Magewu v Zozo (7821/03) [2004] ZAWCHC 18; [2004] 3 All SA 235 (C); 2004 (4) SA 578 (C) (30 April 2004)

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[2004] ZAWCHC 18
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Magewu v Zozo (7821/03) [2004] ZAWCHC 18; [2004] 3 All SA 235 (C); 2004 (4) SA 578 (C) (30 April 2004)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE
CASE No 7821/03
In the matter between:
PUMLA
VIOLA MAGEWU Applicant
And
TAMSANQA
COSMOS ZOZO First Respondent
TELKOM
RETIREMENT FUND Second Respondent
OLD MUTUAL
EMPLOYEE BENEFITS Third Respondent
JUDGMENT DELIVERED ON THIS 3Oth DAY OF APRIL 2004
HLOPHE,
JP:
INTRODUCTION
[1] This is an application for the retention of pension
benefits and the payment of future maintenance claims out of a
pension fund
benefit due and legitimately owned by the First
Respondent. This court granted an interim order on the 22
nd
of September 2002. Today is the return day of the
rule nisi
previously issued by this court. The crisp issue to be decided is
whether the Applicant is entitled to a final order that, the second
and third respondents retain the first respondent’s
pension/withdrawal benefit for so long as the first respondent’s
minor child
requires support and maintenance. Secondly, that the
second and third respondents pay the sum of R1 800 per month to the
applicant,
so long as the child is in need of support and maintenance
in respect of the first respondent’s future maintenance obligations
towards the child. The Applicant appeared in person. The First
Respondent was represented in court by Mr van der Merwe.
FACTS
[2] The Applicant and First Respondent were previously
involved in a relationship. They are the natural parents of the
minor child
Xola born 23 September 1995. The parties terminated their
relationship in 1996. The child was then sent to live with his
maternal
grandparents in the Eastern Cape for a few years. During a
portion of that time the First Respondent, the natural father of the
minor
child Xola, contributed towards the maintenance of the child.
The exact amount is in dispute. However, it is of no material
relevance
to the present application.
[3]
In 1999 Xola went to live with the Applicant. The parties were unable
to come to any agreement regarding his maintenance. The
Applicant
initially approached the Wynberg Maintenance Court for an order in
1999 and was granted an interim order in October 2001.
During this
period the First Respondent paid no maintenance despite the fact that
he was gainfully employed and must have known of
his legal duty to
maintain the minor child. On the 7
th
of December 2001 the
interim order issued by the Wynberg Maintenance Court was made final.
In terms of the order, the First Respondent
is obliged to make a
monthly maintenance payment of R1 800 in respect of Xola. The
Applicant had difficulty in ensuring that the
monthly maintenance
obligations were met by the First Respondent. She applied and was
granted an emolument order in terms of which,
First Respondent’s
employer Telkom, was obliged to deduct the monthly maintenance from
the First Respondent’s salary and make
payment to the Applicant.
[4]
The Applicant received notification dated 13 August 2003 that the
First Respondent had left the employ of Telkom and accordingly
the
employer could no longer be bound by the emolument order in place as
from August 2003. First Respondent failed to pay the monthly
instalment at the end of August 2003. The First Respondent did not
pay maintenance from August 2003 until 15 January 2004. The First
Respondent made a single payment of R1 800 on the 10 November 2003 in
terms of an order made by this court on 10 November 2003 when
the
First Respondent brought an interim interdict application for the
suspension of the order granted on 27 October 2003 pending
the
rescission application on 20 November 2003. On 20 November 2003, this
court ordered the First Respondent to pay R1 800 on or
before the 2nd
of day of each month, pending the hearing on 3 March 2003. Despite
this and the order of the Wynberg Maintenance Court,
which remained
valid, the First Respondent failed to pay the total outstanding
amount until 15 January 2004. Currently the First
Respondent is not
in arrears. He was probably advised to pay all arrear maintenance
before the hearing of this application. This
much became clear to the
court as Mr van der Merwe in argument stressed that the First
Respondent was not in arrears at all. This
was clearly in an attempt
to persuade the court to find in favour of the First Respondent.
[5]
Telkom retrenched the First Respondent. The pension fund benefit due
to the First Respondent from Old Mutual is approximately
R126 000 The
First Respondent was also a beneficiary of a “retrenchment package”
offered by Telkom at his retrenchment of R278
000 net. In addition,
the First Respondent owns a house in Somerset West with a bond
registered in favour of ABSA Bank to the value
of R300 000. The
current value of the house is R375 000. The Applicant currently earns
an income of approximately R250 000 per annum.
The First Respondent
has since his departure from Telkom embarked on a business venture,
which he alleges, will cost him R110 000
in start up capital.
[6] The First Respondent contends that he has no
intention of dissipating the proceeds of his pension fund to defeat
Xola’s maintenance
claims. The Applicant appears to accept that the
First Respondent does not have the intention to frustrate his
maintenance obligations.
The Applicant’s main contention, however,
is that the First Respondent’s actions in the past and his current
manner of responding
to his maintenance obligations, does not give
her the security to believe that the First Respondent will comply
with his maintenance
obligations. Her fears are based on her dealings
with the First Respondent regarding the maintenance of their child.
The Applicant
wishes to secure the pension fund benefits so as to
ensure that the First Respondent will comply with the maintenance
order. The
Applicant has doubts whether the First Respondent’s
business plans will provide the minor child with sufficient security
that the
First Respondent’s maintenance obligations towards him
will be met. Furthermore, the Applicant contends that the information
given
by the First Respondent regarding his proposed business
ventures, is extremely vague and that the First Respondent has no
more than
a mere hope that he will generate additional income in the
future.
The Law
[7]
The question to be decided is whether our law allows for the securing
of pension fund benefits to secure the future maintenance
obligation
of a person? Section 37A (1) of the Pension Funds Act, 24 of 1956,
(The Act) provides:
“ Save to the extent permitted by this Act, the Income Tax Act,
1962 (Act No. 58 of 1962), and the
Maintenance Act, 1998
, no benefit
provided for in the rules of a registered fund (including an annuity
purchased or to be purchased by the said fund from
an insurer for a
member), or right to such benefit, or right in respect of
contributions made by or on behalf of a member, shall,
notwithstanding anything to the contrary contained in the rules of
such of a fund, be capable of being reduced, transferred or otherwise
ceded, or of being pledged or hypothecated, or be able to be attached
or subjected to any form of execution under a judgment or order
of
court of law, or to the extent of not more than three thousand rand
per annum, be capable of being taken into account in a determination
of a judgment debtor’s financial position in terms of section 65 of
the Magistrates’ Court Act, 1944 (Act No.32 of 1944), and
in the
event of a member or beneficiary concerned attempting to transfer or
otherwise cede, or to pledge or hypothecate, such benefit
or right,
the fund concerned may withhold or suspend any benefit in pursuance
of such contributions, or part thereof: Provided that
the fund may
pay any such benefit or any benefit in pursuance of such
contributions, or part thereof, to any one or more of the dependants
of the member or beneficiary or to a guardian or trustee for the
benefit of such dependent or dependants during such period as it
may
determine”
[8] Section 26(4) of the Maintenance Act, 99 of 1998,
(‘The Maintenance Act’) provides:
“Notwithstanding anything to the contrary contained in any law, any
pension, annuity, gratuity or compassionate allowance or other
similar benefits shall be liable to be attached or subjected to
execution under any warrant of or any order issued or made under
this
Chapter in order to satisfy a maintenance order”
The maintenance order in this application was made under
section 18 read with
section 16
of the
Maintenance Act. In
section 16
the
Maintenance Act refers
expressly to an order issued or made under
this chapter, being Chapter 5. The
Maintenance Act provides
that,
where any order is granted in terms of the
Maintenance Act and
the
person against whom such an order was made, fails to comply with that
order, such an order may be enforced by the attachment
of property,
emoluments or debts as contemplated by the
Maintenance Act in
sections 27
,
28
and
29
respectively.
[9]
Section 40
of the
Maintenance Act provides
for the
recovery of arrear maintenance. It creates a new offence, that is,
the failure to abide by a maintenance order. In
Mngadi v Beacon
Sweets & Chocolates Provident Fund and others
[2003] 2 ALL SA 279
(D)
Nicholson J held that the provisions of Chapter 5 of the
Maintenance Act dealt
with arrear maintenance and the mechanism
available for recovering money already due. The Act was not
considered to secure future
maintenance.
[10] Although the
Mngadi
case
(supra)
and
the present case are similar in that they both require the court to
consider an order to secure pension fund benefits for future
maintenance, it is important to set out the differences between these
two cases. In the
Mngadi
case the father of the two children
in question had resigned from his job primarily with the intention to
frustrate his maintenance
obligations. In
casu
it is common
cause that Telkom retrenched the First Respondent and he did not
resign in order to thwart his maintenance obligations.
Secondly, the
First Respondent in this present matter is not currently in arrears.
At one stage he was in arrears. However, the First
Respondent was no
longer in arrears when this matter was heard. In the
Mngadi
case, however, the First Respondent was in arrears with regard to his
maintenance obligations.
[11] In the
Mngadi
case, the applicant had first
approached the Pension Fund Adjudicator to consider her application.
The Adjudicator had considered
the provisions of
section 26(4)
of the
Maintenance Act against
those of the section 37A of the Pensions Act.
The Adjudicator had found that the
Maintenance Act did
not permit the
Fund to attach the third respondent’s withdrawal benefit to secure
the payment of maintenance in respect of the
two minor children.
Nicholson J analysed section 37A of the Pensions Act and held that
the section can be divided into its constituent
parts as follows-
“
The savings preamble that preserves the position in
the
Pension Funds Act itself
, the Income Tax Act 58 of 1962, and the
Maintenance Act, 1998
, and expressly makes the rest of the
subsection subject to those Acts.
The Prohibition provides that no benefit in the
extended sense, be provided shall be capable of being reduced,
transferred or otherwise
ceded, or of being pledged or hypothecated,
or be liable to be attached or subjected to any form of execution
under a judgment
or order of a court of law. (Even the rules of the
Fund cannot provide for such and in addition the Fund is empowered
to withhold
or suspend payment of thereof)[sic].
The proviso protecting dependants entitles the fund to
pay any such benefit or any benefit in pursuance of such
contributions, or
part thereof, to any one or more of the dependants
of the member or beneficiary or to a guardian or trustee for the
benefits of
such dependant or dependants during such a period as it
may determine.” (at 284 E-J).
Nicholson J considered that the last proviso was an
empowering one enabling the fund to pay dependants without specifying
those arising
out of maintenance courts. The court accepted that the
provisions of Chapter 5 of the
Maintenance Act were
in terms of the
maxim
generalia specilibus non derogat
, meant that in this
instance that the
Maintenance Act had
taken precedence over the
general provisions of the
Pension Funds Act (at
284J- 285A).
[12] Chapter 4 of the
Maintenance Act governs
maintenance and other orders.
Section 15
of the
Maintenance Act
codifies
the common law duty of parents to support their children.
This duty rests upon both parents and accordingly does not discharge
the
duty to support a child where one spouse earns substantially more
than the other. In
casu
Mr van der Merwe drew the court’s
attention to the fact that the Applicant earns a significant salary
that would enable the Applicant
to maintain Xola in a manner to which
he is accustomed. This fact however, does not absolve the First
Respondent from the reciprocal
duty to contribute to the support of
the minor child Xola, of course, bearing in mind their respective
means. In addition, the
Maintenance Act provides
in
Section 2(2)
that
the provisions of the Act may not be interpreted as allowing any
person liable to maintain another from being excused from doing
so.
This serves to preserve the joint common law duty of support.
[13] The common law has always catered for a creditor
who fears that the debtor has the intention of dissipating the funds
to frustrate
the creditor’s claims. This has been in the form of an
interdict. In
Knox D’Arcy Ltd and others v Jamieson and others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 372C
the court held that the common law
remedy in such a situation has always been available. There has been
no need to name it specifically.
In the
Mngadi
case
(supra)
the court
granted an anti-dissipation interdict. The interdict served to
restrain the Pension Fund from paying pension benefits to
an
intentionally recalcitrant father. In order to have an
anti–dissipating order granted by the court, the applicant must
show
that the debtor is dissipating or likely to dissipate the funds
with the intention to defeat he creditor’s claims. See
Knox
D’Arcy Ltd and others
(supra)
at
372A – 373H,
Mngadi
(supra)
at
287B-G.
6.
Application of Law To Facts
[14] It is clear upon a reading of the
Maintenance Act
and
the relevant provisions of the
Pension Funds Act that
the two
Acts together do work in a manner to provide relief to an applicant
who has a maintenance order that has not been abided
by the judgment
debtor. The
Maintenance Act was
designed to alleviate the manner and
conditions under which maintenance system was previously run, in that
it opened new legal avenues
to deal with recalcitrant fathers.
However, according to the court papers and arguments before the court
the First Respondent is
not currently in arrears having settled them
on the 15
th
of January 2004. This, however, does not and
cannot spell the end of the matter for the Applicant.
[15] The
Maintenance Act does
not create a closed list
of mechanisms available in law to assist children who have claims of
maintenance and their specific situations
are not expressly set out
in the Act.
Section 2(2)
of the
Maintenance Act provides
that it may
not be interpreted so as to derogate from the common law duty of
support relating to the liability of persons to maintain
other
persons. In this instance, it is clear that the Applicant’s case
may not fall flat due to the fact that the First Respondent
is not
currently in arrears. Nicholson J correctly set out that courts may
not adopt a
non possumus
approach where a fund is available
and may be used to secure the right to maintenance for children. See
Mngadi
(supra)
at 287A.
In any event,
there seems to be no reason, in logic, why such an order should not
be made having regard to the best interest of the
child.
[16] Indeed to follow such a narrow interpretation would
be to ignore the constitutional duty of the court to develop new
mechanisms
of granting the Applicant a means to vindicate her
constitutional rights by a narrow reading of the law. In
Fose v
Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC):
1997 (7) BCLR
851
(CC)
at paragraph 69 Ackerman J held:
“
I
have no doubt that this court has a particular duty to ensure that,
within the bounds of the Constitution, effective relief be granted
for the infringement of any of the rights entrenched in it. In our
context an appropriate remedy must mean an effective remedy, for
without effective remedies for breach, the values underlying and the
rights entrenched in the Constitution cannot be properly upheld
or
enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is essential that
on
those occasions when the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively
vindicated.
The courts have
a particular responsibility in this regard and are obliged to ‘forge
new tools’ and shape innovative remedies,
if needs be, to achieve
this goal.”
(My emphasis) (Footnote omitted).
[17] Mr van der Merwe argued on behalf of the First
Respondent that the Applicant has in essence approached the court to
grant her
an interdict
in securitatem debiti
on the basis that
she requires security for payment of First Respondent’s future
maintenance obligations to Xola. Further, he argued,
that such an
interdict is not available were the Applicant has not shown that the
First Respondent has no intention of dealing with
the funds in a
mala
fide
manner. Mr van der Merwe relied on
Knox D’Arcy Ltd and
others v Jamieson and others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) 372
in support
of his contentions.
[18] In my judgment there is a simple answer to Mr van
der Merwe’s contentions. Section 28(2) of the Constitution provides
“A
child’s best interests are of paramount importance in every
matter concerning the child”. In
Bannatyne v Bannatyne and
another
[2002] ZACC 31
;
2003 (2) BCLR 111
(CC)
the Constitutional Court dealt
with the entrenched rights of children in Section 28 of the Bill of
Rights, and the laws relating
to maintenance. In the words of Mokgoro
J, “ Children have the right to proper parental care. It is
universally recognised in the
context of family law that the best
interests of the child are of paramount importance. While the
obligation to ensure that all children
are properly cared for is an
obligation that the Constitution imposes in the first instance on
their parents, there is an obligation
on the state to create the
necessary environment for parents to do so” (at 375 C).
Furthermore, Mokgoro J held that the State must
provide the legal and
administrative structure necessary to achieve the realisation of
rights in Section 28. The
Maintenance Act is
recognised as part of
the States infrastructure “designed to provide speedy and effective
remedies at minimum costs for the enforcement
of parents’
obligations to maintain their children” (at 376A-E).
[19] The Constitutional Court was aware that despite the
intention of the legislature to create an enabling environment for
the recovery
of maintenance, there were several difficulties
regarding the operation of the
Maintenance Act. The
Commission on
Gender Equality placed before the court material relating to the
inadequately trained staff, insufficient facilities
and resources.
The court considered these factors and stated the role of the courts
in such circumstances.
“
Systematic
failures to enforce maintenance orders have an impact on the rule of
law. The courts are there to ensure that the rights
of all are
protected.
The Judiciary
must endeavour to secure for vulnerable children and disempowered
women their small but life sustaining legal entitlements.
If court orders are habitually evaded and defied with impunity, the
justice system is discredited and the constitutional promise
of human
dignity and equality is seriously compromised for those most
dependent on the law.”
(at 377B para 27) (My emphasis).
The Constitutional Court went further to add that the
function of the State was therefore more than just to create a
framework to
ensure children’s rights were protected but also to
create system that would put such a framework to effective use.
“Failure
to ensure their effective operation amount to a failure to
protect children against those who take advantage of the weaknesses
of
the system” (at 377 para 28).
[20] In
Bannatyne v Bannatyne
(supra)
the
Constitutional Court held at paragraph 29, that the logistical
difficulties of the maintenance system were compounded by the
gendered nature of the maintenance system. The Commission on Gender
Equality had submitted material to the effect that on the breakdown
of marriage or relationships as in this case, the custodial parent is
usually the mother. This creates an additional financial burden
on
women and inhibited their ability to find employment.
“
Divorced
or separated mothers accordingly face the double disadvantage of
being overburdened and under-resourced in terms of means.
Fathers, on
the other hand, remain actively employed and generally become
economically enriched. Maintenance orders are therefore
essential to
relieve this financial burden
(at
377 para29).
Furthermore, the Constitutional Court held that such
disparities undermined the achievement of gender equality, a founding
value of
the Constitution. The enforcement of maintenance payments
was therefore considered not only a measure to secure the rights of
children,
but also to uphold the dignity of women and promote the
foundational value of achieving equality and non-sexism.
“
Fatalistic
acceptance of the insufficiencies of the maintenance system compounds
the denial of rights involved. Effective mechanisms
for the
enforcement of maintenance obligations are thus essential for the
simultaneous achievement of the rights of the child and
the promotion
of gender equality.”
Bannatyne
v Bannatyne
(supra),
at 378A para 30.
“
The
appropriate relief required by Section 38 is relief that is effective
in protecting threatened or infringed rights. Where legislative
remedies specifically designed to vindicate children’s rights as
effectively and cost-effectively as possible fail to achieve that
purpose, they do not provide effective relief.”
(at
378C para 31).
[21
In my view, although the First Respondent is not currently in
arrears, he has been in arrears on several occasions before. Though
he does not indicate the intention to thwart his future maintenance
claims towards Xola, the child in this instance has no security
that
his future maintenance claims will be met. The First Respondent has
not conducted himself in a manner that would create the
impression
that the provision of Xola's maintenance is of paramount importance
to him. In fact, the Applicant has had to approach
the court for an
emolument order to ensure that the First Respondent abided by his
maintenance obligations. Once the First Respondent
was retrenched the
Applicant had no avenue to turn to, as an emolument order could no
longer be enforced. In that same month of August
2003, the First
Respondent failed to show his
bona fides
by failing to pay
maintenance until he was probably advised of the precarious legal
position he had placed himself by his attorneys.
Payment was then
made on 15
th
of January 2004 in full.
[22] It is clear that without the constant operation of
the law to force the First Respondent to abide by his maintenance
obligations,
the First Respondent is not willing to do so - hence he
has been dragged to court again in these proceedings. These facts
create
the impression that the Applicant “must run after” the
First Respondent each time she wishes to secure maintenance for their
son. The Applicant makes use of the current maintenance system and as
tedious as it may be, she has been able to turn to the courts
to
ensure that Xola receives maintenance from the First Respondent. The
Applicant, who appeared in person, has argued that it has
been time
consuming and the Applicant has had to request leave days from her
employer to pursue the First Respondent. The Applicant’s
entire
dealings with the First Respondent regarding Xola’s maintenance
have served to disempower her and are an attempt to infringe
on her
human dignity and equality as she is at the mercy of the First
Respondent unless she takes legal action.
[23] The First Respondent has indeed established a close
corporation and has other business ventures in mind. However, the
Applicant,
due to her knowledge of the First Respondent regarding his
attitude towards maintenance, does not believe that without the force
of law the First Respondent will direct a portion of his income
towards the satisfaction of the maintenance order currently in place.
The Applicant fears and reasonably so, that the Pension Fund benefits
may be lost in the vague business dealings of the First Respondent
and she will have no claim against the First Respondent to ensure
that the minor child receives maintenance. Why should the Applicant
be expected to go back to court again to enforce maintenance
obligations against the First Respondent?
[24] In all the circumstances of the case, although the
intention of the First Respondent has not been considered to be an
attempt
to directly thwart the maintenance order, his conduct in the
current matter does not serve to create the impression he is willing
to abide by the maintenance order. The attachment of pension fund
benefits in respect of future maintenance claims in
casu
, is a
direct and effective means of ensuring that the rights of the child
and dignity of women are upheld. There is no reason why
in this
instance, the pension fund should not be directed to withhold the
withdrawal benefit in order to secure the future maintenance
claims
of the minor child Xola.
[25] In my view, the
rule nisi
previously issued
by this court is hereby confirmed. There shall be no order as to
costs.
________________
Hlophe, JP
­­­­­­­­­­­­­