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[2023] ZAFSHC 170
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M.M.L v J.J.L (A66/2023) [2023] ZAFSHC 170 (18 May 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Case No:
A66/2023
In
the matter between:
M[…]
M[…] L[…]
Appellant
and
J[…]
J[….]
L[…]
Respondent
CORAM
:
MBHELE, DJP
et
TSANGARAKIS, AJ
HEARD
ON
:
20 FEBRUARY 2023
DELIVERED
ON
:
18 MAY 2023
JUDGMENT
BY
:
TSANGARAKIS, AJ
INTRODUCTION
[1]
This appeal has as its provenance an application prosecuted in the
Maintenance Court
for the district of Bethlehem (“
the Court
a quo
”) in terms of the provisions of
section 6(1)
of the
Maintenance Act, no. 99 of 1998
.
[2]
That application was prosecuted by the respondent (as applicant)
against the appellant
(as respondent).
[3]
A synopsis of the proceedings before the Court
a quo
reveals
that the respondent inter alia sought the discharge of his
maintenance obligations towards the appellant and a reduction
of the
amount of maintenance payable by the respondent to the respective
parties’ minor child.
[4]
The Court
a quo
inter alia
held, in respect of the
respondent’s maintenance obligations to the appellant, that:
“
This court
therefore on the evidence finds that the respondent is cohabiting
with another man, thus triggering the suspensive condition
terminating her continued maintenance.
”
[5]
It bears mention that although the appeal was also prosecuted in
respect of the maintenance
order granted by the Court
a quo
in
respect of the respective parties’ minor child, this portion of
the relief was abandoned during argument.
[6]
Commensurately therefore the appeal only lies against the Court
a
quo’s
order in respect of the discharge of the respondent’s
maintenance obligation to the appellant.
APPLICABLE LEGAL
PRINCIPLES
[7]
The controversy in this appeal emanates from, and revolves around,
the provisions
of clause 3 of a written Deed of Settlement which was
concluded during the divorce proceedings prosecuted by the appellant
(as
plaintiff) against the respondent (as defendant).
[8]
Clause 3, as aforesaid, reads thus:
“
Dat
die Verweerder onderhoud aan die Eiseres betaal tot haar dood,
hertroue of samewoning met ‘n ander man, welke gebeurtenis
ookal eerste mag plaasvind in die bedrag van R16 000,00 per
maand, ...
”
[9]
The clause, as aforesaid, can be loosely translated as follows:
“
That the
Defendant must pay maintenance to the Plaintiff up until her death,
remarriage or cohabitation with another man, whichever
event occurs
first in the amount of R16 000,00 per month, …
”
[10]
The reproduced extract of paragraph 3 of the Deed of Settlement is
known as a
dum casta
clause.
[11]
In
Drummond v Drummond
1979 (1) SA 161
(A) at 167 A
to C
the Court held as follows regarding the interpretation of
such a clause:
“
This clause was
obviously designed to provide for the contingency that the appellant
might establish a permanent relationship with
some other man, and
enjoy the advantage of being supported by him, without attracting the
consequences of a marriage and the resultant
cessation of any
liability for maintenance on the part of the respondent.
As
to the meaning of the phrase ‘living together as man and wife’,
I respectfully agree with the observations of ELOFF,
J in the
judgment of the Full Court, namely that he denotes
“
the
basic components of a marital relationship except for the formality
of marriage
”
and that
“
the main
component of a modus vivendi akin to that of husband and wife are,
firstly, living under the same roof, secondly establishing,
maintaining and contributing to a joint household, and thirdly
maintaining
an intimate relationship
.
”
And
I would add –
in which sexual intercourse, in the case of
parties of moderate age, would usually, but not necessarily always,
be an essential
concomitant and, in that context, the phrase “
on
a permanent basis
”
connotes, in my view, a
continuing relationship
, one that is intended by the parties to
continue indefinitely without change.
[12]
In the matter of
Stellenbosch Farmers’
Winery
Group Ltd and Another v Martell & Cie SA and Others
(427/01
[2002] ZASCA 98 (6 September 2002)
the
Supreme Court of Appeal, dealing with the issue of resolving factual
disputes, held
thus:
‘
[5]
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual
witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the
credibility of a particular witness will
depend on its impression about the veracity of the witness. That in
turn will depend on
a variety of subsidiary factors, not necessarily
in order of
importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal
contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact
or with his own extra curial statements or actions,
(v) the probability or improbability of particular aspects of his
version,
(vi) the calibre and cogency of his performance compared to
that of
other witnesses testifying about the same
incident or events. As to (b), a witness’s reliability
will
depend, apart from the factors mentioned under (a)(ii), (iv) and (v)
above, on (i) the opportunities he had to experience or
observe the
event in question and (ii) the quality, integrity and independence of
his recall thereof.
As to (c), this necessitates an
analysis and evaluation of the probability or improbability of
each
party’s version on each of the
disputed
issues. In the light of its assessment of
(a), (b) and (c) the court will then, as a final step, determine
whether the party burdened
with the onus of proof has succeeded in
discharging it.
The hard case, which will
doubtless
be the rare one, occurs when a court’s credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the
less convincing will be the latter. But when all factors are
equipoised probabilities prevail...’
[13]
The judgement delivered in the matter of
National Employers’
General Insurance v Jagers
1984 (4) SA 437
(ECD) at 440D – 441A
is also instructive:
“
It seems to me,
with respect, that in any civil case, as in any criminal case, the
onus can ordinarily only be discharged by adducing
credible evidence
to support the case of the party on whom the onus rests. In a civil
case the onus is obviously not as heavy as
it is in criminal cases,
but nevertheless
where the onus rests on the Plaintiff as
in the present case, and where there are two mutually destructive
stories, he can only
succeed if he satisfies the Court on a
preponderance of probabilities that his version is true and accurate
and therefore acceptable,
and that the other version advanced by the
Defendant is therefore false or mistaken and falls to be rejected. In
deciding whether
that evidence is true or not the Court will weigh up
and test the Plaintiff’s allegations against the general
probabilities.
The estimate of the credibility of a
witness will therefore be inextricably bound up with a consideration
of the probabilities of
the case and, if the balance of probabilities
favours the Plaintiff, then the Court will accept his version as
being probably true.
If however the probabilities are evenly balanced
in the sense that they do not favour the Plaintiff’s case any
more than
they do the Defendant’s, the Plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his
evidence is true and that the Defendant’s version is false.
This view seems to me
to be in general accordance with the views expressed by Coetzee J in
Koster KO-operatiewe Landboumaatskappy
Bpk v Suid-Afrikaanse
Spoorwee en Hawens (supra) and African Eagle Assurance Co Ltd v
Cainer (Supra).
I would merely stress however that when in such
circumstances one talks about a Plaintiff having discharged the onus
which rested
upon him on a balance of probabilities that means that
he was telling the truth and that his version was therefore
acceptable.
It does not seem to me to be desirable for a Court first
to consider the question of the credibility of the witnesses as the
trial
Judge did in the present case, and then having concluded that
enquiry, to consider the probabilities of the case, as though the
two
aspects constitutes separate fields of enquiry. In fact, as I have
pointed out, it is only where a consideration of the probabilities
fails to indicate where the truth probably lies, that recourse is had
to an estimate of relative credibility apart from the
probabilities.”
THE FACTS
[14]
During the proceedings in the Court
a quo
, the following more
pertinent facts came to the fore.
[15]
The appellant, and one Mr Coetzee, have been in a relationship since
or about October 2016. They
entered into their relationship
approximately two months pursuant to the bonds of marriage between
the appellant and the respondent
having been dissolved by way of a
decree of divorce. The relationship between Mr Coetzee and the
appellant is of an intimate
nature and they share the same room and
bed when he frequents the applicant’s residence in Bethlehem.
[16]
Mr Coetzee, although working in Gauteng during the week, spends his
weekends, holidays and free
time with the appellant at her residence
in Bethlehem. Mr Coetzee also spent in excess of two weeks at
the appellant’s
residence during the national lockdown brought
about by the recent Covid-19 global pandemic. Whilst at the
appellant’s residence
Mr Coetzee will “
buy some
stuff
”, make contributions to petrol and takes the
appellant and her (and the respondent’s) minor child out for
dinner.
Mr Coetzee and the appellant also take vacation
together with the appellant and respondent’s minor child, to
destinations
such as Mozambique, for which he pays albeit that he
does not necessarily make payment of all the expenses brought about
by such
vacations.
[17]
Mr Coetzee possesses and has the benefit of the use of an Isuzu
bakkie that has been financed
by the respondent. Mr Coetzee pays the
appellant in the amounts equal to the instalments due in terms of the
appellant’s
financing of the motor vehicle aforesaid
[18]
Additionally various items belonging to Mr Coetzee are stored at the
appellant’s residence
in Bethlehem which include his Venter
trailer, his braai stand and various canopies.
[19]
His clothing items are also regularly hung up on the washing line at
such residence. This particular
aspect of the evidence was, however,
disputed by the appellant. She testified that the only male items of
clothing hung on the
washing line belonged to her son-in-law who
could not return to China, as a consequence of the Covid-19 global
pandemic, and resided
with the appellant for a period of two weeks.
More about this aspect later.
[20]
Moreover, Mr Coetzee contributes to the needs of the minor child
conceived during the marriage
between the appellant and the
respondent. So, for instance, he has purchased the minor child
a horse and pays for her cellphone.
CONCLUSION
[21]
The element of an intimate relationship (as dealt with and explained
in the
Drummond
matter dealt with herein above) is
common cause between the respective parties and as such this aspect
need not be considered further.
[22]
I now turn to deal with the two remaining elements, evident from the
Drummond
matter, being that of “
living under
the same roof”
and “
establishing, maintaining and
contributing to a joint household”.
[23]
The more pertinent facts of this matter, as dealt with herein above,
are by and large common
cause between the respective parties and
they, on a proper and objective interpretation of their submissions,
effectively only
differ in the applications of the principles of law
to such facts.
[24]
At this juncture, it is relevant to point out that the
dum casta
clause in terms of the deed of settlement does not require the
cohabitation by the appellant with another man “
as man and
wife
” but only “
samewoning met ‘n ander
man
”.
[25]
In weighing up the evidence and testing the respondent’s
allegations against the general
probabilities it, in my view, falls
to be accepted that the respondent’s version is probably true
and the Court
a quo
was correct in accepting the same. The
Court a quo made no findings as to the respective parties’
credibility nor was it necessary
for it to do so.
[26]
The tipping of the probabilities in favour of the respondent are
borne out by the largely common
cause facts recorded herein above.
[27]
The facts illustrate that Mr Coetzee has been in a relationship with
the appellant shortly pursuant
to her divorce from the respondent.
On the probabilities Mr Coetzee’s employment in Gauteng is the
sole reason that
he is only able to spend his weekends,
holidays and free time with the appellant at her residence situated
in Bethlehem.
In today’s day and age, it can hardly be
contended that it is uncommon for individuals to live in one place
and work at another.
But for his employment Mr Coetzee would on
the probabilities live at the appellant’s residence during the
week too.
[28]
Moreover the storage of Mr Coetzee’s Venter trailer, his braai
and various canopies and the regular
hanging of his clothing items
upon the washing line at the appellant’s residence are, in my
view, further proof of the fact
that he lives under the same roof as
the appellant. The appellant’s explanation that the male
clothing items hung on the
washing line belonged to her son-in-law
does not bear scrutiny as it only accounts for a paltry period of 2
weeks in circumstances
where Mr Coetzee and the appellant have been
in a relationship for several years and the appellant’s
clothing has been regularly
seen on the washing line.
[29]
As to the final element of “
establishing,
maintaining and contributing to a joint household”
it is
clear that Mr Coetzee is in more than one way financially
contributing towards the appellant by “
buying some stuff
”,
make contributions to petrol, taking the appellant and her (and the
respondent’s) minor child out for dinner, going
on vacations
for which he pays albeit that he does not necessarily make payment of
all the expenses brought about by such vacations,
possesses and has
the benefit of the use of the Isuzu bakkie and contributes to the
needs of the minor child.
[30]
For these reasons, the appeal stands to be dismissed with costs.
[31]
The last aspect, which falls to be considered, are the costs which
stood over when the appeal
served before this Court and was postponed
on both 1 August 2022 and 14 November 2022.
[32]
Insofar as the costs, relevant to the proceedings of 1 August 2022
are concerned, the postponement
on that date was necessitated by
unsuccessful attempt(s) by the appellant to reconstruct the record
and provide the Court with
a complete record for purposes of appeal.
Accordingly, that postponement was solely the result of the
appellant’s failure
to duly comply with her obligations in
terms of Uniform Rule of Court 50 as she, from the onset of the
appeal, failed to deliver
a complete record or to take the necessary
steps to ensure that a complete record could be reconstructed and
provided.
[32]
On 14 November 2022, the appeal was again postponed as a consequence
of the record being incomplete.
Manifestly clearly, this
postponement again was occasioned by the failure on the part of the
appellant to construct the record.
[33]
In light of these facts, and in the exercise of my judicial
discretion, the appellant ought
to bear the wasted costs occasioned
by these postponements.
[34]
Insofar as the costs of the appeal are concerned, there exists no
cogent reason(s) why those
costs should not follow the result.
ACCORDINGLY,
I MAKE THE FOLLOWING ORDERS
:
The
appeal is dismissed with costs, including the wasted costs occasioned
by the postponement of the appeal on 1 August 2022 and
14 November
2022.
________________________
S.
TSANGARAKIS, AJ
I
agree:
________________________
N.M.
MBHELE, DJP
On
behalf of the Appellant:
Adv.
R. Van der Merwe
Instructed
by:
Honey
Attorneys
Bloemfontein
On
behalf of the Respondent:
Adv
C.D. Pienaar
Instructed
by:
Phatshoane
Henney Attorneys
Bloemfontein