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HB66-09 - SIPHILISIWE SIZIBA vs SOPHIE MATIMBA N.O. and QHUBEKANI MABUZA NCUBE

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Procedural Law-viz provisional order.

Procedural Law-viz interim interdict.
Family Law-viz maintenance re minor children iro section 23 of the Maintenance Act [Chapter 5:09].
Family Law-viz maintenance re minor children iro variation of maintenance order.
Procedural Law-viz final order re variation of order iro maintenance order.
Procedural Law-viz consent paper re maintenance order by consent.
Family Law-viz maintenance order by consent re section 23 of the Maintenance Act [Chapter 5:09] iro prosecution for failure to comply with an order by consent.
Procedural Law-viz service of process re proof of service.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz final order re audi alteram partem rule.
Procedural Law-viz review re audi alteram partem rule.
Procedural Law-viz review re urgent chamber application iro urgency.
Procedural Law-viz review proceedings re urgency.
Family Law-viz maintenance re arrear maintenance iro section 23 of the Maintenance Act [Chapter 5:09].
Procedural Law-viz urgent chamber application re urgency iro alternative remedy.
Procedural Law-viz urgent chamber application re urgency iro irreparable injury.
Procedural Law-viz urgent chamber application re urgency iro irreparable harm.
Procedural Law-viz review proceedings re rules of court iro form of application.

Maintenance re: Minors

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, 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= 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, of which Qhubekani Mabiza 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 Mabiza Ncube 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 Mabiza Ncube 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 Mabiza Ncube 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..., of the application...,. But Qhubekani Mabiza Ncube 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 Officer for it to proceed in terms of section 23 of the Maintenance Act [Chapter 5:09] was filed after Qhubekani Mabiza Ncube had filed his application for variation of the order by consent, which was filed on 14 October 2008...,. 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.”

Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

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 the submissions made in limine. But after doing so, the court issued the following order:-

“(a) Applicant shall pay R1,000= 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 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 points 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.

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency

Was the applicant justified in bringing the review proceedings on an urgent basis?

My view is that she was not.

Although the trial magistrate erred in granting a variation order without hearing from the other party, it did not, in any way, stop the applicant from continuing with her application in terms of section 23 of the Maintenance Act [Chapter 5:09]. 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 [Chapter 5:09]. 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 [Chapter 5:09] in the ordinary way without necessarily jumping the queue.

In the result, I would order that the application be and is hereby dismissed.

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings


The application for review should have been brought in terms of the Rules as an ordinary application. There was no need to bring it on a certificate of urgency in the circumstances.

Costs re: No Order as to Costs or No Costs Order iro Approach

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.

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
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