Christies v Christies (705/2006) [2007] ZANCHC 18 (2 March 2007)

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[2007] ZANCHC 18
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Christies v Christies (705/2006) [2007] ZANCHC 18 (2 March 2007)

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IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
number:
705/2006
Date
heard:
23/02/2007
Date
delivered:
02/03/2007
In
the matter between:
CHRISTIE,
J A
Applicant
and
CHRISTIE,
G D M Respondent
Coram:
Lacock
J
JUDGMENT
LACOCK
J:
The appellant in this
matter was married to the respondent, which marriage was dissolved
by an order of this Court on 27 November
1992.
It
is common cause that the parties have concluded an agreement, headed
“Deed
of Settlement”
,
prior to the issuing and service of the summons in the divorce
action, in terms whereof provision was
inter
alia
made for the custody and maintenance of the minor children, division
of the assets in the estate and for the payment of maintenance
by the
respondent to the applicant. The relevant clauses in regard to the
payment of alimony reads as follows:
The
Defendant will pay maintenance to the Plaintiff at the rate of
R1700,00 per month until her death or remarriage, whichever
event
occurs first.
The
maintenance payable by the Defendant in respect of his said children
and in respect of Plaintiff shall be increased annually
on the date
upon which the Defendant receives his annual salary increase from
his employers, such increase being equivalent to
the same percentage
whereby his salary is increased. It is further recorded that such
salary increases are generally given at
the 1
st
of June in each year. The provisions of this paragraph shall not
bar the Plaintiff from applying in the appropriate court for
an
increase of maintenance at any time.”
The
divorce action was enrolled as an unopposed matter in the motion
court for 27 November 1992, and was disposed of as such. At
the
hearing of the matter counsel for the applicant (as plaintiff)
handed up a
“Draft
Order”
and moved for an order in terms of the said draft. The Court
(
Wessels
AJ
)
thereupon made an order in exactly the same terms as those contained
in the
“Draft
Order”
.
This Order reads thus:
That the
bonds of marriage subsisting between plaintiff and defendant be and
are hereby dissolved.
THAT the custody and control of
the two minor children born out of the marriage namely TARYN-LEE and
KYLE GORDON is awarded to the
plaintiff.
THAT the defendant pay
maintenance to the plaintiff in respect of the said children at the
rate of R800.00 per month per child until
each child respectively
becomes self-supporting.
THAT the defendant is liable for
and will pay all medical, dental, hospital, nursing, optometrical
costs incurred in respect of
the said children as well as all costs
of medicines purchased for as long as he is legally liable to
maintain them.
THAT the defendant be liable and
pay the costs of tertiary education which the said children may
undergo provided such costs are
within his means.
THAT one half of defendant’s
pension interest in De Beers Pension Fund (Membership no 1164651) as
at the date of divorce will
accrue to the plaintiff and will be paid
by the said fund to the plaintiff when the pension benefits accrue
in respect of the defendant
and the said pension fund will make an
endorsement in its records in regard to the pension interest payable
to the plaintiff in
terms of this agreement.
THAT the
defendant pay the plaintiff’s legal expenses pertaining to the
divorce proceedings.”
Despite
the contents of clauses 7 and 8 of the Deed of Settlement (quoted
above), no provision was made in either the said draft order
or the
final order of divorce for the payment of alimony by the respondent
to the applicant.
The applicant has now
approached this Court in terms of Rule 42(1)(a) for the following
relief:
That the final order of divorce
in the above Honourable Court under case number 1409/1992 be amended
as follows:
By the insertion after
paragraph 6 thereof the following:
That the
Defendant will pay maintenance to the Plaintiff at the rate of
R1700.00 per month until her death or remarriage, whichever
occurs
first.
That the
maintenance payable by the Defendant in respect of his said children
and in respect of the Plaintiff shall be increased
annually on the
date upon which the Defendant receives his annual salary increase
from his employers, such increase being equivalent
to the same
percentage whereby his salary is increased. It is further recorded
that such salary increases are generally given
as at the 1
st
June in each year. The provisions of this paragraph shall not bar
the Plaintiff from applying in the appropriate court for an
increase
of maintenance at any time.”
That the present paragraph
7 be renumbered to paragraph 9.
That the cost
of this application be paid by the Respondent only in the event of
the Respondent opposing this application.”
The
sum total of the averments of the applicant in support of the relief
sought are contained in the following two paragraphs of her
3 page
founding affidavit:
“
The provisions of paragraph 7
and 8 of the deed of settlement (annexure ‘C2’) were for some or
other reason unknown to me never
incorporated into the final order of
divorce.
I
respectfully submit that the order requested at the final order of
divorce was erroneously sought and also erroneously granted in
that
the provisions of paragraphs 7 and 8 of the deed or settlement
(annexure ‘C2’ to this affidavit), were not incorporated
in the
final order of divorce.
Therefore
I respectfully request that an order be granted in terms of the
notice of motion.”
Not
any reason or explanation is advanced for the omission of the said
provisions regarding the payment of alimony from the Court
Order
and/or draft order. One would at least have expected some
explanation from either the attorney who acted for the applicant
(and who still practises in Kimberley) or counsel who moved the
order on her behalf, but no such explanations had been proffered.
Again no factual
evidence are presented in substantiation of the bald allegation that
the order was erroneously sought and granted.
Not surprisingly the
respondent denied these allegations.
In her replying
affidavit one finds the following averments:
“
I am a lay person and do not
understand the court procedure. I signed a deed of settlement in
good faith and believed that the whole
thereof would be incorporated
in the final order of court.
I respectfully submit that it was
the duty of my legal representative at the hearing to ensure that the
deed of settlement (annexure
‘C2’), be incorporated in the final
order of divorce or at the very least paragraphs 6, 7 and 8 thereof.
I respectfully submit
that the failure by my legal representatives at
the time to ask that these paragraphs be incorporated in the final
order of divorce
has the implication that the order was erroneously
sought in that the whole deed of settlement and in particular
clauses, 6, 7 and
8, were not included therein. Furthermore, the
order was erroneously granted in that Annexure ‘C2’ or at the
least, clauses
6, 7 and 8, were not included in the final order of
divorce.”
It
is common cause that the applicant testified and was present in Court
when the Order of Divorce was granted. Question is why did
she not
there and then realise that the deed of settlement was not made an
order of court and raised this with her legal representatives.
If
one considers that the deed of settlement contains no less than 24
clauses and that only 6 of those clauses were incorporated
in the
Court Order, the necessity for a reasonable explanation for the
alleged omission speaks for itself.
As
submitted by Mr Roos SC for the defendant, it is not the function of
this Court to speculate on possible explanations or reasons
why the
aforesaid clauses were not incorporated in the final order of
divorce. It is for the applicant to present the necessary
evidence
upon which this Court can find that the order was erroneously sought
or erroneously granted. In the absence of any such
evidence – as
in this case – the application has to fail.
The
further difficulty the applicant had to overcome is to be found in
the very wording of Rule 42 (1) (a) itself. Not only was
the
applicant present in Court when the order was granted, but she was
also represented by an attorney and counsel. The order she
obtained
was exactly the order requested by counsel. Without evidence to the
contrary, it is difficult to conclude that the order
was erroneously
sought or erroneously granted. See
First
National Bank of South Africa v Jurgens & Others,
1993 (1) SA
245
(WLD)
:
“
The
ordinary meaning of 'erroneous' is 'mistaken' or 'incorrect'. I do
not consider that the judgment was 'mistakenly sought' or
'incorrectly
sought'. The relief accorded to the plaintiff was
precisely the relief that its counsel requested. The complaint now is
that there
is an omission of an accessory feature from the judgment.
I am unable to perceive how an omission can be categorised as
something
erroneously sought or erroneously granted.”
(at
247 C to D)
.
This
matter is to be distinguished from the case of
Ex
parte Jooste & ‘n Ander,
1968 (4) SA 437
(O)
where it was held that although the order originally granted was
exactly the order requested by counsel, such an order can be varied
under the sub-rule by reason of the failure of the applicants’
legal representatives to follow their instructions. No similar
situation presents itself in this matter. It is not the applicant’s
case that her legal representatives acted against her instructions.
Since
it occurred to me that a possible explanation for the submission of
a draft order by counsel (and which draft order was made
an order of
Court), could be attributed to the judgment of this Court in
Cherry
v Cherry (Case no. 301/1990)
,
where it was held by the late
Kriek
JP
that,
“
Die eiser
en die verweerderes het op 23 April 1990 ‘n skikkingsooreenkoms
aangegaan en ek word nou, na aanhoor van die eiser se
getuienis,
gevra om ‘n egskeidingsbevel te maak en om te beveel dat die
skikkingsakte ‘n bevel van die Hof gemaak word. Hierdie
uitspraak
gaan oor laasgenoemde bede.
In die verlede is hierdie soort
bevel gereeld gemaak in egskeidingsake in hierdie Afdeling, maar dit
is ‘n praktyk wat uiters slordig
is en wat nou beeïndig moet word.
Skikkingsooreenkomste
in hierdie soort sake bevat gewoonlik bepalings wat glad nie
tuishoort in ‘n hofbevel nie.
‘
n
Ander beswaar teen die huidige praktyk is dat in die meeste gevalle
die bepalings van die ooreenkoms in verhalende taal geskryf
is en nie
in die soort taal wat in ‘n hofbevel behoort gebruik te word nie.
Nog
‘n beswaar is dat die ooreenkoms gewoonlik bepalings bevat met
betrekking tot die verdeling van die bates. Indien die partye
ooreenkom hieroor is daar geen geskil tussen hulle nie en is dit nie
nodig dat hulle ooreenkoms omskep word in ‘n hofbevel nie.
Indien
daar wel geskille is, dan moet ‘n ontvanger aangestel word om die
boedel te verdeel.
Laastens
bevat skikkinsooreenkomste gewoonlik bepalings wat oorbodig is in ‘n
hofbevel.
Daar
kan geen wesenlike beswaar daarteen wees dat sekere paragrawe van ‘n
ooreenkoms, indien in gepaste taal gegiet, bevele van
die Hof gemaak
word nie. Die verkieslikste praktyk, en die een wat na vandag gevolg
sal word, is dat ‘n gewysigde bede in die
vorm van ‘n
konsep-bevel wat uiting gee aan die ooreenkoms tussen die partye,
opgestel word en van die Balie opgehandig word by
die verhoor.”
and
since not any one of the parties revealed in their affidavits what –
if any – their agreement was in regard to whether the
deed of
settlement or at least that portion in respect of the payment of
alimony, should or should not have been made an order of
Court, I
exercised my discretion under Rule 6 (5) (g) and directed that both
parties testify before me and to be examined and cross-examined.

This exercise however, proved to be a futile one, since not any one
of the parties were able to shed any light on these issues.
Clutching
at his last straw, Mr Haddad for the applicant requested me to
exercise my discretion under sec. 173 of the Constitution
to
correct, what he labelled a patent error. Suffice it to say that
the absence of evidence precludes me from finding that an
error had
in fact occurred, and there are therefore no grounds for interfering
with the Court order granted by
Wessels
AJ
.
The evidence produced in this matter does not warrant a finding
that a procedural error had been committed. In the absence
of
supporting evidence it cannot be said that this is a matter of
adjective law. The principles laid down in
Zondi
v MEC, Traditional and Local Government Affairs
2006 (3) SA 1
(CC)
at 12 to 15
are therefore not applicable to this matter.
In
view of the conclusion to which I have come in this matter, it is
not necessary to deal with Mr Roos’s argument viz. that,
since no
order in regard to alimony had been made by the Court granting the
divorce order, this Court is precluded from now granting
such an
order. (
Schutte
v Schutte,
1986 (1) SA 872
(A)
).
The
parties were
ad
idem
that costs should follow the result of the application.
I therefore make the
following order:
The application is
dismissed with costs.
_______________
HJ Lacock
JUDGE
For
the applicant:
Mr
VW Haddad
(instructed
by, Elliot, Maris, Wilmans & Hay, Kimberley)
For
the respondent:
Adv
JF Roos SC
(instructed
by Fletcher’s, Kimberley)