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[2019] ZAFSHC 268
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B K v C K and Other (259/2018) [2019] ZAFSHC 268 (17 December 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 259/2018
In
the matter between:-
B
K
Applicant
And
C
K
1
st
Respondent
MAGISTRATE
B.
MLANGENI
2
nd
Respondent
MAGISTRATE
HMJ
BOTHMA
3
rd
Respondent
CORAM:
MHLAMBI, J
et
MOLITSOANE,
J
HEARD:
16 SEPTEMBER 2019
JUDGMENT
BY
MOLITSOANE,
J
DELIVERED:
17 DECEMBER 2019
[1]
This is application for review of two maintenance orders granted by
the Bethlehem Magistrate Court. The applicant and the first
respondent were married to each other and two minor children were
born. They divorced on the 6
th
October 2016. The order of their divorce incorporated the deed of
settlement the relevant terms of which are as follows:
1.
The primary
residence of the two minor children of the parties shall vest in the
applicant;
2.
The first
respondent shall pay maintenance in the amount of R9 015.00 to
the applicant until the minor children attain majority
or become
self-supporting, whichever occurs earlier;
3.
The parties
agreed that the maintenance referred to above shall be increased to
R11 200.00 per month from the date the applicant
delivers a
vehicle,
to
wit
,
Kia Picanto to the first respondent as per clause 4.2 of the
settlement agreement;
4.
The parties
placed it on record that the applicant averred that the amount of the
maintenance payable for the minor children was
not enough;
5.
The first
respondent averred that, at that stage he could not afford to pay
more than the amount of the above maintenance;
6.
The parties
agreed that any of the parties shall have the right to approach the
maintenance court for the variation of the order
relating to
maintenance and that it will not be necessary to prove any change in
the circumstances before the application is sought.
[2]
About nine months after the divorce the respondent approached the
maintenance court for the variation of the maintenance order
from
R11 200.00 to R50000 per month for both children. On the 29
th
September 2019, when the application was enrolled, the attorney for
the applicant requested an investigation by the Family Advocate
to
determine if it was still in the best interest of the parties’
minor children that the applicant should remain their primary
caregiver. For that purpose the case was postponed to the 9
th
October 2017 and the court ordered that the maintenance payment due
on the 1
st
October 2019 should stand over until the issue regarding the primary
residence of the minor children was resolved. This order of
the 29
th
September 2017 staying the payment of maintenance, is the first order
the applicant seeks to review and set aside.
[3]
On the remand date, the 9
th
October 2017, following a formal hearing the court
a
quo
found in favour of the respondent and ordered the reduction of
maintenance in respect of the minor children to R3 764.45 per
month per child effective from the 1
st
October 2017.This is the second order the applicant seeks to review
and set aside.
[4]
The applicant relies on the following grounds of review:
a)
In terms of
s22(1)(b) of the Superior Court Act,10 of 2013( the Act) that the 2
nd
Respondent was biased against the applicant in favour of the
respondent;
b)
In terms of
s22(1)( c) of the Act gross irregularity occurred during the
proceedings in that the 3
rd
respondent granted an arbitrary suspension of the maintenance payable
by the respondent on the 29
th
September 2017;
c)
In terms of
s22(1)( c) of the Act a gross irregularity occurred during the
proceedings in that the 2
nd
respondent applied the wrong legal test to 1
st
respondent case in the judgment;
d)
In terms of
s22(1)(d) of the Act the 2
nd
Respondent took into account irrelevant evidence which led to the
order;
e)
In terms of
s22 (1) (d) the 2
nd
respondent did not take relevant evidence into account, and attached
too little weight to certain evidence which led to the order.
[5]
In these proceedings the respondent raised the following issues in
opposition to the granting of the order prayed for:
1.
Whether the
adjudication of the order granted on the 29
th
September has become moot;
2.
Should the
applicant have proceeded by way of an appeal or review process; if
not
3.
Whether the
applicant has made out a case for review of the two cases.
MOOTNESS
OF THE ORDER OF THE 29
TH
SEPTEMBER 2019.
[6]
As alluded above the applicant and the first respondent appeared
before court on the 29
th
September 2019 in an application for the variation of the then
existing order granted upon divorce. The proceedings were presided
over by Magistrate Bothma. Both parties were legally represented. Mr
Harrington for the respondent indicated to the trial court
that there
was uncertainty as to where the children were to reside. He also
indicated that the parties had agreed to request the
Family Advocate
to investigate that aspect. He then proceeded to request the
suspension of the order of maintenance pending clarity
of where the
children were to stay. .
[7]
In turn Mr Botha for the applicant confirmed the arrangements but
indicated that he had no instructions as to the suspension
of the
order. The court granted a postponement and ordered the suspension of
the payment of maintenance and further ordered an
investigation as to
where the children were to stay.
[8]
It is a general rule that a court sitting on appeal or review will be
inclined to dismiss an appeal or review where the judgment
or the
order sought would have no practical effect or result. The court,
however, still retains a discretion to hear matters when
the interest
of justice demand so.
[9]
The applicant was before court when an application for a suspension
of the order of maintenance was brought. What is puzzling
is the
submission by her legal representative that he had no instructions as
to the suspension of the maintenance order when the
applicant was
present in court. Be that as it may it also transpired that at the
time of this appearance the children were to go
on holiday with the
respondent. It is unnecessary to decide whether the 3
rd
respondent was correct or not in suspending the order in view of the
decision I make later.
[10]
Upon granting the final order of variation about a month later, the
trial court antedated its order to the 1
st
October 2017. By so doing the court ensured that the suspension of
the payment of any due maintenance which occurred as a result
of the
order of the 29
th
September was catered for, although in a varied form. In this way the
court dealt finally with the suspended order. The issue raised
has
become moot and would have no practical effect in its implementation.
This issue should thus be upheld in favour of the first
respondent.
APPEAL
OR REVIEW
[12]
It is contended on behalf of the respondent that careful reading of
the case of the applicant would reveal that her gripe is
that the
second respondent came to a wrong conclusion on the facts as well as
on the law. In my view careful scrutiny of the case
of the applicant
as pleaded may be susceptible to both review and appeal.
[13]
Firstly the applicant asserts that the order of the 29
th
September 2019 granted by the third respondent was arbitrary. The
applicant avers that when the said order was granted the third
respondent failed to provide her with the opportunity to state her
case. She asserts that the third respondent further failed to
consider the impact of her order on the parties’ minor
children. Secondly with regard to the final order by the 2
nd
Respondent the applicant alleges ‘bias’ on his part (2nd
respondent). Clearly these allegations would best be dealt
with in a
review as opposed to an appeal. In order to consider bias one would
invariably consider the record itself and may take
into account
extraneous evidence not contained in the four corners of the record.
[14]
Mere
allegation of bias is, however, not sufficient to invoke a review
process. The allegation of bias must be substantiated by
a proper
basis. A factual basis must be fully set out in order to sustain the
allegation. In this case the alleged bias is based
on a comment by
the 2
nd
respondent arising out of the Family Advocate’s report. In the
judgment the second respondent with reference to the said:
report
said the following:
“
The
view of the Social Worker is buttressed by Family Advocate when she
states that the respondent “is more concerned about
the money
than the emotional well-being of the children.”
The
applicant contends that this remark ‘coloured’ the
judgment of the 2
nd
respondent. I am unable to agree. Proper reading of the judgment does
not indicate so. The 2
nd
respondent dealt fully with the reasons why he found that the
reduction of maintenance was appropriate. Mere allegation of bias
does not make a matter reviewable. The applicant has failed to lay a
factual basis to sustain the allegation.
[14]
When
it comes to the issues raised against the conclusions of the law it
is clear that the applicant attacks the correctness of
the judgment
and its subsequent order. The applicant contends that the 2
nd
respondent committed an irregularity by applying a wrong test to the
first respondent’s case in his judgment. He further
avers that
the 2
nd
respondent failed to take into account certain evidence or attached
little weight to the evidence while with the same breath he
took into
account irrelevant evidence in the judgment and the subsequent order.
[15]
It is clear from the reading of the case for the applicant that she
challenges the end product of the order made by the 2
nd
respondent. She challenges the outcome made, namely, the reduction in
maintenance. She contends that the 2nd respondent came to
wrong
conclusions on the facts and the law. In that respect she ought to
have appealed the decision. In the review process the
court is more
concerned with the process embarked on towards reaching the process.
In review proceedings the validity of the decision
is the focal
point. In my view the applicant should have proceeded by way of
appeal in this case. For this reason the application
ought to be
dismissed. In view of the finding I made it is unnecessary to deal
with the third issue in dispute.
[16]
Although the parties did not pursue the issue of jurisdiction before
us, it appears that the minor children were no longer
within the
jurisdiction of this court. Such a determination was necessary as the
applicant’s case was also that the expenses
of the children
were unknown as they had relocated to Gauteng. This matter deals with
the best interests of the minor children
am of the view that this is
one of those cases where this court has to depart from the usual
practice to order costs in favour
of the successful party. I
accordingly propose the following order.
[17]
ORDER:
1.
The
application is dismissed.
2.
Each
party to bear his/her own costs.
____________________
P.E.
MOLITSOANE, J
I
agree and it is so ordered.
________________
M.J. MHLAMBI, J
On
behalf of applicant: Adv. B. Bergenthuin
Instructed
by:
Phatsoane
Henny Inc
Bloemfontein
On
behalf of the First
Respondent:
. W. A. Van Aswegen
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN