LAW OF PERSONS

Maintenance

—

Transvaal Ordinance No. 44 of 1903

—

Essentials to be proved before order made.

Summary:

Appellant appeared before a Native Commissioner on the complaint of the respondent that he had unlawfully deserted his two children under fifteen years of age and left

them without means of support.

The

Native Commissioner

made

an order under Transvaal Ordinance No. 44 of 1903 against appellant for the maintenance of the children.

Held: That before an order is

made

in terms ofthe Ordinance the following requirements must be satisfied:

—

1.

The

child for

whom

maintenance is claimed is under

fifteen years of age.

2.

The

child for

whom

maintenanceis claimedis thechild of the father

who

is

summoned.

3.

The

child for

whom

maintenance is claimed has been left by thefather without adequate means of support.

4.

The

father of the child can afford to maintain it.

Held further: That the evidence without doubt adequately ful- filled the requirements numbered 1, 2 and 4.

Held further: That as the evidence did not fully meet the requirement of proving that the children were left by the father without adequate means of support, the Native Commissioner had no right to grant the order he did.

Cases referred to:

Rex

v. Rantsoane, 1953 (3) S.A., 286.

Statutes, etc., referred to: Section three of Ordinance No. 44 of 1903 (Transvaal).

Appeal from the Court of the Native Commissioner, Pretoria.

Ashton (Acting President), delivering the judgment of the Court:

—

165

Application is

made

for an extension of time within which to appeal against an order

made

by theActing Assistant Native Commissioner, Pretoria, against applicant to pay £2 a

month

maintenance for the two children of

Norah Mahlangu

on the 20th November, 1953.

The

application is dated the 15th June, 1954

—

a considerable timeafterthe lastday fornoting anappeal.

The

reasons given for the failure to note the appeal timeously, are:

—

“(a)That no proper investigation was

made

at the enquiry held on the 20th November, 1953.

(b)That I was not legally represented.

(c)That I was unaware of

my

rights and the rights of the Complainantinthe matter.

(d) That at the time I had no funds to engage an attorney.”

None

of these reasons can be accepted as good and sufficient for the non-noting of the appeal within the time allowed and if

consideration of the application ended there refusal of the application would be the inevitable result. But there has to be taken into account the question whether the applicant might have a reasonable prospect of succeeding in his appeal if he were allowed to prosecute it.

It becomes necessary therefore to review the proceedings in the Native Commissioner’s Court and I feel that the applicant

may

be prejudiced if his appeal is not allowed to be heard.

The

application is accordingly granted.

The

appellantwas

summoned

to appear inthe Native

Commis-

sioner’s Court on the complaint of the respondent that he had unlawfully deserted his two children under fifteen years of age and left them without

means

of support. Appellant was called upon to

show

cause

why

he should not supportthesetwochildren and was warned that an order to do so might be

made

against him in terms of section three of Transvaal Ordinance No. 44 of 1903.

An

enquiry was held by the Acting Assistant Native

Commis-

sioner atwhichthe motherofthe childrengave evidence followed by appellant himself and he

made

the order against which this appeal is lodged on the following grounds:

—

“_1. That the said order is illegal.

2.That no proper investigation and/or enquiry was made.

3. That the Guardian of the respondent was not present at the said enquiry.

4. That the matter was not investigated under Native

Law

and Custom.

5. That there was no legal ground upon which an order for maintenance could be made.

6. That the question of previous children born to the respondent and/or her prior seduction were not con- sidered.

7. That the order is bad in law.”

It has been laid

down

that before an order

may

be

made

in terms of the Ordinance the following requirements must be satisfied [see

Rex

v. Rantsoane, 1952 (3) S.A. at page 286

et seq]:

—

1.

The

child for

whom

maintenance is claimed is under fifteen years of age.

2.

The

child for

whom

maintenance is claimed is the child of the father

who

is

summoned.

166

3.

The

child for

whom

maintenance is claimed has been left

by the father without adequate means of support.

4.

The

father of the childcan afford to maintain it.

The

evidence at the enquiry without doubt adequately fulfilled the requirements numbered 1, 2 and 4 but that numbered 3 needs more careful examination.

The

evidence of the mother in this respects is that the father supported the elder child until he was fifteen months old, he was born in 1947

—

and that he had not supported the second child at all. She added that she had received nothing at all

from the father after he ceased to support the elder child. She also pointed out that children’s clothes were dear and that the elder child had to go to school and that she needed £5 a

month

to maintain them.

Nowhere

isany mention

made

thatthe children, despite the father’s defection, are without adequate means of support.

Appellant’s evidence did not do anything to help to show that the children were not adequately supported though he said nothing to refute that they were inadequately supported.

The

question of his liaiblity whether at

Common Law

or Native

Law

does not

come

into the picture inproceedingsunder the Ordinance once it has been established that the person sum-

moned

is the father of the child. It is possible therefore to eliminate the grounds of appeal numbered 1, 2, 3, 4 and 6.

The

remaining grounds of appeal numbered 5 and 7 seem to

mean

the same thing.

One

of the requirements precedent to the making of an order, namely that the children were left by the father without adequate means of support, was not fully met and the Acting Assistant Native Commissioner had no right to grant the order he did.

The

appeal must ^{therefore succeed.}

It is ordered that the appeal be and it is hereby allowed and the order of the Acting Assistant Native Commissioner is set aside. This does not

mean

that the father

may

not be brought again before a Native Commissioner toshow cause

why

an order should not be

made

against

him

in terms of the Ordinance but the Native Commissioner ^will, in his enquiry, hear evidence and decide on the point whether the children are not adequately supported as well as decide whether the other three requirements mentioned above havebeenfulfilled.

Bowen

and Coertze (Members) concurred.

For Appellant: Adv.T. H. van Reenen, instructedby Nel and Nel.

For Respondent: Mr.

M.

Bennett of Aubrey Molin. Matterson Bennett and Co.