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[2016] ZAGPJHC 85
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P v P (A3115/2015) [2016] ZAGPJHC 85 (29 April 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3115/2015
DATE:
29 APRIL 2016
In the
matter between:
[P…….],
[A……]
[D…..]
..........................................................................................................
Appellant
And
[P……],
[J…..]
[Z……..]
.......................................................................................................
Respondent
JUDGMENT
Van der Linde, J:
Introduction
[1]
This is an appeal against a judgment of the
magistrates’ court at Springs
[1]
which held that a maintenance obligation owed by the respondent to
the appellant in terms of an order of divorce granted by the
high
court, had ceased.
[2]
The issue came up when the appellant applied for an increase in the
maintenance of R11500 pm that the magistrates’ court
at Benoni
had previously ordered. In turn, this latter court had ordered an
increase in the maintenance of R10000 pm which was
payable in terms
of the high court order.
[2]
The
parties were agreed that this court was not concerned with the
quantum of the maintenance payable. If we were to conclude that
the
appeal should succeed, the matter was to be referred back to the
magistrate for a decision on the merits of the appellant’s
application for an increase in the maintenance.
[3]
The
appellant’s argument was that on a proper interpretation of the
order, the maintenance obligation did not cease. The respondent
argued to the contrary, but also submitted that the appeal should be
dismissed because it was potentially academic. By this
submission was meant that there was the potential that the appellant
would not be able to succeed in showing before the magistrates’
court that the respondent could actually afford paying any
maintenance, if the matter were to be referred back. That being so
the appeal should not be allowed to succeed, according to the
argument.
[4]
The
parties were also agreed that the only material available to us to
aid in the interpretation function was the high court order
itself.
There was no extraneous evidence that could provide the milieu to the
order. Against this background we proceed to interpret
the court
order.
Interpretation
principles
[5]
We approach the interpretation of the high
court order on the basis that this function is, in principle, no
different from that
of interpreting a will, an insurance policy, or
any other commercial document; or even a statute.
[3]
The essential principles are first to determine the ordinary meaning
of the words used; but then immediately the examination, a
unitary,
integrated endeavour, flows to the context within which the words
appear in the instrument; the scheme and structure of
the instrument;
the material outside of the document that was known to the parties
when the document came into being; and the legal
framework within
which the document operates, particularly the broader constitutional
background from which all law in this country
now flows.
[4]
[6]
In Endumeni Municipality Wallis, JA put it
thus:
[5]
“
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The 'inevitable
point of departure is the language
of the provision itself', read in
context and having regard to the purpose of the provision and the
background to the preparation
and production of the document.”
[7]
There have developed through the years what
may be termed rules of interpretation, but are probably better
described as simply approaches,
because their application is
dependent on the context. One of these is the approach that drafters
are usually taken to have intended
that meaning be given to all of
the words they used; in other words, superfluous or unnecessary words
or phrases are not readily
assumed.
[8]
Applied to the particular context here
relevant, one such principle of law is that unless the court granting
a decree of divorce
orders that one marriage partner has to pay
maintenance to the other, neither partner has the right afterwards to
claim maintenance
in a magistrates’ court when engaging on a
maintenance enquiry.
[6]
The court
order
[9]
We
may now gainfully turn to the high court divorce order itself. Two
paragraphs are material:
“
3.
The Plaintiff shall pay the Defendant maintenance of R10 000 per
month for a period of 12 months from date of this order
(‘the
payment period’).
3.1
…
3.2
…
4. The
aforesaid order, relating to the payment of maintenance, is made
without prejudice to the rights of either party to apply,
subsequently to the payment period, for a variation thereof, and, in
such event, the maintenance Court is directed to make an appropriate
order, in light of all the relevant facts and circumstances.”
[10]The question, crisply put but
requiring more thorough reflection, is whether when the so-called
payment period of twelve months
will have lapsed, the appellant’s
entitlement to claim maintenance from the respondent will also have
lapsed. The court a
quo held in favour of the respondent’s
argument that the entitlement did in fact lapse after the initial
twelve month payment
period.
[11]
The
elephant in the room of that conclusion is paragraph 4. It is
required to be given meaning and cannot be ignored. One meaning
is
certainly that the variation there envisaged applied to the amount of
maintenance payable during the payment period. On this
meaning,
either party may after the payment period apply to change the
maintenance that was payable during the payment period,
retrospectively. In other words, the variation would operate
retrospectively to change such maintenance as was paid (the R10 000
per month) either by reducing it, requiring a repayment; or by
increasing it, requiring a top-up.
[12]
On
this meaning, the appellant could conceivably apply retrospectively
to be paid a top-up, and the respondent could conceivably
apply
retrospectively for the appellant to pay back to him what would then
be determined, with hindsight, as having been an overpayment.
[13]
The
other conceivable meaning to be attached to paragraph 4 is that after
the lapse of the initial twelve month payment period the
maintenance
obligation continues, on the basis that either party may then, but
not before then, apply to the maintenance court
for an increase or
decrease, depending on the applicant’s perspective, of the
maintenance that would then, and thereafter
going forward, be
payable. The maintenance court will then investigate the
circumstances then prevailing and make an appropriate
order for the
future.
[14]
We
prefer, on reflection, the second meaning. The main driver for this
conclusion is the reference in the last line of paragraph
4 to “
all
the relevant facts and circumstances.”
That phrase suggests that the court was alive to the common sense
fact that the quantum of maintenance should be determined with
reference to the time when it is required to be paid. That is, after
all, when the disbursements are required to be incurred.
[15]
On
this approach the purpose of paragraph 3 is not to define an
obligation of a rehabilitative nature, of only one year. On this
approach paragraph 3 is in fact less ambitious, and simply fixes the
quantum of the payable maintenance for one year, leaving it
up to the
parties and the maintenance court to fix the quantum of the
maintenance that is payable after that first year.
[16]In our view this
interpretation affords recognition to the context of the document and
its scheme, whereas the first meaning
mooted above does not. The
second interpretation also gives meaning to paragraph 4, which the
first interpretation does not.
[17]
We
have considered the argument that one would have expected express
language had the court intended to saddle the respondent with
a
maintenance obligation for life, and not simply a tacit provision.
There is much force in this argument, but ultimately the coherence
of
paragraphs 3 and 4 militate so strongly in favour of a continued
maintenance obligation, that we cannot accede to the argument.
[18]
In
the result the appeal must succeed. We make the following order:
(a)
The
appeal succeeds, with costs.
(b)
The
order of the court a quo is set aside.
(c)
The
matter is referred back to the magistrates’ court for the
district of Ekurhuleni East, at Springs, to be disposed of in
the
light of this order.
WHG van der Linde
Judge, High Court
Johannesburg
I
agree.
HW
Sibuyi
Acting Judge, High Court
Johannesburg
For
the appellant: Adv. L.L. Norman
Instructed
by De Jager Kruger & Van Blerk Attorneys
Cnr 5
th
Street and &th Avenue
Springs
C/O
Mark-Anthony Beyl
94
Pritchard Street
Johannesburg
Tel:
011333 7790
For the
respondent: Adv. De Beer
Instructed
by C Coetzee Attorneys
9 Eva
Road, Cnr Jay Road
Fairleads,
Benoni
Tel:
011 968 9944/3/2
Date
argued: 19 April, 2016
Date
of judgment: 29 April, 2016
[1]
On 25 June 2015, by additional magistrate DJ Van
Vuuren, in the district of Ekurhuleni East.
[2]
The order was by Mojapelo, J, on 30 November
2011.
[3]
Compare generally, Herbstein & Van Winsen,
The Civil Practice of the High Courts of South Africa, fifth
edition, vol 1, by
Cilliers, Loots and Nel, p.936.
[4]
See generally Cool Ideas 1186 CC v Hubbard,
2014
(4) SA 474
(CC) at [28]; Natal Joint Municipal Pension Fund v
Endumeni Municipality,
2012 (4) SA 593
(SCA) at [18] to [26].
[5]
At [18].
[6]
Schutte v Schutte, 1986(1) SA 872 A at 882 E, per
Van Heerden, JA; Strauss v Strauss, 1974(3) SA 79 (AD) at 93 A, 93
H, per Rabie,
JA. See
s.7(2)
of the
Divorce Act 70 of 1979
.