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[2024] ZALMPPHC 2
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U.DJ v J.H.O (9169/2022) [2024] ZALMPPHC 2 (15 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 9169/2022
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED
DATE:
15/01/24
In
the matter between:
U[…]
D[…] J[…]
PLAINTIFF
And
J[…]
H[…] O[…]
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff and the defendant are the biological parents of K[…]
O[…] (child) who was
born on […] J[…] 2003 and
who is now a major. The relationship between the plaintiff and
defendant had broken down
irretrievably which resulted in the
defendant moving out of the common home during August 2019. From
August 2019 the child had
been staying with the plaintiff. The
plaintiff has instituted an action against the defendant for the
reimbursement of the amount
which she alleges was an amount that she
had contributed more than her pro rata share towards the maintenance
of the child.
[2]
The plaintiff in her particulars of claim has stated that for the
period 1
st
September 2019 to 30
th
May 2020 the
defendant contributed a total amount of R12 424.78 in respect of the
child’s needs. For the period 1
st
September 2019 to
30
th
May 2020 the plaintiff allegedly incurred expenditure
in respect of the child’s maintenance needs to ensure that the
child
was properly cared for in the amount of R182 112.10. On 3
rd
August 2020 an order was granted by the maintenance court whereby the
defendant was ordered to contribute R4 400.00 per month with
effect
from 31
st
May 2020. The aforesaid amount was to increase
to R 5 000.00 per month on 31
st
December 2020. The said
amount was payable directly to the plaintiff.
[3]
Payment of the child’s medical aid contribution in the amount
of R471.00 was payable directly
to the plaintiff with effect from
31
st
May 2020, payment of 50% of the reasonable extra
medical expenditure not paid by the medical aid, payment of the
child’s
school fees payable directly to the institution,
payment of the child’s gym fees payable directly to the
plaintiff and payment
of the child’s cell phone contract. The
child attained the age of majority on 31
st
January 2021
and defendant stopped paying the full maintenance for the child’s
needs. For the period 1
st
February 2021 to 31
st
July 2022 the defendant contributed a total amount of R17 901.00 in
respect of the child’s maintenance needs. During the
period 1
st
February 2021 until 31
st
July 2022 the plaintiff incurred
expenditure in respect of the child’s maintenance needs to
ensure that the child was properly
cared for in the amount of R241
602.29.
[4]
On 21
st
July 2022 the maintenance court made an order
against the defendant in terms of which the defendant had to
contribute 60% of the
tuition fees for the child at Sae Institute or
any other institution providing the similar qualification, nearer to
the child’s
place of residence, and the defendant to retain the
child on his medical aid for the duration of his studies and/or until
such
time as prescribed by the medical aid scheme for student
beneficiaries.
[5]
As per the plaintiff’s particulars of claim, the
difference between the defendant’s
pro rata contributions and
his actual contributions during the period 1
st
February
2019 and 30
th
May 2020 amounted to R104 297.00. Further
that the difference between the defendant’s pro rata
contributions and his actual
contributions during the period 1
st
February 2021 to 31
st
July 2022 amounted to R137 800.00.
The plaintiff avers that she had contributed more than her required
share towards the maintenance
of the child and therefore she is
entitled to reimbursement of the amount of R242 097.00 from the
defendant.
[6]
The defendant had raised an exception against the plaintiff’s
particulars of claim. The
grounds of the defendant’s exception
are that the plaintiff alleges in paragraphs 4.16 and 4.17 that the
defendant was legally
obliged to pay maintenance for the period 1
st
September 2019 to 30
th
May 2020 and 1
st
February 2021 to 31
st
July 2022. The plaintiff relies
solely on the conclusion or inference that such a duty existed. No
material facts are alleged from
which (if proved at trial) such
conclusion – that a legal obligation existed upon the defendant
to have made any specific
payments for maintenance during the period
as aforesaid – can be drawn. The only allegation that is made
is that a court
order was obtained on 3
rd
August 2020,
after the first period, from 31
st
May 2020 that the
defendant was obliged to pay maintenance for the child. This does not
impose a duty upon the defendant to have
made any payments for the
period as alleged or at all.
[7]
Further that the defendant as it appears in paragraph 4.5 of the
plaintiff’s particulars of claim,
indeed made maintenance
payments towards the child. No allegation is made that a legal duty
and/or obligation existed that was
required of the defendant to pay
more maintenance in the period. The same position applies to the
second period, being 1
st
February 2021 to 31
st
July 2022 as the major child only obtained a court order for
maintenance on 21
st
July 2022, which order was not granted
retrospectively. This does not impose a duty upon the defendant to
have made payment, and
therefore lacks essential averments to sustain
a cause of action.
[8]
The general principles applicable to exceptions have been considered
in a number of decided cases.
Living
Hands v Ditz
[1]
Makgoka J said:
“
Before I
consider the exceptions, an overview of the applicable general
principles distilled from case law is necessary:
(a) In considering
an exception that a pleading does not sustain a cause of action, the
court will accept, as true, the allegations
pleaded by the plaintiff
to assess whether they disclose a cause of action.
(b) The object of
an exception is not to embarrass one’s opponent or to take
advantage of a technical flaw, but to dispose
of the case or a
portion thereof in an expeditious manner, or to protect oneself
against an embarrassment which is so serious as
to merit the costs
even of an exception.
(c) The purpose of
an exception is to raise a substantive question of law which may have
the effect of settling the dispute between
the parties. If the
exception is not taken for that purpose, an excipient should make out
a very clear case before it would be
allowed to succeed.
(d) An excipient
who alleges that a summons does not disclose a cause of action must
establish that, upon any construction of the
particulars of claim, no
cause of action is disclosed.
(e) An
over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed
out cases
without legal merit.
(f) Pleadings must
be read as a whole and an exception cannot be taken to a paragraph or
part of a pleading that is not self-contained.
(g) Minor blemishes
and unradical embarrassments caused by a pleading can and should be
cured by further particulars”.
[9]
The defendant’s exception is based on paragraphs 4.5, 4.16 and
4.17 of the plaintiff’s particulars
of claim. It can therefore
not be said that upon any construction of the particulars of claim,
no cause of action has been disclosed.
From what appears from the
plaintiff’s particulars of claim, the plaintiff claim is based
on the defendant’s alleged
legal duty to maintain their child.
It is the legal duty of both parents to maintain their child
according to their relative means
and the needs of the child from
time to time. That duty does not automatically terminate when the
minor child reaches the age of
majority, but if the child is in need,
that duty will continue until the child is self-sufficient. Whether
there is still a need
for the child to be maintained beyond the age
of majority is for the plaintiff to substantiate that, and that can
be done by leading
evidence during trial.
[10]
In
Z v
Z
[2]
Meyer AJA said:
“
The age of
majority was reduced from 21 years to 18 years in terms of s 17 of
the Children’s Act 38 of 2005 (the Children’s
Act), which
became effective on 1 July 2007. The parents of the minor child or of
an adult dependent child are both under a common
law and statutory
duty to support their minor children and their major dependent
children in accordance with their respective means.
It is an
inescapable fact of modern life that marriages often end in divorce.
The parents’ duty to support their children
is not terminated
by the dissolution of their marriage by divorce”.
[11]
The legal duty to maintain a minor child or the adult dependent child
is not established by court a order
but emanate from the common law.
The court order merely clarifies issues for there to be certainty and
also to assist the other
party to be able to calculate arrears in
case the other party defaults with his/her payments. It is not in
dispute that the defendant
is the biological father of the child, and
therefore with or without the court order had a legal duty to
maintain him. The onus
will therefore be upon the plaintiff to
establish that despite the child having attained the age of majority,
he is still an adult
dependent in need of support from his parents.
[12]
The plaintiff in her particulars of claim is alleging that she had
contributed more than her pro rata share
to the needs of their child,
and is therefore claiming the excess from the defendant. Whether she
will be able to proof that is
matter of evidence. Therefore, the
plaintiff’s particulars of claim read as whole establish the
cause of action, and the
defendant’s complaints may be cured by
further particulars. It follows that defendant’s exception
stand to fail.
[13]
In the result the following order is made:
13.1 The defendant’s
exception is dismissed with costs.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
MC de Klerk
Instructed
by
:
DDKK Attorneys Inc
Counsel
for the defendant
:
Adv Basson
Instructed
by
:
Anita Campbell Attorneys
Date
heard
:
9
th
October 2023
Electronically
circulated on
:
15
th
January 2024
[1]
2013
(2) SA 368
(GSJ) at 374G – 375C
[2]
[2022]
ZASCA 113
;
2022 (5) SA 451
(SCA) 921 July 2022) at para 8