Matebe v Makhambi (CA&R 7/2020) [2023] ZANCHC 74 (3 November 2023)

Matebe v Makhambi (CA&R 7/2020) [2023] ZANCHC 74 (3 November 2023)

The court found that the maintenance proceedings could not be properly reviewed or adjudicated due to the absence of a record, which was neither available nor reconstructable despite repeated attempts and queries. The delays and lack of proper explanation from the magistrate and court officials were unacceptable, but the overriding concern was to prevent further prejudice to the minor child. In the interests of justice, the only appropriate remedy was to set aside the proceedings and order that the matter be heard de novo.

Citation
[2023] ZANCHC 74
Parties
Appellant: Brenda Matebe; Respondent: Vuyisile Makhambi
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
3 November 2023
Case Number
CA&R 7/2020
Procedural Posture
Review Application / High Court Review of Magistrate's Maintenance Proceedings
Outcome
The maintenance proceedings of 23 November 2018 are set aside and the matter is to be conducted de novo.
Judges
Williams, Stanton
Legal Topics
Maintenance Enquiry, Record Reconstruction, Review of Magistrate Decision
Family and Children Civil Procedure Maintenance Enquiry Record Reconstruction Review of Magistrate Decision

Case Brief

Summary, issues, holding and outcome

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Parties

Brenda Matebe

Appellant

Vuyisile Makhambi

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Maintenance Proceedings

Legal Issues

  1. 1 Whether the maintenance proceedings conducted on 23 November 2018 should be set aside due to the absence of a record of proceedings.
  2. 2 Whether the matter should be heard de novo in the interests of justice.

Ratio Decidendi

The court found that the maintenance proceedings could not be properly reviewed or adjudicated due to the absence of a record, which was neither available nor reconstructable despite repeated attempts and queries. The delays and lack of proper explanation from the magistrate and court officials were unacceptable, but the overriding concern was to prevent further prejudice to the minor child. In the interests of justice, the only appropriate remedy was to set aside the proceedings and order that the matter be heard de novo.

Court Disposition

The maintenance proceedings of 23 November 2018 are set aside and the matter is to be conducted de novo.

Orders

  • The proceedings relating to the maintenance enquiry which commenced on 23 November 2018 are set aside.
  • The matter is to be conducted de novo.