SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO:   602/2011
Not Reportable

In the matter between:

MARTIN JAMES BROSSY                                                            APPELLANT

and

DEBORAH GREER BROSSY                                                   RESPONDENT

Neutral citation:   Brossy v Brossy (602/11) [2012] ZASCA 151 (28 September
2012).

Coram:
Mthiyane DP, Snyders, Van Heerden, Malan et Pillay JJA

Heard:
17 August 2012
Delivered:
28 September 2012

Summary: Maintenance of minor children – variation order refused – appeal to
high court – record incomplete – matter postponed sine die for completion and
reconstruction of the record.

ORDER

On appeal from:
Western Cape High Court, Cape Town (Allie and Saldanha
JJ sitting as court of first instance)

The following order is made:
1 The appeal succeeds.
2 No order is made as to costs.
3 The order of the high court dated 11 March 2011 is set aside and replaced with
the following:
‘a) The appeal is postponed sine die to enable the appellant to complete and
reconstruct the record of proceedings in the maintenance court.
b) Costs are reserved.’

JUDGMENT

VAN HEERDEN AND PILLAY JJA (MTHIYANE DP AND MALAN JA
CONCURRING)

[1] This appeal, which is before us with the leave of this court, concerns an
ongoing battle about maintenance between ex-spouses. This battle commenced
in the maintenance court in about 2005. In that year, and again in March 2007,
the respondent (Ms Deborah Brossy) filed a complaint against the appellant (Mr
Martin Brossy) in terms of s 6(1)(b) of the Maintenance Act 99 of 1998 (the Act).1
Ms Brossy sought an upward variation of the maintenance payable by Mr Brossy
in respect of the parties’ two children. An enquiry was then held in the

1Section 6(1)(b) provides as follows: ‘(1) Whenever a complaint to the effect – (b) that good cause exists for the
substitution or discharge of a maintenance order, has been made and is lodged with a maintenance officer in the
prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner and as provided in
this Act.’

maintenance court. The magistrate found that Ms Brossy had not provided
sufficient grounds to justify any increase to the existing maintenance award and
the variation was refused.

[2] Ms Brossy appealed to the Western Cape High Court (Allie and Saldanha
JJ), as was her right in terms of s 25 of the Act. That court made an order in the
following terms:

‘1. [That] this matter be referred back to the magistrate’s court for it to commence de
novo before a new magistrate.
2. Such proceedings shall commence within 30 days from the date of this order.
3. The Legal Aid Board of South Africa shall consider an application for legal aid brought
on behalf of the children in terms of section 28(2) of the Constitution, within 7 days of this
order.
4. The Appellant is to do all things necessary to facilitate the completion of the necessary
application and provide all the supporting documents required by the Legal Aid Board.
5. At the finalisation of the trial, the magistrate presiding shall determine whether either or
both of the parties should pay all or a contribution towards the legal costs incurred by the
Legal Aid Board in providing the necessary legal representation to the minor children.
6. No order as to costs is made.’

It is this order against which the present appeal is directed.

[3] By way of background, the parties have two children, Christopher, born on
12 November 1993, and Emma, born on 4 November 1996. The parties were
divorced from each other in February 1998. An agreement, entered into between
the parties by way of a consent paper, was made an order of court. In terms
thereof Mr Brossy undertook to pay maintenance for the children at the rate of
R1 500 per month per child. In addition, Mr Brossy undertook to pay the costs of
schooling for the children at public schools. If, however, he consented to the
children attending a private school, he was obliged to pay the costs of schooling
charged by the private school concerned. Mr Brossy also undertook to pay the
cost of extra-mural activities for the children, provided that he agreed to them
participating in such activities and that the children maintained an interest in
them.

[4] On 14 September 2000, a ‘consent and maintenance order’ was made in
terms of s 17 read with s 16 of the Act, whereby Mr Brossy’s obligation to pay
maintenance for the children was increased to R2 000 in respect of Christopher
and R1 800 in respect of Emma, such amounts to be increased annually in
accordance with the Consumer Price Index. He also undertook to pay ‘the Hill
pre-school school fee rate’ (a private school) for Emma’s education and the
‘SACS primary school fee rate’ for Christopher’s education. The rest of the
agreement between the parties in terms of the consent paper remained intact.

[5] In 2007, the parties entered into a co-parenting agreement in terms of
which they had to make joint decisions about the general welfare of the children,
including decisions about which schools or other educational institutions the
children would attend in the future. That notwithstanding, the agreement further
provided that Ms Brossy would in the ordinary course make decisions regarding,
inter alia, the children’s schooling, the courses they took, their ‘general
education’, as well as decisions about the children’s extramural activities,
including the choice of such activities. It was recorded that the children ‘currently
attend Reddam School’ (a private school).

[6] Ms Brossy ultimately sought an amount of R25 000 per month per child as
a global maintenance payment, with the exception of all medical, dental and other
like expenses, which Mr Brossy was in any event obliged to pay in terms of the
consent paper. Mr Brossy was at that time paying R5 300 per month in respect of
both children. Ms Brossy also sought ‘back payments from 1 June 2005’. Her
claim, in effect, thus purported to include a claim for ‘arrear maintenance’ in a
capital amount which, by the date of the magistrate’s judgment on 27 August
2009, exceeded R2 million.

[7] The biggest dispute between the parties was the payment of school fees
and the cost of extra-mural activities. At the time of the maintenance enquiry, the
children were both attending a private school (Reddam School), where
Christopher had been for more than six years and Emma had been for nine
years. Mr Brossy had never paid the total Reddam School fees. He paid an

amount equal to the fees charged by, respectively, SACS and Rustenburg Girls’
School. Because the Reddam School fees were considerably higher than these
other (public) schools, Ms Brossy had always paid the balance. She testified that
she had only managed to do so by borrowing money from her parents, who (she
alleged) had lent her more than R4 million.

[8] Ms Brossy also testified that Mr Brossy had consistently paid too little for
the children’s’ extra-mural activities and that she had to pay the balance, making
her financial position even more precarious.

[9] During the course of the maintenance enquiry, reference was made to a
large number of exhibits, most of which did not form part of the record before the
high court. In addition, because of malfunctioning recording equipment, the
examination-in-chief and part of the cross-examination of Ms Brossy had not
been recorded and the transcript of this evidence was thus not available. It would
seem that the record before the high court was also defective in other aspects. In
the light of the incomplete record, the high court did not deal with the merits of the
appeal.

[10] Ordinarily, an appellant bears the onus of placing a complete record before
the court. Should the record be defective in material respects, a court of appeal
would generally strike the matter from the roll and render the appellant liable for
costs. The high court invited the parties to address it on whether the appeal
should be struck from the roll. Ultimately, however, despite the incompleteness of
the record, the high court did not strike the matter from the roll, apparently to
protect the interests of the minor children involved. It also did not postpone the
appeal in order to afford Ms Brossy an opportunity to place a complete record
before it to ensure that all the necessary material was available to enable proper
adjudication on appeal.

[11] It does not, however, appear from the record that the deficiencies could
not be made good. Both parties were of the view that the record could indeed be
completed and reconstructed. In fact, during the hearing of Mr Brossy’s
application to the high court for leave to appeal to this court, his legal

representatives tendered to provide the exhibits handed up in the maintenance
court that did not form part of the record. In argument before this court, Mr
Brossy’s counsel once again tendered to assist Ms Brossy in efforts to ensure
that the record was completed and reconstructed to an acceptable level to enable
the high court to deal with the appeal. We are certain that this tender will be made
good.
[12] The high court came to the conclusion that the magistrate had acted
irregularly ‘in as much as he launched a scathing attack upon the respondent [Mr
Brossy] and his legal representative’. The court listed several examples of what it
considered to be overly aggressive questioning of, apparent disrespect for and
disbelief of Mr Brossy on the part of the magistrate. The court also concluded that
the magistrate’s questioning of Mr Brossy ‘leaves us in no doubt’ that the
magistrate had prejudged the case. It was on this basis that the high court made
the order referred to in paragraph 2 above.
[13] It is trite that a judicial officer must ensure not only that justice is done,
but, in addition, that it is seen to be done. He or she must therefore so conduct
the trial that his or her open-mindedness, impartiality and fairness are manifest to
all concerned in the trial and its outcome.2 However, in the present case, bias or
improper conduct on the part of the magistrate did not form part of either party’s
case in the high court or before us. Neither party at any stage objected to the
magistrate’s conduct or applied for his recusal. Indeed, the magistrate’s alleged
hostility toward Mr Brossy did not influence the outcome of the maintenance
enquiry in that the judgment ultimately given by the magistrate was in favour of Mr
Brossy. This was overlooked by the high court.
[14] In our view, having decided not to strike the appeal from the roll, the
proper course for the high court to have taken was to  have postponed the appeal
in order to enable Ms Brossy to complete and reconstruct the record and then to
have decided the case on its merits. First, the retrospective rights of children were
at stake and Ms Brossy was unrepresented. Second, if, as it now appears, the
record could be reconstructed, affording Ms Brossy an opportunity to do so
would, from her perspective, preserve the children’s accrued rights and would

2 See S v Rall 1982 (1) SA 828 (A) at 831H-832A.

spare the additional costs of a fully-fledged maintenance enquiry in respect of the
period in question. Third, Mr Brossy was being disadvantaged by Ms Brossy’s
failure to prepare a complete record, and starting matters anew in circumstances
where he was not the defaulting party would further prejudice him. Fourth, a
postponement to facilitate a full record, with costs reserved, would effectively
retain the rights of each party to have his or her day in an appeal hearing.
[15] As regards maintenance claims for the period beyond that of the
complaint which formed the basis of the enquiry before the maintenance court,
Ms Brossy will be entitled to approach the maintenance court for a further
variation based on circumstances prevailing at that stage, and this can be tested
by a new maintenance court enquiry. The circumstances of the children have
clearly changed in the interim. At the time of the judgment of the maintenance
court, Christopher was 15 years and nine months’ old and still at school. Emma
was 13 years and nine months’ old and also at school. Christopher is now a major
and will turn 19 years’ old in November 2012. He is no longer at school, having
matriculated last year. Emma is now 15 years’ old and will turn 16 in November
2012. She is in Grade 10 and continues to attend Reddam School. Mr Brossy’s
liability for Emma’s private school fees is therefore still a live issue, while his
liability for the costs of tertiary education for Christopher will now also have to be
determined. It is important that the children’s rights as regards both past and
future maintenance be preserved.
[16] As indicated above, it appears that the record of proceedings in the
maintenance court can be completed and reconstructed without too much
difficulty. As indicated above, in argument before us, Mr Brossy’s counsel
tendered to assist Ms Brossy in this regard and we have no reason to doubt that
such assistance will be forthcoming. Given the nature of the case and the lengthy
delays that have already occurred, it is to be expected that the process of putting
the record in order will take place speedily. Once the record is in order, Ms
Brossy can apply for a date for the hearing of the appeal. Should she fail to do so
within a reasonable period of time, then Mr Brossy will be entitled to apply for a
date for the hearing of the appeal and to ask for a dismissal of the appeal with

costs, including the costs of the postponement. It will then be for the high court to
determine the appeal on such basis as to it seems meet.
[17] As indicated above, the high court ordered Legal Aid, South Africa to
consider an application for legal aid brought on behalf of the children in terms of
s 28(2) of the Constitution. This was on the basis that the interests of the minor
children should be protected and advanced by affording them legal representation
at the envisaged retrial before the maintenance court. The Centre for Child Law,
which appeared before us as amicus curiae, pointed to international and regional
instruments to which South Africa is a party, such as the United Nations
Convention on the Rights of the Child (CRC)3 and the African Charter on the
Rights and Welfare of the Child (ACRWC),4 both of which entrench children’s
rights to express their views in all matters affecting them and their right to be
heard in all judicial and administrative proceedings affecting them. Section
28(1)(h) of the Constitution guarantees the child’s right to have a legal
representative assigned by the State, and at State expense, in civil proceedings
affecting the child, if substantial injustice would otherwise result

[18] Children’s right to participate has been incorporated into domestic
legislation in the Children’s Act 38 of 2005, s 10 of which reads as follows:

‘Every child that is of such an age, maturity and stage of development as to be able to
participate in any matter concerning that child has the right to participate in an
appropriate way and views expressed by the child must be given due consideration.’

As one of the general principles of the Children’s Act, s 10 must guide the
implementation of all legislation applicable to children (s 6(1)). In appropriate
cases, this would include the Maintenance Act.

[19] It is correct that, in many maintenance enquiries, the dispute will be
between the parents, and the children will have an identity of interest with the
parent claiming maintenance on their behalf. This does not mean, however, that
there will never be situations where it will be important for a child to be given a

3 Article 12 of the CRC.
4 Article 4(2) of  ACRWC.

say in a maintenance matter, although the form that such participation will take
will depend on a variety of factors, such as the age and ability of the child to
express his or her own views. In this case, for example, much of the acrimony
between the parents arises from the choice of school that the children are
attending and the extra-mural activities in which the children are involved. It does
not appear from the record that the children’s preferences and choices in this
regard have ever been canvassed before the court. As was pointed out by Wallis
AJ in Legal Aid Board v R 2009 (2) SA 262 (D) para 20:

‘When one is dealing with acrimonious litigation concerning the fundamentally important
questions of where a child shall live and who shall be responsible for their principal day-
to-day care and the central decisions concerning their lives, such as schooling, health,
religion and the like, it seems to me that, if the court comes to the conclusion that the
voice of the child has been drowned out by the warring voices of her or his parents, it is a
necessary conclusion that substantial injustice to the child will result if he or she is not
afforded the assistance of a legal practitioner to make his or her voice heard.’

[20] This is not an area where it is possible to lay down hard and fast rules.
Whether or not a legal representative should be appointed for a child who is the
subject of a maintenance dispute will depend on the specific facts and
circumstances of each case. It is primarily a question of recognising the child as
an autonomous individual whose right to express views and to be heard should
be tested against the nature of the dispute and the role that the child can play in
adding a significant dimension to the dispute. It is no longer the case that children
should be seen and not heard. Maintenance matters are not an exception to this
rule.

[21] Christopher is now a major and will be able to institute his own
maintenance claim against his father, should this become necessary. However,
as far as Emma is concerned, one must bear in mind that she might well require
the assistance of a legal representative in any future maintenance claim by Ms
Brossy acting on Emma’s behalf against Mr Brossy.

[22] As regards the costs of this appeal, it seems to us to be just that Ms
Brossy should not at this stage be mulcted in the costs of appeal. She has acted

throughout in what she believed to be in the best interests of her children, even to
the extent of representing herself throughout the proceedings due to lack of funds
for a legal representative. In our view, the fairest outcome is that there should be
no order as to costs in this court.

[23] Subsequent to the appeal hearing and after judgment was reserved, but
before this judgment was finalised, Snyders JA became indisposed. This
judgment is therefore a decision of the remaining members of this court.

[24] The following order is made:
1 The appeal succeeds.
2 No order is made as to costs.
3 The order of the high court dated 11 March 2011 is set aside and replaced with
the following:
‘a) The appeal is postponed sine die to enable the appellant to complete and
reconstruct the record of proceedings in the maintenance court.
b) Costs are reserved.’

B J VAN HEERDEN

JUDGE OF APPEAL

R PILLAY

JUDGE OF APPEAL

APPEARANCES
APPELLANT:
D Watson

Instructed by:

KG Druker Attorneys, Cape Town

Honey Attorneys, Bloemfontein

RESPONDENT:
Deborah Greer Brossy

In person

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 September 2012
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Brossy v Brossy

The Supreme Court of Appeal (SCA) today set aside an order of the Western Cape High
Court, Cape Town in an appeal concerning maintenance.

Mr and Ms Brossy were married to each other. Two children were born of the marriage.
The parties were divorced in 1998 and the appellant (Mr Brossy) agreed to pay
maintenance for the children.

In March 2007, the respondent (Ms Brossy) who appeared in person, approached the
Maintenance Court with a view to obtain a variation order to increase the maintenance for
the children. The magistrate dismissed the application in August 2009.

Ms Brossy then appealed  to the Western Cape High Court, Cape Town. The high court
was confronted with a materially incomplete record and consequently could not deal with
the merits of the appeal.

The high court did not strike the matter from the roll, as would normally be the case,
because the interests of children were at stake. Instead it ordered that the matter be
remitted to the maintenance court to be heard afresh before another magistrate.

Mr Brossy then appealed against that decision to the SCA. The SCA was confronted with
the same incomplete record which lacked portions of the oral evidence and the exhibits
such as bank statements which were referred to in parts of the record.

During the hearing of the appeal, Mr Brossy’s legal representative undertook to assist Ms
Brossy to complete and reconstruct the record. In the light thereof, the SCA set aside the
order of the high court. It substituted that order with an order postponing the matter in
order to give Ms Brossy an opportunity to rectify the record so that the merits of the appeal
could be dealt with by the high court.