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[2013] ZAGPJHC 53
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J v J (2011/46076) [2013] ZAGPJHC 53; 2013 (4) SA 350 (GSJ) (28 March 2013)
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REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO: 2011/46076
In the matter between:
J,
SM
Plaintiff
and
J,
CC
Defendant
J U D G M E N T
LAMONT,
J
:
[1] This is an application brought,
by the plaintiff in an action, for the appointment of an independent
legal representative for
a child. The plaintiff and defendant are
married to each other. A child was born of that marriage some
35 years ago. The
child is physically and mentally handicapped and is
dependent upon her parents, the parties, to support her. She is
hereafter referred
to as the dependant daughter.
[2] The claims in the divorce action
encompass:
2.1
A
claim by the plaintiff for a re-distribution of the defendant’s
assets in terms of section 7 of the Divorce Act No 70 of
1979 (“
the
Act
”).
2.2
A
claim for an amount of maintenance for herself.
2.3
A
claim for an amount of maintenance for the dependant daughter.
[3] The plaintiff claims that an
independent advocate should be appointed to assist the dependant
daughter in the action.
The plaintiff states:
“
I hold
the view that considering the nature of the disputes to be determined
at the hearing of the divorce action and more particularly
my claims
for a re-distribution of the respondent’s assets in terms of
section 7(3) … and spousal maintenance a conflict
of interests
may exist between Julie and I as well as the respondent and Julie.
”
[4] There is no issue between the
parties that such needs as the dependant daughter may have will be
met by them. The issue
between the parties is the amount which
each of them should contribute towards those needs.
[5] Such claim as the dependant
daughter has against her parents will be met. This is apparent from
the pleadings in the action.
In the action the plaintiff (mother)
claims that an amount of money should be paid by the defendant
(father) to her for the maintenance
of the dependant daughter.
[6] There is no need for the dependant
daughter herself to institute any claim against either of her parents
as such claim is academic.
She in fact has made no claim in the
action. When I raised the question of whether or not a
curator ad
litem
should be appointed it was dealt with on the basis that no
curator
was required. This concession can only have been made
in light of an acknowledgement by the parties that the needs of their
dependant
daughter will be met.
[7] Section 6(3) of the Act provides
that a court which grants a decree of divorce may make an order in
respect of the maintenance
of a dependant child of the marriage.
This section in my view is intended to and does provide the power for
a Court to make
orders directing parents who are in the process of
seeking a divorce to make payment for major children who are
dependent.
[8] Section 28(1)(h) of the
Constitution provides that every child has the right to have a legal
practitioner assigned to the child
by the State and at State expense,
in civil proceedings affecting the child, if substantial injustice
would otherwise result.
Relief under this section is not sought
in the present matter and I need not consider it further.
[9] Section 14 of the Children’s
Act No 38 of 2005 provides:
“
14.
Every child has the right to bring, and to be assisted in bringing a
matter to court, provided that matter falls within the
jurisdiction
of that court.
”
No relief is sought under this
provision. The child is not a party to the action neither is it
proposed that the child be made a
party. There is no relief which the
child claims and none which the child will receive by way of order.
[10] The submission was made that the
plaintiff’s position is compromised in the action in that the
plaintiff will seek to
obtain a capital re-distribution in as great a
sum as possible and that this will impact on the child’s rights
to be paid
maintenance. The submission was that the plaintiff
accordingly cannot represent the child and herself.
[11] I disagree. The court making the
maintenance order contemplated by the Act will have regard to
the factors affecting
maintenance.
[12] Section 6(1) of the Act requires
a court to be satisfied when it makes the decree of divorce that the
provision made in respect
of the dependent daughter are satisfactory
or at least the best that can be effected. Section 6(3) of the
Act empowers the
court to make such order as to maintenance as it
deems meet. In approaching the question of maintenance the
court will have
regard to:
12.1
The
needs of the dependant daughter.
12.2
The
ability of each parent to meet those needs.
[13] The assessment of the ability of
each parent to meet the needs of the dependant daughter requires an
investigation into the
assets and liabilities, income and expenses
(existing prospective) of each parent. Thereafter the court is
required to perform
an intricate balancing act to determine to what
extent the needs of the dependant daughter can be met by both parents
and the amount
inter se
which each parent is required to
contribute towards those needs.
[14] In the process of considering
the assets and liabilities of the parties the court must have regard
to the order it proposes
making effecting a re-distribution of the
assets. The court is required to consider the position of each
party as it will
be at the end of the re-distribution it directs.
This is logically so as this is the position which will obtain after
the divorce,
which is the period when the maintenance is to be paid.
[15] It is accordingly irrelevant to
the dependant daughter what assets are re-distributed and what the
value of those assets is.
These are matters which affect the
parents not the dependant daughter.
[16] It follows that in my view there
is no conflict between the interests pursued by the plaintiff and
those of the dependant
daughter.
[17] On the aforegoing analysis there
is no reason to appoint anyone to care for the interests of the
child.
[18] It seems to me that the
matter could be approached differently by considering what
contribution the representative for
the child would make at the
hearing. The parties in the process of the divorce will provide
all the relevant data concerning
their assets and liabilities, income
and expenses and the relevant evidence required for trial. To the
extent that there is any
inadequacy in the production of evidence
the parties in the pursuit of their own claims
inter se
will deal with such inadequacies. In the course of doing so the data
required by the court to assess the respective amounts each
parent is
to pay will become apparent.
[19] The rhetorical question then to
be answered is what will the child’s counsel to do? It
seems to me that the child’s
counsel has no function of any
value and will make no contribution of any relevance at the trial.
[20] I have accordingly reached the
conclusion that the application should be dismissed.
[21] I make the following order:
1.
The
application is dismissed.
C G LAMONT
JUDGE OF THE
SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
Counsel A De Wet SC attorneys