Louis Case Reports

MAINTENANCE FOR ADULT CHILDREN

Divorce – Maintenance – Adult dependent child – Whether parent has locus standi in judicio to claim maintenance from other parent for and on behalf of adult dependent child of their marriage upon their divorce – Divorce Act 70 of 1970, s 6.
Z v Z [2022] ZASCA 113 at [5]-[22]

The mother initiated divorce proceedings against the father and claimed maintenance for herself as well as for the two major, but still financially dependent, children. The father filed a special plea, averring that the two children have reached the age of majority and accordingly have the necessary locus standi to pursue maintenance claims against him in their own names, and that the mother lacks the requisite locus standi to do so on their behalf. The mother relies on the provisions of s 6 of the Divorce Act 70 of 1970, which she contends authorises a parent to claim maintenance from the other parent on behalf of a major dependent child. The High Court upheld the special plea and the mother now appeals.

Meyer AJA discusses the proper interpretation of section 6 of the Act; that there are conflicting High Court decisions on the question of whether a parent has locus standi in judicio to claim maintenance from the other parent on behalf of an adult dependent child; that the age of majority was reduced from 21 years to 18 years in terms of s 17 of the Children’s Act 38 of 2005; that the purpose of section 6 is clear in that it serves to safeguard the welfare of both adult dependent and minor children of the marriage; and that an interpretative analysis leads to the inevitable conclusion that subsections 6(1)(a) and 6(3) of the Divorce Act vest parents with the requisite legal standing to claim maintenance for and on behalf of their dependent adult children upon their divorce. The appeal is upheld and the order of the court below replaced with one dismissing the special plea.

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DEFENCE OF COUNTER SPOLIATION

Invasion of land – Informal structures – Demolishing of structures by officials – City’s reliance on counter spoliation – Whether unconstitutional and invalid.
Human Rights Commission v City of Cape Town [2022] 8631-2020 (WCC) at [22]-[99]

In 2020 during the covid lockdown, Mr Qolani was dragged, naked, out of his informal structure in a settlement in Khayelitsha, by officials of the City of Cape Town. After this, they demolished his structure with crowbars. The common law defence of counter spoliation was relied on by the City for the summary demolition of the structure by its officials, who unilaterally determined that the structure was unoccupied. The Human Rights Commission and the other applicants seek to have this conduct declared unlawful insofar as it is permitted by the remedy of counter spoliation.

Saldanha JDolamo J and Slingers J discuss whether the officials employed by the City acted lawfully in terms of the common law defence of counter spoliation or whether possession was lost and counter spoliation was no longer available to them and their actions required judicial supervision; the winding road of litigation in the matter; the conflation of the relief with the PIE Act; the City’s reliance on the common law remedy of counter spoliation to summarily demolish and remove structures before they are occupied as homes; the element of physical control and the requirements for a person to be regarded as a possessor; and the instanter requirement. The conduct of the City in demolishing the structures and effectively evicting the occupiers based on its incorrect interpretation and application of the common law defence of counter spoliation is declared to have been both unlawful and unconstitutional.

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FAILURE TO SERVE ON STATE ATTORNEY

Civil Procedure – Whether failure to serve summons against Minister of Police on State Attorney nullified summons – State Liability Act 20 of 1957, s 2(2).
Minister of Police v Molokwane [2022] ZASCA 111 at [11]-[25]

In 2015, Mr Molokwane instituted action in the High Court against the Minister and the three other appellants, claiming damages for alleged wrongful arrest and assault. Summons was served on these three, who had been acting within the course and scope of their employment with the Minister. However, service on the Minister was to his official place of business and not on the State Attorney as prescribed by s 2(2) of the State Liability Act 20 of 1957. The High Court considered the purpose of s 2(2) of the State Liability Act and reasoned that the non-service on the State Attorney did not render the summons a nullity. At most, the non-service constituted an irregular step, which could be rectified. And in this case the State Attorney later formally placed itself on record on behalf of the appellants and exchanged pleadings with the respondent’s attorneys.

Makgoka JA discusses the Minister’s contentions: that service upon the State Attorney was mandatory in terms of section 2(2); that the Act does not make provision for condonation for non-compliance; and alternatively, that the action had been extinguished by prescription by the time summons was served on the State Attorney in this case. The court discusses the case law on the approach to the interpretation of similar provisions; whether there has been compliance with the statutory provisions viewed in the light of their purpose; section 39(2) of the Constitution, which enjoins courts, when interpreting any legislation, to promote the spirit, purport and objects of the Bill of Rights; the purpose of section 2(2) that the relevant executive authority is afforded effective legal representation by the State Attorney; that there was a deafening silence on the Minister’s part as to what he did with the summons after receiving it; that the State Attorney effectively represented the Minister in this action, by entering appearance to defend; that there was no prejudice suffered by the Minister as a result of non-service of a copy of the summons on the State Attorney; and that the respondent’s condonation application for the late service of his statutory notice in terms of s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 was granted.
The appeal is dismissed.

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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