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[2011] ZAGPJHC 222
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R.J.I v A.B.L N.O and Another (50748/10) [2011] ZAGPJHC 222 (2 December 2011)
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Certain
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IN
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 50748/10
DATE:
02/12/2011
In
the matter between:
R.J
I [....]
APPLICANT
and
A.B
L [....] N.O:
1st RESPONDENT
H.P
I
[....] 2nd RESPONDENT
JUDGMENT
MEYER
J
:
[1]
The applicant seeks the review and setting aside of an order of the
first respondent sitting as an acting
additional magistrate in
Randburg, as well as the setting aside of a warrant issued for his
arrest. The first respondent abides
the decision of this court.
[2]
The applicant and the second respondent were previously married. Two
children were born of their marriage.
They were divorced in terms of
an order of this court on 13 September 2002. It is common cause that
the applicant communicated
his decision to emmigrate to the United
Kingdom to the second respondent a few months before he actually left
the Republic of South
Africa permanently on or about 7 or 8 September
2010.
[3]
On 13 August 2010, a subpoena in terms of S 9(2) of the Maintenance
Act 99 of 1998 (‘the
Maintenance Act&rsquo
;) was served on the
applicant to attend an enquiry at the Maintenance Court, Randburg, on
27 August 2010. On this date the first
respondent postponed the
matter to 1 September 2010.
[4]
On 1 September 2010, the parties appeared before the first
respondent. The applicant’s attorney made
an application that
the matter be removed from the roll. The contention on behalf of the
applicant was that the matter should be
dealt with in terms of the
Reciprocal Enforcement of Maintenance Orders Act 80 of 1983 and not
in terms of the provisions of the
Maintenance Act. This
application
was opposed on behalf of the second respondent. The first respondent
ordered that the matter proceed in terms of the
Maintenance Act.
Neither
the applicant’s attorney nor the second respondent’s
attorney was available to commence with the enquiry before the
applicant had left South Africa permanently. The first respondent
therefore postponed the matter to 21 October 2010 for an enquiry
to
be held in terms of
S 6
of the
Maintenance Act.
[5
]
The applicant left South Africa on 8 September 2010. He was not
present in court on 21 October 2010, although
his attorney was. The
first respondent authorised a warrant for the applicant’s
arrest, which he held over to 19 November
2010, and he postponed the
matter. On 19 November 2010, the applicant was not present at court.
The second respondent authorised
the warrant of arrest and postponed
the matter further.
[6]
S 6(1)
of the
Maintenance Act enjoins
a maintenance officer to
investigate complaints relating to maintenance.
Regulation 3
of the
Regulations Relating to Maintenance that were made under
S 44
of the
Maintenance Act (GN
R. 1361 of 15 November 1999) provides that a
maintenance officer may in investigating a complaint ‘direct’
the complainant
and the person against whom a maintenance order may
be or was made to appear on a specific time and date ‘before
him or her’
and that such direction ‘may be given in the
manner the maintenance officer deems fit.’ After investigating
the complaint,
the maintenance officer may, in terms of
S 6(2)
institute an enquiry in the Maintenance Court.
S 10
deals with an
enquiry by the Maintenance Court.
S 9(1)
empowers a maintenance
officer who has instituted an enquiry in a Maintenance Court to cause
any person to be subpoenaed
inter alia
to appear before the
Maintenance Court and
S 10(1)
provides that ‘[t]he maintenance
court holding an enquiry may at any time during the enquiry cause any
person to be subpoenaed
as a witness or examine any person who is
present at the enquiry, although he or she was not subpoenaed as a
witness, and may recall
and re-examine any person already examined.’
The language of the relevant sections of the
Maintenance Act to
which
I have referred is clear and unambiguous and effect must be given to
them.
[7]
The issue and service upon the applicant of the subpoena in terms of
section 9(2)
of the
Maintenance Act that
called on him to attend an
enquiry in terms of
S 10
at the Maintenance Court that had been
‘instituted by the maintenance officer’ is irregular. The
complaint relating
to maintenance had at that stage not been
investigated by the maintenance officer and the maintenance officer
had not yet instituted
an enquiry in the Maintenance Court. The
maintenance officer should, in terms of
regulation 3
, have directed
the complainant to appear on a specific time and date before him or
her. The issue and service of the subpoena cannot
be construed as
such a directive.
[8]
It is in terms of
S 6(2)
of the
Maintenance Act the
prerogative of
the maintenance officer to institute an inquiry under
S 10.
The order
made by the first respondent on 1 September 2010 that the matter
proceed in terms of the
Maintenance Act was
also given at a stage
when the maintenance officer had not yet instituted the enquiry in
terms of
S10
of the
Maintenance Act. The
first respondent had no
power to grant such order at that stage of the proceedings and the
granting thereof is irregular. It accordingly
follows that the
authorisation of the warrant of arrest by the first respondent on 21
October 2010 is irregular.
[9]
I am of the view that the irregularities to which I have referred
constitute grave or gross irregularities
that occurred during the
course of the proceedings in the court below within the meaning of S
24 of the Supreme Court Act 59 of
1959, and they should be reviewed
and set aside by this court.
[10]
In the result I make the following order:
1)
The review succeeds.
2)
The subpoena issued with reference number 14/3/2-74/09 and served
upon the applicant on 13 August 2010,
is set aside.
3)
The order made by the first respondent on 1 September 2010, that the
matter proceed in terms of the
Maintenance Act 99 of 1998
, is set
aside.
4)
The warrant of arrest authorised by the first respondent on 21
October 2010, is set aside.
5)
The second respondent is ordered to pay the applicant’s costs
of this application.