Morobi v Lekoma (105/05) [2005] ZANWHC 69 (29 September 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 105/05

In the matter between:

PULE MOROBI

AND

ODISITSE

LEKOMA

MMABATHO

TLHAPI

AJ

REVIEW JUDGMENT

TLHAPI AJ:

[1] The Plaintiff appeared before the Small Claims Court sitting in Mmabatho where he claimed payment in the amount of R4 366.75 from the Defendant. The claim is in respect of expenditure incurred on behalf of the Defendant’s ten year old son.

[2] The Defendant and mother of the minor were not married to each other and on her death the minor child remained in the custody of his maternal grandmother who is also the mother-in-law of the Plaintiff. When the mother-in-law took ill she moved with the minor child to the house of the Plaintiff and he took over the responsibility of maintaining the child. It is alleged that the Defendant was not paying maintenance and a complaint had been lodged with the Maintenance Officer.

[3] The expenses incurred related to the minor child’s school needs, clothing and subsistence. The Plaintiff summoned the Defendant to a family meeting where the Defendant agreed to such expenditures being incurred and minutes were taken of this meeting.

At the hearing the Plaintiff submitted additional claims which he had forgotten to include which brought his claim to a total of R5 501.77.

[4] The Commissioner dismissed his claim. No reason is stated on the cover sheet of the file. However, the Plaintiff stated that the reasons given by the Commissioner for his dismissal of the claim were the following:

4.1 The Plaintiff did not make arrangements with the Defendant to take care of the child;

4.2 Claims that were not invoiced could not be considered; and

4.3 The Small Claims Court was not the relevant court and the Plaintiff was referred to the Maintenance Court.

[5] The following query was raised:

“5.1 What are the reasons for dismissing the claim;

5.2 The Plaintiff alleges that certain claims were proved and that receipts were handed in. . . . further, there was evidence that the Defendant was consulted relating to the clothes that were purchased and that minutes between them were handed in. Should these claims not have been considered?

5.3 It is the interest of the maintenance to the minor child that takes preference in a maintenance enquiry and not payment of debts. I am of the view that some relief should have been given especially in respect of claims proved. It is not about the failure of the Plaintiff to consult the Defendant before taking it upon himself to maintain the minor child, it is about the right of the minor child to proper care and maintenance on that part of those responsible for him on a day to day basis.”.

[6] The Small Claims Court is not a court of record. I am also unable to confirm whether the version of the Plaintiff in his statement accompanying the Review Application properly reflects what was placed before the Commissioner at the hearing. The invoices attached do not give proper details of the expenditure incurred.

I am of the view, that the Plaintiff’s claim should be considered and that it is not a matter for the Maintenance Court. This matter is consequently referred back to the Small Claims Court for a hearing de novo before another Commissioner.

____

V

V TLHAPI

ACTING

JUDGE OF THE HIGH COURT

I agree

_____

A

A LANDMAN

JUDGE

OF THE HIGH COURT

DATED : 29 SEPTEMBER 2005

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