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[2017] ZAGPJHC 335
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B v B (2016/15453) [2017] ZAGPJHC 335 (17 November 2017)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.: 2016/15453
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
J
B
PLAINTIFF
and
D
B
DEFENDDANT
JUDGMENT
VAN
DER WESTHUIZEN, A J
[1]
The plaintiff and the defendant were previously married to each
other, that relationship being terminated by a decree of divorce
that
was granted by this court on 14 October 2005. Incorporated in
the decree of divorce was a settlement agreement that
was made an
order of court by agreement.
[2]
The present action flows from an alleged breach of the settlement
agreement, in particular paragraph 7.4 thereof, on the part
of the
defendant. Paragraph 7 of the settlement agreement reads:
“
7.1
The
Plaintiff will pay to the Defendant the sum of R7 500.00 per month,
the first payment to be made on the first day of the month
following
the date upon which a final order of divorce is granted and
thereafter on the first day of each and every consecutive
month until
the Defendant becomes self supporting. Should the parties fail
to reach agreement about of the Defendant to support
herself the
matter will be referred to an advocate appointed by the parties
jointly, and failing agreement, by the Johannesburg
Bar Council with
not less than 10 years experience who will adjudicate the dispute in
order to determine whether the Defendant
is self supporting or not.
His decision will be final and binding on the parties.
7.2 The
maintenance aforementioned will on the anniversary date of this
divorce increase annually by at least the CPI scale applicable
at the
time of such increase.
7.3 The
Plaintiff will retain the Defendant as a principal member on her
present medical aid scheme, or a medical aid scheme with
no lesser
benefits that the one she is presently a member on. The
Plaintiff will pay the monthly premiums of such scheme.
The
Plaintiff’s obligation in respect of medical costs of the
Defendant will be limited to the annual limits of any such
scheme.
7.4 The
obligations of the Plaintiff referred to in 7.1 and 7.2 above will
terminate should the Defendant remarry or reside with
a man in
matrimonial partnership for a period exceeding six months.
”
[3]
The plaintiff testified on his own behalf and led the evidence of Ms
J-D. The latter is the daughter of a Mr J who is
claimed to
have been in a matrimonial partnership with the defendant for a
period exceeding six months as contemplated in the clause
7.4
recorded above.
[4]
The defendant denied that she breached the provisions of clause 7.4
and testified on her own behalf. She presented the
evidence of
the said Mr J in support of her defence.
[5]
Evidence was led over a two-day period. The trial was run on 2 and 3
August 2017. Both parties closed their respective
cases.
The parties concluded their argument on the merits on the second
day. I reserved judgment. Whilst considering
and preparing my
judgment, I was notified of an application relating to the re-opening
of the case of one of the parties.
That application was
subsequently set down for adjudication on 8 September 2017. The
defendant sought to lead evidence allegedly
not being available
during the trial. On the aforementioned date it came before
me. The application was postponed to
18 September 2017 for
argument. The matter became opposed. On 18 September 2017
I heard the application for re-opening
the defendant’s case and
dismissed the application for the reasons enumerated in my
ex
tempore
judgment delivered on 18
September 2017. I do not intend to deal with that application
in this judgment. It is merely
recorded for the sake of
completeness.
[6] The plaintiff contends that the
defendant breached the provisions of clause 7.4 in that she entered
into a relationship with
the said Mr J for a period exceeding six
months. The said relationship being one akin to a matrimonial
partnership as contemplated
in clause 7.4 of the settlement
agreement.
[7]
It was argued on behalf to the defendant that the evidence led on
behalf of the plaintiff did not support the allegations in
the
plaintiff’s particulars of claim where it is stated that the
defendant is “presently in a marriage relationship”.
It is further submitted that the evidence led on behalf of the
plaintiff thus does not prove the allegation contained in the
particulars
of claim and hence that no case has been made out in that
regard. The evidence, so it is submitted, relates to a period
prior
to the institution of the action and that at the date of the
institution of the action, the defendant was not involved in a
marriage
relationship as contemplated in the settlement agreement.
There is no merit in that submission for what follows.
[8]
It is trite that allegations in particulars of claim do not
constitute evidence. Furthermore, the purpose of particulars
of
claim is merely to identify the real issues in dispute that is
subsequently delineated by the allegations in answer thereto
as
contained in the plea.
[1]
It is the Court’s duty to determine what the real issues
between the parties are and, provided no possible prejudice
can be
caused to either party, to decide those real issues.
[2]
Furthermore, it was held in
Stead
v Conradie
[3]
that a court is not to follow the
ipsissima
verba
of the pleadings blindly.
[9]
The real issue between the parties is whether there has been a breach
of clause 7.4 of the settlement agreement or not. That
issue can only
be decided on the evidence placed before court.
[10]
In my view, clause 7.4, as quoted above, does not lean to an
interpretation that a matrimonial relationship is to exist at
the
time when proceedings are instituted to give effect to the provisions
of clause 7.4 of the settlement agreement.
[11]
In the present instance, both parties dealt with that issue in the
evidence led in their respective cases.
[12]
It is not submitted that any prejudice was suffered in respect of the
plaintiff’s case as dealt with in the evidence
led on his
behalf, nor could any prejudice be inferred. No prejudice was
proven. The defendant dealt with plaintiff’s
evidence as
led and the defendant was prepared to deal therewith in defence.
Furthermore, and in my view, the circumstances
relating whether
there is or has been a breach of the provisions of clause 7.4 lie
within the peculiar knowledge of the defendant.
[4]
The defendant would be in the special position to rebut any evidence
led in that regard on the part of the plaintiff.
[13] Justice will not be served should
plaintiff be held to the
ipsissima verba
of his particulars of
claim. As recorded above, the real issue is whether there was a
breach of the settlement agreement
irrespective of the time that it
occurred, if it so occurred.
[14]
The present plaintiff was the plaintiff in the divorce proceedings.
The plaintiff’s present action does not impact
upon the
provisions of clause 7.3 of the settlement agreement. The
relief is only directed at the provisions of clauses 7.1,
7.2 and
7.4. A positive finding upon clause 7.4 would by necessity
impact negatively upon the provisions of clauses 7.1 and
7.2, and
release the plaintiff from his obligations in that regard.
[15]
Clause 7.4 of the settlement agreement is termed a so-called
dum
casta
clause.
[5]
[16]
A summary of the plaintiff’s evidence reveals the following:
(a)
The parties were married to each other
which marriage was dissolved on 14 October 2005. The parties
had on 6 September concluded
a written settlement agreement that was
made an order of court as part of the decree of divorce that was
granted on 14 October
2005;
(b)
The plaintiff continued making payment in
terms of the settlement agreement to the defendant since the grant of
the decree of divorce
incorporating the settlement agreement;
(c)
During 2013 it came to the plaintiff’s
knowledge that the defendant was involved in a matrimonial
relationship with a certain
Mr H J;
(d)
The plaintiff became so aware due to
various circumstances. One being that the plaintiff received a
telephone call from the
said Mr H J. The call was made
following on an incident during which the defendant became hysterical
and the said Mr J sought
help from the plaintiff;
(e)
During March 2014, the aforementioned Mr
J’s daughter from a previous marriage, one C J-D, called the
plaintiff and advised
him that her father was involved with his
ex-wife and that they were living together as husband and wife.
At that stage the
plaintiff knew that defendant and the said Mr J
were together, but was unaware that they were involved in a
matrimonial relationship;
(f)
The plaintiff and defendant’s
daughter married during October 2014. The plaintiff attended
his daughter’s wedding,
but his ex-wife, the defendant,
although initially invited, did not attend the wedding. His
daughter had shortly before the
wedding, told her mother not to
attend her wedding, the reason therefor is not relevant for present
purposes;
(g)
The plaintiff instructed his attorney to
send a letter of demand to the defendant in respect of the breach of
the provisions of
clause 7.4 recorded above;
(h)
During cross-examination it was
suggested to the plaintiff that he was in cahoots with the said C J-D
and her mother who was previously
married to the aforementioned Mr
J. The plaintiff denied the suggestion;
(i)
The plaintiff was further taken to task
that he waited before issuing the present proceedings and that he was
aware that at the
stage of commencing these proceedings, the
defendant was not in a matrimonial relationship with any man and in
particular not with
the said Mr J;
(j)
Much was said during cross-examination in
respect of the six months period referred to in clause 7.4 quoted
above. The plaintiff
denied that that clause could only be
interpreted as requiring a continued period of six months, and not an
interrupted period
of six months;
(k)
The plaintiff was also taken to task under
cross-examination about non-compliance with his obligations in
respect of the payment
of maintenance. The latter is irrelevant
in respect of a determination of a possible breach of the provisions
of clause 7.4
of the settlement agreement;
(l)
When the defendant’s version was put
to the plaintiff in respect of the relationship between the defendant
and the said Mr
J, evidence was solicited indicating that that
relationship was more than “purely friendship”. I
shall refer
to that evidence when dealing with the evidence of Ms
J-D.
(m)
It was put that the relationship had ended
prior to the date of the kitchen-tea being held for the defendant’s
daughter and
hence that no bases existed for the allegations
contained in the particulars of claim on which this action was
premised;
(n)
The plaintiff arranged for a private
investigator to investigate the allegations of the relationship
between the defendant and Mr
J. Photographs were taken at the
defendant’s house where the vehicle of the said Mr J was
parked.
[17]
Ms J-D’s evidence can be summarised as follows:
(a)
Ms J-D testified under
sub
poena
;
(b)
She is the daughter of the aforementioned
Mr H J and his ex-wife;
(c)
Ms J-D knows of the defendant and knew her
for a number of years. She called the defendant, “D[...]”;
(d)
She knew of the defendant since 2011/2012
and testified that the defendant was at her house on two occasions.
Once for
a Sunday afternoon lunch and the other when a “braai”
was held for her grandfather;
(e)
The defendant also accompanied the said Mr
J to other family functions;
(f)
Ms J-D recounted events from which it was
clear that the relationship between her father and the defendant were
more than purely
friends. These included telephonic discussions
with her father during which he and the defendant were together in
the bath
and clearly being intimate: another where her father and the
defendant were in bed together and sleeping and did not answer the
telephone timeously; an event at which her father indicated that he
would pay an amount to his ex-wife and that the defendant was
not to
know thereof as she would be upset about that: her father would
indicate on occasions, when she struggled to get hold of
him on the
telephone, that the cell-phones were charging in the kitchen as the
phones were not allowed in their bedroom at night:
her father
indicated that he was not willing to attend to other “projects”
as he had things to do for the defendant;
(g)
In short, Ms J-D testified that everything
pointed to an intimate relationship and not a mere friendship.
In that regard,
she testified that she herself was in an
extra-marital relationship and knew all the telling indications of
such a relationship;
(h)
Ms J-D further testified that the defendant
on occasion mentioned that she had to be careful of her relationship
with Mr J coming
out in the open, as she would stand to lose her
maintenance;
(i)
There was a dispute in respect of the
occasion of Ms J-D’s husband’s 40
th
birthday party at Hartbeespoort Dam. Nothing turns on what year
that was held. The facts on what happened that day
are clear.
The defendant and Mr J attended that celebration together and were
clearly “a couple”;
[19]
The plaintiff called two independent witnesses. The one was a
Mr Andries Visagie, a Deputy Sherriff and one Morné
Erasmus.
The latter was the private investigator who testified about the
photograph taken at the defendant’s residence
where the said Mr
Jourbert’s vehicle was parked. The evidence of Mr Erasmus
during cross-examination was denied as
not proving anything.
The occasion was simply explained that it was by chance that Mr J’s
vehicle was parked there,
as he was doing work for the defendant at
that time.
[20]
The evidence of Mr Andries Visagie was to the effect that legal
process in respect of Mr J was served at the defendant’s
residence on 13 January 2014. The inference apparently sought
to be drawn was that that was the address where process could
be
served upon Mr J. The aforementioned process was served upon Mr
J personally. No cross-examination was directed
at Mr Visagie.
[21]
The defendant’s evidence can be summarised as follows:
(a) The defendant
admitted to entering into the settlement agreement during 2005;
(b) She denied
being in breach of the provisions of the aforesaid clause 7.4 of the
settlement agreement. Her response was
a mere “I did not
do that”;
(c) The defendant
testified that she had met Mr J approximately 10 years ago at a
church meeting when she inquired about someone
who could attend to
handyman tasks. Mr J was introduced to the defendant and he
attended to certain handyman tasks at her
home;
(d) Following on
that introduction and the errands undertaken by Mr J, a friendship
ensued. The friendship became more intimate
and later developed
into a romantic relationship;
(e) The romantic
relationship evolved into one where Mr J would sleep over and the
parties became intimate and shared a bed.
He moved into her
bedroom. Initially it was only on occasion, however, it became
clear under cross-examination that it was
on a continued and
permanent basis;
(f) Despite
protestations on the part of the defendant, she under
cross-examination conceded that they had entered into a relationship
where they lived together as husband and wife. Both she and Mr
J cared for a joint household and contributed thereto, either
in
respect of groceries, money and maintenance of the joint household.
The defendant was at pains to indicate that the monies
Mr J paid was
only in respect of his lodging during interrupted periods. The
defendant’s explanation was unconvincing;
(g) The defendant
was at pains to explain that they never continued their relationship
in excess of six month’s and that it
was interrupted.
Under cross-examination, the defendant could not provide precise
details of the periods when the relationship
was interrupted and for
what period. The defendant conceded that they re-kindled the
relationship every time after an “interruption”;
(h) It was conceded
that Mr J wanted a “permanent” relationship and when the
problems arose about the defendant’s
daughter, he decided to
end their relationship. That was sometime in 2014;
(i) The defendant
disputed the evidence of Ms J-D. In that regard the defendant
was evasive;
(j) It was conceded
that prior to Mr J, the defendant had no relationship with other men
nor after the relationship with him had
broken down;
(k) The defendant
conceded that the relationship was one of husband and wife and not
mere platonic.
[22]
The evidence of Mr J was the following:
(a) He corroborated
the circumstance under which he met the defendant;
(b) Mr J confirmed
that a romantic relationship evolved between them and that it was
intimate to the extent that they shared the
same bed and the same
bedroom. He was at pains to point out that he also occupied a
different room on occasion;
(c) Mr J testified
that they were in love and that he wanted a permanent relationship;
(d) He was also
unable to indicate the periods when he allegedly moved out of the
defendant’s house and the reasons therefore.
No specific
evidence was led in that regard. No documentary proof was
provided to confirm the periods when he allegedly had
to work on his
computer and when he had done so in an endeavour to create his
invoices for work he undertook for third parties;
(e) Mr J confirmed
part of the evidence of Ms J-D and attempted to dispute other;
(f) He testified
under cross-examination that he was committed to the relationship
with the defendant and that she was likewise
committed thereto;
(g) Mr J conceded
that he undertook the maintenance of the common home and testified
that the defendant paid in cash. No evidence
was provided as to
the amounts paid in respect of the said maintenance and what was done
in that regard. His evidence as
to the amounts paid by him for
his “lodging” was vague and non-specific;
(h) He conceded
under cross-examination that over a period of three years, he did not
keep record of his stay with the defendant
but that it was in excess
of six months.
[23]
In my view, considering the evidence of the defendant and Mr J, it is
clear that they enjoyed a matrimonial relationship.
The
evidence of Ms J-D supports such conclusion. No convincing
explanation was provided why Ms J-D’s evidence should
be
rejected.
[24]
The evidence of the Deputy Sherriff in respect of the service of
process was not convincingly explained nor why the residential
address of the defendant was provided for the service of process.
The only inference to be drawn in that regard is that Mr
J was in
fact living at that address under the circumstances recorded above
and conceded by the defendant and Mr J.
[25]
Both parties accepted in their evidence that the content of the
phrase “matrimonial relationship” is akin to that
of
living together as husband and wife.
[26]
In
Drummond
v Drummond
[6]
the Appellate Division, as it was then known, held that the content
of the phrase “living together as man and wife”
donates
the basic components of a marital relationship except for the
formality of marriage. It was further held that “
the
main components of a modus vivendi akin to that of husband and wife
are, firstly, living under the same roof, secondly establishing
and
contributing to a joint household, and thirdly maintaining an
intimate relationship.”
It was held that sexual intercourse would usually be an essential
concomitant in such relationship.
[7]
[27]
From the evidence recorded above, it is common cause that the parties
lived under the same roof, contributed to a joint household
established to their advantage, and that an intimate relationship
(including sexual intercourse) was maintained. The parties
were
at a loss to explain the alleged “interrupted”
cohabitation and that did not exceed, on their interpretation of
the
phrase “six months” i.e. that it was to be continuous.
It is clear on the evidence of both the defendant
and Mr J that they
re-kindled their relationship after the alleged “interruption”.
It was conceded by Mr J that
the relationship exceeded a period of
six months. On the defendant’s evidence the relationship
was to continue indefinitely,
albeit with “interruptions”.
[28]
It follows that the plaintiff has established that a matrimonial
relationship between the defendant and Mr J existed for a
period
exceeding six months.
[29]
There remains the issue of costs. In my view, justice will be
served that no order as to costs is made.
[30]
In my view, the plaintiff is entitled to the relief sought.
I
grant the following order.
(a)
It is declared that the plaintiff’s
maintenance obligation as provided in clauses 7.1 and 7.2 of the deed
of settlement concluded
on 6 September 2005 between the plaintiff and
the defendant, is terminated.
________________________________
C J VAN DER WESTHUIZEN
ACTING JUDGE OF THE HIGH COURT
On behalf of Applicant: J W Kloek
Instructed
by: Jan Rossouw Attorneys
On behalf of Respondent: Ms E Erasmus
Instructed
by: Riekie Erasmus Attorneys
Dates
of Hearing: 2 and 3 August 2017
Dates
of Hearing
Re-opening
of Case: 8 and 18 September 2017
Date
of Judgment: 17 November 2017
[1]
Schill
v Milner
1937 AD 101
at 105; see also
Sentrachem
Bpk v Wenhold
1995(4) SA 312 (A)
[2]
Robinson
v Randfontein Estates GM Co Ltd
1925
AD 173
[3]
1995(2)
SA 111 (A); See also
Randfontein,
supra.
[4]
See
National
Director of Public Prosecutions v Zuma
2009(2) SA 277 (SCA) at [7]
[5]
See
Cohen
v Cohen
2003(3) SA 337 (SCA) at [4]
[6]
1979(1)
S 161 (A)
[7]
See
also
EH
v SH
2012(4) SA 164 (SCA) at [10]