Kruger NO v Goss and another (603/08) [2009] ZASCA 105; 2010 (2) SA 507 (SCA) ; [2010] 1 All SA 422 (SCA) (21 September 2009)

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[2009] ZASCA 105
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Kruger NO v Goss and another (603/08) [2009] ZASCA 105; 2010 (2) SA 507 (SCA) ; [2010] 1 All SA 422 (SCA) (21 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 603/08
FRED
KRUGER NO
Appellant
and
DENISE
EMMERENTIA GOSS
First
Respondent
MASTER
OF THE HIGH COURT
Second Respondent
________________________________________________________________
Neutral citation:
Kruger
v Goss and another
(603/08)
[2009] ZASCA 105
(21 September 2009)
CORAM:
NAVSA,
BRAND and PONNAN JJA
HEARD:
14
September 2009
DELIVERED:
21
September 2009
CORRECTED:
SUMMARY: Rehabilitative maintenance
order ─ claim against deceased estate ─
s 7(2)
of the
Divorce Act
70 of 1979
and the common law discussed ─ claim held not to be
enforceable.
________________________________________________________________
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High
Court, Pretoria (Hartzenberg J sitting as court of first instance).
1. The appeal is upheld with costs.
2. The order of the court below is set
aside and substituted as follows:
‘
The application is
dismissed with costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA JA (BRAND and PONNAN JJA
concurring):
[1] The question in this appeal is
whether an order for rehabilitative maintenance, pursuant to a decree
of divorce, is enforceable
by a spouse against her former husband’s
deceased estate.
Background
[2] The respondent, Ms Denise
Emmerentia Goss, and Mr Fred Loll Stephanus Kruger married each other
on 23 March 1988. The marriage
was out of community of property with
the exclusion of the accrual system as contemplated in Chapter 1 of
the
Matrimonial Property Act 88 of 1984
.
[3] Approximately three and a half
years later they were divorced by order of the Pretoria High Court
(Hartzenberg J). The divorce
order was granted after a trial lasting
a week. The respondent had no capital claim against her former
husband and had restricted
her claim to one for rehabilitative
maintenance. The relevant part of the order reads as follows:
‘ “
2. THAT the
Plaintiff is to pay rehabilitative maintenance to the Defendant as
follows:
2.1 R8 000-00 per month
for the months of October, November and December 2003;
2.2 R6 000-00 per month
for the next 57 months;
2.3 All payments are to
be paid on or before the 3
rd
day of each month;
2.4 If the Defendant
becomes employed and earns an income, the Plaintiff will not be
entitled to advance that income as changed
circumstances for
purposes of an alteration of the maintenance order.” ’
[4] Subsequent to the divorce
proceedings and the order referred to above, Mr Kruger, to whom
I shall hereafter refer as the
deceased, duly and punctually paid
rehabilitative maintenance to the first respondent until 31 August
2006. He passed away on 29 September
2006 due to natural causes.
By this time the deceased had paid 33 of the envisaged 57 monthly
instalments.
[5] On 13 February 2007 the
deceased’s son, Mr Fred Kruger, was appointed executor of the
latter’s estate. The first respondent
lodged a claim against the
deceased’s estate for the remainder of the rehabilitative
maintenance, which she considered due to
her. This amounted to R144
000, which was calculated as follows: 24 months x R6 000. The
executor, after taking legal advice,
rejected the claim.
[6] Not surprisingly, this led to the
litigation culminating in the present appeal. During March 2008 the
first respondent launched
application proceedings in the Pretoria
High Court against Mr Kruger, in his capacity as executor of the
deceased’s estate. She
sought an order declaring that the estate
was liable to pay her rehabilitative maintenance. More specifically,
she sought an order
for payment of the amount of R144 000, with
interest
a tempore morae
.
[7] As fate would have it the matter
once again came before Hartzenberg J, who granted the relief sought
by the first respondent
and ordered the executor, the appellant
herein, to pay her costs.
[8] It is against that order, with the
leave of the court below, that the present appeal is directed.
Conclusions
[9]
Section 7
of the
Divorce Act 70 of
1979
provides for the division of assets and the maintenance of
parties. The relevant part of
s 7(2)
provides that a court, in the
absence of an agreement, may, ‘having regard to the existing or
prospective means of each of the
parties, their respective earning
capacities, financial needs and obligations, the age of each of the
parties, the duration of
the marriage, the standard of living of the
parties prior to the divorce, their conduct in so far as it may be
relevant to the
break-down of the marriage, … and any other factor
which in the opinion of the court should be taken into account, make
an order
which the court finds just in respect of the payment of
maintenance by the one party to the other for any period until the
death or remarriage of the
party in whose favour the order is given, whichever event may first
occur
.’ (My emphasis).
[10] As can be seen, the power to
grant maintenance is confined not to the duration of the life of the
spouse liable to pay, but
rather to the life of the beneficiary
spouse. This legislative provision should, however, not be viewed in
isolation. The common
law viewed the duty of support which spouses
owed each other, and consequently the liability for maintenance, as
incidents of their
matrimonial relationship. Termination of
the
relationship by death brought that duty to an end
.
1
[11] The Maintenance of Surviving
Spouses Act 27 of 1990 (the MSSA) allowed widows and widowers, in
specified circumstances, to
be maintained from the estates of their
late partners.
2
Up until the promulgation of the MSSA there was no such entitlement.
The MSSA was limited legislative intervention, altering the
common
law to the extent set out therein. The common law rule remained
otherwise untouched.
[12] It can hardly be argued that
before the MSSA came into being, divorced persons, whose erstwhile
spouses had died, were in a
more favourable position than widowed
ones, giving them ‘rights against the estates of people no longer
married to them at the
time of death which widowed spouses did not
enjoy against the estates of those to whom they were then still
married.’
3
[13] I agree with the conclusion
reached by Didcott J in
Hodges
v Coubrough
,
4
that
s 7(2)
of the
Divorce Act cannot
be construed so as to alter the
common law position reflected in para 10 above. The following passage
from that case (at 64E-F)
is worth noting:
‘
Had [the legislature]
meant something so surprising, something so startling, it would
surely have spelt out the meaning. It would
hardly have left such to
be conveyed by the sidewind of generally worded provisions which,
while accommodating the idea linguistically,
dealt with it obliquely
and elliptically.’
[14] The court below held that
s 7(2)
was inapplicable, in that, rehabilitative maintenance is ‘an animal
of its own’, and if ordered in the terms referred to in
para 3, the
estate of ‘the maintaining spouse’ is liable to pay the
outstanding maintenance. On that basis the court below
granted the
first respondent the relief sought.
[15] Counsel on behalf of the first
respondent rightly conceded before us that if rehabilitative
maintenance is to be regarded as
a species of maintenance the appeal
should succeed. Rehabilitative maintenance is most certainly a
species of maintenance. I cannot
imagine how rehabilitative
maintenance can be maintenance of a kind that does not fall within
the ambit of
s 7(2)
of the
Divorce Act. For
this reason alone the
appeal should succeed. There are further considerations that militate
against the conclusion reached by the
court below, which are alluded
to hereafter.
[16] Of course a spouse is free to
agree to bind his/her estate to pay maintenance after death. That is
not what occurred in the
present case. To allow maintenance claims
of the kind encountered here against deceased estates might have all
sorts of undesirable
consequences. The legitimate claims to
maintenance of minor children might be diminished or excluded. And,
the rights of beneficiaries
might be implicated.
Section 3
(b)
of the MSSA provides that a claim for maintenance of a surviving
spouse shall have the same order of preference against the estate
of
the deceased spouse as a claim for maintenance of a dependant child
of such deceased person and that in the event of competing
claims,
each shall, if necessary be reduced proportionately. Theoretically, a
claim for maintenance such as the present one could
compete with the
claim of a surviving spouse and with claims by dependant children and
beneficiaries. In the absence of legislative
regulation the
permutations and uncertainties abound.
[17] Furthermore, maintenance is
always relative to the means and needs of the respective spouses. In
the present case the earning
capacity of the first respondent was
held not to be a changed circumstance on which the deceased could
rely to seek a variation
of the maintenance order. The propriety of
that aspect of the order appears to be doubtful. But that issue is
not before us. In
any event, that portion of the order did not
preclude the deceased from approaching a maintenance court to seek a
variation based
on a diminution in or lack of means. Remarriage was
not excluded. To subject a deceased estate to assessments of this
kind is not
only undesirable but appears to me to offend against
first principles.
[18] If there is to be intervention of
any kind it should be by the legislature on an informed and
well-considered basis. For the
moment the legislature is content with
s 7(2)
of the
Divorce Act. So
too, should we be.
[19] The following order is made:
1. The appeal is upheld with costs.
2. The order of the court below is set
aside and substituted as follows:
‘
The application is
dismissed with costs.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: M C Erasmus SC
Instructed
by
Du
Plessis Attorneys Sandton
Symington
& De Kok Bloemfontein
For
Respondent: L C Matthysen
Instructed
by
Chris
Kotzé & Partners c/o Hendriëtte Müller Attorneys
Pretoria
McIntyre
& Van Der Post Bloemfontein
1
See
Glazer v Glazer NO
1963
(4) SA 694 (A).
2
Section 2(1)
provides:
‘
If
a marriage is dissolved by death after the commencement of this Act
the survivor shall have a claim against the estate of the
deceased
spouse for the provision of his reasonable maintenance needs until
his death or remarriage in so far as he is not able
to provide
therefor from his own means and earnings.’
3
Per Didcott J in
Hodges v
Coubrough
1991 (3) SA 58
(D & CLD) at 64B-E.
4
Op cit
64E-G.