Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Appeal - Grahamstown High Court Port Elisabeth

There is a Legal Responsibility on the Maintenance Magistrate and Maintenance Officer to actively partake and ensure that all relevant information is before the Court in a Maintenance Enquiry.

On 16 May 2019, Advocate Muhammad Abduroaf flew up from Cape Town to Port Elisabeth to argue a Child Maintenance Appeal. The Appeal was before the Full Bench of the Eastern Cape Division of the High Court of South Africa, held in Grahamstown. The matter was between Pumeza Ntisana and Thabo Mvubu. The Judges were Acting Justice S Rugumanan, and Justice I T Stretch. Advocate Abduroaf was instructed by Nicole Lawrence Attorneys of Cape Town. The appeal was argued on 17 May 2019.

The Court increased the maintenance from R 1000 – 00 per month to R 5000 – 00 with costs. A 500 percent increase. The case showcases the responsibilities of the Maintenance Magistrate and Maintenance Officer to play an active role in a maintenance enquiry.

Factual Background of the Case

This was an appeal in relation to a child maintenance award made by a magistrate in a maintenance enquiry in the Port Elizabeth Maintenance Court. The maintenance enquiry was concluded on 14 November 2017.

On 22 December 2017, the magistrate delivered his written judgment. Therein he made an order that the Respondent (the father) should pay child maintenance in the sum of R1 000 – 00 per month.

The mother was not happy with the award and appealed it. Advocate Abduroaf accordingly argued the matter before the Full Bench. Judgement was delivered on 06 August 2019.

Herewith is an extract of the Judgment where the Appeal court quoted Advocate Abduroaf:

Judgment - Appeal - Advocate Muhammad Abduroaf
Judgment – Appeal – Advocate Muhammad Abduroaf

At the end the Appeal court made the ruling in favour of the mother. As follows:

Full Bench of the Eastern Cape Division of the High Court of South Africa, held in Grahamstown

To download a copy of the judgement, click here.

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2 thoughts on “Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

  1. Good day, I believe I have an interesting case, in terms of and maintenance and need some guidance as to process from here.

    History
    2015 I initiated a reciprocal maintenance application against my child’s father, as Ontario Canada is one of the proclaimed states. And he is a South African with Canadian dual citizenship. Because even though he had a South African Attorney, he refused to entertain any form of maintenance discussion here in SA. SA sent the provisional order to Canada
    In 2016 my ex with his South African lawyer tried to stop the file being sent to the Ontario General in Ontario, a case that was dismissed by the Magistrates court here in South Africa
    In 2017 the matter was in Canada. My ex then launched a further application in Canada against me, to state he was not resident.
    Which is fair and well, but this caused a 12-month delay in the matter been heard in Canada (December 2017), during which the legislation there changed from ordinarily resident to habitually resident, which as he is currently on contract in Saudi, meant the order could not be enforced in Canada. My ex spent over $ 50 000 on the Canadian case alone, and even though he tried to get costs to order against me, the judge said the following in his reasons and judgement release in March 2018
    “ it is to be noted that after the Respondent’s Motion being issued, ISOA was amended. The words “ordinarily resides” were replaced with the words “habitually resides”. That amendment is relevant to the determination of the issues before the court. And (Page 6, Para 38) this court confirms that it does not have the jurisdiction to deal with the Application seeking the confirmation of the South African Provisional Order because the Respondent does not habitually reside in Ontario.
    (Page6, para 40) However the Respondent had apparent knowledge of the Application and took it upon himself to commence this Motion. The result was to bring the Application back before the court. Accordingly, this court is not prepared to entertain submissions as to costs. It is the court’s view that any costs incurred by the Respondent with respect to the Motion before the court were unnecessary.

    Of interest is during this whole process, the South African attorney sent me a settlement agreement in South Africa in October 2017, which as the matter was so advanced in Canada, I was unable to accept she would not even allow discussion.
    At the same time, the Canadian Attorney was advising me that the South African Attorney had no right to offer said settlement. And that we would all need to wait until the matter was concluded in Canada. Which it has now
    The South African attorney withdrew her mandate the day after the Canadian judgement was shared.
    It was a delightful time with threats all round from both attorneys
    The matter is now back in South Africa.
    My basic understanding is that by responding to the South African case file both in terms initially trying to stop the reciprocal matter going forward and by offering a settlement in South Africa that my ex has accepted the jurisdiction of the South African Maintenance court, but am unable to find the correct wording or case files that refer.
    By having accepted jurisdiction, it should be a simpler matter of having the South African Order confirmed? And Substituted service application, as to date all documents have been sent by email, setting precedent again.
    I am unrepresented, as I cannot afford more years of attorney fees ( 2105 to now on maintenance alone) and our combined household income exceeds legal aid’s base requirements.

    Thus any advice and pointers in the right direction would be greatly appreciated as to how to get the 2017 offer made an order of the court or the original provisional order from 2015 made a final order.

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