NDOU J: The
applicant seeks a provisional order in the following terms:
“Terms of order sought
(a)
The execution of a direction issued against the
applicant's salary by 2nd respondent in case number S 20/09
(Maintenance Court) be and is hereby suspended pending the resolution of case
number HC 577/10 between the parties hereto.
(b)
That the 1st respondent pays the
costs of this application.
Interim order sought
Pending the confirmation or the discharge of this order this
order shall operate as a temporary order having the effect.
(a)
Suspending
the execution and coming into operation of a direction against the applicant's
salary.”
The background facts of this matter are the following. The applicant and 1st respondent
are husband and wife. They are on
separation and there are divorce proceedings pending between them. The separation between them is
acrimonious. In October 2009 the 1st
respondent sued the applicant for maintenance.
The matter was set down for hearing on 29 October 2009. On that day there was a preliminary enquiry
on the 1st respondent's application.
The matter was postponed to a later date in November 2009 to enable the
applicant to produce proof of his earnings.
On the latter date the 1st respondent was not in attendance
resulting in the matter being removed from the roll.
Thereafter in March 2010, 1st respondent
instituted proceedings against the applicant out of the Juvenile Court under
the section 11 of the Domestic Violence Act [Chapter 5:16] (“Domestic
Violence”). In this application in the
Juvenile Court the 1st respondent sought against the applicant a
provisional protection order. The
interim protection order was granted and the return date was set down for 12
March 2010. On 12 march 2010, the
magistrate confirmed the provisional and in addition granted an emergency
monetary relief in favour of the 1st respondent against the
applicant in the sum of US$2 000 per month.
The applicant protested the confirmation of the protection order and the
granting of the emergency monetary relief by noting an appeal on 17 March
2010. Notwithstanding the noting of the
appeal, the 2nd respondent issued a directive against the
applicant's salary. This is what this
application is all about. Stung by the
prospects of US$2 000 being deducted monthly from his salary, the applicant
sought to have directive by the 2nd respondent reviewed. He, simultaneously filed this application to
stay the directive against his salary under a certificate of urgency. The main protest by the applicant in these
two applications is that he was not notified of the directive before it was
issued by the 2nd respondent.
The applicant basis his application for review on such failure to comply
with the provisions of section 9 (2) and (3) of the Maintenance Act [Chapter
5:09] (“the Maintenance Act”).
Section 9 (1) of the Maintenance Act clearly states that
section 9 applies to order made under the Maintenance Act and maintenance
orders of other courts registered in terms of section 18 of Maintenance
Act. The crux of the matter is whether
an emergency monetary relief, i.e. a section 11 (d) of Domestic Violence Act,
is an order registered in terms of section 18 of the Maintenance Act. Section 11 (1) supra, creates three main kinds of relief orders, namely, a protection
order, emergency monetary relief and award of temporary custody. The protection order is final by operation
because section 11 (2) provides:
“Subject to subsection (3), a protection order shall remain
in force for a minimum period of five years or until revoked or varied by court
in terms of section 12.”
The emergency monetary relief and award of temporary custody
are emergency temporary orders. Section
11 (3), supra, provides-
“Any direction to pay emergency monetary and any award of
temporary custody of any person which is contained in a protection order shall
remain in force for such period not exceed six months as the court may specify
unless, prior to the expiry of that period, the direction or award is revoked
or extended by court in terms of section 12 or an order or award is made in
respect of the same matter by any other competent court:
Provided that no such extension shall exceed a period of
three months at a time.”
In casu, the applicant did not seek
revocation in terms of section 12 of the Domestic Violence Act, but chose to
approach this court for review of act the 2nd respondent. The purpose of the Domestic Violence Act is
to provide relief to victims on an interim basis whilst the other competent
courts are still determining the main issues.
In cases of divorce, as is the case here, the complainant party must be
protected against violence.
Such party and the children must be maintained in the interim
period. Children cannot wait for
determination of the divorce or maintenance between their parents without
provision for their maintenance. The
Domestic Violence Act provides instant relief orders to cater for this interim
period. To allow suspension of such orders
pending the determination of the main matter would defeat the purpose of the
Domestic Violence Act. This court should
guard against abuse of its process to defeat such protective measures enshrined
in the Domestic Violence Act. In casu, the applicant approached this
court directly without even exhausting the domestic remedies provided for in
section 11, supra. The applicant brought
this application for the purpose of denying the 1st respondent
emergency monetary relief granted to her in terms of the Domestic Violence
Act. On this point alone I find that the
application is without merit and I dismiss it with costs.
Job Sibanda and Associates, applicant's legal practitioners
Coghlan & Welsh, 1st
respondent's legal practitioners
