J S v T S (127/1995) [1997] ZASCA 75 (19 September 1997)

In terms of the order, however, (he obligation of the Respondent to pay maintenance at the rate of R200 per month to the Appellant personally, was to cease if the Appellant remarried or cohabited with any other man after the order of divorce became operative. Some years later the Appellant did in fact begin cohabitation with a boyfriend, and from sometime in 1989 the Respondent ceased paying any maintenance to the Appellant personally. The payments in respect of each of the minor children were increased by R50. The total monthly maintenance thereafter paid by the Respondent was R500, consisting of R250 in respect of each child. The Respondent therefore effectively reduced his obligation from R600 per month to R500 per month.

The costs of maintaining the two minor children continued to increase in the ensuing years, and the Appellant therefore made an application to a Magistrate in terms of the Maintenance Act No 23 of 1963 ("(he Act"), for an order, to increase the amount which the Respondent was required to pay in respect of (the maintenance of the children. She sought maintenance in the sum of R500 each for J[…] who was then fifteen years old and D[…] who was thirteen.

The application was vigorously resisted by the Respondent in proceedings which went on for seven court days. The record consisted of some six hundred pages.

The Magistrate who presided at the hearing carefully and thoroughly assessed the evidence. She concluded that the reasonable costs of maintenance in respect of David and Jessica was R1032 and R950 per month respectively. She was satisfied that the Appellant's gross income was only

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R950 per month. She ordered the Respondent to pay an amount of R1700 per month consisting of R800 in respect of maintenance for Jessica and R900 in respect of David.

The Respondent lodged an appeal against this order in the Cape of Good Hope Provincial Division of the then Supreme Court, on […] 1993. The fact that an appeal then became pending did not, however, operate to suspend the obligations of the Respondent to make maintenance payments in the amount of R1700 per month in the interim. This is because section 7(4) of the Act provides that an appeal against a maintenance order in terms of the Act shall not suspend the payment of maintenance in accordance with the relevant maintenance order ("unless the appeal is noted against a finding that the appellant is legally liable to maintain the person in whose favour such maintenance order was made").

Since the Respondent's appeal to (he Cape Provincial Division was only against the quantum of (he maintenance he was ordered to pay, he became obliged to and did in fact pay the amount of R1700 per month, ordered by (he Magistrate, throughout the period of approximately nine months which elapsed before the appeal was heard.

The appeal was heard by Conradie J and Viljoen AJ on the […] 1994. The judgment on appeal was given by Viljoen AJ. The learned Judge referred to an "arguable item" of R92,00 per month and he held that:

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"Suffice it to say that but for this one arguable item, I agree with the presiding officer's finding that reasonable maintenance for the parties' son was at the time R 1032,00 per month and for their daughter R950.00 per month"

The Court also accepted that the gross income of the Appellant was R950 per month, but it nevertheless substituted for the order made by the Magistrate an order which obliged the Respondent to pay only the sum of R500 in respect of the maintenance of each child because:

"... a Maintenance Court should in my opinion be slow to go beyond what the custodian parent claims."

The effect of this substitution, without any qualification, was to put the Respondent in a position to claim repayment of the excess of R700 per month which he had paid pursuant to the Magistrate's order in the interim period which had ensued from the date of (hat order and the date of its substitution on appeal.

The Respondent was quick to assert this advantage. Within a few days after the order made on appeal, he wrote a letter to the Appellant claiming repayment of the excess payments amounting to R6300. In the alternative he offered to recover the amount plus interest by reducing the maintenance installments payable in the future but subject to some outrageous conditions, including a condition which effectively amounted to a transfer of custody of J[…] to him and a cessation of his obligations to make monthly payments in respect of maintenance of J[…] ordered by the Court.

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The Appellant reacted to this development through her legal representatives by making an application for leave to appeal against the order made by the Cape Provincial Division.

This application was again heard by Conradie J and Viljoen AJ. Mr Slabbert from the office of

the Attorney-General in Cape Town who has at all times appeared as as amicus curiae for the

Appellant drew the attention of the Court to the effect of the order made by it and the claim for

repayment asserted by the Respondent. He submitted that the unqualified form of the order had

created legal consequences which the Court could never have intended and he asked that the

order made on appeal be made effective only from the date of that order. He submitted that

section 7(2) of the Act which entitled a Court on appeal to make any order "it may deem fit"

permitted this course.

The Court held that having made the order which it did, it was functus officio and could therefore not alter that order. It granted the application for leave to appeal to this Court, but it ordered that pending the finalisation of the appeal the Respondent was to continue to pay the maintenance which he had been ordered to pay in terms of the order made by it on […] 1994.

It is clear from the judgments in the application for leave to appeal, that the Court had made its order on appeal, in the form which it did, without applying its mind to the discretion vesting in it in terms of section 7(2) of the Act, without knowing that the Respondent had been making payments of maintenance in the period which had elapsed since the appeal against the Magistrate had been lodged, without appreciating the consequences of that fact and without having accorded to Mr Slabbert the opportunity of being heard on these matters. Both Judges have stated that they

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would have made the order contended for by Mr Slabbert if they had afforded him an opportunity of being heard on these matters and if they had in consequence of this been made aware of the facts brought to their attention during the hearing on the application for leave to appeal.

This is not a case in which we are asked to interfere with a discretion exercised by a Court whose judgment is attacked on appeal. The grounds on which it could do so are limited.

The Court,in casu, never applied its mind to the suitability or desirability of an order in terms of section 7(2) making the reduction of the maintenance payable by (he Respondent effective only from the date of its order and not from the date of the order made by the Magistrate. We arc therefore entitled to apply our minds to section 7(2) and to exercise our own discretion as to whether or not the maintenance order made by the Court a qou, should be made effective only from the date of its order.

The object of section 7(2) is clearly to enable a court hearing an appeal from a Maintenance Court, to make such orders as are necessary or suitable to ensure justice and fairness in (he circumstances of each case. The section can therefore properly be invoked to make the substituted order of reduced maintenance by (he Court a quo, effective only from the date of that order, if the unqualified effect of the order would otherwise be likely to cause undue hardship to the Appellant or to prejudice the legitimate needs of the minor children sought to be protected by the maintenance order.

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According to Mr Slabbert, it was common cause between the parties during the application for

leave to appeal in the Court a quo that the "excess" amounts in the sum of R700 per month paid

by the Appellant during the nine month period which intervened between the noting of the appeal

against the order of the Maintenance Court and the date of the order of the Cape Provincial

Division on appeal, had all been spent by the Appellant on the maintenance of the minor children

of the marriage and that she was in no position to repay any portion of these monies to the

Respondent.

Although there is no direct evidence before us to show whether or not the Appellant used the

"excess" payments made by the Respondent on the maintenance of the children or whether or not

she is in a position to repay such monies, the circumstantial evidence disclosed by the objective

facts, is perfectly consistent with the submission made by Mr Slabbert.

Both the Maintenance Court and the Court a quo on appeal found that the amount necessary for the reasonable maintenance of the children exceeded R1900. The Respondent herself earned a gross amount of only R950. The "excess" payments received from the Respondent would therefore clearly have been needed to cover the shortfall (which had been augmented by the boyfriend of the Appellant but who was under no lawful obligation to do so). This was a continuing and pressing need, which would have absorbed all the available resources of the Appellant. She was therefore compelled to use the services of an amicus curiae to conduct her case and had difficulty in finding security for the Respondent's costs on appeal. The letter from the Respondent offering to give terms on which the Appellant could make the repayments of the excess which the Respondent had paid during the period pending the appeal, would also suggest

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that, to the knowledge of the Respondent, the Appellant had no resources to afford such repayments immediately.

It is therefore clear that unless the order made by the Court a quo on appeal is qualified in terms of section 7(2) of the Act, it would have the effect of actually reducing the monthly amounts of maintenance of the minor children which the Court had determined. This is a hardship which was never intended by the Court a quo when it made its order, and is plainly unjustified by the circumstances. It is, however, a result which can and should be avoided by making that order effective only from the date upon which it was given.

In the result I make the following order:

Order:

1. The Appeal is upheld.

2. The orders made by the High Court of the Cape Provincial Division are set aside and
substituted by the following:

"(a) The Respondent T[…] S[…] is ordered to pay to the Appellant J[…] S[…] an amount of five hundred rand per month in respect of the maintenance of their son D[…] and five hundred rand per month in respect of the maintenance of their daughter J[…].

(b) This order shall be effective only from […] 1994, and payment of the first installment in terms of the paragraph (a) shall commence on 1 April 1994.

(c) It is declared that:

(i) all payments in respect of the maintenance for the said minor children made by the Respondent T[…] S[…] to the Appellant

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J[…] S[…] during the period […] June 1993 to […] March

1994 pursuant to the order of the Magistrate made on the […]

June 1993 were payments to which the Appellant was lawfully

entitled;

(ii) The Appellant shall be entitled to retain all the payments referred

to in sub-paragraph (i) and made by the Respondent, during the

said period, without any obligation to refund or repay any portion

thereof to the Respondent, T[…] S[…]."

MAHOMED CJ

Concur:

Smalberger JA Howie JA Zulman JA Streicher AJA

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