Martin v Martin

• Jurisdiction: South Africa
• Citation: 1997 (1) SA 491 (N)

Martin v Martin
1997 (1) SA 491 (N)

1997 (1) SA p491

Citation	1997 (1) SA 491 (N)
Case No	331/96
Court	Natal Provincial Division
Judge	Howard JP, Combrinck J
Heard	September 2, 1996
Judgment	September 9, 1996
Counsel	H P Jefferys for the appellant; A G Jeffrey for the respondent

Flynote : Sleutelwoorde B

Maintenance — Failure to pay in contravention of s 11(1) of Maintenance Act 23 of 1963 — Remedies — Choice between civil action and criminal prosecution in terms of s 11(1) — Party seeking to recover arrear maintenance entitled to choose remedy she considers more efficacious, regardless of any supposed advantages other remedy might have for other party. C

Maintenance — Maintenance court — Powers of — Maintenance Act 23 of 1963, s 1, read with s 5(4) — Semble: Maintenance court having power to include in order provision for maintenance to be increased annually by amount equal to percentage increase in rate of inflation — Such order would specify amount in question by definition of 'maintenance order' D in s 1, on basis of maxim id certum est quod certum reddi potest.

Headnote : Kopnota

In an appeal to a Provincial Division from a decision in a magistrate's court granting judgment in favour of the respondent in an action against the appellant for the payment of arrear maintenance and other amounts due in terms of an agreement between the parties, which agreement the maintenance E court had purported to make an order of court in terms of s 5(4) of the Maintenance Act 23 of 1963, the appellant contended that the respondent had had a choice of remedies for the enforcement of her claim for arrear maintenance, namely a civil action or a criminal prosecution in terms of s 11(1) of the Act, and that the appellant had been prejudiced by her failure to institute a prosecution because he had thereby been deprived F of a defence in terms of s 11(3) of the Act or the possible advantage of having the criminal proceedings converted into an enquiry under s 5.

Held, that, even if the respondent had had a choice of remedies, she was perfectly entitled to choose the one which she considered the more efficacious, regardless of any supposed advantages which the other remedy might have had for the appellant. (At 497C-D, read with 497A-B.) G

Semble: It is competent for a maintenance court, when making a maintenance order in terms of the definition of 'maintenance order' in s 1 read with s 5(4) of the Maintenance Act, to include a provision for the specified amount of maintenance to be increased annually by an amount equal to the percentage increase in the rate of inflation during the preceding 12-month period. Such an order would specify the amount in question, as required by H s 5(4) of the Act, on the basis of the maxim id certum est quod certum reddi potest. (At 495C/D-F, paraphrased.)

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Blaikie-Johnstone v P Hollingsworth (Pty) Ltd and Others 1974 (3) SA 392 (D)

Davis v Davis 1993 (1) SA 621 (C) I

Hoffmann v Hoffmann 1964 (1) SA 746 (C)

Kirk v Kirk 1970 (1) SA 128 (R)

Schmidt v Schmidt 1996 (2) SA 211 (W)

Swadif (Pty) Ltd v Dyke NO 1978 (1) SA 928 (A)

Trust Bank of Africa Ltd v Dhooma 1970 (3) SA 304 (N)

Zygos Corporation v Salen Rederierna AB 1984 (4) SA 444 (C). J

1997 (1) SA p492

Statutes Considered

Statutes

The following statute was considered by the Court: A

The Maintenance Act 23 of 1963 (prior to 1991 amendment), ss 1, 5, 5(4), 11(1) and (3): see Juta's Statutes of South Africa 1991 vol 5 at 2-144, 2-146.

Case Information

Appeal from a decision in a magistrate's court. The facts appear from B the reasons for judgment.

H P Jefferys for the appellant.

A G Jeffrey for the respondent.

Cur adv vult.

Postea (September 9). C

Judgment

Howard JP:

The parties to this appeal were previously married to each other and were divorced by an order of this Court on 23 September 1985. In terms of that order the respondent (the wife) was awarded the D custody of four minor children of the marriage and the appellant (the husband) was ordered to pay maintenance for the appellant at the rate of R600 per month and for the children at the rate of R300 per month per child.

During March 1988 the respondent made a complaint to a maintenance officer as envisaged by s 4(1) of the Maintenance Act 23 of 1963 E ('the Act'). This gave rise to negotiations which resulted in the parties concluding a written agreement on 30 March 1988, the material terms of which were the following:

(a)

In full and final settlement of all claims which the respondent had or in the future might have against him, the appellant agreed to F pay inter alia the balance due to the United Building Society in respect of the mortgage bond registered over the respondent's immovable property situated at 3 Wimbledon Place, Durban North.

(b)

The appellant undertook to pay the respondent's monthly petrol account up to an amount of R80 per month. G

(c)

The appellant agreed to pay, in respect of the four minor children:

(i)

maintenance at the rate of R250 per month per child, which amount

'shall be reviewable by the parties on 1 October 1988, and which maintenance shall be increased annually with effect from 1 October 1989 H by an amount equal to the percentage increase in the rate of inflation during the preceding 12-month period';

(ii)

all reasonable medical and allied expenses, including medical aid surcharges.

On 30 March 1988, acting in terms of s 5(4)(b) of the Act and in accordance with the appellant's written consent as contemplated by I s 5(7), the maintenance court purported to make a maintenance order in favour of the respondent and the children in substitution of the order of this Court dated 23 September 1985. Instead of specifying the sums of money to be paid as maintenance, the order reads 'see annexure', the annexure thereto being the parties' written agreement of the same date. J

1997 (1) SA p493

Howard JP

On 9 October 1991 the respondent instituted action...