Recently, our office assisted a client in a maintenance matter in which an interim order was obtained ex-parte without notice to our client, reducing the maintenance by half and setting aside a garnishee order obtained against her ex-husband’s salary.
On the return date, the Magistrate who made the order was ill and the Chief Magistrate was called to adjudicate the matter.
Our office argued that the interim order was obtained irregularly in that:
- There was no service of the application on our client;
- The Magistrate could not have made an interim order reducing maintenance as the Maintenance Act does not make provision for such an order;
- There is no proper record of the ex-parte proceedings as the matter was heard in chambers;
- No section 6 maintenance enquiry was held.
We requested the Magistrate to set aside the interim order alternatively refer the order for special review to the High Court to be set aside. The Magistrate ruled that it would be a further irregularity to set aside another Magistrate’s order but would rather refer the matter to the High Court for special review.
The High Court held even though the Maintenance Act does not make provision for special reviews and nor does this matter fulfil the requirements of Section 22 of the Superior Courts Act, which deals with reviews, the High Court will have the power to intervene in the proceedings of the lower Court where a grave injustice may ensue based on its inherent powers of review established in common law principles and Section 173 of the Constitution of the Republic of South Africa.
The High Court also referred to a fundamental principle of our law, the “audi alteram partem” rule, in that every litigant is entitled to be afforded a fair public hearing before a court of law and to Section 28 of the Constitution of the Republic of South Africa in that a child’s best interest are of paramount importance in every matter concerning the child.
The High Court, therefore, did set aside the interim order obtained and our client was spared in launching an urgent application to review and set aside the irregular interim order.