087 822 1639
Skip to content 087 822 1639
This case was seen to be heard prior to the enactment of the current Maintenance Act, 99 of 1998. As such, reference made by the case, will refer to the previous Maintenance Act, 23 of 1963.
In the case, it was stated that the intention of the Maintenance Act 23 of 1963 is clearly that a Maintenance Enquiry should be held, with an appropriate procedure, in Order to provide a needy mother and her children, if they exist, with the necessary support, whilst doing so with as little expense as possible.
In interpreting Sections 5 (4), (5) and 11 of the Act, the Court found that the power to make an Order for Costs cannot be read into the Act where it has not been expressly provided for and a Maintenance Officer in the Maintenance Court cannot therefore make an Order for Costs.
The parties were divorced on 25th March 1982 in the Free State Division of the High Court, with a Deed of Settlement, among other provisions, being made an Order of Court.
Certain provisions included that the Defendant would be liable for maintenance to be made personally to the Plaintiff at the address furnished by her to the Defendant.
The Maintenance was to be payable until the death or remarriage of the Plaintiff.
In addition to the Maintenance the Defendant undertook to pay all medical, dental, and ophthalmic expenses of the Plaintiff for as long as he remains a member of a medical fund, which membership shall not be terminated without good and sufficient reasons.
The Defendant undertook to pay R5,000 to the Plaintiff, from the sale of the marital home, said sale to occur by 1st March 1983.
The Defendant further undertook to cede to the Plaintiff the life insurance policies currently held by him, and the Plaintiff would be entitled to payment from the policies should the Defendant die before the Plaintiff or before the Plaintiff’s remarriage.
The Defendant undertook to pay all premiums on the policies, and to provide proof of payment of premiums if requested, and proof that the said policies have been ceded to the Plaintiff. This was done with the provision that should the Plaintiff die before the Defendant; the policies would revert to the Defendant.
On 16th February 1983, the Defendant, now Applicant, in terms of Section 4 (1)(b) of the Maintenance Act 23 of 1963, applied for the rescission of the abovementioned provisions of the Settlement Agreement after remarrying, and now having further dependants, rendering him incapable of meeting the above provisions.
In the Hearing for the Rescission Application, the Applicant withdrew his Application after having been informed that the Maintenance Court did not have the power to rescind the mentioned Orders and that he should apply to the High Court for that purpose.
The Respondents’ Attorney then requested an Order for Costs against the Applicant. This Application was refused by the Maintenance Officer, with the Respondents then appealing against the refusal to grant costs.
The central question before the Court was deemed to be whether or not the Officer, who was to conduct the Maintenance Enquiry, had the power to make an Order for Costs.
If this was the case and the Maintenance Officer possessed such power, then the scenario was clearly a case where they ought to have made an Order for Costs against the Applicant.
The Court then ruled that a distinction must be made between the proceedings in a Maintenance Court and those that followed when an Appeal is lodged against a decision made by such Maintenance Officer.
The Court went on to find that Section 7 of the Maintenance Act 23 of 1963 allowed for an Order made in the Maintenance Court to be appealed, and Rule 5(5) of the Regulations issued under said Act specifically stated that as long as the Appeal is in proceedings as an Appeal, then they were civil proceedings, where the Courts could make an Order for Costs as appropriate.
The case of Govender v Manikum 1981 (1) SA 1178 (N) at 1184D-F, was referenced, where it had been said that in a number of cases it had been held that costs can be awarded against an unsuccessful litigant in a Maintenance Appeal.
However, in Nel v Nel 1960 (4) SA 96 (N), the Courts had drawn a distinction between the case of a successful husband and a successful wife on Appeal.
Nel v Nel saw that in the case of the successful husband, there are cases which have held that the husband should not be awarded a Cost Order where such an Order might cause the wife to become seriously depleted of money or destitute and thus be reduced to the very state which the proceedings were designed to relieve.
Reference was made to the cases of Campbell v Campbell 1956 (3) SA 234 (N) at 238; Steinmann v Steinmann 1948 (3) SA 930 (N) at 936.
In the case of the successful wife however, no such considerations are applicable and the wife should be awarded Costs of Appeal if successful.
It was the view of the Court, in the current situation, that the correct approach – which the Court should ideally adopt – is that there is nothing in the Act which interferes with the discretion vested in the Court on Appeal.
However, in the exercise of that discretion and because of the special nature of a Maintenance Enquiry, the Court will consider wider matters than those which it would consider in an Ordinary Civil Appeal before deciding what Order to make with regard to costs.
This included the facts that the Attorney for the Respondents had appeared and argued all the points that could be made for their case, but in light of the fact that there was no appearance for the Applicant, who had also highlighted the strong points in his own case.
The Applicant also stated that he could find no decision where an Order for Costs had been made in the Maintenance Court.
The Court therefore aligned itself with the decision in the case of Kruger v Ferreira 1979 (1) SA 915 (NK) at 916D, were it was held that “That an enquiry under Section 4 of the Maintenance Act (23 of 1963) creates a procedure which is neither a civil nor criminal case.”
The Respondent, now Appellant, argued that though neither the Act – nor those Rules issued under it – provided for a Cost Order in the Maintenance Court, the provision of a Cost Order is included in such an Order by implication, especially where provision is made for legal representation.
The Court did notice that when examining the purpose of the Maintenance Act, it is clear that Section 5(4) of the Act allows the Maintenance Officer only to make the following Orders:
“(a) In the case where no Maintenance Order is in force, to issue an Order against a person proven to be legally obliged to maintain another, for payment during the period and at the times and to the Officer, organisation or institution and in the manner determined in the Order of such sums for the Maintenance of that other person;
(b) In the case where a Maintenance Order is in force, to issue the Order referred to in paragraph (a) in substitution of that Maintenance Order or he may rescind that Maintenance Order;
(c) No Order may be issued.”
The Court therefore found that no Order for Costs is included therein at all, and if such an Order were made, it would be difficult to enforce, whereas Rule 6 specifically provides that an Order under Section 11(1) of the Act shall be executed as if it were a civil judgment of a Magistrate’s Court.
The Court therefore came to the opinion, that the intention of the Act is clearly that an Enquiry held to provide the mother and her children with the necessary means of support with the minimum of expense attached thereto.
Likewise, the penal provision in Section 11 of the Act also indicates that the procedure is sui generis and that an Order for Costs does not belong in it, as applicable in civil trials.
In view of all the above provisions, the Court stated that this was not a case where an authority to make an Order for Costs can be read in where it is not expressly provided, with a Maintenance Officer in the Maintenance Court not being able to make an Order for Costs.
The Applicant, who did not appear, incurred no costs in connection with the Appeal. Consequently, only the Appeal is dismissed.
In short, the Court found that a Maintenance Officer may not make a Cost Order.
Whilst circumstances have changed, it does appear that on a successful Application, a woman may be able to claim costs from the Respondent, though with the advances of time, this may no longer be the case of only women benefitting.
It should further be noted that the Maintenance Act in casu has been repealed, and has been replaced with the Maintenance Act 99 of 1998, which likewise is silent with regards to the provision of Cost Orders to legal costs in Maintenance Matters.
It is therefore suggested that the Maintenance Act be amended to add legal certainty to the query as to the situations when Costs may be requested in the Maintenance Court, or in Maintenance Matters in general.
Copyright © 2026 Martin Vermaak Attorneys. All rights reserved.
Terms of Use Privacy Policy
