Summary of Judgment

1. Introduction

This was an appeal to the High Court (Limpopo Division, Polokwane) against a maintenance order made in a maintenance enquiry in the Maintenance Court, Polokwane. The appeal was determined by Mdhluli AJ (Makgoba JP concurring).

The appellant was the party dissatisfied with the magistrate’s determination of maintenance payable in respect of the parties’ minor child, A[…], born on 6 December 2016. The respondent was the other parent against whom the maintenance order had been granted in the court a quo. The parties had previously been married in terms of a Muslim marriage and were divorced by the time of the appeal.

The procedural history was that the learned magistrate (Ms AMM van der Merwe) made an order on 11 October 2019 in the maintenance enquiry. The appellant then noted an appeal, contending chiefly that the monetary maintenance awarded was inadequate to meet the child’s needs, particularly in relation to therapy and grocery/food requirements.

The general subject-matter of the dispute concerned the quantum and components of child maintenance, assessed against the child’s needs, the parents’ respective means, and the best interests of the child.

2. Material Facts

It was common cause that both parents bear a duty to maintain the minor child, each according to their respective means.

The child was living with the appellant. The appellant was unemployed and, on the record, did not wish to take up employment because she considered the child needed her presence. The judgment recorded that she was qualified as a teacher’s assistant and graphic designer, and that she had left employment during the marriage due to the husband’s request in accordance with their custom. The High Court also recorded that the appellant was residing with her mother and sibling (since 2016), and that she could earn around R3 000.00 if employed.

The respondent was gainfully employed as a service advisor at M[…] in Polokwane. The evidence recorded by the High Court was that he earned a net income of approximately R15 942.00 per month, based on incentives and additional monthly amounts received from two investments, and that he resided with his parents.

The appellant put up a schedule of the minor child’s monthly needs totalling R6 850.00, comprising food/groceries/toiletries, utilities, a domestic worker, clothing/shoes, day care, therapy, other medical expenditure, outings, and toys. The High Court noted that these listed items were not disputed nor challenged by the respondent. By contrast, additional claims for accommodation and transport were criticised by the respondent (the judgment records the criticism but does not treat those additional items as determinative to the outcome).

A material aspect of the factual matrix concerned the child’s therapy. The record, as accepted by the High Court, indicated that the child attended one therapy session per week at R500.00 per session, equating to R2 000.00 per month. The appellant’s counsel argued that this was not disputed by the respondent. The High Court further recorded that the respondent himself testified that, in some months, he spent more than the ordered R1 500.00 towards the child, sometimes up to R2 500.00, which the High Court treated as indicative of capacity to contribute more.

The magistrate’s order (in relevant part) required the respondent to pay R1 500.00 per month for the monthly maintenance needs of the child, to contribute R2 000.00 per month for the iddat period, to provide seasonal clothing to the value of R1 000.00 per season, and to retain the child on his medical aid.

3. Legal Issues

The central legal questions were whether the magistrate’s award of R1 500.00 per month constituted adequate maintenance to ensure that the minor child was properly maintained, and whether the magistrate erred in the manner in which particular needs—especially therapy and grocery/food requirements—were treated in the assessment.

The dispute primarily concerned the application of law to fact and the evaluative determination of an appropriate maintenance contribution in light of (a) the child’s needs as presented on the record, (b) the parties’ means, and (c) the constitutional and statutory injunction that the best interests of the child are paramount. Although the magistrate exercised a discretion, the appeal required assessment of whether that discretion had been exercised on the basis of a misdirection (as contended by the appellant).

4. Court’s Reasoning

The High Court proceeded from the accepted principle that both parents must maintain the child according to their respective means, and that the duty of support extends to such support as a child reasonably requires for proper living and upbringing, including food, clothing, accommodation, medical care and education. The Court also emphasised that in assessing maintenance for children, the primary considerations are the child’s needs and the parents’ ability to pay, with the best interests of the child forming a governing criterion.

On the appellant’s unemployment, the High Court accepted that her election not to work was undertaken for the child’s benefit. At the same time, it found that her obtaining employment could also be in the child’s best interests, particularly given the existence of therapeutic assistance for the child and the expectation that the child’s condition should improve over time. The Court recorded that the appellant had marketable qualifications and could earn approximately R3 000.00 if employed, and it treated the appellant’s potential earning capacity as part of the broader context in which the maintenance obligation should be evaluated.

In relation to the child’s condition and the need for therapy, the High Court agreed with the magistrate’s view that the child did not display special or peculiar behaviour beyond what is commonly seen in children of similar age when separated from parents. However, the Court did not treat this as removing the need for therapy that was actually being undertaken; rather, it addressed the quantification and treatment of the therapy expense in the maintenance calculation.

A critical element in the High Court’s reasoning was the treatment of the minor child’s listed needs. The Court noted that the schedule of monthly expenses (totalling R6 850.00) was not disputed nor challenged by the respondent. It further relied on the respondent’s own testimony that he sometimes spent up to R2 500.00 in a month towards the child, which the Court considered to indicate that the respondent was capable of paying more than R1 500.00. The Court stated that the record did not show that the child’s expenses were beyond the respondent’s ability.

The Court then connected the factual findings to the governing constitutional and statutory principles. It relied on section 28(2) of the Constitution and section 9 of the Children’s Act 38 of 2005, both of which require that the child’s best interests be treated as of paramount importance in matters concerning the child’s care, protection, and well-being. It also referred to section 18(2)(d) of the Children’s Act, which includes, as part of parental responsibilities and rights, an obligation to contribute to a child’s maintenance.

Against that legal framework, the High Court found that the magistrate erred in two connected respects. First, it accepted the submission that grocery (food and related items) could not properly be treated as a mere future need; it was part of the child’s ongoing maintenance requirements. Secondly, it found that the magistrate erred in arriving at a decision that therapy was R500.00, whereas the record indicated that therapy was R2 000.00 per month (R500.00 per week). These mischaracterisations were treated as material misdirections relevant to the quantum of maintenance.

In reinforcing its approach, the High Court cited the principle that, as the upper guardian of minor children, it has authority to establish what is in the best interests of dependent and minor children and to make appropriate orders to safeguard those interests, referring to Girdwood v Girdwood. This underpinned its readiness to interfere with the magistrate’s order to the extent that the child’s needs had, on the Court’s assessment of the record, not been adequately accounted for.

5. Outcome and Relief

The High Court upheld the appeal. It set aside the maintenance court’s order requiring payment of R1 500.00 per month for the child’s monthly maintenance needs and replaced it with an order requiring payment of R3 000.00 per month, payable into the appellant’s bank account, effective from the date of the High Court’s order.

The High Court confirmed the orders that the respondent must retain the minor child on his medical aid and must provide seasonal clothing to the value of R1 000.00 per season, with summer clothing to be bought on or before 15 December and winter clothing on or before 31 May annually.

No order as to costs was made in respect of the appeal.

Cases Cited

Farell v Hankey 1921 TPD 590.

Girdwood v Girdwood 1995 (4) SA 698 (C).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 28(2).

Children’s Act 38 of 2005, section 9.

Children’s Act 38 of 2005, section 18(2)(d).

Maintenance Act 99 of 1998, section 15(3)(a)–(b).

Maintenance Act 99 of 1998, section 15(3)(2) (as referenced in the judgment).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the magistrate’s determination of R1 500.00 per month for the child’s maintenance was inadequate on the record, particularly because the magistrate erred in treating grocery as a future need and in mischaracterising the therapy expense. Having regard to the child’s undisputed needs, the respondent’s means, and the paramountcy of the child’s best interests, the High Court replaced the monthly maintenance amount with R3 000.00 per month, while confirming the medical aid and seasonal clothing components of the original order. No costs order was made.

LEGAL PRINCIPLES

A duty of support rests on both parents to maintain a minor child, with each parent’s obligation being assessed according to that parent’s respective means.

The maintenance duty extends to what a child reasonably requires for proper living and upbringing, including provision for food, clothing, accommodation, medical care, and education.

In determining child maintenance, the court must treat the child’s needs and the parents’ ability to pay as primary considerations, while applying the overarching standard that the best interests of the child are of paramount importance, as required by section 28(2) of the Constitution and section 9 of the Children’s Act 38 of 2005.

Parental responsibilities include the obligation to contribute to the child’s maintenance in terms of section 18(2)(d) of the Children’s Act 38 of 2005.

As upper guardian of dependent and minor children, the High Court has authority to determine what is in a child’s best interests and to make corresponding orders to safeguard those interests, consistent with Girdwood v Girdwood 1995 (4) SA 698 (C).