About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 90
|
|
S.J.F v T.V and Another (10533/2014) [2021] ZAWCHC 90 (28 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 10533/2014
Before: The Hon. Mr Justice Binns-Ward
Hearing: 28 April 2021
Judgment: 28 April 2021
In the
matter between:
S[....]
J[....] F[....]
Applicant
and
T[....]
V[….]
First Respondent
THE
SHERIFF OF THE HIGH COURT, BELLVILLE
Second Respondent
JUDGMENT
(Delivered by email to the parties’ legal representatives
and by release to SAFLII.
The judgment shall be deemed to have been handed down at 14h15 on
28 April 2021.)
BINNS-WARD J:
[1]
The marriage between the applicant and the
first respondent was dissolved in terms of an order made by this
court on 6 August 2014.
The court order incorporated the terms
of a settlement agreement between the parties. The settlement
agreement provided,
amongst other matters, for the care and
maintenance of the two children born of the marriage and for the
parties’ contact
arrangements in respect of them. Those
issues were addressed in a parenting plan that was annexed to the
settlement agreement.
A parenting plan is an agreement of the
sort contemplated by s 33 of the Children’s Act 38 of
2005. Section 33(3)
provides that 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) issues concerning contact with the
child, and (d)
the schooling and religious upbringing of the child.
The parenting plan in the current case provided that the applicant
would
pay maintenance in respect of each of the children in an amount
of R5 000 per month, increasing annually from the date of
divorce in line with the consumer price index.
[2]
The court’s order was amended by
agreement on 27 March 2015. The purpose of the amendment was to
regulate the situation
in which the applicant became the primary
caregiver to the parties’ minor son and the first respondent
the primary caregiver
to their daughter. The maintenance
provisions were varied to provide that the applicant would pay
maintenance (to the first
respondent) only in respect of the minor
daughter in the agreed amount.
[3]
The applicant stopped paying maintenance in
terms of the amended court order from the end of August 2020.
The first respondent
obtained a writ of execution to enforce payment
of the resultant arrears. Pursuant to the writ, certain movable
property
found at the applicant’s place of residence has been
attached. Some of the attached property is currently the
subject
of interpleader proceedings. The applicant has applied
in the current proceedings for the setting aside of the writ of
execution.
[4]
It is contended that the writ falls to be
set aside because the applicant’s maintenance obligation was
cancelled in terms
of an order made by the Children’s Court at
Mashishing (Lydenburg) on 13 August 2020. The Children’s
Court
order provided as follows:
IN THE
MAGISTRATE COURT FOR THE DISTRICT OF THABA CHWEU
HELD AT
MASHISHING
CASE NO:14/1/4-09/2019
IN THE MATTER
OF
MTF [the
parties’ minor daughter]
FEMALE CHILD
AND
JF [the
applicant in the current proceedings]
FATHER (BIOLOGICAL)
TvD [the first
respondent]
MOTHER (BIOLOGICAL)
COURT ORDER
After
perusing the contents of the file and considering representation’s
(
sic
) made by the legal representative of both the applicant
and the respondent, the court makes the following order
1.
The recommendations
contained in the report which was compiled by the social worker
namely Karin Botes specifically at page no (36)
thirty six till page
no (43) forty three is made an order of the court
2.
The court direct (
sic
)
that the social worker must compile a progress report and submit to
court (
sic
)
on or before the last working day of September 2021 for evaluation of
the circumstances of the interested parties i.e. the biological
parents of the above mentioned child.
3.
no further or
alternative relief.
By order
[signed]
A D MOGALE
MAGISTRATE: CHILDRENS COURT
[5]
The framing of paragraph 1 of the
Children’s Court order was most unfortunate. It requires
any person seeking to establish
the nature of the court’s
directions to have reference to an external document; in this case,
moreover, a document of a discursive
character. A court order
should generally speak for itself. Its interpretation most
certainly should not have to depend
on sorting out the wheat from the
chaff in one of the documentary exhibits in the case.
[6]
It is common ground that the report
mentioned in the court order is that of social worker Karin Botes
dated 3 August 2020.
It contains a section (§7) headed
‘
Recommendation
’,
which commences about a third of the way down page 36 and ends on
page 43 of the document. The section is divided
up under
various subheadings (printed in smaller font);
viz. ‘
Definitions
’ (§7.1),
‘
The task of the Investigating
Officer
’ (§7.2),
‘
Recommendation
’ (§7.3.1),
‘
Guardianship
’
(§7.3.2), ‘
Care
’
(§7.3.3), ‘
Contact
’
(§7.3.4) and ‘
Maintenance
’
(§7.3.5). As foreshadowed by their subheadings, §§7.1
and 7.2 of the social worker’s report (which
are from pages 36
to 39) do not contain any recommendations whatsoever. It is
consequently a mystery why the magistrate included
those parts of the
report by reference in his order. Nothing in their content is
capable of being transposed into a determinative
order.
[7]
The applicant relies for his contention as
to the effect of the Children’s Court order on §7.3.5 of
the social worker’s
report, which reads as follows:
MAINTENANCE
The
undersigned recognise (
sic
) that she is not a maintenance
expert, but since there is substantial evidence that the maintenance
issues is (
sic
) a source of conflict between the biological
parents, and should the honourable court accept the undersigned’s
recommendation
of assigning each parent the sole right to care over
(
sic
) one of the minor children, she respectfully requests the
honourable court to consider a variation in the current maintenance
order
that each parent is responsible for maintaining the child in
their care.
I shall
discuss this subsection in its contextual setting presently, but read
on its own, §7.3.5 of the report is a request,
not a
recommendation. There is nothing in the order to suggest that
the court acted on the request.
[8]
The first respondent, who opposes the
application for the setting aside of the writ of execution, asserts
that the Children’s
Court order does not have the effect
contended for by the applicant. She contends that it was in any
event not within the
jurisdiction of the Children’s Court to
make an order varying the extant maintenance order. She relied
in this regard
on s 1(4) of the Children’s Act, which
provides:
Any
proceeding arising out of the application of the Administration
Amendment Act, 1929 (Act 9 of 1929), the Divorce Act, the Maintenance
Act, the Domestic Violence Act, 1998 (Act 116 of 1998), and the
Recognition of Customary Marriages Act (Act 120 of 1998), in so
far
as these Acts relate to children, may not be dealt with in a
children’s court.
Her counsel
submitted, correctly so, that it is well-established that any order
made by a court acting outside the limits of its
jurisdictional
authority is a nullity; cf. e.g.
Tadvest Industrial (Pty) Ltd. v
Hanekom and Others and a Similar Matter
2019 (5) SA 125
(SCA) at
para 21
, The Master of the High Court (North Gauteng High Court,
Pretoria) v Motala NO and Others
2012 (3) SA 325
(SCA) at para
12-14 and
Enslin v Nhlapo
[2008] ZASCA 75
;
2008 (5) SA 146
(SCA) in para 2.
[9]
The applicant sought to counter the first
respondent’s contentions by asserting that the order had been
made by agreement
(thereby implying that the respondent had tacitly
consented to the court’s jurisdiction to make the order) and
that it was
in any event within the children’s courts’
jurisdiction to make an amendment to a parenting plan.
[10]
The appropriate place to embark on the
determination of this application is the proper construction of the
court order; for one
cannot properly tackle the argument whether it
was within the court’s jurisdiction to make it without knowing
what the ambit
of the order is. The construction of court
orders falls to be undertaken in just the same manner as any other
documentary
memorial of a jural act; see
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) at 304D-
fin
,
Finishing Touch 163 (Pty) Ltd v Billiton
Energy Coal South Africa Ltd and Others
[2012] ZASCA 49
(30 March
2012); 2013 (2) SA 204
(SCA) in para 13 and
Eke v Parsons
[2015] ZACC 30
(29 September
2015); 2016 (3) SA 37
(CC) in para 29 .
One interprets the words used with regard to the context in which
they are employed; cf.
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
(16 March 2012);
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) in para 18. It is obviously important in construing a
court order to be mindful of the nature of the proceedings in
which
it was made. In the current case it is common ground that the
proceedings in the Children’s Court concerned an
application
for the variation of the care and contact arrangements pertaining to
the daughter of the applicant and the first respondent.
A court
will also, if possible, favour an interpretation of the document that
upholds the validity of the jural act over one that
would render it
of no effect. By virtue of the manner in which the Children’s
Court framed its order, the document
that has to be interpreted for
present purposes is the social worker’s report referred to in
paragraph 1 of the court order.
[11]
The scope of the report is recorded in
paragraph 1 thereof, where the author stated that ‘(t)
he
undersigned’s scope
(sic)
is
to render a care and contact assessment report
’.
That suggests, consistently with the nature of the pending
proceedings before the Children’s Court, that an
investigation
of any changes to the maintenance regime did not fall within the
social worker’s mandate. (‘Care’,
‘contact’
and ‘maintenance’ are identified as discrete aspects of a
parent’s parental rights and
responsibilities in s 18(2)
of the Children’s Act.) The social worker underscored the
nature of her mandate in
§7.2 of her report (at p. 39), stating
‘(t)
he task of an investigating
social worker in a contact and care dispute is not to find one of the
parties guilty of some misconduct,
but to respectfully make a
recommendation regarding what contact and care arrangements must be
put in place so that the best interest
of the minor child concerned
is paramount
’. She provided
further elucidation in §7.3.1 (at p. 40), where she stated (in
bold font, with underlining and
the use of upper case for emphasis)
‘
Based on the evidence
collected through this assessment process the undersigned
respectfully makes the following
recommendations
regarding the CARE and CONTACT arrangements concerning the minor
children [TF] (age 14) and [MF] (aged 11) and respectfully
requests that the following amendments to the assigning of parental
responsibilities and rights must be made as following: ...
’.
It is notable that the social worker emphasised that her
recommendations pertained only to ‘care’ and
‘contact’.
Had her recommendations extended to anything else one would have
expected, having regard to the structure
of the report, to find that
said in §7.3.1.
[12]
The author of the report then proceeded to
deal in some detail, in §7.3.3 and §7.3.4 of the document
with the matters
of ‘
Care
’
and ‘
Contact
’,
respectively. Those two subsections deal with the social
worker’s recommendations on the issues that fell within
her
acknowledged mandate. The subsection s.v. ‘
Maintenance
’,
quoted in paragraph [7]
above, was treated
discretely in the report from the issues that fell within the
expressly acknowledged scope of her mandate.
Furthermore, as I
have already noted, the ‘
Maintenance
’
subsection of the ‘
Recommendations
’
part of the report (§7) is expressly couched as a request to the
court to consider a variation of the maintenance regime,
rather than
a recommendation. It is notable that where the social worker
intended to make a recommendation, she used language
that made that
clear, such as ‘
it is recommended
that ...
’, or peremptory language
such as ‘[JF]
shall be the sole
holder of ...
’ or ‘[T]
will
have the sole right to ...
’.
[13]
A contextual consideration of the social
worker’s report accordingly impels the conclusion that §7.3.5
thereof was not
a recommendation, but rather a request to the court
to deal with a question that lay outside both the scope of her
mandate and
of her area of professional expertise. Paragraph 1
of the Children’s Court’s order falls to be construed
accordingly,
with the result that it does not have any bearing on the
extant maintenance order of this court made in the divorce
proceedings
and subsequently varied on 27 March 2015. This
conclusion is supported by the inherent improbability that the
magistrate
would have intended his order to deal with an issue that
was not before the Children’s Court in the case that he was
determining.
Compare in this regard
Eke
v Parsons
supra, in para 25, where
Madlanga J writing for the Constitutional Court, observed, with
reference to
PL v YL
2013 (6) SA 28
(ECG);
[2013] 4 All SA, 41
, in para 15, that ‘(f)
or
an order to be competent and proper, it must in the first place,
“relate directly or indirectly to an issue or
lis
between the parties
”’.
[14]
In the result, the question whether the
magistrate exceeded his powers does not arise because it is,
correctly, not in issue that
it was within the jurisdiction of the
children’s courts to make orders concerning care and contact in
relation to children,
but for completeness, I shall nevertheless
consider the jurisdictional question on the hypothetical assumption
(against my finding
to the contrary) that the Children’s Court
order did purport to vary the maintenance order, as contended by the
applicant.
The issue is not altogether free from difficulty as
the ambit of the children’s courts’ jurisdiction is not
as clearly
delineated by the Children’s Act as perhaps it
should be. That much was pointed out more than 10 years ago by
a full
court of the KwaZulu-Natal Division in
Ex
parte Sibisi
2011 (1) SA 192
(KZP).
The full court exhorted the legislature to consider clarifying
amendments to the Act, but its suggestion seems to
have fallen on
deaf ears.
[1]
Sibisi
was
concerned with the question of guardianship,
[2]
but the jurisdiction of the children’s courts in respect of
questions of maintenance is even less clear. Children’s
courts are empowered to deal with certain child maintenance issues,
but whether their remit is co-extensive with that of the maintenance
courts seems unlikely.
[15]
A maintenance order simpliciter is not
listed in s 46 of the Children’s Act as one of the orders
that a children’s
court may make.
[16]
Section 1(4) of the Children’s Act
excludes any proceedings arising out of the application of the
Divorce Act 70 of 1979
or the
Maintenance Act 99 of 1998
insofar as
those Acts relate to children being dealt with under the
first-mentioned Act. The maintenance order made by this
court
in respect of the children that was in force when the proceedings in
the Children’s Court were decided was made in
terms of the
Divorce Act.
Section 6(1)
of the
Divorce Act provides
that a
decree of divorce shall not be granted until the court is a satisfied
that the provisions made or contemplated with regard
to the welfare
of any minor or dependent child of the marriage are satisfactory or
the best that can be effected in the circumstances.
Section
6(3)
of
Divorce Act provides
for the divorce court to make ancillary
orders to give effect to the obligation placed on it in terms of
s 6(1).
Such orders include orders in regard to the
maintenance of a dependent child of the marriage being dissolved.
A maintenance
order made in terms of
s 6(3)
of the
Divorce
Act is
a ‘maintenance order’ as defined in
s 1
of
the
Maintenance Act. The
Maintenance Act provides
independently
for the making of orders for the maintenance of dependent children
(s 15).
It provides a specially devised framework for the
investigation and presentation of maintenance claims, and for their
enforcement.
A maintenance court is also expressly invested
with powers to vary or rescind an existing maintenance order,
including one made
in the High Court. A children’s court,
by contrast, is not. These are all strong indicators that the
rescission
or variation of an extant maintenance order made by the
High Court, a divorce court or a maintenance court are matters
excluded
by
s 1(4)
from the jurisdiction of the children’s
courts.
[17]
The jurisdiction of one court to set aside
or vary an order competently made by another court is in any event
not lightly to be
presumed. So, for example, in
FS
v JJ and Another
2011 (3) SA 126
(SCA)
in para 36, Lewis JA expressed the view that Louw J had been correct
to find that the Western Cape Division of the High Court
did not have
the jurisdiction to set aside or vary a care and contact order made
in the Northern Cape Division, notwithstanding
that the Western Cape
Division had jurisdiction in respect of the person of the child
concerned by virtue of its place of residence
being in Paarl.
At para 38, Lewis JA proceeded to say that ‘
...
as a rule, since one is entitled to assume that any order has been
made in the best interests of a child, should those interests
change
over time, the court that made the initial order should be approached
for a variation
’. It seems
to me that
s 1(4)
of the Children’s Act may well have been
framed with those considerations in mind.
[18]
Section 45
of the Children’s Act
prescribes the matters that a children’s court may adjudicate.
Maintenance, in terms, is
not one of them.
Section 45(1)(b)
does provide that a children’s court may adjudicate any matter
involving ‘
the care of a child
’
and ‘
care
’
is defined in
s 1
to include ‘
where
appropriate ... within available means, providing the child with ...
the necessary financial suppor
t’.
However, insofar as it might be contended that those provisions
therefore connote that a children’s court
may make or vary
maintenance orders made in terms of the
Divorce Act or
the
Maintenance Act, such
contention is rebutted by the qualification to
s 45(1)
inserted by the opening words of the subsection, viz.
‘
Subject to
section 1(4)
...
’.
The same considerations apply in respect of
s 45(1)(d)
in
respect of matters involving ‘
the
support of a child
’.
[19]
A child maintenance order, such as might be
made by the High Court, a divorce court or a maintenance court, falls
to be distinguished
from a ‘contribution order’, which is
a special type of maintenance order that a children’s court is
empowered
to make
(s 46(1)(i)
of the Children’s Act).
A contribution order is one that may be made in terms of Chapter 10
of the Children’s
Act. It relates to a sum of money or ‘a
recurrent sum of money’ that a respondent may be directed to
pay towards
the maintenance or treatment of, or the costs resulting
from the other special needs of a child placed in alternative care or
temporarily
removed by order of the court from the child’s
family for treatment, rehabilitation or counselling or as a
short-term emergency
contribution towards the maintenance or
treatment of, or the costs resulting from, the special needs of a
child in urgent need.
(Section 161
of the Children’s Act.)
[20]
If paragraph 1 of the Children’s
Court order in the current matter were to be construed as bearing on
the maintenance of the
parties’ minor children by virtue of
§7.3.5 of the social worker’s report, it would not qualify
as a ‘contribution
order’. It would constitute a
variation of the High Court divorce order. The making of such
an order does not
appear to me to be within the jurisdiction of the
children’s courts. An order purporting to have that
effect would
therefore be incompetent and
pro
tanto
of no legal force.
[21]
Furthermore, there is nothing in the papers
to suggest that the court was concerned with an application in terms
of
s 28
of the Children’s Act for an order terminating or
suspending the applicant’s parental responsibility to
contribute
to the maintenance of his daughter; on the contrary the
founding papers confirm that the application to the Children’s
Court
was brought by the parties minor child for a variation of the
contact arrangements with her. Applications in terms of
s 28
are, in my view, in any event concerned more with parental status
than with maintenance
per se
.
In
GM v KI
2015 (3) SA 62
(GJ), Fisher AJ opined that parental rights and
responsibilities ‘
are, for the
most part, two sides of the same coin
’.
The learned judge proceeded ‘
Thus
on a purposive interpretation of
s 28(1)(a)
, an order which
terminated rights but left in place responsibilities, would be
difficult, if not impossible, of application.
Such a result
could never have been intended by the legislature
’.
[3]
I am in general agreement with that view.
[22]
It is evident that the Children’s
Court’s order, incorporating as it did the social worker’s
recommendations as
to care and contact, did not suspend or terminate
the applicant’s parental rights. It merely constituted
the first
respondent as the primary caregiver in respect of the
parties’ daughter. It is difficult to conceive of how it
could
be in the best interests of a child to terminate a parent’s
responsibility, within the latter’s means, to contribute
towards its maintenance having regard to the reasonable needs of the
child. These considerations tend to confirm my view
that
s 28
,
insofar as it pertains to the parental right and responsibility in
respect of contribution towards a child’s maintenance,
does so
conceptually or existentially rather than in the sense of defining
the monetary extent of the obligation in the way that
a maintenance
order does.
[23]
In my view therefore,
s 28
of the
Children’s Act does not vest a power in the children’s
courts to vary or rescind a child maintenance order while
the
affected parent’s parental rights and responsibilities are left
intact.
[24]
The implication in the applicant’s
case that the parties could, by consent, invest a children’s
court with powers not
entrusted to those courts by the Children’s
Act is misconceived. The children’s courts are creatures
of statute
and their functions and powers are exclusively
circumscribed by the Children’s Act and various other statutory
provisions
such as in the
Child Justice Act 75 of 2008
and s 46
of the Education Affairs Act (House of Assembly) 70 of 1988, for
example. Children’s courts do not have
an inherent
jurisdiction. My attention was not directed to any provision in
the Children’s Act similar to s 45
of the Magistrates’
Court Act, by which the parties might consent to the jurisdiction of
the court in respect of matters
beyond its prescribed statutory
jurisdiction. The first respondent in any event denies that she
consented to an order terminating
the applicant’s maintenance
obligations. In the context discussed above, the respondent’s
denial cannot be dismissed
as far-fetched or fanciful and her
evidence in that regard must consequently be accepted for the purpose
of deciding this matter
on the papers.
[25]
In any event, the applicant’s
contention that it had been agreed that his maintenance obligations
in terms of the extant High
Court order be rescinded is contradicted
by the content of an email from his attorney dated 13 August 2020
advising him of the
outcome of the proceedings in the Children’s
Court. The email, a copy of which was attached to the
applicant’s
replying affidavit, reported as follows in the
relevant respect:
‘
8.
Maintenance needs according to the act (sic) is the duty and
responsibility
of both biological parents and has nothing to do with
access and contact arrangements.
9.
At most the maintenance court will look at the reasonable
monthly
needs of both children and then for biological parents, compare
income and make a decision from there.
10.
You may though use this recent order [i.e. the order of the
Children’s
Court] to factor into the costs of the therapy of
this the order, (sic) hence you need to make the maintenance court
aware of same.’
The attorney
is hardly likely to have reported back in those terms if he believed
that the Children’s Court had rescinded
the order directing the
applicant to pay maintencce for his daughter.
[26]
For all these reasons, there is no merit in
the applicant’s contention that the order of the Children’s
Court cancelled
or rescinded his obligation in terms of the divorce
order (as varied) in respect of the payment of maintenance for his
minor daughter.
His application to set aside the writ of
execution must accordingly be refused.
[27]
The first respondent asked for a punitive
costs order against the applicant. I do consider that the
applicant acted in a regrettably
opportunistic manner in relying on
an objectively untenable interpretation of the Children’s Court
order, but it must nevertheless
be acknowledged that it was poor
formulation of the order that gave rise to the opportunity. I
have therefore, not without
some hesitance, decided not to make a
punitive order. There was no valid basis, however, in the
applicant’s counsel’s
submission that each party should
bear their own costs. Costs will follow the result.
[28]
The following order is made:
The application is dismissed with costs.
A.G. BINNS-WARD
Judge of the High Court
APPEARANCES
Applicant’s counsel:
M. De Wet
Applicant’s attorneys:
E. Rowan Inc.
Cape Town
First Respondent’s counsel:
D.J.
Rabie
First Respondent’s attorneys:
Fourie Basson &
Veldtman
Tyger Valley, Bellville
Walkers
Cape Town
[1]
Sibisi
in para
14.
[2]
The Children’s Act’s provisions
concerning jurisdiction in respect of questions of guardianship are
internally contradictory.
Section 45(3)(a) records that ‘
the
High Courts and Divorce Courts
’
have exclusive jurisdiction, whereas s 29(1) read with s 24
indicates that an application can be brought by
any person for the
assignment of guardianship of a child ‘
before
the High Court, a divorce court in a divorce matter, or a children’s
court, as the case might be, within whose area
of jurisdiction the
child concerned is ordinarily resident
’.
[3]
In para 14.