The Facts: A Maintenance Enquiry Gone Awry
The matter of T.M-S v I.N (Appeal) (A31/2025) [2026] ZAWCHC 72 (19 February 2026) came before Pangarker J and Davis AJ in the Western Cape Division of the High Court, Cape Town, on appeal against a maintenance order granted by the Cape Town Magistrates’ Court sitting as a maintenance court following an enquiry held in terms of section 10 of the Maintenance Act 99 of 1998.
The parties were the unmarried parents of a minor child, a girl born on 25 January 2018. The appellant father had left South Africa and relocated to the Netherlands to join his wife, who was employed there. He was self-employed and, at the time of the enquiry, earning irregular income from intermittent projects. The respondent mother remained in Cape Town, earning a gross salary of R 68 651.50 per month and a net salary of R 42 000.00 per month. She resided with the minor child, a live-in nanny and domestic worker, and her baby son from a new relationship.
Both parties appeared in person before the maintenance court. The enquiry culminated in an order dated 24 June 2024, in terms whereof the appellant was directed to pay cash maintenance of R 4 250.00 per month, increasing to R 7 500.00 per month with effect from 31 December 2024, and thereafter increasing annually by CPI from 31 December 2025. In addition, the appellant was ordered to pay half of the minor child’s medical aid costs, stationery and school uniform expenses. The cash maintenance amount of R 7 500.00 included a contribution towards school fees at Parklands College, which the minor child was due to attend from 2025.
The appellant noted his appeal on 19 November 2024, after the magistrate’s written reasons were furnished on 22 October 2024 — a delay of nearly four months after the order was granted. His grounds of appeal were threefold. He contended that the magistrate had erred in her assessment of the minor child’s reasonable expenses, had incorrectly calculated his average monthly income, and had consequently miscalculated the proportionate share he was liable to contribute.
On the expenses side, the appellant challenged a number of the magistrate’s findings. The magistrate had assessed the minor child’s reasonable monthly living expenses at R 9 824.28, to which she added an inflation adjustment of 7% and school fees of R 6 500.00 per month, arriving at a total of R 17 011.98. The appellant took issue with, among other items, the amount allowed for groceries, the inclusion of R 600.00 for school transport when the child’s new school was two streets from home, a R 1 650.00 allocation towards the respondent’s motor vehicle instalment of R 9 598.00 per month despite the child being driven fewer than 50 kilometres monthly, and the duplication of medical and stationery costs which were already separately provided for in the order.
On the income side, the magistrate had assessed the appellant’s average monthly earnings at R 22 000.00. The appellant had earned R 34 800.00 in August 2023, R 40 000.00 in March 2024, and expected to earn R 60 000.00 in June 2024 — a total of R 134 800.00 over ten months, yielding an average of R 13 480.00 per month, not R 22 000.00. The magistrate compounded this error by adding R 12 000.00 to the appellant’s income on the basis that he would have that amount available once he sold his motor vehicle and the monthly instalment fell away, thereby conflating a reduction in expenditure with an increase in income.
At the hearing of the appeal, Advocate Janssen appeared on behalf of the appellant. The respondent was unrepresented and appeared in person. She raised an objection in limine — for the first time and without any prior notice — that the appeal had been noted out of time and that no condonation had been sought. This objection, and the Court’s treatment of it, raised important questions about the interplay between the Regulations published in terms of section 44 of the Maintenance Act and the Magistrates’ Court Rules, to which I turn in the next section.
Timing is Everything: When Does the Clock Start Running on a Maintenance Appeal?
The respondent’s eleventh-hour objection brought into sharp focus a procedural trap that catches many practitioners: the rules governing the noting of a maintenance appeal are not the same as those governing a civil appeal from the Magistrates’ Court.
The right of appeal lies in terms of section 25(1) of the Maintenance Act 99 of 1998, which provides that any person aggrieved by a maintenance court order may appeal to the High Court “within such period and in such manner as may be prescribed.” That prescription is found in Regulation 15 of the Regulations published in terms of section 44 of the Maintenance Act. Subregulation 15(1) requires that the appeal be noted within 20 days of the date of the order appealed against. Critically, this must occur before the presiding officer has furnished written reasons, which the presiding officer is only obliged to provide within 14 days after the appeal has been noted, in terms of Subregulation 15(3). It is only once the appeal has been duly noted under Subregulation 15(1) that Subregulation 15(5) kicks in, directing that the appeal thereafter be prosecuted as if it were a civil appeal from the Magistrates’ Court, with Rule 50 of the Uniform Rules of Court applying mutatis mutandis.
This stands in stark contrast to the position under the Magistrates’ Court Rules. Rule 51(1) entitles a party to request written reasons from the presiding officer within 10 days of judgment, and the presiding officer must furnish those reasons within 15 days. Rule 51(3) then allows the appeal to be noted within 20 days after the date of judgment, or within 20 days after the written reasons have been supplied — whichever is later. The practical effect is that, in ordinary civil appeals, a party may wait for the magistrate’s reasons before deciding whether and on what grounds to appeal.
The Court further highlighted a second distinction that is easily overlooked. The meaning of “days” differs between the two regimes. Under the Magistrates’ Court Rules, section 2(2) provides that Saturdays, Sundays and public holidays are excluded from any calculation of time — in other words, the Rules count court days. The Maintenance Act and its Regulations, however, do not define the word “days,” and one must therefore fall back on section 4 of the Interpretation Act 33 of 1957, which counts calendar days, including weekends and public holidays, with the proviso that where the last day falls on a Sunday or public holiday, the deadline extends to the next business day.
The upshot is this: a maintenance appeal must be noted within 20 calendar days of the order, and before reasons have been furnished. A civil appeal from the Magistrates’ Court must be noted within 20 court days, and the appellant may wait until after reasons have been provided. The appellant’s legal representatives had plainly proceeded on the footing that the Magistrates’ Court Rules applied, noting the appeal within 20 court days of receiving the magistrate’s written reasons. They were wrong.
Despite this, the Court declined to uphold the respondent’s objection. Davis AJ reasoned that the respondent had caused prejudice to the appellant by ambushing him with an unheralded technical point at the hearing, when it was too late to bring a condonation application. Had the point been raised in heads of argument — as would have been expected of a represented litigant — the appellant could have addressed it. The Court further observed that the respondent suffered no prejudice from the late noting, since section 25(3) of the Maintenance Act provides that an appeal does not suspend payment of maintenance. If anything, the delay had benefited the respondent, as the appellant had been paying the higher amount for longer. There was no suggestion of wilful default. In the circumstances, the Court invoked section 84 of the Magistrates’ Court Act 32 of 1944, which empowers the court of appeal to extend the time for noting an appeal, and allowed the matter to proceed.
Davis AJ went further, expressing the obiter view that Regulation 15 is inherently problematic insofar as it requires an appellant to specify the findings of fact and rulings of law appealed against in circumstances where the magistrate has not yet provided written reasons. An appellant simply cannot meaningfully identify errors in findings and rulings that have not yet been articulated. The notice of appeal will inevitably require amendment once reasons are furnished, adding to costs and delay. The Court suggested that the Minister consider amending the Regulations to bring them into line with the procedure under the Magistrates’ Court Rules, so that an appeal may be noted after reasons have been provided.
The lesson for practitioners is clear. When noting an appeal against a maintenance order, do not reach for the Magistrates’ Court Rules. Reach for the Regulations. Count calendar days, not court days. And count them from the date of the order, not from the date on which reasons are furnished. Fail to do so, and you may find yourself seeking condonation — or worse, ambushed at the hearing by an unrepresented respondent who knows her rights better than your client’s attorneys know the Rules.
Show Your Working: The Duty of a Maintenance Court to Provide Reasoned Calculations
At the heart of this appeal lay a series of errors in the magistrate’s calculations — errors which, in the Court’s view, justified intervention. The judgment serves as a masterclass in what can go wrong when a maintenance court fails to explain its reasoning and show how it arrived at its figures.
The starting point is section 15 of the Maintenance Act 99 of 1998, which codifies the common law duty of both parents to support their children according to their respective means. Section 15(3)(a) directs the maintenance court, in determining the amount of maintenance, to have regard to the fact that the obligation is joint, that each parent’s share is apportioned according to their respective means, and that the duty exists irrespective of whether the child was born in or out of wedlock. Section 15(3)(b) further provides that the amount determined shall be such as the court considers fair in all the circumstances.
The practical tool for giving effect to these principles is what Davis AJ termed “the maintenance formula” — a straightforward pro rata calculation whereby a parent’s share of the child’s expenses equals that parent’s income, divided by the combined income of both parents, multiplied by the child’s costs. The formula is not a statutory prescription but a widely applied mechanism in the maintenance courts that gives expression to the legal principle of proportionate liability.
The Court emphasised, with reference to the dictum of Olivier JA in Douglas v Douglas [1996] 2 All SA 1 (A), that the determination of a reasonable maintenance award is not a matter of precise mathematical calculation. It is necessarily an estimate, arrived at by considering a variety of factors including the needs of the child, the social status of the parties, and the means of each parent. But the fact that the exercise involves estimation does not relieve the magistrate of the duty to explain, with reference to the evidence, how each amount was arrived at — even where the amount represents an estimate, the factual basis for that estimate must be disclosed in the reasons.
It was here that the magistrate fell short. Davis AJ identified no fewer than five discrete errors in her assessment of the minor child’s reasonable expenses.
On groceries, the magistrate allowed R 1 666.66 for the child’s share without making any finding as to the total monthly grocery bill. The respondent’s own evidence, supported by bank statements, placed her average grocery expenditure at R 5 183.46 per month for herself, the child and the live-in domestic worker. The well-established rule of thumb for apportioning household expenses — two parts per adult and one part per child — would have yielded a divisor of five. But to arrive at R 1 666.66 for one-fifth, the total grocery bill would have had to be R 8 333.30, a figure that exceeded even the respondent’s highest claim. The Court found no justification for the figure in the record or the reasons, and concluded that a reasonable estimate was R 5 200.00 per month, yielding a child’s share of R 1 040.00.
On school transport, the magistrate included R 600.00 per month despite uncontested evidence that the child’s new school was two streets from home and that the domestic worker would walk the child to and from school. The expense was plainly going to fall away when the child moved to Parklands College in 2025, and the magistrate ought to have limited it to the period ending 31 December 2024.
On the motor vehicle instalment, the magistrate allocated R 1 650.00 per month as the child’s share of the respondent’s R 9 598.00 monthly instalment, apparently by dividing the instalment among household members. The Court held that this approach was inappropriate where the evidence showed the vehicle was used very little for the child — fewer than 50 kilometres per month. Davis AJ preferred instead to apply the SARS tax-free vehicle reimbursement rate of R 4.84 per kilometre for the 2024/2025 tax year, arriving at R 242.00 per month, rounded up to R 250.00. The striking disparity between R 250.00 and R 1 650.00 warranted interference.
On medication and stationery, the magistrate included amounts of R 100.00 and R 103.33 respectively in the cash maintenance calculation, notwithstanding that the order separately directed the appellant to pay half of all medical costs and half of all stationery expenses. These were plain duplications that inflated the cash maintenance figure.
The Court did, however, decline to interfere with two items. The amount of R 1 250.00 for the child’s share of the domestic worker’s salary of R 2 500.00 per month was upheld. Although the appellant argued for a one-third apportionment rather than one-half, the Court accepted that a large part of the domestic worker’s function was to assist with the child, and that a 50% allocation was within the range of reasonableness. Similarly, the amount of R 625.00 per month for the child’s clothing was upheld. The respondent’s unchallenged evidence placed annual clothing expenditure at approximately R 7 000.00, and the appellant had not put the amounts in issue during cross-examination.
On the question of inflation, the magistrate had applied a rate of 7% to escalate the 2024 expenses to 2025 figures, without disclosing the source of that percentage. Davis AJ consulted the CPI figures published by Statistics South Africa and found that the annual headline inflation rate had fluctuated between 4.7% and 5.9% over the twelve months preceding the order, with an average of 5.3%. The rate of 7% was an arbitrary figure that bore no relation to the actual CPI and exceeded even the highest recorded monthly figure. The Court substituted a rate of 5.3%.
Then there was the income miscalculation. The magistrate assessed the appellant’s earnings at R 22 000.00 per month — a figure the appellant himself had mistakenly volunteered in evidence. But a simple exercise in arithmetic, based on the appellant’s own uncontested evidence of actual amounts received, yielded an average of R 13 480.00 over ten months. The Court held that it was incumbent on the magistrate to check the figures rather than simply accepting an incorrect concession. To make matters worse, the magistrate then added R 12 000.00 to the appellant’s income on the theory that, once he sold his vehicle, he would have that amount available. This confused income with expenditure. The sale of a vehicle reduces expenses; it does not generate earnings. The error inflated the appellant’s assessed income to R 34 000.00, which in turn inflated his proportionate share under the maintenance formula.
The cumulative effect of these errors was dramatic. Applying the maintenance formula to the correct figures — the appellant’s net income of R 13 480.00 against the respondent’s net income of R 42 000.00 — the appellant’s proportionate share was 25%, not the significantly higher ratio that flowed from the magistrate’s inflated income figure of R 34 000.00. Applied to the revised monthly expenses of R 7 371.00, the appellant’s pro rata share came to R 1 842.75, a far cry from the R 7 500.00 per month he had been paying under the original order.
The approach to appellate intervention was governed by a line of authority running through Bordihn v Bordihn 1956 (2) PH B32 (A), Mentz v Simpson 1990 (4) SA 455 (A) and the Douglas case, according to which an appellate court should not interfere in the absence of a misdirection unless there is a substantial variation between the appellate court’s own estimate and that of the court a quo, or there is no sound basis for the award, or an unusual degree of certainty that the estimate was wrong. But as the Court in Mentz and Douglas made clear, the appellate court must not abdicate its function by deferring to the trial court in a case of doubt or difficulty. The appeal is a rehearing, and the appellate court must arrive at its own figure and give effect to it where there is a substantial difference.
In this case, there was more than enough to justify intervention. The errors were not marginal. They were duplications, arbitrary figures, arithmetic mistakes and conceptual confusions that, taken together, resulted in an order without a sound basis. The judgment is a pointed reminder to magistrates presiding over maintenance enquiries: show your working, ground your estimates in the evidence, and do the arithmetic correctly. If you do not, the High Court will.
Separating the Apples from the Oranges: Why Education and Medical Costs Should Not Be Lumped into Cash Maintenance
One of the most practically significant aspects of this judgment is the Court’s insistence on treating education costs and medical costs separately from the general cash maintenance contribution. This is not a novel idea among family law practitioners, but it is one that maintenance courts routinely ignore — often to the long-term detriment of the child the order is meant to protect.
The magistrate in the court a quo had bundled the minor child’s school fees of R 6 500.00 per month together with her general living expenses, arriving at a single global figure for cash maintenance. That composite amount was then subjected to an annual CPI escalation. On the face of it, this seems tidy. In practice, it is a recipe for the erosion of the maintenance order’s value over time.
The reason is straightforward. The headline CPI published by Statistics South Africa measures the average rate of price increases across a broad basket of consumer goods and services. Education costs, however, do not increase at the average rate. They increase at the education price index, or EPI, which consistently outstrips the CPI by a considerable margin. Any parent who has opened a school fee invoice in January and compared it to the previous year’s account will attest to this reality. The same is true of medical costs, where medical inflation has for years exceeded the headline CPI.
The consequence of lumping school fees and medical expenses into a cash maintenance amount that escalates only by CPI is that the real value of the education and medical components of the order is steadily whittled away with each passing year. Within a few years, the custodial parent finds herself subsidising an ever-increasing shortfall — not because the non-custodial parent’s proportionate liability has changed, but because the mechanism chosen by the magistrate was structurally inadequate to keep pace with the actual rate of increase in those specific categories of expenditure.
Davis AJ’s solution was elegant and, one hopes, will be widely adopted. Rather than folding school fees into the cash maintenance amount, the Court ordered the appellant to pay 25% of the minor child’s school fees — his pro rata share — directly to the school or by way of reimbursement to the respondent on proof of payment. Because the obligation is expressed as a percentage of the actual fees, the appellant’s contribution automatically adjusts each year to reflect whatever increase the school imposes, without the need for a variation application or any further order. The same logic applied to medical expenses. The appellant was ordered to reimburse the respondent for 50% of the medical aid premium and 50% of out-of-pocket medical expenses not covered by the scheme, again on proof of payment and subject to a reasonable cap on excess amounts exceeding R 2 000.00 without prior consent.
This approach has a number of advantages beyond inflation-proofing. It promotes transparency. Each parent knows precisely what the school is charging, what the medical aid costs, and what their respective shares are. It reduces scope for dispute. A percentage of an invoiced amount leaves little room for argument, whereas a global cash amount invites perennial disagreement about whether it still adequately covers the child’s needs. And it reduces the need for repeated returns to court. A maintenance order that keeps pace with actual cost increases is far less likely to require variation than one shackled to an inadequate escalation mechanism.
The Court also refined the treatment of ancillary education costs. Rather than a vague direction to share stationery expenses equally, the revised order drew a practical distinction between the annual prescribed requirements — books, stationery and equipment specified by the school at the beginning of each year — and ad hoc purchases that arise during the course of the year. The appellant was ordered to pay his share of the prescribed requirements in advance, within seven days of being furnished with proof of the school’s requirements and the cost thereof, and to reimburse the respondent for half of any additional ad hoc expenses on production of invoices and proof of payment. This level of specificity avoids the kind of uncertainty that so often gives rise to non-compliance and further litigation.
The judgment did not deal expressly with extracurricular activities, which are a frequent source of contention in maintenance proceedings. But the principle underlying the Court’s approach — that categories of expenditure which inflate at different rates should be dealt with separately, and that percentage-based obligations are preferable to fixed amounts — is of general application and lends itself readily to extension.
For practitioners drafting maintenance orders and settlement agreements, the takeaway is this. Resist the temptation to arrive at a single neat number. A global cash amount with a CPI escalation may look clean on the page, but it stores up problems for the future. Separate the components. Express education and medical contributions as percentages of actual costs. Provide for direct payment or reimbursement on proof. Build in mechanisms for the exchange of invoices and a reasonable timeframe for payment. The result will be an order that endures, that is self-adjusting, and that minimises the need for the parties to return to court.
Davis AJ’s concluding remarks carried a further, understated message. The Court observed that the appellant’s pro rata share had been calculated from a very low income base owing to his particular circumstances at the time of the enquiry, and expressed the hope that, if his earnings had since increased, he would do the right thing and reach agreement with the respondent on a fair contribution based on their current respective incomes. The observation is a reminder that a maintenance order is not a ceiling on a parent’s obligation. It is a floor — and one that is only as solid as the evidence and the reasoning on which it is built.
Questions and Answers
What is the statutory basis for a maintenance appeal from the Magistrates’ Court to the High Court?
Section 25(1) of the Maintenance Act 99 of 1998 provides that any person aggrieved by an order made by a maintenance court may appeal against such order to the High Court having jurisdiction, within such period and in such manner as may be prescribed.
Within what period must a maintenance appeal be noted, and how is that period calculated?
Regulation 15(1) of the Regulations published in terms of section 44 of the Maintenance Act requires that an appeal be noted within 20 days of the date of the order appealed against. Because the word “days” is not defined in the Maintenance Act or the Regulations, it falls to be interpreted in accordance with section 4 of the Interpretation Act 33 of 1957, which counts calendar days inclusive of weekends but exclusive of the first day. Where the last day falls on a Sunday or public holiday, the deadline extends to the next business day.
How does this differ from the time period for noting a civil appeal from the Magistrates’ Court?
Under Rule 51(3) of the Magistrates’ Court Rules, an appeal must be noted within 20 days after the date of judgment or within 20 days after the magistrate has furnished written reasons, whichever is later. Crucially, section 2(2) of the Magistrates’ Court Rules excludes Saturdays, Sundays and public holidays from the calculation, meaning the 20 days are court days, not calendar days. The Magistrates’ Court Rules also permit the appellant to wait for written reasons before noting the appeal, whereas Regulation 15 requires the appeal to be noted before the magistrate has furnished reasons.
Why did the Court describe the requirement to note a maintenance appeal before receiving the magistrate’s reasons as problematic?
Subregulation 15(2) requires that the notice of appeal set out the parts of the order appealed against and the grounds of appeal, specifying the findings of fact or rulings of law appealed against. Davis AJ observed that an appellant cannot meaningfully specify findings of fact or rulings of law that the magistrate has not yet articulated in written reasons. The notice of appeal will inevitably require amendment once reasons are to hand, which increases costs and causes delay. The Court suggested that the Minister consider amending the Regulations to bring them into line with the Magistrates’ Court Rules by allowing an appeal to be noted after reasons have been furnished.
At what point do the Magistrates’ Court Rules begin to govern the prosecution of a maintenance appeal?
Subregulation 15(5) provides that after an appeal has been noted in terms of Subregulation 15(1), the appeal shall be prosecuted as if it were an appeal against the decision of a magistrate in a civil matter, and Rule 50 of the Uniform Rules of Court applies mutatis mutandis. The Court emphasised that the Magistrates’ Court Rules do not apply to the noting of a maintenance appeal — they only govern its prosecution once it has been duly noted under the Regulations.
On what basis did the Court allow the appeal to proceed despite its late noting?
The Court relied on section 84 of the Magistrates’ Court Act 32 of 1944, which empowers the court of appeal to extend the time for noting an appeal. In exercising this power, the Court had regard to the fact that the respondent had caused prejudice to the appellant by raising the objection for the first time at the hearing without prior notice, that the respondent herself suffered no prejudice because section 25(3) of the Maintenance Act provides that an appeal does not suspend payment of maintenance, that the appellant had shown no wilful default, and that a postponement would only increase costs and waste judicial resources.
What does section 15 of the Maintenance Act require a maintenance court to consider when making a maintenance order?
Section 15(3)(a) directs the court to take into consideration that the duty of supporting a child is a joint obligation of both parents, that their respective shares are apportioned according to their respective means, and that the duty exists irrespective of whether the child was born in or out of wedlock. Section 15(3)(b) provides that the amount determined shall be such as the court considers fair in all the circumstances of the case. The section codifies and does not alter the common law position as articulated in Lamb v Sack 1974 (2) SA 670 (T) and Van der Harst v Viljoen 1977 (1) SA 795 (C), namely that both parents are under a duty to support their children and that their respective shares are apportioned according to their financial resources and circumstances.
What is the maintenance formula referred to in the judgment, and what is its legal basis?
The maintenance formula is a pro rata calculation whereby a parent’s share of the child’s expenses equals that parent’s income divided by the combined income of both parents, multiplied by the child’s total costs. It is not prescribed by statute but is a practical tool regularly applied in the maintenance courts to give expression to the legal principle, enshrined in section 15(3)(a) of the Maintenance Act, that each parent’s share of the obligation to maintain a child is apportioned according to their respective means.
What is the correct approach for an appellate court when considering whether to interfere with a maintenance order?
The approach is drawn from the line of authority running through Bordihn v Bordihn 1956 (2) PH B32 (A), Mentz v Simpson 1990 (4) SA 455 (A) and Douglas v Douglas [1996] 2 All SA 1 (A). The appellate court should not interfere in the absence of a misdirection or irregularity unless there is a substantial variation or striking disparity between the appellate court’s own estimate and that of the court a quo, or the appellate court considers that no sound basis exists for the award, or there is some unusual degree of certainty that the estimate was wrong. However, as emphasised in the Mentz and Douglas cases, the appellate court must not abdicate its function by deferring to the trial court in cases of doubt or difficulty. An appeal is a rehearing, and the appellate court must arrive at its own figure and give effect to it where there is a substantial difference.
What duty does a magistrate have to explain the reasoning behind a maintenance order?
The Court held that a magistrate must provide a clear and detailed account of how each amount making up the maintenance award was arrived at. Even where the amount represents an estimate, the factual basis for that estimate must be disclosed in the written reasons. Where an expense is apportioned between members of a household, the method of apportionment and the rationale for it must be explained. A failure to do so deprives the appellate court of the ability to assess whether the award was soundly based, and deprives the parties of the ability to understand and, if necessary, challenge the basis of the order.
What is the established method for apportioning household expenses to a child for maintenance purposes?
The established rule of thumb is to allocate two parts per adult and one part per child in the household. In this case, the respondent’s household comprised herself, the domestic worker and the minor child, yielding a divisor of five — two parts each for the two adults and one part for the child. This method was applied by the Court in recalculating the child’s share of grocery expenses.
Why did the Court reject the magistrate’s approach to assessing the appellant’s income?
The magistrate assessed the appellant’s average monthly income at R 22 000.00 per month, a figure the appellant had himself mistakenly volunteered. The Court held that it was incumbent on the magistrate to check the arithmetic rather than simply accepting an incorrect concession. On the appellant’s own uncontested evidence of actual amounts received, his average monthly income was R 13 480.00 over ten months. The magistrate further erred by adding R 12 000.00 to the appellant’s income on the basis that the sale of his motor vehicle would free up that amount, thereby confusing a reduction in expenditure with an increase in income.
Does an appeal against a maintenance order suspend the obligation to pay maintenance?
No. Section 25(3) of the Maintenance Act specifically provides that an appeal against a maintenance order shall not suspend the payment of maintenance in accordance with the order appealed against. The only exception is where the appeal is directed against a finding that the appellant is legally liable to maintain the person in whose favour the order was made, for example where paternity is disputed.
Why did the Court consider it preferable to treat education and medical costs separately from cash maintenance?
The Court observed that education costs increase at the education price index, which consistently exceeds the headline CPI, and that medical costs similarly inflate at a rate above CPI. Where school fees and medical expenses are included in a cash maintenance amount that escalates only by CPI, the real value of those components is eroded over time. By expressing education and medical contributions as percentages of actual costs, the order automatically adjusts to reflect real increases without the need for variation applications.
Was the respondent awarded costs of the appeal?
No. The Court declined to burden the respondent with the appellant’s costs despite the appeal being upheld. Davis AJ reasoned that the respondent had been unrepresented throughout and that it was the appellant’s choice to engage legal representation for the appeal. Ordering the respondent to pay those costs would place financial pressure on her, which could occasion hardship for the minor child. Each party was accordingly left to bear their own costs.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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