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2024
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[2024] ZANCHC 4
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Thomas v Balepile (61/2021; CA&R 68/23) [2024] ZANCHC 4 (26 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
COURT
A QUO:
61/2021
COURT
IN CASU:
CA&R 68/23
DATE
DELIVERED:
26 JANUARY 2024
Reportable:
YES
/ NO
Circulate
to Judges:
YES
/ NO
Circulate
to Magistrates:
YES / NO
Circulate
to Regional Magistrates:
YES / NO
Edited
YES/
NO
Ex
parte:
DPP,
NORTHERN CAPE
In
re:
THOMAS
,
CENTRICIA
GOMOLEMO
Applicant
and
BALEPILE
,
GOITSEMODIMO
GODFERY
Respondent
Coram
:
Nxumalo J
JUDGMENT
NXUMALO
J:
1.
This matter has been referred to me as a
so-called special review of the court
a quo’s
impugned default order against the respondent
a
quo
, dated 21 July 2022. The referral
is at the behest of the Director of Public Prosecution, Northern
Cape.
2.
The relevant background facts pertaining to this
matter may be surmised from the opinions of the learned Acting Chief
Public Prosecutor,
Upington Cluster, Mr AC Damarah and the Chief
Magistrate, Mr OM Krieling. It is therefore not imperative to
repeat same here,
suffice it only to point out that it appears to be
common cause that the impugned order was erroneously granted by the
said court,
in the absence of the respondent
a
quo
.
3.
The learned
Chief Magistrate in sum is of the opinion that, regard being had to
the facts and circumstances of this case, the respondent
should be
advised to file an application to set aside the impugned order in
terms of
Section 18(4)
of the
Maintenance Act 99 of 1998
.
[1]
In the premise, he maintains that it was therefore not
necessary to send the matter on special review at this stage.
4.
For his own part, Mr Damarah is, in sum, of the
opinion that even though
Section 18
provides for a procedure which
the respondent may follow to set the impugned order aside, same does
not find application in this
instance. According to him, this is
simply so because the learned Magistrate had no “
locus
standi”
to deal with the matter and the
impugned proceedings were not in accordance with justice.
5.
That it therefore follows that the matter falls
to be submitted for special review for the default order to be set
aside and be
referred back to the relevant Maintenance Officer to
conduct a proper investigation in terms of the Act.
6.
Locus
standi
in
our law concerns the sufficiency and directness of a person’s
interest in the litigation to be accepted as a litigating
party. It
is also related to the capacity of a person to conclude a jural
act.
[2]
It does not
concern the jurisdiction of a court.
7.
It is so
that every Magistrate Court is a Maintenance Court within its area of
jurisdiction for the purposes of the Act; regard
being had to
Section
3
thereof. Jurisdiction in this context means the power
invested in a court by law to adjudicate upon, determine and dispose
of a matter.
[3]
8.
Section 18(4)(a)
of the Act, expressly and
unambiguously authorises a person
in
respect of whom a Maintenance Court has made an order by default to
apply to it for the variation or setting aside of the impugned
order.
Section 18(4)(b)
of the Act, for its own part, expressly and
peremptorily requires the said application to be made in a prescribed
manner within
20 days after the day on which the person became aware
of the order by default or within such further period as the
Maintenance
Court may, on good cause shown, allow.
9.
Any
person who wishes to make an application under
Section 18(4)(a)
of
the Act, is required to give notice of his or her intention to make
the application to the person who lodged the complaint,
which notice
shall be served at least 14 days before the day on which the
application is to be heard.
[4]
The Maintenance Court, for its own part, is empowered to call
upon the person who has made the application to adduce such
evidence,
either in writing or orally, in support of his or her application as
it may consider necessary. The person who
has lodged the
complaint may, in turn, adduce such evidence, either in writing or
orally, in rebuttal of the application as the
Maintenance Court may
consider necessary.
10.
Of significance is that
Section 18(6)
of the Act
contemporaneously permits any
person in whose favour an order by default has been made to consent
in writing to the variation or setting aside of such an order.
The
consent in writing shall be handed in at the hearing of the
application for the variation or setting aside of the order
by
default.
11.
It
is thus only after consideration of the evidence, that the
Maintenance Court may make an order confirming the order by default
referred to in
Section 18(2)(a)
of the Act; or vary same, if it
appears to it that good cause exists for such variation; or set aside
same, if it appears to it
that good cause exists for such setting
aside, and convert the proceedings into a maintenance enquiry.
[5]
12.
Whilst it is conceded that rules, like maxims,
are not all-embracing but admit of modifications and exceptions, and
whilst there
are several cases where, although a statute created a
new duty or obligation and provided a particular remedy, such remedy
would
be considered by our Courts to be merely cumulative. It
is so, that whether on the creation of a new statutory duty, the new
remedy likewise created by statutes is to be regarded as sole and
exclusive or cumulative, depends upon the scope and meaning of
the
particular statute. It is a question of the intention of the
Legislature.
13.
In
South African Maritime Safety Authority v McKenzie
2010
(3) SA 601
(SCA), thus:
“
[16] Where a
statute creates both a right and a means for enforcing that right the
position is that:
‘
We must look
at the provisions of the Act in question, its scope and its object,
and see whether it was intended when laying down
a special remedy
that that special remedy should exclude ordinary remedies. I
n
other words, we have no right to assume, merely from the fact that a
special remedy is laid down in a statute as a remedy for
a
breach of a right given under statute, that other
remedies are necessarily excluded.’
If on a proper
interpretation of the statute in question the legislature
has confined a person harmed by a breach of the right
conferred
therein to the statutory remedy, then resort to other means of
enforcement is excluded.
Accordingly,
both the scope of the right itself and the means of enforcing that
right are determined by the intention of the legislature
as
ascertained on a proper interpretation of the legislation.”
[6]
14.
In
National
Industrial Council of the Leather Industry of SA v Parshotam &
Sons (Pty) Ltd
[1984]
3 All SA 25
(D), the court aptly observed thus:
“
…
it
is a general rule of construction that if it be clear from the
language of a statute that a legislature, in creating
an
obligation, has confined the party complaining of its
non-performance, or suffering from its breach , to a
particular remedy ,
such party is restricted thereto and
has no further legal remedy .
An exception to
this general rule is, however, found in the right of the
court to grant (unless the legislature has expressed
a contrary
intention) an ancillary remedy by way of interdict.
(Madrassa Anjuman Islamia v Johannesburg Municipality 1917
AD
718.)”
[7]
15.
In
Madrassa
,
the court observed:
“
Now there is
abundance of authority in the English Courts for the proposition
that, as a general rule, where a Statute, as here,
creates a special
obligation and prescribes special remedies, no other remedy is
available. This rule was laid down by Lord Tenterden
in
Doe
v Bridges
(1 B. & Ald. 847).
16.
It is so that it is not clear how it came about
that the impugned order be granted, as there are no records of
proceedings of that
day made by the presiding Magistrate. It is
also so that, according to Mr Damarah who postponed the matter in his
capacity
as the Maintenance Officer, at all material times hereto
there was no application whatsoever by him for an order by default
either,
serving before the learned Magistrate.
17.
It is further so that the Chief Magistrate is of
the view that some irregularities may have occurred in this matter
and that the
impugned order might have been erroneously granted
because the respondent was present earlier and later excused.
18.
It can be deduced from the foregoing that the Act
expressly and peremptorily prescribes special remedies for persons
against whom
Maintenance Courts have made orders by default to apply
to the said courts for variation or setting aside of the said
orders.
Put differently, on a proper interpretation of the Act,
it is clear from its language that the Legislature has confined a
party
who seeks to impugn an order granted by default to the
particular remedy contemplated in
Section 18
of the Act.
19.
It is only after
consideration of the evidence that the Maintenance Court may
determine these permutations and make an order either
confirming the
order by default referred to in
Section 18(2)(a)
of the Act; or vary
same, if it appears to it that good cause exists for such variation;
or set aside same, if it appears to it
that good cause exists for
such setting aside, and convert the proceedings into a maintenance
enquiry. I am unfortunately
not in a position to do so.
20.
Everyone is
equal before the law and has the right to equal protection and
benefit of the law.
[8]
The
parties in this matter have the right to have their dispute resolved
by the application of law decided in a fair public
hearing before a
court or where appropriate, another independent and impartial
tribunal or forum.
[9]
21.
I am therefore of the considered opinion that
regard being had to the scope and meaning of the Act, the intention
of the Legislature
was to create a new remedy for persons against
whom Maintenance Courts have made orders by default to apply to the
said courts
for variation or setting aside of such orders.
ORDER
:
22.
In the premise:
1.
THE SPECIAL REVIEW APPLICATION IS HEREBY
REFUSED.
JUDGE
APS NXUMALO
HIGH
COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION
KIMBERLEY
[1]
Hereinafter referred to as “
the
Act
”.
[2]
Gross
v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
(A); see also
Jacobs
v Waks
1992 (1) SA 521 (A)
p. 534D.
[3]
Communication
Workers Union and Another v Telkom SA Ltd and Another
1999
(2) SA 586 (T).
[4]
Section 18(4)
(c) of the Act.
[5]
Section
18(5)
of the Act.
[6]
Emphasis supplied.
[7]
Emphasis supplied.
[8]
Section 9 of the Constitution of the Republic of South Africa, 1996.
[9]
Section 34,
ibid
.