What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision?

What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision?

Appealing a Maintenance Court Decision or Judgment

In its very nature, maintenance matters are complicated and never straight forward. For starters, it deals with the income and expenditure of both parents and the needs of the child. It is not easy for a maintenance court to determine with a high degree of certainty what the true income of a self-employed parent is. The same applies to the true expenses of a parent.

advice-child-maintenance-child-custody-divorce

Manipulating the maintenance system

It is very easy for a parent to manipulate documentation or only present information which he or she believes would be in their favor. For example, if a parent earns extra income by selling clothing, he or she may decide not to disclose that information to the maintenance Court.  By doing so, the Maintenance Court will determine the maintenance of the child based on the incorrect facts presented.

This could become more problematic when one parent knows of the other parent’s additional income but cannot prove it. If the parties have legal representatives, this issue of improper disclosure is limited to a certain extent. For example, lawyers would be in a good position to do their own investigations and verify certain relevant information.

Improper disclosure of expenses

Then there is the issue of the expenses of the child. The court requires a proper outline of all the monthly, daily and yearly expenditure of the child. Without all the relevant information before it, the court is not in a proper position to make a fair decision regarding child maintenance.  This is so as the amount of maintenance a parent should pay is directly determined by what is the child’s monthly expenditure. For example, if a parent earns a million rand a month, his or her maintenance contributions can be no more than what the child actually cost per month.

Intentionally inflating expenses

It often happens that a parent cannot, or do not provide a true reflection as to what the child actually cost. Amounts are inflated, and there is no way that the court or the other parent can really question those amounts. Let’s say the mother is taking the father to the Maintenance Court but the father only sees the child once a month.  The father, in this case, would not be able to confirm or verify whether or not the child actually eats as much as the mother makes it out to be. And many times, parents come to court with an attitude of “let me claim more and the court will give me less.”

Unhappy with the maintenance magistrate’s decision

advice-child-maintenance-child-custody-divorceLet’s say a maintenance enquiry was held by a maintenance magistrate, and a decision was handed down. Should both parents be happy with the decision of the magistrate, their lives can continue and the party who should pay maintenance should comply with the order.

However, it often happens that one parent is not happy with the maintenance order. We often get queries where parents want to know what they can do when the maintenance Court did not find in their favor. Sometimes parents feel that the Maintenance Court was one-sided.

In such a case he or she wants the decision of the magistrate to be relooked at. In order for this to happen, the Parent should appeal the decision of the magistrate.

Appealing a maintenance Court decision

The purpose of this article is not to explain the technical procedure of appealing a magistrate’s judgment.  The procedure is a bit complicated and we suggest you make use of a legal practitioner to assist you should you wish to appeal a decision.  However, what we want to bring home is that it is possible for the decision of a Maintenance Court to be relooked at by a higher Court and provide you with some insight as to what happens. The higher Court, in this case, will be the High Court.  If you reside in Cape Town, it is the Western Cape High Court.

What happens at the Appeal Court?

Let’s say all the court rules and procedures were complied with and the matter is now before the Appeal Court. The Appeal Court will comprise of two judges. They would have read through the entire court record in the Magistrate’s Court before the matter is heard. Taking it one step back, all proceedings in the magistrate’s court is digitally recorded. So, when you decide to appeal a decision of the magistrate’s court the recordings are sent to an authorised typist, who would type out the entire Court record. You cannot type out the record yourself.

advice-child-maintenance-child-custody-divorceHeads of Argument

Now before you argue your case at the Appeal Court you would want the judges to first know what your arguments are.  At the same time, you would like to know what the other lawyer’s arguments are. In this regard, you would file heads of argument a few weeks before the appeal hearing date. Basically, you will outline what points you will be focusing on, and what law you will be relying on.

You need to convince the Appeal Court there was an error

Your purpose at the appeal is to try to convince the judges that the magistrate erred in his or her decision. In other words, made a mistake.  In relation to a maintenance Court matter, you may even wish to convince the court that the maintenance officer did not follow the procedures outlined in the Maintenance Act or he or she did not properly investigate the maintenance complaint.  For example, the maintenance officer just took the father’s word when he said he was unemployed. Or the mother’s word when she said she earns no additional income.

Incorrect maintenance investigation

Had the maintenance officer done some further investigations by requesting relevant information, or instructing the maintenance investigator, the true facts would have been before the Maintenance Court. In other words, the magistrate would have made a different decision.

Now, this would apply to a maintenance Court where the provisions in-place in the Maintenance Act was not followed. If this happened, you may appeal.

The magistrate’s reasons for his or her decision

The High Court judges would have the magistrate’s reasons for his decision before them. In other words, the magistrate would provide a document to the appeals court where he or she explains why he or she made a certain decision in the Maintenance Court matter.  He or she may, for example, say that based upon the evidence presented, the father earned an amount which does not justify him paying more than what he is currently paying.  Or the maintenance magistrate might say that based upon all the evidence presented, he could not find any information that will justify an amount greater than what the father is currently paying. The appeal Court would look at all these reasons and the evidence that was presented at court. It would listen to the arguments of the legal representatives and determine whether or not the magistrate made an error in judgment.

The appeals court’s decision

advice-child-maintenance-child-custody-divorceIf it is decided that the magistrate made an error in judgment, the court would in those circumstances change the order or refer the matter back to the maintenance court for a proper enquiry.  If the court decides that the magistrate was correct in its judgment, it will dismiss the appeal. So in short if you are dissatisfied with a maintenance magistrates court decision, you have full right to appeal it.

 

 

 

About the Author

Advocate South Africa

Legal Advisor for Our Lawyer (Pty) Ltd
Call 0211110090
For appointments: https://www.ourlawyer.co.za/advice

3 thoughts on “What do I do if I am not happy with the maintenance court’s ruling? Is it possible to appeal the decision?

  1. I am self employed. A maintenance order was granted by consent for my minor daughter in June 2024 for R4500 My work was destroyed by the mother (was never married to her)due her vengeful act of revenge for scorning/abandoning her. At the time she applied and was successful in attaching arrear maintenance from my retirement annuity (RA). The RA was depleted by May 2022 and I then had to start paying R4500 per month. I applied for a decrease in maintenance in September 2020 , which the court did not process and then again in November 2021. The matter was continuously delayed by the respondent using every trick in the book(sick notes,etc). The matter continued until February 2023 and at which point she got the PO to recuse himself from the matter(for showing alleged bias towards me). The matter was taken over my another PO by which time the respondent now applied for an increase(August 2023). Both my decrease and her increase where heard concurrently. Due to the time length/delay of the matter the PO only considered evidence for the period 2022-2023. The respondent was employed on a part-time basis as a paralegal at the time. Her employment contract ended in June 2024. The PO at the time said he will not consider any further evidence post 2023 and both parties must come with new applications if needed, once judgement was made on the existing matter. Judgement was only handed on 10 February 2025. During Heads of Argument I raised the point that I lost a client contract that was bringing in 70% of my revenue from December 2024. The PO increased the maintenance to R 5000, but to my shock also added payment of 100 % of school fees for my account. The respondents has insisted in enrolling the child in private school from 2021 without my consent and my evidence was based on its unsustainable based on both parents means.She used the child’s (now 7 years old)minor ailments to argue that the child is a special needs child hence required private schooling(R3000 pm). The PO also ordered that I should place the child on my medical aid.That all equates to R9000 which is double from R4500. The reduction of work was never considered although he said he considered it in his final judgement. Note 70% reduction in work leaves me with +/-R15000.00 income per month. It must also be noted that I pay R6000 in total for my two (11 and 16 years) sons from my first marriage. I do not have the funds to appeal the matter at the Durban High Court and will be in a dire situation from March going forward. It seems like another substitution application is my only choice which will drag on knowing the history of the mother/respondent. I don’t have an RA or pension for attachment to save me this time. Please advise.

  2. My name is Xolani I paid R5000 for two kids am strugglingit’s been two years this is unfair to me it’s only two kids even the mother is working at SAPS as Administrative Clerk and is earning more than me please help am in Eastern Cape Mthatha.

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