SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



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

Case No.: A128/2024
Reportable

In the matter between:

R[...] L[...] Appellant

And

J[...] F[...] D[...] L[...] Respondent

Coram: Thulare J, Pangarker J and Elliott AJ
Hearing date: 22 January 2025
Supplementary written submissions: 12 and 22 August 2025
Judgment delivered: 12 December 2025

Summary: Post-divorce ma intenance for major dependent children born of
parties’ marriage – Appeal to Full Court against decision of the High Court which

dismissed appellant’s application for contempt of Court, additional maintenance and
arrear maintenance – Settlement agreement containing maintenance agreement
incorporated into final decree of divorce – Maintenance order granted in terms of
section 6 of Divorce Act 70 of 1979 - Whether the appellant (mother) had the
necessary locus standi to approach the High Court for such relief against respondent
(father) post-divorce on behalf of major dependents – Authorities considered

___________________________________________________________________

ORDER
___________________________________________________________________


The appeal is dismissed with costs which shall include the costs of two counsel on
Scale C.


JUDGMENT


PANGARKER J (THULARE J and ELLIOTT AJ concurring)

Introduction

[1] This appeal arises from a judgment delivered by the Court a quo on 9 October
2023 which dismissed the appellant’s application for contempt of Court , additional
maintenance for the parties’ two adult dependent children as well as arrear
maintenance. The app eal is with leave granted by the Supreme Court of Appeal
(SCA) to the Full Court on 8 March 2024.

[2] It is common cause that the parties were divorced in the High Court on 6
September 2019 and that the Court hearing the divorce granted a final decree of
divorce incorporating a settlement agreement which encapsulated the proprietary
consequences of the par ties’ marriage in community of property, personal
maintenance for the appellant and maintenance for the parties’ adult dependent
children, Y[...] S[...] L[...] (Y[...]) and R[...] D[...] L[...] (R[...]).


[3] The appellant was the defendant in the divorce action and the applicant in the
Court a quo in what has been referred to as “the contempt and maintenance
application”. The respondent opposed the application successful ly and consequently
opposed the appeal. For purposes of this judgment, the three -fold applic ation is
simply referred to as “the application” and where reference is made to “the order” or
“maintenance order”, it refers to clause 2.4.4 of the settlement agreement which was
incorporated into the parties’ final decree of divorce.


The application in the Court a quo

[4] The parties were married for 30 years before their eventual divorce in the
High Court . At the time of the divorce, their four children had already attained the
age of majority. The two youngest, Y[...] and R[...], were adult dependents and have
throughout the application and the appeal been referred to as “adult dependent
children” or “the children”, a description which I also adopt in this judgment. It bears
mentioning that both parties were legally represented during the divorce proceedings
and in the Court a quo proceeding.

[5] In the settlement agreement concluded between them, the parties made
provision for the maintenance of R[...] and Y[...] in clause 2.4.4, which reads as
follows:

“2.4.4 It is agreed between the parties that the Plaintiff will be responsible for
the maintenance of their children which will include a rental contribution

of R3 000 (Three Thousand Rand) per month to the Defendant in
respect of her rental shortfall for their son, R[...] D[...] L[...], at the
property of the Defendant situated in Stellenbosch, for as long as he
may occupy it as a student.”

[6] In 2020, two years prior to the appellant’s High Court application, Y[...] applied
for maintenance against the respondent at the Hopefield Magistrates’ Court . From
the evidence in the High Court application, it was apparent that the maintenance
application was first removed from the Magistrates’ Court’s roll and thereafter
unilaterally withdrawn at a stage when the High Court application had already been
in progress but before it was argued.

[7] In the application, the appellant sought the following orders:

1. Declaring the Respondent to be in contempt of Court in that he has and
is continuing to deliberately, intentionally (wilfully) and in mala fides
breach the maintenance provisions in paragraph 2.4.4 of the
Settlement Agreement which was made an Order of Court handed down by
His Lordship Mr Justice Thulare on 6 September 2019 under Case
Number 3547/2019.

2. Committing the Respondent to imprisonment for a period of six (6)
months, or such other p eriod as the above Honourable Court may
deem fit, further alternatively imposing a suspended sentence on the
Respondent on such terms as the Court;

3. That the Respondent is ordered to pay all medical and related
expenses of the Respondent’s daughter, Y[...] L[...] and his son R[...]
and that the Respondent is ordered to retain them on his medical aid
scheme.

4. That the Respondent is ordered to pay all educational and related
expenses of the children including their tertiary education to the
institutions and when the amounts fall due.

5. That the Respondent is ordered to pay all expenses relating to the
children’s books, stationery and other equipment reasonably required
in their studies.

6. That the Respondent is ordered to pay all expenses in relation to the
children’s maintenance requirements including all relevant living
expenses incurred by the children.

Alternatively to prayers 4 to 6:

7. That the Respondent is ordered to pay maintenance in respect of the
children, in respect of Y[...] that amount of R25 966.00 and in respect
of R[...] the amount of R10 173.00 on the first of each month int o the
bank account of the Applicant.

8. That the Respondent is ordered to pay arrears maintenance in the
amount of R535 600.50 in respect of the children to the Applicant,
Applicant having paid maintenance in lieu of maintenance by the
Respondent.

9. Costs on an attorney & client scale.”


[8] At the time of Y[...]’s maintenance application, she had already obtained two
tertiary certificates at the Animation Studio which the respondent had financed. She
had applied and enrolled for a third course which , according to the respondent, was
done unilaterally and he was thus disinclined to pay as he held the view that Y[...]
could consider similar, less expensive courses. R[...] was studying medicine at
Stellenbosch University.

[9] The appellant’s case in the Court a quo was premised on the grounds that the
maintenance order renders the respondent solely liable for the adult dependent
children’s maintenance but that due to inadequate payment contributions by him, she

was forced to maintain them. To illustrate, the appellan t alleged that she made
various payments from September 20191 to December 2022 in excess of R453 000.
Her total contribution included, inter alia, Y[...]’s medical expenses not covered by
the respondent’s medical aid, her living and accommodation expense s including
monthly rental, a rental deposit, and the payment of stationery, pocket money,
clothing and other items.

[10] In respect of R[...], the appellant’s contention was that she had paid R5 500
per month from May 2021 in respect of his maintenance ne eds. In her application,
she averred that the respondent ’s attitude was that he had no further maintenance
obligations towards the children and was thus in contempt of the maintenance order.
In addition, the appellant submitted that the respondent was reluctant to pay for
R[...]’s medical studies.

[11] The respondent’s case was that each of their four children had received
R210 000 paid into their bank accounts to cater for their day-to-day expenses while
studying. At the time of the application, Y[...] and R[...] were in their early 20s. In
respect of Y[...]’s maintenance application, the respondent emphasized that the
application was only removed from the Hopefield Maintenance Court’s roll and thus
still pending when the appella nt launched the High Court application.

[12] The respondent centred his opp osition on the view that the maintenance
order2 did not state that maintenance was payable until each child bec ame self-
supporting and also did not indicate that only he was responsible for payment of the
children’s maintenance. Significantly, he made the point that the appellant had no
locus standi to bring the application for maintenance and contempt of Court against
him. He was not opposed to paying maintenance but queried and disputed the
children’s reasonable expenses or reasonable maintenance needs. His view
throughout the application was that their reasonable needs were to be determined in

throughout the application was that their reasonable needs were to be determined in
an enquiry instituted by the maintenance officer in the Maintenance Court in terms of
section 6(2) of the Maintenance Act 99 of 1998 (the Maintenance Act).


1 Month in which the parties divorced
2 Clause 2.4.4

[13] The respondent emphasised that he had paid for two of his daughter’s
courses and two degrees obtained by his son and questioned why Y[...] required
R9 000 more3 maintenance than the amount she sought in the Maintenance Court .
Furthermore, the respondent took issue that though he had paid for Y[...]’s studies
up to that point she had unilaterally decided to embark on a three-year course4. The
respondent considere d Y[...]’s maintenance needs and requirements to be excessive
and lavish , stressing that he had also paid for her motor vehicle and related
expenses. As for the medical aid, his explanation was that his medical aid did not
allow him in 2020 to have Y[...] as a dependent as she was a student at the time.

[14] In respect of R[...]’s further medical studies, the respondent questioned why
his son had not applied for a bursary or loan to finance such studies. His version was
that he had paid all R[...]’s expenses and he failed to understand why more
maintenance was being claimed on R[...]’s beh alf.

[15] According to the respondent, his children could obtain part -time work while
pursuing their studies . His view was that the application to the High Court was
premature as the children’s reasonable maintenance needs could on ly be
determined through the process of a maintenance enquiry. He denied that he was in
contempt of the maintenance order.

[16] In reply, the appellant denied that the maintenance order made her
responsible for the children’s maintenance needs. She also d enied the lis alibi
pendens defence on the basis that she was not a party to Y[...]’s maintenance
application and furthermore, her view was that the attack on her locus standi was
without merit as she was enforcing her rights in terms of the divorce order.

[17] The appellant’s explanation regarding the maintenance application was that
there were no dates provided in the Hopefield Court and that it was not advisable
that there be a protracted maintenance fight between a daughter and father. She

that there be a protracted maintenance fight between a daughter and father. She
maintained that the respondent was solely liable for the adult children’s maintenance
and furthermore, that the respondent made out no case for the view that their
maintenance claims were unreasonable.

3 In the application before the Court a quo
4 Respondent admitted to not contributing to Yolandi’s studies since January 2022

The Court a quo’s judgment

[18] The Court a quo recognised that the respondent’s obligation towards R[...]’s
Stellenbosch rental accommodation as referred to in the maintenance order had
been discharged. Y[...]’s application for maintenance was pending at the time of
institution of the High Court application but was removed or withdrawn when the
respondent delivered his answering affidavit .

[19] The appellant submitted that there were a few options available for t he Court
a quo, the detail s of which are not relevant to the appeal. The Court a quo held that
the application revolved around the interpretation of clause 2.4.4 of the settlement
agreement and that the main dispute centred around the amount of maintenance
payable in respect of the children and arrear maintenance. It held that Y[...]’s case
for current and future maintenance was pending at the time of institution of the
application and that such defence was correctly raised by the respondent.

[20] Furthermore, the Court a quo held that the divorce order was silent on the
amount of maintenance payable by the respondent and thus , he could not be held in
contempt of the order. It went on to hold that what constituted reasonable
maintenance still had to be determined and that the order was to be interpreted in
line with section 15(3)(b) of the Maintenance Act, meaning that maintenance payable
by the respondent had to be fair.

[21] The Court a quo did not acquiesce to the appellant’s proposals as it could not
assess the reasonableness of the maintenance applied for and emphasised that
such determination could only be made after the hearing of evidence. Similarly, a
determination on the arrear maintenance claim required an inquiry by the
Maintenance Court. The Court a quo’s view was that the present, past and future
maintenance issues raised by the appellant should proceed in the Maintenance
Court and that bringing such claims in the High Court would have the effect of
lengthening proceedings rather than curtailing it.

[22] In respect of the contempt application, the Court a quo also found that as the
respondent disputed certain amounts related to the children's maintenance needs, it
therefore followed that he was not in contempt of the maintenance order. In its order,
the application was dismissed with costs.


Grounds of appeal

[23] The first ground of appeal is that the Court a quo failed to interpret the Court
order5 and ought to have found that the order provided that only the respondent was
responsible for the dependent children’s maintenance. The Court ought to have
found that the respondent failed to contribute to his daughter’s maintenance at all
and it erred in placing any relevance on the appellant’s ability to pay maintenance.

[24] Furthermore, the Court a quo confused the test for the issue of a writ of
execution with cont empt proceedings, and it erred in not enforcing the High Court
order which dealt with the maintenance needs of dependent children. A further
ground of appeal is that by means of an intelligent assessment, the Court a quo
could have determined the children’ s maintenance needs . In dismissing the
application, the Court a quo failed to consider section 28(2) of the Constitution of
South Africa.

[25] The appellant’s further ground of appeal is that the lis alibi pendens defence
was not available to the respondent and because there were systemic failures in the
Maintenance Court , it required of the Court a quo to be pro-active in respect of the
dependent children.




The parties’ submissions on appeal

5 A reference to the maintenance order incorporated in the final decree of divorce

[26] Pursuant to additional research done on the issue of locus standi of a parent
to apply for relief post-divorce, this Court invited the parties’ legal representatives to
provide supplementary written submissions on the locus standi issue. The parties’
attention was dra wn to some recent authorities not considered in their initial
submissions and the Court was favoured with supplementary written submissions by
the parties’ counsel which are considered below.

[27] The appellant relies on Bursey v Bursey and Another 6 and Z v Z7 for the
submission that she had the necessary locus standi to institute the application and
seek enforcement of the maintenance order granted in the divorce. Counsel for the
appellant emphasised that Z v Z8 warned agains t the institution of separate claims
for maintenance by adult dependent children against a parent as it would lead to a
piecemeal adjudication of issues arising from the same divorce. It was submitted on
the appellant’s behalf that it would be irrational t o hold that a parent could claim
maintenance on behalf of their dependent major child but not be able (as a divorced
parent) to have the necessary locus standi to enforce such order in the form of a
contempt application and claim for arrear maintenance.

[28] The appellant’s further submissions are that the Gauteng decisions, AJN v
WLN9 and OV v CMV10 were wrongly decided. In respect of the two decisions from
this Division, it is submitted that AF v MF 11 and DWT v MT and Another 12 were
correctly decided, w ith the latter judgment following Z v Z . The further submission
was that the debate as to whether a parent of an adult dependent child has locus
standi to enforce a maintenance order granted in a divorce action does not come into
the picture. As seen below, in the discussion regarding these judgments and the
issues in the appe al including locus standi, I respectfully disagree with the
appellant’s counsel ’s view that a parent’s locus standi to enforce a maintenance

appellant’s counsel ’s view that a parent’s locus standi to enforce a maintenance
order, in the circumstances prevailing in this matter, do not come into the picture.

6 1999 (3) SA 33 (SCA). Bursey is also cited as B v B and Another (1999) All SA 289 (A)
7 2022 (5) SA 451 (SCA)
8 Para [17], judgment
9 [2023] ZAGPPHC 341
10 [2024] ZAGPPHC 1150
11 2019 (6) SA 422 (WCC)
12 [2022] ZAWCHC 203, an appeal judgment by two Judges

[29] Part of the motivation behind the appellant’s case is that a claim for arrear
maintenance and contempt proceedings are matters arising from or in connection
with the enforcement of maintenance orders and related to a divorce. It is submitted
that the appellant’s application intended to enforce the maintenance order granted by
the High Court in the divorce action, and the objective (insofar as the contempt
application) was to seek the respondent’s compliance with such order.

[30] The respondent’s counsel also recognise d the significance of section 6(3) of
the Divorce Act and correctly so , in my view . The respondent , however, submitted
that the issue of locus standi is not only procedural but also a matter of substance as
it concerns “the sufficiency and directness of a person’s interest” 13. While the
respondent agrees with the principles set out in Bursey and Z v Z , his counsel
argued that in order to determine whether a parent has the necessary locus standi to
enforce a maintenance order as agreed between the parties, the terms of the
settlement agreement will be the determining factor. In respect of this submission,
the respondent relies, inter alia, on AJN v WLN.14

[31] Furthermore, the respondent ’s view is that the maintenance order was made
in favour of the parties’ adult dependent children and that it made no provision for
payment to the appellant. In that respect, counsel for the respondent argued that
only Y[...] and R[...] could therefore enforce the maintenance order incorporated in
the divorce order. Relying on Coopers and Lybrand v Bryant 15, the respondent’s
counsel argued that as the order did not state that the mother would be the children’s
primary caregiver, it follows therefore that there was never the int ention that the
appellant would have the legal standing to act as such.

[32] In view of the fact that the appellant was not the primary caregiver , that the
parties did not agree thereto, and that the order does not state that maintenance was

parties did not agree thereto, and that the order does not state that maintenance was
payable to the appellant directly, the respondent submitted that all indications were
that at the time of concluding the settlement agreement, the appellant had no

13 Respondent’s supplementary heads of argument, par 25
14 Para [21]
15 1995 (3) SA 761 (A)

intention of enforcing maintenance obligations of the respondent on behalf of R[...]
and Y[...].

[33] The further thrust of the submissions on behalf of the respondent was that
only Y[...] could enforce the order in respect of the maintenance obligatio n which
each of the parents owe to her as a dependent. Furthermore, the respondent agrees
that contempt proceedings are applicable to enforce maintenance orders in the High
Court but in respect of such enforcement, and aside from the locus standi issue, the
amount(s) which the respondent must pay on the appellant’s version, would still have
to be determined.


The locus standi of the appellant

[34] Locus standi was raised as a point in limine in the answering affidavit,
addressed as a point of opposition in the appeal and argued by the respondent’s
counsel in the appeal. The appellant’s counsel’s submission was to the effect that as
there was no cross -appeal, locus standi of the appellant was a non -issue. In any
event, so it was argued on the appellant’s behalf, Z v Z16 was authority for the view
that the appellant was vested with the necessary locus standi to institute the
application in the High Court for maintenance and arrear maintenance for the adult
dependent children and contempt of Court in respect of the order granted in the
divorce.

[35] Having considered the record of proceedings , it is apparent that the lack of
locus standi defence was never abandoned by the respondent. In fact, it was raised
pertinently as a point in limine and thus required adjudication before proceeding to
consider the merits of the matter . The only reference thereto in the judgment was
that the appellant made the averment that she had the necessary locus standi to
launch the application on Y[...]’s behalf as she (the appellant) bore the expenses.

[36] However, after careful consideration, it is apparent that the Court a quo
proceeded with the application and in her judgment, omitted to rule and decide on

16 2022(5) SA 451 (SCA)

the point in limine , the lack of locus standi of the appellant . In my view, this was an
incorrect approach as the point raised by the respondent required specific
consideration and adjudication first before considering other issues in dispute . In
view of the arguments on appeal, I thus hold the view that the question of the
appellant’s locus standi remained a live issue in the Court a quo and on appeal.


Relevant aspects related to the divorce and the maintenance order

[37] Considering the common cause or undisputed facts which prevailed during
the application , the following relevant aspects are highlighted:

i. at the time of concluding the settlement agreement and the granting of the
final divorce order, Y[...] and R[...] had already attained the age of majority and were
studying at tertiary/educational institutions;

ii. neither Y[...] nor R[...] were self -supporting when the divorce order was
granted, and by all accounts, not self -supporting at the time the application was
launched in the High Court;

iii. clause 2.4.4 of the settlement agreement, which was incorporated into the
parties’ final decree of divorce, constituted a maintenance order in terms of section
6(3) of the Divorce Act 70 of 1979 (Divorce Act);

iv. the maintenance order is silent on the duration of the payment of maintenance
for the children, the manner of payment, the amount(s) per month per child and
aside from referring to R[...]’s rental shortfall payable to the appellant, the order was
also silent as to the recipient(s) of the maintenance 17;

v. the rental accommodation /shortfall in respect of R[...] was not an issue in the
application ; and


17 In other words, to whom the maintenance was payable

vi. the lis alibi pendens defence is not an issue in the appeal.


Legal principles

[38] Turning firstly to Z v Z , it is apparent from the judgment of the SCA that the
basis for its finding that a divorcing parent has locus standi to seek an order for
maintenance of a major, dependent child during or upon divorce, has its foundation
in section 6 of the Divorce Act. The SCA stated that:

“[10] The Divorce Act governs the law relating to divorce and provides for
incidental matters. A ‘divorce action’ is defined in s 1 to mean ‘an action by
which a decree of divorce or other relief in connection therewith is applied for’.
A marriage between spouses may, in terms of s 3, be dissolved by a court by
a decree of divorce only on the gr ounds of the irretrievable breakdown of the
marriage relationship between the parties to the marriage as contemplated in
s 4 or mental illness or the continuous unconsciousness of the defendant as
contemplated in s 5. The lis relating to the claim for a decree of divorce,
therefore, is one between the parties to the marriage. A decree of divorce
between those parties, however, will not be granted until the court is satisfied
that the provisions made 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 (s 6(1)(a)). A court granting a decree of divorce may, inter alia
in regard to the maintenance of a dependent child of the marriage, make any
order which it may deem fit (s 6(3)).

[11] Unsurprisingly, ss 6(1)(a) and 6(3) do not differentiate between a minor
child and a major dependent child of the marriage in regard to the payment of
maintenance. For, as was observed by the Constitutional Court 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),18 albeit in a different context,

as Amicus Curiae),18 albeit in a different context,

18 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] ZACC

‘. . . 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’.
And in Smit,19 it was said about a 21-year-old university student that he,
‘. . . though well on the way towards being self -supporting, is, because of his
youth and the resultant absence of the completion of his training, still legally a
child within his father’s household and a member who shares his family’s
mode and standard of living.’

[12] The court may, in terms of s 6(3), also in regard to the maintenance of
an adult dependent child of the marriage, ‘make any order which it may deem
fit’. The concomitant of that power of a court granting a decree of divorce
between the parties to the marriage, is the legal standing of a spouse or both
spouses to claim and counterclaim the payment of maintenance for and on
behalf an adult dependent child of the marriage. In so doing, the parent will
plead the necessary facta probanda, such as their relative means and
circumstances, the needs of the adult dependent child, the most fitting method
of payment - i.e. directly to a parent or to the adul t dependent child or in parts
to a parent, to the adult dependent child, to an educational institution, lump
sum or periodic payments, and so on – in order to persuade the court what is most
satisfactory or best to be effected in the circumstances regar ding the payment
of maintenance.20”

(my emphasis)

[39] Thus, upon an “ordinary grammatical meaning, properly contextualised”
sections 6(1)(a) and (3) of the Divorce Act are support for an interpretation that a
parent may claim maintenance for their adult dependent child upon divorce. 21 The
SCA in Z v Z also held that such an order binds the parties to the marriage (the
parents) and that the adult dependent child would be entitled to institute
maintenance proceedings against a parent in terms of the Maintenance Act. It must

maintenance proceedings against a parent in terms of the Maintenance Act. It must

18; 2009 (2) SACR 477 (CC) para 39. Also see Centre for Child L aw and Others v Media 24 Ltd and
Others [2019] ZACC 46; 2020 (4) SA 319 (CC) para 102.
19 Smit fn 3 at 1021H-I.
20 Z v Z, para [10]-[12]; Footnotes retained in this judgment
21 Z v Z supra, para [15]

be borne in mind that while Z v Z finally laid to rest the issue of the standing of a
parent to claim maintenance on behalf of an adult dependent child against the other
parent upon divorce, there is no requirement in the Divorce Act that the dependent
child should be joined as a party to the divorce action of his/her parents.22

[40] The question which arose in the application and with respect, not answered
by the Court a quo, was whether the parent (in this instance, the appellant) had the
standing to apply for maintenance for Y[...] and R[...] and enforce the section 6 order,
after di vorce23? While the appellant’s counsel wishe d to downplay a distinction
between an application such as the one brought in the Notice of Motion post-divorce
and maintenance in terms of a section 6(3) order in /upon the divorce, my view is that
there is indeed a distinction which cannot simply be glossed over. Furthermore, I
emphasise that the appellant’s application sought three distinct orders for relief after
divorce: enforcement in the form of contempt of Court; additional maintenance for
the major dependent children or a variation of the section 6 order , and arrear
maintenance in favour of the appellant.

[41] In order to address these questions and issues which are relevant to the
outcome of the appeal , I turn to consider various authorities referred to above.
Firstly, in AF v MF 24, a reportable judgment of this Division, decided before Z v Z,
Davis AJ held that inasmuch as section 6 of the Divorce Act enjoins a divorce Court
not to grant an order unti l the welfare (and maintenance) of an adult dependent child
is catered for, so too should a Court in a Rule 43 application be satisfied that such
child is properly provided for. While the matter before Davis AJ was indeed a Rule 43
application, the Court emphasised the vulnerable position of young adult dependents
in the midst of their divorcing parents’ conflict and recognised the difficult position

in the midst of their divorcing parents’ conflict and recognised the difficult position
such child faces were he/she to institute a maintenance application agains t their
parent25.


22 Z v Z supra, par [15]
23 My emphasis
24 Supra, para [74]
25 AF v MF supra, para [74], [76] . A further important point in AF v MF, is that in an effort to protect
the dignity and well-being of the adult dependent child, his or her maintenance should be regulated in
order to avoid parent -child conflict and fo ster a sense of security and stability for that child.

[42] In another judgment from this Division, DWT v MT and Another26, an appeal
from a Maintenance Court, the Court was required to consider an appeal by an ex -
husband against whom the Maintenance Court had granted a warrant of execution
as enforcement of a maintenance order obtained by his ex -wife. The appellant’s
issue in the appeal was that the order granted pursuant to a settlement reached in
terms of section 17 of the Maintenance Act related to adult dependent children 27.

[43] In its analysis, the Court of appeal in DWT found that the distinction which the
appellant sought to draw between his matter and Bursey28, which dealt with the duty
of divorced parents to maintain a dependent child, and hence the distinction between
the provisions of the Divorce Act and Maintenance Act, was without merit. 29 With
reference to section 26(2)(a) and (b) of the Maintenance Act, the Court in DWT
found that the respondent’s (the mother) locus standi was established as the consent
order granted in terms of section 17 of the Maintenance Act was granted in her
favour on behalf of the adult dependent children. It thus seemed that DWT extended
the principles expounded in Z v Z to orders in terms of the Maintenance Act.

[44] In AJN v WLN , a recent u nreported judgment of the Pretoria High Court, a
divorced mother obtained a writ of execution against her ex -husband for non -
payment of maintenance in terms of a divorce order 30. At the time the divorce order
was granted, the parties’ children were minors, yet they had each already reached
the age of majority when she applied for the writ of execution.

[45] In the application to set aside the writ, the applicant (the father) in AJN
submitted that the underlying causa in respect of the divorce proceedings no longer
existed in that the children were already majors and the order incorporating the
settlement agreement provided for his payment of maintenance while the children

settlement agreement provided for his payment of maintenance while the children
were minors. In the Court’s assessment of the issu es, Collis J held that in the
absence of an amendment of the divorce order (to refer to maintenance payable to
adult/dependent children), it was evident that the divorce order provided for

26 Supra
27 At the time of the initial order, the children were minors and the order referred to minor children –
see judgment supra, para [5] – [7]
28 Supra
29 Para [15] and [16]
30 Supra, para [4] -[5]

maintenance to be paid to minor children and not children who had reached the age
of majority31.

[46] The Court in AJN held further that it was apparent that the writ was issued in
respect of minor, not major children, and where “it was issued in circumstances
where the children are now majors, the said writ was incorrectly issued as the
underlying causa had fallen away and should therefore be set aside.”32 The finding in
AJN was further that the execution creditor ( the mother/respondent) had no locus
standi to apply for the writ. I understand the rationale which underscored this finding
to be that the children in question had reached the age of majority and in so doing,
they had passed from the natural guardianship of their parents, hence the dependent
children’s entitlement to receive and enfo rce rights to claim maintenance vest ed in
them and not in the parent in whose favour the initial order was granted. 33 Collis J
also confirmed the principle in Smit v Smit34 that major children have stand ing in
their own right to apply for maintenance against their parents

[47] In yet a further recent Pretoria High Court judgment, OV v CMV35, a consent
paper was concluded at the time of the parties’ divorce in terms of which
maintenance was payable to the parties’ minor children. One of the issues before the
Court was the mother’s locus standi to execute a writ of execution for arrear
maintenance relating to the parties’ children, two of whom had already reached the
age of majority after the ir parents’ divorce. The High Court had granted the divorce
order, and the writ was also applied for in the High Court, with the mother seeking
post-divorce enforcement of the maintenance order on behalf of the adult children.

[48] Aside from issues relating to the warrant, which are irrelevant to this appeal,
the main concern before Scheepers AJ was locus standi and post -divorce
enforcement of the maintenance order. The Court drew a distinction between those

enforcement of the maintenance order. The Court drew a distinction between those
principles set out in Z v Z and those in its predecessor, AJN v WLN.


31 Supra, para [21] – [23]
32 Para [24]
33 Para [27] supra
34 1980 (3) SA 1010 (O) at 1018
35 Supra

[49] After a careful analysis of the distinctions between the aforementioned
principle s in the two judgments, Scheepers AJ found that the mother had no locus
standi to claim payment on behalf of the adult chil dren as the y were personally
entitled to receive and enforce maintenance rights because upon attaining majority,
the children had passed from the natural guardianship of their parents (the parties) 36.
Relying on Smit v Smit37 and Richter v Richter38, the Court in OV agreed with the
ratio in AJN that the terms of a settlement agreement must be considered in the
determination of whether a parent has locus standi (or not) to enforce the agreement
contained in the order.39 Scheepers AJ held that the non-joinder of the adult children
to the amendment/variation application of the parent, in the absence of an
unequivocal consent or waiver by them, non -suited the mother and hence the
application for an amendment of the existing order could not be granted.

[50] As seen above, there is a distinction drawn in some judgments b etween a
situation where a parent seeks maintenance for an adult dependent child at the time
of divorce, and the locus standi of the parent seeking post-divorce enforcement and
maintenance fo r that child . In my view, the terms of the parties’ settlement
agreement in respect of maintenance for a dependent adult child must be considered
when dealing with the issue of a parent’s locus standi , and the distinction is not
artificial.


The parents’ common law duty of support

[51] The appellant maintained that clause 2.4.4 is clear: the responsibility to
maintain Y[...] and R[...] lay solely with the respondent . However, the respondent
persisted in his opposition to the application that the clause did not state that he was
solely responsible for the children’s maintenance requirements but that in
accordance with legal principles, both parents were responsible fo r th eir
maintenance needs.


36 Para [27]
37 Supra at 1018
38 1947(3) SA 86 (W)

maintenance needs.


36 Para [27]
37 Supra at 1018
38 1947(3) SA 86 (W)
39 Para [32]

[52] Turning to the nature of the duty of support of both parents toward their
children, I refer to Bursey40, which was an appeal involving divorced parents who
similarly had a settlement agreement incorporated in their divorce order in terms of
which the father (appellant) was ordered to pay maintenance for two minor children
until they were self -supporting. The terms of the order were unambiguous and the
issue on appeal was whether maintenance ceased when the minor chil dren attained
the age of majority or became self-supporting.

[53] In its consideration of the issue, the SCA in Bursey held that:

“According to our common law both divorced parents have a duty to maintain
a child of the dissolved marriage. The incidence of this duty in respect of each
parent depends upon their relative means and circumstances and the needs
of the child from time to time. The duty does not terminate when the child
reaches a particular age but continues after majority . (In re Estate Visser
1948 (3) SA 1129 (C) at 1133 -4; Kemp v Kemp 1958 (3) SA 736 (D & CLD) at
737 in fine; Lamb v Sack 1974(2) SA 670 (T); Hoffmann v Van Herdan NO
and Another 1982 (2) SA 274 (T) at 275A.) That the duty to maintain extends
beyond majority is recognized by sec 6 of the Divorce Act 70 of 1979. Sec 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. Sec 6 (3) provides that a court
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. This provision must
be contrasted with the provision in the sub -section relating to the custody or
guardianship of, or access to a minor child. A maintenance order does not
replace or alter a divorced parent’s common law duty to maintain a child. In

replace or alter a divorced parent’s common law duty to maintain a child. In
Kemp v Kemp, supra, Jansen J stated at 738 A -B that as a matter of
expediency the court, as the upper guardian of the child, usually regulates the
incidence of this duty as between the parents when it grants the divorce and

40 Supra

that its order for maintenance is ancillary to the common law duty to
support.”41

[54] It is thus evident from the findings in Bursey that the parents’ duty of support
is dependent on their respective means and a Court order, includ ing one which
incorporated the terms of a settlement agreement and was granted in terms of
section 6 of the Divorce Act, seeks to regulate such duty between the parents from
date of divorce and beyond 42. More importantly, Bursey signals a reminder that the
common law duty of support of parents toward their minor or major dependent child
is ancillary to an order for the child’s mainte nance. This principle is echoed in section
15(1) of the Maintenance Act which provides that an order for maintenance of a child
is directed at enforcing the common law duty of the parents to support the child and
that such duty exists at the time of issuing of the order “and is expected to
continue”43.

[55] In respect of sect ion 6(3) of the Div orce Act, the legislature granted to a Court
hearing a divorce, the authority to make any order which it may deem fit in respect of
the maintenance of a dependent child of the marriage. Thus, in this matter, the
maintenance order granted at the time of div orce is ancillary to the parties’ common
law duty of support of the dependent children and seeks to regulate the incidence of
their duty; thus, its terms must be given effect to.44


Interpretation of the maintenance order (clause 2.4.4)

[56] No exercise of interpretation of a contract would be complete without a
reference to the approach to interpretation of documents, including contracts and
legislation, as set out in Natal Joint Municipal Pension Fund v Endumeni
Municipality45, where Wallis JA stated as follows:


41 Supra, p 292
42 Bursey supra, p 290
43 Section 15(1) Maintenance Act
44 Bursey, p292; see also Kemp v Kemp 1958(3) SA 736 ( D & CLD at 738
45 2012 (4) SA 593 (SCA)

“[18] Interpretation is the process of attributing meaning to the words used in
a document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known to
those responsible for its production. Where more than one meaning is possible each
possibility must be weighe d in the light of all these factors. The process is
objective not subjective. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike results or undermines the apparent purpose of
the document. Judges must be alert to, an d guard against, the temptation to
substitute what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory instrument is
to cross the divide between interpretation and legislation. In a contractual
context it is to make a contract for the parties other than the one they in fact
made. The ‘inevitable point of departure is the language of the provision itself’,
read in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.

[19] All this is consistent with the ‘emerging trend in statutory construction’.
It clearly adopts as the proper approach to the interpretation of documents the
second of the two possible approaches mentioned by Schreiner JA in Jaga v
Dönges NO and another, namely that from the outset one considers the
context and the language together, with neither predominating over the other.

context and the language together, with neither predominating over the other.
This is the approach that courts in South Africa should now follow, without the
need to cite authorities from an earlier era that are not necessarily consistent
and frequently reflect an approach to interpretation that is no longer appropriate. ”

(footnotes omitted)

[57] Applying the Endumeni standard of interpretation, the language of the
maintenance order must be considered. The wording refers to an agreement that the
plaintiff (the respondent) will be responsible for the children’s maintenance .
Objectively considered, no reference is made to the defendant (appellant) as also
being responsible for the children’s maintenance. While the respondent’s view is that
the order does not say that he is solely responsible for maintaining R[...] and Y[...],
the order reads that the respondent would be responsible for the children’s
maintenance, which included R[...]’s rental contribution.

[58] Thus, while accepting that the common law duty of support rests on both
parents and continues after divorce, it must be emphasised that section 6(3) of the
Divorce Act grants the Court in the divorce proceedings the authority to grant a
maintenance order for t he dependent children as that Court sees fit. Having regard
to the affidavits before the Court a quo , there certainly was no evidence in the
application that there were issues with the maintenance order at the time of the
granting of divorce . Subsequent to the divorce and even in light of the disputes
between the respondent and children regarding certain expenses, the latter did not
apply to vary the terms of the order in terms of section 8 of the Divorce Act nor did
he approach the Maintenance Court for substitution of the order. These factors lend
credence to my view that the parties had agreed that he would be responsible for the
children’s maintenance .

[59] To the extent that there was a debate in the appeal regarding the duration of
the order, and mindful that the maintenance order is silent on this aspect, I find no
reason to deviate from the view that m aintenance for Y[...] and R[...] is/was payable
until each became self-supportin g.

[60] Turning to the context in which the clause occurs46, from the facts it is evident

[60] Turning to the context in which the clause occurs46, from the facts it is evident
that the maintenance order was clearly granted pursuant to the parties’ agreement
during/at divorce relating to the two dependent children . The prevailing
circumstances at the time of divorce were that R[...] was still living in his mother’s
accommodation47 but Y[...] was not48. As expressed by the appellant in her founding

46 Endumeni, supra par [18]
47 He moved out at the end of December 2019

affidavit, th e purpose of the agreement was to provide for the maintenance of the
dependent children at the time of divorce and beyond, and until they be came self-
supporting . The motivation behind such agreement as in clause 2.4.4. was that
section 6(3) of the Divorce Act sanctioning an order at divorce for maintenance
payable to the parties’ dependent children .

[61] Given that the parties were represented during the divorce, it may be
accepted that they were aware of the terms of the agreement , were satisfied with its
import a nd consented to the terms. Ordinarily, when the order relates to the
maintenance of a minor child, the maintenance pursuant to a divorce order would be
paid to the primary carer or primary residence parent on behalf of that minor child.
This would accord with the role of a parent as the child’s guardian.

[62] In this matter, it is common cause th at the children were already majors at the
time of their parents’ divorce , and the question may be asked whether the appellant
represented R[...] and Y[...] at the time of the divorce and to whom was the
maintenance payable? In Richter v RIchter 49, Price J addressed th e aspect as
follows:

“The money is ordered to be paid to the mother of the children; therefore, it
follows that it is to be paid only until the children pass out of her natural
guardianship at the latest. It is true that there is reciprocal obligation in certain
circumstances for sons and daughters to support their parents and vice versa,
but this is under quite a different rule of law and has nothing to do with the
obligation of parents to support and educate their minor children, and if such a
claim were preferred against a father by a destitute major daughter it would
have to be preferr ed by the daughter herself and not by the mother as her
natural guardian, for she would no longer be the natural guardian of such
daughter.”

(my emphasis)

daughter.”

(my emphasis)


48 Yolandi commenced living with the appellant from December 2019 to the beginning of February
2022
49 1947(3) SA 86 (W) at 91

[63] The above finding in Richter is echoed in AJN v WLN 50 and in my view,
cannot be faulted. Whilst I respectfully disagree with the Court in Richter that
maintenance ceases on the child reaching the age of majority, I indeed agree with
that Court’s finding that on the attainment of the age of majority, children pass from
the natural guardianship of their parents. Thus, once they attain the age(s) of
majority, according to Smit v Smit, the major children’s entitlement to receive and
enforce rights to a maintenance claim against a parent vests in them personally51.

[64] Thus, once the dependent child reaches the age of majority, he/she therefore
has the necessary locus standi in their own name and right to claim maintenance
against a parent . Thus, in the circumstances of this matter , Y[...] and R[...] could
claim maintenance, arrear maintenance and seek orders for contempt in respect of
enforcing the order against the respondent . The facts of the matter indicate that
these are indeed the steps which Y[...] took but eventually did not proceed with in the
Hopefield Maintenance Court.

[65] At the time of the divorce, even accepting that the divorce order was granted
some time prior to the SCA’s judgment in Z v Z, the appellant was a party to those
proceedings and a spouse in the marriage. In light of the above discussion, I shall
accept that the parties were aware of their common law duty of support which
continue d post-divorce. Here one then sees the ancillary nat ure of the maintenance
order and how it sought to regulate the incidence of the parents’ duty to support their
dependent children .

[66] In PL v YL 52, the Full Court of the Eastern Cape High Court, Grahamstown ,
had an opportunity to consider the practice in divorce actions of incorporating a
settlement agreement into a final divorce order. In a very detailed judgment, the
Court recognized that a settlement which disposes of the issues between the parties

Court recognized that a settlement which disposes of the issues between the parties
is in most instances, a compromise (transactio)53 which is an agreement between the
parties to an obligation or lawsuit/action which sett les the issues in dispute and in

50 Para 27
51 Smit v Smit supra 1018 A-C
52 2013 (6) SA 28 (ECG) – the judgment appears on Saflii as Ex parte Le Grange and Another ; Le
grange v Le Grange [2013] ZAECGHC 75
53 Judgment, par [9]

terms of which each party concedes something . The law of contract applies to a
compromise and any enforcement and withdrawal from a contract may be based on
the same grounds as in contract54.

[67] PL v YL also distinguishe d between issues which a divorce Court are
required to determine, such as maintenance for minor and dependent children in
terms of section 6 and those issues referred to in section 7, namely personal
maintenance and the proprietary consequences of the marriage which the divorcing
parties are entitled to agree to in terms of a written agreement concluded between 55.

[68] The Court granting the divorce plays a role in respect of the first category and
is legislatively mandated to ensure that (as in this matter) the maintenance of the
major dependent children have bee n taken care of and thereupon, it grants an order
it deems fit in terms of section 6. In such circumstance, notwithstanding the
agreement or compromise regarding maintenance for the children, the intervention of
the Court is not dispensed with.

[69] It is a common , daily feature in divorce s that parties conclude settlement
agreements which include an agreement regarding maintenance as allowed by
section 6. Following on from the discussion and finding s in PL v YL , I am satisfied
that the Court granting the divorce and incorporating the terms of the settlement
agreement in the final divorce order, was satisfied that the agreement in clause 2.4.4
was satisfactory or the best for the dependent children in the circumstances, and in
incorporating it, granted an order it deemed fit in terms of section 6(3) of the Divorce
Act.

[70] The facts in this matter do not indicate that an issue arose either between the
parties, their legal representatives or the Court, regarding the wording of clause 2.4.4
at the time of divorce . Also, the context in which the agreement was concluded and
the terms of clause 2.4.4 are further informed by these additional facts: the

the terms of clause 2.4.4 are further informed by these additional facts: the
respondent did not directly pay money to the appellant in lieu of maintenance and
ancillary expenses of the children; the respondent made direct payments to R[...] and

54 Supra, par [9]
55 PL v YL supra, para [11]-[13]

Y[...] and/or to institutions or service providers on their behalf; thirdly, and by way of
by example, between 2018 to 2021, Y[...] received approximately R857 046 from the
respondent, which comprised payment of, inter alia , a motor vehicle, a film
production course, rental deposit, rent, pocket money, Vega course, laptop, cell
phone, car insurance and more, and payments were made by the respondent to
R[...] as well. These facts lead to the conclusion that all or most of the expenses of
the children were paid and/or required to be paid by the respondent.

[71] On an ordinary reading of clause 2.4.4, the payment of the appellant’s
shortfall of rental for R[...] was due to be paid directly to the appellant for as long as
R[...] occupied such property as a student. As indicated earlier in the judgment, there
was no dispute between the parties regarding a shortfall in respect of rental at the
time of the hearing before the Court a quo and it is not an issue in the appeal.

[72] While it is accepted that the appellant was a party in the divorce , applying
Endumeni’s interpretive tools, and considered considering the analysis of the
findings in PL v YL, I am not convinced by the appellant’s submission that the
section 6(3) order was granted in her name. To clarify , in a divorce, the lis is
between the parties to the marriage56. In respect of the divorce action, the legislative
authority in section 6(3) of the Divorce Act and the common law granted the parents
locus standi to claim and counterclaim maintenance for the major dependent children
in such proceedings . The fact that at the time of the divorce they had already moved
out of their parents ’ guardianship must therefore be seen against the provisions of
section 6 , the pertinent point being that maintenance for major dependent children
may be agreed upon and is allowed in their parents’ divorce, such as in this case.

[73] However, the situation is different post -divorce, as the children’s rights to

[73] However, the situation is different post -divorce, as the children’s rights to
claim and enforce the order vests directly in them , and these are the circumstances
which prevailed at the time of the application in the High Court. In my view, and as
correctly determined in AJN, the causa had fallen away and R[...] and Y[...]’s
entitlement to enforce and receive rights to claim maintenance vested in them and
not in a parent.

56 Z v Z, par [10]

[74] In terms of the maintenance order, aside from the rental shortfall payment to
the appellant, there is no reference that the maintenance and ancill ary payments
were to be paid to the appellant . As seen, payments were made to the children
and/or institutions . Certainly, all thes e factors info rm my view that the maintenance
was not due to be paid to the appellant and was not granted to her on behalf of the
children.

[75] In this regard, the circumstances in this matter differ from that which prevailed
in DWT v MT in that the order in this matter is not one which was made in the name
of the mother in terms of section 17 of the Maintenance Act and was not granted in
her favour. Certainly, the order also did not indicate that the appellant was the
children’s primary caregiver and in fact could not do so as they were already majors
at the time of the divorce and no longer under their parents’ guardianship. Added to
this, the reference to section 26(2) of the Maintenance Act in DWT v MT, which
played a role in t hat Court’s finding regarding locus standi of the mother, does not
find application in this matter as the sub -section deals with the enforcement of a
maintenance order by the person in whose favour such order was made. In view of
all these reasons , facts and circumstances , I find that DWT v MT is distinguishable
from this matter and its findings thus do not bind this Court in the circumstances.

[76] Furthermore, I agree with the respondent’s counsel’s submission that the
terms of the settlement agreement and so too, the order, are the determining factors,
and in this matter, the order is silent on whom payment must be made to . These
aspects lead me to conclude tha t the appellant never had the intention at the time of
concluding the settlement agreement to enforce maintenance obligations upon the
respondent.
[77] In view of the above assessment, legal principles and findings , it therefore

[77] In view of the above assessment, legal principles and findings , it therefore
follows that any claim(s) for maintenance against the respondent, and for
enforcement of the order, lay solely with Y[...] and R[...] as major dependent children
in favour of whom a section 6(3) order was previously granted. The argument by the
appellant that locus standi is a non -issue or irr elevant misses the importance of the
distinction between maintenance sought in terms of section 6(3) in a divorce
between parents of major dependent children , and a parent’s post -divorce claim on

behalf of such child for enforcement, arrear maintenance and additional
maintenance. As seen above, the distinction is thus not artificial.
[78] While generally contempt and arrear maintenance are matters arising from a
maintenance order, the facts and circumstance of each matter must be considered,
along with the terms of a maintenance order, and the status of the dependent
children. A blanket approach which ignores the wording of the maintenance
agreement and /or order, does not assist the appellant. In view of all these factors, I
thus conclude that the respondent’s submissions are correct and that the appellant
lacked locus standi to approach the High Court in such circumstances and seek the
relief prayed for in the Notice of Motion. This brings me to the relief in the Notice of
Motion.


The relief in the Notice of Motion


[79] In respect of prayers 3 to 6 of the Notice of Motion, it is clear that there was
never any issue taken with the divorce Court’s exercise of its authority in granting an
order which it deemed fit , as already stated. Furthermore, no case was made out in
the Court a quo that prayers 3 to 6 amounted to clarification of the maintenance
order granted in the divorc e. Thus, in view of the findings above regarding the
wording and interpretation of the order that the respondent is required to pay all the
maintenance needs of R[...] and Y[...], it is unclear why prayers 3 to 6 of the Notice of
Motion were sought in the first place.

[80] In my view, prayers 3 to 6 thus amounted to a duplication of what was already
contained in the maintenance order. Furthermore, it is trite that maintenance does
not only constitute a cash component to support a child, but includes, as referred to
in sections 15(2) and (3) of the Maintena nce Act, provision for food, clothing,
accommodation, medical care, education, a proper living and upbringing. That being
the case and absent a case made out in the Court a quo for clarification of the order

the case and absent a case made out in the Court a quo for clarification of the order
(as argued by counsel for the respondent), praye rs 3 to 6 were unnecessary in the
circumstances.

--

[81] Paragraph 7 of the Notice of Motion sought specific amounts payable to each
child per month, as an alternative to prayers 3 to 6. In my view, the submissions of
the respondent are convincing in that t he appellant had no locus standi to seek an
order for payment of specific amounts to each of the children into her bank account.
In view of the authorities referred to in this judgment , the appellant had no locus
standi to seek such an order as the right t o claim maintenance vested with Y[...] and
R[...].

[82] Whether prayer 7 constituted a variation of the maintenance order which
would have triggered section 8(1) of the Divorce Act is arguable and is not a
consideration on appeal . For completeness sake, however, even if such relief
amounted to a variation application, the appellant would have faced these potential
hurdles: the claim for maintenance vested in the major dependent children and not in
her; an application in terms of s ection 8(1) would have affected the rights of Y[...]
and R[...] and thus they would have had to be joined to the application as interested
and affected persons; and, a determination of their reasonable and necessary
expenses would have been required in order for the Court a quo to have determined
whether the amounts sought in paragraph 7, were in fact reasonable and fair.

[83] Insofar as prayer 8 for arrear maintenance is concerned, the issue for the
appellant, in view of the above findings, is that it is highly questionable that she
would be at liberty to claim arrear maintenance when the order was not granted in
her name. No m aintenance payments were made to her. The fact that she was a
party to the divorce action and subsequent order does not entitle her to claim what
she clearly refers to as “arrear maintenance… in respect of the children”.

[84] The appellant’s motivation wa s that she made payments in respect of the
children in lieu of maintenance which the respondent should have, but did not, pay.

children in lieu of maintenance which the respondent should have, but did not, pay.
At best for the appellant, she may have a civil claim for the amounts expended for
the children in the absence of the respondent’s maintenance payments to them, but
the claim referred to in paragraph 8 of the Notice of Motion is , in my view, not arrear
maintenance payable to her arising out of the order nor does it constitu te an
enforcement of the order on behalf of Y[...] and R[...]. For such a claim to be
successful , the order would have had to be in the appellant’s name and/or the

maintenance payments would have had to be specifically payable to her, which was
not the case57.
[85] Lastly, my view is that the appellant also lacks locus standi to proceed with
contempt of court proceedings against the respondent. It is trite that Bannatyne v
Bannatyne58 is authority that non -payment of maintenance can lead to contempt of
court proceedings in the High Court. In this instance, the order is a High Court order
hence an application to hold the respondent in contempt of Court to enforce the
order would ordina rily not be problematic but for the locus standi issue.

[86] There is no need to deal with the trite requirements for contempt of Court in
view of the findings in the appeal. I agree with the appellant’s submissions that an
order ad factum praestandum, which is an order to do something, is indeed capable
of being the basis of contempt proceedings 59. While I respectfully disagree with the
Court a quo’s rationale on certain aspects highlighted in this judgment , its finding in
dismissing the contempt of Court application was , in my view, correct.

[87] Furthermore, the respondent disputed the reasonable needs of the children
and for example, whether additional courses were required. His issue was not that
he was required to pay until Y[...] and R[...] became self-supporting, but rather that
he queried their needs, questioning whether their expenses as alleged by the
appellant were reasonable, necessary and fair. In such circumstances in Motion
Court proceedings, where final relief is sought , the Plascon-Evans rule would apply,
and the respondent’s version would thus be preferred unless , for example, it was
inherently unacceptable.

[88] As found earlier in the judgment, the appellant had no locus standi to bring the
application for contempt of court (prayers 1 and 2), a variation and/or clarification of
the maintenance order (prayers 3 to 6, and 7) and an arrear maintenance claim

the maintenance order (prayers 3 to 6, and 7) and an arrear maintenance claim
(prayer 8) in the High Court. Accordingly, the point in limine should have been
upheld.


57 Except for the rental shortfall related to Ruan
58 2003(2) BCLR 111 (CC) 112
59 Burchell v Burchell [2005] ZAECHC 35 par 4

[89] Having regard to the above, but for reasons other than those held by the
Court a quo, the application was correctly dismissed by that Court. On the issue of a
request for referral of a maintenance dispute to the Maintenance Court, I decline to
do so. In other circumstances, it may have been a competent order or remedy to
refer the maintenance issue to the Maintenance Court but in the ci rcumstances of
this matter and in view of the fact that we were informed on appeal that Y[...] had
concluded her third course, there may be a number of variables, such as the very
real possibility that R[...] and Y[...] may no longer be dependent and may well be
self-supporting.

[90] In respect of section 28(2) of the Constitution, it has been held above that the
rights to claim maintenance and enforce the order, lie with R[...] and Y[...], and
vested in them on reaching the age of majority. While I am mindful that litigation
between a parent and child has its very real problems as recognised in AF v MF, as
seen in this matter, Y[...] had commenced exercising her rights by approaching the
Maintenance Court but then withdrew her application thus the argument that their
rights were infrin ged, is questionable if not unconvincing.


Costs and conclusion

[91] In conclusion, the appeal falls to be dismissed, and I am of the view that costs
of two counsel on scale C are warranted in the circumstances. Lastly, I have
considered the appellant’s counsel’s submissions on costs and indicate that in the
order of the SCA, the costs orders of the Court a quo were already set aside.


Order

[92] In the result, I would grant the following order:

The appeal is dismissed with costs which shall include the costs of two
counsel on scale C.

_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT
I agree and it is so ordered,
_____________________________
D M THULARE
JUDGE OF THE HIGH COURT
I agree,

_____________________________
G ELLIOTT
ACTING JUDGE OF THE HIGH COURT


Appearances
For appellant: Adv G Rautenbach SC
Instructed by: Van Niekerk Groenewoud and Van Zyl Inc.
Tygervalley
Ref: Mr Karl Laubscher

For respondent: Adv L Buikman SC
Instructed by: Mostert and Bosman
Bellville
Ref: Mr J Steyn