Odgers v De Gersigny (32/06) [2006] ZASCA 125; 2007 (2) SA 305 (SCA) (30 November 2006)

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[2006] ZASCA 125
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Odgers v De Gersigny (32/06) [2006] ZASCA 125; 2007 (2) SA 305 (SCA) (30 November 2006)

IN THE SUPREME
COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case
no.032/06
In
the matter between
PETER
CECIL ODGERS
Appellant
and
MARY DE GERSIGNY
Respondent
CORAM: ZULMAN, BRAND, MAYA JJA et THERON, MALAN
AJJA
HEARD:
3 NOVEMBER 2006
DELIVERED:
30 NOVEMBER 2006
Summary:
Divorce – maintenance for spouse – wife remarrying shortly after
divorce -whether an implied term could be imputed by
law into a deed
of settlement not made an order of court, providing that payment of
maintenance shall terminate upon wife’s remarriage
or death.
Neutral citation:
This
case may be cited as Odgers v De Gersigny [2006] SCA 153 (RSA).
___________________________________________________________
JUDGMENT
MAYA JA
MAYA
JA
[1] On 5 March 1998 the parties’ marriage was
dissolved. It had lasted some seven years and did not produce any
children. Prior
to the divorce, on 21 January 1998, the parties had
concluded a written deed of settlement which was intended to be
incorporated
into the decree of divorce. This agreement, which
included a non-variation clause, provided for a variety of issues
relating to the
respondent’s future upkeep such as medical
insurance, housing subsidy and maintenance. The clause dealing with
maintenance, which
is the subject of this dispute, provided that the
appellant would pay maintenance in a specified monthly amount for a
fixed period.
It was however silent on whether the obligation to pay
maintenance would terminate upon death or remarriage. For some reason
which
the appellant could not explain, the agreement was not made an
order of court.
[2] On 2 May 1998, the respondent remarried. The
appellant, having paid maintenance for April 1998 as agreed, declined
to make any
further payments on the basis that on the law and a
proper interpretation of the agreement, his obligation to pay
maintenance terminated
upon the respondent’s remarriage. The
respondent’s action against the appellant, instituted in the
magistrate’s court for
the payment of outstanding maintenance,
housing subsidy, medical insurance and ancillary relief was
successful. The magistrate found
that on a proper interpretation of
the agreement the appellant’s obligation to pay maintenance, which
was contractual, did not
terminate upon her remarriage. An appeal to
the Natal Provincial Division (Niles-Duner J, Van der Reyden J
concurring) having failed,
the appellant appeals, with that court’s
leave, to this court.
[3] The
essential issue in this appeal, as in the court below, is the
interpretation to be afforded to the maintenance clause in the
parties’ agreement in view of the respondent’s remarriage. The
relevant provisions are contained in clause 4 which reads:
‘MAINTENANCE
4.1 Peter Cecil Odgers (Plaintiff) undertakes to pay maintenance to
Mary Odgers (Defendant) to the amount of R14 000.00 until the
31
st
May 1998. Thereafter Peter Cecil Odgers (Plaintiff) undertakes to pay
maintenance to Mary Odgers (Defendant) for a period of twenty-four
months to the amount of R1 000.00 commencing from the 1
st
June 1998.
4.2 Peter
Cecil Odgers (Plaintiff) will pay a housing subsidy of R4 000.00 per
month to Mary Odgers (Defendant) or nominee for a
house purchased by
Mary Odgers (Defendant) for a period of twelve consecutive months
commencing from the 1
st
June 1998.’
[4] The appellant’s case rested, mainly, on the use of
the term ‘maintenance’ in the agreement which it was submitted
should
be interpreted in accordance with the common law. It was
contended that absent an express provision to the contrary, it was
implicit
in the concept of the appellant’s obligation to pay
maintenance that it would terminate upon the death or remarriage of
the respondent.
Reliance for this contention was placed on two
authorities,
Glass v Santam Insurance Ltd & another
1992
(1) SA 901
(W) and
Van der Vyver v Du Toit
2004 (4) SA 420
(T).
[5] In
Glass
, the court dealt with a wife’s claim for damages for
loss of support arising out of the negligent driving which caused the
death
of her husband and breadwinner. It was held that her subsequent
‘remarriage marks the end of the period of calculation of loss’
1
and that she had no further entitlement. Quite obviously, there being
no question of any agreement, the case dealt with a situation
entirely different from the present matter to which different
considerations apply. The
Glass
case is thus distinguishable.
[6] In
Van der Vyver
, the
dictum
on which the appellant relies
is expressed at paras 19 and 20 of the court’s judgment. There,
Legodi AJ held:
‘A party
against whom an order is made for maintenance in terms of s 7(1)
should only be made liable to continue to pay maintenance
after
remarriage if he has expressly waived his rights to be relieved from
liability to maintain his or her ex-spouse upon death
or remarriage.
Unless such waiver is apparent from the agreement in terms of s 7(1),
such an obligation to maintain should automatically
terminate upon
remarriage or death.
In my
view, the intention of the Legislature underlying s 7(2) can also be
used to interpret contracts or agreements under s 7(1)
or what the
intention of the Legislature is under s 7(1). I do not think that it
can ever have been the intention of the Legislature
to allow a
situation where an ex-spouse who is remarried should have double gain
for maintenance unless such a gain is a result of
an express
provision in the agreement order, s 7(1) obliging such a party
against whom an order was made to maintain even after remarriage.’
[7] The
provisions of s 7 of the Act govern the division of assets and
maintenance of parties upon their divorce.
2
Section 7(1) confers a power upon the court to make a written
agreement concluded by divorcing parties relating to the payment of
maintenance an order of court on the grant of a divorce. There are no
restrictions to the quantum and time frames to which the parties
may
bind themselves relating to payment of maintenance
3
irrespective of whether the recipient spouse remarries. The
obligation may endure even beyond the death of the maintaining spouse
if they so choose.
4
On the other hand, where no settlement agreement is concluded by the
parties, the court is at large to make a maintenance order in
terms
of s 7(2) which, however, endures only until the death or remarriage
of the recipient spouse.
[8] As previously indicated, the agreement in the
instant case does not come within the purview of s 7(2). There is no
bar to agreeing
on the duration and extent of the payment of
maintenance which is to be made, irrespective of any change in the
parties’ circumstances,
5
the agreement is valid and purely contractual in nature. It falls to
be governed by the rules applicable in that sphere.
[9] In
Hodges v Coubrough
6
,
Didcott J stated the following:
‘The
field of contract is very different from the one where the present
case lies. Everybody may bind his estate, by contract no
less firmly
than by will, to pay maintenance after his death. And he may settle
the maintenance on whomsoever he chooses, on his
current wife, a
former wife, a mistress, an employee or anyone else. Whether in a
given instance that result has been produced, whether
the liability
which was incurred survives the death of the person who assumed it
and passes to his estate, depends of course on the
terms of the
contract, or their true meaning. And that goes too for the kind of
contract in question, an agreement between spouses
which is made an
order of Court on their divorce. So, like the legislation whenever
its meaning is sought, the agreement must be
interpreted. By no means
is the enquiry the same, however, since the objects of the exercise
differ. The intention which has to be
ascertained in the one case is
that of Parliament, legislating in general terms and with general
effect. In the other it is the intention
of private individuals,
minding their own business and dealing solely with that. They have no
occasion to reckon with the common
law. They have no reason to worry
about issues of policy. Nor do they care a fig if the party who is
maintained under their arrangements
turns out better off than
somebody else’s widow. Then there is a further consideration, a
rule governing contractual obligations
which has no counterpart in
the area of those generated statutorily…’
In
my view, this is the correct approach to follow. I respectfully
disagree with the approach followed in
Van der Vyver
.
[10] It does not matter whether the agreement is made an
order of court in terms of s 7(1) for its interpretation - the
essence of
the agreement remains the same. It remains to consider
whether there is scope for the implied term imposed by common law
contended
for by the appellant’s counsel – effectively that the
obligation to pay maintenance shall, in all cases, terminate on
remarriage
or death. Interestingly, the appellant’s counsel
studiously avoided placing any reliance on a tacit term in the
agreement.
7
In this case, the express provisions of the maintenance clause, which
are specific regarding the duration of the obligation, are
in
conflict with the contradictory implied term contended for. A term
imposed by law may not be implied in total disregard of the
parties’
intention and will not be implied if it is in conflict with the
express provisions of the contract.
8
The contradictory clauses cannot co-exist. An example illustrating
the anomaly which would result if the appellant’s contention
were
upheld which readily comes to mind is that of an ex-wife who cohabits
permanently with another man. Since our law does not necessarily
disentitle her to maintenance
9
she would be in a better position than an ex-wife who remarries.
[11] Finally, it remains to be said that whilst the
principle of the matter may be important to the parties, regard must
be had to
the amount of the disputed maintenance which is trifling
compared to the costs which they must have incurred in bringing their
case
this far. It is most regrettable that they could not resolve it
otherwise.
[12] For these reasons I conclude that the appeal should
be dismissed with costs.
_________________
MML MAYA
JUDGE OF APPEAL
CONCUR:
ZULMAN
JA
BRAND
JA
MALAN
AJA
THERON
AJA
1
At
905B.
2
The
section reads:
‘
7(1)
A court granting a decree of divorce may in accordance with a
written agreement between the parties make an order with regard
to
the division of the assets of the parties or the payment of
maintenance by the one party to the other.
(2)
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party to the
other,
the court 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, an order in terms of subsection
(3) 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.’
Emphasis
added.
3
Hodges v Coubrough NO
1991
(3) SA 58
(D) at 66D;
H.R.
Hahlo
The
South African Law of Husband and Wife
5ed p 353.
4
Ex
Parte Standard Bank Ltd and others
1978
(3) SA 323
(R) at 327A.
5
Schutte
v Schutte
1986 (1) SA 872
(A).
6
Supra
a
t 66D – G.
7
Indeed,
such an argument could not have succeeded regard being had to the
express provisions of clause 4 specifying the duration
of the
obligation which conflict with the meaning contended for and
surrounding circumstances, including the appellant’s own
testimony
to which regard could be had in ascertaining the true intention of
the parties, which showed clearly that that the issue
of the
termination of the maintenance never arose when the agreement was
concluded.
8
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 531E;
Group Five Building Ltd v Minister
of Community Development
[1993] ZASCA 75
;
1993 (3) SA 629
(A) at 653F-G.
9
Owen-Smith v
Owen-Smith
1982 (1) SA 511
(ZS)
at 515A-F;
Schlesinger v Schlesinger
1968 (1) SA 699
(W) at
700E.