (5) [of the Children’s
Act] articulates the scope for intervention to render assistance to
the parents, not make
decisions for them’.
[73]
The court also held that the role of any ‘…
other suitable person (such as a facilitator or case manager) is to
facilitate
decision making rather than to be the decision-maker’.
[40]
The court concluded that
[41]
‘… the appointment of a decision-maker to break
deadlocks is a delegation of the court’s power; itself and
impermissible act’. I am in respectful agreement with the
reasoning of Sutherland J in
Hummel
.
[74]
By virtue of section 33(3)
(b)
of the Children’s Act, the
determination of maintenance is a parental responsibility and right.
Put differently: in the first
instance, parents must personally
determine the maintenance of their children.
[75]
In that regard, it should be noted that section
30(3) of the Children’s Act prohibits the transfer of that
parental right
and responsibility to a third party:
‘
A co-holder of parental
responsibilities and rights may not surrender or transfer those
responsibilities and rights to another co-holder
or any other person,
but may by agreement with that other co-holder or person allow the
other co-holder or person to exercise any
or all of those
responsibilities and rights on his or her behalf.’
[76]
In my view, the effect of what took place in this
matter, is that the parents transferred their parental
responsibilities and rights
involving the determination of
maintenance, to Mrs Bruwer. That is inconsistent with section 30(3)
of the Children’s
Act. The fact that Weinkove AJ sanctioned the
parenting plan, does not cure the defect.
[77]
In
TC v SC
[42]
the court considered whether it had the authority, by virtue of its
inherent jurisdiction as the upper guardian of minor children,
to
make an interim order whereby a facilitator is appointed to deal with
parenting disputes. The court held:
‘
I consider that it is
possible, by means of appropriate limitations on the scope of the
PC's authority, to craft a role for the
PC which does not constitute
an unlawful delegation of judicial decision-making authority, but
permits the parties (and indeed
the court) to benefit from the
services of a PC.’
[43]
[78]
The court further held
[44]
as follows:
‘
[71] To
summarise then: I consider that a High Court may, in the exercise of
its inherent jurisdiction as the upper
guardian of minor children:
[71.1]
appoint a PC with the consent of both parties, provided that:
(a)
there is already an
agreed parenting plan in existence, whether interim or final, which
has been made an order of court;
(b)
the role of the PC is
expressly limited to supervising the implementation of and compliance
with the court order;
(c)
any decision-making
powers conferred on the PC are confined to ancillary rulings which
are necessary to implement the court order,
but which do not alter
the substance of the court order or involve a permanent change to any
of the rights and obligations defined
in the court order;
(d)
all rulings or directives
of the PC are subject to judicial oversight in the form of an appeal
in the wide sense described in
Tikly
and Others v Jes NO and Others
,
ie ‘complete re-hearing of, and fresh determination of the
merits of the matter with or without additional evidence or
information’.’
[79]
In
TC v SC
the court did not deal with the provisions of section 165 of the
Constitution, which provides as follows:
‘
165
Judicial
authority
(1) The
judicial authority of the Republic is vested in the courts.
(2) The
courts are independent and subject only to the Constitution and the
law, which they must apply impartially
and without fear, favour or
prejudice.
(3) No person
or organ of state may interfere with the functioning of the courts.
(4) Organs of
state, through legislative and other measures, must assist and
protect the courts to ensure the
independence, impartiality, dignity,
accessibility and effectiveness of the courts.
(5) An order
or decision issued by a court binds all persons to whom and organs of
state to which it applies.
(6) The Chief
Justice is the head of the judiciary and exercises responsibility
over the establishment and monitoring
of norms and standards for the
exercise of the judicial functions of all courts.’
[80]
In
MEC for Health, Gauteng
v Lushaba,
[45]
the Gauteng MEC for Health, applied for leave to appeal, inter alia
against a punitive cost order that was granted against him
in a
medical negligence case that was successfully instituted by the
respondent. The trial court initially issued a rule
nisi
in the following terms:
‘
A rule nisi issues,
calling upon the defendant to show cause on Tuesday 28 October
2014 at 10h00 why he should not be held
liable personally de bonis
propriis on the attorney and client scale, jointly and severally with
the defendant on attorney and
client scale, for the costs.
Alternatively to the preceding
paragraph and should the defendant be of the view that he should not
be held personally liable, he
should identify such persons in the
Department of Health of Gauteng, as well as such persons in the
office of the state attorney,
who should be personally held liable
for the costs as well as the reasons why they should be so held
liable.
The defendant's affidavits,
dealing with the preceding two paragraphs, should be filed and served
by no later than Thursday 23 October
2014 at 12h00.’
[81]
The trial court confirmed the rule
nisi
,
and ordered four officials which it deemed responsible, to pay
de
bonis propriis
50% of the costs jointly and
severally with the MEC on an attorney and client scale. On appeal,
the MEC submitted that the award
was improperly issued. The
Constitutional Court held that the above quoted order: ‘…
reveals that the court impermissibly
authorised one of the parties
before it to exercise a judicial power’.
[46]
It further held:
‘
It was not competent for
the High Court to allow the MEC to be the judge of whether he should
be held personally liable and, if
he should not be held personally
liable, to identify who should be. This does not accord with s 165 of
the Constitution which declares
that judicial authority of the
Republic is vested in the courts.’
[82]
We
should also be mindful of section 2 of the Constitution which
provides that conduct which is inconsistent with the Constitution,
is
invalid:
‘
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled’.
[83]
I return to the facts of this matter. The
objective effect of the directive is that the maintenance order,
contained in the consent
paper, has been varied.
[84]
The decision whereby the High Court maintenance
order was varied, was not taken by co-holders of parental
responsibilities and rights,
but by a third party (Mrs Bruwer). She
acted as a judicial officer and exercised a judicial power that falls
within the preserve
of courts. It is common cause between Mr and Mrs
M, that Mrs Bruwer, in determining the new maintenance, acted as a
judicial officer.
[47]
[85]
The most unusual process that unfolded before Mrs
Bruwer, was a quasi-judicial process, because she directed Mr and Mrs
M to produce
particulars of their income and expenditure in order to
review the maintenance that Mr M paid in respect of the children. In
addition,
Mrs M submitted a schedule of her income and expenses to
Mrs Bruwer. The schedule, inter alia reflects the gross and nett
salary
of Mrs M. The expenditure schedule deals with items such as
groceries, household expenditure, clothes, transport, educational
expenditure,
medical expenditure, insurance, pocket money, holidays,
house maintenance, gifts, pet food and gym fees.
[86]
The schedule of income and expenses is similar to
the pro-forma schedule that is found in the
Maintenance Act. In
terms of
section 6(1)
of the
Maintenance Act, a
maintenance officer
shall investigate a complaint that has been lodged in the prescribed
manner. In terms of
regulation 2(2)
a complaint for the substitution
or discharge of a maintenance order shall be substantially in
accordance with Form B. Form B contains
the following sub-items under
the heading ‘Expenditure’: Lodging, food, household
expenditure, clothing, personal care,
transport, educational
expenditure, medical expenditure, insurance, pocket money, holidays,
maintenance of house, entertainment,
personal loans, security alarm
system, membership fees, religious contributions, gifts, TV licence,
reading material, lease / hire
purchase payments, pets and other.
[87]
The schedule of income and expenses that Mrs M
produced, is nearly identical to Form B prescribed under the
Maintenance Act.
[88
]
In determining this matter, a court should also
have regard to section 28(2) of the Constitution which provides:
‘
A child's best interests
are of paramount importance in every matter concerning the child.’
[89]
That constitutional principle is entrenched in
section 9 of the Children's Act which provides:
‘
In all matters concerning
the care, protection and well-being of a child the standard that the
child's best interest is of paramount
importance, must be applied.’
[90]
In my view, it is self-evident that it is not in
the best interests of a child that a social worker should be granted
the judicial
authority to vary a maintenance order of the High Court.
[91]
I find that by issuing the directive whereby the
maintenance order of the High Court was varied, Mrs Bruwer
impermissibly purported
to exercise judicial authority, contrary to
the provisions of section 165 of the Constitution. Her conduct is
unlawful and invalid.
The directive stands to be set aside.
[92]
Even if it can be found that Mrs Bruwer derived
her authority from a parenting plan that was elevated to the status
of a court order,
the terms of that court order, insofar as it
purports to delegate judicial authority to her, is inconsistent with
section 165 of
the Constitution, invalid and unenforceable. By
virtue of section 2 of the Constitution, a court is certainly not
authorised
to grant an order which is inconsistent with the
Constitution, because such conduct would be invalid.
Can
review by the High Court cure the defect?
[93]
It may be argued that the judicial conduct of Mrs
Bruwer is not invalid, because the parenting plan determines that the
decision
of Mrs Bruwer stands ‘… unless the High Court,
as upper guardian of the children, orders otherwise’.
[48]
In other words, because the High Court has the right to review
and set the directive aside, the initial defect in delegating
judicial authority to Mrs Bruwer, is cured by the review process.
[94]
In
Kelm v Kelm
[49]
the court declined to allow arbitration of child custody issues which
go to the
‘
very core of the child’s
welfare and best interests’, because that would ‘encroach
upon the trial court’s
traditional role as p
arens
patriae
’.
[50]
The court in
Kelm
was
not convinced by the argument that the opportunity for judicial
review of the arbitration award, cured the defect. The court
held
that the opportunity for
de novo
judicial review of an arbitration award destroys the parties’
expectation that an arbitration award will be final, and the
court
held that it would be wasteful of time and a duplication of effort.
[95]
In
William J Bower
[51]
the court held that judicial review does not cure the initial defect
because it
‘…
is insufficient to
cure the limitations on access to the courts created by compelling a
parent to submit to binding dispute resolution’.
[96]
In
Oudekraal Estates
(Pty) Ltd v City of Cape Town and Others
[52]
, although
dealing with administrative action and not a court order, the Supreme
Court of Appeal, inter alia said :
‘
Thus the proper enquiry
in each case — at least at first — is not whether the
initial act was valid but rather whether
its substantive validity was
a necessary precondition for the validity of consequent acts’
.
[53]
[97]
In applying that principle to the facts of this
matter, and as there was no substantive validity in delegating
judicial authority
to the facilitator, the consequent directive of
the facilitator was also invalid. One cannot validate invalidity, by
bringing it
under review to the High Court.
[98]
In my view the initial unauthorised (or invalid)
act of delegating judicial authority, cannot be cured by a High Court
by ex post
facto considering whether the conduct of Mrs Bruwer was
right or wrong. Attempting to review conduct which is inherently
invalid,
involves further legal proceedings which are highly
prejudicial to Mrs M, or for that matter, any other parent who would
be faced
with a similar directive whereby maintenance was varied.
[99]
My reasons for holding that such review is
prejudicial, are as follows:
[99.1]
Generally, parties should be subjected to one
process to resolve their dispute;
[99.2]
No
written particulars of the claim for the reduction of maintenance
were produced;
[99.3]
No oral evidence was produced;
[99.4]
No cross-examination was conducted;
[99.5]
No record of the proceedings was kept. Under
those circumstances a court (and Mrs M) will be at a significant
disadvantage, because
it will not be known what evidence was produced
and what factual findings were made in respect thereof. Absent
evidence, how does
a party then challenge such non-existing
‘evidence’ on review? ;
[99.6]
It is unclear who bears the onus of proof in such
a review application. If it is Mrs M, she would be disadvantaged
because presumably
a quo, Mr M bore the onus to prove his claim for a
reduction of maintenance. On review, the onus may possibly then shift
to Mrs
M;
[99.7]
If there are factual disputes, the matter must
presumably not be determined on the respondent’s version, based
on the
Plascon Evans
[54]
principle, as in
B v S
[55]
the Supreme Court of Appeal held: ‘Because the welfare of a
minor is at stake, a Court should be very slow to determine the
facts
by way of the usual opposed motion approach.
’
;
[99.8]
It would generally take a substantial amount of
time before an applicant’s review application is heard;
[99.9]
There are usually significant legal costs
involved in review proceedings. If the matter had to be heard in the
Maintenance Court,
costs would usually be much less, and in many
cases, there would be no costs;
[99.10]
Should the review involve a whole new hearing? If
so, presumably the parties will have to present evidence at a
trial. But
that will involve very significant legal costs in the High
Court. It cannot be in the best interests of children that a trial
should
be conducted in the High Court about their maintenance;
[99.11]
As a matter of policy, I think it is wrong to
deprive a child of maintenance for a long time until an incorrect
directive is set
aside on review by a High Court.
[100]
In my view
Lushaba,
[56]
duly interpreted, is authority for the
principle that the
initial
delegation by a court of judicial authority to a non-judicial person,
cannot subsequently be cured by the same court when it reviews
the
decision of such non-judicial person. It will be recalled that in
Lushaba,
the court
initially
conferred
judicial authority on the MEC to, inter alia identify persons who
should be held personally liable for costs and then
to report back to
the court on affidavit who those persons were, in order for the court
to
finally
consider
and review the decision of the MEC, and to grant an order based on
the decision of the MEC. Put differently: the court
retained the
overriding authority to review the decision of the MEC with regard to
the question who should be held personally liable.
The Constitutional
Court held that:
‘…
the court
impermissibly authorised one of
the parties before it to exercise a judicial power
.’
[57]
[101]
I
conclude that the right of either party to approach the High Court in
order to review the judicial authority exercised by Mrs
Bruwer, does
not cure the unconstitutional and fundamental defect of delegating
judicial authority to a social worker – contrary
to section 165
of the Constitution. Once that delegation is impermissible and
unauthorised, the very act of delegation of judicial
authority is,
and remains unauthorised.
A fair hearing?
[102]
I proceed to consider whether the directive
stands to be set aside on the separate ground that Mrs Bruwer failed
to ensure that
the parties were afforded a fair hearing.
[103]
In terms of section 34 of the Constitution, Mrs M
was entitled to a fair hearing :
[58]
‘
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.’
[104]
In
De Beer NO v
North-Central Local Council and South-Central Local Council and
Others (Umhlatuzana Civic Association Intervening)
[59]
the Constitutional Court explained the right to a fair hearing as
follows:
‘
This s 34 fair hearing
right affirms the rule of law, which is a founding value of our
Constitution. The right to a fair hearing
before a court lies at the
heart of the rule of law. A fair hearing before a court as a
prerequisite to an order being made against
anyone is fundamental to
a just and credible legal order. Courts in our country are obliged to
ensure that the proceedings before
them are always fair. Since
procedures that would render the hearing unfair are inconsistent with
the Constitution courts must
interpret legislation and Rules of
Court, where it is reasonably possible to do so, in a way that would
render the proceedings
fair. It is a crucial aspect of the rule of
law that court orders should not be made without affording the other
side a reasonable
opportunity to state their case. That reasonable
opportunity can usually only be given by ensuring that reasonable
steps are taken
to bring the hearing to the attention of the person
affected. Rules of Courts make provision for this.’
[105]
In
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[60]
the Constitutional Court held:
‘
A cornerstone of any fair
and just legal system is the impartial adjudication of disputes which
come before the courts and other
tribunals. This applies, of course,
to both criminal and civil cases as well as to quasi-judicial and
administrative proceedings.’
[61]
[106]
In this matter Mrs Bruwer failed to ensure that
there was a fair hearing. My reasons are as follows:
[106.1]
Mrs M was not informed exactly what the nature
was of the relief that Mr M was seeking. At the very least, and prior
to the hearing,
Mrs Bruwer should have ensured that Mrs M knew by
which amount Mr M was claiming a reduction of his maintenance
obligations.
[106.2]
Mrs Bruwer did not afford Mrs M the opportunity
to have insight into the documents that dealt with the financial
situation of Mr
M.
[62]
[106.3]
Mrs Bruwer did not afford the opportunity to Mrs
M to make representations to her, based on the documents of Mr M,
prior to issuing
the directive on 29 March 2018.
[63]
[106.4]
In my view, it was incumbent upon Mrs Bruwer to
at least have given an opportunity to Mrs M to address her about all
the relevant
issues including the financial position of Mr M, the
financial position of Mrs M as well as the needs of the children. It
is clear
that this never took place.
[106.5]
There was no hearing held, and therefore the
parties could not present evidence, or conduct cross-examination.
[107]
Even if it could be held that there was a valid
delegation of judicial authority, the difficulty that one has, as a
general proposition,
is that the variation of a maintenance order,
should be done by a person who is legally qualified and has the
necessary knowledge
of the relevant legal principles. That is what
the legislature achieves with the
Divorce Act and
the
Maintenance
Act, because
only judges and magistrates have that judicial
authority.
[108]
In this matter, the variation of the High Court
maintenance order, was done by a social worker, being Mrs Bruwer. As
such, she is
obviously not legally qualified, trained or has the
necessary legal experience.
[109]
In her affidavit of 24 October 2018, Mrs Bruwer
states that she appointed Mrs le Roux ‘… for the
maintenance dispute
…’ and she ‘…
relied
on her expertise and experience to come to the directive issued’.
[64]
(emphasis added)
[110]
It would therefore appear that Mrs Bruwer,
realising that she did not have the necessary qualifications and
expertise to determine
the reduction in maintenance, relied on the
expertise and experience of a non-practising attorney. That conduct
demonstrates that
the judicial authority that was delegated to Mrs
Bruwer, was effectively further delegated to Mrs le Roux. But, the
maxim is:
delegatus delegare non potest.
[65]
Mrs Bruwer was in law not permitted to rely on a third party to
effectively do the determination of the maintenance.
[111]
I seriously doubt whether the parties, when they
entered into the parenting plan, envisaged that the appointed
facilitator would
have the right to delegate her decision-making
powers to another person.
[112]
It is clear that a fair hearing was not held.
Therefore, and also on this ground alone, it follows that the
directive cannot stand,
and must be set aside.
Is the second ruling vague and therefore invalid?
[113]
In
terms of the second ruling, Mrs Bruwer found:
‘
I therefore direct that
Louise ensures and provides monthly proof that the one third payment
towards N are (sic) for the sole benefit
of N, by either paying the
said amount directly to N during the months that she is not in her
care, or spend the money on real
needs of N, which can be supported
by documentation.’
[114]
Counsel for Mr M fairly conceded that the
aforegoing ruling is unusual, vague and difficult to implement. In my
view, this ruling
creates more confusion than certainty. How can it
be established what the ‘real needs’ of N are? Who is
going to do
that investigation? What ‘documentation’ will
suffice? Must the ‘monthly proof’ be furnished as a
pre-condition,
prior to the payment of the maintenance by Mr M, or
must it be provided after the money has been spent? Further, Mrs
Bruwer does
not have the right to determine that maintenance which is
paid in respect of N, must be for the ‘sole benefit’ of
N.
[115]
In
City Capital
[66]
the Supreme Court of Appeal held that a court order that is erroneous
and vague, amounts to a nullity. It also stated that:
‘
The doctrine of
vagueness, which is founded on the rule of law, is a foundational
value of our constitutional democracy. It
requires laws to be written
in a clear manner, with reasonable certainty and not perfect
lucidity. Orders of court must comply
with this standard: vague
provisions in a court order violate the rule of law.’
[67]
[116]
Although the second ruling, forming an integral
part of the directive, is not a court order, I am of the view that
the abovementioned
doctrine of vagueness is similarly applicable to
the terms of the directive. As it is vague, the second ruling is
either not enforceable,
[68]
or it amounts to a nullity. It cannot have any legal effect.
[117]
Faced with this difficulty about the vagueness of
the second ruling, counsel for Mr M submitted that the second ruling
is severable
from the rest of the rulings. If he is correct, it means
that only the second ruling has to be set aside on the basis that it
is
vague. If he is incorrect, it means that the whole directive must
be set aside.
[118]
In my view, the second ruling is indeed severable
from the rest of the directive and does not automatically result in
the unenforceability
or invalidity of the other rulings. As explained
above, there are other grounds upon which the other rulings should be
set aside.
Should
Mrs Bruwer be removed as facilitator?
[119]
It now remains to consider whether Mrs M is
entitled to an order whereby Mrs Bruwer is removed as facilitator. I
proceed to consider
that issue.
[120]
Despite Mrs M having submitted a detailed list of
her monthly income and expenditure, Mrs Bruwer failed to deal with
that evidence
in her directive. In this regard, Mrs M contends that
on 27 March 2018, prior to the issuing of the directive, Mrs Bruwer
had already
made up her mind and pre-judged the outcome, even before
Mrs Bruwer received all the relevant financial documents of Mrs M. On
27 March 2018 Mrs Bruwer informed Mrs M in an e-mail that the fact
that L is in boarding school, will be taken into consideration
with
regard to the maintenance that is paid to Mrs M, and in respect of J,
the maintenance will remain unchanged.
[69]
[121]
Mrs M further says in her founding affidavit that
Mrs Bruwer could not have worked through the bundle of vouchers that
was given
to her on 27 March 2018, prior to issuing the directive on
29 March 2018.
[122]
In an e-mail of 26 February 2018, Mrs Bruwer
conveyed the following to Mrs M:
‘
One child is out of the
house and the other one is in boarding house, which has a significant
impact on the maintenance.’
[70]
[123]
That statement illustrates that Mrs Bruwer was
already showing a strong inclination to reduce the maintenance
payable by Mr M. She
showed a biased approached, before she was
placed in possession of all the documents relating to income and
expenses. As early
as 20 February 2018, Mrs M warned Mrs Bruwer that
her directives were not going to be enforceable.
[124]
On 8 March 2018 Mrs M sent an e-mail to Mrs
Bruwer in which she stated:
‘
without doubt, you are
acting in a biased manner …’
.
[71]
[125]
In
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
[72]
the Constitutional Court held that a judicial officer who sits on a
case in which he or she should not be sitting, because
seen
objectively, the judicial officer is either actually biased or there
exists a reasonable apprehension that the judicial officer
might be
biased, acts in a manner that is inconsistent with the Constitution.
In this matter, Mrs M justifiably had a reasonable
apprehension that
Mrs Bruwer was biased.
[126]
It is clear, as explained above, that Mrs Bruwer
failed to ensure that Mrs M had a fair hearing. It is obvious that
she has lost
confidence and trust in Mrs Bruwer, and under those
circumstances, it would not be in the best interests of the children
that Mrs
Bruwer remains as the appointed facilitator. It follows that
Mrs Bruwer should be removed as the facilitator.
Costs
[127]
Regrettably, Mrs Bruwer adopted an unfortunate
attitude in this matter, which warrants Mrs M’s concern of
bias. Even before
she was placed in possession of the income and
expenses of Mrs M, she proclaimed on 27 March 2018 that she was going
to reduce
L’s maintenance. That is exactly what she did on 29
March 2018.
[128]
An impartial person should not advise one party
to a dispute, before adjudication commences, that there is a
possibility that the
final ruling will be against that party –
especially when all the evidence has not yet been produced. That is
fundamentally
wrong.
[129]
In the fourth ruling, while dealing with J, she
stated that
‘
Should J become a weekly
boarder at school, Fanie’s maintenance obligations to Louise
shall be reviewed along the lines as
set out above’, which
illustrates that she has probably pre-judged the matter. She cannot
now
determine that in
future she will reduce the maintenance for J, because she does not
now know what the future financial position
of the parents is going
to be.
[130]
As a result of the conduct of Mrs Bruwer, Mrs M
had to incur legal costs. On various occasions after the issuing of
the directive
on 29 March 2018, Mrs M requested Mrs Bruwer to resign
as facilitator. Despite all those requests, she refused to resign.
She was
also requested to recall her directive, but she justified it
by, inter alia stating that her directive is a
‘
legal
result’
and is binding until set aside.
That may possibly be correct.
[131]
Despite the meeting on 5 June 2018 where Mrs
Bruwer was again requested to resign, she refused. Instead, she
informed the parties
that she was appointing Mr Craig Snyder as her
co-coordinator. On a reading of Mrs Bruwer’s affidavit, it is
clear that she
does not want to resign as facilitator, and wishes to
retain that position.
[73]
I can see no reason why Mrs Bruwer should not be held liable for the
costs.
[132]
Mr M contends that the directive should stand,
and that Mrs Bruwer should not be removed as facilitator. His
opposition to the application,
has been unsuccessful. I see no reason
why he should also not be held liable for costs.
Order
[133]
I
make the following order:
[133.1]
The directive issued by Esna Bruwer on 29 March
2018 is reviewed and set aside.
[133.2]
Esna Bruwer is removed as the facilitator
appointed pursuant to the parenting plan dated 25 March 2014,
attached to the consent
paper and made an order of court under case
number 10037/2013.
[133.3]
The applicant and the second respondent are
directed to agree on another facilitator within 60 days of this court
order, failing
which, either one may approach FAMAC to appoint such a
facilitator.
[133.4]
The first and second respondents are ordered,
jointly and severally, if the one pays the other is to be absolved,
to pay the costs
of this application.
WESLEY VOS, AJ
[1]
Juta, by Jacqueline Heaton
[2]
Family Mediators’ Association of the Cape
[3]
Georghiades v Janse Van Rensburg
2007 (3) SA 18
at para [19]
[4]
Joi T. Montiel, Tennessee Journal of Law and Policy p. 381: Is
parenting authority a usurpation of judicial authority? Harmonising
authority for, benefits of, and limitations on the
legal-psychological hybrid.
[5]
See record 19 paragraph 41; record 135 paragraph 27
[6]
Freely translated from Afrikaans. The Afrikaans text reads as
follows: “
My voorstel is dat die huidige onderhoud hersien
word en ook die bydrae waarvoor elke ouer verantwoordelikheid moet
aanvaar. Een
kind is uit die huis en die ander een op kosskool, wat
‘n wesenlike impak op die onderhoud het. In terme van 6.4.4
moet
ek betrokke raak by die onderhoudsdispuut.”
[7]
The exact words are: “
Die prokureur of dan jou bevindings /
aanbevelings is nie afdwingbaar.”
[8]
The e-mail proceeds as follows in Afrikaans: “
Graag wil ek
my ontevredenheid beklemtoon in die manier waarmee die sessies tot
op hede hanteer is. Sonder twyfel tree jy partydig
op, en die
kinders se welbehae is nie in jou beste belang nie.”
[9]
See record 21 paragraph 46; record 136 paragraph 29
[10]
The subheadings have been inserted by me
[11]
[1999] ZACC 18
;
2000 (1) SA 879
(CC) at para
[17]
[12]
Zuma v Democratic Alliance And Others 2018 (1) SA 200 (SCA)
[13]
See Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd and Another
2015 (5) SA 245
(CC)
within the context of
section 8(1)
(c)(aa)
of the
Promotion of
Administrative Justice Act No 3 of 2000
[14]
Shorter Oxford English Dictionary Fifth edition volume 1 and 2
[15]
2001 (2) SA 224 (ECD).
[16]
At 229B-C. See also
Erasmus: Superior Court Practice
,
2
nd
edition, Vol 2 at D1-562, and the authorities quoted
at footnotes 1 and 2.
[17]
2015 (3) SA 545
(SCA), par 34.
[18]
At para [33], page 570.
[19]
At page 571.
[20]
2012 (3) SA 325 (SCA);
[21]
2018 (4) SA 71 (SCA)
[22]
2017(2) 622 CC
[23]
At para [183]
[24]
At para [182]
[25]
At para [198]
[26]
Tex. Fam. Code Ann. Ş 153.606 (c West 2009)
[27]
62 S. V. 2d 641, 645 (Tex. 1933)
[28]
881 P. 2d 884
, 851 (Utah 1994)
[29]
3 Cal. Rptr. 3d 465, 471 n. 11 (Cal. Ct. App. 2003)
[30]
780 So. 2d 231
, 233 (Fla Dist. Ct. App. 2001)
[31]
54 S. W. 3d 191, 200 (Mo. Ct. App. 2001)
[32]
62 Cal. Rptr. 2d 766
, 772 (Cal. Ct. App. 1997)
[33]
761 N.Y.
S. 2d
317
(N.Y. App. Div. 2003)
[34]
14 P. 3d 96 (Or. Ct. App. 2000)
[35]
60 A.D. 3d 675 (N.Y. 2009)
[36]
469 Mass 690 (2014)
[37]
At 702
[38]
At 706
[39]
Unreported case number 2012/06274 2012 JDR 1679 (GSJ)
[40]
At paragraph [9]
[41]
At paragraph [13]
[42]
2018 (4) SA 530
WCC
[43]
At paragraph [50]
[44]
At paragraph [71]
[45]
2017 (1) SA 106
(CC)
[46]
At para [13]
[47]
In paragraph 41 of the founding affidavit, record 19, Mrs M stated:
“… earlier this year, the second respondent
(Mr M)
declared the children’s maintenance a dispute with the first
respondent (Mrs Bruwer), who then duly assumed the
role of a
judicial officer, declaring that she will review the maintenance
payable to me for the children.” Mr M admitted
the aforegoing
(see paragraph 27 of the opposing affidavit at record 135).
[48]
See paragraph 6.5 of the parenting plan
[49]
749 N. E. 2d 299, 301 (Ohio 2001)
[50]
Parent of the nation
[51]
At 705
[52]
2004 (6) SA 222 (SCA)
[53]
At para 31
[54]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 - 635
[55]
1995(3) SA 571 (A) at 585E
[56]
2017 (1) SA 106
(CC) at para 13
[57]
At para 13
[58]
Assuming that Mrs Bruwer could validly review the maintenance order.
[59]
[2001] ZACC 9
;
2002 (1) SA 429
(CC) at paragraph 11
[60]
1999 (4) SA 147 (CC)
[61]
At paragraph 35
[62]
Paragraph 46 record 21; paragraph 29 record 136
[63]
Paragraph 46 record 21; paragraph 29 record 136
[64]
See paragraph 17.1 of the affidavit, record 206
[65]
In
South African Reserve Bank and Another v Shuttleworth And
Another
2015 (5) SA 164
(CC) at para 16 the Constitutional Court
explained that the principle is that a delegate cannot delegate.
[66]
2018 (4) 71 (SCA) at para 33 - 39
[67]
At para 35
[68]
Tasima
at para 198
[69]
Mrs Bruwer used the word “
onveranderd”. See record 91
[70]
My translation from Afrikaans
[71]
My translation from Afrikaans
[72]
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para
[30]
[73]
In paragraph 15 of her affidavit she says “
I do not believe
that there is merit in the allegations by applicant in respect of my
role as facilitator and believe that I would
be doing a disservice
to the re-arranged M family unit should I resign.”