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DeBeer v Be Beer (A113/2016) [2017] ZAGPPHC 998 (6 September 2017)

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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Not reportable

Not of interest to other Judges

CASE NO: A113/2016

06/09/2017

In the matter between:

 

CHENEE DE BEER                                                                              Appellant

 

And

 

RIAAN DE BEER                                                                                  Respondent

J U D G M E N T

 

SETHOLE, AJ

1.  The marriage between appellant and respondent was dissolved on the 02nd October 2012 in terms of an order made by this court. A settlement agreement was incorporated on the order in which respondent was to pay R5 000, 00 per child for three children. These provisions constituted a maintenance order as defined in section 1 of the Maintenance Act 99 of 1998.

2.  Section 1(1) provides: 'In this Act, unless the context indicates otherwise- 'maintenance order 'means any order for the payment, including the periodical payment, of sums of money towards the maintenance of any person issued by any court in the Republic, and includes, except for the purposes of section 31, any sentence suspended on condition that the convicted person make payments of sums of money towards the maintenance of any other person;’ .

3. On the 09th January 2014 an application was brought in the maintenance court in the magistrate's court to vary the maintenance order contained in the settlement agreement. The maintenance court reduced the maintenance to R600, 00 for the eldest child and Rl000, 00 each for the two younger ones. This appeal is brought against this order.

4.  The order made by the maintenance court was made in terms of s 16(1)(b) of the Maintenance Act, which provides:

(b) After consideration of the evidence adduced at the enquiry, the maintenance court may - in the case where a maintenance order is in force -

i) make a maintenance order contemplated in paragraph (a)(i) in substitution of such maintenance order; or

ii) discharge such maintenance order; or

c) ....

Section 16(l)(b) falls to be read with s 22 of the Act, which provides:

Whenever a maintenance court -

a)    makes an order under section 16(J)(b) in substitution of a maintenance order; or

b)    discharges a maintenance order under section J 6(J)(b), the maintenance order shall cease to be of force and effect, and the maintenance officer shall forthwith give notice of the decision to the registrar or clerk of the court in the Republic where the maintenance order was issued or where the sentence concerned was imposed, as the case may be, who shall deal with the relevant records in the prescribed manner.

5.  In varying the initial settlement agreement referred in paragraph 3 above, the applicant relied on the effect of s 16(1)(b) read with s 22 of the Maintenance Act, as well as the interpretation by the Appellate Division, in Purnell v Purnell [1993] ZASCA 22; 1993 (2) SA 662(A), of the essentially identical equivalent provisions of the 1963 Maintenance Act.

In Purnell, a maintenance order had been made in the high court when the parties had been divorced. Sometime later, the maintenance regime instituted in terms of the high court order was substituted by an order made in the maintenance court. Thereafter one of the parties applied for a variation of the maintenance regime. That application was brought in the high court by way of an application for a variation of the originally made high court order. Conformably with the language of the Maintenance Act, the Appellate Division held that the high court order had ceased to exist, having been substituted by the maintenance court order, and that therefore, being non-existent, it was not amenable to variation by the high court.

6. It follows that in the present appeal the order incorporating the settlement agreement with the initial R 5 000,00 per month per child ceased to exist because of the order made by the maintenance order on the 09th January 2014.

7.  In Mentz v Simpson 1990{4) SA 455 AD Hefer JA indicated that the approach to an appeal in a maintenance matter should be approached along the lines indicated in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194, where Watermeyer JA stated at 200;

"........a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial court, and further unless there is some unusual degree of certainty in its mind that the estimate of the trial Court is wrong "

8. The approach of Joubert JA in AA Mutual Insurance Association Ltd v Magula 1978(1) SA 805 is also referred to by Hefer JA in the Mentz case. The relevant paragraph reads as follows:

" (T)his Court will not, in the absence of any misdirection or irregularity, interfere with a trial Court's award of damages unless there is a substantial variation or a striking disparity between the trial Court.'s award and what this Court considers ought to have been awarded, or unless this Court thinks that no sound basis exists for the award made by the trial court ".

9.  It was conceded by both counsels that affordability was not an issue as the respondent, could afford to pay.

10.  A maintenance enquiry in terms of § 6 of Act 99 of 1998 is one sui generis. The test is that of a balance of probabilities. The procedure followed throughout is one akin to civil proceedings. Section 10(5) provides that the law of evidence, including the law relating to the competency, compellability, examination and cross-examination of witnesses, as applicable in respect of civil proceedings in a magistrate's court, shall apply in respect of the enquiry. This relates to what was raised by the respondent counsel regarding the credibility of the appellant. That she was not honest relating to manipulation of figures in the maintenance enquiry and not being truthful. According to the maintenance court she misled the court regarding her issues relating to her income tax. See Govender vs Amurtham and Others [1979] 2 All SA 47 (N) and Foster v de Klerk [1993] 4 All SA 860(0).

11. Appellants counsel correctly pointed out to the provisions of Section 8 of the Divorce Act 70 of 1979, as amended, which states that a maintenance order may be rescinded, varied or suspended. Section 8 requires sufficient reason to vary the maintenance order. Also section 16(1) (b) of the Maintenance Act 99 of 1998 requires good cause to be shown for the court to vary a maintenance order.

12. In the Reid v Reid 1992 (1) SA 443 as correctly pointed out by appellants counsel, it was held that:

"Apart from the obligations in principle it is from a practical point of view highly that a court (not being a court of appeal ) should rule on the correctness or justness of another courts order. Such an enquiry would require evidence as to all the factors relevant to the previous order".

13. If one considers the present case, the maintenance court considered the evidence that was tendered by the appellant regarding the needs of the children which led the court into varying the original order. Amongst other things took into account, inter alia:

13.1.       the fact that the two minor children spend two weeks with the respondent in a month and during that time respondent caters for their expenses.

13.2.       the fact that respondent caters for schooling, clothes, medical and related expenses. Furthermore the stationery of Simone was being catered for by the respondent.

13.3.       the fact that eldest daughter, Simone is no longer interested in pursuing her sport in horse riding resulting in stable and related costs being deducted.

13.4.       swimmmg costs for Gizzelle also being deducted as they were nonexistent at the date of variation.

13.5.       the fact that some of the expenses to be exorbitant and based on the evidence of expenses led, reduced the amounts claimed.

13.6.       the maintenance court also found that some of the expenses claimed do not relate to children and excluded those expenses completely

14. I am alive to the fact that both parents have a reciprocal duty to support their children proportionately according to the means of the parties. As stated above. with the respondent, it was not the fact that he could not afford, but whether the amount as contained in the settlement agreement was a true reflection of the needs and expenses of the minor children. For that reason. I am of the view that a maintenance enquiry was necessary.

15.  I agree with the court a quo when the presiding officer said "The maintenance court is armed with a panoply of powers including a comprehensible variety of possible components including quantum and apportionment and also to guard against making maintenance orders which may be construed as "unjust enrichment ".

16. Whether good cause or sufficient reason. I am of the view that the maintenance court considered the reasonable needs and expenses of the minor children and came to a conclusion to vary the order as delivered on the 31st October 2014.

17.   As a Court of Appeal. I am of the view that this court should not interfere because the maintenance court varied the initial settlement agreement after an in depth enquiry being held regarding the financial position of the appellant and expenses of the minor children.

18.    For the reasons mentioned above, it follows that the appeal cannot succeed.

As a result I propose the following order.

 

1.The appeal is dismissed with costs.

 

 



E.E SETHOLE

Acting Judge of the High Court

 

 

I agree and it is so ordered.



S.S MPAHLELE

Judge of the High Court

 

Date of judgment:

For the appellant:

Instructed by:

For respondent:

Instructed by: