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[2017] ZAFSHC 192
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W v W (2463/2017) [2017] ZAFSHC 192 (29 September 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2463/2017
In
the matter between:
B.
T.
W.
Applicant
and
S.
W.
Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
7 SEPTEMBER 2017
DELIVERED
ON:
29 SEPTEMBER 2017
[1]
The bonds of marriage between the applicant Mr B. T. W. ("Mr
W.") and respondent Mrs S. W. (“Mrs W.") was
disolved
on 2 February 2016 and the Deed of Settlement ("the Deed")
concluded on the same date was made an order
of this court.
[2]
On 19 May 2017 Mr W. issued this application praying for orders in
the following terms:
"1.
That it be declared that the Respondent cohabits with another
person
on a permanent basis.
2.
That it be declared that the Applicant is not liable to pay
maintenance
to the Respondent in terms of the Deed of Settlement made
an order of this Honourable Court on 2 February 2016 under Case
Number 5078/2013.
3.
That it be declared that the Applicant is not liable to retain the
Respondent as a beneficiary on his existing medical scheme (Discovery
Health).
4.
That the Respondent pay the costs of the application only in the
event of her opposing this application."
[3]
The application is opposed by Mrs W.. In terms of the Deed Mrs W.
became the sole owner of the property situated at [...] K.
K. Road,
Bloemfontein ("the property'). It is common cause that Mr W. had
to pay maintenance monthly to Mrs
W. at the
rate of R 40 000-00 (with escalation as agreed upon) and had to
retain her as a beneficiary on his existing
medical aid scheme.
Paragraph 1.4 of the Deed reads as follow:
"
Such maintenance and medical aid contributions shall be payable until
the Plaintiff dies remarries or cohabits with another
person on a
permanent basis."
[4]
Most probably both parties believed at the time of the conclusion of
this deed that all disputes between them were resolved
by the order
of divorce and the Deed. If so they were wrong and the mentioned
paragraph 1.4 led to the present litigation.
[5]
The provisions of paragraph 1.4 is not in dispute and should I be
able to find that the respondent is permanently cohabiting
with
another person, the relief sought should be granted.
See:
Drummond v Drummond
1979 (1) SA 161
(A)
[6]
The applicant bears the onus on a preponderance of probabilities to
convice me that the respondent is permanently cohabiting
with another
person. He avers that "shortly after the divorce" it came
to his attention that Mrs W. and a third party,
Mr C. W. ("Mr
W.") had been involved in a love affair "for some time
before the divorce and that they have been,
since about 2 February
2016, cohabiting at the property". In confirmation of his
version he annexed affidavits of the domestic
worker Mrs J. N. ("Mrs
N."), Mr W.'s previous wife Mrs Judy W. ("Mrs W.) and Mr F.
L. (Mr L.). Mrs N. stated that
Mr W. was living with Mrs W. in
the house at the property, she saw him in bed with her and he had his
meals with her. During
April she noticed that he sleeps in the flat
next to her room at times. She was paid by Mr W. to do his laundry.
Mrs W.'s affidavit
revealed that she had proof by way of text
messages of a sexual relationship between Mr W. and Mrs W. during
December 2015. Mr
W. also left the communal home permanently during
February 2016 to "live with the respondent". Mrs W. and Mr
W. together
frequents shopping malls and public areas.
Mr L. is a contractor who was employed
at the
holiday home of Mr W. during April 2017. He observed Mrs W. and Mr W.
travelling together and spending the Easter weekend
alone in each
other's company during that time. All the aforementioned lead him to
believe that the respondent and Mr W. is cohabiting
on a permanent
basis at the property.
[7]
Not so says the respondent. In her answering affidavit she explains
that she has never permanetly cohabitated with Mr W. as
contemplated
by paragraph 1.4 of the Deed. She admits having had a relationship
with Mr W. but same was terminated at the beginning
of 2017. She
realised that Mr W. was not the one for her and did not want to
commit herself to him, especially following the disaster
of her
marriage to Mr W.. Mr W. had been renting the flat on the premises
from her since November 2016 for R 5000,00 monthly and
she does not
deny that they are friends. She annexed an affidavit of the same
domestic worker, Mrs N., wherein Mrs N. clarifies
and qualifies her
initial statement annexed to the applicant's papers. Mrs N. confirms
that Mr W. is sleeping in the said flat
and not living with Mrs W..
Respondent annexes a letter dated 30 May 2017 of Mrs W. wherein she
withdraws certain statements made
by her in an affidavit annexed to
the applicant's papers. Lastly respondent annexes an affidavit of Mr
W. wherein he denies the
permanent cohabitation and confirming the
applicant's version.
[8]
The relief sought by the applicant is final in nature. This relief is
sought by way of motion proceedings. Where final relief
is sought by
way of motion proceedings the test to be applied is that stated in
Plascon
Evans Paints Ltd v
Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634E – 635C.
“
...(W)here
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, wether it be an interdict
or some
other form of relief, may be granted if those facts averred in
the applicant's affidavits which have been admitted
by the
respondent, together with the facts alleged by the respondent,
justifies such an order.''
[9]
If I apply the test as I should I cannot find that the respondent is
permanently cohabiting with a third party. She denies it
and annexes
confirmatory affidavits to that effect. I cannot reject her version
as being palpably false or far fetched on the papers.
See:
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
at 290 para [26].
In
considering respondent' version I do not take note of the information
supplied by Mrs W. as it is not confirmed by way of an
affidavit.
Suffice to say that the factual dispute cannot be resolved by me on
the papers.
[10]
In argument before me (and in his heads of argument) Mr Van Rhyn on
behalf of Mr W. submitted that in the event that I find
that there is
a
bona fide
dispute of fact which cannot be resolved on the
papers, the matter should be referred for oral evidence. Mr Louw for
the respondent
urged me to conclude that the factual dispute was
forseeable when the application was launched. In support hereof he
relied on
correspondence between the attorneys of record preceeding
the application. Annexed to the founding affidavit is a letter dated
22 March 2017 addressed to Mrs W.' attorney wherein applicant's
attorney stated that Mrs W. "... has been and is cohabiting
with
Mr C. W. on a permanent basis... " and that Mr W.
"will make no further maintenance payments...
". In
reply to these averments a letter dated 28 March 2017 indicated that
the allegations by Mr W. is denied. Reliance was
also placed by Mr
Lauw on a text message sent to the applicant on 29 March 2017
before the application was issued wherein
respondent denied the
permanent cohabitation. This was in response to a preceeding text
message sent by Mr W. to Mrs W. informing
her that he is no
longer liable to maintain her as she is "cohabiting with Craig."
[11]
What is of serious concern to me is that the applicant out of his own
accord. and before a court has pronounced on the merits
mero motu
decided not to comply with the court order. He declares that
since March 2017 he has stopped the payments of maintenance as
ordered by court on 2 February 2016. This he did at a time when
he knew that the respondent denied permanent cohabitation.
To me it
seems that this application was then launched merely to confirm and
condone his conduct since March 2017. The application
was launched
almost two months after he stopped payment of the maintenance. The
first letters between attorneys were exchanged
as far back as March
2017 according to the papers. As mentioned I cannot resolve the
factual dispute on the papers but the applicant's
conduct in this
regard does not impress me at all. Referral to oral evidence is in my
discretion. I am not prepared to exercise
my discretion to refer the
matter for evidence.
[12]
I wish to stress my viewpoint that I am unable on the papers to
resolve the factual dispute and the order that I make should
not be
seen as a dismissal and a final adjudication of the facts.
[13]
For the reasons above I make the following order:
The
application is dismissed with costs.
______________________
C.
REINDERS, J
On
behalf of the applicant:
Adv. A.J.R. van Rhyn SC
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. M.C. Lauw
Instructed by:
Honey Attorneys
BLOEMFONTEIN