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[2009] ZAKZPHC 78
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Yudkoff v Raidoo and Another (4212/07) [2009] ZAKZPHC 78 (12 June 2009)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
PROVINCIAL DIVISION, PIETERMARITZBURG
Case No: 4212/07
AR No: 84/2008
In the matter between:
AMBIGAY RAIDOO YUDKOFF
…..........................................
Appellant
versus
PRAVEEN RAIDOO
…...............................................
First
Respondent
MAGISTRATE BP MBULAWA
….........................
Second
Respondent
JUDGMENT
Delivered on: 2009
STEYN J
[1]
Introduction
This is an appeal against
a rescission order, granted in terms of section 30(1)(a) read with
section 26(2)(a)(iii) of the Maintenance
Act, 99 of 1998 (hereinafter
referred to as ‘the Act’) by the second respondent, in
her capacity as Magistrate, at
the Maintenance Court Durban.
[2]
The background:
The appellant and the
first respondent were previously married to each other. Three minor
children were born from their marital
relationship. On 9 February
2001 a final decree of divorce was granted wherein it was provided
that the first respondent should
pay maintenance to the appellant.
Such order was however amended on 15 May 2002 by the Maintenance
Court Durban to specifically
provide for:
“
4.1
the cost of the children’s general and casual clothing (in
addition to their school and related clothing); and
the children’s
pocket money directly to the children;
5. the respondent
shall be liable and shall pay all medical, dental and ophthalmic
expenses reasonably incurred in respect of the
children including all
costs of hospitalisation, surgical treatment, prescribed medicines
and allied expenses;
6. the respondent
shall pay all the educational expenses of the children, up to and
including tertiary level, such expenses shall
include, inter alia,
school fees, subscriptions, uniforms, books and insurances, sporting
fees, sporting uniforms and equipment,
extra mural fees and
equipment, it being recorded that it is the parties’ intention
that the children should continue to
attend Crawford School or an
equivalent private school, and the respondent shall pay all the fees
and other amounts required by
the school from time to time.”
On 9 November 2006 the
Maintenance Court ordered a writ of attachment and pursuant to the
attachment order the First Respondent’s
bank account was
frozen. On the 29
th
November 2006 the First Respondent
launched an application in which he sought to rescind the order for
the attachment of the debt
and such attachment order was then set
aside.
In arriving at her
decision to set aside the attachment order the learned Magistrate in
short, found that the affidavits filed in
support of the Section 26
Application were irregular and based on hearsay evidence as such
affidavits had not been deposed to by
the Applicant but by one J Nel.
The appellant now appeals
against the decision.
[3] At the onset it
should be stated that this court is and always will be acutely alive
to the interests of children in disputes
such as that which is now
before this court. I have accordingly at all times in considering
this matter kept this paramount consideration
of the interests of the
minor children who still need to be maintained, in mind.
I
accordingly fully align myself with the view of the Constitutional
Court as expressed in
AD
and DD v W and Others (Centre for Child Law as Amicus Curiae, Dept
for Social Development as Intervening Party)
1
when it held that the
interests of minors should not be
‘
held
to ransom, for the sake of legal niceties’
and that in a case before
a court the best interests of the child
‘
should
not be mechanically sacrificed, on the altar of jurisdictional
formalism.’
2
Before dealing with the issues on appeal it is necessary to briefly
examine the relevant legislation applicable to the dispute
before
this court.
[4]
The
Maintenance
Act:
The
Maintenance Act
provides
for civil remedies against defaulters, which includes
execution against property, the attachment of emolumants and the
attachment
of debts. Most specifically
section 26
which deals with
the enforcement of maintenance orders provides for:
“
(1)
Whenever any person –
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)
,
20
or
21
(4) has failed to make such a payment,
such order shall be enforceable in respect of any amount which that
person has so failed
to pay, together with any interest thereon -
by execution against
property as contemplated in
section 27
;
by the attachment of
emoluments as contemplated in
section 28
; or
by the attachment of
any debt as contemplated in
section 30.
”
[5]
Section 26
also deals with the specific requirements that need to be
fulfilled whenever an application in terms of
section 26
is lodged.
It stipulates that a copy of the maintenance order be attached to an
application and that the application also be accompanied
by a
statement under oath or affirmation setting forth the amount which
the person against whom such order was made has failed
to pay.
3
The aforementioned
section clearly indicates/reflects that the affidavit used in support
of the application is of utmost importance
to the application in
terms of
Section 26
and hence it is necessary to scrutinise more
closely the affidavits that were filed in obtaining the attachment
order issued on
9 November 2006.
[6]
The remedies provided for by the Act are clearly aimed at creating an
environment where children will not be neglected due to
the conduct
of mothers and fathers who default in paying maintenance.
4
An analysis of the
provisions of the Act, however, also shows that some of the
provisions, such as section 26 which is applicable
to this matter are
far reaching and prejudicial in nature and hence the Legislature in
its wisdom has provided for specific safeguards
to guard against some
of the drastic measures and consequences provided for in the Act.
I shall now turn to the
issues on appeal.
[7]
The issues on
appeal
In considering whether
the rescission decision of the court
a quo
was correct, the
main issues of the appeal that need to be considered are the
following:
The alleged
irregularities in the affidavits before the Court issuing the writ;
The application of the
hearsay rule and the rescission decision of the court
a quo
;
[7.1]
Alleged
irregularities in the affidavit:
To my mind the issue of
whether the application for enforcement of the Maintenance order in
terms of s 26 of the Act, was accompanied
by a statement under oath
and whether the deponent was in a position to declare how the
maintenance order was not complied with,
i.e. how the respondent
failed to pay the maintenance, is the fundamentally important issue
in deciding this appeal. Any irregularities
in relation to the
statement under oath or the deponent would mean that the provisions
of Section 26 have not been fully complied
with.
I shall now deal with
each of the relevant affidavits in order to consider whether there
were any irregularities:
[i] The first affidavit
displays that the deponent is Ambigay Raidoo Yudkoff who declared
that the defendant (now Respondent) is
in arrears with his
maintenance payments to the following extent: Medical Aid - an amount
of R17 595,85; Clothing - an amount of
R36 359,37 and Extras - an
amount R130 814,68; the sum total of arrears, being R184 769,90. This
affidavit, despite being deposed
to by Ambigay Raidoo Yudkoff was not
signed by her in the presence of a commissioner of oaths but by J
Nel.
Ex facie
the document it appears that J Nel purportedly
took an oath swearing that the contents of this affidavit were true
and correct.
[ii] The second affidavit
that accompanied the application in terms of Section 26, is also
deposed to by Ambigay Raidoo, who ex
facie the document once more
declared that Mr Raidoo was in arrears. She also in the document
declared that she is aware that ‘if
the affidavit is tendered
in evidence, that I would be liable to prosecution if I wilfully
state anything I know to be false, to
be true.’ This affidavit
is once again not signed by the person deposing to the affidavit but
by Ms J Nel.
[iii] The third affidavit
that was tendered in support of the application in terms of section
26 of the Act follows the irregular
pattern of the two previous
affidavits, and was yet again signed by Ms Nel, despite the fact that
it purports to be a statement
made by Ambigay Raidoo who affirmed
under oath that she is the person ‘in whose favour a
maintenance order was made’
and that the Respondent is in
arrears. This ‘affidavit’ was made on 31 October 2006 and
signed by Nel as the deponent
on two dates, namely 31 October 2006
and 1 November 2006.
[iv] All these affidavits
were not signed nor made by the deponent. The one and only person who
should have made and signed these
affidavits was Ms Raidoo but she
never did. Accordingly all these affidavits used in the support of
the application to obtain an
order in terms of s 26 of the Act were
clearly irregular and should never have been used in support of the
section 26 application,
nor should any order have been issued on the
basis of such affidavits.
[v] It is apparent from
all the papers filed that despite Ms Nel being authorised to
institute proceedings on behalf of Ms Raidoo,
that no reading or
interpretation of such authorisation could ever be expanded to
include an authority to depose to a statement
in another person’s
name. If Ms Nel was under the impression that she was authorised to
institute the proceedings in terms
of the power of attorney issued by
Ms Raidoo Yudkoff, then she should have applied for the order in a
proper manner, i.e. to depose
to the affidavits in her own name and
to declare under oath all the relevant facts that are in her
knowledge. To allow parties
to make statements under oath on behalf
of third parties not taking the oath in respect of such statement
would only make a mockery
of any justice system.
The
rationale for making a statement under oath is to avoid false
statements being made by deponents. Such false statements under
oath
are viewed in a serious light in any justice system. Our justice
system is no different and deponents are faced with consequences
when
making such statements to the extent that such deponents could be
charged with criminal offences such as perjury or defeating
of the
ends of justice.
5
I therefore cannot fault
the learned Magistrate’s finding when she held in relation to
these affidavits as follows:
“
[T]he
applicant is the one who incurred the claimed expenses. The applicant
is the one residing with the children in question. So
therefore it
goes without saying that the person qualified to depose to the
founding affidavit is the applicant herself. Whatever
Ms Nel deposed
to in the founding affidavit thus amounted to hearsay.”
I will deal with the
issue of the hearsay later in this judgment.
It was argued that as Ms
Raidoo had subsequently herself deposed to a further affidavit in the
United States of America and that
the irregularities referred to
should be condoned. I am not persuaded by this argument as I fail to
see how it could have been
expected of any court to rectify fatally
flawed affidavits, retrospectively. What was asked of the court
a
quo
was not to condone a defect but to condone an irregular
procedure. In my view the defects in the aforementioned affidavits
used
in support of the writ of execution were materially defective
and as such could not be condoned for the reasons given.
Before dealing with the
issue of hearsay it should be mentioned that the learned Magistrate’s
judgment although sound is not
above criticism. What is however
required is to determine whether she misdirected herself in either
dealing with the facts or the
application of the law. I have
critically analysed the judgment and am of the view that the
Magistrate adopted a very narrow approach
when interpreting the power
of attorney issued in favour of the attorneys. In my view the terms
of the power of attorney are fairly
broadly stated as the following
extract indicates:
“
[T]o
ask, demand sue for, and recover, of and from all or any person or
persons whomsoever, all such sum or sums of money as now
are, or
shall, or may at any time hereafter become due,”
The power was therefore
not limited only to the laying of criminal charges in respect of the
Maintenance Act but
was extended to encompass any litigation. This
said, however, I remain unconvinced that the learned Magistrate was
mistaken when
she came to the conclusion that the order should be set
aside, based on the fact that the application for the order was not
in
accordance with the law.
[8]
The application of
the hearsay rule
On behalf of the
Appellant it was argued that the learned Magistrate erred when she
held that the affidavit deposed to by Ms Nel
was based on hearsay and
was inadmissible, I shall now deal with this submission.
In
such it had at first been argued that the affidavits do not
constitute hearsay
6
evidence and thus were
admissible. In the alternative it was strongly argued by Mr Shapiro,
acting on behalf of the Appellant, that
the learned Magistrate should
have exercised her discretion in terms of section 3 of the Evidence
Law Amendment Act, 45 of 1988
and allowed the affidavit of Ms Nel as
admissible evidence. It was argued that the learned magistrate should
have exercised such
discretion and allowed the evidence of the
applicant in the ‘interests of justice’. In my view there
appears to be
no reason why reliance should have been placed on
hearsay evidence in circumstances where the applicant was readily
available to
make a statement, as she subsequently did. The best
evidence to have been used in support of the application was the
evidence of
Ms Raidoo Yudkoff, and hence there was no need for the
exercise of any discretion, as stipulated in terms of s 3(c) of Act
45 of
1988. Ms Raidoo was available and could have deposed to an
affidavit.
7
In my view the magistrate
was correct in deciding that the evidence constituted hearsay and was
thus inadmissible.
In my view the Second
Respondent properly evaluated the case in light of the requirements
set forth in section 27(5) of the Act
when she found that the First
Respondent had shown good cause for the attachment to be set aside
and subsequently acted correctly
when she had set the writ aside.
[9] Accordingly the
appeal should be dismissed with costs.
____________________________
Steyn, J
Koen J: I agree, it is so
ordered.
____________________________
Koen, J
Date of Hearing: 20 April
2009
Date of Judgment: 12 June
2009
Counsel for the
appellant: Adv W N Shapiro
Instructed by: Shepstone
& Wylie
c/o Tomlinson Mnguni
James
Counsel for the first
respondent: Adv E S Law
Instructed by: Nan Naidoo
Attorneys
c/o Steenkamp Weakly
Ngwane
1
[2007] ZACC 27
;
2008
(3) SA 183
(CC), see also
J v J
2008 (6) SA 30
(C) at 37G-H.
2
J
v J supra
at 38A-B.
3
See
s 26(2)(b) of the Act.
4
See
Bannatyne v Bannatyne (Commission for
Gender Equality, as Amicus
Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) at para
[24]
– [28]).
5
Cf.
Statutory Perjury (s 319(3) of the 1955 Criminal Procedure Act) also
see
s
9 of the Justices of the Peace and Commissioners of Oaths Act 16 of
1963.
6
Hearsay
is now defined in section 3(4) of Act 45 of 1988 which reads as
follows:
“
hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility
of any person
other than the person giving such evidence
;
7
See
s 3(c)(v) which stipulates that the reason why the evidence is not
given
by
the person upon whose credibility the probative value of such
evidence depends, is but one of the considerations exercising
a
discretion in terms of the Act.