IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE CASE NO. 1887/17
In the matter between
ABRAHAM NTSHALINTSHALI APPELLENT
THANDI NCESI NTSHALINTSHALI RESPONDENT
Neutral Citation: Abraham Ntshalintshali v Thandi Ncesi Ntshalintshali (1887/17)  SZHC 148 [10th July 2018]
Coram: MAPHANGA J
Date Heard: 29/06/2018
Date Delivered: 10/07/2018
Summary: Civil Procedure – Appeal from an order of the magistrates Court – Notice of Appeal deficient in setting out whether on a point of law, fact or both – Appeal attack on discretion of the Court a quo – Notice of Appeal bail in law.
 This is an appeal against an order for maintenance of the appellant’s four minor children issued by the Manzini Magistrate’s Court on the 13th November 2017.
 Mr Appellant has stated his grounds for imposing the order as follows:
2.1. That the learned magistrate failed to take into account that a maintenance contribution of E3,500.00 will leave the Appellant with nothing to save for the children school fees, thus complying with order No. 2 will be impossible.
2.2. The learned magistrate ought to have ordered the Appellant to
contribute a sum of E2,500.00 towards maintenance and sum of E1,000.00 towards school fees.
2.3. The learned magistrate ought to have directed the Appellant to rent – out affordable house.
 The parties are a married couple although at the time of the proceedings a quo and presently owing to marital living separately. It appears common cause that the Respondent the mother of the children of the marriage has de facto custody of the said children.
 The appeal is opposed and the Respondent has filed Heads of Argument. At the time of hearing of the matter the Appellant had not filed his submissions. On account of the welfare and interests of the minor children, I nonetheless ordered the parties counsel to address the whereupon I heard and considered their respective arguments on the appeal at the conclusion of which I made and ex tempore order dismissing the appeal reserving my decisions to be rendered in the due course.
 I now set out my reasons.
 The background facts are that the respondent in October 2017 lauded an application seeking that the Appellant be ordered to pay maintenance contribution for the couple’s minor children in the sum of E12,400.00 per month and in addition that he be ordered to pay school fees for the said children.
 The Application was opposed by the Appellant who filed an answering affidavit resisting the same. The nub of this defence when distilled was that the maintenance contribution originally sought by the Respondent was excessive and essentially beyond his mean. It is insufficient to note that from the record the Appellant placed documentary evidence as to proof of his income and certain evidence as a statement of his income and expenditure amount regard being had to his emoluments and recovering liabilities.
 It is further apparent that having taken into account the financial circumstances of the Appellant the unemployed status of the Respondent, regard being had to the proof of the Appellant’s net income of E7,067.00 the learned magistrate having assessed the evidence made an order as follows:
a) that the Appellant contributes an amount of E3,500.00 towards
b) that Appellant pays the schools fees for the minor children; and
c) directing that such monies are paid through the Respondent’s
nominated office and attorneys S.K. Dlamini and Company.
 The Appellant has first availed himself of the remedy of seeking a variation of the maintenance order although to all interests and purposes this proceeding which presents as an appeal against the orders concerned, has all the hallmarks and makings of a variation of maintenance order application. It appears that the object of the appeal is to attack the order on quantum only merits.
 The Respondent contests the appeal on the basis that it is lacking in merit on account of the formulation and wording of the main ground of appeal. Thus she submits the grounds of appeal are flawed, ‘bad or wrong’ in law and as such not in compliance of the rules as to the content of Notices of appeal.
 In this regard we are urged to dismiss the appeal on the basis that it is simply a review masquerading as an appeal in that the error upon which it framed is that the learned magistrate’s error was in “failing” to into account certain considerations or fact – namely the financial constraints of the Appellant.
 What is certain upon sight of the grounds of appeal as laid down in the Appellant’s Notice is that it does not allege the nature of the error on the basis of which the order of the court a quo is impugned - whether it attacks the order on an error of law, fact or both. Indeed to the extent that invokes failure to take into account certain factors would suggest the review remedy. However, the notice appeals to proceed on the basis that the order was principled on wrong conclusions of fact.
 As a matter of practice the applicable standard on appeal challenging a judgment or order on a point of fact then such notice must specify which findings of fact are appealed against, (see Herbsen and Van Winsen.
Thus a notice of appeal is considered bad in law if it does not make it clear whether the appeal is on a point or points of law or fact or both. (Saint v Greylinstad Village Council 1951 (4) SA 608 (1) also Bala v Van der Westehuizen 1940 TPD 169)
 The authors Herbstein and Van Winsen Civil Practice in the High Court of South Africa 4th Edition Volume 2 at page 1254 have honed into the challenge that arises where an implicit challenge on a point of fact to an order of judgment turns out to be a general attack on a matter purely within the courts discretion without pinpointing a failure or defect in the judgment in aligning as considered against the preponderance of the evidence. Where the attack is on a discretional matter the authors say:
 On discretion the authors say;
“Traditionally, it was alleged that where a lower court has given a decision on a matter within its discretion, the Supreme Court of Appeal would interfere only if it comes to the conclusion that the Court a quo had not exercise its discretion, i.e. exercised its discretion capriciously or upon the wrong principle, has not brought its unbiased judgment to hear on the question, or has not acted for substantial reasons”
 Quite apart from what in my view is the basic deficiency in the notice as regards a statement of a near ground of review either in law or on facts, I have difficulty in appreciating in what way the allegation that the magistrate did not take into account the financial standing of the Appellant is justified. If by this he means there were erroneous conclusions or findings of fact which bear no relative with the evidence then he could do well to point these out.
 He is not suggesting that the learned magistrate made the order arbitrarity or on an erroneous or wrong factual finding.
 From the record it is evident that the learned magistrate took in or received evidence on relevant facts on a pertinent enquiry into determining an appropriate and reasonable quantum of maintenance regard being had to the relevant factors such as the costs and needs of the children and the means of the Appellant. Of course this was premised on a conclusion; and a correct one in my view; that the Applicant was liable to contribute to the maintenance for the children.
 In determining the level of maintenance it appears also that he investigated and accepted. Investigated the gross income and expenditure of the Appellant and satisfied himself that the proven gross income was about E14,000.00 per month. He also accepted that the Respondent being employed could not bring to the table any regular income so that her contribution to the support of the children could not be rendered in monetary terms.
 In conducting an enquiry into the Appellant’s means the Court a quo took heed of balancing the claims for maintenance with what the Appellant could reasonably afford to pay whilst he taking into account his own personal needs and expenses.
 All said, there is nothing is the assertions and submissions advanced on behalf of the Appellant to demonstrate that the learned magistrate either failed to exercise his discretion or to apply his mind or that his determination was wrong or actuated by a wrong principle. In essence in this appeal we are being asked to interfere with a discretion properly exercised by a court whose judgment or order is attacked on obscure grounds.
 In the circumstances I find that the Appellant’s notice of appeal is bad in law and as such this appeal therefore fails.
 It is dismissed with costs.
For the Appellant: Mr. S.B. Motsa
For the Respondent: Mr. S.K. Dlamini