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[2012] ZAGPJHC 205
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De Klerk v Groepies NO and Others (31156/2012) [2012] ZAGPJHC 205 (28 August 2012)
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NOT REPORTABLE
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 31156/2012
DATE:28/08/2012
In
the matter between:
FREDERIK WILLEM (FW) DE KLERK (SNR)
.....................
Applicant
and
DELORES GROEPIES
N.O.
....................................................
First
Respondent
NICOLENE NOORDEN DE
KLERK
.....................................
Second
Respondent
THE MAGISTRATE,
RANDBURG
........................................
Third
Respondent
J U D G M E N T
KGOMO, J
:
INTRODUCTION
[1] The applicant approached this Court as a matter of urgency. Part
A thereof prays for an order:
1.1 dispensing with the forms, service and time periods provided for
in the Rules of this Court, including Rule 6(13), and granting
leave
for this application to be heard as a matter of urgency in terms of
Rule 6(12);
directing that the directive issued by the first respondent to the
applicant on 4 June 2012, purportedly in terms of Regulation
3(1)
of the Regulations relating to maintenance as published in
Government Notice R.1361 dated 15 November 1995; read with
sections
6
and
44
of the
Maintenance Act 99 of 1998
; under Case Numbers
14/3/2-172/2012, be stayed with immediate effect; and that the
first respondent take no further steps to
enforce the directive
against the applicant pending the determination of the application
under Part B of this notice of motion;
directing that the costs of the application under Part A be paid by
–
the second respondent; and
such other respondent(s) as may oppose the application; and
granting such further and alternative relief as the court may deem
fit.
[2] Part B of the notice of motion prays for an order –
reviewing and setting aside the directive referred to in paragraph
1 of Part A above;
directing that the costs of the application under Part B be paid by
–
the second respondent; and
any such other respondent(s) as may oppose the application; and
for further and/or alternative relief as the court may deem fit.
URGENCY
[3] After perusing the papers filed of record herein and listening
to argument I am satisfied that in spite of the fact that the
directive complained about or in issue herein was issued as far back
as 4 June 2012, the circumstances hereof, coupled with the
protracted
horse-trading or negotiations that ensued thereafter, the matter
remains deserving of being heard as an urgent one in
the Urgent Court
of this Court.
RELEVANT BACKGROUND AND FACTUAL MATRIX
[4] The applicant herein, who
will henceforth be referred to as “
FW
de Klerk
” is the
adoptive father of one Frederik Willem de Klerk (Jnr) (“
FW
de Klerk Jnr
”)
who is married to the second respondent herein (“
Nicole
”).
The last mentioned couple have two minor children, M and N, aged 9
and 8 years respectively (“
the
minor children
”).
Since the year 2008 FW de Klerk Jnr and Nicole have been involved in
acrimonious and protracted divorce proceedings in
the Western Cape
High Court. It is still ongoing. It is proceeding under Case Number
19988/08 there.
[5] During December 2008 Nicole instituted
Rule 43
proceedings in
the Western Cape High Court under the same divorce case file claiming
maintenance for herself and the minor children
in the amount of R45
000,00 per month plus medical, educational and accommodation expenses
in addition thereto.
[6] On 27 February 2009 the above court granted an order that FW de
Klerk Jnr pay an interim maintenance for Nicole and the minor
children in the amount of R18 000,00 per month pending the
finalisation or determination of the divorce action. He was further
ordered to pay medical costs, educational costs and accommodation
costs for them.
[7] This
Rule 43
order is still in force as it was not suspended,
set aside or discharged by a competent court.
[8] On or about 18 January 2012 Nicole lodged a complaint against FW
de Klerk Jnr in terms of
section 31(1)
of the
Maintenance Act in
the
Randburg Magistrates’ Court under Case Number 14/3/2-20/2012
(CH 45/2012) arising out of FW de Klerk Jnr’s alleged
or
purported failure to comply with the
Rule 43
order. The criminal
summons issued pursuant to the above complaint called upon him to
appear before that court (Randburg Magistrates’
Court) on 23
February 2012.
[9] From a note or endorsement made in the court file at Randburg,
that criminal matter was struck off the roll on 23 February
2012
because there was no personal service of the summons issued. The
maintenance officer, being the first respondent in this
application
was ordered by the court to liaise with the maintenance investigator
at Bellevue, Western Cape, or Cape Town, to ensure
that personal
service is effected in respect of possibly the summons as re-issued.
[10] The papers have no much
trail of what happened subsequently regarding this aspect save that
the maintenance file at Randburg
has an endorsement dated 14 May 2012
that FW de Klerk Jnr was required to appear in that court on 15 May
2012.
[11] It s not clear whether or not he did appear or what took place
there if he did appear or did not appear.
[12] What is of closer relevance
to our present matter is that on 9 May 2012 Nicole lodged an
“
Application for
Maintenance Order: Complaint in terms of Section 6(1)(a) of the Act
”
in which she declared under oath that FW de Klerk (Snr), the
applicant herein was legally liable to maintain the minor children.
The material part of the application states that:
“…
He is the grandfather of my two daughters and his
son claims to not be able to support the girls financially …
”
[13] She (Nicole) claimed contribution from the applicant towards
such maintenance in the amount of R16 569,00 for each child;
a total
of R33 138,00 in respect of both minor children.
[14] On 31 May 2012 a directive was issued against FW de Klerk Jnr
by the first respondent, purportedly in terms of Regulation
3(1) of
the Regulations as read with
sections 6
and
55
of the
Maintenance
Act, to
appear before the first respondent on 16 July 2012 and to
produce documents in connection with a maintenance complaint
allegedly
lodged by the second respondent; i.e. Nicole against him.
[15] I have not seen copies of the
section 6
complaint itself and as
such there is no certainty as to whether it indeed exists or was
lodged in writing as required.
[16] From the applicant’s papers I could not ascertain what
happened to the above complaint and directive or when the date
was De
Klerk Jnr was to appear before the Randburg Magistrates’ Court.
[17] On 22 June 2012 the directive which is the subject for
determination in this application was served on the applicant. The
applicant’s attorney proceeded to apply for and receive a copy
of the applicable court file(s) relevant hereto. The applicant
was
called upon to appear before Magistrate Randburg’s Maintenance
Section on 30 July 2012.
[18] By mutual agreement between the applicant’s attorneys and
the first respondent’s representative(s) the applicant
was
excused from attending the proceedings on 30 July 2012 as the two
parties were still to first argue the correctness or otherwise
of the
issuing of the directive to the applicant before a magistrate.
[19] It appears as if the first respondent, although having agreed
that the applicant need no attend court on 30 July 2012, nevertheless
prevaricated or was not forthright or seeing her way clear to deal
with the arguments required to be placed before the magistrate
on 30
July 2012. This necessitated the applicant’s attorney
confirming the issue of the argument in an e-mail dated 16 July
2012
to the first respondent.
[20] The argument was directed at –
ascertaining the validity or regularity of the said directive,
especially, the record of the manner in which the directive
was
given by the first respondent as required or contemplated in
Regulation 3(b) of the Maintenance Regulations;
ascertaining the first respondent’s reasons for investigating
the complaint against the applicant in the face of the
currency of
an existing maintenance order against FW de Klerk Jnr, which has
not been discharged or varied by a competent court;
details of what steps, if any, have been taken by the second
respondent (Nicole) to enforce the Rule 43 order against FW de
Klerk Jnr;
details as to what progress has/had been made in the investigation
and enquiry(ies) against FW de Klerk Jnr, if any; and
information about the outcome(s) of any of the first respondent’s
investigations and enquiries against FW de Klerk Jnr.
[21] Suffice to state that the first respondent did not respond or
reply to the e-mail sent to her requesting clarification over
the
above issues.
[22] On 30 July 2012 the third respondent, being the presiding
magistrate on the day, refused to hear argument on the regularity
of
the directive, being of the view that he did not have the authority
to do so.
[23] In short, a magistrate ruled that he was not authorised to
listen to and determine a point
in limine
raised in the
proceedings before him.
[24] The matter was postponed to 3 September 2012 for hearing the
merits of the directive. I am made to believe that this very
date is
also the date to which FW de Klerk’s “
directive
matter
” was adjourned to.
[25] On 6 August 2012 the applicant’s attorney e-mailed a
letter to the first respondent, copy whereof was hand-delivered
to
her office on the same date, in which the applicant’s attorney
set out some of the grounds on which the applicant contended
that the
directive was irregular and improper. The first respondent was given
until 14 August 2012 to withdraw the directive,
alternatively, to
confirm by that date that the directive would be stayed or postponed
without the applicant having to appear in
court until the maintenance
enquiry against De Klerk Jnr had been finalised and/or determined,
failing which an application would
be brought to this Court to review
and set aside the directive and/or to stay it in the interim. The
request for the withdrawal
of the directive was based on the facts
that (according to the applicant) it was ill-founded, vexatious as
well as constituting
an abuse of process.
[26] The above letter was responded to by letter dated 10 August
2012 which was e-mailed to the applicant’s attorneys on
13
August 2012. In addition to the lengthy explanation contained therein
concerning the history of the matter, the first respondent
concludes
as follows:
“
Furthermore, there is no provision in the Regulations that
allows the Maintenance Officer to withdraw a Directive as
contemplated
…
”
[27] I am not sure whether I understand the maintenance officer,
i.e. the first respondent in this application by the above to
mean
that once she has issued a directive, whether it was wrongly or
irregularly issued, she cannot withdraw or have it withdrawn;
or
whether she m ay be understood to mean that irrespective of the
legality or regularity issue relating to such a directive, the
respondent mentioned therein must by hook or crook appear before
court for such a directive to be withdrawn, irrespective of where
such a respondent comes from, like the applicant herein who would be
coming from Cape Town or the Western Cape Province.
GROUNDS FOR REVIEW AND SETTING ASIDE
[28] I have listened to argument in this application from both
sides. It is so that Part A of the notice of motion is the one
that
is in issue today. However, for a proper and informed decision to be
made regarding Part A, it was necessary to look cursorily
at the
grounds of review or setting aside of the directive.
ULTRA VIRES
AND CONTRAVENTION OF PAJA AND CONSTITUTION
[29] The applicant attacks the
directive on the grounds that it being an administration action the
first respondent was obliged
to act in accordance with the
requirements of the Promotion of Administrative Justice Act 3 of 2000
(“
PAJA
”)
in order to give effect to the right which everyone has in terms of
section 33(1) of the Constitution to administrative
action that is
lawful, reasonable and procedurally fair.
[30] The applicant further
contended that the directive is reviewable under section 6(2)(a)(i)
of PAJA on the grounds that the
first respondent was not authorised
by the empowering provision to issue the directive. Furthermore,
they contended that the directive
is in any event reviewable under
the common law ground that it was
ultra
vires
.
[31] The applicant also submitted and/or contended that the first
respondent acted outside her powers in and/or when issuing the
directive.
AUTHORITY TO ISSUE A DIRECTIVE
[32] Regulation 3(1) read with Regulation 2(1) empowers a
maintenance officer, in investigating a complaint, to issue a
directive
to the complainant and the person(s) against whom a
maintenance order may be or was made.
[33]
Section 6
of the
Maintenance Act draws
a distinction between two types of complaints:
(a) a complaint against a person legally liable to maintain any
other person and who is failing to so maintain
(section 6(1)(a))
; and
(b) a complaint that good cause exists for the substitution or
discharge of a maintenance order
(section 6(1)(b)).
[34] The type of complaint contemplated in (a) above ought to be
made through a form which corresponds with Form A of the Annexure
to
the Regulations (Regulation 2(1)) and the type in (b) above ought to
be made on or in a form corresponding with Form B of the
annexure to
the Regulations (Regulation 2(b)).
[35] The above distinction is sustained throughout the scheme
provided in Chapters 3 and 4 of the Act.
[36] The complaint lodged by Nicole against the applicant on 9 May
2012 corresponds with a complaint made in terms of section
6(1)(a) of
the Act and is made on a form corresponding with Form A of the
Annexure to the Regulations. In the absence of a complaint
under
section 6(1)(b), it is my considered view and finding that the first
respondent was empowered under Regulation 3(1) to issue
a directive
only to a person against whom a maintenance order “
may
”
or “
might
” be made.
[37] A
prima facie
view exists that at the time that the
directive was issued (i.e. 9 May 2012) the applicant was not the
person against whom a maintenance
order might be made because –
there was in force an existing maintenance order against FW de
Klerk Jnr for the maintenance of the children; and
at the time, no competent court had found that the children’s
natural parents were unable to support them.
[38]
Sections 6
and
16
of the
Maintenance Act may
lend themselves to
an interpretation that a maintenance court has no jurisdiction to
make a further maintenance order against a
further person in respect
of children where another maintenance order in respect of those
children is already in place or in force
against an existing
maintenance debtor.
[39] This is one of the issues that may be adequately interrogated
in a proper review application.
[40]
Section 16
of the
Maintenance Act empowers
the maintenance
court to make maintenance orders of three kinds. Firstly, in terms of
section 16(1)(a)
where no maintenance order is in force a maintenance
order may be made against any person proved to be legally liable to
maintain
any other person(s). Secondly, in terms of
section 16(1)(b)
where there is an existing maintenance order, same may be substituted
or discharged. Thirdly, in terms of
section 16(1)(c)
a maintenance
court may decline to make any order.
[41] I agree with the submission and hold it to be the correct
interpretation of section 16 of the Act that it is not proper or
contemplated by the law or that it was not the intention of the
legislature that section 16 should contemplate or authorise more
than
one maintenance order being in force at the same time against several
maintenance debtors in respect of the same dependants.
The scheme of
Chapters 3 and 4 of the
Maintenance Act does
not in my view
contemplate or authorise simultaneous maintenance enquiries in
respect of the same dependants against different
maintenance debtors.
Neither in my considered view does it contemplate concurrent
investigation which would potentially culminate
or result in
concurrent enquiries.
[42] The definition of
“
maintenance
order
” in my
view supports the above view.
[43] A
Rule 43
order is a species of maintenance orders as
contemplated by the Act. During its subsistence or currency, the
only order which
may be made by a maintenance court under section 16
in my view is an order substituting or discharging that order.
[44] A view thus is propounded herein and which view may also be
finally dealt with by a reviewing court that no order could be
made
under section 6(1)(a) against the applicant emanating from a
complaint laid by the first respondent in these circumstances
where
the Rule 43 order is still in force. What complicates matters
further is that the papers do not point to or show any formal
complaint by Nicole having been before the first respondent when she
issued the directive against the applicant. Doubt thus exists
as to
whether section 6(1)(b) of the Act was complied with. The issue of a
discharge of the Rule 43 order has thus been muddled
or obscured from
clear scrutiny and a court of review may be best placed to hear
argument or evidence thereon, at its discretion.
DUTY OF SUPPORT : GRANDPARENTS
[45] Section 15(1) of the maintenance court provides among others
that –
“[W]
ithout derogating from the law relating to the liability
of persons to support children who are unable to support themselves,
a
maintenance order for the maintenance of a child is directed at the
enforcement of the common law duty of the child’s parents
to
support that child, as the duty in question exists at the time of the
issue of the maintenance order and is expected to continue.
”
[46] It is a well-established principle of the common law that
although grandparents may have a reciprocal duty to support their
grandchildren, such a duty does not come into operation or give rise
to a claim in law, unless and until it is established that
the
parent(s) of those minor children are deceased or are unable to
support them.
[47] A dependant may thus not claim support from a more remote
relative such as grandparents before he/she has gone against the
closer relative, in this case, their father, FW de Klerk Jnr. Such a
claim against a far removed relative in my view only kicks
in once a
competent court has found that the parent is unable to support his
children.
[48] There is evidence in this application by FW de Klerk Jnr that
he is indeed contributing towards the minor children’s
maintenance. He set out a series of figures as representing what he
was doing there towards.
[49] Even the first respondent lent credence to the above claim in
her letter to the applicant’s attorney dated 10 August
2012
(which was only e-mailed to the latter on 13 August 2012). FW de
Klerk’s temporary inability to fully comply with his
obligations was acknowledged.
[50] At paragraph 10.4 thereof the following is recorded:
“
10.4 On the 30
th
July 2012,
whilst conducting an enquiry, I was informed that there is a
possibility that the children’s father might find
employment in
a month’s time.
”
[51] The first respondent went on to state that she decided to issue
the directive against the applicant because –
“…
10.5 No offer of employment or documentary proof
was presented to substantiate this allegation or possible
employment.
”
[52] Why the first respondent did not stand that enquiry down for
one month to take FW de Klerk on his word is not comprehended.
Instead, she just proceeds to issue a directive against the minor
children’s grandfather whom she also confirms have been
helping
out with those minor children unsolicited and without a court order.
[53] At paragraph 8 of her letter e-mailed to the applicant’s
attorney on 13 August 2012, the following is recorded:
“
8.
I had
(
sic
)
further been informed by the applicant that the respondent Mr F W de
Klerk (Snr) is currently paying for the minor children’s
school
fees directly to the service provider and he currently pays R8 000-00
per month in respect of maintenance for both minor
children …
”
[54] A further perusal of the papers filed herein points to a trail
of e-mails to and from the parties herein wherein payments
made to
Nicole on behalf of the minor children are documented.
[55] From Annexures A1 and A2 to the papers herein dated 4 June 2012
and 29 May 2012 respectively, they being e-mails between
Nicole and
the De Klerks, the following amounts having been paid to Nicole and
the children’s school are documented:
55.1 May 2009 = R28 000,00
55.2 1 June 2009 – January 2011 = R308 000,00
55.3 February 2011 = R19 000,00
55.4 March 2011 = R14 000,00
55.5 April 2011 = R14 000,00
55.6 May 2011 – September 2011 = R137 500,00
55.7 October 2011 – December 2011 = R36 000,00
55.8 January 2012 = R7 000,00
55.9 February 2012 – March 2012 = R24 000,00
55.10 April 2012 = R3 000,00
[56] It has not been disputed that most if not all the above
payments were subsidised by the applicant of his own volition.
[57] The circumstances under which the directive was issued against
the applicant have a suspicious ring about them. This Court
cannot,
on the thread-bare evidence gleanable from the papers filed in this
urgent application, determine whether the accusation
by the applicant
that in lodging the complaint, Nicole used the machinery of the
Maintenance Act for
an ulterior purpose, namely, to put unfair and
oppressive pressure on the applicant to take over and/or discharge
the maintenance
obligations imposed on FW de Klerk Jnr in terms of
the still valid and operative and enforceable court order.
[58] That and related aspects can be better interrogated by a court
hearing a review of the issuing of the directive.
[59] The issue relating to why Nicole is claiming R33 180,00 per
month from the applicant, which amount is almost double what
the
Western Cape High Court granted her in the
Rule 43
order can also be
interrogated in that process.
[60] A reciprocal duty of support against grandparents is not only
to be directed at one part of the grandparentage, but at both,
i.e.
the paternal and maternal grandparents. Nothing is being said in
this application about anything having been demanded or
claimed
against Nicole’s parents. That also can be dealt with in the
review proceedings should it be found to be necessary.
[61] In her letter e-mailed to
the applicant’s attorney on 13 August 2012 the first respondent
does not deny explicitly that
the directive was irregular or
improper. This can only be inferred from her refusal to withdraw the
directive. She does not deal
with the alleged refusal by a magistrate
to listen to this point
in
limine
on 30 July
2012. Neither does she deal with the applicant’s contentions as
to why the directive is irregular and/or improper.
[62] The above in my view supports the applicant’s contention
that the directive issued against him by the first respondent
on 4
June 2012 be stayed until a review of its issuing is completed.
[63] It is common cause that such a review cannot be determined by
or before 3 September 2012.
[64] I have looked at the other grounds set out by the applicant why
the proceedings of 3 September 2012 against him ought to
be suspended
until a review process has been dealt with to finality.
[65] Contrary to the first respondent’s doubts or dismissal
out of hand of FW de Klerk Jnr securing employment sooner, there
is
evidence that the latter has been taken into employ by Shenzi Trading
(Pty) Ltd.
[66] The applicant has pledged that the trust he controls, viz the
Fredek Trust will continue to pay the R8 000,00 per month to
the
second respondent, i.e. Nicole, like in the preceding four months as
well as the children’s school fees, which he had
been doing
since January 2012 without prejudice. Such payments will be
gratuitous as they have always been.
RESPONDENTS NOTICES TO ABIDE
[67] On the date of argument of this application, counsel acting on
behalf of the three respondents filed from the bar notices,
to abide
by the first and third respondents as well as notice to reply by the
second respondent. The first and third respondents
were presented by
counsel instructed by the state attorney. The second respondent was
unrepresented.
[68] The first respondent’s notice to abide reads as follows:
“
NOTICE OF
INTENTION TO ABIDE
I, the undersigned, Doloris Groepies, the First Respondent herein
withdraw my Founding Affidavit dated 25 August 2012 and will abide
by
the decision of the above Honourable Court.
The record will be filed shortly.
DATED at JOHANNESBURG ... 27
th
of AUGUST
2012.
”
[69] The third respondent’s notice reads as follows:
“
BE PLEASED TO TAKE NOTICE that the Third Respondent will
abide by the decision of the above Honourable Court.
”
[70] The notice is dated 24 August 2012.
[71] My interpretation of the above two notices to abide was that
this Court should proceed to hear the merits of the application
and
arrive at a decision, which is what I did.
[72] The second respondent’s notice termed “
Reply by
Second Respondent
” reads as follows:
“
I the undersigned, Nicole Noordien De Klerk do hereby make
oath and say that:
I am a
(
sic
)
the minor children’s
(
sic
)
mother and the applicant in the current proceedings in the
maintenance court, Randburg.
The allegations herein contained are within my personal
knowledge, and are both true and correct.
I do not oppose the application brought by the applicant and will
abide by the decision of the Honourable Court.
”
[73] I have taken the above notices’ contents into
consideration when I made the final ruling which is attached hereto
as Annexure “X” authenticated with my signature and the
date being 28 August 2012.
[74] In the circumstances the following order is granted:
“
Having read the papers filed of record and having heard
counsel for the Applicant on the 28
th
of
August 2012, an order is granted in terms of prayers 1, 2 and 3 of
the Notice of Motion in the following terms:
Dispensing with the forms, service and time periods provided for
in the Rules of this Court (including
Rule 6(13))
and granting leave
for this application to be heard as a matter of urgency in terms of
Rule 6(12)
;
Directing that the directive issued by the First Respondent to
the Applicant on 4 June 2012, purportedly in terms of
Regulation
3(1)
of the Regulations relating to Maintenance (GN R1361 in GG
20627 of 15 November 1999), read with
section 44
and
section 6
of
the
Maintenance Act 99 of 1998
, under Case Number 14/3/2-172/2012
(Annexure ‘FWDK’ to the founding affidavit) be stayed
with immediate effect, and
that the First Respondent takes no
further steps to ensure the directive against the Applicant pending
the determination of the
application under Part B of this Notice of
Motion;
Costs will be costs in the main application.
”
_____________________________
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE APPLICANTS
INSTRUCTED BY DE KLERK &
VAN GEND
TYGER VALLEY
c/o NELSON BORMAN &
PARTNERS
JOHANNESBURG
TEL NO: 011 883 6466
FOR THE FIRST RESPONDENT SELF
FOR THE SECOND RESPONDENT SELF
FOR THE THIRD RESPONDENT
INSTRUCTED BY STATE ATTORNEY
JOHANNESBURG
TEL NO: 011 330 7670