About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2020
>>
[2020] ZALMPPHC 80
|
|
S.S.B v M.S (HCA02/2020) [2020] ZALMPPHC 80 (18 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: HCA02/2020
In
the matter between:
S[….]
S[….] B[….]
APPELLANT
And
M[….]
S[….]
RESPONDENT
JUDGMENT
MDHLULI:
AJ
[1]
The
appellant is appealing against an order made on the 11
th
October 2019 by the learned Magistrate, Ms AMM van der Merwe in a
maintenance enquiry held in the Maintence Court, Polokwane in
respect
of the maintenance of the parties' minor child A[….] a boy
born on the 06
th
December 2016 of the prior Muslim marriage between the parties.
[2]
The Appellant's counsel submitted that
the issue to be determine by this court is whether an amount of R1500
per month is an adequate
maintenance to ensure that the minor child
is properly maintained. This emanates from the judgment of the
learned Magistrate which
ordered as follows:
1.
The
Respondent must pay an amount of R1500.00 per month into the bank
account of the Applicant for the monthly maintenance needs
of the
child.
2.
The
Respondent must contribute an amount of R2000.00 per month for the
said lddat period.
3.
Seasonal
clothes to be bought to the value of R1000.00 per season. Clothes to
be bought for summer on or before the 15
th
December and for winter on or before the 31
st
May annually.
4.
Respondent
to retain the minor child on his medical aid.
[3]
Appellant's
counsel, submitted during the hearing that the learned Magistrate
erred in not granting an order for the therapy which
was submitted to
be R500.00 per week which was not disputed by the Respondent as well
as an order that food and grocery is a future
need. She submitted
further that she did not know if the circumstances of the Appellant
had changed as she is only involved in
this appeal only. She however
prayed that the amount which would be reasonable under the
circumstances should be R2500.00 to be
added on the already R1500.00
to make it R4000.00 per month which amount will account for the
grocery, the weekly therapy sessions
as well as playground fees.
[4]
The
appeal is opposed based on the following reasons submitted by counsel
for the Respondent during the hearing of this matter:
1.
That the learned Magistrate took into
account all the proven facts and expenses which related to the needs
of the child during the
enquiry.
2.
That the discretion
lies with the judicial officer ceased with the enquiry, and that this
court should not interfere with that discretion
as its scope is
limited.
3.
That based on the evidence on record the
Appellant was extravagant in her claims and could not even
substantiate her alleged claims
based on the needs which at some time
during the enquiry amounted to R22, 000.00.
4.
That the orders granted were fair given
that the Respondent was providing for the 100 % needs of the minor
child and taking into
account the parties' standard of living which
even then when they were married, their families played a huge role
in assisting
them.
5.
That appellant failed to give proof of
the estimate of the grocery needs of the child, albeit, he said that
could be so, because
she is unemployed and same expenses are incurred
by her family members and that of the Respondent who are involved in
the raising
of the minor child.
6.
That the court did not misdirect itself
when it did not order future needs as those can always be revisited
in the Maintenance Court
and should the need arise be claimed
retrospectively.
7.
Lastly, that the Respondent's
circumstances had not changed to warrant an increase beyond R500.00
to R1000.00 being the maximum.
[5]
It is common cause that both parents
must maintain the child, albeit according to their respective
means
[1]
.
From the record it is clear that the Appellant does not want to get
employment for the reason that the child needs her more. She
is
qualified as a teacher's assistant as well as a graphic designer. She
left employment in obedience to her husband's call for
her to stop
working when they got married as it is their custom. But, the parties
have divorced now and nothing should be stopping
her to seek for
gainful employment especially given the dire needs of the child which
she has outlined during the enquiry which
needs amongst others are
based on her training as an early child development qualified
personnel.
[6]
I
accept that the Appellant's election to be unemployed is done for the
benefit of the child. However, equally I find that the appellant
getting employment would be in the best interest of the child too.
More so, that because the child is receiving therapeutic professional
help. It is expected that his condition is or should be improving
given that the order was made some eleven (11) months ago. If
not the
expense would not be justified under the circumstances. The duty
extends to such support as a child reasonably requires
for his or
her
.
proper living and upbringing, and includes the provision
of food, clothing, accommodation, medical care and education
[2]
.
[7]
I
agree with the learned Magistrate that the minor child does not
present any special or peculiar behavior to any child his age
when
left with other people away from their parents. One has to go to any
foundational phases schools to observe this normal daily
behavior
when children are dropped off every morning. Children adapt easily
and quickly generally without any assistance as it
comes naturally.
A[….] is a potential candidate for improvement given the help
he is receiving from therapy and from her
mother who has sacrificed
her life for all these time to care for him. If appellant was to be
employed, she would earn a salary
of around R3000.00. She is
currently residing with her mother and sibling since 2016.
[8]
The
Respondent qualified as a mechanic in 2016, at the time of the
hearing he was gainfully employed as a service advisor at [….]
in Polokwane, residing with his parents and earning a nett salary of
about R15, 942.00 per month based on incentives as well as
money
received from two investments monthly. In the assessment of
maintenance for children their needs and the parents' ability
to pay
are the primary factors but the criterion of the "best interests
of the child" must also be considered.
[3]
[9]
The
minor child's needs were put as follows:
Food, grocery and
toiletries
R2000.00
Water and
electricity
R200.00
Domestic
worker
R500.00
Clothes and
shoes
R500.00
Day care
R600.00
Therapy
R2000.00
Other
medical expenditure
R200.00
Outings
R500.00
Toys
R350.00
TOTAL
R6, 850.00
Over and above these the appellant
claimed a need for accommodation and transport which the Respondent
criticized. However, the
above list were not disputed nor challenged
by the Respondent. The Respondent in his testimony even alluded to
the fact that on
a month he was spending more than the ordered amount
of R1500.00 towards the child to the tune of R2500.00 at times. This
being
the case, it points out to the fact that the Respondent is
capable and has the means to pay more than the ordered amount taking
his evidence into account and that the needs of the child were not
disputed. . The record does not indicate that the minor child's
expenses are beyond the Respondent's ability.
[10]
It is clear that in terms of Section 28
(2) of the Constitution, a child's best interests are of paramount
importance, in every
matter concerning the child. This is echoed in
Section 9 of the Children's Act No. 38 of 2005 (the Act) which
provides as follows:
"In all matters concerning
the care, protection and well-being of a child the standard that the
child's best interest is of
paramount importance, must be applied".
In
terms of Section 18 (2) (d) of the Act the parental responsibility,
includes the obligation to contribute to the maintenance
of the
child. I agree with the submissions made by the Appellant attorney
that grocery cannot be a future need and as such I find
that the
learned Magistrate erred in arriving at the conclusion that it was.
Moreover the learned Magistrate erred also in arriving
at a decision
that therapy was R500.00 when it is clear from the record that it was
R2000.00 per month and the minor child was
attending a session per
week at RS00.00 per session.
[11]
As stated by van Zyl J in
Girdwood
v Girdwood
1995 (4) SA 698
(C) at 708 J
"As upper Guardian of all
dependent and minor children, this Court has an inalienable right and
authority to establish what
is in the best interests of children and
to make corresponding orders to ensure that such interests are
effectively served and
safeguarded".
[12]
Having considered the above I make the
following order:
1.
The
appeal succeeds.
2.
The
order of the court
aquo
for
maintenance payment of R1500.00 per month is set aside and replaced
with R3000.00 per month payable into the bank account of
the
appellant for the monthly maintenance needs of the child effective
from the date of this order
3.
The
following orders of the court
aquo
against the Respondent are
confirmed:
3.1
Respondent to retain the minor child on
his medical aid.
3.2
Seasonal clothes to be bought to the
value of R1000.00 per season. Clothes to be bought for summer on or
before the 15
th
December and for winter on or before the 31
st
May annually.
4.
There
shall be no order as to costs of the appeal.
R.P
MDHULI
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION: POLOKWANE
I
agree
E.M
MAKGOBA
JUDGE PRESIDENT OF THE HIGH
COURT
LIMPOPO DIVISION
DATE
HEARD:
11
th
SEPTEMBER 2020
DATE
JUDGEMENT DELIVERED: 18
TH
SEPTEMBER 2020
ELECTRONICALLY
APPEARANCES
FOR
APPELLANT:
MS M.C DE KLERK
DDKK ATTORNEYS INC
19 WATERMELON STREET
PLATINUM
PARK, BENDOR
POLOKWANE
FOR
RESPONDENT:
ADV A.C DIAMOND
INSTRUCTED
BY:
CHAYYA ATTORNEYS
29
FAGAN STREET
CNR NELSON MANDELA &
FAGAN
STREETS
IVYPARK,
POLOKWANE
[1]
Farell v Hankey 1921TPD 590 596, Maintenance Act No. 99 of
1998section 15 (3) (a) – (b).
[2]
Maintenance Act No. 99 of 1998section 15 (3) (2)
[3]
Family Law Service, LexisNexis, Service Issue 72, Division C,
Maintenance by Lesbury van Zyl, C5, page 3.