Muslim Marriages South Africa – Rights Children Advocate Abduroaf

Posted on 11 February 2025 by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Cape Town.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Cape Town
Whether you claim child maintenance in Cape Town, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Cape Town.
The maintenance scenario – Cape Town South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
The Child is seven years old and attends school in Cape Town
The child is cared for by the mother who works in Cape Town
The mother works and earns a Salary of R 10 000
The father sees the child every second weekend. He also lives and works in Cape Town
The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
The father earns a reasonable salary and can afford the R 20 000 – 00 per month
The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Cape Town, it would be the maintenance court in Cape Town. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Cape Town, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Cape Town Maintenance Court?
Once you have been notified of the maintenance court date by the Cape Town Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Cape Town?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Cape Town Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Cape Town Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Cape Town, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

What do I do if I am not happy with the maintenance court judgment? Is it possible to appeal it? If yes, what are the steps and laws involved?
Child maintenance or child support is the right of every child. It is not only a legal right, but a moral duty on all parents to adequately care and provide for their children. Unfortunately, not all parents uphold their duty and responsibility to adequately maintain their offspring. This is a very sad reality. If this is the case, a parent having primary care needs to approach the Maintenance Court for a Maintenance Order against the other parent. This would force the parent neglecting his or her child to pay child support. You may also consider reading the following articles on maintenance court appeals: What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision? Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Options parents have when it comes to claiming and enforcing child maintenance orders

If a maintenance order has been made, and a parent against whom the order was made does not comply with its provisions, then the law would step in. A parent having primary care can follow the civil route and attach the other parent’s salary, property etc. Or the criminal route can be followed where the other parent faces possible imprisonment. However, what does a parent do, if a Maintenance Order has been granted, and he or she is not happy with it? This is what this article deals with – Appealing maintenance orders granted by the Maintenance Court. We are not dealing with Maintenance Orders that were granted by the Divorce Court (High Court or Magistrates’ Court).

How are Maintenance Orders made in the maintenance court?

A parent would apply for a maintenance order at the Maintenance Court. The court would then notify the other parent to appear in the Maintenance Court. Various Maintenance Courts follow different procedures in notifying parents. Some use subpoenas, other send letters, and others use emails. Thereafter, the parents would first meet with a maintenance officer to discuss the complaint and an enquiry is held. The parents would present all their income and expenses and the maintenance officer would try to resolve the matter. Resolving the matter would be first prize for both parents. However, matters are not always resolved at this first sitting. Therefore, in short, Maintenance Orders are made as follows:

The parties agree on a maintenance order with the assistance of a Maintenance Officer, and it is made an order of Court. A consent form is therefore signed and made an order of Court. Everyone is happy; or
The parties cannot agree on a maintenance order, and the court decides what the terms of the order should be. This is the long route, but necessary if one or both parties are being unreasonable.

The parent is unhappy with the maintenance court’s decision

If a parent is not happy with the order the court made, then he or she may appeal the Maintenance Order. Basically, what this means, is that a higher court would decide whether the maintenance court made the correct decision. In this case, the higher court would be the High Court. If the maintenance matter was heard in Cape Town, it would then be the Western Cape High Court. As you would see below, the procedure is cumbersome. The entire court record would have to be typed out and read by the High Court Judges.

Procedures to follow when wanting to appeal a Maintenance Court decision

When appealing a maintenance court decision, one needs to look at the Magistrates’ Court Rules, as well as the High Court Rules. This is so as the maintenance matter was heard by a magistrate and the court hearing the appeal is the High Court. We inserted both sets of rules below which you can follow should you wish to appeal a maintenance court decision.

Magistrates’ Court Rule on Appeals

Appeals in civil cases

(1) Upon a request in writing by any party within 10 days after judgment and before noting an appeal the judicial officer shall within 15 days hand to the registrar or clerk of the court a judgment in writing which shall become part of the record showing-

the facts he or she found to be proved; and
his or her reasons for judgment.

(2) The registrar or clerk of the court shall on receipt from the judicial officer of a judgment in writing supply to the party applying therefor a copy of such judgment and shall endorse on the original minutes of record the date on which the copy of such judgment was so supplied. (3) An appeal may be noted within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer. (4) An appeal shall be noted by the delivery of notice, and, unless the court of appeal shall otherwise order, by giving security for the respondent’s costs of appeal to the amount of R1000: Provided that no security shall be required from the State or, unless the court of appeal otherwise orders, from a person to whom legal aid is rendered by a statutorily established legal aid board. (5) Money paid into court under subrule (4) and outstanding for more than three years, may be paid into the State Revenue Fund, after three months’ notice of such intention in writing has been given to the parties concerned, whereafter the parties concerned may apply for a refund of the amount paid into the said Fund. (6) A cross-appeal shall be noted by the delivery of notice within 10 days after the delivery of the notice of appeal. (7) A notice of appeal or cross-appeal shall state- (a) whether the whole or part only of the judgment is appealed against, and if part only, then what part; and (b) the grounds of appeal, specifying the findings of fact or rulings of law appealed against. (8) (a) Upon the delivery of a notice of appeal the relevant judicial officer shall within 15 days thereafter hand to the registrar or clerk of the court a statement in writing showing (so far as may be necessary having regard to any judgment in writing already handed in by him or her)-

the facts he or she found to be proved;
the grounds upon which he or she arrived at any finding of fact specified in the notice of appeal as appealed against; and
his or her reasons for any ruling of law or for the admission or rejection of any evidence so specified as appealed against.

(b) A statement referred to in paragraph (a) shall become part of the record. (c) This rule shall also, so far as may be necessary, apply to a cross-appeal. (9) A party noting an appeal or a cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary. (10) Subject to rule 50 of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa, the registrar or clerk of the court shall, within 15 days after he or she receives notice that an appeal has been set down for hearing, transmit to the registrar of the court of appeal the record in the action duly certified. (11) (a) A respondent desiring to abandon the whole or any part of a judgment appealed against may do so by the delivery of a notice in writing stating whether he or she abandons the whole, or if part only, what part of such judgment. (b) Every notice of abandonment in terms of paragraph (a) shall become part of the record. (12) Where the parties agree in terms of section 82 of the Act that the decision of the court shall be final, either party may lodge the memorandum of such agreement with the registrar or the clerk of the court, and such memorandum shall thereupon become part of the record in the action or matter. Now let us refer you to the relevant sections of the High Court Rules.

High Court Rule in relation to Appeals from the Maintenance Court

50 Civil Appeals from Magistrates’ Courts (1) An appeal to the court against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of such appeal, and unless so prosecuted it shall be deemed to have lapsed. (2) The prosecution of an appeal shall ipso facto operate as the prosecution of any cross-appeal which has been duly noted. (3) If a cross-appeal has been noted, and the appeal lapses, the cross-appeal shall also lapse, unless application for a date of hearing for such cross-appeal is made to the registrar within twenty days after the date of the lapse of such appeal. (4) (a) The appellant shall, within 40 days of noting the appeal, apply to the registrar in writing and with notice to all other parties for the assignment of a date for the hearing of the appeal and shall at the same time make available to the registrar in writing his full residential and postal addresses and the address of his attorney if he is represented. (b) In the absence of such an application by the appellant, the respondent may at any time before the expiry of the period of 60 days referred to in subrule (1) apply for a date of hearing in like manner. (c) Upon receipt of such an application from appellant or respondent, the appeal shall be deemed to have been duly prosecuted. (5) (a) Upon receipt of such application, the registrar shall forthwith assign a date of hearing, which date shall be at least 40 days after the receipt of the said application, unless all parties consent in writing to an earlier date: Provided that the registrar shall not assign a date of hearing until the provisions of subrule (7) (a), (b), and (c) have been duly complied with. (b) The registrar shall forthwith give the applicant written notice of the date of hearing, whereupon the applicant shall forthwith deliver a notice of set down and in writing give notice thereof to the clerk of the court from which the appeal emanated. (6) A notice of set down of a pending appeal shall ipso facto operate as a set down of any cross-appeal and vice versa. (7) (a) The applicant shall simultaneously with the lodging of the application for a date for the hearing of the appeal referred to in subrule (4) lodge with the registrar two copies of the record: Provided that where such an appeal is to be heard by more than two judges, the applicant shall, upon the request of the registrar, lodge a further copy of the record for each additional judge. (b) Such copies shall be clearly typed on foolscap paper in double spacing, and the pages thereof shall be consecutively numbered and as from second January 1968, such copies shall be so typed on A4 standard paper referred to in rule 62 (2) or on foolscap paper and after expiration of a period of twelve months from the aforesaid date on such A4 standard paper only. In addition every tenth line on each page shall be numbered. (c) The record shall contain a correct and complete copy of the pleadings, evidence and all documents necessary for the hearing of the appeal, together with an index thereof, and the copies lodged with the registrar shall be certified as correct by the attorney or party lodging the same or the person who prepared the record.

(d) The party lodging the copies of the record shall not less than fifteen days prior to the date of the hearing of the appeal also furnish each of the other parties with two copies thereof, certified as aforesaid. (8) (a) Save in so far as these affect the merits of an appeal, subpoenas, notices of trial, consents to postponements, schedules of documents, notices to produce or inspect, and other documents of a formal nature shall be omitted from the copies of the record prepared in terms of the aforegoing subrule. A list thereof shall be included in the record. (b) (i) With the written consent of the parties any exhibit or other portion of the record which has no bearing on the point in issue on appeal may be omitted from the record. (ii) If a portion has been so omitted from the record, the written consent signed by or on behalf of the parties and noting the omission shall be filed, together with the incomplete record, with the Registrar. (iii) Notwithstanding the provisions of subparagraphs (i) and (ii) the court hearing the appeal may at any time request the complete original record and take cognisance of everything appearing therein. (c) When an appeal is to be decided exclusively on a point of law, the parties may agree to submit such appeal to the court in the form of a special case, as referred to in rule 33 of the Rules, in which event copies may be submitted to the court of such portions only of the record which in the opinion of the parties may be necessary for a proper decision of the appeal: Provided that the court hearing the appeal may request that the entire original record of the case be placed before the court. (9) Not less than fifteen days before the appeal is heard the appellant shall deliver one copy of a concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal, as well as a list of the authorities to be tendered in support of each point, and not less than ten days before the appeal is heard the respondent shall deliver a similar statement. Three additional copies shall be lodged with the registrar in each case. (10) Notwithstanding the provisions of this rule the judge president may, in consultation with the parties concerned, direct that a contemplated appeal be dealt with as an urgent matter and order that it be disposed of, and the appeal be prosecuted, at such time and in such manner as to him seems meet.

Final Words on Appeals in Maintenance Court Matters

From the above, it is clear that one does not have to just accept a decision of a Magistrate in a Maintenance Matter. There is always the option to appeal his or her decision. You may consider reading the following articles on maintenance court appeals: What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision? Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

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