THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Appeal case number: A181/2024
Lower Court Case Number: 3312022/MAI000048
C L APPELLANT
and
Z L RESPONDENT
Coram: Wille, J et Kholong, AJ
Heard: 11 October 2024
Delivered: 21 October 2024
Case Number: 16530/24
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JUDGMENT
______________________________________________________________________
WILLE, J
INTRODUCTION
[1] This is an appeal from the lower court about the maintenance payable by the
appellant (‘CL’). The lower court (the ‘maintenance court’) issued an order in favour of
the respondent (‘ZL’) concerning the maintenance of their two minor children. Initially,
the parties had entered into a settlement agreement, culminating in an order by the High
Court (the ‘high court’).1
[2] ZL advanced that CL failed to meet the increased needs of the ir minor children
and sought a substitution and variation of the maintenance order . By contrast, the CL
sought a reduction in the amounts payable. The maintenance court increased the
monthly maintenance payable by CL, including additional obligations for school fees
and orthodontic expenses.2
[3] CL’s grounds of appeal primarily focus on the assertion that no ‘good cause’
existed for the variation of the original maintenance order, that his financial position had
deteriorated, and that the maintenance court exceeded its powers in granting relief
beyond what was initially requested by ZL. The appeal ground advanced that the
financial position of CL had deteriorated was challenging to follow as ‘affordability’ by
CL was conceded and not placed in issue during the trial. CL was legally represented
in the maintenance court, and ‘affordability’ was not disputed.3
BACKGROUND AND CONTEXT
[4] CL and ZL were married, and during the subsistence of their marriage, two minor
children were born (these children are still minors). They were divorced about five years
ago. They entered into a settlement agreement that was made an order of court by
consent. Following the terms of the settlement agreement , the parties agreed that CL
would pay the following maintenance obligations regarding the minor children: (a) a n
amount of R7500,00 per month per child (without deduction or set -off); (b) t his amount
1 This happened about three years ago and this was the order which sought to be varied and
substituted.
2 These issues were the two main considerations in this appeal.
3 It was common cause that affordability by CL was not an issue in dispute.
would cover the minor children's expenses, including food, vitamins, clothing, activi ties,
outings, housing, internet, security, educational costs, and medical aid , and (c) certain
‘variable’ expenses in the amount of R10,520.00.4
[5] Finally, the settlement agreement provided that the maintenance payable
concerning the children was subject to an annual inflationary increase. ZL was required
to retain the minor children on her medical aid , and the instalment in respect of the
children’s medical aid would be paid from the cash component of the maintenance paid
by CL.5
[6] The application fo r the variation in the maintenance court at the instance of ZL
was undoubtedly triggered by an alleged failure by CL to pay the monthly variable
expenses. Further, a dispute arose in connection with the payment of the educational
costs of the minor childr en as CL claimed that these expenses were included in the
cash component of the monthly maintenance payable to ZL.6
VARIATION AND SUBSTITUTION
[7] ZL contended that a globular monthly maintenance amount of R32,303.50 for the
minor children was required . Sh e calculated that CL’s maintenance liability should
amount to R16 ,151.75 per month per child , considering the actual expenses of the
minor children, which she carefully recorded in her variation application.7
[8] This amount included R5,500.00 per month for school fees and, most
importantly, the variable amount of R10,520.00 per month . CL was paying (according
to ZL) the sum of R19,471.00 per month for the children, which was R15,252.00 less
4 These expenses were not permanent and could be reviewed annually (this is where the uncertainty
first arose).
5 There was an increase in the medical costs of the minor children as especi ally orthodontic costs of one
of the children.
6 The educational costs of the children increased dramatically.
7 ZL made a complete disclosure with specific details.
than what ZL alleged t o be CL's actual maintenance liability . having regard to the
increased expenses and needs of the children.8
[9] In her variation and substitution application, ZL sought the following relief: (a) that
CL be ordered to pay maintenance of R16,151.75 per month (per child) and (b) that CL
be ordered to pay other contributions like the children’s school fees, school curriculum,
school station ery, school clothes and shoes, sport s uniforms and orthodontis t costs.
The issue of the orthodontist costs was regrettably a hotly disputed and contested issue
between CL and ZL.9
[10] ZL contended that no ‘good cause ’ existed for substituting the extant
maintenance order because ZL’s financial position had improved since their divorce.
CL instituted discrete proceedings seeking a substitution of the extant divorce order to
vary the maintenance amount payable. CL sought an order : (a) that the cash
component of the maintenance o rder be reduced to R3,500.00 per month (per child )
and (b) that he be liable for the children’s school fees and medical aid premium.10
THE ORDER BY THE MAINTENANCE COURT
[11] The matter proceeded to tr ial with viva voce evidence from CL and ZL. After
hearing the evidence and argument, the maintenance court issued the following order :
(a) that the extant order be substituted; (b) that CL pay maintenance of R15,190.00 per
month (per child ); (c) that in addition, CL to pay the children’s educational expenses
(which included school fees, books, clo thes and stationery ); (d) that CL pay the
children’s orthodontist expenses insofar as ZL’s medical aid d oes not cover these
expenses and, (e) that the order would have retrospective effect.11
RELEVANT EVIDENCE
8 The educational expenses increased tenfold.
9 CL took the position that these costs were unnecessary.
10 The undisputed evidence was that ZL was now living with her parents to manage her financial affairs.
11 With effect from 1 November 2023.
[12] CL contended that ‘affordability’ was not an issue on his part and, therefore, did
not disclose or rely on any documents . In addition, when CL c hartered his variation
application, he did not present evidence as to why the ex tant order should be
substituted or discharged. When he testified, he a verred that he could afford the
increased maintenance claimed by ZL.12
[13] ZL testified and presented evidence concerning three discrete bank accounts
demonstrating her financial position. She testified about a separate bank account that
she used only for the expenses of the minor children. When there were insufficient
funds in this account, ZL would use funds from her other bank accounts to maintain the
minor children.13
THE LEGAL FRAMEWORK
[14] By legislative intervention, the targeted legislation ( Chapter 4 of the Maintenance
Act, 99 of 1998 ) (the ‘Act’) regulates maintenance and related orders. Subsection
6(1)(b), read with ss 6(2) and further read with ss 16(1)(b) , provides that an existing
maintenance order may be substituted if ‘good cause ’ exists to do so. Section 15
codifies the common-law duty of parents to support their children.14
CONSIDERATION
DISCRETION
[15] A court of appeal will not readily interfere with a maintenance order awarded in a
lower court (a trial court). It will only do so if there is a misdirection or irregularity. This
is even more prevalent when a trial court exercises judicial discretion when weighing up
12 Affordability was not placed in issue.
13 ZL kept meticulous records in connection with th e use of the maintenance which she received for the
minor children.
14 A variation and substitution may be ordered when “good cause” is demonstrated.
what is fair , reasonable and just, considering the peculiar circumstances of a specific
case.15
[16] I say this also because when the maintenance court exercised its discretion in
this matter , it had (available to it) the choic e of a wide range of equally permissible
options. Thus, demonstrating and establishing (on appeal) that the option chosen by
the maintenance court is s ubject to appeal (because of a misdirection or an irregularity)
is demanding and complex. An appeal court's approach is analogous to the test applied
in compensation cases on appeal.16
[17] I am also enjoined in considering (in maintenance matters ) the children's best
interests. This means carefully considering t he children's needs and the parent's ability
to contribute to such needs.17
IRREGULARITY
[18] The first possible ground contended for by CL that requires a debate under the
rubric of a ‘misdirection or an irregularity’ is the averment that the maintenance awarded
to ZL is more than what she initially requested. This (in my view) is a question of
interpretation and is, at best, a neutral consideration for CL.18
[19] This is so because ZL attempted to identify (in her variation application) the ‘cash
component’ to be paid for each child and an additional amount for ‘other contributions’
to be paid for the minor children. The ‘variable’ amounts initially agreed upon (subject
to annual review) led to the uncertainty surrounding the initially agreed court order.19
FINANCIAL ISSUES
15 Mentz v Simpson 1990 (4) SA 455 (A) at 456 E - J.
16 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at page 200.
17 Kemp v Kemp 1958 3 SA 736 (D).
18 ZL merely defined her case in her application analogous to what is done in pleadings.
[20] CL advanced that he rem ained unemployed since the end of last year. This
employment status had to be evaluated against the concession that affordability was not
an issue raised for determination. Further, being unemployed did not exonerate CL
from paying maintenance as he had assets from which he derived a substantial income.
CL provided no details of the income he derived from his business activities.20
[21] By contrast, the evidence presented by ZL was not challenged. She is living with
her parents to allow the interest she has earned on the capital she received after selling
the former matrimonial home may be used to supplement her income and care for the
minor children's needs. Most significantly, she demonstrated that she managed her
financial affairs responsibly and ensu red that the money she received for maintenance
was allocated solely towards the needs of the minor children.21
[22] One of the material financial changes presented at the hearing was the dramatic
increase in the educational expenses of the minor children. CL could not challenge or
engage with ZL’s evidence in this connection, coupled with her evidence concerning the
increased costs of maintaining the minor children.22.
[23] Put another way, it was not established that t he needs of the children were
extravagant or unnecessary, considering the children’s prior standard of living . In
addition, ZL demonstrated that her son required orthodontic treatment. CL was notified
about the cost but believed this treatment was cosmetic and unnecessary.23
[24] We are the n left with the argument that the maintenance court should have
ordered a pro rata apportionment of the maintenance obligations . This issue was not
engaged with or raised as a shield by CL. A conspectus of the evidence exhibited that
19 The variable amounts were by their very nature subject to amendment and review.
20 CL owned immovable properties and owned a share in a close corporation.
21 This was achieved by maintaining a discrete bank account as alluded to earlier.
22 Mgumane v Setemane 1998 (2) SA 247 (TK) at page 253.
23 On a reading of the papers and the reasons advanced this procedure seemed n ot to be extravagant or
a luxury.
ZL was battling to m ake ends meet and struggled to meet her financial obligations
despite moving in to live with her parents.24
CONCLUSION AND COSTS
[25] CL could not demons trate a misdirection or irregularity by the judicial officer of
the maintenance court. CL advanced that affordability was not an issue, and he could
not effectively (or at all) challenge the evidence presented by ZL save for some general
criticisms in this connection.25
[26] CL did not support his claims or assertions using any supporting documentary
evidence. He simply failed to disclose his financial position completely (or at all). CL
has not demonstrated that the maintenance court’s discretion was exercised improperly,
nor that any wrong principles were applied or relevant facts overlooked.26
[27] The be st interests of the minor children remain the core focus in maintenance
matters. These interests were thoroughly considered. No case was made out for
interference with the terms of the maintenance order, and there is no justification to set
aside or alter the lower court's decision. The judicial officer’s discretion to substitute the
original order considered the best interests of the minor children wi th an emphasis on
their increased educational and healthcare requirements.27
COSTS
[28] An argument was m ade that a punitive costs order should be granted because
the appeal record was unnecessarily proli x. I disagree. I say this because this
24 It would have been challenging to order an increased pro rata contribution by ZL.
25 CL did not engage with specific challenges to the evidence given by ZL.
26 Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at page 200.
27 There was no genuine dispute about the requirements of the min or children save for the orthodontic
dispute.
complaint primarily referenced the ‘Heads of Argument’ filed in the lower court, which
subsequently found their way into the record of appeal.28
[29] This was explained. The legal representatives agreed that they would file ‘Heads
of Argument’ and would not thereafter advance further arguments through oral
submissions to the judicial officer. Thus, what was advanced th rough written argument
did not form part of the transcribed record of proceedings.29
[30] Finally, a complaint was made about the volume of bank statements ( by way of
redacted copies) attached to the appeal record. This complaint may have some merit,
but I needed more (than this in isolation) to be persuaded that this would warrant
granting a punitive costs order against CL. I say this because some of th e information
contained in these bank statements was relevant to the ultimate determination of this
appeal.30
ORDER
[31] The following order is granted:
1. The appeal is dismissed.
2. The appellant (CL) shall be liable for the costs of and incidental to this appeal on
the scale as between party and party (as taxed or agreed) , with the costs of
counsel according to scale B.
________
WILLE, J
I agree:
28 These Heads of Argument were even referenced by counsel for ZL.
29 This is the reason why they were included in the record of appeal.
30 The evidence of the keeping of discrete bank accounts kept by ZL.
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KHOLONG, AJ