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[2012] ZASCA 151
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Brossy v Brossy (602/2011) [2012] ZASCA 151 (28 September 2012)
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SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 602/2011
Not Reportable
In the matter between:
MARTIN JAMES BROSSY
..........................................................................
APPELLANT
and
DEBORAH GREER BROSSY
..................................................................
RESPONDENT
Neutral citation:
Brossy v Brossy
(602/11)
[2012] ZASCA 151
(28 September 2012).
Coram:
Mthiyane
DP, Snyders, Van Heerden, Malan et Pillay JJA
Heard:
17
August 2012
Delivered:
28
September 2012
Summary:
Maintenance
of minor children – variation order refused – appeal to
high court – record incomplete – matter
postponed sine
die for completion and reconstruction of the record.
ORDER
On appeal from:
Western Cape High Court, Cape
Town (Allie and Saldanha JJ sitting as court of first instance)
The following order is made:
1 The appeal succeeds.
2 No order is made as to costs.
3 The order of the high court dated 11 March 2011 is set
aside and replaced with the following:
‘
a) The appeal is postponed
sine die
to enable the appellant to complete and reconstruct the record of
proceedings in the maintenance court.
b) Costs are reserved.’
JUDGMENT
VAN HEERDEN AND PILLAY JJA (MTHIYANE DP AND MALAN JA
CONCURRING)
[1] This appeal, which
is before us with the leave of this court, concerns an ongoing battle
about maintenance between ex-spouses.
This battle commenced in the
maintenance court in about 2005. In that year, and again in March
2007, the respondent (Ms Deborah
Brossy) filed a complaint against
the appellant (Mr Martin Brossy) in terms of s 6(1)
(b)
of the Maintenance Act 99 of 1998
(the Act).
1
Ms Brossy sought an upward variation
of the maintenance payable by Mr Brossy in respect of the parties’
two children. An enquiry
was then held in the maintenance court. The
magistrate found that Ms Brossy had not provided sufficient grounds
to justify any
increase to the existing maintenance award and the
variation was refused.
[2] Ms Brossy appealed to the Western Cape High Court
(Allie and Saldanha JJ), as was her right in terms of s 25 of the
Act. That
court made an order in the following terms:
‘
1.
[That] this matter be referred back to the magistrate’s court
for it to commence
de
novo
before
a new magistrate.
2. Such proceedings shall
commence within 30 days from the date of this order.
3. The Legal Aid Board of South
Africa shall consider an application for legal aid brought on behalf
of the children in terms of
section 28(2) of the Constitution, within
7 days of this order.
4. The Appellant is to do all
things necessary to facilitate the completion of the necessary
application and provide all the supporting
documents required by the
Legal Aid Board.
5. At the finalisation of the
trial, the magistrate presiding shall determine whether either or
both of the parties should pay all
or a contribution towards the
legal costs incurred by the Legal Aid Board in providing the
necessary legal representation to the
minor children.
6. No order as to costs is
made.’
It is this order against which the present appeal is
directed.
[3] By way of background, the parties have
two children, Christopher, born on 12 November 1993, and Emma, born
on 4 November 1996.
The parties were divorced from each other in
February 1998. An agreement, entered into between the parties by way
of a consent
paper, was made an order of court. In terms thereof Mr
Brossy undertook to pay maintenance for the children at the rate of
R1 500
per month per child. In addition, Mr Brossy undertook to pay
the costs of schooling for the children at public schools. If,
however,
he consented to the children attending a private school, he
was obliged to pay the costs of schooling charged by the private
school
concerned. Mr Brossy also undertook to pay the cost of
extra-mural activities for the children, provided that he agreed to
them
participating in such activities and that the children
maintained an interest in them.
[4] On 14 September 2000, a ‘consent and
maintenance order’ was made in terms of s 17 read with s 16 of
the Act, whereby
Mr Brossy’s obligation to pay maintenance for
the children was increased to R2 000 in respect of Christopher
and R1 800
in respect of Emma, such amounts to be increased
annually in accordance with the Consumer Price Index. He also
undertook to pay
‘the Hill pre-school school fee rate’ (a
private school) for Emma’s education and the ‘SACS
primary school
fee rate’ for Christopher’s education. The
rest of the agreement between the parties in terms of the consent
paper
remained intact.
[5] In 2007, the parties entered into a co-parenting
agreement in terms of which they had to make joint decisions about
the general
welfare of the children, including decisions about which
schools or other educational institutions the children would attend
in
the future. That notwithstanding, the agreement further provided
that Ms Brossy would in the ordinary course make decisions regarding,
inter alia, the children’s schooling, the courses they took,
their ‘general education’, as well as decisions
about the
children’s extramural activities, including the choice of such
activities. It was recorded that the children ‘currently
attend
Reddam School’ (a private school).
[6] Ms Brossy ultimately sought an amount of R25 000
per month per child as a global maintenance payment, with the
exception
of all medical, dental and other like expenses, which Mr
Brossy was in any event obliged to pay in terms of the consent paper.
Mr Brossy was at that time paying R5 300 per month in respect of
both children. Ms Brossy also sought ‘back payments
from 1 June
2005’. Her claim, in effect, thus purported to include a claim
for ‘arrear maintenance’ in a capital
amount which, by
the date of the magistrate’s judgment on 27 August 2009,
exceeded R2 million.
[7] The biggest dispute between the parties was the
payment of school fees and the cost of extra-mural activities. At the
time of
the maintenance enquiry, the children were both attending a
private school (Reddam School), where Christopher had been for more
than six years and Emma had been for nine years. Mr Brossy had never
paid the total Reddam School fees. He paid an amount equal
to the
fees charged by, respectively, SACS and Rustenburg Girls’
School. Because the Reddam School fees were considerably
higher than
these other (public) schools, Ms Brossy had always paid the balance.
She testified that she had only managed to do
so by borrowing money
from her parents, who (she alleged) had lent her more than R4
million.
[8] Ms Brossy also testified that Mr Brossy had
consistently paid too little for the children’s’
extra-mural activities
and that she had to pay the balance, making
her financial position even more precarious.
[9] During the course of the maintenance enquiry,
reference was made to a large number of exhibits, most of which did
not form part
of the record before the high court. In addition,
because of malfunctioning recording equipment, the
examination-in-chief and part
of the cross-examination of Ms Brossy
had not been recorded and the transcript of this evidence was thus
not available. It would
seem that the record before the high court
was also defective in other aspects. In the light of the incomplete
record, the high
court did not deal with the merits of the appeal.
[10] Ordinarily, an appellant bears the onus of placing
a complete record before the court. Should the record be defective in
material
respects, a court of appeal would generally strike the
matter from the roll and render the appellant liable for costs. The
high
court invited the parties to address it on whether the appeal
should be struck from the roll. Ultimately, however, despite the
incompleteness of the record, the high court did not strike the
matter from the roll, apparently to protect the interests of the
minor children involved. It also did not postpone the appeal in order
to afford Ms Brossy an opportunity to place a complete record
before
it to ensure that all the necessary material was available to enable
proper adjudication on appeal.
[11] It does not, however, appear from the record that
the deficiencies could not be made good. Both parties were of the
view that
the record could indeed be completed and reconstructed. In
fact, during the hearing of Mr Brossy’s application to the high
court for leave to appeal to this court, his legal representatives
tendered to provide the exhibits handed up in the maintenance
court
that did not form part of the record. In argument before this court,
Mr Brossy’s counsel once again tendered to assist
Ms Brossy in
efforts to ensure that the record was completed and reconstructed to
an acceptable level to enable the high court
to deal with the appeal.
We are certain that this tender will be made good.
[12] The high court came to the conclusion that the
magistrate had acted irregularly ‘in as much as he launched a
scathing
attack upon the respondent [Mr Brossy] and his legal
representative’. The court listed several examples of what it
considered
to be overly aggressive questioning of, apparent
disrespect for and disbelief of Mr Brossy on the part of the
magistrate. The court
also concluded that the magistrate’s
questioning of Mr Brossy ‘leaves us in no doubt’ that the
magistrate had
prejudged the case. It was on this basis that the high
court made the order referred to in paragraph 2 above.
[13] It is trite that a judicial officer must ensure not
only that justice is done, but, in addition, that it is seen to be
done.
He or she must therefore so conduct the trial that his or her
open-mindedness, impartiality and fairness are manifest to all
concerned
in the trial and its outcome.
2
However, in the present case, bias or improper conduct on the part of
the magistrate did not form part of either party’s
case in the
high court or before us. Neither party at any stage objected to the
magistrate’s conduct or applied for his recusal.
Indeed, the
magistrate’s alleged hostility toward Mr Brossy did not
influence the outcome of the maintenance enquiry in that
the judgment
ultimately given by the magistrate was in favour of Mr Brossy. This
was overlooked by the high court.
[14] In our view, having decided not to strike the
appeal from the roll, the proper course for the high court to have
taken was
to have postponed the appeal in order to enable Ms Brossy
to complete and reconstruct the record and then to have decided the
case
on its merits. First, the retrospective rights of children were
at stake and Ms Brossy was unrepresented. Second, if, as it now
appears, the record could be reconstructed, affording Ms Brossy an
opportunity to do so would, from her perspective, preserve the
children’s accrued rights and would spare the additional costs
of a fully-fledged maintenance enquiry in respect of the period
in
question. Third, Mr Brossy was being disadvantaged by Ms Brossy’s
failure to prepare a complete record, and starting matters
anew in
circumstances where he was not the defaulting party would further
prejudice him. Fourth, a postponement to facilitate a
full record,
with costs reserved, would effectively retain the rights of each
party to have his or her day in an appeal hearing.
[15] As regards maintenance claims for the period beyond
that of the complaint which formed the basis of the enquiry before
the
maintenance court, Ms Brossy will be entitled to approach the
maintenance court for a further variation based on circumstances
prevailing at that stage, and this can be tested by a new maintenance
court enquiry. The circumstances of the children have clearly
changed
in the interim. At the time of the judgment of the maintenance court,
Christopher was 15 years and nine months’ old
and still at
school. Emma was 13 years and nine months’ old and also at
school. Christopher is now a major and will turn
19 years’ old
in November 2012. He is no longer at school, having matriculated last
year. Emma is now 15 years’ old
and will turn 16 in November
2012. She is in Grade 10 and continues to attend Reddam School. Mr
Brossy’s liability for Emma’s
private school fees is
therefore still a live issue, while his liability for the costs of
tertiary education for Christopher will
now also have to be
determined. It is important that the children’s rights as
regards both past and future maintenance be
preserved.
[16] As indicated above, it appears that the record of
proceedings in the maintenance court can be completed and
reconstructed without
too much difficulty. As indicated above, in
argument before us, Mr Brossy’s counsel tendered to assist Ms
Brossy in this
regard and we have no reason to doubt that such
assistance will be forthcoming. Given the nature of the case and the
lengthy delays
that have already occurred, it is to be expected that
the process of putting the record in order will take place speedily.
Once
the record is in order, Ms Brossy can apply for a date for the
hearing of the appeal. Should she fail to do so within a reasonable
period of time, then Mr Brossy will be entitled to apply for a date
for the hearing of the appeal and to ask for a dismissal of
the
appeal with costs, including the costs of the postponement. It will
then be for the high court to determine the appeal on such
basis as
to it seems meet.
[17] As indicated above, the high court
ordered Legal Aid, South Africa to consider an application for legal
aid brought on behalf
of the children in terms of s 28(2) of the
Constitution. This was on the basis that the interests of the minor
children should
be protected and advanced by affording them legal
representation at the envisaged retrial before the maintenance court.
The Centre
for Child Law, which appeared before us as
amicus
curiae
, pointed to international and regional
instruments to which South Africa is a party, such as the United
Nations Convention on the
Rights of the Child (CRC)
3
and the African Charter on the Rights and Welfare of the Child
(ACRWC),
4
both of which entrench children’s rights to express their views
in all matters affecting them and their right to be heard
in all
judicial and administrative proceedings affecting them. Section
28(1)
(h)
of the
Constitution guarantees the child’s right to have a legal
representative assigned by the State, and at State expense,
in civil
proceedings affecting the child, if substantial injustice would
otherwise result
[18] Children’s right to participate has been
incorporated into domestic legislation in the Children’s Act 38
of 2005,
s 10 of which reads as follows:
‘
Every
child that is of such an age, maturity and stage of development as to
be able to participate in any matter concerning that
child has the
right to participate in an appropriate way and views expressed by the
child must be given due consideration.’
As one of the general principles of the Children’s
Act, s 10 must guide the implementation of all legislation applicable
to
children (s 6(1)). In appropriate cases, this would include the
Maintenance Act.
>
[19] It is correct that,
in many maintenance enquiries, the dispute will be between the
parents, and the children will have an identity
of interest with the
parent claiming maintenance on their behalf. This does not mean,
however, that there will never be situations
where it will be
important for a child to be given a say in a maintenance matter,
although the form that such participation will
take will depend on a
variety of factors, such as the age and ability of the child to
express his or her own views. In this case,
for example, much of the
acrimony between the parents arises from the choice of school that
the children are attending and the
extra-mural activities in which
the children are involved. It does not appear from the record that
the children’s preferences
and choices in this regard have ever
been canvassed before the court. As was pointed out by Wallis AJ in
Legal Aid Board v R
2009 (2) SA 262 (D) para 20:
‘
When
one is dealing with acrimonious litigation concerning the
fundamentally important questions of where a child shall live and
who
shall be responsible for their principal day-to-day care and the
central decisions concerning their lives, such as schooling,
health,
religion and the like, it seems to me that, if the court comes to the
conclusion that the voice of the child has been drowned
out by the
warring voices of her or his parents, it is a necessary conclusion
that substantial injustice to the child will result
if he or she is
not afforded the assistance of a legal practitioner to make his or
her voice heard.’
[20] This is not an area where it is possible to lay
down hard and fast rules. Whether or not a legal representative
should be appointed
for a child who is the subject of a maintenance
dispute will depend on the specific facts and circumstances of each
case. It is
primarily a question of recognising the child as an
autonomous individual whose right to express views and to be heard
should be
tested against the nature of the dispute and the role that
the child can play in adding a significant dimension to the dispute.
It is no longer the case that children should be seen and not heard.
Maintenance matters are not an exception to this rule.
[21] Christopher is now a major and will be able to
institute his own maintenance claim against his father, should this
become necessary.
However, as far as Emma is concerned, one must bear
in mind that she might well require the assistance of a legal
representative
in any future maintenance claim by Ms Brossy acting on
Emma’s behalf against Mr Brossy.
[22] As regards the costs of this appeal, it seems to us
to be just that Ms Brossy should not at this stage be mulcted in the
costs
of appeal. She has acted throughout in what she believed to be
in the best interests of her children, even to the extent of
representing
herself throughout the proceedings due to lack of funds
for a legal representative. In our view, the fairest outcome is that
there
should be no order as to costs in this court.
[23] Subsequent to the appeal hearing and after judgment
was reserved, but before this judgment was finalised, Snyders JA
became
indisposed. This judgment is therefore a decision of the
remaining members of this court.
[24] The following order is made:
1 The appeal succeeds.
2 No order is made as to costs.
3 The order of the high court dated 11 March 2011 is set
aside and replaced with the following:
‘
a) The appeal is postponed
sine die
to enable the appellant to
complete and reconstruct the record of proceedings in the maintenance
court.
b) Costs are reserved.’
B J VAN HEERDEN
JUDGE OF APPEAL
R PILLAY
JUDGE OF APPEAL
APPEARANCES
APPELLANT: D Watson
Instructed by:
KG Druker Attorneys, Cape Town
Honey Attorneys, Bloemfontein
RESPONDENT: Deborah Greer Brossy
In person
1
Section
6(1)
(b)
provides as follows: ‘(1) Whenever a complaint
to the effect –
(b)
that good cause exists for the
substitution or discharge of a maintenance order, has been made and
is lodged with a maintenance
officer in the prescribed manner, the
maintenance officer shall investigate that complaint in the
prescribed manner and as provided
in this Act.’
2
See
S v Rall
1982
(1) SA 828
(A) at 831H-832A.
3
Article
12 of the CRC.
4
Article
4(2) of ACRWC.