Soller v Maintenance Magistrate, Wynberg, and Others

• Jurisdiction: South Africa
• Judgment Date: 04 November 2005
• Citation: 2006 (2) SA 66 (C)

Soller v Maintenance Magistrate, Wynberg, and Others
2006 (2) SA 66 (C)

2006 (2) SA p66

Citation	2006 (2) SA 66 (C)
Case No	10909/04
Court	Cape Provincial Division
Judge	Van Zyl J
Heard	October 25, 2005
Judgment	November 4, 2005
Counsel	M Abduroaf (with C O'Connor) for the applicant.; Third respondent in person.; No appearance for the first, second and fourth respondents.

Flynote : Sleutelwoorde B

Pension — Benefits — Annuity — Order securing payment of future maintenance for minor child from parent's annuity — Which courts competent to make such order — Both High Court and maintenance court having C jurisdiction to make orders relating to periodic payment of future maintenance from pension funds, annuities and such, including orders in form of prohibitory interdict or exceeding monetary jurisdiction of magistrate's court — High Court interdicting holder of father's annuity from making payment to him from annuity until child becoming self-supporting, except with leave of child's mother or maintenance court — Court also ordering payment on annual D rather than monthly basis.

Maintenance — For children — Securing of payment of future maintenance — Order for securing such payment from parent's annuity — Which courts competent to make such order — Both High Court and maintenance court having jurisdiction to make orders relating to periodic payment of E future maintenance from pension funds, annuities and the like, including orders in form of prohibitory interdict or exceeding monetary jurisdiction of magistrate's court — High Court interdicting holder of father's annuity from making payment to him from annuity until child became self-supporting, except with leave of child's mother or maintenance court — Court also ordering payment on annual rather than monthly basis. F

Headnote : Kopnota

It is not only the High Court but also the maintenance court, which is empowered to make orders relating to the periodic payment of future maintenance from pension funds, annuities or the like, including orders in the form of a prohibitory interdict or exceeding the monetary jurisdiction of the magistrate's court. In casu, the G maintenance court having already ordered payment of future maintenance for the minor child from his father's annuity, the High Court interdicted the holder of the father's annuity from making any payments to him from the annuity until the minor child became self-supporting, except with the leave of the child's mother or the maintenance court. It also ordered that the payment be made on an annual rather than a monthly basis. (Paragraphs [30] and [8] at H 75J - 76B and 69E - G.)

Cases Considered

Annotations

Reported cases I

Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111): referred to

Eagles Landing Body Corporate v Molewa NO and Others 2003 (1) SA 412 (T): referred to

Electrical Contractors' Association (South Africa) and Another v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T): referred to

Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T): referred to J

2006 (2) SA p67

Ex parte Nell 1963 (1) SA 754 (A): referred to A

Family Benefit Friendly Society v Commissioner for Inland Revenue and Another 1995 (4) SA 120 (T): referred to

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): approved

In re Moatsi se Boedel 2002 (4) SA 712 (T): referred to

J T Publishing (Pty) Ltd and Another v B Minister of Safety and Security and Others 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599): referred to

Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A): referred to

Magewu v Zozo and Others 2004 (4) SA 578 (C) ([2004] 3 All SA 235): followed

Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) (2000 (7) BCLR 713): C referred to

Mngadi v Beacon Sweets & Chocolates Provident Fund and Others 2004 (5) SA 388 (D) ([2003] 2 All SA 279): followed

Mohamed and Another v President of the Republic of South Africa and Others 2003 (4) SA 64 (C): referred to D

Narodien v Andrews 2002 (3) SA 500 (C): referred to

South African Mutual Life Assurance Society v Anglo-Transvaal Collieries Ltd 1977 (3) SA 642 (A): referred to

Zantsi v Council of State, Ciskei, and Others 1995 (4) SA 615 (CC) (1995 (10) BCLR 1424): referred to.

Foreign cases E

Nelles v Ontario (1989) 60 DLR (4th) 609 (SCC): approved.

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 28: see Juta's Statutes of South Africa 2004/5 vol 5 at 1 - 139.

The Maintenance Act 99 of 1998: see Juta's Statutes of South Africa 2004/5 vol 5 at 2 - 175. F

The Pension Funds Act 24 of 1956, s 37A(1): see Juta's Statutes of South Africa 2004/5 vol 5 at 4 - 34.

Case Information

Application for certain declaratory and other relief relating to the enforcement of an order for the maintenance of a minor child. The facts appear from the reasons for judgment. G

M Abduroaf (with C O'Connor) for the applicant.

Third respondent in person.

No appearance for the first, second and fourth respondents.

Cur adv vult. H

Postea (November 4).

Judgment

Van Zyl J:

Introduction I

[1] The applicant and the third respondent, who were previously married to each other, are the parents of a minor child. The child has been in the custody of the applicant since 3 February 1994, when their marriage was dissolved, with incorporation of the terms of an agreement, in the Witwatersrand Local Division of the High Court under case No 4824/93 J

2006 (2) SA p68

Van Zyl J

In terms of para 3 of the agreement the third respondent was ordered to pay maintenance for the child in A the amount of R750 per month. Paragraph 4 provided that he also pay all reasonable medical, dental, hospital, optical and pharmaceutical expenses in respect of the child, while para 5 made provision for payment of the costs of the child's education, including extramural expenses. B

[2] On 3 May 1995 the agreement was amended in terms of a deed of settlement which was made an order of this Court under case No 7559/94. Paragraph 7.1 thereof provided that the maintenance payable for the child would remain R750 per month, while paras 7.2, 8 and 9 respectively dealt with the third respondent's obligation to pay for the child's schooling, extramural activities and medical expenses. C

[3] On 10 November 1999 the third respondent consented, in terms of s 5(7) of the previous Maintenance Act 23 of 1963, to increase the amount of maintenance payable in respect of the child from R750 to R2 500 per month as from 1 December 1999. On the same D day, under case No 0597017162, the first respondent granted a maintenance order in such terms, subject thereto that it amended only para 7.1 of the agreement of 3 May 1995.

[4] As a result of the third respondent's continual E defaulting on his obligation to pay the maintenance aforesaid, the applicant approached the first respondent to compel the fourth respondent to pay the said maintenance from the third respondent's annuity. On 19 February 2004 the first respondent granted an ancillary order, in terms of s 16(2) of the current Maintenance Act 99 of 1998. This required the fourth F respondent to deduct the amount of R2 500 per month from the third respondent's annuity as from 1 March 2004 and to pay such amount to the applicant.

[5] As a result of the third respondent's withdrawing substantial amounts from his annuity, the applicant feared that the funds available in the annuity would soon be depleted. This would G prejudice her right to future maintenance payments. She thereupon approached the first respondent with an application to interdict the fourth respondent from making any payments from the annuity to the third respondent until such time as the child became self-supporting. In addition she sought an order requiring the fourth respondent to pay the maintenance on an annual basis, namely H R30 000 per year instead of R2 500 per month. The first respondent dismissed the application on the basis that the maintenance court did not have the power to grant a prohibitory interdict of this nature and, in addition, that it might be exceeding its monetary jurisdiction.

[6] The applicant thereupon approached this Court for relief. I The notice of motion sought an order declaring that the maintenance court has unfettered authority to grant, execute and enforce maintenance orders of any kind, including the authority to issue prohibitory interdicts as aforesaid. In the alternative the applicant sought that the first respondent's order dated 19 February 2004 (para [4] above) be rescinded and J

2006 (2) SA p69

Van Zyl J

that the fourth respondent be interdicted from making any payments whatever to the third A respondent from the said annuity until such time as the child becomes self-supporting.

[7] On 23 June 2005 my learned Brother Moosa J granted an order interdicting the fourth respondent from making any payment in excess of R100 000 to the third respondent pending the finalisation of the present application. In this regard he specified B dates for the filing of answering and replying affidavits and ruled that heads of argument be filed in terms of the rules of this Court. He then postponed the matter to the semi-urgent roll on 25 October 2005, reserving the question of costs. C

[8] When the matter came before me on 25 October 2005, the third respondent had filed an answering affidavit and the applicant had replied thereto. Only the applicant's legal representatives, Adv M Abduroaf and Adv C O'Connor, filed heads of argument and appeared on behalf of the applicant. No heads were filed for the third respondent and there was no appearance on his behalf. D After reading the papers...