KAMOCHA J: The applicant came to this court seeking
interim relief in the following terms:
“(a) The first respondent, alternatively, the
Provincial Magistrate, shall forthwith ensure that the applicant's complaint
filed with the Maintenance Court in terms of section 23 of the Maintenance Act
is processed and the second respondent dealt with in terms of section 23 of the
aforesaid Maintenance Act;
(b) The second respondent be and is hereby
ordered that, within seven days of this order, in the event that there are any
groceries which are in arrears and outstanding as at the date that the first
respondent made her variation order, he deliver the said groceries to the
applicant.”
The
final order that was being sought reads thus:-
“That the first and second
respondents show cause why the following final order should not be made:-
(i)
That the decision by the first respondent
dismissing the applicant's points in
limine raised under case number 518/08 in respect of the applicant for
variation of a maintenance order by the second respondent, be and is hereby set
aside;
(ii)
That the decision by the first respondent to
vary the maintenance order granted on 11th day of June 2008, by
setting aside paragraph 2 thereof and substituting a payment of R1 000,00 in respect of the parties' two
children be and is hereby declared invalid and is hereby set aside;
(iii)
That the application for variation of
maintenance filed by the second respondent be heard de novo by a different
magistrate in the court a quo.
(iv)
That the first and second respondents shall pay
the costs of this application jointly and severally the one paying the other to
be absolved, unless they do not oppose this application.”
The circumstances giving rise to
these proceedings are that on 11 June 2008 the present applicant was granted a
maintenance order by consent in terms of which Qhubekani Mabuza Ncube who is
the father of her two children was to make payment of groceries as maintenance
for the children. That arrangement,
however, turned out not to be easy to implement resulting in Qhubekani failing to purchase a large number of items of
groceries for a long period.
The
applicant then decided to go and handover the matter to the maintenance court
so that Qhubekani could be dealt with in terms of the provisions of section 23
of the Maintenance Act [Chapter 5:09].
She wanted him prosecuted for allegedly failing to comply with the order
by consent. She filed her affidavit
dated 5 February 2009 in support of her allegations. Following her report the maintenance officer
addressed a letter to Qhubekani drawing his attention to the fact that he was
liable to prosecution for failure to comply with the order. The two documents were filed of record on
pages 46 and 51 of the application respectively. But Qhubekani denied receiving any of
them. A close examination of the two
documents reveals that while the affidavit in support of the criminal charge is
dated 5 February 2009 the letter by the maintenance officer was not dated.
What
admits of no doubt is the fact that the report to the maintenance office for it
to proceed in terms of section 23 was filed after Qhubekani had filed his application for the variation of
the order by consent which was filed on 14 October 2008. See G1 page 24 of the application. The variation that was being sought was as
follows:
“It is
ordered that –
Paragraph 2 of the court order
granted under case number 518/08 be and is hereby varied as follows:
(1) The
respondent shall pay cash equivalent to the inventory of provisions and
groceries listed in paragraph 2 of the order, either in cash or cheque form
whichever he is in a position to provide on or before the last day of each
month.”
When
the matter went for a hearing, the present applicant's legal practitioner
raised two points in limine and made
submissions in support thereof.
Thereafter counsel for the other party responded to the points in limine. I must mention that counsel for the then
applicant had already addressed the court on the merits when the points in limine were raised.
After
hearing both counsel the trial court adjourned to go and consider submissions
made in limine. But after doing so the court issued the
following order:
“(a) Applicant shall pay R1 000,00 for the
maintenance of the two minor children.
The first payment should be done by the 15th of March 2009
after which application (sic) shall
pay on each 15th day of every month.
Deposit slips confirming such payment should be produced by applicant by
the 16th of every month through the clerk of court.
(b) Applicant must pay school fees for the
minor children. Receipts to prove such payment must be filed
with the clerk of court every term.
(c ) Applicant shall pay all the medical
expenses as and when the need arises.
Custodian of the children should claim all medical expenses upon
producing receipts or inform the applicant when the need arises.
(d) Each party will bear its own costs.”
This
order relates to the main application and not to the point raised in limine. The order was granted without hearing the
then respondent's legal practitioner on the merits contrary to the audi alteram partem rule. Prompting the present applicant to file this
application for review under cover of a certificate of urgency.
The
trial court should have made a ruling on the points raised in limine and ended there.
After dismissing the points in
limine the legal practitioner of the then respondent should have been
offered an opportunity to make submissions on the merits before issuing an
order.
Was the
applicant justified in bringing the review proceedings on an urgent basis? My view is that she was not. Firstly, although the trial magistrate erred
in granting a variation order without hearing the other party it did not in any
way stop the applicant from continuing with her application in terms of section
23 of the Act. If she believes and can
prove that the father of her children is in arrears she is at liberty to
institute proceedings to recover arrear maintenance. The applicant is not without an alternative
remedy in terms of the Maintenance Act.
She also did not prove that there was irreparable injury. Where a father of a child fails to pay
maintenance for such child the mother of the child should have recourse to the
provisions of the Maintenance Act in the ordinary way without necessarily
jumping the queue.
Secondly,
the application for review should have been brought to court in terms of the
rules as an ordinary application. There
was no need to bring it on a certificate of urgency in the circumstances.
The
applicant was prompted to institute these proceedings because of the variation
order which was granted without her being heard. The reason why she did not succeed was
because she failed to satisfy the requirements for the interim relief she was
seeking. It seems to me, therefore, that
the justice of the case would be met by making each party meet its own costs.
In the
result I would order that the application be and is hereby dismissed with each
party bearing its own costs.
Calderwood, Bryce
Hendrie and Partners applicant's legal practitioners
Cheda & Partners, 2nd
respondent's legal practitioners
