South Africa: Eastern Cape High Court, Grahamstown

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Lewis v Olowookorun and Another (3513/2011) [2012] ZAECGHC 25 (3 May 2012)

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1. The applicant brought an application to review the decision of the first respondent (hereinafter “the magistrate”)in respect of maintenance payable by him to the second respondent in respect of their minor son, born in May 1998, presently 14 years old. The thrust of the attack against the proceedings was to the effect that the magistrate effectively took over and dominated the proceedings, denying the applicant a proper opportunity to present his case.Both parties were legally represented during the maintenance enquiry. The magistrate has not opposed the application and has filed a notice indicating that she would abide the decision of this court.

2. The parties were divorced in 2000 and in terms of the settlement made an order of court the applicant was ordered to pay R1100 per month as from 1 January 2001 as maintenance for their minor child as well as to pay an equal amount as the second respondent in respect of the minor’s school fees, school and sports clothing, equipment and extra mural activities. In 2004 the partiesagreed to vary the maintenance payable to R1850 per month, escalating at 10% per annum. It is common cause that the applicant duly increased the maintenance annually and was paying R4093 per month at the time when the latest application to amend was brought in March 2010, in terms of which the second respondent sought to increase the maintenance payable to R17142 per month.

3. After hearing evidence under oath from both parties the magistrate increased the monthly maintenance payable to an amount of R8500 plus contributions towards the minor’s medical aid, in the sum of R506 per month, as well as payment of school fees, a sum of R1364, totalling R10374 per month. The second respondent was ordered to pay for “all related school expenses.”

4. During the course of the proceedings in the magistrate’s court the magistrate sought and obtained agreement from the parties in respect of most of the expenses claimed in respect of the minor child and eventually arrived at a figure of R11692, a figure that both parties agreed on.

5. What is also common cause between the parties is that the second applicant lost her employment after launching the application for an increase. It is common cause that she had a net income of R22814 at the time and it was also agreed between the parties that the fact that she had lost her employment should not be taken into account during the maintenance proceedings. This was due to the fact that she had been paid a retrenchment package and had acquired a business. I will return to this aspect hereunder.

6. The second respondent confirmed in her papers opposing the relief sought in this court that although her formal employment had been terminated, that she had made arrangements with her former employer to take over a portion of the business and with their assistance run it for her own account. She was confident that she would be able to make a success of it and was alive to the fact that if she didn’t, that she would be able to approach the maintenance court again, should her circumstances change. These background facts were neither solicited by the magistrate nor volunteered by counsel acting for the second respondent, no doubt because he was under the impression that the magistrate would accept the agreement between the parties. I have described the proceedings as dynamic. That is a euphemism. The proceedings were conducted in an unusual manner. The applicant’s contention that the magistrate effectively determined the manner in which the parties presented their respective cases is accurate. Even having regard to the nature of maintenance enquiries and the requirement that the presiding officer play an active and more inquisitorial role, the magistrate’s conduct of the proceedings was unduly robust. There are grounds for arguing that the decorum of the court was either impugned or was at grave risk of being impugned. In the light of the peculiar circumstances of this matter it is however not necessary to determine the question as to whether the conduct of the proceedings in general gave rise to a reviewable irregularity. The record of the proceedings, in my view establishes a more particular ground upon which the matter may be determined.

7. In this regard the following extract from the magistrate’s reasons for judgment reveal her view of the agreement concluded by the parties in relation to the second respondent’s income:

“…had she maintain(sic) the employment perhaps we will be talking something totally different, because then her income would have obviously been taken seriously into consideration. We are unfortunately at the point now where we have no figure or no income to work with except for hopeful. There is no submission from the respondent to suggest that there is some money or you know income that is expected or that the respondent enjoys, in fact it is common cause between the parties that the applicant is currently unemployed. Appreciative of the concession that was made by the applicant and it is not common for people to do so, and that is obviously taken into consideration.”

This extract indicatesthat the magistrate ignored the parties’ agreement. The effect of the agreement between the parties that the second respondent’s income should be regarded as being an amount in excess of R22 000 was to establish a fact relevant to the exercise of the magistrate’s authority to regulate maintenance payable by a party as being common cause between the parties. The magistrate was bound to take this fact into account and to deal with the matter on the basis, inter alia, of such fact.

8. Section 24 of the Supreme Court Act¹ provides that decisions of inferior courts are reviewable when there is:

“(a) absence of jurisdiction on the part of the court;

2. interest in the cause, bias, malice …on the part of the presiding judicial officer;

3. gross irregularity in the proceedings; and

4. the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.”

9. Counsel weread idem that neither grounds (a) or (b) were present and that we were dealing with either (c) or (d). A further ground which must also be present before a decision will be reviewed, is that “the irregularity must be of such a nature that it is calculated to cause prejudice.”²

10. The magistrate’s failure to take into account the common cause fact relating to the income of the second respondent constitutes a gross misdirection which vitiates the proceedings as irregular. The effect was to decide the matter without reference to admissible evidence properly placed before the magistrate. In the circumstances section 24(c) and (d) is applicable and the proceedings are accordingly reviewable.

11. By so doing prejudice was undoubtedly occasioned to the applicant. Whilst it is indeed so that the magistrate was bound to consider the overriding best interests of the minor child in determining the question of maintenance, such interests are to be determined upon the basis of acceptable and admissible evidence. Insofar as the magistrate may have considered that the agreement would compromise the interests of the minor child that ought to have been raised with the parties so that they could properly address the issue. This was not done.

12. Mr Mullins, for the second respondent, argued that the relief sought by the applicant in the present application did not amount to a review of the proceedings of the maintenance court, but rather to an appeal, and that the application should be dismissed on that basis. It is trite that there is often an overlap between the two procedures in our law and that a matter may be capable of being taken on appeal or on review.³ This indeed appears to be such a matter and Mr Mullins was unable to suggest any prejudice that the second respondent might have suffered as a result of the applicant following the procedure adopted. I am in any event persuaded that the misdirection by the magistrate was so gross that it renders the proceedings reviewable.

13. It was common cause that the applicant has paid the increased maintenance ordered by the magistrate and continues to do so. Mr Mullins’s view was that if we were to find that the proceedings are reviewable, and that the court was persuaded to grant relief, that it would be preferable for this court to substitute its decision for that of the maintenance court, rather than submit the matter back for consideration, as the time and expense it would take to do so would work to the prejudice of both parties, and ultimately to the prejudice of the minor child. Mr Gajjar, for the applicant, agreed with those views. Counsel differed however on what order should be made regarding costs in the event that this court substituted the order with one which it felt was appropriateunder the circumstances.

14. I agree with counsel that it would be preferable for this court to substitute its decision and am of the view that there is sufficient evidence at our disposal to do so.

15. The second applicant set out her expenditure in column A below and apportioned those expenses, or those portions of her expenses which were relevant to the minor child, in column B. I have allocated those expenses which are related only to the child to column C, which total R11085, a figure that I will use in my calculations even though it is slightly less than the R11692 the parties agreed upon, as it is not entirely clear, due to the dynamic nature of the proceedings, exactly how it was arrived at. The parties in any event based it on the expenses listed in Column B, which is also what I have done.

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16. According to the evidence adduced before the magistrate, the applicant’s net income was in the order of R30000 per month and after payment of his necessary expenses he had a free residue of R8130 per month. In order to arrive at the second respondent’s free residue I have accepted, for the purpose of this exercise that her total expenses (as set our by her in evidence) in Column A are accurate. If the total in column C is deducted from the total in column Ait appears that the second respondent’s monthly expenses amount to R19217.14, leaving her with a free residue of R3596.86. Accepting that the parties are jointly liable for the maintenance of the minor child proportionate to their means, their respective maintenance obligations when calculated having regard to their respective residue of income over expenditure is in the order of approximately 30% and 70% respectively.

17. Based on this proportionate allocation the parties’ respective contributions should thus be in the order of R3325.50 and R7759.50 per month respectively. Mr Mullins urged this court to compensate for the ravages of inflation in the event of this court substituting the order. It has been approximately a year since the order was granted and although the second respondent has theoretically had the benefit of some two thousand rand per month more than what she was entitled to, I agree that the figure should be adjusted upwards in order to take into account thelapse of time between when the order was made and this hearing. In my view I consider that an all-inclusive amount of R8000 would under the circumstances be appropriate and fair. For the sake of clarity the applicant should continue to pay the medical aid contributions for the minor child, as well as his school fees, but such amounts may then be deducted from the R8000 payable.

18. I am of the view that both parties have enjoyed a measure of success and the costs order I propose making will reflect what I view as an appropriate order under the circumstances. Costs are in any event a matter which falls within the discretion of the court and, since this matter involves the best interests of a minor child I do not consider that either of the parties should be burdened with costs associated with rectifying an irregularity committed by the presiding officer.

In the event, I propose that the following orders be made:

1. The first respondent’s decision be reviewed and set aside;

2. The first respondent’s decision be substituted with the following:

The applicant is ordered to pay R8000 per month as maintenance to the second respondent in respect of their minor child, such amount to be inclusive of the minor child’s school fees and costs of medical aid.

3. That there beno order as to costs.

____________________

L D KEMP

ACTING JUDGE OF THE HIGH COURT

I agree and it is so ordered

____________________

G GOOSEN

JUDGE OF THE HIGH COURT

For applicant: Mr Gajjar, instructed by Whitesides.

For 2^nd respondent: Mr Mullins, instructed by Netteltons.

159 of 1959

2The Civil Practice of the High Courts of South Africa – 5 ed volume 2 p1275

3The Civil Practice of the High Courts of South Africa ibid at p 1272