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[2002] ZACC 31
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Bannatyne v Bannatyne and Another (CCT18/02) [2002] ZACC 31; 2003 (2) BCLR 111 ; 2003 (2) SA 363 (CC) (20 December 2002)

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 18/02
NADENA BANNATYNE Applicant
versus
LAURIE NOËL
BANNATYNE Respondent
COMMISSION FOR GENDER EQUALITY Amicus
Curiae
Heard on : 7 November 2002
Decided on : 20 December
2002
JUDGMENT
MOKGORO J:
Introduction
[1]
This
case concerns the responsibility of the judiciary to ensure that maintenance
orders are observed. Ms Nadena Bannatyne, the applicant
in this matter,
approaches this Court in terms of rule 20 of the Constitutional Court Rules for
special leave to appeal against a
judgment and order of the Supreme Court of
Appeal (SCA). The High Court had made an order at the instance of the applicant
committing
the respondent, Mr Laurie Noël Bannatyne, for contempt of a
maintenance order. On appeal to the SCA, that contempt order was
set aside.
The applicant applied for special leave to appeal to this Court on the basis
that, in its finding regarding when a High
Court is competent to make an order
for contempt, the SCA failed to take into consideration and give due weight to
section 28(2)
of the Constitution which requires that the best interests of the
child be given paramountcy in all matters affecting children.
[2]
The parties were directed to
deal with the following issues:
“(a) Whether the issue concerning the High Court’s jurisdiction to
make an order committing the respondent for contempt
of court on the grounds of
his failure to comply with a maintenance order made by the Magistrates Court is
within the jurisdiction
of the Constitutional Court; and if it is,
(b) Whether in the light of the provisions of section 28(2) of the Constitution,
or any other provision of the Constitution, the
question whether the High Court
should or should not have made an order in the circumstances of the present
case, raises a constitutional
matter, or an issue connected with a decision on a
constitutional matter; and if so
(c) Whether in the circumstances of the present case, such an order ought to
have been made by the High Court; and if so,
(d) Whether the Supreme Court of Appeal erred in setting aside the order that
had been made.”
[3]
The Court admitted as amicus
curiae the Commission for Gender Equality
(CGE)
[1]
which lodged empirical data
on the state of the maintenance system in South Africa and its effect on the
rights of women and children
in seeking effective relief pursuant to the
Maintenance Act (the Act).
[2]
This
evidence proved most useful and gave the necessary context by providing
information regarding the frailties inherent in the
functioning of the
maintenance system and more particularly its effect on the promotion and
advancement of gender equality in this
country. The Court is indebted to the
CGE for this evidence and its argument.
The
relevant provisions of the Act
[4]
The Act provides both civil
and criminal remedies against defaulters. Chapter 5 of the Act makes provision
for maintenance orders
to be enforced by civil execution. This includes
execution against property, the attachment of emoluments and the attachment of
debts.
[3]
A failure to comply with a
maintenance order is also a criminal offence for which a defaulter can be
sentenced to imprisonment or
ordered to pay a
fine.
[4]
Chapter 6 of the Act makes
provision for a court to convict a person for failing to pay maintenance.
Section 40 of the Act specifically
deals with the recovery of arrear maintenance
and provides:
“(1) A court . . . may, on the application of the public prosecutor and in
addition to or in lieu of any penalty which the
court may impose in respect of
that offence, grant an order for the recovery from the convicted person of any
amount he or she has
failed to pay in accordance with the maintenance order,
together with any interest thereon, whereupon the order so granted shall
have
the effect of a civil judgment of the court and shall, subject to subsection
(2), be executed in the prescribed manner.
(2) A court granting an order against a convicted person
may−
(a) in a summary manner enquire into the circumstances mentioned in subsection
(3); and
(b) if the court so decides, authorise the issue of a warrant of execution
against the movable or immovable property of the convicted
person in order to
satisfy such order.
(3) At the enquiry, the court shall take into consideration−
(a) the existing and prospective means of the convicted
person;
(b) the financial needs and obligations of, or in respect of, the person
maintained by the convicted person;
(c) the conduct of the convicted person in so far as it may be relevant
concerning his or her failure to pay in accordance with the
maintenance order;
and
(d) the other circumstances which should, in the opinion of the court, be taken
into
consideration.
(4) Notwithstanding anything to the contrary contained in any law, any pension,
annuity, gratuity or compassionate allowance or
other similar benefit shall be
liable to be attached or subjected to execution under an order granted under
this section.”
Provision is also made for criminal proceedings in respect of
the non-payment of maintenance to be converted into a maintenance enquiry.
This
must be done if
“. . . it appears to the court that it is desirable that a maintenance
enquiry be held, or when the public prosecutor so requests
. . .
”
[5]
[5]
Chapter 3 of
the Act governs the functions and powers of maintenance officers in the
enforcement of maintenance orders. Section 6
requires the maintenance officer
to take steps to investigate a maintenance complaint and thereafter institute a
maintenance enquiry.
The investigation of a complaint includes obtaining
statements under oath from persons with information regarding the
complaint;
[6]
investigating the
identity or whereabouts of the alleged
defaulter
[7]
and any other relevant
information for the purposes of the maintenance enquiry. A maintenance officer
is also empowered to enlist
the assistance of a maintenance investigator to
assist in the performance of such
functions.
[8]
At the maintenance
inquiry, the maintenance officer is entitled to subpoena witnesses to give
evidence or to produce documentary
evidence relating to the financial position
of the
parties.
[9]
[6]
After setting out the
factual background, I shall deal with the question whether this is a
constitutional matter, then whether a High
Court has jurisdiction to commit for
contempt a person who defaults in terms of an order of a maintenance
court.
[10]
If it is found that the
High Court enjoys such jurisdiction, the next leg of this inquiry is to consider
the circumstances in which
it may exercise such jurisdiction so as to provide
effective relief to maintenance
complainants.
Factual background
[7]
The parties were married in
1986. They have two young children born of the marriage. On 4 February 1999
the parties were divorced
in the Pretoria High Court. Incorporated into their
decree of divorce was a settlement agreement making provision for the payment
of
maintenance by the respondent to the applicant for herself and their two
children. The amounts specified were R1750 per month
per child and R1000 per
month for the applicant for a period of five years. The respondent also
undertook to retain the children
on his medical aid scheme at his cost and to
pay all reasonable medical expenses incurred on their behalf. The agreement
also made
provision for either party to bring an application for a variation of
the amounts owing in respect of
maintenance.
[11]
[8]
The respondent did not pay
maintenance regularly. Towards the end of 1999 he brought an application in the
maintenance court for
the reduction of the maintenance payable to the applicant
and the children. This led to the court making an order on 5 January 2000
in
terms of section 16(1)(b) of the Act, which reduced the maintenance payable for
the children to R1500 per month per child, but
left unaltered the maintenance
for the applicant. The effect of this order was to discharge the High Court
order and to substitute
for it the order made by the maintenance
court.
[12]
[9]
Despite having secured the
reduction of the maintenance payable, the respondent fell into arrears. The
applicant approached the maintenance
court for assistance in March 2000 and as a
result the respondent made payment of the arrears in April 2000. Almost
immediately,
however, he fell into arrears again. In contravention of the
maintenance court order, he paid a reduced amount of R1200 in respect
of each
child for the months of June and July 2000 and removed them from his medical aid
scheme, refusing to make any payment of
medical expenses incurred on their
behalf. He made no further payments after July
2000.
[10]
The applicant approached
the maintenance court repeatedly to seek to enforce the maintenance order.
Apart from the first approach
in March 2000, which led to payment of the arrears
in April 2000, her attempts to secure payment of maintenance and of the arrears
failed. Two writs of execution were issued, but both failed to produce any
money. On the first occasion property was attached.
It was subsequently
released from the attachment as a result of interpleader proceedings instituted
by a woman with whom the respondent
was then cohabiting, and children from a
former marriage, who claimed that the property had been sold to them by the
respondent.
The second writ also failed when it appeared that a motor vehicle
which had been attached was subject to a hire-purchase agreement
and did not
belong to the respondent.
[11]
It is not clear exactly
what happened after that. The applicant says that when she wanted to lay a
charge for the non-payment of
maintenance, the respondent applied for the
children’s maintenance to be reduced to R600 per month. This led to a new
enquiry
which was repeatedly postponed. A final postponement was granted until
1 February 2001 but the prosecutor in Louis Trichardt, at
the instance of the
respondent, arranged with the prosecutor in Pretoria for a further postponement.
This was done on 31 January
2001 without reference to the applicant. She merely
received a message on her cellular phone from the respondent saying that the
application would again be postponed to 20 February 2001 because he had made
other arrangements. She, however, attended court on
1 February 2001 only to
find that the application had been removed from the
roll.
[12]
By this time the applicant
was in parlous circumstances. She was earning R3500 per month and, though
living modestly, incurred monthly
expenses of R3600. She had used up all her
savings, had surrendered insurance policies taken out for the children and had
no other
source of income to maintain herself and the children. She was
desperate and believed that the respondent was maliciously disposing
of his
assets and frustrating the maintenance court proceedings. It was in these
circumstances that she applied to the High Court
for an order that the
respondent be committed to prison for contempt of court for failing to comply
with the maintenance order but
that the imprisonment be suspended on condition
that he paid the arrear maintenance and continued payments thereafter timeously.
The matter was heard in the High Court on 21 February
2001.
[13]
In her Notice of Motion in
the High Court the applicant asked that the respondent be committed for contempt
of court for failing to
comply with the order made on 4 February 1999 at the
time of their divorce. That order had in fact been discharged by the order
made
by the maintenance court.
[13]
Although the founding affidavit referred to the fact that the order made at the
time of the divorce had been varied by the maintenance
court and was the subject
of proceedings before that court, the attention of the judge who dealt with the
matter in the High Court
was not drawn to the provisions of section 22 of the
Act, or to the decision of the Appellate Division in
Purnell v
Purnell
.
[14]
[14]
Had the judge’s
attention been drawn to this he would have had to consider whether it was
competent to enforce the order of
the maintenance court by way of contempt
proceedings in the High Court. He did not consider this question. Instead, he
ordered
that the respondent be committed for contempt of court for failing to
comply with the order made at the time of the divorce. This
was not a competent
order. When application was made to him for leave to appeal against the order,
and his attention was drawn to
section 22 of the Act and to
Purnell’s
case, he immediately granted leave to
appeal.
[15]
The SCA correctly did not
deal with the appeal on a technical basis. At issue was maintenance due to
children. It approached the
matter on the assumption that the High Court could
have committed the respondent for contempt of court for failing to comply with
the order of the maintenance court, but concluded that the applicant had not
established factual and legal grounds for the granting
of such
relief.
[16]
For reasons which appear
later in this judgment I do not agree with the finding that the applicant had
not established a factual and
legal basis for the granting of a contempt order.
I agree, however, that this was the issue that had to be considered, and that
it
is the issue which arises for consideration in the appeal to this
Court.
Whether the issue is a constitutional
matter
[17]
First it is necessary to
consider whether the case concerns a constitutional matter within the
jurisdiction of this Court. The respondent
contended that the High Court did
not have jurisdiction to commit him for contempt for his failure to comply with
an order of the
maintenance court. The High Court’s powers are embodied
in section 169 of the
Constitution.
[15]
Any issue as to
the nature and ambit of those powers necessarily raises a constitutional
question. Furthermore, the applicant challenges
the test set by the SCA for
determining the circumstances in which a High Court should exercise its
jurisdiction, on the basis that
it failed to take into consideration and give
due weight to the best interests of the children in this matter and the state of
the
maintenance system in South Africa and its effect on gender equality.
Section 28(2) of the Constitution enjoins a court to give
paramountcy to the
best interests of the child “in every matter concerning the child”.
A dispute as to whether this
was done by the SCA raises a constitutional matter.
As appears in paragraphs 29-30 below, this case also raises issues of gender
equality relevant to the manner in which a court should approach a case such as
this. Inquiries into these issues are constitutional
matters and are properly
before this Court. Given this and the fact that applicant has reasonable
prospects of success, it is in
the interests of justice for special leave to
appeal to be granted.
Inherent jurisdiction
of the High Courts
[18]
Although money judgments
cannot ordinarily be enforced by contempt proceedings, it is well established
that maintenance orders are
in a special category in which such relief is
competent.
[16]
What is less clear
is whether it is competent for a High Court to make an order for contempt of
court for the failure to comply
with an order made by a magistrate’s
court. This question was left open by the SCA in this case. While it was
willing to
assume that the High Court had such jurisdiction, it concluded on the
evidence that the applicant had not pursued her remedies under
the Act
“fully and diligently” and that there were accordingly insufficient
grounds for the High Court to have made the
order that it
did.
Circumstances in which a High Court
should exercise its inherent jurisdiction
[19]
In terms of section 8 of
the Constitution the judiciary is bound by the Bill of
Rights.
[17]
Courts are empowered to
ensure that constitutional rights are enforced. They are thus obliged to grant
“appropriate relief”
to those whose rights have been infringed or
threatened.
[18]
In
Fose v
Minister of Safety and
Security
[19]
Ackermann J
said:
“. . . I have no doubt that this Court has a particular duty to ensure
that, within the bounds of the Constitution, effective
relief be granted for the
infringement of any of the rights entrenched in it. In our context an
appropriate remedy must mean an
effective remedy, for without effective remedies
for breach, the values underlying and the rights entrenched in the Constitution
cannot properly be upheld or enhanced. Particularly in a country where so few
have the means to enforce their rights through the
courts, it is essential that
on those occasions when the legal process does establish that an infringement of
an entrenched right
has occurred, it be effectively vindicated. The courts have
a particular responsibility in this regard and are obliged to ‘forge
new
tools’ and shape innovative remedies, if needs be, to achieve this
goal.” (Footnote omitted.)
[20]
There is however no need to
forge new remedies permitting the High Court to enforce a maintenance order made
by the maintenance court.
Process-in-aid is an appropriate remedy for this
purpose. It is the means whereby a court enforces a judgment of another court
which cannot be effectively enforced through its own
process.
[20]
It is also a means
whereby a court secures compliance with its own
procedures.
[21]
Although
process-in-aid is sometimes sanctioned by a statutory provision or a rule of
court,
[22]
it is an incident of a
superior court’s ordinary
jurisdiction.
[23]
Contempt of court
proceedings are a recognised method of putting pressure on a maintenance
defaulter to comply with his/her
obligation.
[24]
An application to
the High Court for process-in-aid by way of contempt proceedings to secure the
enforcement of a maintenance debt
is therefore appropriate constitutional relief
for the enforcement of a claim for the maintenance of
children.
[21]
This does not mean that
High Courts can be seized of all claims for maintenance. Process-in-aid is a
discretionary remedy. In
Troskie v
Troskie
[25]
the court dealt with
the question of whether it should exercise a discretion which it had under the
rules of court as they then
existed,
[26]
to conduct an enquiry
into the financial position of a person who had failed to make payment in terms
of a maintenance order and
to grant appropriate relief in the light of such
examination. In developing the test for the exercise of the discretion, Trollip
J said the following:
“Now the important factor relating to the exercise of such discretion by
the Court is the existence of the Maintenance Act,
23 of 1963, as amended by Act
19 of 1967. In that Act ample provision is made for the enforcement, and the
variation if necessary,
of any order for maintenance made by a Supreme Court by
the appropriate magistrate’s court by means of a simple, inexpensive
and
effective procedure.
. . . .
Those provisions were obviously designed to expedite and to simplify the
procedure relating to maintenance orders, and, above all,
to avoid the necessity
of the parties having to resort to the far more costly procedure of applying to
the Supreme Court for relief.
A further object must have been to relieve the
Supreme Court from having to deal with the somewhat frequent applications that,
in
the past, were directed to it to enforce or vary maintenance orders.
It seems to me, therefore, that this Court, in the exercise of its discretion,
should not entertain any application under Rule 45(12)(
i
) to enforce
payment of the arrears of a maintenance order, unless there are good and
sufficient circumstances warranting it.”
[22]
Process-in-aid will not
ordinarily be granted for the enforcement of a judgment of another court if
there are effective remedies in
that court which can be
used.
[27]
However, there may well
be instances in which the facts of a particular case justify approaching a High
Court for such relief.
Although
Troskie
was concerned with the
circumstances in which a High Court should invoke rule 45(12) of the Supreme
Court Rules which requires the
Court to conduct an investigation into the
financial position of a person for the purposes of enforcing payment of a High
Court maintenance
order, the policy considerations underlying that test are
equally applicable in this case.
[23]
It is for the applicant to
show that there is good and sufficient reason for the High Court to enforce the
judgment of another court.
What constitutes “good and sufficient
circumstances” warranting a contempt application to the High Court will
depend
upon whether or not in the circumstances of a particular case the
legislative remedies available are effective in protecting the
rights of the
complainant and the best interests of the children. This much is confirmed in
section 38 of the Constitution which
permits a court to grant appropriate relief
where it is alleged that a right in the Bill of Rights has been infringed or
threatened.
[24]
The right in question in
children’s maintenance matters is contained in section 28 of the
Constitution.
[28]
Section 28(2)
provides:
“A child’s best interests are of paramount importance in every
matter concerning the child.”
Children have a right to
proper parental care. It is universally recognised in the context of family law
that the best interests
of the child are of paramount
importance.
[29]
While the
obligation to ensure that all children are properly cared for is an obligation
that the Constitution imposes in the first
instance on their
parents,
[30]
there is an obligation
on the state to create the necessary environment for parents to do so. This
Court has held that the state
“. . . must provide the legal and administrative infrastructure necessary
to ensure that children are accorded the protection
contemplated by s
28.”
[31]
[25]
As reflected in the
preamble to the Act, our country has committed itself to giving high priority to
the constitutional rights of
children. It has provided the legal infrastructure
through the Act thereby giving effect to the imperative contained in section
28
of the Constitution.
[32]
The Act is
a comprehensive piece of legislation designed to provide speedy and effective
remedies at minimum cost for the enforcement
of parents’ obligations to
maintain their children. This Act followed the highly criticised Maintenance
Act 23 of 1963 in
an attempt by the Department of Justice to address the
systemic failures of the maintenance
system.
[33]
The Act includes a
number of innovations, including the introduction of maintenance investigators.
Established in terms of section
5 of the
Act,
[34]
the maintenance
investigator, acting subject to the directions and control of a maintenance
officer, investigates any complaint relating
to maintenance and gathers relevant
information, including information on the financial position of any person
affected by the liability
created by a maintenance order. In terms of section
27(2)(b) of the Act, when a complainant applies for a warrant of execution
against
the movable property of a maintenance defaulter, it is the task of the
maintenance investigator or the maintenance officer to assist
the complainant in
facilitating this
process.
[35]
[26]
Despite the good intentions
of this comprehensive legal framework specifically created for the recovery of
maintenance, there is evidence
of logistical difficulties in the maintenance
courts that result in the system not functioning
effectively.
[36]
The CGE placed
material before the Court, demonstrating the difficulties with the operation of
the Act, including problems ranging
from inadequately trained staff to
insufficient facilities and
resources.
[37]
[27]
Systemic failures to
enforce maintenance orders have a negative impact on the rule of law. The
courts are there to ensure that the
rights of all are protected. The judiciary
must endeavour to secure for vulnerable children and disempowered women their
small but
life-sustaining legal entitlements. If court orders are habitually
evaded and defied with relative impunity, the justice system
is discredited and
the constitutional promise of human dignity and equality is seriously
compromised for those most dependent on
the
law.
[28]
It is a function of the
state not only to provide a good legal framework, but to put in place systems
that will enable these frameworks
to operate effectively. Our maintenance
courts and the laws that they implement are important mechanisms to give effect
to the rights
of children protected by section 28 of the Constitution. Failure
to ensure their effective operation amounts to a failure to protect
children
against those who take advantage of the weaknesses of the
system.
[29]
Compounding these
logistical difficulties is the gendered nature of the maintenance system. The
material shows that on the breakdown
of a marriage or similar relationship it is
almost always mothers who become the custodial parent and have to care for the
children.
This places an additional financial burden on them and inhibits their
ability to obtain remunerative employment. Divorced or separated
mothers
accordingly face the double disadvantage of being overburdened in terms of
responsibilities and under-resourced in terms
of means. Fathers, on the other
hand, remain actively employed and generally become economically enriched.
Maintenance payments
are therefore essential to relieve this financial
burden.
[30]
These disparities undermine
the achievement of gender equality which is a founding value of the
Constitution.
[38]
The enforcement
of maintenance payments therefore not only secures the rights of children, it
also upholds the dignity of women
and promotes the foundational values of
achieving equality and non-sexism. Fatalistic acceptance of the insufficiencies
of the maintenance
system compounds the denial of rights involved. Effective
mechanisms for the enforcement of maintenance obligations are thus essential
for
the simultaneous achievement of the rights of the child and the promotion of
gender equality.
[31]
The appropriate relief
required by section 38 is relief that is effective in protecting threatened or
infringed rights.
[39]
Where
legislative remedies specifically designed to vindicate children’s rights
as efficiently and cost-effectively as possible
fail to achieve that purpose,
they do not provide effective relief. The SCA, in upholding the appeal, held
that
“. . . it has not been established that the statutory remedies have been
fully and diligently pursued and have been found to
be
wanting.”
[40]
This fails to have regard to the fact that once the applicant
had reported the respondent’s maintenance default, the matter
was then in
the hands of the maintenance officer on whom there was a duty to investigate the
complaint and provide the applicant
with the requisite assistance to enforce the
order.
[41]
It also fails to have
regard to the parlous circumstances in which the applicant found herself, and
the fact that despite her efforts
to secure relief through the provisions of the
Act, the respondent had failed to pay any maintenance whatsoever to her and the
children
for seven months. If regard is had to all the circumstances there were
indeed “good and sufficient circumstances” warranting
an application
to the High Court.
[42]
[32]
Courts need to be alive to
recalcitrant maintenance defaulters who use legal processes to side-step their
obligations towards their
children. The respondent was entitled to apply for a
variation of the maintenance order. But whatever excuse he might have had
for
failing to comply with the existing order, there was no excuse for his failure
to pay even the reduced amount that he contended
should be substituted for it.
The respondent appears to have utilised the system to stall his maintenance
obligations through the
machinery of the Act. It appears from the evidence of
the CGE that this happens frequently in the maintenance courts. The hardships
experienced by maintenance complainants need to be addressed and the proper
implementation of the provisions of the Act is a matter
that calls for the
urgent attention of the Department of
Justice.
Remedy
[33]
After the applicant had
launched the proceedings in the High Court, the respondent tendered through his
attorneys to cede to her an
amount of R34 366.06 out of the proceeds of the sale
of fixed property which he had concluded. A deed of cession in such terms was
signed by the respondent and enclosed with the letter. This represented the
arrear maintenance at that date. The letter went on
to request the applicant to
withdraw her application to the High Court on the basis that each party would
pay its own costs. According
to the letter the only alternative to this would
be for the respondent to arrange for his own sequestration, in which event
−
as the letter said − the applicant would receive nothing at
all.
[34]
The applicant’s
response to this letter was that she would not agree to withdraw the application
simply on the basis of the
cession. She had no information concerning the terms
of the sale, when the purchase price would be payable and whether there were
preferred creditors who might have a stronger claim to such proceeds. There was
further correspondence concerning a possible settlement
in which the respondent
consented to an order requiring him to pay the maintenance promptly and to
reimburse the applicant for all
medical expenses incurred by her for the
children within seven days of payment.
[35]
The exchange of letters was
said to be with prejudice and all this information was before the High Court.
The judge in the High Court
did not give reasons for the order he made, and it
is not possible, therefore to know what weight he attached to this
correspondence.
The correspondence is also not dealt with in the judgment of
the SCA.
[36]
The belated offer by the
respondent to meet his obligation to settle the arrears and to pay the
maintenance promptly was clearly prompted
by the High Court application. In the
light of the respondent’s past conduct, and the threat to cause himself to
be sequestrated,
the applicant was entitled to proceed with the application.
She had no assurance that the respondent would comply with his undertakings
or
that he would not again look for ways of avoiding them. The threat of
sequestration could only have added to this concern. She
was entitled to secure
the protection of a court order and to ask for a sanction to be imposed if the
undertaking was not complied
with. The High Court agreed and sentenced the
respondent to 90 days imprisonment for contempt of court, suspending the order
for
a period of 5 years on condition that the arrears be paid with interest
within a period of three months, and ordered that the monthly
maintenance be
paid promptly.
[37]
Although the order was
fatally defective because it was made with reference to the High Court order and
not the maintenance court
order that had replaced it, the substance of the order
as far as the arrears are concerned was
correct.
[38]
In the light of these
considerations, I find that at the time the applicant brought the contempt
proceedings in the High Court, grounds
existed for the court to commit the
respondent for contempt of court for failing to comply with the order of the
maintenance court.
[39]
We were informed by counsel
that after the committal order was made in the High Court the arrear maintenance
of R34 366.06 was paid
out of the proceeds of the sale of the property. Since
then, however, there has apparently been an ongoing dispute about the payment
of
maintenance, which is the subject of a maintenance enquiry which was to take
place on 9 December 2002.
[40]
In the light of these
changed circumstances, it is desirable that the initial contempt order of the
High Court be partly set aside
and that the inquiry concerning the question of
past, present and future maintenance continue in the maintenance court. The
maintenance
court is the most appropriate forum to inquire into the changed
circumstances and decide the matter. Given the long delay in this
case, it
seems necessary to expedite the matter and a copy of this judgment must be
brought to the attention of the presiding maintenance
officer.
Costs
[41]
The applicant was
represented by two junior counsel. She is entitled to her costs. The case is
not one, however, that warrants the
costs of two
counsel.
Order
[42]
In the result, the
following order is made:
1. The application for
special leave to appeal is granted.
2. The appeal is upheld.
3. The order made by the Supreme Court of Appeal is set aside.
4. In place of paragraphs 2.2 and 2.3 of the order made by Roux J the following
order is made: “All matters pertaining to the
payment of maintenance
subsequent to February 2001 and to any arrear maintenance that may be due and
payable, and all other matters
related to the dispute between the applicant and
the respondent concerning payment of maintenance are referred to the maintenance
court having jurisdiction for its determination.”
4. The respondent (appellant in the proceedings of the Supreme Court of Appeal)
is to pay the costs of the appeals to the SCA and
to this Court.
5. A copy of this judgment is to be brought to the attention of the maintenance
officer dealing with the dispute between the applicant
and the
respondent.
Chaskalson CJ, Langa DCJ,
Kriegler J, Goldstone J, Madala J, Ngcobo J, O’Regan J, Sachs J and Yacoob
J concur in the judgment
of Mokgoro J.
For the applicant: P. Oosthuizen and P. W. Oosthuizen instructed by M Van Den
Berg Attorneys, Pretoria.
For the respondent: M. H. van Twisk instructed by Sanet De Lange Attorneys,
Pretoria.
For the amicus curiae: G. M. Budlender instructed by the Legal Resources
Centre, Johannesburg.
[1]
The CGE is a state institution
established in terms of chapter 9 of the Constitution. Its constitutional
mandate is set out in section
187 of the Constitution which requires that it
“promote respect for gender equality and the protection, development and
attainment
of gender equality”. Furthermore, section 11 of the Commission
on Gender Equality Act 39 of 1996 sets out its powers and functions
which
include the power to monitor, investigate, research, educate, lobby, advise and
report on issues concerning gender equality.
Its interest in this matter arises
from the fact that since its inception, the CGE has viewed the administration of
maintenance
payments as a major obstacle to women fully attaining equality.
[2]
Act 99 of 1998.
[3]
Section 26(1) provides:
“Whenever any person−
(a) against whom any maintenance order has been made under this Act has failed
to make any particular payment in accordance with
that maintenance order; or
(b) . . . .
such order shall be enforceable in respect of any amount which that person has
so failed to pay, together with any interest thereon−
(i) by execution against property as contemplated in section 27;
(ii) by the attachment of emoluments as contemplated in section 28; or
(iii) by the attachment of any debt as contemplated in section
30.”
[4]
Section
31(1) of the Act stipulates that
“. . . any person who fails to make any particular payment in accordance
with a maintenance order shall be guilty of an offence
and liable on conviction
to a fine or to imprisonment for a period not exceeding one year or to such
imprisonment without the option
of a
fine.”
[5]
Section 41.
[6]
Section 7(1)(a).
[7]
Section 7(1)(b)(i).
[8]
Section 7(2).
[9]
Section 9(1).
[10]
The SCA was prepared to
assume that the High Court has such jurisdiction.
[11]
The Act permits this to be
done. According to section 3 of the Act every magistrate’s court is a
maintenance court. A maintenance
order is defined as meaning “any order
for the payment . . . of sums of money towards the maintenance of any person
issued
by any court in the Republic . . .”. A court is defined in section
1 of the Act as including a High Court. The Act goes on
to provide in section
16(1)(b) that a maintenance court may make an order in substitution of a
maintenance order made by any court.
[12]
Section 22 provides:
“Whenever a maintenance court–
(a) makes an order under section 16(1)(b) in substitution of a maintenance
order; or
(b) discharges a maintenance order under section 16(1)(b),
the maintenance order shall cease to be of force and effect . .
.”
[13]
See
para 8 above.
[14]
[1993] ZASCA 22
;
1993 (2) SA 662
(A). In
this case it was held that an application under the Divorce Act to vary a
maintenance order made by the High Court at the
time of a divorce, which had
subsequently been varied by the maintenance court, was fatally defective because
the latter order had
discharged the former.
[15]
Section 169 of the
Constitution provides:
“A High Court may decide−
(a) any constitutional matter except a matter that−
(i) only the Constitutional Court may decide;
or
(ii) is assigned by an Act of Parliament to another court of a status similar to
a High Court; and
(b) any other matter not assigned to another court by an Act of
Parliament.”
[16]
Hofmeyr v Fourie; B.J.B.S. Contractors (Pty) Ltd v Lategan
1975 (2) SA
590
(C) at 594C-D.
[17]
Section 8(1) provides,
“The Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and
all organs of state.”
[18]
Section 38 of the
Constitution states,
“Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has
been infringed or
threatened, and the court may grant appropriate relief, including a declaration
of rights . .
.”
[19]
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 69.
[20]
Van Zyl
The Theory of
the
Judicial Practice of South Africa
Vol. 1, 3rd ed. (Juta: Cape
Town, 1921) at 370 describes process-in-aid as “an authority from a higher
tribunal to supplement
the jurisdiction of a lower tribunal.”
[21]
See
Nel v Le Roux NO and
Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC) at para 11; and
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at
paras 7, 14, 21, 33, 36, 84 and 91.
[22]
See, for instance,
Ex
Parte Rabinowitz NO: In re Estate Sirkin v Zahrt
1948 (4) SA 286
(SWA) at
288.
[23]
Riddle v Riddle
1956
(2) SA 739
(C) at 745H.
[24]
Sparks v Sparks
1998
(4) SA 714
(W) at 725H.
[25]
1968 (3) SA 369
(W) at
370G-371D.
[26]
Rule 45(12)(h)-(j). These
sub-rules have been repealed.
[27]
Bosman v Bredell
1932
CPD 385
at 388.
[28]
Section 28(1) of the
Constitution provides:
“(1) Every child has the right−
(a) to a name and a nationality from
birth;
(b) to family care or parental care, or to appropriate alternative care when
removed from the family
environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services
that−
(i) are inappropriate for a person of that child’s age;
or
(ii) place at risk the child’s well-being, education,
physical or mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections
12 and 35, the child may be
detained only for the shortest appropriate period of time, and has the right to
be−
(i) kept separately from detained persons over the age of 18 years;
and
(ii) treated in a manner, and kept in conditions, that take
account of the child’s age;
(h) to have a legal practitioner assigned to the child by the state, and at
state expense, in civil proceedings affecting the child,
if substantial
injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of
armed conflict.”
[29]
International law also affirms the “best interests” principle and
many countries have subsequently incorporated it into
their constitutions or
child and family legislation. Article 3(1) of the United Nations Convention on
the Rights of the Child, 1989
requires that “In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts
of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”
Similar
pronouncements are found in article 4(1) of the African Charter on the Rights
and Welfare of the Child, 1990 (African Children’s
Charter). It is
significant that the preamble to the Act refers to South Africa’s
commitment under these international instruments.
South Africa ratified the
United Nations Convention on 16 June 1995 and the African Children’s
Charter on 7 January 2000.
See also
Du Toit and Another v Minister for
Welfare and Population Development and Others
2002 (10) BCLR 1006
(CC) at n
19.
[30]
Government of the
Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 77;
Minister of Health and Others v
Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10)
BCLR 1033
(CC) at para 77.
[31]
Grootboom
id at para
78.
[32]
The preamble of the Act
specifically provides that the “Constitution of the Republic of South
Africa, 1996, as the supreme
law of the Republic, was adopted . . . to improve
the quality of life of all citizens and to free the potential of all persons by
every means possible, including, amongst others, by the establishment of a fair
and equitable maintenance system . . .”
[33]
See n 36 below.
[34]
Section 5 of the Act
provides:
“(1) The Minister, or any officer of the Department of Justice authorised
thereto in writing by the Minister, may appoint in
the prescribed manner and on
the prescribed conditions one or more persons as maintenance investigators of a
maintenance court to
exercise or perform any power, duty or function conferred
upon or assigned to maintenance investigators by or under this Act.
(2) The Minister shall take all reasonable steps within the available resources
of the Department of Justice to achieve the progressive
realisation of the
appointment of at least one maintenance investigator for each maintenance
court.”
[35]
The section instituting maintenance investigators has however not yet been
brought into effect due to budgetary constraints. See
Wamhoff
South
Africa’s New Maintenance System: Problems and Suggestions
(Centre for
Socio-Legal Research Report No 5, Cape Town 2001) at 6.
[36]
A number of reports,
discussion papers and articles have been published on the state of the
maintenance system in South Africa.
See
Report of the Lund Committee on
Child and Family Support, 1996
(Chapter 5: The Private Maintenance System);
South African Law Commission: Review of the Maintenance System
(Project
100, Issue Paper 5, 1997); and Clark, “The new Maintenance Bill: some
incremental reform to judicial maintenance procedure”
De Rebus
(Dec
1998) 63. These works assisted in giving rise to the enactment of the
Maintenance Act 99 of 1998
, however the system continues to provide a host of
problems for struggling single parents. See in particular Wamhoff above n
35.
[37]
Cornerstone Economic
Research
A baseline cost study on the appointment of maintenance
investigators in terms of the
Maintenance Act, 1998
: Report 1 (2 July 2002
)
at 19-25. This study was commissioned by the Department of Justice as part of
an attempt to correct some of the systemic deficiencies
in the maintenance
system. It sets out a list of the current problems of the system, namely
inadequately trained staff; inadequate
numbers of staff; poor administration;
low priority given to maintenance cases; an incoherent division of labour within
the system;
the lack of tracing defaulters; delays in service of process;
failure to serve process; lack of adequate information within the system;
inadequate court facilities; and inadequate technology and resources.
[38]
Section 1(a) of the
Constitution.
[39]
See para 19 above.
[40]
Bannatyne v Bannatyne
Case No 177/2001, as yet unreported judgment of the Supreme Court of Appeal
dated 16 May 2001, at para 10.
[41]
See paras 5 and 25
above.
[42]
Troskie v Troskie
above n 25 at 371D.