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[2014] ZAWCHC 112
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M.E.N v K.E.F.B and Another (6573/14) [2014] ZAWCHC 112 (19 June 2014)
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HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: 6573/14
DATE:
19 JUNE 2014
In the matter
between:
[M…….
E……. N……..] Applicant
And
[K…….
E…… F….. B……] First respondent
THE MAINTENANCE
OFFICER,
MAGISTRATES
COURT, WYNBERG Second respondent
HEARD: 11 June
2014
DELIVERED: 19
JUNE 2014
JUDGMENT
BUTLER, AJ:
1. The applicant
applies for an order reviewing and setting aside a directive issued
by the second respondent in terms of regulation
3(1) of the
Regulations made in terms of section 44 of the Maintenance Act, 99 of
1998 (respectively “the Regulations”
and “the
Act”).
2. Acrimonious and
protracted divorce proceedings are pending between the first
respondent and her husband. Two minor children
were born of the
marriage, of whom the first respondent appears to be the primary
caregiver. It is common cause on the papers
that the first
respondent’s husband has fallen on hard financial times. The
divorce action has twice previously been postponed.
No rule 43
application has yet been launched by the first respondent. The
reason, I was informed, was that it made no sense to
do so given the
husband’s financial position. The first respondent earns a
modest income, but lives in the former matrimonial
home. The home
has a value slightly in excess of R3 million. A bond is registered
in favour of a financial institution, with
a remaining liability of
R600 000.00.
3. The applicant is
the mother of the first respondent’s husband. She, according
to her papers, receives an income which
exceeds that of the first
respondent, but which is itself also relatively modest.
4. On 6 January 2014
the first respondent lodged a complaint with the second respondent in
terms of section 6(1)(a) of the Act.
The first respondent asserted a
claim against the applicant and her husband, Mr [N…..], for
maintenance for the minor children.
Paragraphs 2 and 3 of the
complaint briefly stated the basis upon which the claim for
maintenance is advanced. Pages 3 and 4
of the complaint set out the
assets and means of the first respondent, and the needs of the minor
children. The complaint disclosed
the first respondent’s
interest in the matrimonial home and its value.
5. On 8 February
2014 the second respondent issued a directive in terms of regulation
3(1), as read with section 44 and section
6 of the Act. It directed
the applicant and Mr [N…..], referred to therein as “Persons
against whom a maintenance
order may be/was made”, to appear
before the second respondent on 19 March 2014 and to produce certain
documentation listed
in the directive. The directive further
informed the applicant and Mr [N…….] of the possibility
of an inquiry being
instituted in respect of the complaint.
6. An objection was
taken to the joinder of Mr N….. to the directive. Mr N……,
it transpired, is not the father
of the first respondent’s
husband, nor is he married in community of property to the applicant.
On that basis no maintenance
order could ever be made against him.
Proceedings were instituted for relief in that regard. They resulted
in an order being granted
by Yekiso J on 17 March 2014 declaring that
the directive issued against Mr N……. was a nullity, and
declaring further
that the declaration did not affect the directive
insofar as it related to the applicant.
7. This application
was launched on 14 April 2014.
8. The applicant
responded to the directive and appeared before the second respondent
on 19 April 2014. She produce documentation
as required by the
directive. Presumably because by then the applicant had already made
clear her position that the directive
was invalid, before me the
first respondent did not take the point that the applicant was by
acquiescence precluded from pursuing
her contention that the
directive was invalid.
9. Against the facts
set out above Mr Pretorius, who appeared for the applicant, presented
an argument the essence of which is the
following. Regulation 3(1)
permits a directive to be issued in respect of any person against
whom a maintenance order “may”
be made. The applicant is
not a person against whom a maintenance order may be made. She is a
grandparent of the minor children
for whose benefit the order is
sought. In the first instance, and in reliance on a judgment handed
down by Kgomo J in De Klerk
v Groepie NO and Others (31156/2012)
[2012] ZAGPJHC 205 (28 August 2012), it was argued that the first
respondent was required
to obtain a court order against the parents
prior to invoking the duty of support of a grandparent. The first
respondent, it is
common cause, has not obtained such an order.
Second, alternatively, the liability of a grandparent cannot be
invoked until and
unless the parents are completely unable to support
the minor children. On the basis of what was presented to the second
respondent,
it is clear that that stage had not been reached. The
second respondent could thus not issue a directive under regulation
3(1).
Further, it is unlawful and prejudicial to proceed against one
grandparent alone. It is trite that the grandparents jointly are
liable for the maintenance of a grandchild, when that duty can be
invoked. Here, the first respondent proceeds only against the
applicant. For those reasons the issuing of the directive was beyond
the powers of the second respondent, and was unlawful. It
is subject
to review under the provisions of the Promotion of Administrative
Justice Act, 3 of 2000 (“PAJA”), alternatively
it was
ultra vires in terms of the principles under the common law.
10. Ms Mc……,
who appeared with Mr S……. for the first respondent
resisted the argument. She accepted
that if the decision in De Klerk
is good law, then the application should succeed. However, she
criticised the decision and urged
me not to follow it. Further, she
argued that it is not an absolute requirement that the parents be
destitute prior to being able
to invoke the duty of support of the
grandparents. It is clear that if the parents have some means
available, but which are insufficient
to meet the needs of the
grandchildren, the duty can be invoked against the grandparents. The
proper forum for this debate, she
argued, is before the second
respondent, who is best able to make that assessment of the facts.
If she cannot, then the proper
forum is a maintenance inquiry.
Complaints,
investigations and enquiries
11. Sections 6 and 7
of the Act deal with the powers of the second respondent. Sections
6(1), 7(1), and 7(2) respectively provide
as follows:
“6(1) Whenever
a complaint to the effect-
(a) that any person
legally liable to maintain any other person fails to maintain the
latter person; or
(b) that good cause
exists for the substitution or discharge of a maintenance order, has
been made and is lodged with a maintenance
officer in the prescribed
manner, the maintenance officer shall investigate that complaint in
the prescribed manner and as provided
in this Act.
…
7(1) In order to
investigate any complaint relating to maintenance, a maintenance
officer may-
(a) obtain
statements under oath or affirmation from persons who may be able to
give relevant information concerning the subject
of such complaint;
(b) gather
information concerning-
(i) the
identification or whereabouts of any person who is legally liable to
maintain the person mentioned in such complaint or
who is allegedly
so liable;
(ii) the financial
position of any person affected by such liability; or
(iii) any other
matter which may be relevant concerning the subject of such
complaint;
(c) request a
maintenance officer of any other maintenance court to obtain, within
the area of jurisdiction of the said maintenance
officer, such
information as may be relevant concerning the subject of such
complaint; or
(d) require a
maintenance investigator of the maintenance court concerned to
perform such other functions as may be necessary or
expedient to
achieve the objects of this Act.
(2) A maintenance
investigator shall, subject to the directions and control of a
maintenance officer-
(a) locate the
whereabouts of persons-
(i) required to
appear before a magistrate under section 8(1);
(ii) who are to be
subpoenaed or who have been subpoenaed to appear at a maintenance
enquiry;
(iii) who are to be
subpoenaed or who have been subpoenaed to appear at a criminal trial
for the failure to comply with a maintenance
order; or
(iv) accused of the
failure to comply with a maintenance order;
(b) serve or execute
the process of any maintenance court;
(c) serve subpoenas
or summonses in respect of criminal proceedings instituted for the
failure to comply with a maintenance order
as if the maintenance
investigator had been duly appointed as a person who is authorised to
serve subpoenas or summonses in criminal
proceedings;
(d) take statements
under oath or affirmation from persons who may be able to give
relevant information concerning the subject of
any complaint relating
to maintenance;
(e) gather
information concerning-
(i) the
identification or whereabouts of any person who is legally liable to
maintain the person mentioned in such complaint or
who is allegedly
so liable;
(ii) the financial
position of any person affected by such liability; or
(iii) any other
matter which may be relevant concerning the subject of such
complaint; or
(f) gather such
information as may be relevant concerning a request referred to in
subsection (1)(c).”
12. The institution
of an investigation, by way of a directive, is governed by the
provisions of regulations 3(1) and 3(2). They
provide:
“3
Investigation by maintenance officer
(1) A maintenance
officer may, in investigating a complaint and with due consideration
to expediting the investigation of that complaint,
direct the
complainant and the person against whom a maintenance order may be or
was made to-
(a) appear on a
specific time and date before him or her; and
(b) produce to him
or her on the date of appearance information relating to the
complaint and documentary proof of the information,
if applicable.
(2)
(a) A direction
contemplated in subregulation (1) may be given in the manner the
maintenance officer deems fit.
(b) The maintenance
officer shall keep record of the manner in which the direction was
given.”
13. In terms of
section 6(2) of the Act the maintenance officer may institute an
enquiry. Section 6(2) provides:
“6(2) After
investigating the complaint, the maintenance officer may institute an
enquiry in the maintenance court within
the area of jurisdiction in
which the person to be maintained, or the person in whose care the
person to be maintained is, resides
with a view to enquiring into the
provision of maintenance for the person so to be maintained.”
14. The proceedings
at an enquiry are dealt with extensively under section 8 and
following. Section 8(1) provides:
“8(1) A
magistrate may, prior to or during a maintenance enquiry and at the
request of a maintenance officer, require the
appearance before the
magistrate or before any other magistrate, for examination by the
maintenance officer, of any person who
is likely to give relevant
information concerning—
(a) the
identification or the place of residence or employment of any person
who is legally liable to maintain any other person
or who is
allegedly so liable; or
(b) the financial
position of any person affected by such liability.”
15. Section 9
provides:
“9(1) (a) A
maintenance officer who has instituted an enquiry in a maintenance
court may cause any person, including any person
legally liable to
maintain any other person, to be subpoenaed-
(i) to appear before
the maintenance court and give evidence; or
(ii) to produce any
book, document or statement.
(c) A book, document
or statement referred to in paragraph (a)(ii) includes-
(i) any book,
document or statement relating to the financial position of any
person who is affected by the legal liability of a
person to maintain
any other person; and
(ii) in the case
where such person is in the service of an employer, a statement which
gives full particulars of his or her earnings
and which is signed by
the employer.
(2) (a) Any person
to be subpoenaed as a witness shall, subject to paragraph (b), be
subpoenaed in the manner in which a person
may be subpoenaed to
appear before a magistrate's court in a criminal trial.
(b) The form of the
subpoena shall be as prescribed.
(c) The provisions
of section 181 of the Criminal Procedure Act, 1977 (Act No. 51 of
1977), are, subject to section 11(2), not applicable
to any person
against whom a maintenance order may be made under this Act.”
16. Section 9 must
be read with regulation 4, which provides for the form of the
subpoena and the process for issuing it.
17. Section 21 of
the Act contains a tailor-made provision relating to paternity
disputes, which provides:
“(1) If the
maintenance officer is of the opinion-
(a) that the
paternity of any child is in dispute;
(b) that the mother
of such child as well as the person who is allegedly the father of
such child are prepared to submit themselves
as well as such child,
if the mother has parental authority over the said child, to the
taking of blood samples in order to carry
out scientific tests
regarding the paternity of that child; and
(c) that such mother
or such person or both such mother and such person are unable to pay
the costs involved in the carrying out
of such scientific tests,
the maintenance
officer may at any time during the enquiry in question, but before
the maintenance court makes any order under section
16, request the
maintenance court to hold an enquiry referred to in subsection (2).
(2) If the
maintenance officer so requests, the maintenance court may in a
summary manner enquire into-
(a) the means of the
mother of the child as well as the person who is allegedly the father
of the child; and
(b) the other
circumstances which should in the opinion of the maintenance court be
taken into consideration.
(3) At the
conclusion of the enquiry referred to in subsection (2), the
maintenance court may-
(a) make such
provisional order as the maintenance court may think fit relating to
the payment of the costs involved in the carrying
out of the
scientific tests in question, including a provisional order directing
the State to pay the whole or any part of such
costs; or
(b) make no order.
(4) When the
maintenance court subsequently makes any order under section 16, the
maintenance court may-
(a) make an order
confirming the provisional order referred to in subsection (3)(a); or
(b) set aside such
provisional order or substitute therefor any order which the
maintenance court may consider just relating to
the payment of the
costs involved in the carrying out of the scientific tests in
question.”
18. Finally, parties
aggrieved by a decision of the Maintenance Court have a right of
appeal to the High Court, in terms of section
25.
19. The Act and the
Regulations thus contemplate three distinct steps in a complaint be
made, and thereafter.
20. In the first
instance, a complaint may be made. Section 6(1) requires only that a
complaint to the effect specified in subsections
(1)(a) and (1)(b) be
made. The Act does not require that the complaint be true or
otherwise verified. The complainant requires
no legal assistance in
doing so. The complaint need make only the basic averment referred to
in section 6(1).
21. The second stage
involves the investigation of the complaint. Sections 6 and 7 of the
Act apply to such investigation. The maintenance
officer has no
discretion whether or not to investigate a complaint. Section 6(1)
provides: “the maintenance officer shall
investigate that
complaint in the prescribed manner and as provided in this Act”.
Neither the Act nor the Regulations require
that there necessarily be
a formal hearing at that stage. The manner of investigating the
complaint is left in the discretion of
the maintenance officer, who
may invoke the powers, in section 7. One of the powers conferred on
the maintenance officer is the
power to issue a directive under
Regulation 3(1). The decision whether to invoke that power is also a
matter in the discretion
of the maintenance officer. One of the
purposes served by conferring the power is to act expeditiously. The
investigation, it seems
to be accepted, is inquisitorial, and not
adversarial (see Belinda van Heerden, Alfred Cockrell & Raylene
Keightley (general
editors) Boberg's Law of Persons and the Family 2
ed (1999), page 285 and Schäfer Family Law Service, page 49,
para F38).
22. Third, after
investigating the complaint the maintenance officer has the power,
under section 6(2), to institute an enquiry.
It is axiomatic that if
the maintenance officer forms the view that the complaint has no
merit, he or she may decline to institute
an enquiry. Such a
decision would put an end to the matter.
The word ‘may’
in Regulation 3(1)
23. Implicit in the
applicant’s case is the proposition that on the facts before
her at the time that she issued the directive
the second respondent
could not form the view that the applicant was a person against whom
a maintenance order may be made. A question
that arises is whether
the second respondent was limited to the facts available at the time,
or whether she could permissibly have
regard to facts that might
possibly emerge in due course.
24. Section 6(1)(a)
and 6(1)(b) of the Act and the preamble to regulation 3(1), quoted
above, should be read together. It is apparent
that the structure of
regulation 3(1) follows the structure of section 6(1), in the sense
that the words in regulation 3(1) “against
whom a maintenance
order may be … made” correlate with the words in section
6(1)(a), while the words “against
whom a maintenance order …
was made” correlate with the words in section 6(1)(b). Thus
seen, the words “against
whom a maintenance order may be …
made” were intended to relate to the person against whom a
complaint was lodged
for failing to pay maintenance.
25. The
jurisdictional requirement is objective. This is reinforced by the
consideration that responding to the directive would
inevitably
involve inconvenience to the defendant to the process, and possible
breaches of privacy. I therefore accept, as argued
by Mr Pretorius,
that some basis must exist for the maintenance officer to issue a
directive.
26. There are
however a number of other indications as to the meaning of the
expression. In the first instance, section 6(1)(a)
requires only that
a complaint have been made. The Act is explicit in requiring that
the complaint only be that a person liable
to pay maintenance has not
paid maintenance. Second, a complainant often does not have actual
proof of liability on the part of
the defendant. He or she may have
no more than a belief that, given the need of the minor children, and
the position of the respondent,
the respondent should pay
maintenance, and to that end, their liability should be investigated.
Third, as noted above, the second
stage in the process created under
section 6 and 7 of the Act is a stage of investigation. It is not a
trial. The complaint is
not a pleading. A complainant may be an
unsophisticated lay person. Fourth, the power to issue is a directive
is designed to aid
efficiency and expedition. It is part of an
inquisitorial process, designed to elicit the facts. And finally, a
directive may serve
to protect the interests of the recipient. The
recipient of a directive who has a ready answer to the complaint may
wish to have,
and therefore would invite, a speedy opportunity to
demonstrate that the complaint is without substance, and thereby
avoid the
lengthy and costly process of a full enquiry. I therefore
do not accept that a maintenance officer is limited to the facts then
available when deciding whether to invoke Regulation 3(1).
27. This approach is
supported, I suggest, by the provision in section 21 relating to
paternity. In many instances the complainant
may believe the
respondent to be the father of the minor children, but have no actual
proof of that fact. The structure of the
Act and the Regulations
make it clear that an applicant is not precluded from presenting a
complaint on the basis of a belief (mistaken
as it might later turn
out to be), or that the maintenance officer is precluded from issuing
a directive based on that belief,
without proof necessarily being
provided.
28. I consider that
the words “may be … made” in Regulation 3(1)
require the maintenance officer have due regard
to the available
facts, but that he or she may permissibly invoke the power to
investigate facts not yet available, provided only
that the
respondent is a person against whom a maintenance order might
possibly in due course be made.
29. Mr Pretorius
urged upon me the consideration that a low threshold at the stage of
issuing the directive is open to abuse. Responding
to a directive
may be hugely inconvenient to the intended respondent, in
circumstances where the respondent may consider that there
is no
possible basis upon which a maintenance order could be granted
against him or her. It is invasive of the rights of the respondent.
If, as here, the respondent is required to produce documentation of
their own financial affairs, such disclosure necessarily impinges
upon the respondent’s rights to privacy. I accept those
submissions from Mr Pretorius. At the same time, they are balanced
by two other considerations which I regard as important. First, at
the second stage all that is undertaken is an investigation
by the
maintenance officer. The maintenance officer carries the primary
responsibility of the process, and the State therefore
carries the
cost. At the investigation stage the respondent is able to place
facts and argument before the maintenance officer
as to why the
complaint should not be taken further. The investigation process is
thus limited, and presents an opportunity to
the respondent to place
his or her case before the maintenance officer. The maintenance
officer is able to prevent abuses of the
system. Second, what is at
issue in this case are the interests of minor children. Those
interests are given prominence in the
Constitution. Apart from the
rights of children per se, their further rights to dignity are at
stake. Respecting and protecting
those rights might inevitably lead
to some inconvenience to other parties. That, like the duty of
support, is however inevitable,
and not in my view an unreasonable
burden to be imposed, given the protections inherent in the
investigation process.
The applicant’s
argument
30. This brings me
to Mr Pretorius’ first main argument. In reliance on the
decision in De Klerk, he submitted that it is
not legally competent
to proceed against a grandparent for maintenance in respect of a
grandchild without an order of court having
been obtained against the
parents. Given the centrality of this submission, it deserves some
analysis.
31. At paragraphs
[46] and [47] of his judgment Kgomo J stated:
“[46] It is a
well-established principle of the common law that although
grandparents may have a reciprocal duty to support
their
grandchildren, such a duty does not come into operation or give rise
to a claim in law, unless and until it is established
that the
parent(s) of those minor children are deceased or are unable to
support them.
[47] A dependant may
thus not claim support from a more remote relative such as
grandparents before he/she has gone against the
closer relative, in
this case, their father, FW de Klerk Jnr. Such a claim against a far
removed relative in my view only kicks
in once a competent court has
found that the parent is unable to support his children.” (my
emphasis)
32. The facts in De
Klerk were similar to those before this Court. Briefly, the second
respondent and her husband had been parties
to lengthy and ongoing
divorce proceedings. The applicant was the adoptive father of the
husband. The second respondent and her
husband had two minor
children. Rule 43 proceedings had been instituted. An order had been
made against the husband, compelling
him to pay interim maintenance
in respect of two children. The husband had defaulted, and
proceedings under section 31(1) of the
Act had been instituted
against him. The second respondent had then laid a complaint under
section 6(1) against the applicant.
She sought an order that the
applicant, as the adoptive grandfather, pay maintenance in respect of
the minor children. The maintenance
officer had issued a directive in
terms of Regulation 3(1). The applicant had raised an objection to
the directive. A ‘magistrate’
(presumably a reference to
the maintenance officer) had declined to entertain the objection, on
the basis that he or she had no
authority to do so. A demand to
withdraw the directive was refused. The applicant thereupon
approached the High Court for an order
reviewing and setting aside
the directive.
33. At paragraphs
[36] and [37] of his judgment Kgomo J stated:
“[36] The
complaint lodged by Nicole against the applicant on 9 May 2012
corresponds with a complaint made in terms of section
6(1)(a) of the
Act and is made on a form corresponding with Form A of the Annexure
to the Regulations. In the absence of a complaint
under section
6(1)(b), it is my considered view and finding that the first
respondent was empowered under Regulation 3(1) to issue
a directive
only to a person against whom a maintenance order “may”
or “might” be made.
[37] A prima facie
view exists that at the time that the directive was issued (i.e. 9
May 2012) the applicant was not the person
against whom a maintenance
order might be made because –
1. there was in
force an existing maintenance order against FW de Klerk Jnr for the
maintenance of the children; and
2. at the time, no
competent court had found that the children’s natural parents
were unable to support them.”
34. Against the
background of those facts Kgomo J reached the conclusion in the
passage at paragraphs [46] and [47].
35. It is however
not clear on the basis of what authority Kgomo J came to the
conclusion in paragraph [47], quoted and underlined
above. Counsel
before me were unable to find any authority to that effect. Counsel
were also unable to find any authority referring
to or approving
Kgomo J’s judgment, and I was unable to find any such authority
either. (Kgomo J did not consider his judgment
to be reportable.)
36. I was able to
obtain a copy of the heads of argument of counsel who appeared for
the applicant before Kgomo J. It is apparent
from those heads of
argument that the applicant relied on the decision in Miller v Miller
1940 CPD 466
where at p. 469 it was held:
"In my view the
duty to support which falls upon parents, grandparents, children and
brothers and sisters only becomes operative
so as to give rise to a
claim at law when it is proved that the husband is dead or unable to
afford support. Primarily the duty
falls upon the husband, and it is
only when he is dead or unable to provide support that a right to
claim support from a parent
or child or brother or sister arises. The
whole trend of the treatment of the matter by Voet and Huber
indicates that a legal right
to claim support from a grandparent or
brother or sister does not exist unless the parents fail."
In the heads of
argument counsel then argued that an applicant is required first to
have ‘gone against’ the parents
before proceeding against
the grandparent. That submission was presumably the basis for Kgomo
J’s conclusion in paragraph
[46]. It is however clear that
counsel did not submit that an order of court was necessary before
the obligation of a grandparent
can be invoked, nor is there any
suggestion to that effect in Miller v Miller.
37. Apart from the
absence of authority for the proposition relied on, I have difficulty
comprehending the logical basis for the
conclusion reached. If it
were correct, it would mean that in instances where one or other
parent is already financially destitute
and obviously unable to
maintain a child, it would nonetheless be necessary to go through the
process of issuing proceedings against
the parent and obtaining a
judgment before being able to proceed against the grandparent. There
would be an inevitable waste of
costs, a delay, and the possibility
of the process being regarded as an abuse of court. The draining of
financial resources in
that way would also not be in the interests of
the child.
38. I therefore find
myself in respectful disagreement with the conclusion in paragraph
[47] of De Klerk, and decline to follow
it.
39. In the
alternative to his main submission Mr Pretorius argued that a
grandparent cannot in law be liable unless a parent is
unable to
maintain a grandchild. In this case when seeking the directive, on
the papers before the second respondent, it was clear
that the first
respondent had assets in excess of R3 million, which were bonded only
to the extent of R600 000.00. On those facts,
as a matter of law,
the applicant could never be a person against whom a maintenance
order “may” be granted. The second
respondent thus had
no power to issue the directive.
40. Both counsel
referred me to various authorities dealing with the duty of
grandparents to maintain grandchildren, including Motan
and Another v
Joosub
1930 AD 61
, Barnes v Union & SWA Ins Co Ltd
1977 (3) SA
502
(E), Boberg (supra), Schäfer (supra) and Joubert (gen. ed.)
LAWSA (vol. 16) para 212. To those might be added the decisions
in
Miller v Miller (supra), the judgment of Watermeyer J in Slabbert v
Harmse 1923 (CPD) 187 at 189, and the judgment of Fourie
J in
Petersen v Maintenance Officer, Simon's Town Maintenance Court
2004
(2) SA 56
(C). From a review of all of the authorities, I understand
the common law to be the following:
40.1. The primary
duty of support rests upon the parents;
40.2. The extent of
the duty depends on trite factors, including the means of the
parents, the needs of the children, and the living
standards of the
parties;
40.3. The means of
the parents are assessed not only by reference to their available
income; their capital assets too are to be
taken into account;
40.4. It is only if
the parents are unable to maintain the grandchildren that the
grandparents may be called upon to maintain them.
40.5. The liability
of the paternal grandparents, when it can be invoked, is coextensive
with the liability of the maternal grandparents.
41. It axiomatic
that whether the parent is no longer able to maintain the child is a
matter of fact, is to be decided on the facts
of each case. While
parents might be receiving an income, what would need to be
investigated are the concomitant commitments that
the parents may
have. Similarly, if a parent has a valuable capital asset, this
might be a strong indication that the parent is
not indigent. At the
same time, it might not necessarily be correct to conclude that the
parent is (at least temporarily) unable
to support the child. All
would depend on the facts.
42. Reverting to the
facts of the matter, I accept, for the purposes of this application,
that it may be difficult to understand
how the first respondent could
succeed in obtaining an order against the applicant, given that the
parents possess an asset with
an effective equity of about R2.4
million. It is also clear on the facts that it is the dispute
between the parents that stands
in the way of realising the asset.
The dispute between them regarding the asset is also what appears to
have delayed the finalisation
of the divorce.
43. At the same
time, the question is not (i) whether the first respondent will in
due course succeed in her request for a maintenance
order against the
applicant, nor (ii) whether this Court would have made the same
decision as was made by the second respondent.
The question is
whether on the facts it has been shown that the second respondent
could not, on the information then available
to her, have formed the
view that a maintenance order might possibly in due course be made
against the applicant. That is a low
threshold. I do not consider
that the disclosure of an asset meant that the second respondent
necessarily had to conclude that
a maintenance order could not in due
course be made against the applicant. For all she knew, facts might
emerge from her investigation
to show that the parents were indeed at
that stage unable to realise the asset, and that the applicant was
well resourced and readily
able to support to the children, at least
on a temporary basis. The facts now ventilated before this Court were
not ventilated
before the second respondent.
44. Given the
requirements of the common law, the second respondent inevitably
needed to investigate the needs and means of the
parents in order to
reach a conclusion as to whether a case for asserting that the
grandparent can be called upon to maintain the
grandchildren can be
made out, and whether to institute an enquiry in that regard. In is
common cause that when the applicant appeared
before her on 19 April
2014 she requested the applicant’s attorney to convey to the
first respondent’s husband that
he was also requested attend
the enquiry. This suggests that the second respondent was mindful of
the common law test relating
to the primary duty of parents to
support their children.
45. I am thus unable
to accept Mr Pretorius’s second argument.
46. The third string
to Mr Pretorius’s bow was the argument that it is improper and
unfair to proceed against the applicant
as the sole grandparent,
given that the liability of the grandparents is coextensive.
47. That the
liability of the grandparents is coextensive is now established: see
Petersen (supra). That however does not answer
the question whether
it was competent to issue a directive only against the applicant.
The complaint lodged by the first respondent
was only against the
applicant. At the time of issuing the directive the second
respondent may have been unaware of the other
grandparents, or of
their means. No further facts are available as matters stand. The
applicant, in launching this application,
did not invoke the
provisions of Rule 53. The second respondent was thus not required to
place the record of the process before
her before this Court, nor was
she called on to place her reasons before the Court. The lack of
further facts can thus not serve
as a basis for inferring that the
second respondent misdirected herself.
48. Given those
considerations, I am unable to accept the submission that the second
respondent acted unlawfully when issuing a
directive against the
applicant alone.
49. The application
can thus not succeed.
50. On the question
of costs, there is no reason why costs should not follow the result.
Ms McCurdie motivated an order for the
costs of two counsel. Both
the main heads and the supplementary heads in this matter were
prepared by one counsel. While a court
might be slow to deprive a
party who has been prudent in employing two counsel, in this matter
it seems that one counsel was considered
sufficient for the purposes
of preparing heads of argument, and it would in my view be
inappropriate to burden the applicant with
the costs of two counsel
employed only at the hearing.
51. In the
circumstances, the application is dismissed with costs, such costs to
include the costs of one counsel.
BUTLER, AJ
Appearances:
For the
applicant: Adv W J Pretorius
Instructed by: Smit Kruger Inc.
For the first
respondent: Adv J McCurdie and Adv R Steyn
Instructed by
Fairbridges Attorneys
Second
respondent: No appearance.