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[2009] ZAGPJHC 119
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S v S (09/37186) [2009] ZAGPJHC 119 (18 November 2009)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
Case No. 09/37186
Date:18/11/2009
In the matter between:
MRS. S (formerly S)
Applicant
And
MR S Respondent
MEYER, J
[1] The applicant and the respondent
were married to each other. Two sons, M and N were born of this
marriage on 14 August 1991
and 12 October 1993 respectively.
[2] The respondent instituted divorce
proceedings against the applicant in the Durban and Coast Local
Division of the High Court.
On 21 April 2004, the parties entered
into an agreement of settlement (annexure FCS1). The agreement of
settlement
inter alia
provides for custody of the
children to be awarded to the applicant and for the respondent to
have the right of reasonable access
to them. Clauses 6.2 – 6.5
of the settlement agreement are relevant. They relate to the payment
of maintenance for the
children by the respondent to the applicant:
‘
6.2 R [the respondent] shall
pay maintenance to F [the applicant] for the children at the rate of
R5 000.00 per month, per child,
the first payment to be made on the
first day of the month succeeding the month in which the order of
divorce is granted.
R shall pay the maintenance:
into F’s Nedbank Musgrave
Bank Account No. 1301282626, Branch Code 130-126 or any other
place which she may specify
in writing, on 30 days notice to R;
in advance on or before the first
day of the month for which the maintenance is due, and will ensure
that the funds are available
to F on that day;
without any demand or deductions of
any nature whatsoever.
R shall continue to pay maintenance
for the children stated in clause 6.3 until the children –
turn 21 years old; or
become self-supporting; or
marry;
whichever shall occur first.
6.5 The amount of maintenance payable
by R to F in terms of this agreement as at the date of signature,
shall be increased by a
minimum amount which shall be calculated in
accordance with the CPIX for all goods, for the Durban area or other
area in which
F may reside. The adjustment shall be effected
annually on the anniversary of the divorce each year.’
[3] On 18 May 2004, their marriage was
dissolved by an order of the Durban and Coast Local Division (‘the
divorce order’).
Only certain terms of the agreement of
settlement were incorporated in the divorce order (annexure FCS2).
The applicant states
that she had been advised that it is not the
practice in the Durban High Court to make the agreement of settlement
an Order of
Court. Paragraphs 3.1 and 3.2 of the divorce order read
as follows:
‘
3 That the plaintiff is
directed to:-
3.1 pay maintenance to the defendant
for the minor children at the rate of R5 000,00 per month per child,
the first payment to be
made on the 1
st
June 2004;
3.2 increase the maintenance payable
to the defendant by a minimum amount which shall be calculated in
accordance with the CPI for
all goods, for the Durban area or other
area in which the defendant may reside. The adjustment to be
effected annually on the
18
th
May each year;’
The provisions of
inter
alia
clauses 6.3 and 6.4 of
the settlement agreement are accordingly not incorporated in the
divorce order.
[4] During November 2008, the
respondent instituted proceedings in the Maintenance Court, Randburg,
for a reduction of the amount
of the maintenance that he was obliged
to pay for the children. The parties concluded a variation agreement
on 17 November 2008.
The parties specifically recorded that the
variation agreement only varies their settlement agreement in certain
specified respects
and that all the terms and conditions of their
settlement agreement remain otherwise of full force and effect. In
clause 3.1 of
the variation agreement the parties agreed to delete
clause 6.2 of the settlement agreement and to substitute it with the
following
clause:
‘
R shall pay maintenance to F
for the children at a rate of R2 500,00 per month, per child, the
first payment to be made on the first
day of December 2005.’
Part B of the variation agreement
inter alia
provides
that the respondent would pay an amount of R5 000.00 per month into
an investment account for the children. Clauses 6.3,
6.4, and 6.5 of
the settlement agreement were not varied. The variation agreement
was not made an order of the Maintenance Court.
[5] Acting for the applicant, Bowman
Gilfillan Attorneys in a letter dated 25 May 2009, advised the
applicant as follows:
‘
4. Your oldest child, M, will
turn 18 on 14 August 2009.
5. In such circumstances, this letter
serves to confirm that our client will, from the date of M’s
18
th
birthday, since M will on that date become a major, be paying
maintenance directly to M and no longer to yourself. From that date
all arrangements regarding M’s future maintenance requirements
will be concluded directly between M and our client.’
An exchange of correspondence followed
between the applicant’s attorneys, Martini-Patlansky, and the
respondent’s attorneys,
but the respondent remained steadfast
in his stance. The respondent stopped paying M’s maintenance
payments to the applicant
when M turned eighteen on 14 August 2009.
Since M’s eighteenth birthday the respondent seeks to discharge
his obligation
to maintain M by making payments directly to him and
the respondent also seeks to make arrangements regarding M’s
maintenance
requirements directly with him.
[6] In paragraphs 1 and 2 of her
notice of motion the applicant seeks that various provisions of the
settlement agreement and the
entire variation agreement be made an
order of this Court. In paragraph 3 of the notice of motion the
applicant, in the alternative,
seeks that
‘
the Respondent is ordered to
pay the maintenance in respect of the minor children as varied in
terms of the Variation Agreement,
annexure FCS3 hereto, directly to
the Applicant.’
The reference to the ‘minor’
children seems to be an error since M became a major in terms of the
Children’s Act
38 of 2005 on 14 August 2009. In a supporting
affidavit M expressed a preference that the maintenance payable to
him by the respondent
be paid to the applicant.
[7] The respondent states the
following in paragraphs 17.2 – 17.6 of his answering affidavit:
’
17.2 In terms of the Children’s
Act 38 of 2005, the age of majority was reduced with effect from 01
July 2007, from twenty
one to eighteen.
17.3 M turned eighteen on 14 August
2009.
17.4 I do not deny, and have never
denied, an ongoing obligation to contribute towards M’s
maintenance until he becomes self-supporting.
17.5 I submit, however, that once M
attains majority that obligation is mine direct to M and his right to
enforce directly against
me. The Applicant, as “receiver of
payments for and on behalf of a minor child” no longer has
locus standi
to
receive such payments since the child is no longer a minor.
17.6 Having received advice that
there is clear authority to this effect in law, I instructed my
attorneys to communicate this to
the Applicant which was done in May
2009.’
[8] At no time during argument was I
referred to the ‘clear authority’ referred to by the
respondent. But adv. RR Rosenberg,
who appeared for the respondent,
referred me to a judgment of the Supreme Court of Appeal in the
matter of
Graham John Bursey
v Jane Noelle Bursey and Others
(delivered
on 30 March 1999). The following passage in the judgment given by
Vivier, JA (Nienaber JA, Howie JA, Olivier JA and
Plewman JA
concurring), is, in my view, apposite to this matter:
‘
It was next submitted, also on
the strength of Richter’s case, that John’s maintenance
in terms of the order was payable
to the first respondent in her
capacity as his custodian so that when this status terminated upon
majority the appellant’s
obligation to pay her either ceased or
was henceforth enforceable only by John and not by the first
respondent. The maintenance
order is, as I have said, ancillary to
the common law duty of support and merely regulates the incidence of
this duty as between
the parents. The effect of this order is simply
that after John’s majority the maintenance payable to him by
his parents
would continue to be paid to him by the first respondent
who would recover under the Court’s order the appellant’s
contribution to his common parental duty to support. This she was
fully entitled to do in terms of the order.’
[9] The maintenance provisions of the
divorce order, those of the settlement agreement that were not
incorporated into the divorce
order, and those contained in the
subsequent variation agreement regulate the incidence of the duty of
support as between the applicant
and the respondent. Clause 6.4 of
the settlement agreement contains the express agreement between the
applicant and the respondent
as to the duration of the duty to
maintain the children. The respondent undertook to pay maintenance
for the children until they
attain the age of 21 years or become
self-supporting or marry, whichever occurs first. Clause 6.2 of the
settlement agreement,
as substituted
inter
partes
and extra-curially
by clause 3.2 of the variation agreement, and clauses 6.3, 6.4, and
6.5 of the settlement agreement do not limit
the applicant’s
entitlement to recover from the respondent his contribution to M’s
maintenance to M’s attainment
of majority. The respondent is
obliged to continue to pay over his maintenance contribution (that is
the part of his maintenance
contribution referred to in clause 6.2 of
the settlement agreement and as substituted by clause 3.2 of the
variation agreement
and read with clause 6.5 of the settlement
agreement) to the applicant and the applicant is entitled to recover
the respondent’s
said maintenance contribution for M until the
first of the events referred to in clause 6.4 of the settlement
agreement occurs.
[10] The respondent’s contention
that the settlement agreement was superseded by the divorce order and
that the divorce order,
in turn, was superseded by the variation
agreement, has no merit. The divorce order clearly only incorporated
certain salient
terms relating to the parties’ agreement on the
issues of custody and maintenance in respect of their children and
their
settlement agreement remains of full force and effect between
them, except insofar as they varied it in terms of their variation
agreement. The express provisions of the variation agreement make
this clear.
[11] Adv. S Nathan, who appeared on
behalf of the applicant, submitted that this Court does not have
jurisdiction to grant the applicant
relief, because the variation
agreement was concluded pursuant to proceedings instituted in the
Maintenance Court. The High Court
has no jurisdiction to vary the
order of a Maintenance Court otherwise by appeal or review. See:
Steyn v Steyn
1990
(2) SA 272
(WLD);
Rabie v
Rabie
1992 (2) SA 306
(WLD);
De Witt v De Witt
1995 (3) SA 700
(TPA); and
Purnell v Purnell
[1993] ZASCA 22
;
1993
(2) SA 662
(AD). But the applicant does not seek the variation of an
order of the Maintenance Court. It is undisputed that the
Maintenance
Court made no order and it appears that the parties, by
means of the variation agreement, extra-curially amended the
settlement
agreement. The relief prayed for in terms of paragraphs 1
and 2 of the notice of motion amounts to a variation of the divorce
order granted by the Durban and Coast Local Division. Under the
common law this Court would have no jurisdiction to vary the order
for maintenance granted by the Durban and Coast Local Division. See:
Steyn v Steyn (supra)
at p. 274B – G. Subsections 8(1) and 8(2) of the
Divorce Act
70 of 1979
brought about a change of the common law position.
Section 8(1)
inter alia
provides that a maintenance
order made in terms of the
Divorce Act may
at any time be rescinded
or varied if the Court finds that there is sufficient reason
therefore, and
section 8(2)
provides that a Court other than the
Court which made such order may rescind, vary or suspend it if
inter
alia
the parties are
domiciled in the area of jurisdiction of the Court which is
approached to rescind, vary, or suspend the order.
‘Court’,
in terms of
section 1
of the
Divorce Act,
>
inter
alia
means ‘any High
Court as contemplated in section 166 of the Constitution of the
republic of South Africa (Act 108 of 1996).’
It is common
cause that the applicant and the respondent are domiciled within the
area of this Court.
[12] The respondent is acting in
breach of the relevant provisions of the settlement and variation
agreements. His unilateral conduct
in the circumstances of this
case, in my view, establishes ‘sufficient reason’ for the
divorce order to be varied.
I am, however, of the view that the
relief claimed in paragraphs 1 and 2 of the Notice of Motion extends
beyond the actual dispute
between the parties and the case put
forward in the applicant’s founding papers. The relief prayed
for in paragraph 3 of
the notice of motion is aimed at compelling
performance in accordance with the relevant provisions of the
settlement and variation
agreements, and the plaintiff is, in my
judgment, entitled to enforce such performance
vis-à-vis
the respondent insofar as M is concerned.
[13] There is, in my view, no reason
why the costs of the application should not follow the event. Adv.
Rosenberg S.C. submitted
that a punitive costs order is warranted in
the circumstances. I think not. The respondent acted with
confidence on legal advice
that he had received.
[14] In the result the following order
is made:
The respondent is ordered to pay the
maintenance for M, which is provided for in clause 3.2 of the
variation agreement (annexure
FCS3 to the founding affidavit) as
read with clause 6.5 of the settlement agreement (annexure FCS1 to
the founding affidavit),
directly to the applicant.
The respondent is ordered to pay the
applicant’s costs of the application.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
18
November 2009