The Judical Officer - Dec 07 - Joasa.org.za

More documents

Recommendations

Info

48 In Kemp v Kemp 1958 (3) SA 736 (D&CLD) at 738G, Jansen J, pointing out at 738C that there would be no certainty if the order is varied ipso jure by changed circumstances, also held the following: “(at 737H) The true position appears to be that the existence of the duty [to maintain a minor child] is not dependant upon the child being under a certain age, but continues even after majority and remains operative... (at 738 D-E) There seems much to be said for the point of view that once the order is pronounced it has an existence divorced from the fluctuations of the incidence of the common law duty to maintain but that it may be brought into harmony with that duty by the Court at any time. (at 738F-G) But what is the position if the order merely provides for the periodic payment of a sum as maintenance for a child and nothing further? In such a case there is, it is said, an implication in the order that the payment is to cease when the child reaches the age of majority or earlier if he or she begins to earn his or her own living (see Richter). But it would seem undesirable to extend this approach. (at 738H) It would seem that if the order stipulates periodic payment of a fixed sum of money until the child reaches a certain age, there should be no room for an implication that the order will ipso jure cease to operate before that time if the child becomes self-supporting.” Hofmeyer J in S v Richter 1964 (1) SA 841 (O) at 844 G-H expressed the opinion that it is undesirable if it were to be that a parent had to approach the court for a variation of an order when the common law duty to maintain had ceased. It was, in the Court’s view, sufficient if a parent could, by way of a defence, prove that the reason for existence of the order lapsed.
49 In Kanis v Kanis 1974 (2) SA 606 (RAD), it was contended that a parent’s duty to maintain a child ceased automatically upon attaining the age of 18 (i.e. the age of majority at that time in the then Rhodesia). The order did not indicate until what age the maintenance was to be payable. Lewis AJP held at 611E that “…it was for the appellant (person ordered to pay), who now asserts that it should come to an end at the age of 18 years, to have obtained clarification on this from the High Court…” The facts showed that the child was not self-supporting when she reached the aged of 18 years and that the appellant was able to continue maintaining the child. The Court upheld the decision of the Court a quo whereby the appellant was ordered to pay arrear maintenance which, it seems, covered a period after the child turned 18. In the case of Van Wyk v Du Toit and another 1993 (2) SA 781 (O) at 783, it was held “The lapsing of a legal duty to maintain with regard to a child on the basis of becoming self supportive occur ipso iure or by operation of the law. No court order to such effect is required before the duty to maintain ceases. The mere advent of self supportiveness brings it along.” (My translation) Fortunately ,as one would have hoped, the Supreme Court of Appeal had occasion to consider this issue and settle the position. Bursey v Bursey and Another 1999 (3) SA 33 (SCA), Viviers JA authoritatively set the correct approach at 37B-D of the report: “It was next submitted, also on the strength of Richter's case, that John's [The minor child who attained majority after the order was granted] maintenance in terms of the order was payable to the first respondent in her capacity as his custodian so that when this status terminated upon majority the appellant's obligation to pay her either ceased or was henceforth enforceable only by John and not by the first respondent. The maintenance order is, as I have said, ancillary to the common-law duty of support and merely regulates the incidence of this
Page 1 and 2: 1 THE JUDICIAL OFFICER Journal of t
Page 3 and 4: 3 THE JUDICIAL OFFICER - GUIDELINES
Page 5 and 6: 5 (3) POLITICS OF LAW which, in the
Page 7 and 8: . 7 Consequently, full recognition
Page 9 and 10: The Constitution stipulates that *
Page 11 and 12: * the Bill of Rights, as the result
Page 13 and 14: * under the doctrine of parliamenta
Page 15 and 16: 5 5 THE THE SUPREMACY SUPREMACY CLA
Page 17 and 18: 17 such an amendment: contrary to t
Page 19 and 20: 19 * the purpose of this limitation
Page 21 and 22: 21 Section 172(1) of the Constituti
Page 23 and 24: 23 * if a statute prescribes ground
Page 25 and 26: 25 Please note that according to Br
Page 27 and 28: (6) sex; (7) ethnic or social origi
Page 29 and 30: 29 With regard to the mentioned nat
Page 31 and 32: manner. 31 * to affect a person adv
Page 33 and 34: 33 white” males nor women [from a
Page 35 and 36: in terms of the remarked results. *
Page 37 and 38: 37 “In the Public Servant’s Ass
Page 39 and 40: 39 * relates to the onus of PROOF a
Page 41 and 42: 12.1 12.1 Section Section 26(1) 26(
Page 43 and 44: 43 that a human right has been infr
Page 45 and 46: 45 Schwikkard, PJ., Van der Merwe,
Page 47: 47 In the oft quoted case of Richte
Page 51 and 52: 51 JUDICIAL IMMUNITY: THE CIVIL AND
Page 53 and 54: 53 This is just an article to set o
Page 55 and 56: 55 The irregularity in the proceedi
Page 57 and 58: 57 In Moeketsi v Minister van Justi
Page 59 and 60: And: 59 ‘To sum up: In different
Page 61 and 62: 61 it is the existence of mala fide
Page 63 and 64: 63 a sjambok for contempt of court
Page 65 and 66: 65 punishment took place not in ter
Page 67 and 68: 67 in elke saak waarin hulle per ab
Page 69 and 70: 69 There are many aspects that come
Page 71 and 72: 71 delivered the judgment for the m
Page 73: 73 Cases of indecent assault do not

The Judical Officer - Dec 07 - Joasa.org.za

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?