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[2014] ZAGPPHC 510
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A.O.M v Minister of Justice and Constitutional Development and Others (61876/2012) [2014] ZAGPPHC 510 (26 May 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case number:
61876/2012
Date: 26 May 2014
In the matter
between:
A[...] O[...]
M[...]
.............................................................................................................................
PLAINTIFF
and
MINISTER OF
JUSTICE AND
AND
CONSTITUTIONAL
DEVELOPMENT
...........................................................
FIRST
DEFENDANT
NATIONAL
PROSECUTING
AUTHORITY
.......................................................
SECOND
DEFENDANT
M[...]
M[...]
....................................................................................................................
THIRD
DEFENDANT
D.
LESESE
................................................................................................................
FOURTH
DEFENDANT
T.A.
MOHLABA
...........................................................................................................
FIFTH
DEFENDANT
S.
MALUNGANE
..........................................................................................................
SIXTH
DEFENDANT
N.
NTHULI
.............................................................................................................
SEVENTH
DEFENDANT
HIEMSTRA AJ
[1] The plaintiff,
Ms A[...] O[...] M[...], was married to the third defendant, M[...]
M[...] (M[...]). Two minor children were
born from the marriage. The
marriage ended in divorce and the primary residence of the minor
children is with the plaintiff. On
6 December 1990 M[...] consented
in writing to pay maintenance in respect of the children. This
consent was made an order of court
at the Mdutjana Magistrates
'
Court at Siyabuswa in Mpumalanga, sitting as a Maintenance Court in
terms of s 3 of the Maintenance Act, 99 of 1998 (the Act).
[2] The first
defendant is the Minister of Justice and Constitutional Development.
He is sued in his capacity as the political head
responsible for the
Department of Justice. The second defendant is the National
Prosecuting Authority of South Africa, which is
sued in its capacity
as the employer of the fourth, fifth, sixth and seventh defendants.
[3] The fourth to
seventh defendants are prosecutors employed by the second defendant
at the Mdutjana Magistrates’ Court.
In terms of s 4(1 )(a) of
the Act, prosecutors are by virtue of the powers delegated to them by
the Director of Public Prosecutions
deemed to be maintenance officers
of the corresponding Maintenance Court. I shall refer to them as “the
maintenance officers”.
[4] The plaintiff
claims damages from the defendants jointly and severally. Her cause
of action against the first and second defendants
and the maintenance
officers is delictual. Her claim against M[...], the third defendant,
is for payment of arrear maintenance.
She alleges that the
maintenance officers, acting within the course and scope of their
employment with the second defendant, had
negligently and unlawfully
omitted to take appropriate steps in terms of the Act to enforce the
payment of arrear maintenance by
M[...]. As a result of their
omissions the arrears in maintenance accumulated over a period of
three years to R24 500. On 28 October
2009 a magistrate purported to
“write off’ the arrear maintenance.
[5] M[...[ had from
the outset been delinquent in paying his maintenance. He was employed
as a teacher at the M[...] Primary School
at M[...], Mpumalanga.
Because of his irregular payments, the plaintiff had obtained
garnishee orders against his emoluments, which
ensured regular
payments from then on. However, he resigned from his employment with
effect from 1 January 2006 and promptly ceased
paying maintenance.
However, a pension payout was due to him.
[6] The failure of
the maintenance officers to attach this pension payout in order to
secure the recovery of arrear maintenance
is the issue in this case.
[7] After M[...] had
stopped paying maintenance, the plaintiff reported the arrears to Mr
Jimmy Mahlangu, a maintenance inspector
at the Maintenance Court. Mr
Mah-langu duly made enquiries at the M[...] Primary School and the
principal confirmed in writing
on 14 February 2006 that the third
respondent had resigned from his position with effect from January
2006. The plaintiff testified
that she had called at the accounts
hall at the Magistrates’/Maintenance Court to collect her
maintenance each month. Invariably
M[...] had made no payments and
the staff referred her to the maintenance clerks to report the
non-payment, which she duly did.
She dealt with various officers,
including the senior magistrate, Mr Gama. She told Mr Gama that a
pension payout was due to M[...]
and asked him to instruct Mr
Mahlangu to hurry up because she feared that M[...] would squander
the money. Mr Gama told her that
the Maintenance Court had no
authority to attach M[...]’s pension benefits while he is
retired. As shown below, this advice
was clearly wrong.
[8] A maintenance
enquiry in terms of s 10 of the Act was nevertheless duly initiated.
It was first enrolled for 21 February 2006.
It was thereafter
postponed or struck from the roll on 8 March and 15 March 2006 for
reasons that cannot be discerned from the
docket.
[9]
On 31 May 2006 the plaintiff filled in a form entitled “
Complaint
of failure to comply with Maintenance Order.
The
maintenance enquiry was apparently thereupon aborted criminal
proceedings initiated. On the same day a criminal summons was
issued
against M[...]. The criminal case was enrolled for 6 June 2006 but
was postponed because M[...] said that he wanted to apply
for legal
aid. It was again postponed to 2 August 2006. On 2 August 2006 the
matter was once again postponed to 6 September 2006.
On 6 September
the magistrate recorded the following:
“
State
submit
(sic)
that accused
failed to pay as per the maintenance order because he
was
still waiting for
his pension moneys, but at this stage arrears have been paid in full.
Withdrawn by the
State.”
(It appears from the
records of the Maintenance Court that not all the arrears had at that
stage been paid and that the sum of R900
was still in arrears.)
[10] The plaintiff
testified that she had repeatedly reminded Mr Mahlangu of the awaited
pension payout and asked him to take steps
to have it attached. Mr
Mahlangu said in his testimony that he could not remember the
plaintiff mentioning the pension payout but
admitted that he had been
aware of it. He said he had been in constant communication with the
Treasury about it. During August
2006 he obtained a statement of
M[...]’s bank account. It reflected that the sum of R237 248.42
had been deposited in M[...]’s
bank account on 1 August 2006.
[11] The fourth
defendant, Mr D. Lesese, testified on his own behalf and on behalf of
the other defendants. He appeared as maintenance
officer in the
aborted maintenance enquiry and in the criminal proceedings. He
conceded that the maintenance officers had been
aware of the expected
pension payout, but said that they had left it to M[...] to use this
money to bring his arrear maintenance
up to date. When asked under
cross-examination why he had chosen to institute criminal proceedings
instead of the extensive civil
proceedings for the enforcement of
maintenance orders provided for in the Act, he responded that he had
been a relief prosecutor
and that it was the decision of the resident
maintenance officers. He further conceded that he had not
familiarised himself fully
with the contents of the file but said
that other maintenance officers had also neglected to apply their
minds to the file. He
also conceded that he was not familiar with the
whole of the Act, and had only read parts of it.
[12] When M[...]
received his pension moneys, he made a substantial payment towards
the arrears. However, there remained an amount
of R900, being one
month’s maintenance, in arrears after this payment. Thereafter
he made sporadic payments, but soon fell
into arrears again, it
appears from a bank statement dated 9 March 2007 that M[...] had been
in credit to the tune of R60 104.11
on 11 January 2007. However, by 3
March 2007 his account was in overdraft to the amount of R199.30.
Between those dates he made
24 withdrawals of R2 000 each and others
of R8 000, R5 000, R3 500 and R7 000. All these withdrawals were made
at an automatic
teller machine (ATM) at the Carousel Sun casino.
[13] Ms Thakor, who
appeared for the plaintiff, provided the court with a full analysis
of the amounts of outstanding maintenance
from time to time. This has
not been refuted by the defendants. Suffice it so say that M[...] had
at all relevant times been in
arrears.
[14] There are ample
provisions in the Act for the effective enforcement of maintenance
orders. They are the following:
Section 26(1) and
(2) of the Act provide as follows:
26 Enforcement
of maintenance or other orders
(1) Whenever any
person-
(a)
Against whom any maintenance order has been made has failed to make
any
particular
payment
in
accordance with that maintenance order; or
(b)
against whom any order for the payment of a
specified
sum
of money has
been made under section 16(1)(a)(ii)
t
or 20 or 21(4) has failed to make such payment
,
such order shall
be enforceable in respect of any amount which that person has to
failed to pay, together with any interest thereon-
(i) by execution
against property as contemplated in section 27;
(ii) by the
attachment of emoluments referred to in section 28; or (Hi) by the
attachment of any debt as contemplated in section
30.
(2)
(a) If any maintenance order or any order made under section
16(1)(a(11), 20 or 21(4) has remained unsatisfied for a period
of ten
days from the day on whi8ch the relevant amount became payable or any
such order
was
made, as the case
may be, the person in whose favour any such order
was
made may apply to
the maintenance court where that person is resident-
(i)
for authorisation of the issue of a warrant of execution referred to
in section 27(1);
(ii) for an order
for the attachment of emoluments referred to in section 30(1);
(iii)
for an order for
the attachment of any debt referred to in section 30(1).
[15] S 26(4)
provides
“
(4)
Notwithstanding
anything to the contrary contained in any law, any pension, annuity,
gratuity or compassionate allowance or other
similar benefit shalf be
liable to be attached or subjected to execution under any warrant of
execution or any order issued or
made under this Chapter in order to
satisfy a maintenance order.”
[16] S 30 provides
in respect of a debt referred to in s 26(2)(a)(ii):
30
Attachment of debts
(1) A maintenance
court may-
(a) on the
application of a person referred to in section 26(2)(a), or
(b)
when such court
suspends the warrant of execution under section 27 (4) (b), make an
order for the attachment of any debt at present
owing or accruing to
the person against whom the maintenance or other order in question
was
made to the amount
necessary to cover the amount
which
the latter
person
has failed to pay,
together
with any interests thereon, as well as the costs of the attachment or
execution, which order shall direct the person who
has incurred the
obligation to pay the debt to make payment as may be specified in
that order within the time and the manner so
specified.
[The emphases in the
sections quoted above are mine]
[17]
As appears from the underlined words in S 26(1 )(a) and (b), quoted
above, the provisions provide for the recovery of maintenance
where a
person has failed to make
“
any
particular payment in accordance with that maintenance ordef
or
failed to make
“
the
payment of a specified sum of money.
The
question has arisen whether the law allows for the attachment of
pension fund benefits to secure future maintenance obligations
of a
person. On a literal reading of the section, it appears as if the Act
only provides for the recovery of arrear maintenance
not future
maintenance.
Our
courts
have, however, made short shrift of this question. Nicolson J said in
Mngadi v Beacon
Sweets & Chocolate Provident Fund
1
“
The
law has never shrunk from interdicting
a
debtor from
dissipating funds to thwart the rights of creditors and it
was
no great leap for
the courts to extend such relief to cover or safeguarding a payout in
the hands of a fund such as the first respondent.
The provisions of
the Pension Fund Act applied to the payment of future maintenance,
more especially s 37A(1) and the provision
thereto which protects
dependants.
Ms
Tharok also referred me to the headnote in
Magewu
v
Zono
and Ofhers
2
,
which reads as follows:
“
It
is clear that upon a reading of the Act and the relevant sections of
the Pension Funds Act that the two Acts together work in
a
manner to provide
relief to an applicant who has a maintenance order that has not be
abided by the judgment debtor. That although
the respondent was not
in arrears, this on its own did not frustrate the applicant’s
case. Acknowledging the child’s
right to maintenance, and the
best interests of the child being paramount in matters dealing with
children, the court pointed out
that the first respondent had been in
arrears on several occasions. The child therefore had no security
that his future maintenance
claims would be met. It
was
also unfair to
expect the applicant to constantly take legal action to enforce the
child’s claims.
An application for
the attachment of a pension benefit was accordingly granted.
[18] Despite the
withdrawal of the criminal proceedings on 2 August 2007 after M[...]
paid a portion of the arrear maintenance,
criminal proceedings were
again instituted. M[...] was convicted on 28 October 2009 of
contravention of s 31(1) of the Act in that
he had failed to pay
maintenance during the period December 2006 to June 2009. At that
stage the arrear maintenance amounted to
R24 500. He was sentenced to
a fine of R2 000 or two years’ imprisonment. The sentence was
wholly suspended for five years
on condition that he was not found
guilty of contravention of s 31 of the Act during the period of
suspension. The court further
ruled that the arrears of R24 500 be
“written off’. The magistrate gave no reasons for this
order.
There
is no provision for such an order in the Act. No steps were taken to
appeal against this ruling or to have it reviewed or
set aside.
However, it cannot be expected of the plaintiff to have taken steps
in this regard. The State was
do
minus litis
in
the proceedings. It was the duty of the State, not the plaintiff to
prosecute such proceedings.
[19] There are in
any event other effective processes that the maintenance court should
have followed upon conviction. They are
contained in ss 40 and 41 of
the Act:
40 Recovery of
arrear maintenance
(1) A court with
civil jurisdiction convicting any person of an offence under section
31 (1) may, on the application of the public
prosecutor and in
addition to or in lieu of any penalty which the court may impose in
respect of that offence, grant an order for
the recovery from the
convicted person of any amount he or she has failed to pay in
accordance with the maintenance order, together
with any interest
thereon, whereupon the order so granted shall have the effect of a
civil judgment of the court and shall, subject
to subsection (2), be
executed in the prescribed manner.
(2)
A court granting
an
order aga/nsf a conv/cfed person may-
(a) in a summary
manner enquire into the circumstances mentioned in subsection (3);
and
(b) if the court
so decides, authorise the issue of a warrant of execution against the
movable or immovable property of the convicted
person in order to
satisfy such order.
(3)
At the enquiry, the court shall take into consideration
-
(a) the existing
and prospective means of the convicted person;
(b) the financial
needs and obligations of, or in respect of, the person maintained by
the convicted person;
(c) he conduct of
the convicted person in so far as it may be relevant concerning his
or her failure to pay in accordance with the
maintenance order; and
(d) the other
circumstances which should, in the opinion of the court, be taken
into consideration.
(4)
Notwithstanding anything to the contrary contained in any law,
any
pension,
annuity,
gratuity or compassionate allowance or other similar benefit shall be
liable to be attached or
subjected to execution under an order granted under
this section
.
[My
emphasis]
41 Conversion
of criminal proceedings into maintenance enquiry
If during the
course of any proceedings in a magistrate’s court in respect
of-
(a) an offence
referred to in section 31 (1); or
(b) the
enforcement of any sentence suspended on condition that the convicted
person make periodical payments of sums of money towards
the
maintenance of any other person,
it appears to the
court that it is desirabie that a maintenance enquiry be held, or
when the public prosecutor so requests, the
court shall convert the
proceedings into such enquiry.
[20]
These remedies have simply been disregarded. It was held in
De
Wit v De Wit
3
that it’s the maintenance officer, not the complainant, who
must decide whether or not to take such steps. The failure to
take
effective and available steps speaks of gross incompetence and
dereliction of duties.
[21]
As a result the plaintiff cannot recover the anrear maintenance, and
is left with only a dubious
spes
of
future maintenance payments.
[22] The plaintiffs
claim is for pure economic loss suffered as a result of the
maintenance officers’ failure to take the
necessary steps to
secure her claim. The Act placed a statutory duty upon them to take
such steps. Their failure to do so is therefore
unlawful. They have
patently been grossly negligent. These facts satisfy the requirements
for an action for pure economic loss
suffered as a result of an
omission.
[23] The loss that
the plaintiff suffered is the amount of arrear maintenance that the
maintenance officers could and should have
secured through an
attachment of M[...]’s pension benefit. This amount was
irretrievably lost when the magistrate ordered
on 28 October 2009
that the arrears be written off.
[24] The plaintiff
sued the individual maintenance officers personally, jointly and
severally with the first and second defendants.
The individual roles
of the different maintenance officers do not appear from the
evidence. As a team of maintenance officers they
neglected to take
the steps provided for in the Act. Their employer, the second
defendant is vicariously liable for their unlawful
and negligent
omissions. I shall therefore make no orders against the maintenance
officers individually.
[25] The amount of
the claim falls within the jurisdiction of the magistrates’
court. However, this action is akin to a review
of proceedings of a
magistrates’ court sitting as a maintenance court. The
magistrates’ court has no jurisdiction to
review its own
proceedings. It was therefore appropriate for the plaintiff to bring
her action in this court
In the result I make
the following order:
1. The first, second
and third defendants are ordered to pay to the plaintiff the sum of
R24 500 jointly and severally, the one
paying the others to be
absolved;
2. Interest on the
said sum at the rate of 15,5% per annum from the date of summons.
J. HIEMSTRA
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
Date heard: 23 - 25
April 2014
Date of judgment: 26
May 2014
Counsel for the
plaintiff: Attorney Ms A. Thakor
Attorney for the
plaintiff: Webber Wentzel
10 Fricker Road
lllovo Boulevard
Johannesburg
Tel: 011 530 5358
Fax: 011 530 6358
Ref.: A.
Thakor/2101491
Counsel for the
defendants: Attorney Mr L. Kopman
Attorney for the
defendants: The State Attorney
Ref: Ref.:
8802/2012/21
1
2004
(5) SA 388
(D) at 396E-J
2
[2004
JOL 12662(C)
3
1995
(3) SA 700
(T) at 709