Procedural Law-viz appeal.
Family Law-viz maintenance re income and expenditure iro judicial inquiry into responsible person's ability to pay.
Procedural Law-viz final orders re ex tempore judgment iro the entitlement of litigants to written reasons for judgments.
Family Law-viz maintenance re disclosure of income and expenditure.
Family Law-viz maintenance re judicial inquiry into the responsible person's ability to pay iro section 5 of the Maintenance Act [Chapter 5:09].
Family Law-viz maintenance re disclosure of income and expenditure iro section 13(c) of the Maintenance Act [Chapter 5:09].
Family Law-viz maintenance re maintenance pending divorce.
Family Law-viz maintenance re maintenance pendente lite.
Family Law-viz maintenance re arrear maintenance iro section 7(5) of the Matrimonial Causes Act.
Family Law-viz maintenance re arrear maintenance iro section 6 of the Maintenance Act [Chapter 5:09].
Family Law-viz arrear maintenance re retrospective arrear maintenance iro section 6 of the Maintenance Act [Chapter 5:09].
Procedural Law-viz costs re matrimonial matter iro maintenance proceedings.
Procedural Law-viz costs re maintenance proceedings iro section 31 of the Maintenance Act [Chapter 5:09].
Procedural Law-viz rules of evidence re evidence from the Bar.
Procedural Law-viz rules of construction re the word "may" iro directory provision.
Procedural Law-viz rules of interpretation re the word "shall" iro mandatory provision.
Procedural Law-viz rules of construction re peremptory provision iro the word "shall".
Procedural Law-viz rules of interpretation re discretionary provision iro the word "may".
This was an appeal heard by this court on the 28th
of October 2014 against an order for maintenance granted by the Magistrate
Court.
The matter was remitted back to the Magistrate's Court for
a proper enquiry to be made on the income and expenditure of the respondent and
that of the applicant (who was the appellant in this matter), where applicable.
The reasons for remitting the matter to the Magistrates Court are hereby
explained so as to guide the magistrate in re-hearing the matter taking into
account the grounds that informed the appeal.
The brief facts are that the Magistrates Court awarded the
appellant a sum of US$500= a month as maintenance against an original claim of
$1,475=. The respondent had offered to pay $300=. The respondent has custody of
the minor child and is responsible for paying all expenses, including those of
another child who is attending University overseas. Taking into account these
realities, the magistrate concluded that an offer of US$300= would be too
little and that $500= would be justified since this was also what the parties
had initially agreed to at one stage when they attempted to broker an agreement
regarding their divorce settlement. The agreement has however not been enforced
and the parties still have a pending divorce matter before the High Court which
includes the division of the matrimonial assets.
The appeal against the magistrate's decision was brought on
the following five summarised grounds:
1. That the court misdirected itself by simply awarding a
figure of US$500= per month without issuing a detailed judgment explaining how
it arrived at the figure.
2. The court a quo misdirected itself by failing to make a
finding that the respondent deliberately refused to disclose his income as well
as some of his expenditure.
3. The court a quo further misdirected itself by failing to
appreciate the fact that the amount it awarded is inadequate to enable the appellant
to meet her average monthly expenditure, including accommodation.
4. The court a quo also misdirected itself by failing to
address the appellant's claim for arrear maintenance notwithstanding the
evidence adduced before the court on that aspect of the appellant's claim.
5. The court a quo erred
by failing to address the question of costs notwithstanding the fact that they
formed part of the appellant's claim.
The appellant's prayer was for the magistrate's decision to
be set aside and for a sum of $1,000= to be accorded to her as monthly
maintenance. She also prayed for the sum of $12,935= as arrear maintenance and for costs of the
application in the court below and for the appeal.
The matter is being remitted back to the same magistrate,
where practical, to hear evidence relating to the first three grounds of appeal,
in particular, in accordance with section 5 of the Maintenance Act [Chapter
5:09] which requires the court to enquire fully into the matter of the
complaint.
The fourth and fifth grounds of appeal are disposed of by
this Appeal Court as also explained more fully below.
Regarding the first ground of appeal, it is indeed not
clear from the record how the figure of $500= was arrived at as being adequate
maintenance other than that the figure was initially proposed as part of a
settlement claim which included the sharing of property but which was never
implemented in accordance with the agreement.
On the second ground of appeal, which centres on
non-disclosure of earnings, the record does not indicate at all what evidence
was placed before the court to reflect the respondent's earnings, or, indeed,
if any effort was made to get the respondent to disclose his earnings. Indeed,
the only reference to the respondent's earnings in the record is made by his
counsel, on page 13, where he says his client gets between $6,000= and $7,000=
per month as an independent contractor. No evidence was produced to support
this claim.
Section 13(c) of the Maintenance Act [Chapter 5:09] makes
it clear that the court has power “to
call for the production of any book or document and to examine any witness on
oath.”
To the extent that the respondent is self-employed, the
evidence of how much he makes through his business should have been placed
before the court for a proper assessment to be made of his earnings. It is this
that the magistrate must do in accordance with the law. Although the applicant
is unemployed, her expenses must also be fully justified so as to arrive at an
appropriate figure regarding her needs.
With regard to the third ground of appeal, which
essentially challenges the adequacy of the amount ordered, maintenance pending
divorce is supposed, as much as possible, to allow a party to lead the
lifestyle that they were accustomed to. In other words, the marital status quo
is to be preserved as much as possible pending the final divorce which will
resolve issues fully with regards to the sharing of matrimonial assets.
It is not clear from the record how the magistrate arrived
at $500= as being sufficient for all the applicant's needs, including
accommodation, given that the respondent has exclusive use of the marital home
together with the child in his custody. The applicant states that she is
staying with her parents as a result of being unable to afford accommodation.
Clearly, it is not the legal obligation of her parents to provide her with
accommodation, and the magistrate should therefore make a proper assessment of
how much is to be paid taking into account the major categories of expenses
that the applicant will incur, inclusive of accommodation.
The above are the three issues which the magistrate should
give attention to in re-hearing the matter….,.
As earlier stated, for expediency, the matter is
being referred to the same magistrate who heard the matter. However, in the
event that for any reason the matter cannot be heard by the same magistrate,
then it should be heard by any other appropriate magistrate using the issues
highlighted as guidelines for the conduct of a thorough hearing.
The appellant also appealed on the grounds that arrear
maintenance had not been granted by the court below.
The issue of arrear maintenance for a spouse is one that is
fairly settled, as discussed in the case of Keates v Keates HH89-95 in which
ROBINSON J…, explained the position as follows:
“…, it appears that the applicant's claim for arrear
maintenance founders on the maxim deriving from VOET 2.15.15 - “non emim
quisquam praeterium vivit aut alendus est”; meaning, according to GANE's
translation, 'a person does not live nor have to be maintained in arrear.'…,.”
ROBINSON J discussed a number of local as well as South
African cases that have dealt with and applied this principle. (See Oberholzer
v Oberholzer 1947 (3) SA 294…,.; Woodhead v Woodhead 1955 SR 70…,.; Africa v
Africa 1985 (1) SA 792 (SWA)…,..
In Woodhead v Woodhead
1955 SR 70, BEADLE CJ…, stressed the existence of an agreement or a court
order as a legitimate basis for seeking arrear maintenance.
Section 7(5) of the Matrimonial Causes Act permits the
court, in granting divorce, to make an order in relation to distribution of
assets and maintenance that is in accordance with the written agreement of the
parties.
In casu, although the parties purported to enter into an
agreement as part of their divorce settlement, the agreement was never
operationalized and it has not been incorporated into any divorce settlement
since the divorce remains pending and disputes remain concerning matrimonial
assets. There can, therefore, be no finalised agreement to talk about. In fact,
on page 13 of the record, the respondent dismisses the agreement as an out of
court settlement which has no bearing on him which is indeed true since the
agreement has not been made into a court order. The applicant herself acknowledges,
on page 33 paragraph 7 of the record, that the agreement has not been honoured
and that she has not been receiving the US$500= a month which was supposed to
be a part of the settlement.
But aside from the agreement not being incorporated as an
order of court, section 6 of the Maintenance Act [Chapter 5:09], under which
the claim was brought, which deals with the making of an order by the court, is
clearly couched from the time the order is made going forward. It is in the
present and the future and is not retrospective.
Arrears are accumulated only in relation to an order so
made by the court and not in relation to the past.
So, for example, in S v Frieslaar 1990 (4) SA 437 (C) an accused had been arraigned for failure to
pay arrear maintenance in respect of expenses incurred on behalf of the child
before the order was made. On review, it was held that the order under which he
was obliged to pay was invalid in so far as it provided for him to pay arrear
maintenance. It was also emphasised that in making an order for maintenance, a
court could not make an order with retrospective effect. However, as
articulated by CONRADIE J in that case…, failure to maintain is not entirely
without relevance in seeking an effective maintenance order going forward. As
he explained:
“The more a claimant's resources have been depleted by a
defendant's neglect in the past to contribute to maintenance, the greater her
need for future maintenance might be. This means that although a maintenance
order cannot be made in respect of the past it can take the past into account.”
In light of the fact that a maintenance order
does not operate retrospectively, and that the agreement that the applicant
purports to draw strength from has not been incorporated into any divorce order
and has also not been followed, the claim for arrear maintenance is dismissed.
With regard to the third ground of appeal, which
essentially challenges the adequacy of the amount ordered, maintenance pending
divorce is supposed, as much as possible, to allow a party to lead the
lifestyle that they were accustomed to.
In other words, the marital status quo is to be
preserved as much as possible pending the final divorce which will resolve
issues fully with regards to the sharing of matrimonial assets.
The final ground of appeal to be addressed relates to the
alleged failure by the court below to address costs.
Maintenance matters are conducted in the form of an enquiry
and the Maintenance Act [Chapter 5:09] itself articulates the parameters within
which expenses related to a maintenance enquiry are to be addressed. In section
31, it allows for reimbursement of expenses where the court considers it just
to do so. The section is couched as follows:
“31 (1) Where, in terms of this Act, a Maintenance Court
makes an order or direction or orders any variation, extension, rescission or
discharge thereof or refuses to make any such order, direction, variation,
extension rescission or discharge, it may, where
it appears just to do so, in addition to the other order of the court,
make an award of such amount as it may specify against any person in favour of
another in respect of the reasonable expenses incurred by the latter, directly
or indirectly, in connection with the proceedings concerned.
Provided that in making such an award, the Maintenance Court
shall have regard to the means of the person against whom the award is intended
to be made.
(2) An award in terms of subsection (1) shall have the
effect of a civil judgment in the Magistrates Court, and the provisions of the
Magistrates Court Act [Cap 7:10] and rules made thereunder relating to the
enforcement of judgments shall, mutatis mutandis, apply to such award.
The Clerk of the Maintenance Court which has made the award
in terms of subsection (1) shall, on behalf of the person in whose favour the award
was made, take all such steps for the civil enforcement of that award as may be
necessary.”
There are two issues which emerge from the above
provisions.
(i) The first is that the award of expenses is at the
discretion of the court, where it appears just to do so, taking into account
the means of the other person.
What section 31(1) of the Maintenance Act [Chapter 5:09] suggests
is that the award of expenses in a maintenance enquiry is not a fait accompli since section 31(1) clearly uses the
word “may” rather than “shall” in
relation to the award of expenses.
(ii) The second point is that subsections (2) and (3) of
the above section bolster the point that a maintenance enquiry is very
different from an ordinary civil matter. These provisions make it clear that it
is where an award relating to expenses has been granted that such award of
expenses is in the nature of an ordinary civil claim governed by the general
rules as contained in the Magistrates Court Act.
A maintenance enquiry is thus distinct from the rules
applicable to other general civil matters - a fact which is of relevance to the
approach of costs.
To enable the court to exercise its discretion on whether
it is just to award expenses with respect to such enquiries, it would seem to
follow that the party wishing such expenses to be reimbursed must fully bring
the nature of the expenses to the attention of the court for it to make an
informed consideration. The expenses referred to in relation to a maintenance
enquiry are clearly not synonymous with costs that are awarded in civil matters,
where, as a general principle, a party who is successful is entitled to claim
them.
The purpose of awarding such costs to a successful litigant
in civil matters is to recompense them for expenses that have been incurred
initiating or defending litigation but these are not articulated fully before
the court as distinct to the expenses envisaged under section 31 of the
Maintenance Act [Chapter 5:09].
From the applicant's heads of argument, it is evident that
the costs that counsel alludes to as not having been addressed by the court are
costs in general civil matters which generally follow the cause.
The record does not show any evidence that expenses were
brought to the attention of the court or that section 31 of the Maintenance Act
[Chapter 5:09] was what was being alluded to in relation to the claim.
Therefore, the court below cannot be faulted for not addressing the issue of
expenses in the maintenance claim since the relevant provision allows for an
exercise of the court's discretion where it appears necessary and just to do
so. It also has to be borne in mind that the evidence that was placed before
the Maintenance Court was not of total neglect but rather a case where the
applicant was more in quest of a consistent enforceable order.
Indeed, in the South African case of Dreyer v Dreyer 1984 (2) SA 483 (O) it was emphasised
that the intention of their Maintenance Act (also along the same lines as
ours), is an enquiry and that the power to make an order for costs cannot be
read into the Act where it has not been expressly provided for.
In Reid v Reid 1992
(1) SA 443 (E) it was also emphasised that the Maintenance Court does not have
the power to award costs but that on appeal such an order of a Maintenance Court
is in the nature of civil proceedings and courts of appeal may, in appropriate
cases, make orders regarding costs of appeal. Our section 27(1) and (2) of the
Maintenance Act [Chapter 5:09] stipulates that an appeal from a Maintenance Court
which lies to the High Court is, indeed, in the form of civil proceedings.
On appeal, the applicant, as the appellant, was
successful on at least three grounds of appeal which go to the gist of her
claim in the sense that this court has referred the matter back for a proper
enquiry to be heard. As such, the applicant is awarded the costs of appeal.
The purpose of awarding…,
costs to a successful litigant in civil matters is to recompense them for expenses
that have been incurred initiating or defending litigation.
The only reference to the respondent's earnings in the
record is made by his counsel.., where he says his client gets between $6,000=
and $7,000= per month as an independent contractor.
No evidence was produced to support this claim.
Section 13(c) of the
Maintenance Act [Chapter 5:09] makes it clear that the court has power “to call for the production of any book
or document and to examine any witness on oath.
Civil Appeal
TSANGA J: This was an
appeal heard by this court on the 28th of October 2014 against an
order for maintenance granted by the Magistrate Court. The matter was remitted back
to the Magistrate's Court for a proper enquiry to be made on the income and expenditure
of the respondent and that of the applicant (who was appellant in this matter),
where applicable.
The reasons for remitting
the matter to the Magistrate Court are hereby explained so as to guide the Magistrate
in re-hearing the matter taking into account the grounds that informed the appeal.
The brief facts are that the
Magistrate Court awarded the appellant a sum of US$500.00 a month as
maintenance against an original claim of $1475.00. The respondent had offered
to pay $300.00. The respondent has custody of the minor child and is responsible
for paying all expenses including those of another child who is attending University
overseas. Taking into account these realities the Magistrate concluded that an
offer of US$ 300.00 would be too little and that $500.00 would be justified since
this was also what the parties had initially agreed to| at one stage when they attempted
to broker an agreement regarding their divorce settlement. The agreement has however
not been enforced and parties still have a pending divorce matter before the High
Court which includes the division of the matrimonial assets.
The
appeal against the Magistrate's decision was brought on the following five
summarised grounds:
1. That
the court misdirected itself by simply awarding a figure of US$500.00 per month
without issuing a detailed judgment explaining how it arrived at the figure.
2. The
court a quo misdirected itself by failing
to make a finding that respondent deliberately refused to disclose his income as
well as some of his expenditure.
3. The
court a quo further misdirected
itself by failing to appreciate the fact that the amount it awarded is
inadequate to enable the appellant to meet her average monthly expenditure including
accommodation.
4. The
court a quo also misdirected itself
by failing to address the appellant's claim for arrear maintenance notwithstanding
the evidence adduced before the court on that aspect of the appellant's claim.
5. The
court a quo erred by failing to address
the question of costs notwithstanding the fact that they formed part of the appellant's
claim.
The appellant's prayer was
for the magistrate's decision to be set aside and for a sum of $1000.00 to be accorded
to her as monthly maintenance. She also prayed for the sum of $12 935.00 as arrear maintenance
and for costs of application in the court below and for the appeal.
The matter is being remitted
back to the same magistrate where practical to hear evidence relating to the
first three grounds of appeal in particular in accordance with s 5 of the Maintenance
Act [Cap 5:09] which requires the
court to enquire fully into the matter of the complaint. The fourth and fifth grounds
of appeal are disposed of by this appeal court as also explained more fully below.
Regarding the first
ground of appeal it is indeed not clear from the record how the figure of $500.00
was arrived at as being adequate maintenance other than that the figure was initially
proposed as part of a settlement claim which included the sharing of property
but which was never implemented in accordance with the agreement.
On the second ground of appeal
which centres on non-disclosure of earnings, the record does not indicate at
all what evidence was placed before the court to reflect the Respondent's earnings
or indeed if any effort was made to get the respondent to disclose his
earnings. Indeed the only reference to the respondent's earnings in the record is
made by his counsel on p 13 where he says his client gets between $6000 and
$7000 per month as an independent contractor. No evidence was produced to
support this claim.
Section 13 (c) of the Maintenance
Act makes it clear that the court has power “to call for the production of any book or document and to examine
any witness on oath”. To the extent that the respondent is self-employed,
the evidence of how much he makes through his business should have been placed before
the court for a proper assessment to be made of his earnings. It is this that
the magistrate must do in accordance with the law. Although the Applicant is
unemployed her expenses must also be fully justified so as to arrive at an
appropriate figure regarding her needs.
With regard to the third ground
of appeal which essentially challenges the adequacy of the amount ordered, maintenance
pending divorce is supposed, as much as possible, to allow a party to lead the lifestyle
that they were accustomed to. In other words, the marital status quo is to be preserved
as much as possible pending the final divorce which will resolve issues fully with
regards to the sharing of matrimonial assets. It is not clear from the record
how the magistrate arrived at $500.00 as being sufficient for all the applicant's
needs including accommodation given that Respondent has exclusive use of the
marital home together with the child in his custody. The applicant states that
she is staying with her parents as a result of being unable to afford accommodation.
Clearly it is not the legal obligation of her parents to provide her with accommodation
and the magistrate should therefore make a proper assessment of how much is to
be paid taking into account the major categories of expenses that the applicant
will incur inclusive of accommodation.
The above are the three issues
which the magistrate should give attention to in re hearing the matter.
The
appellant also appealed on the grounds that arrear maintenance had not been granted
by the court below. The issue of arrear maintenance for a spouse is one that is
fairly settled as discussed in the case of Keates
v Keates HH 89-95 in which ROBINSON J as he then was,
explained the position as follows:
“……..it
appears that the applicant's claim for arrear maintenance founders on the maxim
deriving from Voet 2.15.15 - “non emim
quisquam praeterium vivit aut alendus est” meaning according to Gane's
translation, “a person does not live nor have to be maintained in arrear”……….;
ROBINSON J discussed a
number of local as well as South African cases that have dealt with and applied
this principle. (See Oberholzer v Oberholzer 1947 (3) SA 294 at 298; Woodhead v Woodhead 1955 SR 70 at 71;
Africa v Africa 1985 (1) SA 792
(SWA) at 794 (d). In Woodhead's case (supra) BEADLE CJ as he then was, stressed the existence of an
agreement or a court order as a legitimate basis for seeking arrear
maintenance.
Section 7(5) of the Matrimonial
Causes Act permits the court in granting divorce to make an order in relation
to distribution of assets and maintenance that is in accordance with the
written agreement of the parties. In casu
although the parties purported to enter into an agreement as part of their
divorce settlement, the agreement was never operationalized and it has not been
incorporated into any divorce settlement since the divorce remains pending and
disputes remain concerning matrimonial assets. There can therefore be no
finalised agreement to talk about. In fact on p 13 of the record the Respondent
dismisses the agreement as an out of court settlement which has no bearing on
him which is indeed true since the agreement has not been made into a court
order. The applicant herself acknowledges on p33 para 7 of the record that the
agreement has not been honoured and that she has not been receiving the
US$500.00 a month which was supposed to be a part of the settlement.
But
aside from the agreement not being incorporated as an order of court, s6 of the
maintenance Act under which the claim was brought, which deals with the making
of an order by the court, is clearly couched from the time the order is made
going forward. It is in the present and the future and is not retrospective. Arrears
are accumulated only in relation to an order so made by the court and not in
relation to the past. So for example in S
v Frieslaar 1990 (4) SA 437 (C) an accused
had been arraigned for failure to pay arrear maintenance in respect of expenses
incurred on behalf of the child before the order was made. On review it was held
that the order under which he was obliged to pay was invalid in so far as it
provided for him to pay arrear maintenance. It was also emphasised that in
making an order for maintenance, a court could not make an order with retrospective
effect. However as articulated by CONRADIE J in that case at p 440 B, failure to
maintain is not entirely without relevance in seeking an effective maintenance order
going forward. As he explained:
“The
more a claimant's resources have been depleted by a defendant's neglect in the
past to contribute to maintenance, the greater her need for future maintenance might
be. This means that although a maintenance order cannot be made in respect of
the past it can take the past into account”.
In light of the fact that
a maintenance order does not operate retrospectively and that the agreement
that the applicant purports to draw strength from has not been incorporated
into any divorce order and has also not been followed, the claim for arrear maintenance
is dismissed.
The final ground of
appeal to be addressed relates to the alleged failure by the court below to
address costs. Maintenance matters are conducted in the form of an enquiry and
the Act itself articulates the parameters within which expenses related to a
maintenance enquiry are to be addressed. In s31 it allows for reimbursement of
expenses where the court considers it just to do so. The section is couched as
follows:
“31
(1) Where, in terms of this Act, a maintenance court makes an order or
direction or orders any variation, extension, rescission or discharge thereof
or refuses to make any such order, direction, variation, extension rescission or
discharge, it may, where it appears
just to do so, in addition to the other order of the court, make an
award of such amount as it may specify against any person in favour of another
in respect of the reasonable expenses incurred by the latter, directly or
indirectly, in connection with the proceedings concerned.
Provided
that in making such an award the maintenance court shall have regard to the
means of the person against whom the award is intended to be made.
(2)
An award in terms of subsection (1) shall have the effect of a civil judgment
in the magistrates court, and the provisions of the Magistrates Court Act [Cap 7:10] and rules made thereunder
relating to the enforcement of judgments shall mutatis mutandis, apply to such award.
The
clerk of the maintenance court which has made the award in terms of subsection
(1) shall, on behalf of the person in whose favour the ward was made, take all
such steps for the civil enforcement of that award as may be necessary”.
There
are two issues which emerge from the above provisions. The first is that the
award of expenses is at the discretion of the court where it appears just to do
so, taking into account the means of the other person. What s 31 (1) suggests
is that the award of expenses in a maintenance enquiry is not a fait accompli since s 31 (1) clearly
uses the word “may” rather than “shall” in relation to the
award of expenses. The second point
is that subsections (2) & (3) of the above section bolster the point that a
maintenance enquiry is very different from an ordinary civil matter. These
provisions make it clear that it is where an award relating to expenses has
been granted that such award of expenses is in the nature of an ordinary civil
claim governed by the general rules as contained in the Magistrates Court Act.
A maintenance enquiry is thus distinct from the rules applicable to other general
civil matters - a fact which is of relevance to the approach of costs.
To enable the court to
exercise its discretion on whether it is just to award expenses with respect to
such enquiries, it would seem to follow that the party wishing such expenses to
be reimbursed must fully bring the nature of the expenses to the attention of
the court for it to make an informed consideration. The expenses referred to in
relation to a maintenance enquiry are clearly not synonymous with costs that
are awarded in civil matters where as a general principle a party who is successful
is entitled to claim them. The purpose of awarding such costs to a successful
litigant in civil matters is to recompense them for expenses that have been
incurred initiating or defending litigation but these are not articulated fully
before the court as distinct to the expenses envisaged under s 31 of the Maintenance
Act. From the applicant's heads of argument, it is evident that the costs that counsel
alludes to as not having been addressed by the court are costs in general civil
matters which generally follow the cause.
The record does not show
any evidence that expenses were brought to the attention of the court or that s31
was what was being alluded to in relation to the claim. Therefore the court
below cannot be faulted for not addressing the issue of expenses in the
maintenance claim since the relevant provision allows for an exercise of the
court's discretion where it appears necessary and just to do so. It also has to
be borne in mind that the evidence that was placed before the maintenance court
was not of total neglect but rather a case where the applicant was more in
quest of a consistent enforceable order.
Indeed in the South
African case of Dreyer v Dreyer 1984 (2) SA 483 (0) it was
emphasised that the intention of their Maintenance Act (also along the same
lines as ours), is an enquiry and that the power to make an order for costs
cannot be read into the Act where it has not been expressly provided for. In Reid v Reid 1992 (1) SA 443 (E) it was also emphasised that the
maintenance court does not have the power to award costs but that on appeal
such an order of a maintenance court is in the nature of civil proceedings and
courts of appeal may in appropriate cases make orders regarding costs of
appeal. Our s 27 (1) & (2) of the Maintenance Act stipulates that an appeal
from a maintenance court which lies to the High Court is indeed in the form of
civil proceedings.
On appeal the applicant
as the appellant was successful on at least three grounds of appeal which go to
the gist of her claim in the sense that this court has referred the matter back
for a proper enquiry to be heard. As such the applicant is awarded the costs of
appeal.
As
earlier stated, for expediency the matter is being referred to the same magistrate
who heard the matter. However, in the event that for any reason the matter
cannot be heard by the same Magistrate, then it should be heard by any other
appropriate Magistrate using the issues highlighted as guidelines for the
conduct of a thorough hearing.
CHITAKUNYE J agrees ………………………..
