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, ...
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.
