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[2012] ZAKZPHC 21
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Strydom v Strydom (AR 598/2011) [2012] ZAKZPHC 21; 2012 (6) SA 482 (KZP) (3 April 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 598/2011
In the matter between
:
MARTIN DEON STRYDOM
…...............................................
APPELLANT
and
KIM ETHNE STRYDOM
….................................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 03 April 2012
SWAIN J
[1] Before us for
decision, are an appeal and cross-appeal, in which the parties are
equally dissatisfied with an order made by
the Magistrate in a
maintenance enquiry, in respect of the maintenance payable by the
appellant for two minor children, born of
the prior marriage between
the parties.
[2] The order made by
this Court at the time of the parties’ divorce on 07 April 2008
in respect of the maintenance of the
two minor children, E, a boy
born on 03 July 2003 and N, a boy born on 31 August 2006, reads as
follows:
“
3. That the
defendant is directed to pay the following in respect of the minor
children:-
maintenance at the rate of R2,500.00
per month per child;
all reasonable medical, dental and
ophthalmic expenses incurred, with effect from the date of the
transfer of the immovable property
as provided in the settlement
agreement dated 7 April 2008;
two thirds of all reasonable
educational costs reasonably incurred including pre-primary fees,
crèche fees, school fees,
school clothes, tertiary education,
extra mural expenses, sports clothes, sports equipment and all
reasonable allied educational
expenses.”
[3] The appellant applied
at the hearing on 05 September 2011 for this order to be discharged
and to be replaced with an order,
in terms of which the maintenance
payable by the appellant, would be reduced to an amount of R1,000.00
per month per child, and
his liability to pay for the defined medical
and educational expenses, would be reduced to fifty percent of such
expenses. The
appellant also applied for such reduction to be
retrospectively applicable from 01 March 2011. The respondent opposed
any such
reduction in the maintenance liability of the applicant. The
Magistrate acceded to the applicant’s request to reduce the
amount of maintenance payable, but not to the extent sought by the
applicant, reducing it to R1,500.00 per month per child, but
to have
retrospective effect from 01 March 2011. The Magistrate however did
not accede to the applicant’s request, to reduce
his percentage
liability for the payment of the defined medical and educational
expenses.
[4] At the outset of the
appeal Mr. Shapiro, who appeared for the respondent, applied for
condonation for the late noting of the
respondent’s counter
appeal, which was not opposed by Mr. Podbielski, who appeared for the
appellant. We accordingly granted
an order of condonation in this
regard.
[5] The reason advanced
by the appellant as to why a reduction in the maintenance payable by
him for his minor children was justified,
was solely because his
salary had unexpectedly dropped at the beginning of 2011. He said
that it had also dropped the year before
in 2010, but he did not
apply for a reduction in the maintenance payable at that time.
However, because his salary had dropped
again, he had reached the
point where he had to apply for a decrease in the amount of
maintenance payable. He added
“if my salary didn’t
drop I would be in a position to pay that maintenance. I cannot right
now.”
[6] The appellant stated
that his annual salary was determined at the beginning of each year,
by reference to the amount of sales
he had achieved in the previous
year. Mr. Cocking, the National Branch Manager of the company which
employs the appellant, confirmed
this was the manner in which the
appellant’s annual salary was calculated.
[7] It is therefore
clear, that the crux of the matter was whether the appellant was
financially able, to pay the maintenance demanded
of him in terms of
the order of this Court, and not whether the needs of the minor
children, justified the payment of such maintenance.
[8] The main thrust of
Mr. Shapiro’s argument, was that the appellant was obliged to
show a change in the conditions that
existed from when the original
order was made in 2008, but that the appellant had not given any
evidence to prove what those conditions
were. Consequently, he
submitted the Magistrate erred in reducing the maintenance payable.
[9] It is so that in the
case of
Roos v Roos
1945
TPD 84
at 88
which concerned the
variation of a maintenance order, in respect of a divorced spouse and
whether
“good cause”
had been shown
for such a variation, within the meaning of that term, contained in
the Matrimonial Affairs Act 37 of 1953, Schreiner
J (as he then was)
had the following to say:
“
Variation
will be ordered not only in cases of breach by either party but
because there has been such a change in the conditions
that existed
when the order was made, that it would now be unfair that the order
should stand in its original form”.
[10] Likewise in
Havenga v Havenga
1988 (2) SA 438
(T) at 445 C - F
Harms J (as he then was)
held that in regard to an application by a divorced spouse, to vary
the maintenance payable to the former
spouse, that as a general
proposition, in the absence of a real change in circumstances, there
would not be sufficient reason for
a change. However, he added there
could be circumstances where reasonable grounds existed for the
variation of a maintenance order,
even where there was no real change
in circumstances.
[11] However in
Hossack v Hossack
1956 (3) SA 159
(T) at 163 F – H
Ludorf J drew a
distinction between the
“good cause”
to
be shown when an applicant seeks to vary maintenance payable to a
divorced spouse, and when a variation is sought in respect
of the
maintenance payable to minor children. In the latter event he had the
following to say:
“
An applicant
need usually only show an ability on the part of the respondent to
pay more and a need that more should be paid”.
The most important factor
is the needs and welfare of the children. The payment of maintenance
for minor children, is a priority,
in the demands upon the resources
of the individual liable for the payment of such maintenance.
[12] In the light of the
fact that the needs of the minor children for the original
maintenance payable was not challenged, and
the appellant maintained
that the only reason he was applying for a reduction in the
maintenance, was because of a reduction over
two successive years in
his salary, the issue was whether the appellant had demonstrated an
inability to pay the maintenance required.
[13] It was accordingly
incumbent upon the appellant, not merely to show a reduction in his
salary, but also an inability on his
part to pay such maintenance. In
this context, I do not agree that it was an absolute necessity for
the appellant to show a change
in his circumstances, from those which
prevailed in 2008, before a reduction in the maintenance payable by
him could be considered.
A change in such circumstances, whether for
the better, or for the worse, is however a factor to be considered.
[14] As regards the
ability of the appellant to pay the required
maintenance, there are
certain aspects of his evidence, as high-lighted in
cross-examination, which require closer examination.
[14.1] An expense claim
by the appellant was an amount of R1,391.00 per month, in respect of
retirement annuity payments. The appellant
agreed that he could stop
these payments, but he did not think it was a wise thing to do. The
Magistrate agreed, finding that it
is a basic prudent provision for
the future that any working person could
“hardly afford
to do without”
. This is obviously so, but what is
required of the appellant, is not a permanent cessation of such
contributions, but a temporary
suspension of their payment, until the
appellant is again in a financial position to pay them. The priority
must be the support
of his minor children.
[14.2] An amount of
R663.63 per month, was claimed by the appellant, in respect of a loan
he received from his father, to enable
him to pay some of his bills.
His father had obtained a loan from ABSA, to lend him the money. The
appellant agreed that he had
no legal obligation to pay this money to
his father. On the appellant’s evidence it is apparent that his
parents have been
assisting him in various ways, to look after and
support the children, when they were staying with the appellant. The
Magistrate’s
views in this regard were simply that it was put
to the appellant that it was a moral obligation and not a legal
obligation, but
“it has not been suggested how the
applicant can get out of this obligation”.
It was
never suggested that the appellant should avoid repaying the loan
altogether. In my view, it would not be unreasonable to
expect of the
appellant, to temporarily suspend the repayment of the loan to his
father, in order to properly support his minor
children. The
appellant did not state that his father was financially dependant
upon the appellant, repaying the loan at the rate
of R663.63 per
month, at present. There was no evidence to support the Magistrate’s
statement that suspending payment of
the loan would
“upset
his relations with his parents”.
I would expect
that knowing the reason was to properly support their grandchildren,
they would be understanding of the appellant’s
predicament.
[14.3] The appellant
claimed an amount of R380.00 per month for clothes and shoes, and
stated that over the past few months he had
bought a few items. He
agreed that he did not buy items every month. Again, I do not regard
this claim as one that should take
precedence over the appellant’s
obligation to support his children. Again the Magistrate’s view
that the appellant
may
“end up not buying any clothing
at all. Even after divorce, a person is still entitled to some
dignity and decency”
is not supported by any
evidence. There is no evidence to show that the state of the
appellant’s clothing, is such that if
he does not buy new
clothes he will be reduced to a state where his dignity will be
impaired. Again the interests of his minor
children are paramount.
[14.4] A further expense
claim by the appellant was an amount of R400.00 in respect of
entertainment expenses. When it was put to
him in cross-examination,
that this was an additional expense, which could be saved, his reply
was
“so you’re saying that basically now that I am
divorced I cannot have entertainment for a whole year”.
In
my view, if the alternative is that the appellant’s minor
children are not properly supported, this is precisely what it
means.
Other than finding that the expenses incurred by the appellant, in
eating out were not extravagant, in finding that these
took place
before March 2011 and therefore had nothing to do with the present
application, the Magistrate did not deal with the
appellant’s
claim in this regard.
[15] I am therefore
satisfied that the Magistrate erred, in disregarding these reasonable
savings in the appellant’s expenses,
which total an amount of
R2,834.00 per month. When the amount tendered as maintenance by the
appellant of R2,000.00 per month is
added to this saving, a financial
ability on the part of the appellant to afford payment of an amount
of R4,834.00 as maintenance,
is demonstrated. This is sufficiently
close in proximity to the previous maintenance payable of R5,000.00
per month, to justify
a finding, that the Magistrate erred in
reducing the amount of maintenance, to an amount of R3,000.00 payable
per month, in respect
of both children.
[16] In the light of the
conclusion I have reached it becomes unnecessary to consider the
argument advanced by Mr. Shapiro, that
the appellant had failed to
prove a change in his circumstances, since the grant of the original
order in 2008, to justify a reduction
in the maintenance payable.
[17] Before dealing with
the degree to which the appellant remains liable to pay for the
medical and educational expenses, which
was challenged by the
appellant on appeal, it is necessary to consider an application which
was brought by the respondent, in terms
of Section 22 (a) of the
Supreme Court Act No. 59 of 1959, that certain evidence be received
by this Court on appeal. In the alternative,
the respondent sought an
order remitting the matter to the Court
a quo,
which was
“directed to take the further
evidence of the parties regarding the payments made to the appellant
and the quantum of his
current salary”.
[18] The appellant
opposed the relief claimed and did not in the alternative, concede
that the matter should be remitted to the
Court
a
quo
. In addition, no conditional
counter-application was brought by the appellant, seeking leave to
place evidence before this Court,
in the event that this Court was
disposed to grant the order prayed by the respondent. The appellant
simply alleged that he would
be severely prejudiced should the
evidence be admitted on appeal. He alleged that he should not be
forced at short notice, to deal
with and explain in his affidavit,
various deposits into his bank account, how they had been utilised
and his current financial
position, as this would re-open the entire
enquiry.
[19] It is clear that an
applicant for leave to place evidence before a court on appeal, must
satisfy the following requirements:
[19.1] There should be
some reasonably sufficient explanation, based on allegations which
may be true, why the evidence which it
is sought to lead, was not led
at the trial.
[19.2] There should be a
prima facie
likelihood
of the truth of the evidence.
[19.3] The evidence
should be materially relevant to the outcome of the trial.
State v de Jager
1965 (2) SA 612
(AD) at 613
[20] The respondent
alleged that the appellant’s bank, had continued to send email
messages to her of payments made into the
appellant’s cheque
account at First National Bank, Account No. 53771095157. She then
annexed to her affidavit, printouts
of the e-mail messages sent to
her on certain dates. The appellant’s reply was that the
respondent operated his bank account
with his permission, up until
the parties were divorced in 2008, and he was unaware that the
respondent continued to receive emails
from his bank, detailing
movements on his cheque account. He added that he found it
“disturbing”
that the respondent had
not told his bank, or himself, that this was happening.
[21] The contents of
these emails were as follows:
[21.1] On 21 November
2011, an amount of R26,975.25 was paid into the Appellant’s
account (“095157”) which, according
to the respondent,
appears to be a refund from the South African Revenue Services;
[21.2] On 22 December
2011, an amount of R34,982.00 was paid into the Appellant’s
cheque account (“095157”), with
a reference indicating
that it was his salary, according to the respondent;
[21.3] On 01 March 2012,
an amount of R25,219.80 was paid into the Appellant’s cheque
account (“095157”), with
a reference indicating that it
was his monthly salary, according to the respondent.
[22] The appellant’s
reply to these allegations was simply to state that they were noted,
without either admitting or denying
them. In the context of the other
averments made by the appellant in this regard, I am satisfied that
there is a
prima facie
likelihood
of the truth of the evidence set out above.
[23] It is in respect of
the other two requirements for the admission of this evidence, that I
have cause for concern. This is because
these requisites are
predicated upon the objective existence of the evidence at the time
of the trial. The evidence could only
have been of material relevance
to the outcome of the trial, if it was in existence at that time.
Although the reason for the evidence
not being led at the trial, was
because it was not in existence, this is quite obviously not the
situation that the learned Judges
of Appeal had in mind in de Jagers
case. However, Holmes J A added the following at page 613 E – F
(after setting out the
quoted requirements).
“
Non
fulfilment of any one of these requirements would ordinarily be fatal
to the application, but every case must be decided on
its particular
merits, and there may be rare instances where, for some special
reason, the Court will be more disposed to grant
the relief”.
In addition, in the case
of
S v E B
2010 (2)
SACR 524
(SCA) at paragraph
5
evidence of facts and
circumstances which arose after sentence, was allowed to be adduced
on appeal, where there were exceptional
or peculiar circumstances
present.
[24] It is clear that in
terms of Section 28 (2) of the Constitution, a child’s best
interests are of paramount importance,
in every matter concerning the
child. This is echoed in Section 9 of the Children’s Act No. 38
of 2005 (the Act) which provides
as follows:
“
In all
matters concerning the care, protection and well being of a child the
standard that the child’s best interest is of
paramount
importance, must be applied”.
In terms of Section 18
(2) (d) of the Act the parental responsibility, includes the
obligation to contribute to the maintenance
of the child.
[25] As stated by van Zyl
J in
Girdwood v Girdwood
1995 (4) SA 698
(c) at 708 J
“
As upper
Guardian of all dependent and minor children, this Court has an
inalienable right and authority to establish what is in
the best
interests of children and to make corresponding orders to ensure that
such interests are effectively served and safeguarded”.
[26] The danger of a
party, having seen where the weakness lies
in his/her case and
shaping evidence to meet the difficulty (de Jager at 613 B – C)
does not arise in the present case. That
it is not in the interests
of the administration of justice, that issues of fact, once
judicially investigated and pronounced upon,
should lightly be
re-opened and amplified, is clear.
De Jager at 613 A –
B
[27] I regard the present
case however as a
“rare instance”
where
for a
“special reason”
on its
“particular merits”
the request by
the respondent to place such evidence before this Court should be
permitted. The case is one where
“exceptional
circumstances”
are present by virtue of the
following factors:
[27.1] That an amount of
R26,975.25 was paid to the appellant, as a refund from SARS on 21
November 2011, is directly relevant to
the ability of the appellant,
to pay the arrear maintenance claimed by respondent of R20,000.00,
together with outstanding medical
and educational expenses, totalling
R25,569.37. It should be noted that as from March 2011, the appellant
unilaterally reduced
the maintenance payable for the minor children,
despite the terms of this Court’s order.
[27.2] That an amount of
R34,982.00 was paid to the appellant as his salary on 22 December
2011, is directly relevant not only to
the ability of the appellant
to pay the balance of the said arrears, as well as his ability to pay
maintenance at the original
figure. Whether this amount possibly
includes a bonus is impossible to say, because the appellant has
chosen not to take this Court
into his confidence.
[27.3] That an amount of
R25,219.80 was paid to the appellant, as his salary on 01 March 2012,
in the context of the evidence that
his salary for 2012, would be
calculated in February 2012, it seems to me safe to assume, in the
absence of any evidence from the
appellant to the contrary, that this
is the salary of the appellant for 2012. This salary constitutes an
increase of R2,254.75
over the appellant’s salary for 2011.
When regard is had to the fact that the Magistrate (incorrectly in my
view) reduced
the maintenance payable by the appellant, by an amount
of R2,000.00 on the basis of the appellant’s reduced salary, it
is
clear (even on the Magistrate’s reasoning) that the
appellant is able to afford the original maintenance payable.
[28] In a case such as
the present, this Court as the upper Guardian of minor children, is
obliged to allow the admission of this
evidence, as it is relevant to
ensure that the minor children are properly maintained. To ignore
this evidence, in my view, would
be tantamount to a failure by this
Court, to ensure that the interests of the minor children were
properly safeguarded.
[29] To remit the matter
to the Magistrate to hear this further evidence, would delay matters.
The determination of an adequate
amount of maintenance for the minor
children, is a matter of urgency, particularly when regard is had to
the large amount of maintenance
that is in arrears and has not been
paid, to the prejudice of the minor children. If the appellant’s
expenses have increased
since the end of September 2011 (when the
Magistrate granted the order) to such an extent, that the appellant
maintains that he
is nevertheless unable to pay the maintenance, he
would obviously be entitled to apply for a variation in the order. Be
that as
it may, the appellant in the light of the additional
evidence, is well able to afford the original maintenance payable.
[30] As regards the costs
of the appeal, the respondent has achieved substantial success,
without regard being had to the additional
evidence placed before
this Court. On this basis alone the respondent would be entitled to
the costs of the appeal. Although I
have found that the appellant is
able to afford the arrear maintenance and outstanding amounts
payable, which apart from an amount
of R3,000.00 (which the
respondent conceded the appellant had paid) the appellant did not
contest the accuracy of, the respondent
in the Court
a quo
did
not ask for an order that the appellant be ordered to pay the
arrears. On appeal the respondent
likewise did not seek
such an order. It would accordingly be inappropriate for this Court
to make such an order at this stage.
The order I make is the
following:
(a) The evidence
contained in Annexures “FA1”, “FA2” and
’FA3”, to the respondent’s founding
affidavit, in
support of the respondent’s application for leave to place
further evidence before this Court, is received
as evidence in the
appeal.
(b) The appeal is
dismissed with costs.
The cross-appeal is
upheld, with costs.
The order of the Court
a
quo
is set aside and replaced with the following order:
“
The
applicant’s application for a variation of the order granted by
the High Court of South Africa, Durban & Coast Local
Division,
under Case No. 11068/2007 on 07 April 2008 is dismissed”.
___________ I agree
___________
K. SWAIN J J. MNGUNI J
Appearances /
Appearances:
Counsel for the
Appellant :
L. M. Podbielski
Instructed by
Louis
M. Podbielski Attorneys
Durban
C/o Austen Smith
Pietermaritzburg
Counsel for the
Respondent:
Mr. W. Shapiro
Instructed by :
McLung Mustard
Pinetown
C/o
Geyser du Toit Louws &
Kitching
Pietermaritzburg
Date of Hearing of
Appeal
:
19 March 2012
Date of Judgment :
03
April 2012