IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 2025-095755

In the matter between:

KJ Applicant

and

IJ First Respondent

THE MAINTENANCE OFFICER
MITCHELL’S PLAIN MAGISTRATES COURT Second Respondent


REASONS FOR JUDGMENT – 4 SEPTEMBER 2025
___________________________________________________________________

LEKHULENI J:

Introduction

[1] The applicant brought an application on an urgent basis which was divided
into two parts, Part A and Part B. In Part A, the applicant sought an order suspending
the Mitchell's Plain Maintenance Court proceedings instituted by the first respondent

against the ap plicant pending the finali sation of the review proceedings
contemplated in Part B of the Notice of Motion. In Part B, the applicant seeks relief in
terms of the Promotion of Administrative Justice Act 3 of 2000 , alternatively , the
common law, that the decision of the Maintenance Officer to refer the first
respondent’s maintenance complaint for an inquiry as contemplated in section 10 of
the Maintenance Act 99 of 1998 (‘the Maintenance Act’) be reviewed and set aside.
Ancillary thereto, the applicant also seeks an order that the aforesaid decision by the
maintenance officer be substituted with an order declining to refer the first
respondent’s complain t for an inquiry in terms of section 10 of the Maintenance Act.
This court was tasked to consider Part A of the application .

[2] After listening to arguments in the urgent court, I dismissed the application
and promised to furnish reasons for my decision. What follows are the reasons for
that order.

The background facts

[3] The first respondent (a dependent daughter) is a biological daughter of the
applicant. She was born out of a marriage between the applicant and Mr MSJ. The
marriage relationship between the applicant and Mr MSJ has broken down
irretrievably with no prospec ts of reconciliation. The parties have separated, and in
2024, the applicant instituted divorce proceedings against Mr MSJ under case
number 11295/2024, seeking a divorce order, forfeiture of benefits, as well as lifelong
maintenance in terms of section 7( 2) of the Divorce Act. The first respondent has
reached the age of majority and is a student at False Bay College doing training in
tourism. The first respondent resides with her father, Mr MSJ.

[4] The second respondent is a Maintenance Officer, of Mitch ell’s Plain
Magistrates Court appointed in such capacity in terms of Section 4 (1)(a) of the
Maintenance Act 99 of 1998 (‘ the Maintenance Act’) with her principal place of

Maintenance Act 99 of 1998 (‘ the Maintenance Act’) with her principal place of
business at the Mitchells Plain Magistrates Court, situated at First Avenue, Mitchell ’s
Plain, Cape T own, Western Cape. The applicant sought an urgent order for the
suspension of the Maintenance Court proceedings instituted by the first respondent

(her daughter) against her at Mitchells Plain Magistrates Court, pending the
finalisation of the review proceedings contemplated in Part B of the Notice of Motion.

[5] During October 2024, the applicant instituted a Rule 43 application against
her husband, Mr MSJ. The application in terms of Rule 43 was heard on 22 October
2024. Nuku J granted a n order against Mr MSJ to contribute to the maintenance of
the applicant as from 01 November 2024 until the determination of the divorce action
by effecting payment to the applicant in the sum of R8824 per month as
maintenance payable on or before the firs t day of each month, directly into such
bank account as the applicant may nominate from time to time. In addition, the Court
ordered Mr MSJ to retain the applicant on his medical aid scheme and to bear the
monthly premium in respect thereof, including any increases. The Court also directed
Mr MSJ to pay R50 000 towards the applicant’s legal costs.

[6] Subsequent thereto, the dependent daughter applied for maintenance against
the applicant, her biological mother, at the Mitchells Plain Magistrates Court for an
amount of R9,595.52. The applicant was subpoenaed, and the Maintenance Officer
investigated the complaint, conducte d an informal enquiry in terms of section 6 of the
Maintenance Act. The Maintenance officer determined that a need in respect of the
dependent daughter was established. The Maintenance Officer determined that an
inquiry be held in terms of section 10 to de termine a reasonable amount of
maintenance that the applicant should pay whilst the dependent daughter was still
studying. The matter was enrolled for the section 10 enquiry for 16 May 2025 at the
Maintenance Court.

[7] At the hearing of the matter, the applicant’s counsel objected to the
commencement of the proceedings of the section 10 inquiry before the Maintenance
Court and asserted that the granting of an order at the inquiry would effectively vary

Court and asserted that the granting of an order at the inquiry would effectively vary
the Rule 43 order granted by the High Court. The app licant’s counsel asserted that
the applicant intended to launch review proceedings against the Maintenance
Officer’s decision to refer the matter for enquiry in terms of section 10. In addition,
the applicant’s counsel requested that the enquiry before the Maintenance Court be
stayed pending the outcome of a review application that the applicant intended to
launch in the High Court.

[8] Counsel argued in the Maintenance Court that the review application would
be based on three grounds. First, that the appl icant has no means to make any
financial contribution to the first respondent. Secondly, the dependent daughter has
no need for maintenance as her father (Mr MSJ) looks after her, and thirdly, the
applicant has no means to make any financial contribution. It was also argued that
the maintenance order in the Maintenance Court could not be granted against the
applicant due to the Rule 43 interim order.

[9] On 23 May 2025, the magistrate dismissed the applicant’s request and found
that the duty of support envisaged in the Act extends to both parents, and that
parents are obliged to maintain their children in accordance with their respective
means. Notwithstanding, the magistrate directed that the anticipated review
application, if any, be launched by no later than 01 July 2025 and that the section 10
inquiry would proceed on 01 August 2025.

[10] Pursuant to the magistrate's judgment, the applicant brought this application
on an urgent basis for a hearing on 29 July 2025 to suspend the proceedings a t the
Maintenance Court pending review proceedings. In her urgent application, the
applicant contends that on a balance of probabilities, the inescapable conclusion is
that the institution of the Maintenance Court proceedings by the first respondent was
motivated by ulterior motives. The applicant asserted that the first respondent,
clearly at the behest of her father, with whom she is residing, and who is clearly
aggrieved by the Rule 43 order, is seeking to recoup what must be paid monthly to
her to make ends meet.

[11] The dependent daughter filed a notice to oppose and did not file any
answering affidavit. The dependent daughter applied for legal aid, and her
application was unsuccessful. She approached other institutions, and her request
was declined. She appeared in person at the hearing of this matter.

Principal submissions by the parties

[12] Mr Steyn, counsel for the applicant, argued that no maintenance order can
possibly be made against the applicant in the Maintenance Court proceedings during
a section 10 inquiry while the Rule 43 order remains in place. Mr Steyn submitted
that the applican t bases her contention on three grounds: First, the applicant
contended that the first respondent (the dependent child) has no need to be
maintained by her. According to counsel, the first respondent is being maintained by
her father. In the Rule 43 procee dings, her father indicated on record that he would
continue to do so. Secondly, in terms of the Rule 43 order, this Court has already
declared that the applicant is maintenance dependent. In other words, since Mr MSJ
must maintain the applicant to make en ds meet, the Maintenance Court cannot
expect the applicant to maintain the dependent daughter. Thirdly, any order that the
Maintenance Court may make during the Maintenance Court proceedings will conflict
with the Rule 43 order.

[13] As discussed above, the first respondent ( dependent daughter ) appeared in
person. At the hearing of this application, she informed the Court that the
maintenance that she receives from her father was insufficient. The first respondent
submitted that there was a shortfall in the maintenance she received from her fath er,
and hence she approached the Maintenance Court for maintenance from her mother,
the applicant. The first respondent stated that she is a student at False Bay College,
pursuing a degree in tourism management. The Court specifically asked her what
prompted her to approach the Maintenance Court for maintenance, and she stated
that she went to the Maintenance Court because she needed money for school,
food, toiletries, and other essentials. She stated that the money her father supports
her with was insuffic ient and not enough to cover all her expenses, and hence she
approached the Maintenance Court for her mother's assistance.

Applicable legal principles

Applicable legal principles

[14] The first respondent is a n adult dependent child who has reached the age of
majority, but she is still dependent on her parents for a living. She is at an institution
of high learning . She indicated she needs support from her mother as the support
she receives from her father is insufficient. Her parents are in the process of divorce.

[15] It is apposite to underscore the fact that parents of a minor child or of an adult
dependent child are both under a common law duty to support their minor and major
dependent children in accordance with their respective means . (Z v Z 2022 (5) SA
451 (SCA) para 8). It is an inescapable fact of modern life that marriage often ends
in divorce. (S v S and Another 2019 (8) BCLR 989 (CC) para 1). The parents’ duty to
support their children is not terminated by the dissolution of their marri age by
divorce. In Bursey v Bursey and Another 1993 (3) SA 35 (SCA) at 36D, the Supreme
Court of Appeal (‘the SCA’ ) held that the incidence of th e common law duty of
support in respect of each parent depends upon their relative means and
circumstances and the needs of the child from time to time. The court observed that
the duty does not terminate when the child reaches a particular age but continues
after majority. (see also Kemp v Kemp 1958 (3) SA 736 D) at 737; Hoffmann v
Herdan NO and Another 1982 (2) SA 274 (T) at 275A).

[16] The Divorce Act itself recognises that there are instances where a child born
to divorcing parties may, despite the fact that he or she has attained majority,
nonetheless still be financially dependent on his or her parents for some time to
come. (J.A.L v J.L and Another (19441/2020) [2022] ZAWCHC 118 (10 June 2022)
para 18). Section 6(1)(a) provides that ‘a decree of divorce shall not be granted until
the court is satisfied that the provisions made or contemplated with regard to the
welfare of any minor or dependent child of the marriage are satisfactory or are the
best that can be effected in the circumstances ’ (emphasis supplied) . Section 6(3)
provides that a C ourt granting a decree of divorce may make any order which it
deems fit in regard to the maintenance of a dependent child of the marriage.

[17] Section 6 of the Divorce Act safeguards the interests of dependent and minor

[17] Section 6 of the Divorce Act safeguards the interests of dependent and minor
children. It provides the power f or a court to make orders directing parents who are
in the process of seeking a divorce to make payments for minor children who are
dependent. ( Jarvis v Jarvis [2013] JOL 30618 (GSJ) at para 6). Significantly, sections
6(1)(a) and 6(3) do not differentiate between a minor child and a major dependent
child of the marriage regarding the payment of maintenance. When the Divorce Act
came into effect the age of majority was 21 years in terms of section 1 of the Age of
Majority Act 57 of 1972. Since the advent of the Children’s Act 38 of 2005 on 1 April
2010, the age of majority has been set at 18 years in terms of section 17 of the Act. It

is incontestable that a t this age, many young people have not yet completed their
secondary education , let alone started and finished their tertiary studies.

[18] It must be stressed that a child's vulnerability and their need for protection do
not abruptly disappear when they turn 18. In Centre for Child Law v Minister of
Justice and Constitutional Development and Others (National Institute for Crime
Prevention and the Re -Integration of Offenders, as Amicus Curiae) 2009 (2) SACR
477 (CC) para 39, albeit in a different context, the Constitutional Court observed that
‘there is no intrinsic magic in the age of 18, except that in many contexts it has been
accepted as marking the transition from childhood to adulthood’.

Discussion

[19] It is common cause that the Maintenance Officer in this matter investigated
the dependent child’s maintenance complaint in terms of section 6 of the
Maintenance Act and established that there is a need for maintenance. Pursuant
thereto, the Maintenance Off icer recommended that the matter proceed to a section
10 enquiry to determine the relative means of the applicant to contribute towards the
financial needs of the dependent child, her daughter. Mr Steyn implored this Court to
suspend the enquiry at the Maintenance Court , premising his argument on the three
grounds discussed above. I address these grounds, ad seriatim, infra.

Should the dependent child be maintained by the applicant?

[20] For the sake of clarity, the relevant part of section 6 of the Maintenance Act 99
of 1998 provides that –

‘(1) Whenever a complaint to the effect -
(a) that any person legally liable to maintain any other person fails to
maintain the latter person;
(b) that good cause exists for the substitution or discharge of a maintenance
order; or
(c) that good cause exists for the substitution or discharge of a verbal or
written agreement in respect of maintenance obligations in which respect

there is no existing maintenance order, has been made and is lodged with a
maintenance officer in the pre scribed manner, the maintenance officer shall
investigate that complaint in the prescribed manner and as provided in this
Act.
(2) After investigating the complaint, the maintenance officer may institute an
enquiry in the Maintenance Court within the area of jurisdiction in which the
person to be maintained, or the person in whose care the person to be
maintained is, resides, carries on business or is employed with a view to
enquiring into the provision of maintenance for the person so to be
maintained. ’ (emphasis added)

[21] A careful consideration of these provisions demonstrates that it is certainly the
function of the Maintenance Officer to investigate any complaint and then decide
whether to institute an enquiry in the Maintenance Court . Section 7 of the Act sets
out the manner in which the Maintenance Officer may investigate the matter.
Amongst ot hers, the Maintenance Officer may obtain statements under oath or
affirmation from persons who may be able to give relevant information concerning
the subject of such complaint; gather information concerning the identification or
whereabouts of any person who is legally liable to maintain the person mentioned in
such complaint or who is allegedly so liable; the financial position of any person
affected by such liability; or consider any other matter which may be relevant
concerning the subject of such complaint.

[22] In the written submissions made by the Maintenance Officer opposing the
suspension of the inquiry at the Maintenance Court , the Maintenance Officer
submitted that the maintenance needs of the dependent child (first respondent) have
been establi shed. The Maintenance Officer also noted that the means of the
applicant must be established. Based on the investigation of the maintenance
complaint made under Section 6, the Maintenance Officer asserted that the

complaint made under Section 6, the Maintenance Officer asserted that the
respondent has the means to contribute tow ards the applicant's needs. According to
the Maintenance Officer, the applicant may not be able to afford the full amount
requested by the dependent child; however, some contribution from the applicant
can be made. Simply put, the Maintenance Officer found merit in the dependent
child’s complaint.

[23] The applicant asserts that the dependent daughter does not have any
maintenance needs. According to her, he r daughter is seeking to recoup the
maintenance that her husband was directed to pay her under the Rule 43 court
order. This, in my view, cannot be correct. The dependent child has indicated that the
maintenance contribution made by his father is insufficie nt to care for her expenses
and needs. The Maintenance Officer investigated her complaint and determined that
she indeed needs maintenance. The suggestion that she does not need
maintenance is speculative and cannot be endorsed.

[24] Accordingly, the Main tenance Officer's decision to refer the complaint for
inquiry in terms of Section 10 was spot on and cannot be faulted. Moreover, both
parents have a legal duty to maintain their dependent children. Perhaps it is apposite
to remind ourselves that in terms of section 305(4) of the Children’s Act 38 of 2005, a
person who is legally liable to maintain a child is guilty of an offence if that person,
while able to do so, fails to provide the child with adequate food, clothing, lodging
and medical assistance. In addition, once legal liability to pay maintenance is
established, as in this case, a person can be compelled to provide evidence of their
means so that the amount of maintenance can be determined. (Govender v
Amurtham 1979 (3) SA 358 (N) at 361H).

[25] The first respondent is currently not self -sufficient. She is busy with her
studies and is being financially supported solely by her father. Notwithstanding that
she has attained the age of majority, it cannot be said that the dependent child
cannot seek relief in terms of the duty of support from the applicant based on the fact
that she has reached the age of majority. The duty of support extends to dependent
children even if they have reached the age of majority. Consequently, the applicant
has a duty to maintain her daughter.

Can a Maintenance Court make an order against a dependent applicant?

Can a Maintenance Court make an order against a dependent applicant?

[26] Mr Steyn submitted that, in terms of the Rule 43 order, this Court has already
declared the applicant to be maintenance dependent . According to counsel, as Mr
MSJ was ordered to maintain the applicant, the Maintenance Court cannot expect

the applicant to m aintain the dependent child. This proposition with respect is
erroneous and misplaced. I must point out that the maintenance of children is the
primary obligation of parents. Maintenance of children, in my view, must prevail over
all other expenses, includ ing those of their parents. Children have a right to family
care or proper parental care.

[27] It must be borne in mind that at the time the Rule 43 application was heard,
the dependent child was not part of those proceedings. The High Court, considering
Rule 43, may have considered the father’s contribution towards the minor child, but
the basic needs of the child were not at all considered by the High Court, as that was
an issue the Court was not seized with.

[28] The ability of the applicant to pay maintenance to the dependent child can
only be determined at the section 10 maintenance enquiry. T o close the door of the
Court on the dependent child in circumstances where the Maintenance Officer has
established independently that the child needs maintenance will be an infringement
of her right to dignity and the right to access the courts. Above all , such a decision
would be inimical to the tenets set out in Section 28(2) of the Constitution, which
underscores the best interest of child and that a child has the right to proper parental
care, basic nutrition, shelter, basic healthcare services, and social services.

[29] The commitment made by Mr MSJ at the hearing of the Rule 43 proceedings
to support the dependent child does not absolve the applicant from her common law
duty to support her daughter. In addition, it cannot be expected of the father o f the
dependent child to take sole responsibility for caring for the dependent child when
the applicant can equally contribute towards her maintenance. What must be
determined by the Maintenance Court is the applicant’s ability to pay and the amount
of con tribution she is required to make. The assessment of each parent’s ability to

of con tribution she is required to make. The assessment of each parent’s ability to
meet the needs of the dependent daughter will require an investigation by the
Maintenance Court into the assets, liabilities, income, and expenses of each parent,
in accordance with Section 10 of the Maintenance Act. The Maintenance Court will
be required to perform an intricate balancing act to determine to what extent the
needs of the dependent ch ild can be met by both parents and the amount which

each parent is required to contribute towards those needs. (see Mgumane v
Setemane 1998 (2) SA 247 (Tk) at 250H.

Will a maintenance order made at Maintenance Court conflict with the Rule 43
order?

[30] The applicant asserts that, having assessed both her financial position and
that of her husband, the High Court directed that the applicant requires monthly
maintenance of R8824 to make ends meet pendente lite. T o this end, her husband
was directed to make payment of the aforesaid amount. The applicant contended
that if the Maintenance Court grants an order pursuant to section 10 inquiry, such an
order would reduce the interim order granted by the High Court in terms of Rule 43.
As a matter of law, so the contention proceeded, this is untenable and unsustainable.
The applicant asserted that the Maintenance Court cannot overrule an order granted
by the High Court in terms of Rule 43.

[31] The argument raised by the applicant fundamentally misses the poi nt and is
therefore incorrect. The relevant question is the means on the part of the applicant to
pay maintenance to her daughter. The mere fact that there is a current Rule 43
interim spousal maintenance order awarded in favour of the applicant in a pendi ng
divorce action cannot automatically negate the duty of support placed on the
applicant. As correctly pointed out by the court below, i f that were indeed the case, it
would suggest that all parties currently involved in divorce proceedings, where an
interim spousal maintenance order has been issued, are automatically exempt from
their obligation to provide support for their children. Such a conclusion cannot be
accurate. While I acknowledge that the applicant has been recognised as financially
dependent, this status does not relieve her of the duty to provide maintenance for
her dependent child. As foreshadowed above, when the Rule 43 order was granted,
it was an order made between the applicant and the respondent. The High Court did

it was an order made between the applicant and the respondent. The High Court did
not consider the finan cial needs of the dependent child.

[32] Furthermore, if the Maintenance Court finds that the applicant has the means
to pay maintenance towards the dependent child, and such an order reduces the
award of the applicant in terms of Rule 43, that would be a consequence of the rule

of law. In my view, the maintenance obligation that pa rents have over their children
supersedes any maintenance obligations between spouses. Notwithstanding, the
overriding consideration is the ability of the parent concerned to pay maintenance
and the needs of the dependent child. Accordingly, sections 15 an d 16 of the
Maintenance Act settle it. Section 15(3)(a) provides:

‘Without derogating from the law relating to the support of children, the
Maintenance Court shall, in determining the amount to be paid as
maintenance in respect of a child, take into consideration -
(i) that the duty of sup porting a child is an obligation which the parents have
incurred jointly;
(ii) that the parents' respective shares of such obligation are apportioned
between them according to their respective means; and
(iii) that the duty exists, irrespective of whether a child is born in or out of
wedlock or is born of a first or subsequent marriage.
(b) Any amount so determined sha ll be such amount as the Maintenance
Court may consider fair in all the circumstances of the case.’

[33] Whilst section 16(1)(b) provides:

‘(1) After consideration of the evidence adduced at the enquiry, the
Maintenance Court may –
(b) in the case where a maintenance order is in force make a maintenance
order contemplated in paragraph (a)
(i) in substitution of such maintenance order; or
(ii) discharge such maintenance order; or
(c) make no order.’

[34] The two sections make it abundantly clear that a Maintenance Court has a
wide discretion when dealing with a maintenance matter. Any maintenance amount
determined by the Court as a maintenance contribution must be fair in all
circumstances of the case. Simply put , at the hearing of the section 10 enquiry, the
court will consider the evidence presented and the fact that both parents have a duty
to support the dependent child. The court will also consider the applicant's relative

means to pay maintenance to the dependent child and thereafter determine an
amount that the court considers fair in all circumstances. I must, however,
underscore the fact that the Maintenance Court is not compelled to make a
maintenance order. As I see it, if the court determines that the applicant lacks the
means to support the dependent child, it is expected that no order will be made as
envisaged in section 16(1)(c) of the Act.

[35] Finally, Mr Steyn argued that the Maintenance Court cannot overrule an order
granted by the Rule 43 court even if done so indirectly . This assertion is also
reflected in paragraph 84 of the applicant’s founding affidavit. This argument is
mistaken and cannot be correct. A Maintenance Court can vary a Rule 43 order
where the circumstances warrant such variation. Significantly, a maintenance order
in ter ms of s ection 1 of the Maintenance Act means any order for the payment,
including the periodical payment, of sums of money towards the maintenance of any
person issued by any court in the Republic . An interim maintenance order in terms of
Rule 43 is an order envisaged in section 1 of the Maintenance Act. It thus can be
varied in terms of the provisions of the Maintenance Act.

[36] This view was shared by the Court in De Witt v De Witt 1995 (3) SA 700 (T),
where the Court found that the maintenance court had jurisdiction to substitute or
discharge the interim order made in terms of Rule 43 in the High Court. Similar
sentiments were e choed by the full bench in Thompson v Thompson 1998 (4) SA
463 (T) at 465I-J and 466C, where the Court discussed the ordinary meaning of the
words' maintenance order' as they appeared in the Maintenance Act 23 of 1963 to
decide whether the definition there of included an order in terms of Rule 43. The
Court held that an order in terms of Rule 43 fell four -square within the ordinary
meaning of the words' maintenance order' as they appeared in the Maintenance Act,

meaning of the words' maintenance order' as they appeared in the Maintenance Act,
and the Maintenance Court therefore had the necessary power to suspend the order
made in terms of Rule 43. The Court, however, warned that the Maintenance Court
had to display caution in such circumstances and not lightly change an order made
in terms of Rule 43 in the absence of altered circumstances . I share the views
expressed in these cases.

[37] The applicant is not without a remedy. If a maintenance order is granted in
favour of the dependent child at the Maintenance Court and that order impacts on
her maintenance in terms of Rule 43, the applic ant may still approach this Court in
terms of Rule 43(6) of the Uniform Rules of Court for the variation of the Rule 43
maintenance order. It is expected of the applicant to demonstrate that there has
been a material change in her circumstances.

Conclusion

[38] Having considered the matter, I was satisfied that the duty of support
envisaged in the Maintenance Act extends to both applicant and her husband. I was
also satisfied that the applicant and her husband are obliged to maintain the
dependent child in accordance with their relative means. I was further satisfied that a
section 10 enquiry must proceed to determine the relative means of the applicant in
accordance with the common law duty of support. T o this end, I dismissed the
applicant’s ap plication to suspend the proceedings of the Maintenance Court in
terms of section 10 of the Maintenance Act.


___________________________ __
LEKHULENI JD
JUDGE OF THE HIGH COURT


APPEARANCES:

For the Applicant: Adv RJ Steyn
Instructed by: Bellingan Muller Hanekom Attorneys

Respondent: In Person