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[2016] ZAGPPHC 231
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Cloete v Blignaut (53198/2013) [2016] ZAGPPHC 231 (14 April 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 53198/2013
Date: 14/4/16
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
SONE
CLOETE PLAINTIFF
AND
JOHANN CHRIS
BLIGNAUT DEFENDANT
JUDGMENT
TOLMAY, J:
INTRODUCTION:
[1] Plaintiff instituted
action against the defendant for payment of expenditure that she
alleged she incurred during 2009 up to
2012 as
negotiorum gestor
in regards to maintenance for the children born of the marriage
between the parties. The defendant appeared in person at the trial
whilst the plaintiff was represented.
[2] The parties were
previously married to each other and got divorced on 11 October 1996.
Two children were born of the marriage
a boy M. born on […]
1991 and a girl Y. born on […] 1993.
[3] When the parties got
divorced in 1996 they entered into a settlement agreement. In terms
of the settlement agreement defendant
had to pay maintenance in the
amount of R1 000-00 per month per child, which amount included
medical, dental, hospital as well
as educational expenses.
[4] In her pleadings
plaintiff alleged that she managed the affairs of the children during
2009 up to 2012 with intention to be
recompensated. She alleged that
the expenses she incurred on a monthly basis were reasonable and
represented the maintenance needs
of the children. She alleged that
she incurred expenses in the amount of R2 561 939-
76. She claims half of
that amount being R1 280 969-88 from defendant. This amount was
reduced during the course of the evidence,
as plaintiff testified
that this case was actually about the tertiary education of the
children, and consequently limited her claim
to those expenses.
THE EVIDENCE:
[5] Plaintiff testified
that she paid all the children's expenses and that defendant paid
only the amount of maintenance, initially
R1 000-00 per month per
child as agreed in the settlement agreement. He never increased this
amount and in September 2003 she approached
the Maintenance Court and
this amount was increased to R1 200-00 per month per child.
[6] At a certain point
the defendant fell in arrears with his maintenance payments and on 1
March 2010 the defendant was found guilty
of contravention of
sec
31(1)
of the
Maintenance Act 99 of 1998
as amended after he pleaded
guilty and was sentenced to 6 months imprisonment suspended for a
period of 5 years on condition that
he was not again found guilty of
a contravention of the
Maintenance Act. The
amount that he was found
in arrears with at the time was R122 400-00 which he had to pay off
in instalments of R2 000-00 per month.
It is common cause that
defendant paid the tertiary education for the first and second year
of M. for the period 2009 and 2010.
M. was enrolled at an educational
institution in Pretoria during this period. M. however wanted to
complete his studies in Stellenbosch
and enrolled in Stellenbosch for
his third year. Defendant did not make any contribution for the third
year as he did not approve
of the move to Stellenbosch.
[7] M. turned 18 during
2008 and Y. during 2011, as a result they reached the age of
majority. During 2012 plaintiff launched another
application for
arrear maintenance. The Maintenance Court dismissed the application
and found that plaintiff did not have
locus standi
to bring
the application, as the children have reached the age of majority.
[8] M., during 2012
launched an application for maintenance against the defendant. This
application was later withdrawn. Plaintiff
testified that defendant
delayed the proceedings and said that this led to the withdrawal. She
testified that the matter was postponed
several times because
defendant did not appear at the hearings. She said that defendant on
one occasion did not attend the Court
but merely sent a doctor's
certificate stating that he was incapacitated. She however went to
defendant's place of employment and
photographed defendant at his
work in Centurion on the day that he should have been in court in
Stellenbosch. Defendant in his
evidence explained that he suffered
from nausea and that he could not fly down to Cape Town but admitted
that he was at work on
that day. He however denied that he delayed
proceedings and stated that M. on occasion did not attend the
proceedings which led
to him incurring fruitless expenses to travel
from Pretoria to Stellenbosch. M.'s claim, in terms of the
application amounted to
expenses of R29 242-00 per month, which he
claimed from defendant.
[9] Y., the daughter also
launched an application for maintenance against the defendant in the
maintenance court sitting in Stellenbosch
during 2012. This
application was also not proceeded with. Defendant testified that he
and Y. investigated the possibility of studying
and that he agreed to
pay for studies at Damelin College, where the annual costs were R30
000-00. Y. would then stay in Pretoria
while she studied. She however
enrolled in Stellenbosch which resulted in the escalation of costs to
R120 000-00 per year. Defendant
did not approve of this and refused
to contribute to her expenses. Neither Y. nor M. testified during the
proceedings before me.
[10] Plaintiff initially
testified that she paid all the expenses of the children, but the
evidence was that defendant did pay for
M.'s first two years of
tertiary education. The plaintiff did indeed pay for his third year
and she paid for Y.'s studies. Plaintiff's
claim in the end was for
payment of M.'s last year of studies and Y.'s 3 years of tertiary
education.
[11] Plaintiff stated
that the expenses incurred on behalf of the children were reasonable.
She however did not lead any evidence
about her income, general
expenses, assets and financial worth. She instructed Mr Rabaney, an
auditor to calculate her claim. He
testified that he received
instructions from the plaintiff pertaining to the expenses of the
children but said that, although source
documents were made available
to him, that he did not use them in his calculations. His
calculations were made for the period of
2006 to 2012, but due to the
concessions made during the plaintiff's evidence the figures were
adjusted. Due to the conclusion
that I came to I need not deal with
these figures. Suffice it to say that Mr Rabaney could not testify to
the fact that the expenses
were actually incurred nor could he say
whether they were reasonable or not.
[12] Defendant brought an
application for absolution of the instance at the end of plaintiff's
case. This was dismissed as I was
of the view that at that point
there was a prima facie case which could lead to the Court ruling in
favour of the plaintiff.
[13] The defendant
testified and confirmed the initial order and subsequent Court
orders. He gave evidence regarding his employment
history. He
testified that he was unemployed for the period 2005 - 2006. During
2008 he worked with the plaintiff as a sales representative
and
assisted her in a guesthouse that she was running. He testified that
there was a very good relationship between them at the
time. During
2009 he worked for a company who sold liquor, but the company was
liquidated. During this period he also worked
for a person who
processed vegetables. His evidence was that he struggled financially.
In 2009 he started at an Estate Agency and
then started his own
business as a rental agent. He formed a close corporation, his wife
who works with him is the only member
of the Close corporation. He
said that he earned R15 000-00 per month during 2009 and he testified
that he now earns R16 000-00
per month. His bank statements for 2011
however shows an income of R16 500-00 per month at that time.
[14] Defendant does not
own any immovable property and the house that was awarded to him in
the divorce settlement was taken back
by the bank. He drives an 11
year old Nissan bakkie, which he bought from his sister. He had to
terminate his policies and medical
aid in 2005 when he was
unemployed. He could only afford to obtain a medical aid again during
2013. He and his wife earn the same
amount. His evidence was that he
struggled financially and the situation did not seem to have improved
much.
[15] He said that he fell
in arrears with maintenance payments because of his financial woes
and he admitted guilt and agreed to
pay the arrear maintenance as set
out above during the hearing in 2010. As a result the amount that he
had to pay towards the children
increased from R2 200-00 to R4 400-00
per month. The last payment for the arrear maintenance was made in
October 2014. When he
started to pay M.'s studies he had to pay a
further R5 000-00 per month. Consequently he paid R9 400-00 per month
maintenance for
that period of time.
[16] According to him
plaintiff managed to buy 4 immovable properties since the divorce
whereas he was only able to rent a property
to live in and had to
move to a smaller property due to financial restrictions. This was
not disputed by the plaintiff.
THE LEGAL PRINCIPLES:
[17] The plaintiffs
action is based on
negotiorum gestio
and unjust enrichment.
Plaintiff claims that she paid more than her fair share of the
children's expenses and that she is therefore
entitled to be
reimbursed. She claims half of her actual expenses from the
defendant. She alleged in the pleadings that from 2009
to 2012 she,
as
negotiorum gestor
managed the affairs of the minor children
on behalf of the defendant with the intention to be recompensated. We
however know that
M. turned 18 in 2008 and Y. in 2011. It is trite
law that parents have to contribute
pro rata
and according to
their financial resources towards the maintenance of dependant
children.
[18] In Wille's
Principles of South African Law
[1]
the following is said:
"A parent who has
paid more than his or her pro rata share towards the child's
maintenance has
a
right to recourse against the other parent,
irrespective of whether the duty of support was apportioned between
them by an order
of court. In determining the amount to be paid,
usually by the non-custodial parent (or both parents) to the
custodial parent (or
a
custodial third party), the primary
factors to be taken into consideration by the court are the needs and
interest of the child
and the financial and social position of its
parents".
[19] The amount to be
recovered must be the amount that the Court considers reasonably
represents the defendant's share of the joint
duty to maintain the
child.
[2]
[20] The
gestor's
claim
is limited to the extent of the unjustified enrichment of the
gestor.
[3]
In this instance the children have already reached the age of
majority but I accept that they were still dependant on their parents
and the same principle should apply to them.
[21] It is trite that the
amount of maintenance due to a child from his parent is determined by
the means of the parents and the
needs of the child. The general
principle is that children should be maintained jointly by their
parents according to the parents'
financial circumstances and
resources.
[22] In
Modise
v Modise & Another
[4]
the right to recover maintenance in terms of the
actio
negotorium gestio
based
on undue enrichment was discussed and the well-known principles
pertaining to the parents'
pro
rata
contribution
was restated. The following was said in this regard:
"The amount of
child support due to a child from his parents is determined by the
means of the parents and the needs of the
child, the general
principle being that
a
child of divorced parents has a right
to be
maintained by them, and they in tum, have
a
duty
to provide the child
with everything that the child reasonably
requires for its proper living and upbringing according to their
means, standard of living
and situation in life. The obligation
attaches to both parents jointly, but their respective shares of that
obligation are apportioned
according to the financial resources and
circumstances of each of them".
[23] There is no doubt
that under appropriate circumstances a parent who paid more than
his/her pro rata share may recover the excess.
However in order to
determine the contribution various factors should be considered in
Modise
[5]
the following factors that need consideration were set out:
"(i) The
financial resources of the child.
(ii) The financial
resources of both parents, including their respective incomes, assets
and capital.
(iii) The standard of
living the child would have enjoyed had the marriage not ended in
divorce.
(iv) The needs of each
party in order to support himself or herself at a level equal to or
greater than that such party enjoyed
before divorce.
(v) The needs of any
person, other than the child, whom either party is legally obligated
to support.
(vi) The standard of
living of each parent of the divorce.
(vii) The cost of the
child-care or maid services, if the custodial parent works outside
the home, or the value of child-care services
performed by the
custodial parent, if the custodial parent remains in the home.
(viii) The physical,
mental and emotional health needs of the child, including any costs
for health insurance.
(ix) The child's
educational needs.
(x) The earning
capacity of each parent, based on each parent's education, training
and work experience and the availability of
work
as
well as
the willingness of each parent to secure work in accordance with his
or her earning capacity.
(xi) The best interest
of the child.
(xii) Any other
factors which the court, in each case, might determine to be
relevant.”
[24]
In order to determine whether reimbursement should follow it was
stated that the following factors were set out to be considered
[6]
:
"(i) The reasons
that led to the failure by the other parent to contribute to the
maintenance of the child.
(ii) Whether the
claiming parent
has
acted within reasonable time, regard being
had to her ability to claim from the other party, the
relationship between the parties, the availability of the other
party, etc.
(iii) Whether the
parent who did not contribute was aware that the other party was
making expenses for the benefit of their
children.
(iv) What steps, if
any, the party who failed to contribute made to enquire about his own
obligations in the maintenance arrangements
made and executed by the
other party.
(v) The reasons
advanced for the non-participation of the parent who failed to
participate in child-support arrangements.
(vi) If the dominus
negotii was aware of the gestor's payment of maintenance, whether he,
at any point specifically forbade her
from acting for him or in any
way indicated his views on the matter.
In calculating the
amount to be reimbursed, where a finding has been made that
reimbursement is due, the following will be considered:
(i) The amounts
actually expended by the claiming parent.
(ii)
The
relative financial; situation of each parent in each year of the
children's minority and/or the period of support in question.
(iii) Whether there
were any other children either or both of the parents were supporting
during the period of support in question."
[25] In this matter I am
faced with the problem that plaintiff led no evidence whatsoever
detailing her income, expenses and financial
position during the
relevant period. She led only general evidence that she incurred
expenses on behalf of the children and that
those were reasonable and
then proceeded to claim half of those expenses from the defendant.
The expert did not assist as he merely
calculated her contributions
and calculated what the defendant's half should be. In the absence of
evidence pertaining to the financial
position of the plaintiff it is
impossible to determine if she should be recompensated and if she
should be recompensated what
defendant's contribution should be.
[26] Plaintiff did not
succeed in proving the contributions, if any, which defendant should
make nor did she prove enrichment of
the defendant or impoverishment
of the plaintiff. Consequently the action can't succeed. In the light
of the above plaintiff did
not prove that she should be reimbursed
for the payments that she made on behalf of the children.
[27] Due to the fact
however that plaintiff acted as custodian of the affairs of the
children born of the marriage I am of the view
that each party should
pay his/her own costs.
[28] I make the following
order:
28.1
The action is dismissed; and
28.2.
Each party to pay his/her own costs.
________________________
RG TOLMAY
JUDGE OF THE HIGH
COURT
[1]
Juta 2007, p 359
[2]
Woodhead v Woodhead 1955(3) SA 138 (SR)
[3]
Van Rensburg V Straughan 1914 AD 317, 329-330
[4]
2007(1) BLR 622 (HC)
[5]
p 627
[6]
Modise, supra P 628