Our Services

Our Services

July 24, 2021

Maintenance and major children – when does the duty to support children end?

 

By Sasha Goldstein Attorney

In South African law, the term maintenance covers a parent’s duty to support their child/children. The responsibility extends to, among other things, accommodation, food, clothes, medical and dental attention, and all other necessities of life on a scale in line with the parents’ social position, lifestyle, and financial resources[1].

South African law defines a child as a minor or a person under 18 years old. Once a child reaches the age of majority, 18 years of age, they are no longer considered a child/minor and are now an adult in terms of the law. However, most parents ask when they must stop paying maintenance for their child. For example, surely a 19-year-old, who is in her first years of studying at a university, taking a gap year, or has just entered the job market, but still living at home, cannot be deemed self-sufficient?

The law says that a parent’s duty to support a child does not cease when they reach a particular age but usually does so when they become self-supporting[2]. What does our law say if there is no current maintenance order in place, and a parent wishes to seek maintenance from the other parent for a child who has reached the age of majority? The major child has the onus to claim maintenance from the non-paying parent. In other words, the adult child must take their parent to court unless there already is a court order in place which the non-paying parent has breached.

Section 6 of the Divorce Act 70 of 1979 concerns safeguarding children’s interests when their parents divorce. It refers to ‘provisions made or contemplated with regard to welfare of any minor or dependent child of the marriage’ and provides that a court granting a decree of divorce may make any order it may deem fit in respect of the maintenance of a dependent child of the marriage[3]

The duty to maintain children may further, in certain circumstances, include the duty to provide tertiary education. However, this will depend on the parents’ financial circumstances and the child’s academic aptitude[4].

Further, the fact that a child may be capable of supporting themselves does not preclude the parent’s duty to still maintain such child. The fact that a child is working does not mean that he or she is necessarily completely self-supporting, in such circumstances continued but reduced support / maintenance may be necessary in accordance with the family’s standard of living.[5]

In addition, when a child ceases to be self-supporting for reasons such as ill health or disability, the duty of support is revived[6]

Thus, in summary, the answer is that a parent’s duty to pay maintenance for their children continues until the child is entirely self-sufficient and not upon the child reaching the age of majority. However, should there be no court order for maintenance already in place, and a child who reaches the age of majority requires maintenance from a parent, the child must claim such maintenance from that parent directly. The other parent, whom the child most likely primarily lives with, cannot apply for maintenance on that major child’s behalf.

A child may approach the grandparents for financial help if his parents can’t pay maintenance.  See this article.


[1] Voet Commentarius ad Pandectas 25 3 4; Van Leeuwen Censura Forensis 1 1 10 5; Du Toit v Du Toit (1991) 4 All Sa 716 (O), 1991 (3) SA 856 (O) 860, 861

[2] Sikatele v Sikatele (1996) 2 All SA 95 (TK)

[3] Clark, D. B. (2016). Handbook of the South African Law of Maintenance. Johannesburg: LexisNexis

[4] Clark, D. B. (2016). Handbook of the South African Law of Maintenance. Johannesburg: LexisNexis.

[5] Gliksman V Talekinsky (1955) 4 All SA 306 (W) 470

[6] Ex parte Pienaar (1964) 2 All SA 62 (T), 1964 (1) SA 600 (T)

July 21, 2021

CSOS dispute resolution procedures v a Court application


Do you live in a Community Living setup such as a Sectional Title Scheme, Homeowners Association or Share Block? 

There are advantages to community living, but disagreements invariably arise amongst neighbours relating to noise nuisance, pets, and the like. 

Until recently, if you could not resolve these difficulties amicably, you had to resort to the police, your local authority, or the courts to come to your assistance. 

The introduction of the Community Schemes Ombud Services Act (“the CSOS Act”) provides a “mechanism for the expeditious, informal and cost-effective resolution of community scheme disputes via an Ombud, who has been given wide inquisitorial powers whereby such disputes can be resolved as informally and cheaply as possible by means of qualified conciliators and adjudicators, without the need for legal representation, save in certain limited circumstances”. This quote is from Judge Sher in Heathrow Property Holdings No 33 CC and Others v Manhattan Place Body Corporate and Others (7235/2017) [2021] ZAWCHC 109 (1 June 2021) reported here. 

The Court heard an urgent application concerning the reasonableness of a body corporate’s conduct rule prohibiting short-term letting and the validity of the trustees’ decision to install a biometric access control system. 

The judge held that the application constituted an egregious abuse of the process of this Court. He concluded that the Applicants should have adopted the dispute resolution procedures established by the CSOS Act and not approached the Court. 

The Court disagreed with the Applicant’s argument that the Court had concurrent jurisdiction to hear a Sectional Title dispute and dismissed the application with an order for punitive costs. It found that the CSOS Act promoted quick and affordable access to justice to those who live in sectional title schemes which cannot afford to litigate in the courts. It concluded that: 

1.    Allowing litigants to proceed directly to a court instead of CSOS would undermine the administrative and quasi-judicial processes which have been provided for in the CSOS Act and would result in forum-shopping by better-resourced litigants; and

 

2.     Allowing litigants to bypass the mechanisms provided for in the CSOS Act to resolve disputes would enable them to avoid the conciliation process provided for by it. This would defeat the legislative purpose of having community scheme disputes resolved, if possible, by way of an informal, expeditious and cheap mechanism, instead of via the courts. 

Unhappy owners that live in a community scheme are advised not to approach a court instead of CSOS, save in exceptional circumstances.


July 14, 2021

Under what circumstances can a Defendant approach a court for an order for security for costs?


 

By Dean Brainin, candidate attorney. Supervised by Roy Bregman.

The Rules of the High Court and the Magistrates’ Court allow a Defendant to apply to Court to compel a Plaintiff to provide security for costs, in limited circumstances. The common law and the Close Corporation Act also give a Defendant that limited right.

The rationale is that Plaintiff would be unable to satisfy the costs order if Defendant succeeds with its defence and the Court dismisses the claim against Plaintiff with costs.

Such security for costs can take the form of a bank guarantee, bond or an insurance policy. Defendant has the onus to satisfy a Court that it is appropriate to order Plaintiff to provide security.

A party may only make an application for security of costs once legal proceedings have commenced, and Defendant must bring the application “as soon as practicable after the commencement of proceedings”. The timeframe as to what constitutes “as soon as practicable” is at the Court’s discretion.

In Ecker v Dean 1937 AD 254, the Court confirmed that it had inherent jurisdiction to stop or prevent a vexatious action as an abuse of the process of the Court by ordering the vexations litigant to give security for the costs of the other side.

Over time, the grounds upon which a party could rely to obtain an order for security of costs have become more stringent. In Boost Sports Africa (Pty) Ltd v The South Africa Breweries (Pty) Ltd [2015] ZASCA 93, the Court found that it is not sufficient to demonstrate that a Plaintiff will be unable to satisfy a possible cost order against it. The Court must also be confident that the main action or application is (1) vexatious, (2) reckless, or (3) amounts to an abuse of the process of the Court.

Various Courts have defined the terms “vexatious”, “abuse”, and “frivolous”:

·         “vexatious” as “frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant”.

 

·         “an action is vexatious and an abuse of the process of court inter alia if it is obviously unsustainable. This must appear as a certainty, and not merely on a preponderance of probability”.

 

·         An action is vexatious and frivolous, where on the face of the pleadings it is shown that the action cannot be maintained“.

 

·         “abuse” as “a misuse, and improper use, a use mala fide, a use for an ulterior motive”.

See Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979(3) SA 1331 (W)); African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555(A) and Golden International Navigation SA v Zeba Maritime 2008 (3) SA 10 (C)  

A court will also consider each case independently based on their facts and surrounding circumstances taking into account the interests of justice. See Haitas & Others v Port Wild Props (Pty) Ltd 2011 (5) SA 562 (GSJ).

Moreover, a court has to consider section 34 of the  Constitution, which provides that everyone has the right to have any legal dispute decided in a fair public hearing. The Court must balance the potential injustice to a Plaintiff if it cannot pursue a legitimate claim due to an order requiring it to pay security for costs, on the one hand, against the potential injustice to a Defendant who successfully defends the claim. See Sherenisa and Others v Minister of Safety and Security and Another (2394/09) [2012] ZAFSHC 30) and Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (C).

Accordingly, it is not enough that a Plaintiff may not be able to satisfy an adverse costs order granted against it. The Court must still be satisfied that the main action or application is (1) vexatious, (2) reckless, or (3) amounts to an abuse of the process of Court whilst considering Section 34 of  the Constitution.

July 13, 2021

Freedom of testation and our Constitution

 


A will drafted in 1902 created a fideicommissum for three generations. The first generation of heirs included the testator's children, both sons and daughters.  However, the fiduciaries and eventual fideicommissaries were limited to the male descendants in each generation from the second generation. 

In King v De Jager; 2021 (4) SA 1 (CC), the Constitutional Court was called upon to decide whether the exclusion of female grandchildren fell within the definition of freedom of testation or fell foul of section 9 of the Constitution.

After their father died in 2015, female great-grandchildren of the testator went to Court to argue that the terms of the fideicommissum were discriminating based on gender and offended section 9 of the Constitution. This section guarantees equality before the law and freedom from discrimination by private persons.

In our law, a testator can leave his property to anyone he likes. Van den Heever JA stated in Bydawell v Chapman 1953 (3) SA 514 (A) 521E-F: 'Roman-Dutch law recognises as a matter of public interest, transcending the private interests of beneficiaries under a will, that effect should be given to the wishes of a testator … the "interests" of the testator and the public interest demand that effect should be given to a testator's last wishes.'

However, a testamentary provision may not contradict the boni mores / public policy.

The Court reiterated that there is no obligation to bequeath anything to anyone, and testators are free to disinherit any family member. However, the Court found that the condition that upon the death of the last fideicommissaries, the inheritance must go to the male descendants of the testator, was invalid as it discriminated unfairly against the female grandchildren.

July 12, 2021

Under what circumstances can a Defendant request a Plaintiff Company or Close Corporation to furnish security for costs?


By Dean Brainin (Candidate Attorney) and Roy Bregman.

Section 13 of the Companies Act 61 of 1973 (the old Act) and Section 8 of the Close Corporations Act 69 of 1984 (the CC Act), entitle a Defendant to ask a company or Close Corporation as a Plaintiff in litigation to put up security for costs if there is reason to believe that the Plaintiff will not be able to pay the Defendant's costs if it loses an action or application.

The Companies Act 71 of 2008 (the new Act) replaced the old Act and does not contain a provision that allows a Defendant to ask a Plaintiff to provide security for costs. Under what circumstances can a party approach a court to compel a company to furnish security?

In the case of Boost Sports South Africa (Pty) Ltd v South Africa Breweries (Pty) Limited [2015] 3 All SA 255, the SCA set out the factors that determine if a court should order a Plaintiff incola Company to furnish security for costs, namely, if:

·         There is a basis in law to order an incola plaintiff company to furnish security.

·         Defendant fails to demand security expeditiously.

·         The application commits the Plaintiff under oath to a version before the trial.

·         Plaintiff's claim is vexatious, unmeritorious or amounts to an abuse.

·         Under section 34 of the Constitution, Plaintiff's constitutional right will be infringed unless a Court hears the case in a fair and public hearing.

·         There are material disputes which the parties cannot resolve on the papers and without the benefit of oral evidence.

Our courts have enunciated on these principles. In African Farms & Townships v C.T. Municipality 1963 (2) SA 555 (A) the Court stated: "an action is vexatious and an abuse of the process of Court … if it is obviously unsustainable ". In Golden International Navigation S.A. v Zeba Maritime 2008 (3) S.A. 10 (C) the Court posited that action is vexatious and frivolous, "where on the face of the pleadings it is shown that the action cannot be maintained ".

In the case of Telecommunications (Pty) Ltd v Datagenics (Pty) Ltd 2013 (1) S.A. 65 (GNP), the Court held it must apply the common law where the Companies Act did not contain a provision regulating security for costs. Additionally, the Court cannot order South African companies to furnish security purely based on their financial position.  

Section 8 of the CC Act still applies. In the recent case of Fusion Properties 233 CC v Stellenbosch Municipality (932/2019) [2021] ZASCA 10, the SCA addressed the uncertainty concerning an order for security for costs against a Close Corporation.

In this case, Fusion instituted legal proceedings against the Stellenbosch municipality for damages resulting from an alleged breach of contract for the sum of roughly R32 million. Fusion was a company that had no assets. Because of this, the Municipality made an application for security for costs as it believed it had no prospect of recovering their costs of litigation if they were successful in defending the claim brought by Fusion. The High Court ordered Fusion to furnish security for costs of R2 626 431.06 and further ordered that stay of action until Fusion complied with such order. Fusion contested its obligation to provide security for costs.

Fusion disputed the order to furnish security on three grounds, namely:

·         The Municipality did not call for security for costs "as soon as possible after the commencement of the action". 

·         Section 8 of the CC Act deals with security for costs in legal proceedings by Close Corporations.  Fusion argued that no basis existed for the High Court to order that Fusion put up security, even if Defendant believed that Fusion would be unable to satisfy an adverse costs order. 

·         If they were to furnish security, Fusion would be unable to pursue its claim by being denied access to Court in terms of Section 34 of the Constitution.

The High Court rejected all three grounds upon which Fusion relied. The SCA upheld the finding of the lower Court.  The SCA held that it could not ignore Section 8 because Section 13 of the Companies Act 61 of 1973 - the functional equivalent of Section 8 - was not carried over to the current Companies Act 71 of 2008 when the legislature repealed the old Act.

The Fusion case confirms that a Defendant may ask a Close Corporation to put up security when it has insufficient funds or assets to cover the Defendant's costs if a Court grants an adverse cost order against it. However, the Court still has to be satisfied that the main action or application is (1) vexatious, (2) reckless, or (3) amounts to an abuse of the process of the Court.