1

IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF JOHANNESBURG WEST

HELD AT ROODEPOORT

Case no: 147/2021

In the matter between

NOLUTHANDO ZAMOKUHLE MABUSE Applicant

And

ABILITY MLAMBO Respondent

JUDGMENT

INTRODUCTION:

[1] This is an application in terms of section 6 (1) (a) of the Maintenance Act 99 of 1998
(“the Act”) for the maintenance of one minor child aged three years old. The parties are
conducting their cases respectively, with Mr Rangoako as the prosecutor in the matter. The
applicant seeks monthly cash maintenance in the amount of R1300-00, as well R1500-00 for
clothing.

[2] The Respondent is offering monthly cash maintenance in the amount of R800-00. At
the commencement of these proceedings, the Respondent was offering R500-00.

FACTS:
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Common cause admitted and undisputed facts.

[3] The Following are facts not in dispute between the parties:

[3.1] The parties are the biological parents to the minor child in this matter.

[3.2] The Applicant is the primary care giver of the said child. The Applicant
receives assistance from the Respondent in the form of a monthly
maintenance cash contribution aforesaid, as well as her biological parents
towards the maintenance of the minor child in this matter, which assistance
caters for the minor child’s monthly groceries. The Applicant also receives a
child support grant in respect of the minor child.

[3.3] The Applicant is a student at South West Gauteng College studying financial
account, through the aid of the National Student Financial Aid Scheme as well
as her biological father.

[3.4] The minor child is attending crèche at Thuthukelani Phambili Day Care 1
(“crèche”). The crèche fee is R350 per month. The Applicant also pays R150-
00 per month in respect of the minor child’s transportation to crèche. Amongst
others, the Applicant further incur monthly expenses in respect of the minor
child’s toiletries. The Applicant

[4] A divorce settlement agreement, which was then made an order of court as
aforesaid and it, amongst others, states as follows:

“3. MAINTENANCE FOR THE MINOR CHILDREN

3.1 The Defendant shall pay maintenance to the Plaintiff in respect of the
minor children in the sum of R2500-00 (Two Thousand Five Hundred)
per month per child with the first payment due on or before the 15 th
May 2017 and thereafter on or before the 07th day of each month in
advance;

3.2 The above maintenance shall increase annually at the rate of 6% (six
percent) per annum with the first increase due on 01 May 2018 and
every year thereafter;

1
See Exhibit B2. A crèche receipt dated 08 February 2022.
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3.3 The Defendant shall pay to the relevant institution, the minor
children’s school, madressah and university fees upon receipt of
an invoice from the relevant institution. The Defendant further
undertakes to purchase the prescribed school, madressah and
university books, prescribed school, madressah and university
stationery, prescribed school, madressah and university
uniforms and any other associated school, madressah and
university costs for the minor children on demand by the Plaintiff;
[BOLD: My emphasis]

3.3 The Defendant shall retain the minor children on his medical aid
scheme and he will be liable for any shortfalls not covered by the said
medical aid scheme.

FACTS:

THE APPLICANT’S CASE:

[5] The Applicant testified that the basis of his application is, inter alia, that he has since
remarried in November 2017 and his current wife, who is unemployed, gave birth to a set of
twins on 23 February 2018. According to the Applicant, these developments calls for a
downward variation of the order.

[6] The Applicant is employed by Plasser SA, a railway company which services Prasa
and Transnet amongst others. His gross salary is between R59 240 and R62 388 per
month2. His net salary amounts to R30 854, 49 per month. Owing to the nature of his trade,
the Applicant was compelled to buy a second hand Toyota Fortuna. The said vehicle is
financed by Absa bank and, was almost repossessed as result of defaulting in payments by
the Applicant.

[7] The Applicant ultimately made a payment arrangement with the Absa Bank legal
team and paid an amount of R120 000 into their account, the said amount being a loan he
had secured from his friend. The Applicant concluded a repayment agreement with his friend
in respect of the said loan, and has been making monthly payments of R7500-00 per month
towards the said friend since February 2020.

2
See Page 09 to Page 11 of the Applicant’s bundle of documents. Exhibit “A”.
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[8] The Applicant also receives a monthly income of R2000 in respect of a room that he
has leased out. According to the Applicant, the said payment is made to him in cash on a
monthly basis.

[9] The Applicant’s current wife has two children of her own from her previous
relationship. The said children moved from Cape Town to reside with the Applicant and his
current wife approximately three years ago. The father of said children supports the younger
of the two, while the Applicant supports the elder child aged 18 years. The Applicant ensure
that the latter child has food. At the time of Applicant’s testimony in chief, the Applicant
testified that his son is aged 14 and currently attending high school while his daughter is
aged 09. Of importance, the Applicant, own his own version, informed the court that the
Respondent is unemployed. The Applicant submits that he does not want the children to
struggle; he just wants the financial responsibilities in respect of the parties’ children to be
shared.

[10] The Applicant’s monthly expenses comprises of bond repayments in respect of his
mortgaged immovable property, groceries for his household inclusive of his wife’s children,
rates and taxes, cell phone contract, insurance, tracker, clothing, maintenance and school
fees for the minor children. The Applicant also pays on monthly basis for car service,
medical aid premiums, life insurance, Nedbank credit card, Absa credit card, personal loan
with his mother whom has since paid a total sum of R48 000.003. The Applicant is also
responsible on a monthly basis for the security alarm, gym monthly subscription, TV license
and groceries for the twins.

[11] The Applicant contends that since he is currently paying R5300-00 per month in
respect of maintenance of the two minor children, the said maintenance should, amongst
others, be utilised for payment of school fees. On a question by the court, The Applicant
informed the court that the cash maintenance component should remain as is, without
attracting the anniversary increment.

[12] It was put to the Applicant during cross-examination that the credit card debts have
been existent since 2017 and he could have settled them with a lump sum pension pay out
he received when the parties divorced, to which the Applicant testified that he had since paid
R132 000.00. The Applicant further testified that from the proceeds of his portion of the sale
of the matrimonial home, he had established two informal businesses, which unfortunately
proved unsuccessful.

3
See Exhibit D2.
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[13] In September 2020, the Applicant received a letter from his employer informing the
Applicant that his salary increase would amount to only 3,2% of his income 4. On this basis,
the Applicant requests that the Respondent be liable for 50% of the minor children school
fees, and that the 6% annual maintenance increase be aligned with the Applicant’s salary
increase aforementioned.

[14] The Applicant conceded that remarrying has led to deterioration of his financial
position and that he has a primary responsibility towards his biological children in general.
The Applicant further testified that four years has lapsed since his divorce. Consequently,
the Respondent was expected to have secured employment since then.

THE RESPONDENT’S CASE

[15] The Respondent is opposing the downward variation application brought by the
Applicant. She testified that she recently secured temporary employment at Seal Cool
industries, on contractual basis5 which she commenced with on 11 March 2021 and the said
contract was due to expire at the end of June 2021. During the subsistence of the said
contract, the Respondent earned a monthly gross income of R6309.006.

[16] Prior to the assumption of the employment aforesaid, the Respondent was running
a baking business, generating between R100 and R150 per day. The Respondent would
receive financial assistance from her mother in the amount of R1500-00 per month, though
this assistance was halted during the Respondent’s employment aforesaid.

[17] The Respondent is currently enrolled at the University of South Africa (“Unisa”),
pursuing a degree in business management and public administration, a qualification she is
due to complete in June 2022. The Respondent is primary care giver of the minor children in
this matter who are aged 16 and 10 respectively. The Respondent opines that if the monthly
maintenance contribution by the Applicant is reduced, her income will not suffice in as far as
catering for the minor children’s monthly expenses is concerned. The water and electricity
bill7 and the school fees accounts in respect of the minor children are arrears8.

[18] After the parties’ divorce, the Respondent’s father purchased for the Respondent a
house as well as a motor vehicle. The agreement between the Respondent and his father in
4
See Exhibit D3.
5
See Exhibit D4.
6
Her net salary being R6025.76 per month. See Exhibit B3.
7
The Respondent took a loan
8
President High school is owed R35300.00, while Winchester Ridge Primary school is owed R35 850.00. The
Applicant currently pays an amount of R950 per month towards settling the Winchester Primary school.
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respect of the said house is to the effect that the Respondent will compensate her father as
soon as it is financially permissible for her to do so. During cross-examination, the
Respondent informed the court that she also resides with her cousin since 2019 and he
provides financial assistance in the form of R300.00 monthly in respect of the household
expenses.

[19] The Respondent is responsible groceries, municipality expenses, domestic worker,

Wi-Fi, garden services, clothing accounts9, car insurance, fuel, a personal loan, religious
contributions, as well as gym subscription as her monthly expenses 10. The gym subscription
according the Respondent, is a necessity to address her weight problems as she
endeavours to avoid being diabetic. The Respondent apportions groceries, the domestic
worker salary, Wi-Fi, garden services, clothing accounts, religious contributions, water and
fuel as monthly expenses she incurs on behalf of the minor children. When asked during
cross-examination about dining at restaurants, the Respondent testified that she endeavours
to ensure that the minor children do not feel the void caused by the divorce.

LEGAL ARGUMENTS:

[20] The Applicant argued that the existing order in its current form is difficult for him to
comply with on the basis on his financial position and he requests this court to grant an order
that is just and fair. The Respondent argued that she is doing what she can in accordance
with her means. She further submitted that she has made contributions towards school fees.

[21] The maintenance officer argued that the provisions of the divorce court order in
respect of the maintenance of the minor children are the brainchild of a settlement
agreement, which the Applicant voluntarily concluded during his divorce proceedings. When
the Applicant decided to enlarge his family, he knew of the maintenance obligations imposed
by the existing order, and was aware of his financial position. According to the maintenance
officer, the Respondent must continue contributing in respect of the minor children’s school
uniform.

THE LEGAL POSITION

9
See Exhibit D1 and D2.
10
See Exhibit B.
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[22] In terms of section 16 (1) (b) of the Act 11, the maintenance court may- in case where
a maintenance order is in force,

(i) Make a maintenance order in substitution of such maintenance order; or

(ii) Discharge such maintenance order.

(c) Make no order.

(b) Section 6(1) (b) of the Act12 reads as follows: “Whenever a complaint to the
effect that good cause exists for the substitution or discharge of a
maintenance order, has been made and is lodged with a maintenance officer
in the prescribed manner, the maintenance officer shall investigate that
complaint in the prescribed manner and as provided in this Act”. (Own
emphasis added).

(c) The Maintenance Act does not provide for a test to be applied when an
application is made for the variation or discharge of a maintenance order.
Provisions in other legislation, however, are instructive. In terms of section 8
(1) of the Divorce Act, Act 70 of 1979, a maintenance order may be varied if
the court finds that there is ‘sufficient reason’ thereof. Section 10 (2) of Act 37
of 1953, (now repealed) required ‘good cause’ for a variation. The applicable
case law on this subject demonstrates that the onus of showing good cause,
sufficiently to justify variation, rests upon the party who seeks the variation.
(See M v M (A301/17) [2018] ZAGPPC 607 at paragraph 15).

[23] Our legal system recognizes the existence and application of the ‘clean break’
principle in cases dealing with payment spousal maintenance after divorce proceedings have
been finalized. The cornerstone of this principle is premised at ensuring economic
independence of parties respectively of each other as soon as possible. Courts will always
attempt to achieve a complete termination of the financial dependence of one party on the
other where circumstances permit. This objective could be achieved were a court to make a
redistribution order but no maintenance order (See Baker J in Beaumont v Beaumont
1987 (2) All SA 1 (A), 1987 (1) SA 967 (A) at 993).

[24] It is so that in the case of Roos v Roos 1945 TPD 84 at 88

11
Maintenance Act 99 of 1998
12
Maintenance Act 99 of 1998
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Which concerned the variation of a maintenance order, in respect of a divorced spouse and
whether “good cause” had been shown for such variation, within the meaning of that term,
contained in the Matrimonial Affairs 37 of 1953, Schreiner J (as he then was) had the
following to say:

“Variation will be ordered not only in cases of breach by either party but because
there has been such a change in the conditions that existed when the order was
made, that it would now be unfair that the order should stand in its original form”

[25] Likewise in Havenga v Havenga 1998 (2) 438 (T) at 445 C-F Harms J (as he then
was) held that in regards to an application by a divorced spouse, to vary the maintenance
payable to the former spouse, that as a general proposition, in the absence of a real change
in circumstances, there would not be sufficient reason for a change. However, he added
there could be circumstances where reasonable grounds existed for the variation of
maintenance order, even where there was no real change in circumstances.

[26] However in Hossack v Hossack 1956 (3) SA 159 at 163 F-H

Ludorf J drew a distinction between the “good cause” to be shown when an Applicant seeks
to vary maintenance payable to a divorced spouse, and when a variation is sought in respect
of the maintenance payable to minor children. In the latter event, he had the following to say

“An applicant need usually show an ability on the part of the Respondent to pay more
and a need that more should be paid”

[27] In Strydom v Strydom Case No. AR 598/2012 (03 APRIL 2012) at Para 13

Swain J stressed that in such applications,

“It is incumbent upon the Applicant not only to merely show a reduction in his salary,
but also to show an inability on his part to pay such maintenance. It is therefore not
an absolute necessity to show a change in circumstances before a reduction in
maintenance payable may be considered. A change in such circumstances, whether
for the better or worse, remains, however, a factor to be considered.”

[28] Section 15(3)(iii) of the Act provides that the duty to support children exists
irrespective of whether a child is born in or out of wedlock or born of first or subsequent
marriage.
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[29] Dr Brigitte Clark, the author of the Handbook of the South African Law of
Maintenance (4th edition) at page 49, paragraph 3.2.7.1 provides as follows “In
applications for reduction of maintenance on the grounds of a deterioration in the financial
position of the person liable to pay, the court will try to establish whether the deterioration is
due to circumstances beyond that person’s control. If persons liable to pay maintenance
have themselves caused the deterioration in their financial circumstances, by, for instance
entering into a second marriage, courts will be less sympathetic. The problems arising out of
“serial marriages” received attention of the court in Hancock v Hancock 13. It was pointed out
that, although it may be logical always to prefer the rights of the first wife, this could create
hardship, especially in respect of children of the second marriage. The court commented on
the fact that the maintenance debtor had, with full knowledge of his existing maintenance
obligations, entered into a fourth marriage precipitately after his third divorce 14. However, no
invariable rule can be formulated and the circumstances of each case must be considered15.

ISSUES IN DISPUTE

[30] The Applicant places in dispute the fairness and the reasonableness of the existing
order. He argues that this court should make an order that is just and fair and that
encompasses the socio-economic dynamics in his life. He argues that the fact that he has
since remarried and now has a new family of his own, is a factor that this court needs to take
into consideration in ensuring parity between the parties parental obligations in as far as
distribution of maintenance contributions amongst the parties is concerned. The Applicant
requests that this court should order the Respondent to pay 50% of the minor children
school fees as well as their medical expenses.

[31] In contrast, the Respondent argues that her financial position does not allow that
she be made to contribute towards the maintenance of the minor children on the same scale
as the Applicant as she is not permanently employed. She contends that she has, in some
instance looked past the existing order, and has been making some contributions towards
the maintenance of the minor children despite the existing order placing a legal obligation on
the Applicant to contribute towards the necessities of the minor children.

THE LAW AND APPLICATION:

13
[1957] 2 ALL SA 282 (C), 1957 (2) SA 500 (C) 503.
14
Hancock v Hancock [1957] 2 ALL SA 282 (C), 1957 (2) SA 500 (C) 505.
15
See Davis v Davis [1993] 1 ALL SA 234 (SE), 1993 (1) SA 293 (SE) 295-296 and the cases cited there.
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[32] In considering whether the onus has been discharged by the parties before the
maintenance court may substitute or discharge the existing order, the matter is entirely in the
discretion of the court. It should also be accepted that a variation order should not be
granted as a matter of course, and that the discretion conferred upon the court to vary its
order should not be too readily exercised. (See also Van Wyk v Van Wyk 1954 (4) SA 594
(W) at 595; Hossack v Hossack 1956 (3) SA 159 (W) at 164-165; Louis v Louis 1973 (2)
SA 597 (T) at 597H). Thus it was held in the case of Davis v Davis 1993 (1) SA 293 (SE)
that no invariable rule could be formulated in respect of the test to be applied when
application was made for the variation of a maintenance order and that the court always had
to have regard to the circumstances of each case, but that the courts were generally
reluctant to vary orders for maintenance once given where the difficulties to meet the
obligations stemmed from a voluntary undertaking of extra commitments.

[33] The Applicant’s application is premised on the change on his marital status as well
as the inevitable financial commitments associated therewith. It is worth mentioning that the
parties’ marriage was dissolved on 09 June 2017. Some five months later, the Applicant
married his current wife under customary law. It is self- evident that when the Applicant
resolved to remarry; he was cognizant of the maintenance obligations imposed on him by
the provisions of the existing order. The question that needs to be answered by this court is
whether the decision by the Applicant to remarry and ultimately create the financial
commitments associated with establishing a new family calls for this court to show leniency
towards the Applicant in as far as his legal obligation to provide maintenance for the minor
children.

[34] The duty to support the minor children in this matter is a duty common to both
parties, according to their respective means. It makes no difference whether such child is
born in born in or out of wedlock. (See Lamb v Sack 1974 (2) SA 670 (T)).

[35] At the time the Applicant instituted these proceedings he knew that the Respondent
is unemployed. Even in his testimony, he informed this court that he is aware of the
Respondent’s employment status. I do take into account that during the proceeding, the
Respondent secured employment, albeit on a temporary basis. The significance of this
employment does not take this matter any further given the duration of the employment
contract that the Respondent signed. The said employment was due to terminate at the end
of June 2021.
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[36] The Applicant argues the clean-break principle. He argues that four years has
lapsed since he and the Respondent divorced. According to the Applicant, during these four
years the Respondent ought to have secured employment. While I may eminently agree with
the Respondent, the challenge I have with this argument is the Applicant’s different stunt in
respect of his current wife’s unemployment status. The Applicant opines the view that his
current wife is allowed to stay home and look after their twins while he wants to vilify the
Respondent to her inability to secure employment. The clean-break principle is only
applicable in spousal maintenance cases. The Applicant’s contention in respect of the
Respondent’s inability to secure employment unfortunately does not absolve him from his
maintenance obligations.

[37] The Parties in this matter entered into a settlement as aforesaid. The Applicant
seems to suggest that the said settlement agreement and or its contents were the brainchild
of his then legal representative. The Applicant falls short of saying that he had nothing to do
with the said settlement agreement, which now seems to make it impractical for him to be
able to provide for himself and his minor children. In Reid v Reid16, a maintenance debtor
seeking a downward variation contended that he had agreed to an unjust settlement. The
court warned that “to allow such an argument could lead to an abuse of the court process
and that it is highly undesirable for a court to rule on the correctness or justness of another
court’s order. Before the court an Applicant can question the justness of a maintenance
order, he or she has to show special circumstance.” The Applicant in this matter intended to
be part of the settlement agreement and to abide by its contents. The Applicant is indirectly
exculpating his involvement in respect of the said order with the hope that this would
strengthen his prospects of success in this matter.

[38] In Mentz v Simpson 1990 (4) 445 (A) it was held that a parent’s primary duty was
to maintain his own children, and that the needs of stepchildren were irrelevant to the issue
of maintenance requirements of own children. The Applicant, in his own version, maintains
that he plays a pivotal role in assisting one of his stepchildren in respect of the said child’s
maintenance. He testified that he ensures that the said child has food on a monthly basis. It
follows that the Applicant should prioritize his minor children as his primary concern.

[39] In Bannatyne v Bannatyne: Commission for Gender Equality, as amicus

curiae) 2003 (2) SA 363 (CC) the court held as follows: “Maintenance courts and the law
they implemented were important mechanisms to give effect to the rights of children
protected by section 28 of the Constitution. Failure to ensure their effective operation

16
[1992] 3 All SA 354 (E), 1992 (1) SA 443 (E).
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amounted to a failure to protect children against those who took advantage of the weakness
of the system.”

[40] I do accept that owing to the nature of work that the Applicant does, he was
required to purchase a second hand Toyota Fortuna. In an endeavour to finance this vehicle
and to avert it be repossessed by the Absa Bank, the Applicant secured a loan from his
friend in the amount of R120 000.00. He has been repaying the said loan in monthly
instalments of R7500.00. There is no evidence before this court to suggest that the Applicant
would have been dismissed from his employ had he purchased a much cheaper vehicle. It
was put to the Applicant that seeing that he is on the verge of repaying the said loan in full;
he would save some money and be able to provide for the minor children. The Applicant
informed this court that he intends to use that money to service his credit card. It apparent
before me that the Applicant harbours no ambitions to prioritise the best interests of his
children. The Bannatyne decision calls upon this court to ensure that the best interests of
these children are enhanced and protected.

[41] The Respondent is currently pursuing a qualification as aforesaid. She is heavily

dependent on her parents. Her father purchased for her a motor vehicle and the house that
she and the minor children are currently residing at. Despite her inability to secure
employment on a full time basis, the Respondent took the initiative to establish the business
of her own and has been providing assistance to the Applicant in as far as the minor
children’s basic needs are concerned, albeit on a small scale. The Applicant does not place
the assistance by the Respondent in dispute, despite his endeavours to portray the
Respondent as someone who is impervious to the needs of the minor children.

[42] In the absence of a real or substantial change in circumstances, there would not be
sufficient reason for a change17. It is not sufficient to merely to provide details of income of
the parties. Inability to pay must be shown 18. The Applicant’s argument is not premised on
the reduction of his income. He is simply arguing that the salary increment percentage has
been reduced from 6% to 3, 2%. The reduction in the said salary is too insignificant to justify
a downward variation of the existing order.

[43] In this matter, the Applicant is gainfully employed. It is self-evident that from the
date the existing order came into force to date, the Applicant has incurred a number of
debts, which have invariably led to the deterioration of his financial position. The financial
position that the Applicant finds himself heavily embroiled in is self-inflicted. It would be
inconceivable of this court to show empathy towards Applicant to the prejudice of the minor

17
Havenga v Havenga 1998 (2) SA 438 (T) at 445C-F.
18
Jacobs v Jacobs [1995] 4 All SA 210 (T), 1995 (4) SA 211 (T).
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children in this matter. The decision by the Applicant to remarry calls upon him to adjust his
own standard of living rather than allow his children to be prejudiced. (See Scott v Scott
1946 WLD 399)

CONCLUSION:

[44] I am not persuaded that the Applicant has shown an inability to comply with the
existing order and pay towards the basic needs of the minor children in this matter in
accordance with the existing order.

[45] In the premise, I am not convinced that the Applicant in respect of the variation of the
existing order has made a proper case. Consequently, the Application for the
variation of the said order is hereby dismissed.

[46] Clause 3 of the existing order remains in force and effective.

T.W. NKABINDE

ADDITIONAL MAGISTRATE

MAGISTRATE COURT; JOHANNESBURG

DATED: 20 AUGUST 2021

TO: The Maintenance Officer, Ms. Nkuna, Johannesburg Family Court

And To: The Applicant

And To: The Respondent