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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2024-141041
Court a quo Case Number: 14/3/2-518/2021
In the matter between:
P[…] G[…] Appellant
and
T[…] G[…] Respondent
In re:
P[…] G[…] Applicant
and
T[…] G[…] Respondent
JUDGMENT
CRUTCHFIELD J with whom MOTHA J concurs:
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
4 May 2026 _________________________
DATE SIGNATURE
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[1] The appellant, P […] G[…] , appeals against the judgment of the magistrates’
courts for the district of Johannesburg North, Randburg, delivered on
26 September 2024, particularly paragraphs 25 and 26 of the judgment.
[2] The respondent, T[…] G[…] , does not oppose the appeal and did not appear
at the hearing.
[3] The factual background, briefly stated, is that the respondent procured an
emoluments attachment order against the appellant in terms of section 28(1) of
the Maintenance Act, 99 of 1998 (“the Act”) on 17 April 2024 (“the attachment
order”), without service of the application for the attachment order upon the
appellant.
[4] Thereafter, the appellant brought an application in terms of s28(2) of the Act
for the rescission of the attachment order (“the rescission application”).
[5] Section 28(2) of the Act provides as follows:
“28 (2) (a) An order under this section may at any time, on good cause
shown, be suspended, amended or rescinded by the
Maintenance Court.
(b) Any person who wishes to make an application for the
suspension, attachment or rescission of an order under this
section shall give notice in the prescribed manner of his/her
intention to make the application to the person in whose favour
that order was made, which notice shall be served at least 14
days before the day on which the application is to be heard.
(c) The Maintenance Court may call upon –
(i) The person who has made the application to adduce
such evidence, either in writing or orally, in support of
his/her application as the Maintenance Court may
consider necessary; or
(ii) The person in whose favour an order under this section
was made to adduce such evidence, either in writing or
orally, in rebuttal of the application as the Maintenance
Court may consider necessary.”
[6] The appellant’s rescission application came before the court a quo on
6 September 2024. The respondent opposed the rescission application and
both parties were represented at that hearing. The appellant sought the
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immediate suspension of the order pending the outcome of the application for
rescission of the order.
[7] The court a quo dismissed the rescission application and directed the
appellant to approach the correct forum. The appellant appeals against the
dismissal of the rescission application.
[8] The court a quo reasoned in paragraph 25 of the judgment , that the appellant
wanted the court a quo dealing with the rescission application in terms of
s28(2) of the Act , “to usurp the re view and appeal powers of the Superior
Courts. I cannot sit as a review judge in a decision of my predecessor who was
a person of equal rank”.
[9] Accordingly, the court a quo considered that the rescission application in terms
of s28(2) of the Act was akin to a review application or an appeal of the
attachment order granted by the m aintenance court. This because a single
magistrate would be sitting in review of an order granted by a court of equal
status, thereby usurping the review powers of the superior courts.
[10] The court a quo’s reasoning was notwithstanding the clear wording of s28(2) of
the Act , which provides that an order in terms of the section may be
suspended, amended or rescinded by a maintenance court.
[11] Section 2 of the Act provides that every m agistrates’ court shall within its area
of jurisdiction be a m aintenance court for the purposes of the Act. Thus, the
court a quo sat as a maintenance court in terms of s28(2) when it dealt with the
rescission application.
[12] The interpretation of a statute, similar to a written contract, requires the
simultaneous application of the triad of text, purpose and context.
1 The starting
point is the text and the syntax of the language used in the statute, given that it
is through the text that the legislature expresses itself in terms of the relevant
provision of the statute.
[13] Section 28(2) provides specifically that a m aintenance court may deal with an
application for the rescission of an emoluments attachment order.
application for the rescission of an emoluments attachment order.
1 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (“Endumeni”).
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[14] A rescission application by its nature is not an application for the review of the
order in respect of which the rescission is sought . N or does a rescission
application function as an appeal of th e order in respect of which the
application is brought. The purpose of a rescission application, brought upon
good cause shown, is to rescind the order against which the rescission
application is brought. It is not intended to be an appeal of the previous order
and nor is it intended to be a review of the procedure in respect of the order.
The nature of a rescission application, the purpose thereof and the test applied
in order to proc ure a rescission, are markedly at variance to an appeal or a
review.
[15] The fact that a maintenance court, sitting in terms of s28(2) of the Act, is called
upon to consider the question of good cause in respect of an order granted in
terms of s 28(1) of the Act, by a m agistrate of equal superiority or standing as
the court dealing with the application in terms of s28(2) , is of no significance in
the light of the wording of the Act.
[16] A maintenance court is a specialist court and it is apparent that the intention of
the legislature, expressed in terms of the Act, was to have maintenance type
matters dealt with by such a specialist court that provides expeditious and easy
access to litigants.
[17] In the circumstances, in the face of the clear wording of s28(2) of the Act , the
court a quo erred in considering that it was being asked to sit as a court of
review or on appeal in respect of the attachment order, in circumstances when
it was being called upon to exercise its jurisdiction and function in terms of
s28(2) of the Act.
[18] Accordingly, the appeal must succeed to the extent that the order articulated in
paragraph 26 of the judgment of the court a quo is set aside.
[19] The court a quo did not consider the merits of the rescission application, more
particularly the existence or otherwise of good cause required in terms of
particularly the existence or otherwise of good cause required in terms of
s28(2). In those circumstances, it is not for me to deal with the substantive
merits of the appellant’s rescission application and that application, in terms of
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s19(c) of the Superior Courts Act 10 of 2013, stands to be referred back to the
maintenance court for determination in terms of s28(2) of the Act.
[20] As to the costs of the appeal, the respondent did not oppose the appeal and
should not be burdened with the costs of the appeal pursuant to the error of
the court a quo. In the circumstances, the costs of the appeal on scale A will
be costs in the cause of the rescission application to be determined by the
maintenance court in terms of s 28(2) of the Act.
[21] By reason of the aforementioned, I grant the following order:
1. The appeal is upheld.
2. The order in terms of paragraph 26 of the judgment of the court a
quo delivered on 26 September 2024, is set aside.
3. In terms of s19(c) of the Superior Courts Act 10 of 2013, t he
appellant’s rescission application is referred back to the Randburg
Maintenance Court for determination in terms of s 28(2) of the
Maintenance Act.
4. The costs of the appeal on scale A are costs in the cause of the
appellant’s rescission application.
I hand down the judgment.
___________________________
CRUTCHFIELD J
JUDGE OF THE HIGH COURT
JOHANNESBURG
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For the Appellant: Adv K Blair instructed by Reon Marais
Attorneys.
For the Respondent: No appearance.
Date of the hearing: 22 April 2026.
Date of the judgment: 4 May 2026.