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[2012] ZAWCHC 2
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Turton v Turton and Another (6566/06) [2012] ZAWCHC 2; 2012 (2) SA 623 (WCC) (2 February 2012)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 6566/06
Before: The Hon Mr Justice Binns-Ward
In the matter between:
PETER JOHN TURTON
….......................................................................................
Applicant
and
LORRAINE JANET TURTON
….....................................................................
1
st
Respondent
SHERIFF OF THE HIGH COURT, STRAND
…...............................................
2
nd
Respondent
JUDGMENT DELIVERED: 2 FEBRUARY 2012
BINNS-WARD, J:
The marriage between the applicant and the first respondent was
dissolved in terms of an order made by this court on 20 August
2008. The order incorporated the provisions of a ‘consent
paper’ entered into between the parties. In terms of clause 3
of the consent paper the applicant was bound to pay R12 000 per
month to the respondent in respect of personal maintenance
from
1 September 2008. The consent paper provided for the annual
escalation of this maintenance obligation to accommodate
the eroding
effect of monetary inflation. It also provided that in the event of
the first respondent being paid the sum of at
least R3,5 million
out of the proceeds of a fixed property registered in the name of
the applicant, which was to be put
into the market, the applicant’s
aforementioned maintenance obligation would thereupon fall away.
These provisions constituted
a ‘
maintenance order
’,
as defined in
s 1
of the
Maintenance Act 99 of 1998
.
1
The applicant fell into arrears with the payment of the maintenance.
He then applied to the maintenance court for a reduction
in the
amount of his monthly maintenance obligation. The proceedings in the
maintenance court culminated in an order being taken
by agreement
between the parties on 23 April 2010. According to its
tenor, that order directed the applicant to pay
personal maintenance
to the first respondent with effect from 1 May 2010 in the
amount of R8 000 per month, with an
additional amount of R2000
per month to be paid in respect of the months of May and June 2010.
The arrears which had built up in respect of the applicant’s
obligation in terms of the high court order remained unpaid.
The
first respondent obtained the issuance by the registrar of the court
of a writ of execution in respect of the unpaid arrears.
The
execution of the writ resulted in the attachment of some debentures
owned by the applicant. The effect of the writ was subsequently
suspended pending the determination of the current application.
The order made by the maintenance court was made in terms of
s 16(1)(b)
of the
Maintenance Act, which
provides:
(b) After consideration of the evidence adduced at the
enquiry, the maintenance court may –
in the case where a maintenance order is in force –
make a maintenance order contemplated in
paragraph (a)(i) in substitution of such maintenance order; or
discharge such maintenance order; or
…
.
Section 16(1)(b)
falls to be read with
s 22
of the Act, which
provides:
Whenever a maintenance court –
makes an order under
section 16(1)(b)
in
substitution of a maintenance order; or
discharges a maintenance order under
section 16(1)(b)
,
the maintenance order shall cease to be of force and
effect, and the maintenance officer shall forthwith give notice of
the decision
to the registrar or clerk of the court in the Republic
where the maintenance order was issued or where the sentence
concerned was
imposed, as the case may be, who shall deal with the
relevant records in the prescribed manner.
2
In these proceedings the applicant seeks an order setting aside the
writ of execution. The grounds upon which he contends for
this
relief are that the relevant provisions of the high court order
ceased to be of force or effect upon the making of the substituting
order of the maintenance court, and that the terms of the
maintenance court order in any event reflected an agreement of
compromise
reached between himself and the first respondent in
respect of any unfulfilled maintenance obligations under the high
court order.
In support of the first of the aforementioned grounds the applicant
relied on the effect of
s 16(1)(b)
read with
s 22
of the
Maintenance Act, as
well as the interpretation by the Appellate
Division, in
Purnell v Purnell
[1993] ZASCA 22
;
1993 (2) SA 662
(A), of the
essentially identical equivalent provisions of the 1963
Maintenance
Act
>
3
.
In
Purnell
, a maintenance order had been made in the high
court when the parties had been divorced. Sometime later, the
maintenance regime
instituted in terms of the high court order was
substituted by an order made in the maintenance court. Thereafter
one of the
parties applied for a variation of the maintenance
regime. That application was brought in the high court by way of an
application
for a variation of the originally made high court order.
Conformably with the language of the
Maintenance Act, the
Appellate
Division held that the high court order had ceased to exist,
4
having been substituted by the maintenance court order, and that
therefore, being non-existent, it was not amenable to variation
by
the high court.
The judgment in
Purnell
did not deal at all with the question
that presents in the current case. The question in this case is
whether an order made by
the maintenance court in substitution for a
pre-existing order
ipso facto
extinguishes the maintenance
receiver’s right to enforce payment of periodic payments that
have accrued under the pre-existing
order prior to its substitution
by a new order made in terms of
s 16(1)(b)
of the
Maintenance
Act.
By
stating that when a maintenance court makes an order in
substitution for an existing order the latter ‘
shall cease
to be of force and effect
’,
s 22
of the
Maintenance
Act does
not denote that the existing order shall be deemed never to
have existed. On the contrary, the language bears the plain meaning
that the existing order shall cease to be of force or effect from
the moment it is substituted, in other words
ex nunc
. The
substitution effected by the maintenance court order occurs when the
order is made, and according to its tenor. Thus, unless,
and only to
the extent that the substituting order is expressed to have
retrospective effect, it operates prospectively and does
not
derogate from the fact of the existence of the prior order, nor from
any of the rights of the beneficiary of the pre-existing
order which
had already fully accrued. In my view, the position where a
substituting order is made without expressly retrospective
effect is
analogous to that which ordinarily obtains when an executory
contract is cancelled: The contract ceases to be of force
or effect
from the moment of its termination, but rights which had accrued to
the contracting parties and were due and enforceable
by them before
the contract was ended are not extinguished with the contract. The
accrued rights may still be enforced despite
the fact that the
contract has subsequently become a dead letter – see
Crest
Enterprises (Pty) Ltd v Rycklof Beleggings (Edms) Bpk
1972 (2)
SA 863
(A) at 870G - H.
The firmly entrenched approach of our courts is to presume that if
the legislature intended by any statutory provision to encroach
on
vested or existing rights it would do so ‘
plainly, if not
in express words, at least by clear implication and beyond
reasonable doubt
’.
5
I find no language in the
Maintenance Act which
would justify its
construction so as to clearly imply an intention that a substitution
order made in terms of
s 16
of the Act would
ipso facto
,
and irrespective of its terms, expunge a maintenance beneficiary’s
rights in respect of the enforcement of payment of
arrear
maintenance under the preceding order if such rights had vested and
been enforceable before the making of the substitution
order. (As
discussed later in this judgment, the Act contains other provisions
directed at ameliorating the position of a maintenance
debtor upon
whom the enforcement of a maintenance order might bear too harshly.)
The
Maintenance Act expressly
deals with the recovery of arrear
maintenance by civil execution; see chap. 5 of the Act. The
measures provided in this
regard include obtaining a writ of
execution, a garnishee order, or an emoluments attachment order from
the maintenance court.
The relevant provisions also allow for an
application by the maintenance debtor to the maintenance court for
ameliorating relief
should the enforcement remedy chosen by the
maintenance creditor be alleged to bear too heavily in the
circumstances. The maintenance
court may grant such relief after an
enquiry into various matters, including the existing and prospective
means of the maintenance
debtor and the needs and obligations of the
maintenance creditor. Broadly similar provisions existed under the
1963
Maintenance Act, although
, significantly, those were limited in
that statute to proceedings ancillary to criminal proceedings
against the maintenance debtor
in the manner now provided in terms
of chap 7 of the 1998 Act. While it was apparently more common
under the 1963 Act for
maintenance creditors to enforce payment of
unpaid arrears under high court maintenance orders using the
criminal enforcement
mechanisms under the statute,
6
there was nothing exceptionable about the enforcement of such orders
by civil writ of execution.
7
In
Thomson v Thomson
2010 (3) SA 211
(W) a full bench of the
Witwatersrand Local Division held that the 1998
Maintenance Act did
not preclude a party from issuing a writ of execution out of the
high court to enforce payment of arrear maintenance.
8
The authority for that proposition cited by the court was the full
bench judgment in
Butchart
.
9
But
Butchart
concerned a matter disposed of in terms of the
1963 Act. Furthermore, the judgment in
Thomson
was handed down in July 2003, before
the amendment of
s 26(1)(a)
of the
Maintenance Act in
the
manner described below. It therefore has to be considered whether
s 26(1)
in its current form has changed matters.
Section 26(1)
of the
Maintenance Act, 1998
, provides:
(1) Whenever any person-
(a) against whom any maintenance order has been made has
failed to make any particular payment in accordance with that
maintenance
order; or
[Para. (a) substituted by
s. 18(a)
of Act 55 of 2003.]
(b) against whom any order for the payment of a
specified sum of money has been made under section 16(1)(a)(ii), 20
or 21(4) has
failed to make such a payment,
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.
The term ‘
maintenance
order
’
is specially defined in
s 1(1) of the Act.
10
It is clear that it includes an order for the
payment of maintenance ‘
issued by
any court in the Republic
’
; and
thus plainly includes a maintenance order (within the ambit of the
term as defined) made by a high court.
11
Prior to its amendment, in terms of
s 18(a)
of the
Judicial Matters Second Amendment Act 55 of 2003
,
s 26(1)
had read in relevant part ‘
against
whom any maintenance order has been made
under
this Act
has failed to make any
particular payment in accordance with that maintenance order
’
(emphasis supplied). The amendment was effective
from 31 March 2005. The evident intention of the amendment was
to bring maintenance
orders made by the high courts within the
embrace of s 26; as prior to its amendment, the provision had
pertained only to
maintenance orders made by the maintenance courts.
12
Section 26(2), read with
s 27
, of the
Maintenance Act provides
that any person in whose favour a maintenance order is operative may
apply to the maintenance court for the issue of a writ of
execution
if the maintenance payable under the order is in arrears by more
than ten days. The provision affords any person against
whom a writ
of execution is issued the right to apply for the holding of an
enquiry. Pursuant to such an enquiry, the maintenance
court may
suspend the writ and make an attachment of emoluments order in terms
of s 28 of the Act, or a debt attachment
order in terms of
s 30. An attachment of emoluments or debt order may also be
rescinded, suspended or amended by the maintenance
court, on
application.
In
Thomson
supra loc cit, the court remarked that in
proceedings instituted in the high court for a suspension of a writ
of execution on
a maintenance order because of an alleged inability
by the judgment debtor to pay the maintenance it would be
appropriate to
transfer the proceedings to the maintenance court to
be dealt with there under the relevant provisions of chap 5 of
the
Maintenance Act. However
, absent consent thereto by the parties,
I do not know, and the judgment does not inform, how such a transfer
could competently
be effected.
13
In any event, at the time judgment in
Thomson
was handed
down, the provisions of chap 5 of the
Maintenance Act were
applicable only respect of orders made by the maintenance court.
They were of no effect in respect of maintenance orders made
in a
high court. The remark thus seems to have been uttered
per
incuriam
.
Prior to the amendment of the provision, at a time when chap 5
related only to the civil enforcement of orders made by the
maintenance court, s 26(1) of the Act provided the only purely
civil means of enforcing payment of a maintenance obligation
arising
from a maintenance order made by a maintenance court. Under the
preceding 1963
Maintenance Act execution
of an order for maintenance
made by the maintenance court could be obtained only under an order
made ancillary to the criminal
conviction of the person responsible
for the non-payment under
s 11
of that Act. Thus situations
could arise in which a defaulter escaped conviction through lack of
proof beyond reasonable doubt
by the state of criminal intent (
mens
rea
) and, despite remaining in arrears in respect of periodic
payment obligations imposed in terms of a maintenance court order,
was, by reason of the acquittal, not susceptible to having a writ
issued for the attachment and sale of his or her property in
execution of the unfulfilled obligations under the order. The
unsatisfactory nature of this state of affairs was highlighted
by
the South African Law Commission (as it was then called) in an issue
paper on the review of the maintenance system.
14
The provisions of chap 5 of the 1998
Maintenance Act reflect
the remedial measures suggested in the issue paper.
15
When it was originally enacted,
s 26(1)
of the
Maintenance Act
was
an enabling provision. It enabled the civil enforcement of a
maintenance order made in the maintenance court. The remedies and
procedures provided for civil enforcement in terms of chap 5 of
the Act were the only remedies available. The question that
arises
is what was the legislature’s intention when it amended
s 26(1) to make high court maintenance orders susceptible
to
chap 5? High court maintenance orders had always been civilly
enforceable by writ of execution, and thus the necessity
for them to
be brought within the embrace of chap 5 of the Act did not
exist.
The carrying out of any of the civil remedies under the Act is
subject to the protections afforded to the maintenance debtor
under
s 27(3)-(6), s 28(2) and s 30(2) of the Act. These
matters do not coincide exactly with the remedies and
procedures
that would be applicable in terms of the processes of the high
court. There is no 10 day moratorium in favour
of the
maintenance debtor in terms of the high court enforcement
procedures. Another difference is that while a high court has
the
power to suspend the execution of its orders, and whereas the
Uniform Rules make provision for garnishee attachments, it
is
generally believed that the court does not have the jurisdiction to
make order for the attachment of future salary or wages
(an
emoluments attachment order).
16
Furthermore, the nature of the enquiry provided in terms of
s 27(3)
and (4) of the
Maintenance Act is
sui generis
and certainly
would not be available to a debtor in the position of the applicant
in the current case under the high courts’
processes. It
essentially creates an opportunity to have the question of not only
the means of the debtor to pay investigated,
but also to have his or
her liability to do so revisited.
It is unlikely to have been the legislature’s intention that
there should be two different systems of civil enforcement
of high
court maintenance orders in existence parallel to each other; the
one with a 10-day moratorium on enforcement, the other
having no
such moratorium; the one providing for a statutory procedure to
convert the enforcement process into an enquiry; the
other attended
by no statutory restraints. An ability by a maintenance creditor to
choose between such alternative enforcement
processes, if the choice
were available, would introduce an arbitrariness in respect of the
consequences for the debtor that
would be difficult to reconcile
with rationality and equality before the law. Moreover, having
regard to the expressed intention
of the Act, being the creation of
a fair and equitable maintenance system under the framework of the
statute,
17
the achievement of that objective would not be assisted if s 26(1)
were read as merely permissive or enabling in nature,
and as
allowing for disparate but parallel means of enforcement of high
court maintenance orders – the one under the Act,
and the
other outside it.
Counsel for both the applicant and the first respondent argued the
case assuming the competence of enforcing a high court maintenance
order by writ of execution issued by the registrar. The effect of
the provisions of the
Maintenance Act just
discussed, and more
particularly the amendment effected to
s 26(1)
, received no
attention in their arguments. It was only during my preparation of
judgment in the matter that I became astute to
the consideration and
invited counsel to address me on it. It seemed to me that as the
enforceability of a writ of execution
issued by the registrar of
this court to enforce a maintenance order is the question at the
heart of the matter I was duty bound
to determine it with reference
to the applicable law irrespective of the fact that the legal point
that presented itself to me
had not been identified as an issue by
counsel or the parties; cf.
CUSA v Tao Ying Metal Industries
and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC)
at
para. 68 and some of the authority cited in fn. 40 to the
judgment of Ngcobo J (as he then was).
By agreement
between the parties the additional argument was limited to written
supplementary submissions.
Both counsel contended that the amendment to
s 26(1)
of the
Maintenance Act did
not affect the competence of enforcing a
maintenance order made in the high court in the traditional way, by
means of obtaining
the attachment and sale of the maintenance
debtor’s property consequent upon the issuance by the
registrar of the high
court of a writ of execution. In this
connection the first respondent’s counsel, supported on this
point by the applicant’s
counsel, approached the question on
the basis that a construction of
s 26(1)
to mean that the
provision comprehensively and exclusively regulated the civil
enforcement of maintenance orders would amount
to an ouster of the
high courts’ jurisdiction. Relying on
Lenz
Township Company (Pty) Ltd vs Lorentz N.O. En Andere
1961
(2) SA 450
(A) at 455B; and
Minister of
Law and Order and Others vs Hurley and Another
1986
(3) SA 568
(A) at 584A – B, counsel submitted that there was a
presumption, in the absence
of an express provision or a
necessary implication to the contrary in the instrument in issue,
against a legislative intent to oust or curtail a
court’s powers.
Both those cases, however, are quite
distinguishable. They both involved questions in which it was
contended that the statutory
provisions in issue precluded the court
from determining a substantive question. The arguments advanced and
rejected in both
cases were to the effect that the statutory
provisions in question rendered the issues entirely non-justiciable.
As counsel themselves
recognised, in the modern constitutional era
any such contention would, quite apart from the principles applied
by the Appellate
Division in a number of matters including those
relied on by counsel in this case, have to overcome the hurdle of
inconsistency
with s 34 of the Constitution to hold muster.
Section 26(1)
of the
Maintenance Act does
not render any question of
maintenance non-justiciable. On the contrary, it proceeds on the
assumption that maintenance orders
can be made by the high courts,
the divorce courts and the maintenance courts. It does not derogate
from the existing authority
of any court to make a maintenance
order. It merely provides for a unified system of civil enforcement
of such orders. In that
sense the provision can be seen to be
legislation of the character contemplated by
s 165(4)
and s 171
of the Constitution; that is legislation assisting the accessibility
and effectiveness of the courts and providing
for their functions
and procedures. The fact that the system provided involves a
different administrative process from that which
would ordinarily
apply in respect of the enforcement of high court orders does not
appear to me to entail a derogation from,
or ouster, of the high
court’s jurisdiction. And the fact that the system provided
permits the possible suspension or variation
of a high court order,
if appropriate, by a maintenance court seems to me to be
indistinguishable in principle and substance
to the long entrenched
powers in that regard provided to the maintenance courts in terms of
s 16 of the Act and the preceding
like provisions in the 1963
statute. The authority relied upon by counsel for this part of their
argument in any event does not
detract from the fundamental premise
that, subject only to constitutional compatibility, effect must be
given to the evident
intention of the legislature as derived from
the language employed by it.
The other argument was that to construe
s 26(1)
of the
Maintenance Act as
providing that high court maintenance orders are
to be enforced exclusively under the provisions of chap 5 would
lead to
‘
impractical, undesirable and chaotic
consequences
’. The only example offered by counsel of such
unwholesome consequences pertained to the enforcement of orders made
by a
high court under
rule 4
3 of the Uniform Rules of Court. Rule 43
is a procedural provision. It regulates the procedure to be followed
in applications
of an interim nature in matrimonial matters.
18
Relief obtained under the procedure is not final in nature and is
directed at a regulation of the relevant issues, including
maintenance, only pending the determination of the principal
matrimonial case. Section 20(7) of the Supreme Court Act 59
of
1959 precludes any appeal from an order of the high court given in
terms of rule 43. In
De Witt v De Witt
1995 (3) SA 700
(T),
it was held that a maintenance order made in terms of rule 43 was
amenable to replacement, upliftment or suspension by the
maintenance
court in terms of the provisions of the 1963
Maintenance Act,
despite
the anomalous consequences of such a reading of the statute
in the face of the provisions of s 20(7) of the Supreme Court
Act. The basis for the court’s conclusion appears to have been
that there was no warrant for reading in the word ‘
final
’
before the word ‘order’ in the definition of
‘
maintenance order
’. A two-judge bench of the
Transvaal Provincial Division subsequently held that this conclusion
could not be faulted: see
Thompson v Thompson
1998 (4) SA 463
(T). It is not necessary for me to determine whether these judgments
were correct. Without so deciding, it nonetheless seems
to me, with
respect, however, that it might be that the judgments failed to give
sufficient weight to the qualification to the
statutory definition
requiring regard to the context. In this regard context could
arguably include not only the four corners
of the Act, but also its
evident purpose and position in the applicable broader statutory
framework. Approached in that manner
it does not appear to me to be
at all certain that the legislature intended to bring orders made
for maintenance
pendente lite
in terms of rule 43 within the
embrace of ‘
maintenance order
’ as defined in
s 1
of the
Maintenance Act. If
this is so the unhappy consequences
conjured in counsel’s argument do not arise. If, however, the
judgments in
De Witt
and
Thompson
are correct, they
illustrate that the consequences about which counsel have expressed
concern just have to be tolerated if they
follow on the clearly
articulated legislative scheme.
To sum up, I have been impelled to the conclusion that chap 5
of the
Maintenance Act is
intended to comprehensively regulate the
civil enforcement of maintenance orders (as defined) made by any
court in the Republic.
19
In the result the writ of execution obtained from the registrar of
the high court must be set aside. Subject to a determination
in her
favour on the alleged compromise agreement, the first respondent is
obliged to follow the procedures set out in chap 5
of the
Maintenance Act to
obtain civil execution against the applicant.
Turning then to the question of the alleged compromise agreement:
The applicant’s allegation that the maintenance order
was
agreed to by parties with the object not only of regulating his
maintenance obligations with effect from 1 May 2010,
as set out
in the terms of the order, but also of compromising any dispute
concerning his liability to pay any amount of arrear
maintenance
under the then subsisting High Court maintenance order is denied by
the respondent. The wording of the order made
by the maintenance
court does not support the applicant’s contention. Any factual
dispute as to whether or not the order
was preceded by the
conclusion of a compromise agreement as alleged by the applicant
falls to be resolved in favour of the respondent
applying the
Plascon-Evans
principle. To the extent that it might have
been permissible to consider the probabilities as they may be
assessed on the papers,
they do not support the applicant. It is
common cause that the first respondent had turned down an offer by
the applicant to
pay her R20 000 in settlement of the arrears
not long before the maintenance court’s order was made. The
applicant
offers no explanation of why the respondent should then
have settled shortly thereafter on the basis that she would receive
nothing
in respect of the arrears.
The maintenance court order provided that the applicant would pay
the respondent R10 000 per month for the months of May
and June
2010 and R8 000 per month thereafter. The contention by the
applicant that the increased payments for May and June
were intended
to address the arrears finds no support in the language of the
order. By contrast, a logical basis for the provision
is, as pointed
out by the respondent, to be found in the surviving provisions of
the high court order, which afforded the applicant
until the end of
June 2010 to sell the abovementioned fixed property. If the property
had not been sold by the end of June, the
first respondent enjoyed
the right under the provisions of the maintenance clause of the High
Court order which had been expressly
preserved by the substituting
maintenance court order to require the property to be sold by
auction. The period after June 2010
thus corresponded to that during
which the respondent was at liberty to put in train measures
directed at expediting the contemplated
receipt by her of a share of
the proceeds of the sale of the property so as to bring to an end
the applicant’s interim
obligation to pay her an amount of
monthly maintenance.
I have therefore concluded that the applicant has failed to
establish that the first respondent compromised or waived her right
to exact payment of the arrear maintenance.
It remains to consider the question of costs. Although the writ of
execution issued by the registrar of this court will be set
aside,
this will not occur because of the case advanced by the applicant on
the papers. The applicant’s case to that end
was substantively
advanced on the grounds that his obligation to pay the arrear
maintenance had been extinguished. He has been
unsuccessful on that
score. Moreover, although the first respondent cannot obtain
execution against the applicant’s property
on the writ issued
out of the high court, it has been confirmed that she may do so on a
writ obtained in terms of chap 5
of the
Maintenance Act. In
the
circumstances I consider that it would be just and equitable that no
order be made as to costs, with the result that each
party must bear
his or her own costs.
Order:
The warrant of execution, dated 15 September 2010, issued by
the Registrar on 22 January 2011, in case no. 6566/2006
is
set aside.
It is declared that the first respondent may, if so advised, apply
to the maintenance court in terms of
section 26(2)
of the
Maintenance Act, 1998
, for the authorisation of a writ of execution
referred to in
section 27(1)
of the said Act in respect of the
arrears owed in terms of the High Court maintenance order in case
no. 6566/2006 as at
23 April 2010.
There shall be no order as to costs, including in respect of the
costs incurred in the proceedings instituted under the notice
of
motion dated 25 May 2011.
A.G. BINNS-WARD
Judge of the High Court
On behalf of
Applicant
: Adv.
F.J. Gordon-Turner
Instructed
by
:
Malherbe Attorneys
On behalf of the Respondents
: Adv. S.
Van Embden
Instructed
by
:
Fairbridges
Date of
Hearing
:
15NOVEMBER 2011
Date of
Judgment
: 2
FEBRUARY 2012
1
Section
1(1) provides: ‘
In this Act, unless the context indicates
otherwise -
'maintenance order'
means any order
for the payment, including the periodical payment, of sums of money
towards the maintenance of any person issued
by any court in the
Republic, and includes, except for the purposes of section 31, any
sentence suspended on condition that the
convicted person make
payments of sums of money towards the maintenance of any other
person;
’.
2
The
registrar of this court became obliged, upon receipt of notice of
the substituting order, to act in terms of regulation 13
of the
Regulations Relating to Maintenance (GNR 1361, dated
15 November 1999, published in GG 20627). That
entailed filing a copy of the substituting order with the original
record applicable to the case in this court and
recording the
particulars of the new order on the order which is being
substituted.
3
Sections
5(4)(b) and 6 of the Maintenance Act 23 of
1963. Act 23
of 1963 was
repealed in terms of s 45 of the 1998 Maintenance Act.
4
As
Kriegler AJA stated ‘
the order of
Court at which…the notice of motion was directed…was a
dead letter
’
.
5
Mhlongo
v MacDonald
1940 AD 299
at 310. See
also e.g
. Millman NO v Twiggs
[1995] ZASCA 62
;
1995 (3) SA 674
(A) at 679B and
Land-
en Landboubank van SA v Cogmanskloof
Besproeiingsraad
[1991] ZASCA 137
;
1992 (1) SA 217
(A) at 230E-F and 236B-C.
6
HR
Hahlo
The South African Law of Husband and Wife
5ed (Juta,
1985) at 369-370.
7
See
Du Preez v Du Preez
1977
(2) SA 400
(C) and
Butchart v Butchart
1996 (2) SA 581
(W) at 583D and on
appeal to a full bench, at
1997 (4) SA 108
(W).
8
At
para 20.
9
See
fn. 7.
10
See
fn 1.
11
In
terms of s 1(1) of the Act ‘
court
in the Republic
’
is expressly
defined to include ‘
a High
Court
’
.
12
This
is borne out in
the memorandum accompanying the Bill (
Bill
B41-2003
) in terms of which the amendment to s 26(1) of
the Maintenance Act was proposed. It stated in the relevant part
(para 2.10)
‘
Section 26
of the
Maintenance Act, 1998
,
provides, among other things, for circumstances where a person
against whom a maintenance order has been granted fails to make
a
particular payment in accordance with that maintenance order, that
such order would be enforceable in respect of the arrear
amount by
execution. The amendments are necessary to ensure that these
provisions are also applicable in respect of maintenance
orders made
by the High Courts and the Divorce Courts
’.
13
In
supplementary written argument submitted at my request after the
hearing, the applicant’s counsel submitted that the
court in
Thomson
in
referring a maintenance issue before it to the maintenance court was
acting within its ‘inherent jurisdiction. No authority
was
cited in support of this proposition. I am unaware of the existence
of an inherent jurisdiction in the high courts to transfer
proceedings competently instituted before them to other
jurisdictions. It seems to me that the courts’ jurisdiction in
this respect is limited to that provided in terms of s 9 of the
Supreme Court Act 59 of 1959, s 3 of the Interim
Rationalisation of Jurisdiction of High Courts Act 41 of 2001 and
rule 39(22) of the Uniform Rules of Court. Cf.
Road
Accident Fund v Rampukar; Road Accident Fund v Gumede
2008 (2) SA 534
(SCA). (The inherent power of a
high court to transfer a case from the principal seat of the court
to a circuit session of the
court, or
vice
versa
, is distinguishable, being
essentially a regulation by the court of its own processes and
procedures.) I am, with respect, unpersuaded
by the reasoning to the
contrary in
Veto v Ibhayi City Council
1990 (4) SA 93
(SECLD). In this regard it is
perhaps of significance that when Heher JA recently made reference
to a high court’s power,
in the exercise of its discretion, to
refer a matter brought before it to another court for hearing
because the matter might
more conveniently or appropriately be heard
elsewhere, the learned judge of appeal supported his observation
with a reference
to Act 41 of 2001, as distinct from any inherent
jurisdiction (see
Els v Weideman
2011 (2) SA 126
(SCA) at para 34). The
magistrates’ courts are creatures of statute, and proceedings
in those courts fall to be instituted
and prosecuted in accordance
with the relevant statutory provisions. The same considerations
apply to proceedings in the maintenance
courts. A high court has no
jurisdiction, outside the applicable statutory frameworks, in
proceedings instituted before it to
cause those proceedings to
continue in another court. Subject to the applicable statutory
provisions, it is for a claimant to
determine in which court of
competent jurisdiction to institute and prosecute proceedings.
14
South
African Law Commission Issue Paper No. 5 ‘Review of the
Maintenance System’ (1997).
15
The
investigation by the South African Law Commission (Project 100) is
referred to in the preamble of the 1998
Maintenance Act.
16
See
e.g.
Van der Merwe v Uys
1957 (4) SA 574
(T);
Gouws
v Theologo and Another
1980 (2) SA 304
(W) and
Pienaar v Pienaar en Andere
2000 (1) SA 231
(O). Uniform
Rule 45(12)(j)
and
(k) used to provide for the attachment of future emoluments, but
those provisions were repealed (possibly because of a realisation
that it was beyond the powers of the Rules Board to purport to amend
the law).
17
See
the preamble and
s 2
of the
Maintenance Act.
18
See
Farlam et al
Erasmus, Superior Court
Practice
at B1-312 [Service 37, 2011].
19
Chapter 5
does not appear, however, to affect the competence of contempt of
court proceedings against a maintenance debtor
who fails to pay
maintenance in breach of a maintenance order.