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L v L (A3008/2021) [2022] ZAGPJHC 21 (1 February 2022)

78 Reportability
Family Law
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Brief Summary

Maintenance — Appeal against maintenance order — Appellant sought substitution of existing maintenance order due to changed living arrangements and financial circumstances — Court a quo reduced cash maintenance obligation but failed to consider equal sharing of expenses due to changed custody arrangement — Appeal upheld; order substituted to reflect equitable sharing of children's maintenance costs, including school fees and medical expenses.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an appeal to the Gauteng Local Division, Johannesburg, against a maintenance order granted by the Maintenance Court for the District of Johannesburg North. The appeal was directed at the decision of a magistrate sitting in the maintenance court on 3 March 2020, arising from a statutory variation enquiry under the maintenance legislation.


The parties were former spouses. The appellant (the father) had been the applicant in the maintenance court proceedings seeking a substitution/variation of an existing maintenance order. The respondent (the mother) opposed the variation and defended the maintenance court’s order on appeal, also raising preliminary objections to the appeal papers.


Procedurally, the father had approached the maintenance court in May 2019 in terms of section 6(1)(b) of the Maintenance Act 99 of 1998 to substitute an earlier maintenance order (referred to in the judgment as the September 2015 order). The maintenance officer then instituted an enquiry under section 6(2). After the maintenance court granted a revised order in March 2020, the father noted an appeal, accompanied by an application for condonation for late noting of the appeal. On appeal, further condonation issues arose due to technical irregularities identified by the respondent.


The general subject matter of the dispute was the proper apportionment of parental maintenance obligations for two minor children, particularly where the children’s living arrangements had allegedly changed to an equal shared-residence arrangement and where the parties’ incomes had become similar, but the father was ordered to bear most education-related and medical costs.


2. Material Facts


The parties divorced in 2012. Two minor children were born of the marriage, one in 2004 and one in 2006. The divorce order incorporated a settlement regulating, among other things, residence and maintenance. Primary residence was awarded to the mother, and the father was ordered to pay maintenance in a monthly cash amount.


A subsequent order dated 21 September 2015 required the father to pay R10 000 per month to the mother for the maintenance of the children (effectively R5 000 per child). Over the period from 2015 to 2018, the mother carried the day-to-day costs associated with the children primarily residing with her, while the father paid the cash amount and also paid the children’s medical aid. At that stage, the father earned more than the mother.


In 2019, the father’s evidence to the maintenance court included that the children’s school notified him of significant arrear school fees (approximately R140 000 by the end of 2019). To prevent disruption to the children’s schooling, he signed an acknowledgment of debt for the arrears and began directing the R10 000 monthly amount to the school (split between current fees and arrears). He also asserted that during 2019 the children began living with each parent half the time on an alternating-week basis, which he contended changed the practical distribution of day-to-day expenses and reduced the mother’s day-to-day burden.


The father sought a substitution of the existing maintenance arrangements primarily on two asserted bases: first, a changed residence arrangement (equal time in each household); and second, a downturn in his business and reduced ability to shoulder the prior pattern of expenses.


The maintenance court made a number of factual findings that were treated as established for purposes of the appeal court’s analysis. These included that the parties’ incomes were similar, with the father earning approximately R22 500 per month and the mother earning approximately R20 000 per month, and that the children resided for equal periods at each parent’s home. The maintenance court also found that the father was paying the school fees (approximately R7 000), extra-mural costs, medical aid contributions, and transport costs, and that he was servicing the school fee arrears reflected in the acknowledgment of debt.


A further fact relied upon by the appeal court was the maintenance court’s express finding that the September 2015 R10 000 payment was an “all-inclusive” amount and did not include school fees, yet the maintenance court proceeded to impose additional obligations on the father beyond the reduced cash payment.


In addition to the merits, there were relevant procedural facts. The father sought condonation for the late noting of the appeal, attributing the delay to the time taken to obtain written reasons under Rule 51(1) of the Magistrate’s Court Rules and to obtain the transcript of the maintenance enquiry. The respondent objected to condonation but advanced no substantive basis beyond opposition. The respondent also raised preliminary objections that the father’s attorney was not authorised to sign the power of attorney and that the attorney had commissioned the father’s affidavit; the appeal court accepted these as irregularities but not fatal.


3. Legal Issues


The central legal questions were directed at whether the maintenance court committed reviewable or appealable error in varying an existing maintenance order under the Maintenance Act, and whether the order ultimately made was consistent with the statutory framework governing child maintenance.


The appeal court was required to determine whether the maintenance court had acted ultra vires by “clarifying” the September 2015 order in a manner not permitted by the relevant empowering provisions, and whether this constituted a misdirection justifying appellate interference.


A further question was whether the maintenance court erred by declining to give legal effect, in its fairness assessment, to the changed living arrangements (equal shared residence) on the basis that the arrangement was “informal” and not embodied in a court order. This involved the application of legal standards (good cause for substitution; fairness and apportionment principles) to the facts found.


The appeal also concerned whether the maintenance court properly applied section 15 of the Maintenance Act when determining what was fair in all the circumstances, in circumstances where it reduced the cash component but imposed additional full-cost obligations on the father, and made no corresponding order regarding the mother’s contribution. This aspect involved a value judgment guided by statutory factors, but the appeal court approached it through the lens of misdirection, failure to consider relevant circumstances, and improper apportionment contrary to statutory principle.


In addition, there were procedural issues concerning condonation (late noting of the appeal and condonation for technical non-compliance with formal requirements) and the disposition of the respondent’s points in limine.


4. Court’s Reasoning


On condonation for the late noting of the appeal, the appeal court accepted that the delay was explained by the time required to obtain the written judgment under Rule 51(1) and to obtain the transcript, which the father contended was necessary because evidence under oath formed part of the record needed for the appeal. The court was satisfied that the delay was attributable to procedural processes rather than to the father’s dilatoriness, and that the respondent did not demonstrate prejudice. On that basis, condonation was granted.


Regarding the respondent’s two points in limine, the appeal court accepted that the alleged irregularities (authorisation for signing the power of attorney and the commissioning of the affidavit) were valid as technical objections. However, it held that they were not of such a nature as to be fatal to the appeal on its merits. It granted condonation for non-compliance, dismissed the points in limine, and made no costs order in relation to those preliminary issues.


On the merits, the appeal court began from the principle that appellate courts do not readily interfere with maintenance orders, but may do so where there has been a misdirection or irregularity, relying on authority to that effect. The statutory context emphasised that a maintenance order may be substituted or discharged on “good cause” shown under section 6(1)(b) of the Maintenance Act, and that the determination of child maintenance must reflect the joint parental duty and apportionment according to means under section 15, with the amount being one the maintenance court considers fair in all the circumstances.


The appeal court held that the maintenance court’s approach to “clarifying” the September 2015 order exceeded what was permitted under section 36(1)(c) of the Magistrates’ Courts Act 32 of 1944, which provides for the correction of patent errors in judgments where no appeal is pending. The appeal court reasoned that, on the facts, there was no occasion that justified the maintenance court acting suo motu to clarify the earlier order in the manner it did; rather, the matter before it was a statutory application for substitution based on changed circumstances and inability to maintain previous contributions. This overreach was treated as a misdirection.


The appeal court also found the maintenance court’s reliance on M v M (A301/17) [2018] ZAGPPHC 607 to be misplaced. It accepted the father’s submission that the authority was distinguishable because it concerned spousal maintenance post-divorce, whereas the present matter concerned the maintenance of minor children. The appeal court considered that the statutory considerations governing child maintenance under section 15 were central, and that the maintenance court’s reasoning did not properly engage the necessary apportionment and fairness enquiry in light of its own factual findings.


In relation to the changed living arrangements, the appeal court held that the maintenance court misdirected itself by treating the absence of a court order formalising the arrangement as a reason to discount it for purposes of maintenance apportionment. Relying on the principle that variation may be ordered where conditions have changed such that it would be unfair for the existing order to stand, the appeal court concluded that the equal shared-residence arrangement (as found by the maintenance court itself) constituted a relevant change that should have been taken into account and could support substitution.


The appeal court further held that the maintenance court failed to properly consider all relevant circumstances when determining what was fair under section 15(3)(b). It criticised what it described as an overemphasis of the respondent’s financial constraints and an understatement of the appellant’s overall obligations, leading to an outcome where the father bore almost all the practical maintenance burden despite similar incomes and equal shared residence. The appeal court considered that fairness required a balanced assessment of both parties’ means and contributions. It identified as material omissions the failure to consider the respondent’s living arrangement involving a partner contributing to expenses, and the failure to approach the respondent’s offshore investment in a manner consistent with ensuring that parental obligations were not effectively shifted onto the other parent.


A further internal inconsistency was highlighted in the maintenance court’s reasoning: after finding that the R10 000 was an “all-inclusive” amount, it nonetheless ordered the father to pay additional categories of expenses in full. The appeal court treated this as undermining the rational basis of the maintenance court’s order and as reinforcing the presence of misdirection.


Having found misdirection and misapplication of the statutory framework, the appeal court considered itself entitled, and required, to interfere with the maintenance court’s order and to substitute an order that reflected the statutory principles of joint duty, apportionment according to means, and fairness in the circumstances as found.


5. Outcome and Relief


The appeal court granted condonation for the late noting of the appeal. It also granted condonation for the technical irregularities raised in the respondent’s preliminary points, dismissed those points in limine, and made no costs order in respect of them.


On the merits, the appeal was upheld with costs. The maintenance court’s order was set aside and substituted with an order that each parent pay 50% of specified education-related expenses directly to service providers, that the father retain the children on his medical aid or hospital plan, and that each parent pay 50% of any reasonable excess medical expenses.


The substituted order required equal sharing of school fees, schoolbooks, stationery, uniforms, extra-mural activities, and extra lessons, and provided for direct payment to providers to the extent of each party’s half share.


Cases Cited


Punell v Purnell [1993] ZASCA 22; 1993 (2) SA 662 (A).


Thompson v Thompson 2010 (3) SA 211 (W).


M v M (A301/17) [2018] ZAGPPHC 607.


Mentz v Simpson 1990 (4) SA 455 (A).


Bordihn v Bordihn 1956 (2) PH B32 (A).


Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194.


Roos v Roos 1945 TPD 84.


Legislation Cited


Maintenance Act 99 of 1998.


Magistrates’ Courts Act 32 of 1944.


Rules of Court Cited


Rule 51(1) of the Magistrate’s Court Rules.


Held


The High Court held that the maintenance court committed material misdirection in the manner it dealt with the variation application, including exceeding its powers by purporting to “clarify” the earlier maintenance order outside the proper statutory scope, and by failing to apply the statutory framework for child maintenance fairly and consistently with its own factual findings.


It held further that the maintenance court misdirected itself by declining to take account of the children’s changed living arrangements on the basis that the arrangement was informal and not embodied in a court order, notwithstanding that the maintenance court itself found the children resided equally with both parents.


The High Court held that a fair outcome, consistent with the parents’ joint duty and apportionment according to means, required equal sharing of the main education-related expenses and reasonable excess medical expenses, with the father retaining the children on his medical aid or hospital plan.


LEGAL PRINCIPLES


The judgment applied the principle that an appellate court will not readily interfere with a maintenance order, but will do so where there has been a misdirection or irregularity materially affecting the result, consistent with the approach described in the cited authorities.


It applied the statutory principle under the Maintenance Act 99 of 1998 that an existing maintenance order may be substituted or discharged on good cause shown, and that in determining child maintenance, parents incur a joint duty of support which must be apportioned according to their respective means, with the ultimate amount being one the maintenance court considers fair in all the circumstances.


It applied the principle that maintenance variation may be justified where there has been a change in conditions such that it would be unfair for an existing order to remain in its original form, and that relevant changes may include altered living arrangements affecting the practical sharing of day-to-day child-related expenses.


It applied the principle that a magistrates’ court’s power to correct or adjust an order is constrained by statute, and that purported “clarification” beyond the scope of correcting patent errors (and outside the proper variation enquiry) may constitute an ultra vires act and misdirection warranting appellate intervention.

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[2022] ZAGPJHC 21
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L v L (A3008/2021) [2022] ZAGPJHC 21 (1 February 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: A3008/2021
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED
Head on: 2 November
2022
Delivered on: 1
February 2022
In the matter between:
L[....] J[....]
B[....]

Appellant
and
L[....]
T[....]

Respondent
JUDGMENT
VUMA, AJ
INTRODUCTION
[1]
This is an appeal against the decision handed down by the learned
Magistrate Ms Rughoo-Nadan
(hereinafter “the court
a quo
”),
sitting in the Maintenance Court for the District of Johannesburg
North on 3 March 2020. The decision concerns maintenance
payments for
the parties’ two minor children.
[2]
Accordingly, the applicant seeks an order in the following terms:
2.1.
Condonation of the late noting of the appeal is granted;
2.2.
The appeal is upheld with costs;
2.3.
That the order of the court
a quo
is substituted with an order
substituting the order of the Maintenance Court dated the 21
September 2015 as follows:
2.3.1.
Each party is ordered to pay one half (50%) of the school fees,
schoolbooks, school stationery, school uniforms, extra mural

activities and extra lessons for Z[....] L[....] and for S[....]
A[....] L[....];
2.3.2.
Each party’s half share of the fees for schooling, for extra
mural activities and for extra lessons is to be paid directly
to the
relevant service provider;
2.3.3.
The appellant will retain Z[....] L[....] and S[....] A[....] L[....]
on his medical aid or hospital plan; and
2.3.4.
Each party is ordered to pay one half (50%) of any reasonable excess
medical expenses for Z[....] L[....] and for S[....]
A[....] L[....].
[3]
On 27 May 2019 the appellant (who was the applicant in the court
a
quo
) approached the Maintenance Court in
terms of
section 6(1)(b)
of the
Maintenance Act 99 of 1998
for a
substitution of the maintenance order granted in September 2015 in
respect of the maintenance of the two minor children.
This
application led to the maintenance officer instituting of an enquiry
in the Maintenance Court in terms of
section 6(2)
of the Act.
[4]
In terms of the September 2015 order the appellant was required to
pay R10 000.00
each month to the respondent towards the
maintenance of the two minor children.
FACTUAL
BACKGROUND
[5]
Mr and Mrs L[....] who are the parties herein divorced in 2012. There
are two minor
children born of the marriage: Z[....] L[....] born
2004 and S[....] A[....] L[....] born 2006.
[6]
Included in the divorce order was a settlement agreement that was
made an order of
court. The settlement agreement included an
agreement on maintenance for, and residence of, the minor children.
Primary residence
was awarded to Mrs L[....] (the respondent) while
Mr L[....] (the appellant) was ordered to make a payment of
R10 000.00 in
respect of maintenance of the children. It is this
verry settlement agreement that was made an order of court, now
referred to
as the September 2015 order.
[7]
The 21 September 2015 order required the appellant to pay a sum of
R10 000.00
monthly to the respondent for the maintenance of the
minor children (R5000.00 for each child). Effectively between 2015
and 2018,
the respondent incurred the bulk of the costs of the
children’s day to day expenses as they primarily resided with
her. Over
and above the R10 000.00, the appellant paid the
children’s medical aid. At this time the appellant was earning
more
than the respondent.
[8]
From 2015 to 2018 and in compliance with the September 2015 order,
the appellant paid
the R10 000.00 amount directly to the
respondent.
CONDONATION
[9]
The appellant seeks condonation for the late noting of the appeal,
citing both the
provision of the written judgment in terms of
Rule
51(1)
of the Magistrate’s Court Rules on 29 June 2020 and the
transcripts of the court
a quo
enquiry on 2 September 2020 as
the reason for the delay. He submits that the obtainment of the
transcript was a necessary precursor
for the noting of this appeal
given that the evidence given under oath was necessary. He further
submits that the delay in the
prosecution of this appeal has not
prejudiced the respondent.
[10]
The respondent submits that she objects to the application for
condonation yet state she does
not have anything to say.
[11]
In the premises, having considered the submissions by both parties, I
am satisfied that the late
noting of the appeal was not created by
appellant but by the systematic processes that first had to take
place before the appellant
could proceed to note his leave to appeal.
On the other hand, I am satisfied that the respondent did not suffer
any prejudice due
to the delay.
[12]
In the result I am satisfied that the appellant has shown good cause
for condonation. Accordingly,
the condonation application is granted.
ISSUES
FOR DETERMINATION
[13]
The appellant raises the following issues for determination:
13.1.
The ‘clarification’ of the September 2015 order;
13.2.
The failure to take into account the changed living arrangement of
the children; and
13.3
The order that ought to have been made as it is fair by taking into
account all the circumstances of the case.
APPLICATION
IN THE COURT
A QUO
[14]
In May 2019 the appellant approached the court
a
quo
for substitution of the September 2015 order in terms of
section
6(1)(b)
of the maintenance Act 99 of 1998. Section 6(1)(b) provides
for a substitution or discharge of an existing maintenance order on

the basis that good cause exists to do so. The appellant raised two
grounds for the substitution:
14.1.
The living arrangement of the minor children had changed such that
instead of only visiting the appellant, the children were
now living
with the appellant half of the time and the parties are thus
alternating weeks with the children.
14.2.
The appellant is unable to bear the total education costs for both
minor children due to the downturn in the economy.
[15]
Following the above section 6(2) complaint by the appellant
culminating in the section 6(1)(b)
enquiry, the respondent did not
lodge a complaint nor a counterclaim.
[16]
In its determination of the application for substitution, the court
a
quo
found that the appellant’s decline in earnings
constituted good cause to reduce the monthly cash contributions
required of
him from R10 000.00 to R2000.00. Despite this
finding, it (the court
a quo
) however declined to factor in
the changed living arrangement regarding the minor children. In so
doing the court
a quo
did what it describes as ‘clarifying’
the September 2015 order which the appellant sought to substitute. It
then ordered
that the appellant was to also pay in full for both
minor children:
16.1
school fees;
16.2
medical aid;
16.3
transport costs; and
16.4
half the reasonable expenses not covered by the medical aid.
[17]
The following submissions were made by the appellant before the court
a quo
for the substitution application/enquiry:
17.1.
In 2019 the children’s school contacted him and advised that
the school fees were in arrears, totaling around R140 000.
00 by
the end of 2019. The respondent had not ben paying any school fees
from the amount paid over to her by the appellant. In
order to keep
the children in school the appellant agreed to sign an acknowledgment
of debt for arrears. The appellant then began
paying the R10 000.
00 per month that he had been paying to the respondent directly to
the school (that is, R7 000. 00
in respect of current fees and
R3000. 00 in respect of the arrears).
17.2.
The children had expressed a desire to spend more time with the
appellant. The parties decided that the children would spend
half of
their time with the appellant and half with the respondent by
alternating custody of the children each week.
17.3.
Resultantly, the natural corollary of the changed living arrangement
was that the appellant took on half of the expenses associated
with
the children’s day to day maintenance, whilst the respondent’s
expenses in this regard were reduced.
17.4.
The above living arrangement came during 2019 when the appellant’s
business was affected by the economic downturn. This
meant the
appellant could no longer make as much money as he did before. His
income was very marginally higher than the respondent’s,
almost
the same.
[18]
The appellant argued before the court
a quo
that following the
above arrangement, each parent resultantly shoulders the children’s
day to day living expenses in roughly
equal shares. This invariably
meant a reduction of the respondent’s financial burden whilst
increasing the appellant’s.
The appellant has continued to pay
the children’s medical aid contributions and is paying the
children’s school fees
and all school-related expenses
following the respondent’s failure to make payments in this
regard. The appellant’s
financial contribution is accordingly
much higher than the respondent’s despite the fact that the
parents now earn very similar
incomes. Based on this, the appellant
sought a substitution of the Maintenance Order to reflect the more
equitable state of affairs.
COURT
A QUO
’s FINDINGS, ORDER AND REASONS FOR ITS JUDGMENT
[19]
The court
a quo
found during the maintenance enquiry that:
19.1.
both parties earn similar amounts;
19.2.
the appellant has a monthly income of R22 500.00 whereas the
respondent’s is R20 000.00;
19.3.
the children reside for equal periods of time at each parent’s
place of abode;
19.4.
the children’s school fees of R7000.00 are being paid solely by
the appellant;
19.5.
the children’s extra mural activities are being solely paid for
by the appellant;
19.6.
the medical aid contributions for the children are being paid by the
appellant;
19.7.
the children’s school transport costs are being paid for by the
appellant;
19.8.
the appellant is paying off the arrear school fees, the sum of which
is as reflected in the acknowledgment of debt;
19.9.
The September 2015 order ordering the appellant to make payment of
R10 000.00 to the respondent towards the maintenance
of the
children was an all-inclusive sum, that is, it did not include money
for the payment of school fees;
19.10.
Both parents should be equally liable for the maintenance of the
children.
[20]
Having found as it did in the preceding paragraph, the court
a quo
ordered as follows:
“
That
the applicant (Mr L[....]) shall pay with effect on the 1
st
April 2020 on a monthly basis towards the maintenance of the
complainant and or of the following children the sum of R1000.00 in

respect of Z[....] L[....], born on the 11
th
August 2004 and a R1000.00 in respect of S[....] A[....] L[....] born
on the 25
th
of February 2006. The following order is made as per annexure A. Mr
L[....] is ordered to pay the school fees of both the minor
children.
The cost of the medical aid or hospital plan - hospital cover for
both minor children. The cost of the transport fees
for the minor
children and half of the cost of the reasonable expenses or
medication not covered by the medical or hospital plan
for both minor
children. The first payment is to be made on the 1
st
April 2020 and after that on or before the 7
th
of each month succeeding to Mrs L[....] into her bank account
.”
[21]
In its written reasons, the court
a quo
stated that:
21.1.
In regard to the downturn of the economy reason advanced by the
appellant, it (the court
a quo
) reduced the component from R10
000.00 to R2000.00 since it would not have been just to discharge the
cash component completely
since the appellant was still earning an
income.
21.2.
In regard to the minor children arrangement living half the month
with each parent by alternating, the respondent made it
her very
clear that she did not consent to that nor to the 50%
re
the
school fees, books, uniforms, stationery, extra mural activities,
extra lessons, medical expenses and transport as proposed
by the
appellant.
21.3.
Looking at the issue relating to school fees, stationery, books,
uniform, extra mural activities, extra lessons, medical expenses
and
transport, it did not find it just that these expenses be shared
especially since the 50% living arrangement with the minor
children
was an informal one. Afterall, the appellant had been paying for all
these since the 21 September 2015 court order, and
further that the
appellant even stated that he could put the children on a hospital
plan.
[22]
The court
a quo
further accepted that the appellant’s
monthly expense calculations in respect of the children totaled an
amount of R31 376.00.
GROUNDS
OF APPEAL
[23]
The appellant raises the following grounds of appeal:
23.1.
The court
a quo
erred in fact by assuming that the appellant’s individual
monthly expenses totaling over R37 000.00 were the total
expenses incurred by both parents towards the children’s
maintenance, which mistake constituted a material misdirection on
the
court
a quo
’s
part.
23.2
The court
a quo
further erred when it made no finding in regard to the respondent’s
present contributions. Despite the respondent having
provided the
court
a quo
with
a list of her monthly expenses in relation to the children which came
to R1 700.00, it (the court
a quo
)
viewing the list as “insufficient” and disregarding it
entirely.
23.3
The court
a quo
erred in law in that:
23.3.1.
It took into account that the respondent is under debt review but
failed to take into account the fact that she lives with
her partner
who contributes to her expenses.
23.3.2.
It failed to make any finding concerning the respondent’s
deliberate investment of R2 million off-shore in an inaccessible

financial vehicle.
23.3.3.
It found that ‘
in the absence of a
court order it cannot be party to the informal agreement [pertaining
to shared residence] which is subject to
change”.
23.3.4.
it accepted the respondent’s argument that the R10 000.00
maintenance payable by the appellant in terms of the
September 2015
order did not include school fees and that the appellant had stopped
paying maintenance.
THE
APPELLANT’S CASE ON APPEAL
[24]
In regard to the ‘clarification’ of the September 2015
order by the court
a quo
, the appellant submits that it stands
to be set aside in that the Magistrate acted
ultra vires
her
powers as provided for by legislation. The appellant further argues
that the court
a quo
’s reliance on
M v M
below is wrong in law and the ‘clarification’ itself is
misleading since
M v M
involves maintenance that
was being paid by an ex-spouse to another post-divorce whereas this
matter deals with maintenance of
minor children. It is common cause
that the nature of an enquiry into maintenance at divorce will differ
from that of a subsequent
enquiry into variation, which thus makes it
distinguishable.
M v M
does not
concern children. It is only
section 15
of the
Maintenance Act that
sets out considerations to be taken into account by the Maintenance
Court when determining not what is just but fair in all the

circumstances of the case. In terms of the
Maintenance Act, all
that
the appellant had to show was good cause for the substitution, which
he did and the court
a quo
also found to that effect. Despite
the court
a quo
having found good cause to reduce the
R10 000.00 in the September 2015 order to R2000.00, it failed to
mention if there is
good cause to increase the appellant’s
obligations.
[25]
In regard to the failure by the court
a quo
to take into
account the changed living arrangement of the children, the appellant
argues that it is not a requirement that the
change in the
circumstances must have been brought about by a court order. The
court
a quo
should have found that the changes in the living
arrangement constitute good cause to discharge the cash portion of
the maintenance
order in its entirety; and to consider substitution
of the order with one that provided for the half share of payments
sought by
the appellant.
[26]
In regard to the argument that the court
a quo
’s order
has to be fair by taking into account all the circumstances of the
case, the appellant submits that once a party
has shown good cause,
all that a court has to do is to have regard to the prescripts of
section 15(3) of the Act as appears below
herein regarding what needs
to be considered by the Maintenance Court for determining the amount
to be paid as maintenance in respect
of a child. Section 15(3)(b) of
the Act provides that “
Any amount so determined shall be
such amount as the maintenance court may consider fair in all the
circumstances of the case
”. The court
a quo
acknowledged
that his income was R22 500.00 because of the downturn and the
respondent’s R20 000.00. Whereas the
court
a quo
took
into account the fact that the respondent was under debt review, it
however failed to factor in the fact that she was living
with a
partner who was contributing towards her expenses including at least
half her rent as well as her off-shore R2 million investment.
[27]
The April 2020 order effectively means that the appellant was ordered
to pay over R15 400.00
in respect of maintenance whilst the
respondent was not ordered to pay anything. Instead, the court
a
quo
overemphasized the respondent being placed under debt review
which left her with an income of R14 429.00 whilst on the other

hand failing to take into account the appellant’s other
expenses, for example, car repayments. In regard to the respondent’s

off-shore investment of approximately R2 million, the court found
that she had no access to it. He argues that by investing her
money
off-shore, the respondent had deliberately cut down her legal
obligations towards her children which should not be countenanced.
He
argues that the amount determined by the court
a quo
is not
fair given all the circumstances of the case. He argues that a fair
order would been the one prayed for in terms of the
relief he seeks.
THE
RESPONDENT’S CASE ON APPEAL
[28]
THE RESPONDENT RAISES TWO POINTS
IN LIMINE
:
28.1.
She argues that the appellant’s attorney was not authorized to
sign the Power of Attorney; and
28.2.
That the appellant’s attorney commissioned his affidavit, both
of which constitutes a technical irregularity.
[29]
In regard to the first point
in limine
, the appellant argues
that the attorney had the power to sign his Power of Attorney by
virtue of the Power of Attorney he (the
appellant) had previously
signed authorizing her to do so.
[30]
In regard to the appellant’s attorney commissioning his
affidavit, the appellant argues
that the technical irregularity which
it allegedly constitutes does not require a substantive application
and asks for condonation
by the court in the event the court is not
satisfied with his submissions.
[31]
In regard to the two points
in limine
raised by the
respondent, I find that the two points
in limine
raised by the
respondent are valid, yet not to the extent to bring fatality to the
merits of the appeal. Accordingly, condonation
for the non-compliance
by the appellant is granted. In the result, both points
in limine
are dismissed with no order as to costs.
THE
RESPONDENT’S CASE ON MERITS
[32]
The respondent argues that to date the appellant has not paid her the
R2000.00 maintenance for
the minor children as per the 3 March 2020
order, which order he is appealing. She argues that the court
a
quo
’s order is not wrong since it is very reasonable,
especially in light of the fact that she never agreed to the 50%
shared
expenses or payment arrangement with the appellant. The reason
why the school fees are in arrears is because the appellant never

paid her the R10 000.00 for this expense, so it is the appellant
who brought the R140 000.00 arrear account upon himself
by
failing to comply with the September 2015 order. She also pays for
extra school lessons, including the children’s dental
braces.
Regarding the off-shore investment, she used at the time she was
unemployed.
[33]
The respondent further argues that the appeal should not succeed
since she cannot afford the
50% costs per child, unless the appellant
first paid her the outstanding maintenance amount of approximately
R140 000.00.
STATUTORY
FRAMEWORK
[34]
Section 36(1)(c) of the Magistrate’s Court Act 32 of 1944
provides, in relevant part, that:
“
The
court may, upon application by any person affected thereby, or, in
cases falling under paragraph (c), suo motu-
(c)
correct patent errors in any judgment in respect of
which no appeal is pending;
.”
[35]
Section 6(1)(b)
of the
Maintenance Act provides
for the substitution
or discharge of an existing maintenance order on the basis that “good
cause exists to do so”.
[36]
The Supreme Court of Appeal’s decision in
Punell v
Purnell
[1993] ZASCA 22
;
1993 (2) SA 662
(A) at 667 A - D
made it clear that in such a case the old order ceases to operate,
while the new order operates in its place.
[37]
In
Thompson v Thompson
2010 (3) SA 211
(W)
at 19
the court stated that:
“
To
the traditional common-law criteria (the need for maintenance and the
ability to pay) can now be added the principles of fairness,
equity
and sensitivity, which, as amended, were introduced by the new Act
”.
[38]
Professor JL van Zyl in
Joubert (ed) The Law of South Africa
vol 6
(first reissue) at 21a
describes
‘good cause’
as follows:
“
As
far as the meaning of “good cause” (or sufficient
reason”) is concerned, it is the view of the courts that
a
precise definition of the term is neither possible nor desirable, but
that the particular circumstances of each case must be
considered”
.
[39]
Section 15 of the Maintenance Act provides:
“
(3)(a)
Without derogating from the law relating to the support of children,
the maintenance court shall, in determining the amount
to be paid as
maintenance in respect of a child, take into consideration –
(i)
that
the duty of supporting a child is an obligation which the parents
have incurred jointly;
(ii)
that the
parents’ respective shares of such obligation are apportioned
between them according to their respective means; and
(iii)
that the
duty exists, irrespective of whether a child is born in or out of
wedlock or is born of a first subsequent marriage.
(b)
Any amount so determined shall be such amount as the maintenance
court may consider fair in all the circumstances of the case.
[40]
In
M v M
(A301/17) [2018] ZAGPPHC 607at
para 12
, the court held that:
“
It
is trite that the court….makes a maintenance order which it
finds ‘just’….In considering what is just,
this in
effect signifies that the court exercises a judicial discretion when
coming to a conclusion what is correct and appropriate
and fair and
reasonable in the circumstances of the case…
.”.
[41]
In
Mentz v Simpson
1990 (4) SA 455
(A) at
456 E -J
, the court held that a court of appeal does not
readily interfere with a maintenance order awarded in a trial court,
but will if
there is a misdirection or irregularity.
[42]
In
Bordihn v Bordihn
1956 (2) PH B32 (A)
the court held that the approach to an appeal of the present kind
should be along the lines adopted in compensation cases, which

approach was outlined in
Sandler v Wholesale Coal Suppliers
Ltd
1941 AD 194
at 200:
‘
But
it does not follow that a court of Appeal must renounce its functions
as a Court of Appeal by deferring to the estimate of the
trial court
in a case of doubt or difficulty….Seeing that ban appeal is a
hearing of all the questions involved in the action,
including the
quantum of damages, a Court of Appeal must necessarily decide upon
the figure which it thinks should have been awarded.
When it has done
that, if the figure arrived at, considered from all aspects, differs
substantially from the figure awarded, the
Court of Appeal must give
effect to it. If it does not do so, it is deferring to the judgment
of the trial Judge and not carrying
out its functions as a Court of
Appeal by exercising its own judgment upon a matter which is before
it on appeal.
’
[43]
In
Roos
v Roos
1945
TPD 84
at 88
,
Schreiner J (as he then was) stated that:
“
Variation
will be ordered not only in cases of breach by either party but
because there has been such a change in the conditions
that existed
when the order was made, that it would now be unfair that the order
should stand in its original form
”.
ANALYSIS
[44]
It is common cause that a court of appeal does not readily interfere
with a maintenance order
awarded in a trial court, but will if there
is a misdirection or irregularity, as was held in
Mentz
above.
[45]
Section 15
of the
Maintenance Act provides
the conditions that give
rise to parental duty to support a child. From these and as relates
to the determination for a substitution
of an existing maintenance
order and to the extent that good cause exists for the sought order,
it will grant same by having regard
to the relevant considerations.
[46]
In regard to the issue of substitution ‘clarification’ by
the court
a quo
, I am of the satisfied that it exceeded the
bonds entitling it to do same in light of what
section 36(1)(c)
of
the Magistrate’s Court Act (“MCA”) permits, this
constituting a misdirection on its part. Before the court
a quo
,
there were circumstances which I find justified its discharge or
variation of the September 2015. When regard to section 36(1)(c)
of
the MCA and the facts of the matter, there was no occasion justifying
the court
a
quo’s order
suo motu
September 2015
order clarification.
[47]
Furthermore, the court
a quo
’s import and reliance on
M
v M
above to justify its March 2020 order
is incorrect, primarily because
M v M
is
distinguishable given that it deals with maintenance by an ex-spouse
post-divorce whereas
in casu
the matter involves the
maintenance of children. The court
a quo’s
failure to
justify an increase in the maintenance obligations of the appellant
despite a finding of good cause for a substitution
is untenable.
This
it did without even trying to give reasons in its impugned order for
the decrease in relation to the respondent’s maintenance

obligation. This approach contravenes the purport of
section 15
of
the
Maintenance Act in
the following respects:
47.1.
the parents have a joint obligation to support their children;
47.2.
the parents’ respective shares are to be apportioned according
to their respective means;
47.3.
the determination of an amount for maintenance must be fair; and that
47.4.
all circumstances of the case must be considered.
[48]
When regard is had to what the court
a quo
notes in its
ex
tempore
judgment, namely, that the R10 000.00 towards
maintenance of the children was an all-inclusive amount, one fails to
understand
why it would have in the result ordered the appellant to
pay all the other additional expenses.
[49]
In so far as failure by the court
a quo
to take into account
the changed living arrangement of the children and taking into
account what the court held in
Roos v Roos
above, I am satisfied that the court
a quo
misdirected itself
by reasoning that unless it is the change in the circumstances have
been brought about by a court order, same
is unenforceable by a
court. Accordingly, the court
a quo
should have found that the
changes in the living arrangement constitute good cause for at least
substitution.
[50]
In regard to the argument that the court
a quo
’s order
ought to be fair by taking into account all the circumstances of the
case pursuant to
section 15(3)(b)
of the
Maintenance Act, I
am
satisfied that the court
a quo
failed to take into all the
relevant and existing circumstances that would have enabled it to
come to a fair conclusion. For the
court to over-amplify the
respondent’s monthly obligations and understate the appellant’s
cannot be countenanced. It
would have been fair for the court
a
quo to also factor in both the respondent’s off-shore
investment and the appellant’s expenses to reach a fair payable

maintenance. By failing to strike a balance between the parties’
respective means and expenses in a fair, just and transparent
manner,
such conduct constitutes a misdirection on the part of the court a
quo.
It misapplied the law. Contrary to the provisions of
section 15
of the
Maintenance Act and
as relates to her off-shore, it
appears the respondent is being allowed to extricate herself of her
maintenance obligation at the
expense of the appellant. The court
a
quo
also failed to take into account the contribution the
respondent was receiving by staying with her partner, which omission
does
not evidence fairness at all.
[51]
for the court
a quo
to order the appellant to bear almost 95%
of the maintenance expenses of the children is not only unfair but
also unequitable. The
court
a quo
’s reasons and
findings, including its order, do not explain the legally acceptable
reasons why they should withstand the
scrutiny raised by the
appellant.
[52]
When regard is had to the respondent’s case, she insists that
but for the respondent neglecting
to pay the R10 000.00 school
fees as per the September 2015 order, the arrear amount would not
have been existent. This she
argues in contradiction of the court
a
quo’s
finding that the September 2015 order in respect of
the R10 000.00 maintenance payment was an all-inclusive one.
Other than
that, nothing much turns on her arguments.
[53]
In the premises I am satisfied that the court
a quo
’s
clarification stands to be set aside in that the Magistrate acted
ultra vires
her powers as provided for by legislation.
Furthermore, I am satisfied that the appellant has made out a case
that sustains the
other two issues he raises in his grounds of
appeal.
[54]
For the above stated reasons, this court is enjoined to interfere
with the court
a quo
’s order and accordingly grants the
relief sought by the appellant.
[55]
In the result I make the following order:
ORDER
1.
The appeal is
upheld with costs.
2.
The court
a
quo’s
order
is set aside and substituted with the following order:
“
2.1.
Each party is ordered to pay one half (50%) of the school fees,
schoolbooks, school stationery, school uniforms, extra mural

activities and extra lessons for Z[....] L[....] and for S[....]
A[....] L[....].
2.2.
Each party’s half share of the fees for schooling, for extra
mural activities and for extra lessons is to be paid directly
to the
relevant service provider.
2.3.
The appellant will retain Z[....] L[....] and S[....] A[....] L[....]
on his medical aid or hospital plan.
2.4.
Each party is ordered to pay one half (50%) of any reasonable excess
medical expenses for Z[....] L[....] and for S[....] A[....]

L[....].”
__________
L.
B. VUMA
ACTING
JUDGE OF THE GAUTENG DIVISION, JOHANNESBURG
I
agree and it is so ordered:
_________________
A.
MAIER-FRAWLEY
JUDGE
OF THE GAUTENG DIVISION, JOHANNESBURG
Heard
on: 2 November 2021
Judgment
delivered: 1 February 2022
Appearances
For
Appellant: Adv. A.F. Ashton
Instructed
by: SALCO Attorneys Inc.
For
Respondent: Ms L[....] T[....] (In Person)

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