About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 24
|
|
N.Z v M.H (CA&R 16/2018) [2019] ZANCHC 24 (10 May 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
Reportable:
YES/
NO
Circulate
to Judges:
YES/
NO
Circulate
to Magistrates:
YES/
NO
Circulate
to Regional Magistrates:
YES/
NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case
number: CA&R 16/2018
Date
heard: 26.04.2019
Date
delivered: 10.05.2019
In
the matter between:-
N[….]
Z[….]
Appellant
and
M[….]
H[….]
Respondent
Coram:
Tlaletsi JP et Phatshoane J
JUDGMENT
Tlaletsi
JP
1.
On
02 April 2015 the respondent lodged an application for the reduction
of the amount of maintenance he was ordered to contribute
towards the
maintenance of his two children with the appellant in the Magistrate
Court for the District of Upington. In terms of
the existing order,
which was made on 15 August 2013 by the magistrate, he was to
contribute an amount of R1 500-00 for his 13
year old daughter. There
was at the time already an existing order for him to contribute the
amount of R750-00 per month for the
other child. The total
contribution for the maintenance of the two children was an amount of
R2 250-00 payable with effect from
31 August 2013.
2.
The
respondent sought a reduction of the amount of R1 500-00 to R750-00.
The appellant also brought an application for the increase
of the
respondent's contribution to R1 500-00 for the one child and to pay
full tuition fees for the child concerned, whose maintenance
he
wanted reduced. On 13 February 2018 the court a
quo
dismissed both the applications for
the reduction and increase, respectively. The appellant is appealing
against part of the judgment
and order dismissing her application for
increase of the respondent's maintenance contribution
[1]
.
3.
This
matter has a troubled history which is characterised by inexcusable
delays. Maintenance complaints are by their very nature
urgent as
they are intended to cater for the wellbeing of the affected
children. Unnecessary delays defeat this object. The two
applications
were heard together by the maintenance court, presided over by an
acting magistrate. An enquiry was scheduled to be
heard on 18 August
2015. On this day the parties' legal representatives were not
available and was postponed to 21 September 2015.
It is not evident
from the record what transpired on 21 September 2015.
[2]
The next entry on the record is the proceedings of 01 December 2015.
On this day the appellant appeared with her private legal
representative. The respondent appeared in person and successfully
moved an application for the postponement of the enquiry to
07
December 2015 for him to enlist the services of a legal
representative.
4.
There
is once again no entry on the record of what transpired on 07
December 2015. The next entry on the record is the proceedings
of 07
March 2017, in which the respondent failed to appear. The appellant's
attorney applied for a default judgment against the
respondent. In
her motivation for the application the following came to light:
4.1
On
02 November 2015 the respondent failed to attend court and the
enquiry had to be postponed to 01 December 2015, which was
subsequently
postponed to 07 December 2015 for the respondent to
engage a legal representative. On this date the respondent changed
his mind
and decided to conduct his own case. The enquiry was
postponed to 16 February 2016 with an order that the respondent make
available
to the appellant all his documents containing his financial
information on or before that date.
4.2
On
16 February 2016 the respondent was absent and tendered a medical
certificate indicating that he was indisposed. The enquiry
was
postponed
to 08 March 2016. On this day
the enquiry was postponed to 17 May 2016 for the parties to exchange
documentary evidence and to arrange
a date for holding of the
enquiry. The matter was on that day postponed to 02 August 2016 for
hearing.
4.3
On
02 August 2016 the evidence-in-chief and cross examination of the
appellant was entertained. The enquiry was postponed to 18
August
2016 for its continuation. On this day the maintenance officer was
absent as he was attending a course. The respondent was
also not
available and a medical certificate was tendered on his behalf. The
matter was postponed to 25 October 2016 for further
hearing. On this
day the maintenance officer as well as the respondent were absent and
the enquiry was postponed to 24 January
2017. On 24 January 2017 the
respondent appeared and the maintenance officer was once again
absent. The matter was postponed to
07 March 2017 on which date the
respondent was not available.
5.
After
the appellant's attorney's address to the court on the history of the
matter and her submission that the respondent was deliberately
delaying the matter, the acting magistrate was not inclined to grant
judgment by default and postponed the matter to 15 May 2017
for the
maintenance officer and the appellant's legal representative to
address her on the evidence that had already been adduced.
She
further indicated that the application for the increase of
maintenance contributions would be decided on that day.
6.
On
15 May 2017 the acting magistrate did not proceed with the
application for judgment by default as initially planned. Instead,
the respondent was given an opportunity to adduce his evidence and
subjected to cross-examination. Following this, the matter was
postponed to 26 June 2017 for the respondent to produce further
documents in support of some of the expenditure items he disclosed
in
his evidence. On 26 June 2017 the matter was postponed to 27 July
2017 because the acting magistrate had to attend to other
judicial
engagements. The maintenance officer who had been handling the
matters was not available on 27 July 2017 due to ill health.
The
mater was postponed to 12 October 2017
.
7.
It
appears that the matter was erroneously reconvened on 10 October 2017
instead of 12 October 2017. Both parties were however present
and the
matter was postponed to 27 November 2017. On this day further
evidence was tendered by the respondent at the instance of
the
presiding officer. All three parties namely, the appellant, the
respondent and the maintenance officer addressed the court
on the two
applications. The matter was postponed to 05 February 2018 for
judgment. The respondent was however directed to provide
further
documentary information relating to his loan accounts.
8.
On
05 January 2018 the acting magistrate had not had the opportunity to
go through the documents supplied by the respondent. The
matter was
postponed to 13 February 2018 on which date the magistrate traversed
through the documents with the respondent. Thereafter,
the respondent
was
once again given an opportunity to
address the court which he did at length. The appellant's attorney
was also afforded an opportunity
to address the court. She took issue
with the fact that the matter was on previous occasions postponed for
judgment and instead,
the acting magistrate reopened the respondent's
case and admitted further evidence. She declined to make additional
submissions
to the court.
9.
In
her judgment the acting magistrate dealt first with the application
for reduction brought by the respondent. She recognised that
the
judgment is being made three years from the day the application was
lodged and that in the three year period the respondent
ought to have
received at least three salary increases; that a reduction in
maintenance contribution would not be in the interests
of the two
children; that the respondent had ample time to rearrange his
financial affairs to enable him to comply with his maintenance
obligations without a reduction of his contributions. The acting
magistrate further held:
"I
think that the increase that you got for 2015, 2016 and 2017 can make
up for the maintenance of these children
.
The court is not going to
interfere in that order, the existing order. With regard to the
application to increase also Ms Kruger,
I am not going to grant any
increase.
"
(SIC).
10.
Having
made the above conclusion the court advised the parties to open their
communication channel for the sake of the children
and urged the
respondent to rearrange his financial obligations by
inter
alia,
reducing his loan instalments,
and do away with several funeral policies in which he covered his
extended family members. The latter
remark was in response to the
respondent's claim that traditionally he had stepped into the shoes
of his late father and carried
the burden of funeral expenses of his
extended family. It therefore worked better for him to take funeral
policies for them so
that he should not apply for financial loans to
cover their funeral expenses.
11.
It
is significant that the appellant's evidence does not form part of
the record of this appeal. Her evidence is also not referred
to by
the acting magistrate in her judgment. The judgment is also silent on
the reasons why the application for the increase in
maintenance
contributions was dismissed. On 14 February 2018 a notice in terms of
rule 51(1) of the Magistrates Court Rules was
served on the Clerk of
the Court, requesting the acting magistrate to provide
inter
alia,
her reasons for the dismissal
of the application for the increase of the maintenance contributions.
On 02 March 2018 the acting
magistrate replied that she stood by her
judgment dated 13 February 2018 and had nothing further to add. In my
view, this was a
missed opportunity by the acting magistrate to
reconsider her judgment and provide reasons for her dismissal of the
application
for the increase of the maintenance contribution by the
appellant.
12.
Section
16
of the
Maintenance Act 99 of 1998
provides, that the maintenance
court after consideration of the evidence adduced at the inquiry may
inter alia,
in
the case where a maintenance order is in force, make an order in
substitution of such existing maintenance order; discharge such
maintenance order or make no order. Absent the evidence of the
appellant and there being no reference to such evidence in the acting
magistrate's judgment we are unable to conclude that such evidence
was considered by maintenance court as directed by
section 6
of the
Act. It therefore, cannot be said that the acting magistrate arrived
at a correct decision.
13.
This Court is also unable reconsider the
entire evidence that was adduced in the court
a
quo
so as to substitute the order of
the acting magistrate if need be. Both counsel are
ad
idem
that the logical course to
follow would be to remit this matter to the maintenance court for a
proper enquiry to be held by a presiding
officer other than the
acting magistrate who heard this matter. Such an enquiry must be
disposed of expeditiously regard being
had to the interest of the
children.
14.
Ms
Tyuthuza, for the appellant, urged that the respondent be ordered to
pay the wasted costs for the proceedings of 18 April 2019
when he
sought an indulgence to engage the services of a legal
representative, as well as the costs of 23 April 2019 when his
counsel asked for further adjournment due to her belated receipt of
the brief.
15.
It
is trite that appeals against the decisions of the maintenance court
are considered to be civil proceedings. Costs may be awarded
against
an unsuccessful party. In
Govender
v Maniku,
[3]
it was held that the correct
approach which the court should adopt in regard to the costs of an
appeal from a decision of a maintenance
court is that there is
nothing in the Act which interferes with the discretion vested in the
Court of Appeal; that in the exercise
of that discretion and because
of the special nature of the maintenance
enquiry,
the Court should consider wider matters than those it would
ordinarily consider in an civil appeal as regards of costs.
16.
In
my view, this is a matter where no order as to costs should be made.
There has been an inordinate delay in the handling of the
matter in
the court a
quo.
After
all these delays the judgment rendered by the acting magistrate was
inadequate. As a consequence of this, the matter ought
to be referred
back for rehearing. This cannot be attributed to any of the parties.
Awarding costs against the respondent for the
two postponements would
be to unfairly punish him. His requests cannot be classified as being
unreasonable. They were merely intended
to afford him an opportunity
to place his case before court. Furthermore, the postponements have
had no effect on the status of
the matter
.
17.
Due
to the delays already caused in this matter, the Head of the
Magistrate Court, Upington, should ensure that this matter is
disposed of expeditiously
.
18.
In
the result the followin
g
order is made.
1.
The
orders granted by the acting magistrate on 13 February 2018 are set
aside.
2.
The
matter is referred back to the Maintenance Court, Upington, for
rehearing before a Magistrate other than the presiding acting
magistrate.
3.
There
is no order as to costs.
LP TLALETSI
JUDGE PRESIDENT
Northern
Cape Division, Kimberley
I
concur
.
V.M
PHATSHOANE JUDGE
Northern
Cape Division, Kimberley
[1]
Section 25
of the
Maintenance Act 99 of 1998
provided that any
person aggrieved by any order made by a maintenance court may within
such period and manner as may be prescribed,
appeal against such
order to the High Court having jurisdiction.
[2]
There are gaps in the record regarding several dates in which the
matter was on the roll. Most of the information is provided
by the
appellant's attorney in her address in support of the application
for default judgment.
[3]
Govender v Manikum
1981(1) SA 1178(W) at 1184 E-G.