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[2018] ZAGPJHC 506
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M v M (0042146/17) [2018] ZAGPJHC 506 (20 August 2018)
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REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 0042146/17
In
the matter between:
M,
S
APPLICANT
and
M,
S
RESPONDENT
JUDGEMENT
NKOSI
- THOMAS AJ
Introduction
[1]
At issue in this application is the applicant’s entitlement to
relief, in terms of the provisions of section 8(1) of the
Divorce Act
70, 1979
(“
the
Divorce Act
&rdquo
;),
varying the order of this Court granted on 26 April 2013
(“the
Court Order”)
in regard to the
maintenance obligations of the applicant towards the parties’
two major children.
[2]
Section 8(1)
of the
Divorce Act, in
its material parts, provides
that:
“
A maintenance
order … may at any time be rescinded or varied … if the
court finds that there is sufficient reason
therefor…”
[3]
The applicant and the respondent were married to each other out of
community of property excluding accrual system. During the
subsistence of their marriage two major children were born, namely, S
(“S”)
and L
(“L”).
[4]
On 26 April 2013 the parties’ marriage was dissolved by the
order of this Court incorporating a settlement agreement hitherto
entered into between the parties
(“the
settlement agreement”)
. At the time
of the dissolution of the marriage, S was a dependant major child as
he was enrolled at the University of […]
and L was in matric.
S had, however, stopped attending lectures at the University of […]
in his third year in 2012.
[5]
In terms of clauses 4.1 and 4.2 of the settlement agreement the
applicant was ordered to pay maintenance in the amount of R25 000,00
in respect of both S and L. The applicant paid this amount into the
respondent’s banking account on a monthly basis until
24 April
2014, at which time the applicant stopped paying maintenance.
[6]
L passed her matriculation examinations in December 2013 and decided,
thereafter, to simply stay at home and not pursue her
studies any
further.
[7]
During 2014 S re-registered at the University of […] but
subsequently dropped out, yet again. L, for her part,
enrolled at a
college in […] for a graphic design course only to drop out,
soon thereafter.
[8]
In April 2017 both S and L took up residence in […], United
States of America without saying a word to the applicant.
However, S
has since returned to South Africa, in December 2017, in order to
pursue his studies at the University of […].
[9]
During January 2018, S registered at the University of […] for
his third and fourth year modules in order to complete
his degree.
The applicant has been responsible for S’s upkeep since his
return from the United States of America, which upkeep
includes the
payment of tuition fees at the University of […]:
[10]
The applicant relies on the common cause facts set out below in
support of the proposition that there exists “
sufficient
reason
” in terms of
section 8(1)
of the
Divorce Act for
relief for the variation of the Court Order.
[10.1] In the case of S,
that:
[10.1.1] He is currently
27 years of age;
[10.1.2] He matriculated
at […], a private school, at the end
of
2009
[10.1.3] The applicant
paid for all his private school education and living expenses;
[10.1.4] In 2010 he
registered for his first year of study
at the University
of […], enrolled for
Electrical Engineering for a
period of three
years which he did not complete;
[10.1.5]
The applicant made payment in respect of all the fees, textbooks
stationery and to the like required by S;
[10.1.6]
The applicant took him to the University every morning;
[10.1.7] During his third
year, when the parties’ marriage broke down, he
stopped
attending classes and simply stayed at home;
[10.1.8] The applicant
offered him employment at his company and the
respondent intervened with a refusal as
in her opinion “
work is
beneath her precious children
”
(including L) whose father is
allegedly a millionaire and whose father can and
must support
them;
[10.1.9] The respondent
maintained that the applicant should simply pay
the
adult children a monthly salary as he could
afford to do so
without both
the adult children doing any work;
[10.1.10] The applicant
arranged employment with a friend of his, for S,
an
arrangement that was, yet again, rejected out of hand;
[10.1.11]
The applicant offered him a range of
products to sell and his
response
thereto was that it was unacceptable
inasmuch as he
did not require
the applicant’s charity;
[10.1.12] He began
drinking and smoking marijuana, which led to
him
exhibiting anti-social and
aggressive behaviour to the extent that
he
threatened to beat the applicant up
when he spoke to him
regarding
his conduct;
[10.1.13] The applicant,
in an attempt to ensure that he completes his degree,
arranged
a meeting with the Dean of the relevant faculty in
order
to plead that he be allowed to continue and
complete his degree;
[10.1.14] S was
allowed to return to his studies only to drop
out,
yet again;
[10.1.15]
S has not as yet completed his studies. He
has returned
to South Africa
but everything is still in the air
as regards his
future
prospects of gainful employment as he has not
acquired
any qualification despite
the applicant’s efforts to ensure that
he does so;
[10.1.16] He has,
however, enrolled at the University of […];
[10.1.17] The applicant
is currently paying for his tuition
and living
expenses;
[10.2] In the case of L,
that:
[10.2.1] She is currently
22 years of age;
[10.2.2] She matriculated
at the end of 2013 from […];
[10.2.3] She also
attended a private school whose school
fees and related expenses
were paid for by the
applicant;
[10.2.4] Despite the
above, she elected to stay at
home for a period of
approximately two years
after matric without doing any part time
work and rendering herself solely
dependent on the applicant for
her clothing and
social activities;
[10.2.5] She has achieved
neither a degree nor a diploma and hence she
is unable to work;
[10.2.6] She is currently
in […], United States of America;
[10.2.7] The applicant
has not been informed as to what she is currently doing
in the United States of America.
[11]
The picture that emerges from the common cause facts is one of two
adult children who were financially fully provided for by
the
applicant, who were given the best education money can buy but who,
unfortunately, have failed to achieve what is reasonably
expected of
them in the way of self - sufficiency as adults.
[12]
The question that therefore comes to the fore is whether it can be
said, on these papers, that the applicant has shown “
sufficient
reason
” for the variation of the
consent order referred to above. That is the question to which I now
turn.
[13]
Before I do so, I propose to briefly deal with the objection
in
limine
raised on behalf of the respondent that this Court should
dismiss this application as the applicant ought to have approached
the
maintenance Court, instead, for relief.
Is
the Maintenance Court the Appropriate Forum?
[14]
The respondent, relying on the
dictum
in
Troskie
v Troskie
[1]
, maintained that this
Court should dismiss this application with costs on the ground that
it ought properly to have been
brought in the maintenance Court by
the applicant.
[15]
The Court in
Troskie
held that:
“
It seems to me,
therefore, that this Court in the
exercise of his discretion, should
not entertain
any application to enforce payment of the arrears of a maintenance
order, unless there are good and sufficient circumstances
warranting
it.
In the present case
I have not been informed of any such circumstances. No exceptional
circumstances been brought to my attention.
On the contrary, the
parties do not appear to be wealthy; the respondent is an
unrehabilitated insolvent; he has appeared in person
to resist the
application. Consequently, the parties appear to be the very
kind of person for which the procedure under the
maintenance act was
designed.”
[16]
Troskie
is plainly distinguishable from the case at hand.
[16.1] First,
Troskie
was decided within the context of an application under Rule
45 (12), the applicable Rule at the time to enforce
payment of the arrear
maintenance in terms of
the order of the Court in respect of a minor child.
Here,
we are seized with a variation application that pertains to two major
children who are reasonably expected to have
been self-supporting by
now.
[16.2] Second, the
applicant in
Troskie
gave notice in terms of the Rule requiring
the
respondent to appear before Court for
an investigation into his
financial
position. Here, no investigation into the financial
position of the
applicant is called
for. The only issue is whether the
applicant should
continue paying an
amount of R25 000,00 monthly to the respondent in
respect
of maintenance of their two adult children.
[16.3] Third, the parties
in
Troskie
were
impecunious. The parties
in
casu
are
anything
but impecunious.
[16.4] Fourth, when
Troskie
was decided the maintenance Court was held to
have been
capable of providing “
a
simple, inexpensive and effective
[2]
procedure.”
That
does not appear to be the case currently and the
Constitutional
Court held in that regard that:
“…
there
is evidence of logistical difficulties in the maintenance
courts that
result in the system not functioning effectively. The
CGE placed
material before the Court, demonstrating
the
difficulties
with the operation of the Act,
including problems ranging from inadequately
trained staff to
insufficient facilities and resources.”
[3]
[16.5] Fifth, the
Court in
Troskie
held
that there were no exceptional
circumstances entitling it to entertain the
enforcement application. In the
case
before me, there are exceptional circumstances which warrant
this
Court to entertain this
matter, chief among them being the
respective
ages of the parties’ adult
children.
[17]
The objection
in limine
must, accordingly, fail.
Sufficient
Reason
[18]
As stated above,
section 8(1)
of the
Divorce Act provides
, in
material parts, that:
“
A maintenance
order … may at any time be rescinded
or varied … if the court finds that
there is sufficient reason
therefor…”
[19]
It, accordingly, follows that in order to be entitled to relief, the
applicant must demonstrate “
sufficient
reason
” in terms of
section 8(1).
[20]
The applicant placed much store, in this regard, on the fact that the
Court Order provides that the applicant must pay
maintenance
for the two adult children until they are self-sufficient. In this
regard, reliance was placed on the
dictum
in
Bursey v
Bursey and Another
[4]
where the SCA held that:
“
In my view, the
present order fixed a time for its duration, i. e until John becomes
self-supporting, and it will cease to operate
when that event occurs
(
or conceivably when John becomes
capable of supporting himself, a matter which I need not decide
.)
Whether that event has indeed occurred may be the subject of dispute
but it is an objective fact capable of being established
with
sufficient certainty.”
[own
emphasis]
[21]
The facts in
Bursey
are, however, distinguishable from those
in
casu
. There, the major child involved was 21
years old, enrolled for his third year of study at Rhodes University
and was completing
his degree. The major child in
Bursey
was clearly not self-supporting and has not “
conceivably
… [become] capable of supporting himself”
in
accordance with the above
dictum
.
He was simply not the author of his predicament.
[22]
In this case, however, it would not be an exaggeration to state that
the major children “
conceivably…
[became] capable of supporting”
themselves
and have only themselves to thank for being not self-supporting.
[23]
I find that to be so because, in the case of S, the applicant offered
him employment at his company which was flatly refused
as being
“
beneath”
him. An attempt by the applicant to get S employment with the
applicant’s friend was also rebuffed. A range of products to
sell were offered to S by the applicant which were similarly met by a
rebuff. Instead, S elected a life of “
drinking
”
[5]
and substance abuse.
[24]
L has similarly exhibited irresponsible conduct which only resulted
in her dropping out of a tertiary learning institution
and she is
currently in the United States of America and what she is doing there
remains a mystery to the applicant. When an employment
offer was made
to the children the respondent refused on account of work being
beneath her children.
[25]
In my judgment, the parties’ adult children are “
conceivably
capable of supporting”
themselves and
have only themselves to thank for the predicament in which they find
themselves currently.
[26]
I am fortified in the above conclusion by the judgment of this Court
in
Gliksman
v Talekinsky
[6]
where it was held that:
“
A child, when
it becomes of age, should normally be able to provide for himself or
herself… [ and] the liability on her father
to support her
only arises when it is shown that
she
cannot support herself
, she being a
major who should be able to provide for herself in normal
circumstances…”
[ emphasis
is mine]
[27]
As stated above, in my judgment, the two adult children are quite
capable of supporting themselves. Their cases are thus
distinguishable
from
Gliksman
.
[28]
The two adult children did not only enjoy good quality private school
education which has prepared them for all manner of economic
activity, but they have flatly refused offers from the applicant for
work in order to render them self-supporting.
[29]
The two adult children’s predicament, unlike that in
Gliksman
,
was self-created. It can hardly be expected of the applicant, in the
circumstances of this case, and no matter how wealthy, to
maintain
his adult children
ad infinitum.
[30]
Accordingly, and in my judgment, the applicant has shown “
sufficient
reason
” as contemplated in
section 8(1)
of the
Divorce Act for
the variation of the order of 26 April 2013.
[31]
In the result, I grant an order in the following terms:
[31.1] The settlement
agreement dated 22 October 2012 and made an Order
of
Court on 26 April 2013 is varied as follows:
[31.1.1]
by the deletion of clauses 4.1, 4.2, 4.3, 4.4, 4.5, 4.7, 4.8 and 5.9
thereof;
[31.1.2] by the
renumbering of the current clause 4.6 to read 4.1;
[31.2] The above
variation to the settlement agreement
shall apply
retrospectively from 1 April
2017;
[31.3] There shall
be no order as to costs.
L.G
NKOSI-THOMAS AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Heard:
2 August 2018
Judgment:
20 August 2018.
For
the applicant: Advocate M Feinstein, with her, L Mnqandi
For
the Respondent : Mr. D Sithole
[1]
1968(3) SA 369 (W)
[2]
Troskie at 370 H
[3]
Bannantyne v Bannantyne (GCE Amicus Curiae) 2003(2) SA 363 at [ 26]
[4]
1999 (3) SA 33(SCA)
at 38 D
[5]
Founding Affidavit, para 30
[6]
1955(4) SA 468 ( W) at 469 F - H