Brossy v Brossy

The parties are divorced spouses with two children. Maintenance obligations were regulated by a consent paper made an order of court and later varied by a maintenance order under the Maintenance Act 99 of 1998. The respondent mother sought a substantial upward variation of maintenance, including private school fees and arrear maintenance exceeding R2 million. The maintenance court refused the variation. The respondent appealed to the Western Cape High Court, but the appeal record was materially incomplete due to missing exhibits and defective recordings. Despite this, the High Court set aside the magistrate’s decision and ordered a de novo hearing before a new magistrate, partly on the basis of perceived irregular conduct by the magistrate. The appellant father appealed to the Supreme Court of Appeal.

The appeal succeeded. The High Court order of 11 March 2011 was set aside and replaced with an order postponing the appeal sine die to allow completion and reconstruction of the maintenance court record, with costs reserved. No order as to costs was made in the Supreme Court of Appeal.

The case clarifies appellate procedure in maintenance matters where the record is incomplete, particularly emphasising postponement and reconstruction rather than striking matters from the roll or ordering de novo hearings. It underscores the need to balance procedural fairness with the best interests and accrued rights of children. The judgment also affirms the developing jurisprudence on children’s participatory rights and potential entitlement to legal representation in maintenance disputes.