A 330/99

DIANO FOSTO JANTJIES vs MARITA JANTJIES & 2 OTHER

LEVY, AJ 2000/05/22
PRACTICE

SUMMARY JUDGMENT - A maintenance order must be complied with and a husband or former husband is not entitled to set-off monies that he has laid out for the children against the maintenance he is obliged to pay in terms of that order.

A party can apply to vary such order but if he does not do so, the Registrar can issue a writ to attach his salary or other forms of income.

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CASE NO. A 330/99
IN THE HIGH COURT OF NAMIBIA
In the matter between:

and

Heard on: 2000.04.28 Delivered on: 2000.05.22

JUDGMENT

Rule of Court 6(12) (a) and (b) provides that in urgent matters an applicant can approach the Court for relief without giving notice to the respondent. In terms of sub-rule 6 (12) (b) the applicant is obliged to demonstrate to the Court why "he or she claims that he or she could not be afforded substantial redress at a hearing in due course." This is an extraordinary remedy. It reverses the entire process of proof by putting the onus on the respondent to come to Court and to show why the order should not be granted against him or her. Furthermore where the applicant can show that further delay, or service, may frustrate the relief claimed, the court will grant an interim interdict. Because this relief is so far-reaching, in practice the Court has introduced certain safeguards so that an injustice should not be wrought. One of these safeguards requires the applicant to act expeditiously.

In this matter, Applicant regarded his matter so urgent that the delay in drafting an affidavit in support of his notice of motion, would cause him prejudice. He therefore came to court without such affidavit and gave oral evidence in lieu thereof.

2.1.The writ of execution issued by the Registrar of this Honourable Court in case 1519/95 on 15 November 1999 should not be stayed pending the outcome of proceedings to be instituted for the setting aside of the said writ.
(a)	the second respondent should not be interdicted from paying over to either the first or third respondent the proceeds of the attachment in execution.
(b)	the third respondent should not be interdicted from paying over to first respondent the proceeds of the attachment in execution.
(c)	in the event that the proceeds of the "attachment in execution have already been paid to either the first or third respondents, why such respondent should not be ordered to pay over the proceeds to the second respondent to be held in trust pending the outcome of the proceedings referred to in paragraph 2.1.
(d)	the first respondent should not pay the costs —."

The writ of execution No 1519/95, was sworn out by first respondent on 15 November 1999. On 7 July 1995, the High Court of Namibia had granted a decree of divorce and in terms of that order Applicant herein, was ordered to pay N$400-00 per month as maintenance for each of the two children of the marriage, one then aged approximately six years and the other approximately eleven years.

Applicant does not deny that he has not paid First Respondent NS9600-00 cash, for the aforesaid period, but, he says that he has from time to time bought clothes for the children, paid their school fees direct to the school, paid other expenses, and given them pocket money totalling in all in excess of the NS400-00 per child per month stipulated in the order. In the circumstances, he says, he paid out for the children more than N$9600-00 and therefore does not owe First Respondent anything in respect of the Order of Court of 7 July 1995.

His statement thereanent demonstrates that the children most certainly require more than NS400-00 per month for their maintenance, but the fact that he has made the payments he alleges, does not relieve Applicant of his obligation in terms of the Order of Court. He is obliged to comply with the Order of Court.

"It is the utmost importance that orders made by the High Court for the
maintenance of a wife or children	should be strictly observed until varied or
discharged by order of a competent Court."

This case has been followed on numerous occasions in the Republic of South Africa.

"If he	thinks that as between his wife and himself he had paid more than his
share towards the maintenance of their child, it is	open to him to approach the

Apparently, conscious that he could not act unilaterally in setting-off or deducting the items for which he had paid, from the maintenance ordered by the Court, the Applicant said he did this by agreement with First Respondent. However, First Respondent denies that their was such an agreement. Applicant nails his colours to the mast relying on a letter which he says he sent First Respondent in January 1997. In this letter, Applicant purports to inform First Respondent that he intends to make the deductions, referred to above from time to time, from the amounts ordered by Court in view of the fact that he was spending the money for and on behalf of the maintenance of the children. The aforesaid is a precis of the relevant portions of a lengthy letter which concludes with the arrogant sentence:-
"I assume that you approve and accept this draft if I do not receive a written appeal within 30 days."

Applicant was not entitled to put First Respondent to terms, in this manner. If he wanted the maintenance order varied, he could apply to court for variation. First Respondent did not "appeal " to him, as he had demanded, and because she did not do so, Applicant was not entitled to assume that she approved. At a subsequent date she did write to him and in her letter she protests that she has never agreed to his demands. She says there is no agreement between the parties. Ms Van Niekerk argued that if there was no specific agreement, then it was implied. The denial of First Respondent is applicable to a specific agreement as well as to one which may arise by implication. Whether or not there is such an agreement goes to the root of the case. This can only be determined by oral evidence. Ms Van Niekerk did not ask that the matter be referred to oral evidence. The application should therefore be dismissed. The aforesaid notwithstanding and in any event the Applicant and his Counsel realised on 15 December 1999, that there would be a dispute of fact and asked the court then for an Order to stay the writ "pending the outcome of proceedings to be instituted for the setting aside of the said writ."

The aforesaid is certainly applicable in the instant matter.

At a somewhat late stage, Adv. Van Niekerk tried to persuade this Court that the Registrar of the Court should not have issued the writ at all, or that he should have issued it in terms of a different Rule of Court.

She relied on Pienaar V Pienaar 2000(1) SA 231 (0)

Adv Van Niekerk argued that an attachment of salary, earnings or emoluments can only be effected in terms of Rule of Court 45 (12) (j) and (k) Rule 45 (12) (j) provides:-
"Whenever the court is of opinion that a debtor is able to satisfy a debt by instalments out of his or her earnings, it may make an order for payment of such debt by instalments, and whenever an order has been made for payment of such debt by instalments and the debtor makes default in such payment, any salary, earnings or emoluments due or accruing to such debtor to the extent of the arrears

may
be attached."

This Rule has no application to a debt which arises from the debtor's failure to pay maintenance. The Rule is only applicable to a Court's order which orders a debtor to liquidate his or her debt by instalments. The difference between instalments and maintenance are manifold and obvious e.g. maintenance ceases on the death of the person to be maintained but death does not terminate a debt. Maintenance's is variable by a Court but not so a debt.
Furthermore in any event Rule 45 (1) provides that "a party in whose favour, any judgment of the court has been pronounced may sue out of the office of the Registrar one or more writs of execution.".

"Any" judgment means "any" judgment and includes a debt which arises from a judgment for the payment of maintenance.

Rule of Court 45 (12) (a) makes provisions for the attachment by a creditor of debts (such as salary or earnings) which are owing or accruing from a third person to the judgement debtor.

The Registrar was therefore fully entitled to issue the writ which he issued in the present case.

There is no substance in this point taken by Adv Van Niekerk.

At the commencement of this hearing Adv. Strydom applied to strike out certain matter from the Replying Affidavit of Applicant. It is unnecessary to deal with the application which only accupied a few minutes of the Courts time.
To sum up, the Applicant could have applied to vary the maintenance order. He could even do so in respect of arrears.

He has however not availed himself of this right.

Although aware of the dispute of fact, Applicant did not apply to refer the motion for oral evidence.
For all these reasons, Applicant is not entitled to relief. The Order of this Court is:-
(e)	
(f)	All monies held in trust by Second Respondent must be paid back to Third Respondent within 72 hours of this Order,
(g)	Applicant shall pay the costs.

	

Instructed by:

Weder Kruger & Hartmann

ON BEHALF OF RESPONDENT: Instructed by: