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[2013] ZAFSHC 229
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V v V and Another (2962/2013) [2013] ZAFSHC 229 (28 November 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCE, BLOEMFONTEIN
Case
No.: 2962/2013
In
the matter between:
G[…]
F[…] V[…
]
……………………………………………
Applicant
and
L[…]
V[…]
…………………………………………
.
First
Respondent
B[…]
V[…]
………………………………………
Second
Respondent
JUDGMENT:
SESELE, AJ
HEARD
ON:
7 NOVEMBER 2013
DELIVERED
ON:
28 NOVEMBER 2013
[1]
This is an application for the declarator that the first respondent’s
right to maintenance in terms of the Settlement
Agreement which was
made a court order on 9 October 2008 under case number 5806/2008 has
lapsed; that the Warrant of Execution
issued by the Registrar under
case number 5806/2008 be set aside, and that the second respondent be
ordered to uplift any attachment
made in terms of the Warrant of
Execution dated 27 May 2013, alternatively, that the Warrant of
Execution issued under case number
5806/2008 be suspended.
[2]
The first respondent launched a counter-application for the
simultaneous hearing with the main application for an order that
the
applicant be ordered to comply with the maintenance order in terms of
the Deed of Settlement which was made a court order under
case number
5806/2008 on 9 October 2008; that the applicant be ordered to pay the
arrear maintenance and that the second respondent
be authorised to
realise the applicant’s attached assets and to deal with the
proceeds thereof at the second respondent’s
discretion.
[3]
The application and the counter-application turn on the terms of the
Settlement Agreement
inter alia
clause 2 which provides:
“
Eiseres
se reg om onderhoud sal verval by hertroue of afsterwe, welke ookal
eerste mag plaasvind of wanneer sy
as
man en vrou saam met ‘n ander man saamleef
.”
(my emphasis)
Clause
4:
“…
Gemelde
reg sal verval by Eiseres se hertroue of sodra sy met ‘n ander
mand saamwoon as man en vrou …”
[4]
The order in this matter can only be granted if the applicant’s
averments which are not in dispute and the first respondent’s
admissions justify the granting of the order –
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) 623 (A) at 634 – 635.
[5]
The test for determining whether the first respondent lives together
with another man as the applicant contends is set out in
Drummond
v Drummond
1979 (1) SA 161
(AD) at
167A as
“
living under the same roof,
establishing, maintaining and contributing to a joint household and
maintaining an intimate relationship”.
[6]
The first respondent admits the intimate relationship with Mr W[…]
who has been her fiancé since January 2013
and they intend to
marry on 1 […]. The first respondent denies that she and
Mr W[…] live as husband and wife
as the applicant contends.
The first respondent admits that she regularly visits Mr W[…]’s
house, keeps some
of her furniture there, and has moved her
dog-breeding business to that house because of lack of space at the
single flat which
she rents.
[7]
In addition to the above the first respondent admits that her
children visit her at Mr W[…]’s house because her
flat
is small. Furthermore, the first respondent spends time with
her children and Mr W[…]’s children at Mr
W[…]’s
house to build a relationship for the eventuality of her marriage to
Mr W[…]. The photos on which
the applicant relies are
indeed photos of the first respondent, the children and her furniture
at Mr W[…]’s house.
[8]
Significantly, the first respondent avers that Mr W[…] does
not maintain her and she does not expect him to do so as
she no
longer wants to be financially dependent on anyone as she used to be
while she was married to the applicant. This
explanation must
be accepted because it makes sense.
[9]
The applicant instructed the private investigator, Mr Buitendag, on 4
April 2013 to establish whether the first respondent indeed
lives at
Mr W[…]’s house. In Mr Buitendag’s report
(annexure “C” to the founding affidavit)
it is noted
inter alia
that on 4 April 2013 both the first respondent and Mr W[…]
came out of the house to meet him; that on 10 April 2013 the
first
respondent, in answer to the question whether he may collect the
puppy which he had bought on any day the first respondent
said: “Yes,
I am always here”. The first respondent thereafter took
Mr Buitendag through the house and while
doing so, Mr Buitendag got
the impression that she knows the house well.
[10]
In my view Mr Buitendag’s observations on 4 April 2013 and 10
April 2013 are not sufficient to support the applicant’s
case
for the following reasons: the first respondent and Mr W[…]’s
are engaged, the first respondent regularly
visits Mr W[…],
her children visit her there and her dog-breeding business is based
there.
[11]
It is common cause that the first respondent rents a flat in terms of
a lease agreement, keeps some of her belongings there,
and receives
municipal accounts in respect of the flat. The first respondent
further avers that she maintains the flat as
her home. The
explanation is plausible and I accept it.
[12]
In
Watson v Watson
1959 (1) SA 185
(N) at 187G-H it was held that considerable intimacy
of a spouse to another man without being married does not constitute
an implied
term prohibiting such living together in a deed of
settlement similar to the deed in this case.
[13]
In
DBG v NG
,
case number 7032/2003, delivered on 24 February 2011, at paragraph 14
it was held that proof of the existence of a personal and
intimate
relationship is not sufficient to infer that the parties are living
as husband and wife. In order to justify a finding
that the
parties are living as husband and wife the court must be satisfied
that they are living under the same roof and have established,
maintained and contributed to a joint household.
[14]
The first respondent does not admit living together with Mr W[…]
as husband and wife. The explanation furnished
by the first
respondent is not far-fetched or untenable so as to warrant rejection
or referral to oral evidence –
Adminstrator,
Transvaal and Other v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
at 197A-B,
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para
[26]
.
[15]
The applicant stopped paying maintenance effective from 1 May 2013
when he considered his maintenance liability to have lapsed.
The applicant’s attorneys directed a letter to the first
respondent on 18 April 2013 to this effect. The first
respondent,
through her attorneys of record, disputed the applicant’s
grounds for stopping maintenance. The attorneys also attached
the first respondent’s lease agreement and the municipal
account as proof that the first respondent does maintain her own
residence.
[16]
The applicant should have approached the maintenance court for an
order to terminate the maintenance order -
Bannatyne
v Bannatyne
2003 (2) SA 359
(SCA).
[17]
The first respondent was entitled to enforce payment of maintenance
by having issued the Warrant of Execution to enforce the
court order
which had to be obeyed as it has not been set aside –
Sparks
v Sparks
1998 (4) SA 714
(W) at
726E-F.
[18]
The first respondent was within her rights to launch the
counter-application. Failure to have done so would have
resulted
in her being prejudiced because the applicant seeks,
inter
alia
, an order to suspend execution of
the Warrant of Execution pending a determination by the maintenance
court.
[19]
The first respondent has been successful in her opposition to the
main application. The counter-application should succeed.
There is therefore no reason in law not to grant her costs.
[20]
ORDER
20.1
The application is dismissed with costs.
20.2
The counter-application is upheld with costs.
20.3
The applicant is ordered to comply with the court order under case
number 5806/2008 granted on 9 October 2008 in respect of
payment of
maintenance in terms of clauses 2 and 4 of the Deed of Settlement.
20.4
The applicant is ordered to pay all arrear maintenance owing to the
first respondent within 14 days from the date of this order.
20.5 The Sheriff of
this court is authorised to realise the applicant’s attached
property and to deal with same at his discretion.
__________________
L. M. S. SESELE,
AJ
On
behalf of the applicant: Adv. C. D. Pienaar
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of first respondent: Adv. J. S. Rautenbach
Instructed
by:
Bezuidenhouts
Inc
BLOEMFONTEIN