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[2021] ZAGPJHC 377
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ED v The Maintenance Officer, Magistrates Court, Krugersdorp and Another (32221/2020) [2021] ZAGPJHC 377 (3 June 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
no:
32221/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
3
June 2021
In
the matter between:
E.D
Applicant
And
THE MAINTENANCE
OFFICER,
MAGISTRATES
COURT, KRUGERSDORP
1
st
Respondent
J.D
2
nd
Respondent
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected herein and is handed down electronically
by circulation to
the Parties/their legal representatives by email and by uploading it
to the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 3 June 2021.
JUDGMENT
BEZUIDENHOUT
AJ:
[1]
The application before me consists of a part A and a part B. Part A
was brought as
an urgent application where the applicant sought that
the first respondent be directed to give reasons for his decision to
institute
an enquiry in the Maintenance Court in terms of section 6
(2) of the
Maintenance Act 99 of 1998
and that the Maintenance Court
be interdicted from proceeding with the enquiry.
[2]
On 6 November 2020, the application came before Judge Maier-Frawley,
who removed the
application from her Court roll due to a lack of
urgency. Written, reconstructed reasons for the removal were provided
on 10 February
2021.
[3]
In part B of the application the applicant wanted to review the first
respondent’s
decision to refer the second respondent’s
complaint under
section 6
(1) of the
Maintenance Act for
a variation
or substitution of the R43 order, for a
section 10
enquiry.
[4]
When the matter came before me, I enquired as to which part of the
notice of motion
I was required to deal with, and the applicant
indicated that part B was before me.
[5]
The main nub of the dispute between the parties was whether the first
respondent’s
decision was one that was capable of being
reviewed under the Promotion of Administrative Justice Act 3 of 2000
(“
PAJA
”).
BRIEF BACKGROUND
[6]
The applicant and second respondent were married to each other on 4
February 1989,
out of community of property with the application of
the accrual system. The marriage disintegrated and the second
respondent instituted
divorce proceedings out of this Court under
case number 2019/10262 in which he interalia, sought a degree of
divorce and a determination
and division of the accrual.
[7]
The applicant opposed the abovementioned relief and filed a
counterclaim. According
to the applicant the divorce action is
complex in that it involves several companies and a Trust, all of
which she joined to the
pending divorce action.
[8]
On 6 August 2019, as part of the pending divorce action, the
applicant issued a R
43 application, seeking maintenance
pendente
lite
for herself and their major but dependent son.
[9]
On 22 October 2019, the parties were directed to deliver Financial
Disclosure forms,
including documentary proof of all expenses relied
upon. The parties complied, however before the R43 application could
be adjudicated
upon, the second respondent filed a supplementary
affidavit. In the affidavit he dealt with the termination of the ABSA
Bank relationship
and the effect it will have on his financial
affairs.
[10]
On 12 November 2019, the R43 application was adjudicated, and an
order issued in terms of which
the respondent paid interim
maintenance (the R 43 order) to the applicant and their son. As part
of the R43 order, the second respondent
was granted leave to return
to this Court on a R 43(6) application, in the event of any
information concerning the closure of the
ABSA Bank account having a
prejudicial effect on the second respondent’s financial
affairs.
[11]
On or about 29 June 2020, the second respondent instead of
approaching this Court by way of a
R 43(6) application, filed a
complaint under
section 6(1)
of the
Maintenance Act for
a
substitution of his maintenance obligation under the R43 order with
the Maintenance Court, Krugersdorp.
[12]
The applicant is aggrieved at the second respondent’s decision
to approach the Maintenance
Court with a complaint to substitute the
R 43 order instead of approaching this Court with a R 43(6) variation
application. The
applicant is furthermore aggrieved at the first
respondent’s decision to refer the second respondent’s
complaint for
a
section 10
enquiry.
[13]
According to the applicant the first respondent had failed to apply
his mind to the submissions
made by the applicant and the physical
evidence that was placed and / or not placed before him.
[14]
The applicant claimed that the second respondent’s substitution
application before the
Maintenance Court is vexatious, an abuse of
the system, in effect an appeal of the R43 order and amount to forum
shopping.
[15]
In this regard the applicant claimed that the R43 application was a
comprehensive application,
thoroughly argued by both parties before
Court and took the ABSA bank closure and the effect thereof on the
second respondent’s
income into account. It is thus a waste of
resources to reproduce same and go through the same issues in a trail
before the Maintenance
Court. If new evidence came to the fore which
affected the second respondent’s income, so the argument went,
the second respondent
should have placed that before this Court via a
R 43(6) application which would be less expensive and yield quicker
results.
[16]
The applicant claimed that she should not be subjected to the
harassment and embarrassment of
the second respondent’s
unmeritorious litigation or lengthy and costly process of a
section
10
enquiry on the same argument presented in the R 43 application.
[17]
The second respondent opposed the application on the basis that the
first respondent’s
decision is not subject to review under PAJA
as:
[17.1] the
Applicant’s rights have not yet been negatively affected by the
first respondent’s referral of the
complaint for a substitution
for an enquiry under
section 10
before the Maintenance Court, as the
process is ongoing, and
[17.2] provision is
made for an appeal process in the Act, which the Applicant can employ
should she be dissatisfied with
the order emanating from the
Maintenance Court.
[18]
The second respondent is furthermore of the view that the first
respondent had conducted his
investigation, engaged with the parties
and gathered the information he required: he had thus complied with
his duties under the
Act. To this end the second respondent alleged
that he, inter alia, provided the first respondent with a list of his
income and
expenditure and three months bank statements which
supported his application for a substitution.
[19]
The second respondent then furthermore, in a letter dated 14
September 2020, supplemented his
reasons for seeking the substitution
and alleged that a comprehensive and complete bundle had been handed
to the applicant.
DELIBERATION
[20]
The applicant referred me to the judgement of Acting Judge Butler in
the matter of EN v FB 2014
JDR 1511 (WCC) where he dealt extensively
with the
Maintenance Act and
regulations on a related but slightly
different aspect to this one. I will not repeat the sections of the
act and the regulations
herein as Butler has set it out with great
detail in his judgement.
[21]
Butler indicated, and I agree with him, that the
Act
and the Regulations contemplate three distinct steps when a complaint
is made. The first step is the making of a complaint.
Section 6(1)
requires only that a complaint be made to the effect specified in
subsections (1)(a) and (1)(b). The Act does not
require that the
complaint be true or otherwise verified.
[22]
The second step involves the investigation of the complaint by the
maintenance officer. The maintenance
officer has no discretion
whether to investigate the complaint as section 6(1) provides that
the maintenance officer shall investigate
the complaint. Neither the
Act nor the Regulations require that there be a formal hearing at
this stage and the manner of investigating
the complaint is left in
the discretion of the maintenance officer.
Sections 6
and
7
of the
Maintenance Act apply
to such an investigation.
[23]
During the investigation stage the respondent may place facts and
evidence before the maintenance
officer and raise argument as to why
the complaint should not be taken further. However, it must be kept
in mind that the second
step is an information gathering process and
not a trail.
[24]
The third step, after the maintenance officer has investigated the
complaint is that he or she
has the power, under
section 6(2)
, to
institute an enquiry. It is self-evident that if the maintenance
officer forms the view that the complaint has no merit, he
or she may
decline to institute an enquiry. Such a decision would put an end to
the matter and would be reviewable.
[25]
The decision to refer the complaint to an enquiry rest with the
maintenance officer and it is
quite conceivable that litigants may
have different views from the maintenance officer as whether there is
sufficient information
and reason to refer a complaint to an enquiry.
[26]
The respondent referred me to the judgment of Acting Judge
Nkosi-Thomas in the matter of CC v
MM JDR 2187 (GJ) where the parties
also sought to review the maintenance officer’s decision to
refer the complaint to an
enquiry before the Maintenance Court under
s 10.
After much thought and deliberation, I find myself in agreement
with the decision in CC v MM.
[27]
The first respondent’s decision to refer the matter to an
enquiry has not affected the
applicant’s rights adversely and
the Court would ordinarily be slow to interfere in incomplete
proceedings.
[28]
Even if I am wrong in my concurrence with the judgment in CC v MM, I
am not persuaded that the
first respondent had omitted to do
something that he was required to do under the Act or Regulations.
[29]
Even though I do not have the first respondent’s reasons for
him referring the matter to
an enquiry it is evident from a reading
of both parties’ affidavits that the first respondent engaged
with both parties’
legal representatives, heard their
representations and argument and came to the conclusion that there
are trailable issues which
he should refer to an enquiry before a
Magistrate.
[30]
Judge Maier-Frawley, at paragraph 16 of her judgment in the urgent
application, referred to the
fact that the Maintenance Court would be
the ideal Court to deal with the second respondents financial affairs
and to determine
whether there had indeed been a deterioration in the
second respondent’s financial position or not.
[31]
One cannot prejudge the outcome of the Maintenance Court hearing and
the parties can suggest
and agree ways to shorten proceedings and
provide the Maintenance Court with the R43 bundles and so forth. The
applicant should
have paid heed to Judge Maier-Frawley’s
judgment and not have forged ahead with part B of the application.
WHEREFORE
THE COURT ORDERS THAT:
1.
The application is dismissed with costs.
J
M BEZUIDENHOUT AJ
Acting
Judge of the High Court
DATE
OF HEARING
:
2 March 2021
DATE
OF JUDGMENT
: 3 June
2021
APPLICANT’S
COUNSEL
: Adv PV
Ternent
RESPONDENT’S
LEGAL REPRESENTATIVE
: Adv NGD
Maritz SC