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Protection of a minor's interest by Courts

A minor child's interest given priority over those of the parent - Strydom v Strydom (AR598/2011) [2012] ZAKZPHC 21 (3 April 2012)

An interesting decision in the Kwazulu-Natal High Court was that of Strydom v Strydom. This case involved an appeal and a cross-appeal in which both parties were dissatisfied with an order made by the Maintenance Court in respect of two minor children born of the former marriage.

At the time of the divorce the High Court had awarded R2 500 maintenance per month per child to be paid by the Defendant as well as all medical expenses and two-thirds of the educational costs of the children

In the Maintenance Court the Appellant (the man) applied for a reduction of the maintenance to R1 000 per month per child and his liability to pay only 50% of the medical and educational expenses. The Maintenance Court allowed the reduction to be to R1 500 per month per child, but did not change the High Court order relating to medical and educational expenses.

The Appellant relied on the fact that his salary had been reduced, and that there was therefore a change in circumstance, and that he was no longer able to pay maintenance in terms of the High Court Order. 

The High Court looked at certain expenses claimed by the Appellant. He spent R1 391 per month on a retirement annuity. The High Court found that priority must be the support of his minor children, and that there could be a temporary suspension of this payment. The Court found that the same applied to a monthly payment of R663.63 in respect of a loan received from the Applicant’s father, and a monthly payment of R380 in respect of clothes and shoes, as well as R400 per month in respect of entertainment.

The High Court found that the Magistrate erred in reducing the amount of maintenance. Some of the expenses claimed by the Appellant were found to be unreasonable. 

In the end the appeal was dismissed with costs. The decision of the Maintenance Court was set aside. The Applicant’s application for a variation of the Divorce Order was dismissed. The court also looked at the fact that the High Court is the upper guardian of minor children.

In the end this was the correct decision. The High Court must ensure that minor children are properly maintained. The interests of the minor children must be properly safeguarded. In terms of Section 28(2) of the Constitution, a child’s best interests are of paramount importance, in every matter concerning the child. This is echoed in Section 9 of the Childrens Act No 38 of 2005, which provides as follows:

“In all matters concerning the care, protection and wellbeing of a child the standard that the child’s best interest is of paramount importance, must be applied”.

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