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IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF JOHANNESBURG

HELD AT JOHANNESBURG

Case no: 0112019MAI001029

In the matter between

ALBERT MADUNA Applicant

And

MIKI ALINAH MADUNA Respondent

JUDGMENT

INTRODUCTION:

[1] This is an application in terms of Section 18(4) of the Maintenance Act 99 of

1998 (“the Act”), for recession of an order by default granted by this court on 08
April 2021. As it will more fully, the Applicant, represented by Mr Magxala,
predicates his application on the basis that on the day he was due to appear, he
was unwell. The Respondent, represented by Ms Mnguni, vigorously opposes this
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application on the basis that the Applicant was in wilful default on the day the
proceedings were dealt, and the medical note he has brought in support of this
application, is inauthentic.

BACKGROUND:

2. The Parties appeared before my learned brother, Magistrate Monnakgotla,

on 24 February 2021, and were warned for 24 March 2021 for purposes of
attending to a Regulation 3 in terms of the Act as well as for submission of their
documents.

3. On 24 March 2021 only the Respondent and her attorney as well as the
Applicant’s legal representative appeared before me. Mr Ndebele, the maintenance
officer on the day, brought an application for an order by default in terms of Section
18 (1) of the Act1. The Applicant’s legal representative opposed the aforesaid
application, on the basis that he had received a report a day before from the
Applicant that he was ill. According to Mr Magxala, the Applicant had called again in
the morning of the 24th of March 2021 to confirm that he is not feeling well. Mr
Magxala submitted that he was instructed to seek a postponement of the matter.

4. The Respondent, through her attorney, vigorously opposed the request for
the postponement, arguing amongst others, that it was evident that the Applicant
had not consulted with his legal representative and that the Applicant was generally
in the habit of attending the court proceedings when ordered to do so. Chief
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Section 18 (1) of the Act provides that, If a maintenance court is satisfied on the grounds of sufficient proof
or otherwise-
(a) that any person against whom an order may be made under section 16(1)(a) or (b) has knowledge or a
subpoena issued under section 9; and
(b) that he or she has failed to appear before the maintenance court on the date and at the time specified in
such subpoena, the maintenance court may, on the application of the maintenance officer for an
Order by default, call upon the person who has lodged the complaint to adduce such evidence, either in
writing or orally, in support of his or her complaint as the maintenance court may consider necessary.
(2) After consideration of the evidence, the maintenance court may-
(a) make any order by default which the maintenance court could have made under section 16(1)(a) or (b);
(b) make such other order as the court may consider appropriate in the circumstances of the case; or
(c) Make no order.
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amongst the arguments raised by Respondent at the time was the absence of
medical evidence as proof of the Applicant’s compromised medical condition.

5. Having heard the arguments placed before me, I then ordered that the
proceedings be proceeded with in terms of Section 18 of the Act as aforesaid. The
Respondent was sworn in, and testified at length in respect of the minor children’s
monthly expenses as well as her personal monthly expenses. As a resultant
outcome of the Respondent’s evidence, I then granted the order by default and
ordered as follows:

“1 In terms of the provisions of section 18 read with section 16 of the

Maintenance, 1998 (Act 99 of 1998), it is ordered that Albert Maduna, born on 06-
06-1964, with id number 6406065332085, living at 5A Roseneath road,
Johannesburg, working at Department of Education, Sir Peirre van Ryneveld
school, Kempton park, shall on a monthly basis with effect from 20 April 2021
towards the maintenance of the following children the sum of R5500-00 in respect
of Amohelang Maduna, R5500-00 in respect of Vuyani Maduna, the first payment is
to be made on 20/04/2021 and after that on or before the 25 th day of each
succeeding month to Capitec Account no 1141990286 in favour of Alinah Miki
Maduna;

3. In terms of the provisions of section 16(2) of the Maintenance of the Act,

1998 (Act No. 99 of 1998), it is ordered that persons who is obliged by any contract
to pay money on a periodical basis to person against whom maintenance order
being Pay roll officer of Department of Education no 75 Fox street, Johannesburg
make on behalf of the person against whom the order in part A above was made
the following payments”.

ARGUMENTS:

[6] It is argued on behalf of the Applicant that he was ill on the 24 th March
2021, being the date the parties were warned to appear. Consequently, the
Applicant was unable to attend to the court proceedings.
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[7] A medical certificate purportedly prepared by Dr Irene Coetzee (“Dr

Coetzee”) was handed in support of this Application. The said certificate indicates
that the Applicant was examined on 23/03/2021, the nature of illness being a
medical condition. Dr Irene Coetzee recommended sick leave from 23/03/2021 to
25/03/2021. Dr Coetzee then concluded that the Applicant would be eligible to
resume work on 26/03/2021. The said medical note bears the practice office stamp.

[8] It is argued on behalf of the Respondent that the Applicant has lied before
this court. Ms Mnguni argues that the Respondent made appearances before this
court on 21 May 2021, as well as on 08 June 2021 to lodge an application to have
the order by default rescinded. On both occasions, the Applicant, according to Ms
Mnguni, did not file the medical certificate that he is now relying on in support of his
application to have the order by default rescinded. Ms Mnguni questions the
authenticity of the Applicant’s medical note on the basis, amongst others, that it
bears no date. Ms Mnguni indirectly suggests to this court that the Applicant has
submitted a fraudulent medical note, and by so doing, he is committing a criminal
act.

[9] In response to Ms Mnguni’s submissions, Mr. Magxala submits that the

Applicant brought his medical note when lodged his rescission application on 21
May 2021. He contends that Mnguni was not present, and naturally unable to
account about the events of the said date.

[10] Ms Monaise, the maintenance officer assigned to this matter, also argues
that the Applicant did not attach the medical note to either the first and or the
second rescission application. She further contends that the Applicant only started
making payments in respect of the minor children’s school fees on 23 July 2021
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LEGAL POSITION AND ITS APPLICATION:

[11] In terms of Section 18 (4) (d) of the Act, the maintenance court may call
upon –

(i) The person who has made the application to adduce such evidence either
in writing or orally, in support of his/her application; or

(ii) The person who has lodged the complaint, to adduce such evidence, either
in writing or orally, in rebuttal of the application.

[12] In terms of Section 18 (5) of the Act, after consideration of the evidence, the
maintenance court may –

(d) Make an order confirming the order by default referred to in subsection (2)
(a);

(e) Vary such order by default, if it appears to the maintenance court that good
cause exists for such variation; or

(f) Set aside such order by default, if it appears to the maintenance court that
good cause exists for such setting aside, and convert the proceedings into
a maintenance enquiry.

[13] The procedure in maintenance enquiries is of hybrid nature, being neither

a wholly civil action nor a criminal prosecution. (See Kruger v Ferreira [1979] 3 All
SA 3 (NC), 1979 (1) SA 915 (NC); Young v Young [1985] 1 All SA 503 (C); Nodada
v The Magistrate, Umtata [1992] 4 All SA (Tk), 1992 (1) SACR 768). Within its
limited sphere, the maintenance court essentially performs the functions of a civil
court2. Therefore, the test used in the maintenance proceedings is based on a
balance of proceedings. Unless the Act provides otherwise, the law of evidence
applies to the enquiry. Thus, the law relating to the competence, compellability,

2
Nodada v The Magistrate, Umtata [1992] 4 All SA (Tk), 1992 (1) SACR 768.
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examination and cross-examination of witnesses applies as it does in civil

proceedings in the Magistrates’ Court3.

[14] No evidence is ordinarily admissible to prove the contents of a document

except the original document itself. (See Standard Merchant Bank Ltd v Creaser
1982 (4) SA 671 (W) at 674B). A party who tenders a document is ordinarily
required to adduce evidence to satisfy the court of its authenticity. In practice, a
party to a civil action can usually avoid having to prove the authenticity of
documents by serving a notice to admit their proper execution and authenticity upon
his or her opponent before trial4.

[15] In this matter it is not in dispute that Dr Coetzee prepared a medical

certificate in respect of a consultation relating to the Applicant. The Respondent
primarily predicates her objection to the medical certificate handed in by the
Applicant on the basis that it bears no date. She argues that because the said
medical certificate bears no date stamp then it is fraudulent and must be rejected by
the court. As to whether date stamps are a requirement in respect of medical
certificates, neither this court nor any of the parties in this matter can give any
expert opinion in respect thereof.

[16] From the medical certificate itself, one can visibly see Dr Coetzee’s practice
number, the date and time of consultation, the diagnosis as well as the
recommendation in respect of the medical condition detected in the person of the
Applicant. The said medical certificate also bears a signature, purporting to be that
of the medical practitioner who examined the Applicant as aforesaid. The Applicant
has been severely criticized for the timing of his submission of the medical
certificate. It may very well be, that the Applicant did not submit the medical
certificate when he lodged the first or the second application for rescission. The
question is how prejudicial would such omission be to the Applicant’s case when as

3
Section 10(5).
4
See Supreme Court Rule 35 (9).
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early on 24 March, the Applicant, through his legal representative, placed on record
that he was unwell. The argument that submission of the medical certificate on the
part of the Applicant is an afterthought inevitably cannot be sustained. There is
nothing in the Act to suggest that submission of the medical certificate only at the
time of the Application for rescission of the default order is not permissible.

[17] The Application form J438E only requires the Applicant to disclose the
basis upon which his application is premised. Submission of evidence to support his
case upon the completion of the aforesaid form is not mandatory at that stage.

[18] On a balance of probabilities, I find that the medical certificate in question is

authentic. The assertion that it is fraudulent purely on the basis of lack of a date
stamp remains a suspicion and is to be treated as such. The Application for the
rescission of the order succeeds.

ORDER:

[19] It is hereby ordered that the Maintenance order by default dated 08 April
2021 is hereby set aside with immediate effect.

T.W. NKABINDE

ADDITIONAL MAGISTRATE

MAGISTRATE COURT; JOHANNESBURG

DATED: 29 SEPTEMBER 2021.

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

And To: Counsel for the Applicant Advocate Magxala

And To: Counsel for the Respondent Ms Mnguni.