IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between: 

and

JUDGMENT

Briefly, it appears that on 6 August 2009, the respondent brought an urgent application to set aside a warrant of execution against movable property and attachments made in accordance with the warrant. This warrant of execution had been issued as a result of alleged non-compliance with maintenance obligations which the first respondent owed to appellant in relation to their four minor children.

On 10 September 2009, the appellant filed a counter-application seeking a variation of the order of divorce by removing joint decisions with regard to certain remedial assistance and extra tertiary which had been required for certain of the children. In addition, there was a further prayer which sought to remove the first respondent's liability to pay certain designated amounts and to be replaced with a liability for a global maintenance payment which amounted to an amount of approximately R9 500,00 per month per child relating to maintenance, school fees and certain prescribed medication.

In the final analysis, the appeal which came before this Court, turned on these two separate sets of questions, namely was Allie J justified in concluding that the writ could only legally be issued in the amount of R1 700,00 per month as opposed to R55 803,95 and, further, that the counter-application, both with regard to certain amendments, to joint decision making as set out in the consent paper, be altered in favour of decisions to be made solely by the appellant and for the award of a global amount should be dismissed.

"Do you not know (referring to first respondent) that as a father you owe an obligation to your children to ensure that they get the best possible life that is available to them in terms of your available resources?"

Any decent parent would obviously answer this question in the affirmative. Any conclusion which this court arrives at in a case of this kind, should not be construed as answering this question in any other way. However, the problem is that courts can only work with the available evidence. The available evidence in this case, most certainly during the relevant period and probably even more so given the difficult economic climate which architects surely encounter in a recession, is that there is no basis by which this court could come to a conclusion in favour of the appellant in respect of this component of the counter-application.

At present there is no legislative framework which would empower this court to order mediation, even on appeal. This is a case which cries out even with a cursory examination of this record, for a court to be empowered to order that the parties subject themselves to a process of mediation and that, if necessary, the court could appoint a mediator. I accept that that is not what is contained in the rules of court at present, but this is precisely the kind of case that should never have come before this court, but should have been subjected to alternative dispute resolution as I have sketched it, albeit, briefly.

Indeed, the court was compelled, at least one point in these proceedings, to request the parties to engage earnestly between themselves so as to settle this matter and to obviate the handing down of a judgement. Regrettably, for reasons which we do not understand, an agreement could not be achieved. That in itself is a luminous illustration as to the need for a memo of alternative dispute resolution to be utilised in such a case.

In the final analysis, without this judgment being construed as any mitigation on the obligations of any parent to fulfil their duties to their children, the evidence placed before this court does not justify interference by the court on appeal.

In the event, therefore, both the appeal and the appeal on the counter-application are dismissed. Obviously, given that the first respondent represented himself, there is no order as to costs.

			STEYN,J

DLODLO,J