Brossy v Brossy

The parties were divorced in February 1998 and had two children, Christopher (born 12 November 1993) and Emma (born 4 November 1996). The original divorce order and subsequent consent order in 2000 required Mr Brossy to pay maintenance of R2 000 for Christopher and R1 800 for Emma (subject to annual CPI increases), plus school fees for public schools or private schools if he consented. In 2007, Ms Brossy filed a complaint in the maintenance court seeking an upward variation of maintenance to R25 000 per month per child, plus back payments from 1 June 2005 (exceeding R2 million). The main dispute centered on payment of fees for Reddam School (a private school the children attended) and extra-mural activities. Mr Brossy only paid fees equivalent to public schools (SACS and Rustenburg), while Ms Brossy paid the balance by borrowing from her parents. The maintenance magistrate refused the variation. Ms Brossy appealed to the Western Cape High Court, but the record was incomplete - the examination-in-chief and part of cross-examination were not recorded due to equipment malfunction, and most exhibits were missing. The high court did not deal with the merits but ordered the matter to commence de novo before a new magistrate, citing concerns about the magistrate's conduct toward Mr Brossy. Mr Brossy appealed to the Supreme Court of Appeal.

• Whether the high court was correct to order a de novo hearing rather than postponing the appeal to allow reconstruction of the record
• Whether the magistrate's conduct constituted bias or irregularity warranting a retrial
• Whether children should have independent legal representation in maintenance proceedings
• The proper procedure when an appellate record is incomplete
• Children's rights to participate in maintenance proceedings affecting them

The appeal succeeded. The order of the high court dated 11 March 2011 was set aside and replaced with: (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. No order was made as to costs in the Supreme Court of Appeal.

When an appellate record is incomplete but can be reconstructed, and neither party is responsible for the incompleteness as a dilatory tactic, the proper course is to postpone the appeal to allow for completion and reconstruction of the record rather than ordering a de novo hearing, particularly where children's accrued rights are at stake and ordering a retrial would prejudice the non-defaulting party. Children have a constitutional and statutory right to participate in maintenance proceedings affecting them (section 10 of the Children's Act read with section 28 of the Constitution), and while there is an identity of interest between children and the parent claiming maintenance in many cases, where the dispute concerns matters directly affecting the child (such as school choice and extra-mural activities) and the child is of sufficient age and maturity, the child's independent voice should be heard and independent legal representation may be warranted under section 28(1)(h) of the Constitution if substantial injustice would otherwise result.

The court made several important obiter observations: (1) It is trite that judicial officers must ensure not only that justice is done but that it is seen to be done, conducting trials so that open-mindedness, impartiality and fairness are manifest (citing S v Rall 1982 (1) SA 828 (A)); (2) It is no longer possible to lay down hard and fast rules about when legal representation should be appointed for children in maintenance disputes - this depends on the specific facts and circumstances of each case, tested against the nature of the dispute and the role the child can play in adding a significant dimension to the dispute; (3) The court referenced international instruments (UN Convention on the Rights of the Child Article 12 and African Charter on the Rights and Welfare of the Child Article 4(2)) to support children's rights to express views and be heard; (4) As a general principle under section 6(1) of the Children's Act, section 10 (children's right to participate) must guide implementation of all legislation applicable to children, including the Maintenance Act; (5) The court noted that Ms Brossy acted throughout in what she believed to be the best interests of her children, even representing herself due to lack of funds, justifying no costs order against her despite the appeal succeeding.

This case is significant for establishing principles regarding: (1) The proper procedural approach when appellate records are incomplete but can be reconstructed - postponement is preferred over ordering a retrial to preserve parties' rights and avoid unnecessary costs; (2) The recognition of children's participatory rights in maintenance proceedings under section 10 of the Children's Act 38 of 2005 and section 28(1)(h) of the Constitution, particularly where the dispute concerns matters directly affecting the child (such as school choice) and the child is of sufficient age and maturity; (3) The principle that children should no longer be 'seen and not heard' and that maintenance matters are not an exception to children's rights to express views and be heard; (4) Guidance on when children may require independent legal representation in maintenance disputes, particularly when their voice is 'drowned out by the warring voices of her or his parents'; (5) Clarification that allegations of judicial bias must be raised timeously during proceedings and that a judgment in favor of the party allegedly prejudiced negates such claims.