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[2021] ZAWCHC 81
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E.S v J.J.S (A 48 / 2021) [2021] ZAWCHC 81 (4 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A 48 / 2021
In
the matter between:
E[…]
S[…]
Appellant
and
J[…]
J[…] S[…]
Respondent
Coram:
Wille, J et Lekhuleni, AJ
Heard:
23
rd
of April 2021
Delivered:
4
th
of May 2021
JUDGMENT
WILLE,
J
:
(Lekhuleni, AJ concurring)
INTRODUCTION
[1]
This is a civil appeal from a lower court
in Stellenbosch. This appeal is about maintenance. The
issue on appeal is
very limited and is narrow, both in scope and
nature.
[2]
The
parties were married to each other and were divorced about (21) years
ago.
[1]
It
is common cause that the appellant has complied with all his
obligations as set out in the consent paper, the terms of which
were
incorporated into a decree of divorce. This, by agreement
between the parties. In the lower court, the appellant
sought a
variation in the form of a discharge of an obligation
[2]
,
in terms of section 6 (1) (b) of the Maintenance Act.
[3]
[3]
The challenged obligation in terms of which
the discharge is sought, is the following:
‘
Die
eiser onderneem om vir die verweerderes lidmaatskap van ʼn
mediese fonds wat sootgelyke voordele en drempels bied as die
wat die
eiser se mediese fonds tans bied op sy koste uit te neem en
maandeliks in stand te hou tot haar hertroue, afsterwe of todat
sy ʼn
permanente lidmaatskap van ʼn eie mediese fonds bekom, welke een
ookal eerste plaasvind,
en
[4]
alle
redelike mediese, tandheelkundige en verwante uitgawes ten opsigte
van die verweerderes, uitsluitende maar nie beperk tot
hospitalisasie, medikasie (op doktersvoorskrif) en sielkundige
behandeling, self te bekostig, onderworpe aan klousule 4.2.4
hieronder’
[5]
THE
APPELLANT’S CASE
[4]
The
appellant has recently retired.
[6]
Upon
his retirement he received a pension payment of approximately R12
million. The respondent was paid her aliquot share
of this
pension in the amount of R4 116 040,00. This, strictly in terms
of the consent paper.
[7]
[5]
It is the appellant’s case that the
respondent is no longer in financial need of any further assistance
from the appellant.
I pause to mention that the ‘affordability
issue’ on the part of both parties, was not an issue before the
lower
court and this is also not an issue before us on appeal.
[6]
In short, the appellant advanced a
substantial change in his income profile due to his retirement. He
argues that because
of this change in his financial position, he is
entitled to a discharge of his medical aid maintenance obligations
towards the
respondent. Put in another way, he requires a
financial ‘clean break’ from the respondent. Besides,
the
appellant contends for the discharge because the respondent is
permanently employed and is now eligible to join a medical aid of
her
own. All, this he says, amounts to ‘good cause’.
THE
RESPONDENT’S CASE
[7]
The respondent’s case is this: that
the subject clause directs that the appellant is obliged to continue
paying for
the respondent’s medical aid, unless the respondent
remarries, or until the respondent passes away or in the event that
the
respondent obtains her own permanent medical aid: that it
is common cause that none of these (3) contemplated events have
taken
place: that the consent paper is a contractual arrangement and
that our courts, as a general rule, respect and uphold
the sanctity
of contracts.
DISCUSSION
[8]
The proposition by the appellant is that it
was always contemplated by the parties that the respondent would at
some stage obtain
her own medical aid. In contrast, the
respondent avers that the appellant aspires from the court to draw an
inference from
the facts in this connection. This, because the
‘wording’ in the subject clause, does not support the
interpretation
contended for, by the appellant. On the material
before me, I am not persuaded that it was always contemplated that
the respondent
would obtain her own medical aid. I say this
because the agreement in essence affords the respondent only an
option to obtain
her own medical aid. This much is clear from
the wording of the agreement. What in essence, the applicant is
contending
for is a fictional fulfillment of a contractual term, this
within the context of an agreed divorce settlement agreement.
[9]
In terms of section 6 (1) (b) of the Act,
an existing maintenance obligation may be discharged or substituted
if ‘good cause’
exists. The appellant relies
heavily, although not exclusively, on the payment to the respondent
from his pension payment
as the main ground for his discharge from
his obligations in terms of the agreed medical aid contributions, in
the form of maintenance.
The argument is that in the event that
the matter was heard afresh, as a maintenance matter, a court would
not order the appellant
to continue with the payment of the agreed
medical aid contributions, in the form of maintenance. This may
be so, but this
is not the test and, neither is it the function of
this court on appeal.
[10]
In
this connection, I refer to the penchant remarks by Griesel, J in
Georghiades
[8]
,
as
follows:
‘
In
considering whether or not sufficient reason exists for a variation
of the present maintenance order has been shown, it is important
to
bear in mind that the order in question is contained in a consent
paper, which was made an order of court at the time of the
divorce…’
‘
As
such it constitutes a composite final agreement entered into between
the parties, purporting to regulate all their rights and
obligations
enter se upon divorce. For the court now to interfere in that
arrangement by varying one component of the agreement,
while leaving
the balance of the agreement intact, would fly in the face of the
time-hallowed principle that “the court cannot
make new
contracts for the parties; it must hold them to bargains into which
they have deliberately entered”. The principle
of pacta
sunt servanda is equally relevant in this context’
[11]
It is trite that special circumstances need
to be advanced so as to impale the fairness of a divorce order
granted by agreement
between the parties. More importantly,
Rumpff J, eloquently observed the correct legal position, to be the
following:
‘
The
fact that the respondent is now in a somewhat better position that
she was at the time of the agreement was made and that the
applicant
is in a slightly worse financial position, does not, in my view, by
itself constitute good cause for altering the agreement,
made an
order of court’
[9]
[12]
In addition, the appellant’s
arguments are buttressed by reference to the ‘clean break’
principle which has purpose
in matrimonial causes of action. I
am unable to find any direct authority for the proposition that the
‘clean break’
argument finds application in connection
with the variation or discharge of an agreed existing maintenance
obligation in terms
of a consent paper, sanctioned by a court.
[13]
Even
if I am wrong on this score, the decided authorities are against the
appellant in his assertions that the payment of the aliquot
share of
his pension to the respondent,
per
se,
constitutes ‘good cause’ for the discharge of his
existing obligations in terms of the consent paper.
[10]
[14]
In
my view, the change in the appellant’s employment status to
that of a retiree, read together with the respondent’s
now
increased financial position
[11]
,
do not
per
se
constitute ‘good cause’ for a variation or discharge of
the appellant’s existing maintenance obligations to the
respondent in connection with her medical aid requirements, as
previously agreed. On the papers before me, I am unpersuaded
that the ‘good cause’ threshold has been discharged by
the appellant. An analysis of this threshold determination
is
even made more complex due to the fact that this matter was
determined ‘on the papers’ in the lower court and this
appeal court falls to determine this matter on the record of
proceedings before it. Nothing more and nothing less.
[15]
Another aspect to consider is that it seems
common cause on the facts, that the appellant having been fully
informed, elected voluntarily
to consent to the terms of the subject
clause. This brings me to touch upon the issue of the ‘
pacta
sunt servanda’
principle.
[16]
For
this enquiry, I need to, inter alia, consider the facts and
circumstances surrounding the signing of the consent paper.
[12]
They
are these: that the appellant was legally represented and so
was the respondent: the consent paper consisted of
some (19)
pages, all witnessed and signed by both parties and moreover each of
the parties recorded that they would have no further
claims of
whatsoever nature against each other.
[13]
[17]
It
seems clear to me that this is a case where the parties all agreed
and accepted expressly that they understood what they were
agreeing
to in the consent paper. The correct position in our law on
this score has been recently very clearly re-stated
in
Beadica
.
[14]
The
enquiry includes a consideration of whether the parties negotiated
with equal bargaining power and whether they understood what
they
were agreeing to. In this matter, it is clear that the parties
were possessed of equal bargaining power and they must
have
understood what they were assenting to. The consent paper was
after all, at their request.
[18]
In
essence, the issue before us is contractual in nature. That
having been said, I do accept that there has been a legislative
intervention granting to the court a discretion to deal with issues
such as a discharge and variation of an existing maintenance
order.
This, by way of the Act. In this connection, I refer to the
penchant remarks by Maya, JA (as she then was) in
Odgers
[15]
,
as follows:
‘
There
is no bar to agreeing on the duration and extent of the payment of
maintenance which is to be made, irrespective of any change
in the
parties’ circumstances, the agreement is valid and purely
contractual in nature. It falls to be governed by the rules
applicable in that sphere’
[19]
I
say this further because it is now settled law that contractual
interpretation is an objective process of attributing meaning
to the
words used in a document recited in the context of the document as a
whole and having regard to the apparent purpose of
those words.
[16]
I
mention this because on a plain reading of the subject clause, the
appellant is obliged to continue to pay the respondent’s
medical aid contributions until she remarries, dies or obtains a
permanent medical aid of her own, whichever event first occurs.
[20]
The
question of affordability
[17]
,
in my view, has less to do with the first (3) conditions set out in
the subject clause, but more to do with the other medical
expenses
anticipated in the last (6) lines of the subject clause. I say
this also because the word
and
[18]
is
generally
used
to introduce an additional comment or interjection. It is a
conjunctive.
[21]
Further, I am unable to find any
misdirection by the judicial officer in the lower court which would
allow this court to interfere
on appeal. The judicial officer
may very well have formulated the lower court judgment with reference
to a ‘substantial
change’ in the applicant’s
financial position. The reasoning in the judgment is neither
factually, nor legally
flawed.
[22]
Moreover,
as alluded to earlier, I hold the view that the appellant has not met
the threshold requirement of ‘good cause’
for a variation
or discharge of the terms of the subject clause in the consent paper,
sanctioned by the lower court. I say
this also because it must
have been in the contemplation of the parties and, more so of the
appellant, at the time when the consent
paper was concluded, that he
would retire and that the respondent would not necessarily by then,
have obtained her own medical
aid. Furthermore, the consent
paper specifically catered for the potential windfall in connection
with the increased values
of the pension which were eventually paid
out to the parties.
[19]
In
terms of the consent paper the appellant specifically agreed that the
respondent would be eligible to participate in any gains
or interest
in connection with the appellant’s pension interest as defined
in the consent paper.
[23]
In the result, I make the following order:
1.
That the appeal is dismissed.
2.
That the appellant is liable for the costs
of and incidental to the appeal process, on the scale as between
party and party, as
taxed or agreed.
_________
WILLE,
J
I
agree,
________________
LEKHULENI,
AJ
[1]
On
the 21
st
February 2000
[2]
Imposed
upon him in terms of the agreed consent paper
[3]
Act
99 of 1998
[4]
My
emphasis added
[5]
Clause
4.2.1 – the ‘subject’ clause
[6]
During
January 2019
[7]
Clause
6 thereof
[8]
Georghiades
v Janse Van Rensburg
2007
(3) SA 18
para [16]
[9]
Jacobs
v Jacobs
1955
(4) SA 211
(T) at 212 D.
[10]
Copelowitz
v Copelowitz and Anothers, N.O.
1969
(4) SA 64
CPD.
[11]
Or indeed her ability to obtain her own medical aid
[12]
Such
as they may be ‘gleaned’ from the record of proceedings
in the lower court
[13]
Clause
10
[14]
Beadica
231 CC and Others v Trustees for the time being of the Oregon Trust
and Others
2020 (5) SA 247 (CC)
[15]
Odgers
v De Gersigny
2007(2)
SA 305 (SCA) para 8
[16]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18
[17]
‘
Self
to bekostig’ ( if this is even a relevant consideration)
[18]
‘
en’
[19]
Clause
6.4