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[2014] ZAFSHC 169
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Mabuya v Mabuya (800/2007) [2014] ZAFSHC 169 (18 August 2014)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : 800/2007
DATE:
18 AUGUST 2014
In matter
between:
DIOKA REGINALD
MABUYA
...............................................
Applicant
And
SEGOMOTSO YVONNE
MABUYA
.....................................
Respondent
HEARD ON:
14/08/2014
DELIVERED ON:
18/08/2014
JUDGMENT
BY: MOTLOUNG AJ
Introduction
[1] The applicant
seeks an order for the setting aside of a warrant of execution and
ancillary relief.
Facts briefly
[2] The applicant
was divorced from the respondent on the 10 June 2008 and was ordered,
amongst others, to pay the school fees of
the minor child Kekeletso
(5 years old at the time) as per paragraph 1.3 of the Deeed of
Settlement that was made an order of court.
The said clause read as
follows as:
“The plaintiff
[applicant in this case] undertakes to pay maintenance to the
defendant [respondent in this case] for the minor
child Kekeletso at
the rate of R2500.00 per month. Plaintiff also undertakes
responsibility for payment of the school fees and
school uniforms of
Kekeletso. Plaintiff [applicant] undertakes to keep Kokeletso as a
member of his medical aid fund and Kokeletso
will be entitled to all
the benefits of the medical aid …” (my emphasis).
[3] The applicant
subsequently paid the school fees of Kekeletso until the end of the
year 2011 but stopped paying any school fees
in the year 2012 after
the minor child was moved at the beginning of 2012 by the respondent
from Brandwag Primary School (Brandwag),
a public school, to another
school, Eduplus Independent School, a private school.
[4] When the divorce
order was granted, the minor child was attending a private pre-school
by the name of CBC. Subsequent to the
divorce, the minor child was
moved by both parties from CBC private school to another school which
is not a private school, called
Brandwag Primary School (hereafter
referred to as “Brandwag”). The child attended the said
school until the respondent
removed it from Brandwag to a private
school by the name of Eduplus in February 2012.
[5] There exists a
dispute between the parties as to whether or not the the respondent
moved the child from Brandwag to Eduplus
with the knowledge or
concurrence of the applicant. The applicant alleges that he neither
knew nor consented to the move, and states
that he only discovered in
February 2012 when he went to make enquiry at Brandwag regarding the
account for school fees that the
child had been moved from the school
in January 2012, whilst the respondent alleges that the parties were
both called to Brandwag
where they were advised to move the child to
Eduplus. The applicant also alleges in his replying affidavit that he
only discovered
in November 2012 that the child had been moved to a
private school.
[6] On the 27 March
2013 the applicant issued a writ of execution for arrear maintenance
in the sum of R34 783.20, comprised as
follows:
6.1. R1 100.00 for
maintenance of the child,
6.2. R29 250.00 for
school fees (January 2012 to February 2013),
6.3. R3 183.20 for
medical costs, and
6.4. R1 250.00 for
school clothing.
[7] Upon receipt of
the said warrant (the applicant alleges in para 5.25 of the founding
affidavit that he was served with the warrant
in May 2013 whilst the
respondent alleges that he was served with the warrant before he
started effecting payments for school fees
to Eduplus since March
2013, implying that the warrant was served on the respondent in March
2013), the applicant’s attorney
wrote a letter to the
respondent’s attorney in which the applicant’s attitude
and position in relation to the matter
was stated.
In brief, the
applicant’s attorney stated that the applicant denied being
indebted to the respondent. The applicant’s
defence was that
the amounts claimed in the warrant were not yet due and payable as
the respondent had failed to honour an agreement
between the parties
to the effect that the respondent would submit the relevant invoices
(including for the school fees) to the
applicant before he could be
expected to pay them, in order to enable him to know the amounts to
pay, where and to whom to pay
them. Furthermore, so contended the
applicant, the respondent had failed to consult with the applicant
regarding the decision to
move the child from one school to another,
whereas she should have done so.
[8] After exchange
of correspondence between the attorneys of the parties, the applicant
offered and indeed paid the amount he deemed
to be due and payable,
after receiving the invoices from the respondent. Of all the invoices
provided to him, he found them to
be in order except for those
regarding school fees. As regards the school fees, he took the view
that he was prepared to pay them
at the same rate of Brandwag, a
public school, and that he was not liable for the excess difference
between those of Brandwag and
Eduplus.
On this premise, he
then calculated his indebtedness to the respondent as totalling R14
883.20 and tendered to pay the said amount
to the respondent upon
service of this application on her (per his attorney’s letter
marked as annexure “F’).
This left a balance of R19
900.00, being the difference between the Brandwag and Eduplus rates.
[9] The point of
dispute as regards the school fees was phrased by the applicant’s
attorney (as per annexure “F”
to the application), as
follows:
“Ons is van
mening dat ons klient in terme van die Akte van Dading verplig is om
die redelike en billike skoolgelde te betaal.
Die minderjarige kind
is sonder ons klient se medewete of goedkeuring ingeskryf in ‘n
privaatskool en kas ons onmoontlik
vir die verhoogde begrag
skoolgelde aanspreeklik gehou word”.
[9] In response to
the applicant’s tender (which included the point of dispute
referred to above), the respondent’s
attorney stated (per
annexure “G” to the application) the following:
“1. We suggest
that your client attend to payment of the amount of R14 571.20
[subsequently corrected in the application to
R14 883.20] and so also
the costs of the Writ duly to be taxed or agreed upon.
2. Pertaining to the
school fees, we hereby give your client a further fifteen (15) days
after receipt hereof to file his application
to set aside the Writ on
the basis that then the only objection which he will canvass in his
application would be pertaining to
the school fees”.
[10] Therefore, the
only remaining dispute as between the parties then was as regards the
school fees.
[11] The applicant
subsequently launched this application. Amongst others, he contended
that:
11.1. The issue of
the warrant was premature as it was issued before he was presented
with the invoices relating to the amounts
alleged to be owing, which
invoices he received only after the warrant had been issued (see
paras 20, 21 and 5.33 of the founding
affidavit),
11.2. He believes
that the Deed of Settlement (divorce order) only obliged him to pay
public school fees, and this does not include
private school fees
(see paras 5.23, 5.32 and 22.4.4 of the founding affidavit, read with
paras 21.1 and 29.2 of the replying affidavit),
and the court order
does not state that he should pay private school fees (see para 21.1
of the replying affidavit),
11.4. There is no
need for the child to receive superior education (see paras 5.19,
5.20, 5.21, 5.22, 5.23 and 13 of the founding
affidavit).
11.5. The respondent
can only recover school fees from him by way of a writ only if she
had made payment of such school fees on
his behalf (see para 15.6 of
the replying affidavit), and since the respondent does not say she
effected such payment, she had
legal standing to recover such fees
from him (see paras 15.7 and 15.8 of the replying affidavit).
[12] It is common
cause that the applicant has been paying an amount of R2 500.00 to
Eduplus since March 2013, which is the same
month in which the
warrant was issued. I will revert to this point later in my judgment
as regards when the warrant was served
on the respondent – was
it “during May 2013” as alleged by the applicant (see
para 5.25 of the founding affidavit)
, or in March 2013 (as is to be
inferred from the respondent’s allegation that the respondent
has been paying Eduplus school
fees “since the warrant of
execution has been served on the applicant” at para 4.10 of the
answering affidavit) or
“since April 2013” as alleged by
the applicant at para 18.1 of the replying affidavit? It is also
common cause that
the applicant subsequently paid the amount he
tendered on the 13 August 2013 (after issuing the application on the
11 August 2013),
but stopped paying the R2 500.00 monthly maintenance
for the child. He alleges that the R2 500.00 that he pays monthly
into the
Eduplus account constitutes the maintenance amount of R2
500.00 and not the R2 300.00 Eduplus school fees, and that he has
been
paying the said amount to Eduplus in lieu of maintenance (as
opposed to school fees) (see para 17.2, 17.3, 17.4, 18.1 and 19 of
the replying affidavit). I will also revert to this dispute later in
my judgment.
[13] In his replying
affidavit, the applicant reiterated that he is prepared to pay the
child’s “reasonable school fees”
(see para 21.3)
and also states that he “does not know what reasonable school
fees amount to” (see para 22).
[14] The applicant
was represented during argument by Mr Cilliers whilst the respondent
was represented by Mr Reinders.
[15] It was
contended by Mr Cilliers that this court is supposed to interpret the
meaning of school fees and apply it to the facts
of this case, and it
would then be in a position to find that the warrant should not be
allowed to stand as the reason or causa
therefore would have fallen
away – as it would mean that the respondent has been paid in
full in accordance with the correct
meaning of the court order
referred to above (paragraph 1.3 of the court order) since the issue
of the warrant.
[16] He also
submitted that a jump of nearly five times the school of Brandwag,
which is the rate of Eduplus, cannot be regarded
as being reasonable.
[17] He also
submitted that the applicant had been open and frank with the court
by stating that he stopped paying maintenance to
the respondent as he
got angry with the respondent upon discovering that she had removed
the child to an unknown destination (school)
without consulting with
him, and consequently decided to adopt a wait and see attitude, and
that the court should take this factor
into account in coming to its
decision.
[18] On the other
hand, Mr Reinders submitted that the court order is more than clear –
it means school fees and the applicant
committed himself to pay such
fees. He further submitted that the conduct of the applicant was not
bona fide as he did not only
fail to pay the school fees, but he also
failed to pay the full R2500 monthly maintenance to the respondent,
as per the same court
order, until the respondent issued the warrant
against him.
[19] He further
submitted that it was absurd for the applicant to contend that when
he started to pay the monthly amount of R 2500
to Eduplus, after the
warrant was issued against him by the respondent, this was after he
had reached agreement with the respondent
that he would pay the said
R2500 monthly instalments to Eduplus in lieu of the R2500 monthly
maintenance he was supposed to pay
to the respondent. He questioned
the feasibility of such an arrangement being workable if the
applicant’s version on this
aspect was true, and then submitted
that I should find that the said allegation (by the applicant) was
untenable, and instead find
that he was clearly paying the monthly
school fees since after receiving the warrant, by making the said
R2500 monthly payments
to Eduplus.
[20] He further
submitted that the applicant failed to take the court into his
confidence by effectively stating under oath that
he did not know to
which school had the child been removed until November 2013, when on
his own version he used to exercise his
visitation rights when he
would see the child in the sports attire of Eduplus and at some point
his new wife personally transported
the child to Eduplus for five
consecutive days.
[21] It was conceded
during argument upon a question by the court that the applicant
failed to inform the court as to what his financial
means are.
[22] Furthermore,
whereas the applicant raised the points mentioned above under paras
11.1 to 11.5 in his papers, most of the said
points were not
seriously pursued by Mr Cilliers during argument, and his argument
mainly revolved around the fact that a proper
interpretation of the
divorce order means that the applicant must only pay reasonable
school fees.
[23] It is
necessary, in my view, to briefly refer to some of the legal
principles I consider relevant to this matter, which are
trite, in
considering this application. They are briefly as follows:
23.1. As a rule, an
applicant who chooses to proceed by way of motion proceedings must
make his case out in his founding papers.
23.2. An applicant
who chooses to proceed by motion proceedings must disclose all
material facts to the court, whether such facts
tend to support his
case or militate against it.
23.3. There rests a
duty on both parents to support or maintain their children, and each
parent must do so in accordance with his
or her means.
[24] Coming back to
the facts of this case, I am in full agreement with the legal
proposition being made by Mr Cilliers to the effect
that reference to
school fees in the court order can only mean reasonable school fees.
It is a basic cannon of construction that
reasonableness, just like
lawfulness, must as a rule be read into an agreement or statute when
interpreting it. However, reasonable
school fees does not necessarily
equate the exclusion of a private school (as the fees of a private
school may, depending on various
factors, also be regarded as
reasonable), and after all, reasonableness is a relative term which
must obviously take into account,
the respective means of the
parties. I am not in agreement with the proposition being held forth
by Mr Reinders that school fees
means any amount of school fees
payable.
[25] Futhermore, the
applicant has failed to inform the court as to what his financial
means are so that the court may be able to
compare the reasonableness
of the Eduplus school fees in relation to or compared to his
financial means. Therefore, the applicant
has failed to make his case
on the papers before me, as reasonableness cannot be determined in
isolation, without reference to
the financial standing and means of
the applicant.
[26] Nowhere in his
papers does the applicant say or suggest that he cannot afford the
school fees of a private school. He also
denies that he ever required
the respondent to contribute to the maintenance of the child.
[27] Furthermore,
it became clear during argument by Mr Cilliers that the applicant is
not opposed to the child being at Eduplus
– all he is opposed
to paying fees exceeding those of Brandwag. It is also worth noting
that it has never been the applicant’s
case that he cannot
afford the school fees being charged by Eduplus. His attitude is
simply that Kokeletso does not need to attend
a private school, and
he has not provided any reason for this view.
[28] The court order
order does not state that the applicant must pay public or private
school fees. Therefore, I find no reason
why would the applicant
contend so strongly that it can only mean public school fees. To the
contrary, the fact that the child
was attending a private school at
the time of divorce militates against this interpretation. If the
court order is silent on the
kind of school, the fact that the child
was attending a private school at the time of divorce, and thus at
the time of concluding
the Deed of Settlement, militates against such
an interpretation. Therefore, if the intention of the parties at the
time of concluding
the agreement was to be established, I would have
been inclined to find that the parties intended that the chool fees
that were
applicable at the time of concluding the agreement, being
the CBC private school fees, would be applicable.
[29] I am, however,
of the view that it is not necessary to make a finding as to whether
the court order means the school fees of
a public or private school.
It is unnecessary to do so. In my view, it is sufficient to find that
all it means is reasonable school
fees, and as stated above,
reasonableness is always a relative term which must take into account
the means of the parties.
In this case the
applicant has failed to place those means before the court, and has
thus failed to show the unreasonableness of
the rates of Eduplus.
[30] The other
“defences” initially raised by the applicant in his
application were not seriously pursued during argument.
I find that
it was correct not to pursue them as there was no merit in them. I
find it unnecessary in the light of my finding above
that the
applicant has failed to make his case out on his papers, by failing
to indicate what his means are or that he cannot afford
the fees of
Eduplus, to deal with the other defences initially raised by the
applicant.
[31] I am also in
full agreement with Mr Reinders that the applicant was less than
honest with the court in many respects. For an
example, I find that
he clearly lied regarding not knowing to which school the child had
been removed. The evidence clearly shows
that even on his own version
he must have known that the child was moved to Eduplus when his new
wife transported the child to
the said school.
In accordance with
the Plascon-Evans rule, I find that the applicant knew that the child
was removed to Eduplus, or at the very
least, he reconciled himself
with that eventuality once he found out, and at the latest this was
when his new wife transported
the child to Eduplus. I also see no
reason why the respondent would hide this fact from the respondent
but sue him for the arrear
fees in respect of the said school. The
proposition by the applicant on this point is simply absurd.
[32] Furthermore,
after the respondent filed her answering affidavit in which she
disputed many facts that had been alleged by the
applicant in his
founding affidavit, the applicant conceded the factual mistakes he
made in his founding affidavit, and agreed
with the respondent on the
said points. For an example, whereas he initially wanted the court to
believe that the child was attending
a public school when the divorce
order was granted, he had to retract this allegation after the
respondent pointed out in her answering
affidavit that the child was
attending CBC, which was a private school. In my view, the applicant
had sought to lay a basis for
his contention that he was supposed to
pay publis school fees by making this false statement.
[33] It is also
clear to me that the applicant deliberately failed to mention in his
founding affidavit that he started to pay the
Eduplus fees after
either receiving the warrant in March 2013 or knowing of its
existence in March 2013, and he sought to keep
this fact away from
the court as he thought that it would prejudice his case. It is also
absurd for him to allege that he paid
the R2 500.00 monthly
instalments to Eduplus on the basis that the respondent would extract
the difference between the R2 300.00
monthly school fees from the
school itself. In short, the applicant has failed to disclose all
relevant facts in his founding papers
and this is another basis on
which his application should fail.
[34] In the
premises, I find that the application must fail.
[35] There is no
reason on the facts of this case as to why the ordinary rule of costs
following the result must not apply.
[36] Consequently, I
hereby make the following order:
The application is
dismissed, with costs.
I. MOTLOUNG AJ
For applicant:
Adv …….Cilliers
Instructed by:
For Respondent:
Adv ………
Instructed by: