THE FACTS
Mzikayise Joseph, a teacher from the Eastern Cape said he was unhappy with the Magistrate’s Court on his maintenance case. He was ordered to pay R4 000 plus an additional charge of R200 on the R8 000 he was in arrears in maintenance payments.
The decision was taken in his absence because he could not get to court.
He said he was only notified by phone the day before the court date. Mzikayise said the court is far away from him and he did not have time to take leave to go to court.
He also said his salary was not enough to allow him to pay R4 200 for one child because he had three other children as well as siblings and parents who all depeneded on him. When he tried to go to court to rescind the judgment the magistrate told him to cancel all his policies and expenses and come back with a clean salary.
The magistrate also asked him to get an affidavit that explained the maintenance of his other three children. He wants to know what he can do?
WHAT I DID
I sent the case to SCORPION LEGAL PROTECTION for professional analysis and advice.
SOLUTION
SCORPION advises that if a respondent to a maintenance inquiry doesn’t show up at court and the presiding officer is satisfied that the respondent was made aware of the court date, the presiding officer may allow the matter to proceed in the respondent’s absence and may grant a default judgment.
Mzikayise can file a rescission or variation of the maintenance order within 20 days of him becoming aware of the maintenance order. If the application fails he can approach the High Court by filing an appeal against the Maintenance Court and explain the reasons or grounds his appeal.
He needs to point out that he was not properly served or notified. Scorpion would argue that Mzikayise was not properly served and the presiding officer disregarded an important aspect of the serving of a subpoena and was supposed to postpone the matter.
When it comes to maintenance matters the person claiming maintenance is allowed to file a case in a court where she resides. This is why the service or notification of a subpoena is critical, especially where the respondent does not attend court.
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