Georghiades v Janse Van Rensburg (11887/05) [2006] ZAWCHC 29; 2007 (3) SA 18 (C) (14 July 2006)

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[2006] ZAWCHC 29
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Georghiades v Janse Van Rensburg (11887/05) [2006] ZAWCHC 29; 2007 (3) SA 18 (C) (14 July 2006)

Reportable
in
the high court of South Africa
(cape
of good hope provincial division)
Case
No 11887/05
In
the matter between:
THELMA
GEORGHIADES
(Previously JANSE VAN RENSBURG)
Applicant
and
JACOBUS
FREDERICK JANSE VAN RENSBURG
Respondent
judgment:
delivered 14 july 2006
Griesel J:
Introduction
The
parties were divorced in terms of an order issued by this court on
19 June 2003 under case number 5558/02. In terms of clause
3 of a
consent paper, signed by the parties on 25 April 2003 and
incorporated in the order of divorce, the respondent (then the
plaintiff) was obliged to pay to the applicant the sum of €200 per
week for a period of three years or until her remarriage,
whichever
event occurred first.
The
applicant now applies in terms of s 8(1) of the Divorce Act 70
of 1979 (
the Act
)
1
for a variation of clause 3 ‘by the extension of the period for
which maintenance is payable by the respondent to the applicant
from
the period of three years to an indefinite period until the
applicant’s death or remarriage, whichever event occurs first’.
Factual
background
The
parties were married to each other on 20 May 1997 in South Africa,
which marriage was dissolved six years later as set out above.
(The
parties had previously also been married to each other, which
marriage subsisted from March 1992 to mid 1996.)
Clause
3 of the consent paper, under the heading ‘Maintenance/­financial
payments and support provisions’, contains
inter alia
the
following provisions:
‘
That
the Plaintiff will pay to the Defendant the sum of €200.00 per week
for a period of three years or until her remarriage, whichever
event
occurs first, only for the support of the Defendant. The first
payment shall be made on the 1
st
day of February 2003 and
shall cease on the 1
st
day of February 2006.’
The
consent paper contains various other provisions regarding the
financial arrangements between the parties. Thus, in terms of
clause
3.1, the respondent undertook to pay –
an
amount of €300 owed by the
applicant
to
a certain Dr Oliver;
an
amount of €1 800 in respect of shipping costs and the cost of
a one-way airline ticket to South Africa for the applicant;
a
further cash payment of €2 000 to the
applicant
.
In
terms of clause 4.1, the parties agreed that the
applicant
’s
share in the ‘family home’ in Ireland, registered in their joint
names, would be trans­ferred to the respondent. In
return, the
respondent undertook, in terms of clause 5, to transfer the sum of
€50 000 to the applicant ‘for the purchase
of a residence
in South Africa … for the ultimate benefit of the children of this
marriage’. (In terms of clause 2 of the consent
paper, the
respondent became the ‘sole guardian’ of the two minor children
in question, whose ‘usual place of residence’
would be with him
in Ireland.)
Finally,
clause 7 provides as follows:
‘
The
plaintiff and the defendant mutually acknowledge, agree and confirm
that this Consent is made in full and final settlement of
all present
and future property and finan­cial claims which either of them
may have against the other.’
In
her founding affidavit in these proceedings, the applicant stated
that prior to the 2003 divorce the parties had been living
in
Ireland. She was unemployed at the time and had been hos­pitalised
on a number of occasions due to ‘acute depression brought
about by
the death of (her) daughter from cancer’. According to the
applicant, she was reluctant to sign the consent paper, as
she was
of the opinion that she ‘may very well require maintenance for a
longer period due to (her) ill health’. She was reassured
by her
Irish solicitor, one Margaret Fortune, however, that in the event of
ill health preventing her from obtaining employment
in future, she
would be ‘at liberty to approach the relevant court having
jurisdiction, and apply to have the duration of the
maintenance
payments extended’. (A confirmatory affidavit to this effect by
the solicitor in question was filed by the applicant
together with
her replying affidavit herein.) The applicant, in her founding
affidavit, proceeded as follows:
‘
11. At
the time that I signed the said Consent Paper I had no intention of
permanently waiving my right to apply for an ex­tension
of the
maintenance should I require same after the expiry of the three year
period.
12. After
the Divorce my health declined and I was diag­nosed as suffering
from Bipolar Mood Disorder Type 2, with recurrent major
depressive
episodes.
13. I
have been under treatment by a psychiatrist, Dr Lawrence Oliver, who
has prescribed medication for me which I have to take on
a permanent
basis, and I am also under regular psychiatric supervision.’
The
applicant subsequently relocated to South Africa and took up
employment ‘in a very limited capacity … on a part-time basis’
in her son’s retail store at the Waterfront. However, her son had
recently indicated that as from January 2006 he could no longer
afford to employ her, from which date she would have no income other
than the maintenance paid to her by the respon­dent. She
accordingly claimed that she needs continued maintenance from the
respondent in order to cover her monthly expenses amounting to
approxi­mately
R12 450.
In
his answering affidavit, the respondent contended that the applicant
was being ‘less than candid’ in suggesting that it was
only
after the divorce
that she was diagnosed as suffering from
bipolar mood disorder type 2, with recurrent major depressive
episodes. He annexed a copy
of a ‘statement of means’ signed by
the applicant in Ireland on 26 September 2002 – approxi­mately
nine months prior
to the divorce – in which she stated
inter
alia
that her income was ‘Nil’ and that she was suffering
from ‘bipolar 2 – manic depression which is a life-threatening
disease
that one is born with’. In the statement of means, the
applicant further alleged that she ‘must take medi­cation for
life
together with therapy to control this disease’. The
respondent accordingly denied that the applicant’s health declined
‘after
the date of the divorce’. He further contended that the
applicant was ‘contractually precluded by the terms of the consent

paper from applying for a variation of the relevant maintenance
order in terms of s 8(1) of (the Act)’.
The
applicant, in reply, conceded the correctness of the respondent’s
averments regarding her psychological condition prior to
the divorce
and apologised for this ‘error’ on her part. She attributed this
to the fact that ‘(her) recollection of that
time period is
exceptionally sketchy’. She explained that, although she was
suffering from ‘severe depression’ at the time
of the divorce,
she was ‘hopeful that in due course (she) would recover from the
severe depression caused by (her) daughter’s
illness and be able
to obtain some form of employment on the open job market, but this
has not occurred’.
Against
the foregoing background, the question for decision is whether the
applicant
is entitled to invoke the
provisions of s 8(1) of the Act.
Sufficient
reason
Section
8 of the Act creates an exception to the general rule that an order
of court, once pronounced, is final and immutable. It
permits the
court, for ‘sufficient reason’, to rescind, vary or suspend a
maintenance order granted earlier. This pro­vision
was
introduced so as to authorise the court to amend maintenance orders
on good cause shown so as to enable spouses to come to
court ‘to
redress injustices occasioned by a maintenance order which no longer
fits the changed circumstances’.
2
A
prerequisite to the exercise of the court’s power in terms of
s 8(1) of the Act is the existence of a ‘maintenance order
made in terms of this Act’. Unlike the
Maintenance Act 99 of
1998
,
3
the Act in question does not contain a definition of ‘maintenance
order’. I shall assume for present purposes, how­ever,
that
the maintenance provisions contained in the consent paper under
consideration do indeed fall within that concept.
The
onus of proving that there is ‘sufficient reason’ to vary the
original maintenance order rests upon the
applicant
.
4
As far as the meaning of the term is concerned, it is the view of
our courts that a precise definition of the term is neither possible
nor desirable, but that the particular circumstances of each case
must be considered.
5
It can fairly be equated with the term ‘good cause’, which was
used in the Matrimonial Affairs Act 37 of 1953, the predecessor
of
the Act as far as variation of maintenance orders is concerned.
6
The Afrikaans version of both expressions is ‘voldoende rede’.
Generally speaking, our courts accept that circumstances must
have
changed substan­tially and that it would be unfair to allow the
order to stand in its original form before rescission,
variation or
suspension of an existing maintenance order will be granted.
7
In
Havenga v Havenga
,
8
however, Harms J pointed out that although, in general, there
will not be sufficient reason for the variation or rescission
of a
maintenance order in the absence of a real change in circum­stances,
changed circum­stances are not a statutory prerequisite
and
there may sometimes be sufficient reason although circumstances have
not changed.
In
considering whether or not sufficient reason for variation of the
present maintenance order has been shown, it is important to
bear in
mind that the order in question is contained in a consent paper,
which was made an order of court at the time of the divorce.
The
consent paper deals not only with ‘the pay­ment of maintenance
by the one party to the other’, as contemplated by s 7(1)
of
the Act, but also with
inter alia
‘the division of the
assets of the parties’.
9
As such, it constitutes a com­posite, final agree­ment
entered into by the parties, purporting to regulate
all
their
rights and obligations
inter se
upon divorce
.
For the
court now to inter­fere in that arrangement by varying
one
component of the agreement, while leaving the balance of the
agreement intact, would fly in the face of the time-hallowed
principle
that ‘(t)he court cannot make new contracts for parties;
it must hold them to bargains into which they have deliberately
entered’.
10
The principle of
pacta sunt servanda
is equally relevant in
this context.
11
In
Claassens v Claassens
,
12
Didcott J made the following perceptive remarks regarding the
dynamics of similar agreements:
‘
Agreements
governing maintenance often cover other topics too. They are
frequently compromises over hotly contested issues of all
sorts, and
the product of hard and protracted bargaining. Everyone with
experience of negotiations in matrimonial cases is well aware
of
that. Questions of “guilt” and “innocence”, fundamental to
the wife’s claim for alimony while the 1953 Act lasted and
not
entirely irrelevant to it since then, may have been disputed. So may
the amount she needed, and how much of that the husband
could afford.
Property had perhaps to be settled or divided, maintenance for
children to be resolved. The alimony eventually agreed
can seldom be
isolated from such sur­roundings. Like the rest of the
compromise, it is the result of give and take. Sometimes
it is more
than the Court is likely to have awarded the wife had there been none
and, in return for a concession elsewhere, she has
won by contract
what she could not have expected from the litigation. On other
occasions it is less, but some contractual benefit
the Court would
never have decreed has compensated her for the difference. The
applicant
, one recalls, was promised
R15 000. I do not know why, or whether she had a good claim to
it. That does not, however, matter.
Suffice it to say that capital
payments like that are familiar enough as substitutes for or
supplements to regular alimony. The kind
of waiver under discussion
must be viewed against this background. It may well have been the
quid pro quo
for
something of value which was not otherwise obtainable. Or the parties
may simply have wanted certainty, so that they could plan
for the
future accordingly.’
Similar
sentiments were expressed by Erasmus J (with whom Jansen J
concurred) in
Reid v Reid
:
13
‘
In
making an order for maintenance on divorce, the Court has regard to
all the circumstances mentioned in
s 7(2)
of the
Divorce Act in
deciding what constitutes a “just amount”. Where the parties
enter into a consent paper they arrive at a settlement on these
issues. They agree on what constitutes a just mainte­nance order
on the basis of the factors mentioned in
s 7(2).
When the
consent paper is then made an order of Court,
res
judicata
is established on the just amount payable as
mainte­nance. A Court may order variation of its own order only
on the limited grounds
available at common law or in terms of Uniform
Rule of Court 42(1).
Section 8(1)
relaxes the principle of the
immutability of judgments. On the canon of construction that an Act
of Parliament is to be interpreted
in such a way as to accord with
existing law, s 8(1) should be construed so as to affect the
operation of
res judicata
as little as possible. To allow an ex-spouse freely to attack the
justness of the divorce order could open a door to abuse of the
Court
process. A litigant who finds himself in difficulties in the divorce
could agree to an un­favour­able settlement in
the knowledge
that he could later, under the guise of the variation, undo the
settlement agreement. Apart from the objections in
principle, it is
from a practical point of view highly undesirable that a court (not
being a Court of appeal) should rule on the
correctness or justness
of another court’s order. Such an inquiry would require evidence as
to all the factors relevant to the
previous order. As the instant
case demonstrates, this could lead to a lengthy rehash of the
divorce. A court could find it difficult
to decide what motivated the
parties to sign a settlement agreement; or to identify and define all
the factors relevant to the justness
of the order.
There
are, it appears, obvious and grave objections, both in principle and
from a practical point of view, against allowing an applicant
in a
s 8(1) variation enquiry not only to reopen the divorce action,
but also to raise the considerations which influence the
parties to
sign the consent paper.’
In
his note on the
Claassens
decision,
14
Hahlo made the following point:
‘
Where
the parties have agreed that their maintenance agreement shall be
final, the courts will, as a general rule, give effect to
it, and it
is only in the most exceptional circumstances–years have passed
since the divorce and the change in the circumstances
of the parties
has been such as to cry out to high heaven for a variation of the
original maintenance order–that they will vary
the original order.
Even
more emphatic are the further remarks of the learned author later in
the same note:
15
‘
I
have suggested that even where a non-variation clause forms part of
an agreement which provides for periodical payment of maintenance
only, the court, while retaining the power of variation, should
exercise it only in exceptional circumstances. The circumstances
will
have to be even more exceptional where the provision as to the
payment of maintenance forms part of a comprehensive “package
deal”, providing for the payment of a lump sum or a property
transfer, as well as for the payment of maintenance, and this, it
is
suggested, applies even where the agreement does not contain a
non-variation clause.’
In
my view, similar considerations apply to the present situation.
While the present consent paper does not contain a non-variation
clause as such, it is clear from the terms thereof that the parties
– through a process of give and take – arrived at an overall
compromise, which was embodied in their consent paper as a ‘package
deal’. The desire to achieve a clean break between the
parties
after a period of three years is evident from the terms thereof,
read as a whole. In these circumstances, a court should,
in my view,
be slow to find that ‘sufficient reason’ exists for the
variation of the original maintenance order.
In
the present matter, the applicant sought to explain what motivated
her to sign the consent paper subject to an unexpressed
reservatio
mentalis.
In this regard, as I have shown above, the case made
out by the applicant in her founding affidavit to justify the
radical variation
of the original consent paper rests upon an
extremely shaky factual foundation inasmuch as she originally sought
to suggest that
it was only
after
the divorce that her health
declined and she was diag­nosed as suffering from ‘Bipolar
Mood Disorder Type 2, with recurrent
major depres­sive
episodes’. As demon­strated by the respondent, these
allegations by the applicant do not bear scrutiny.
Her attempts, in
her replying affidavit, to explain or to rationalise her earlier
misstatement were unconvincing.
On
the facts as stated by the applicant, therefore, I am not satisfied
that she has succeeded in showing any material change in
the
respective positions of the parties to justify the variation she
claims, nor have I been persuaded that sufficient reason for
the
variation of the present consent paper has been shown. On the
contrary, I am of the view that there are further cogent reasons
why
the consent paper ought
not
to be varied. This is so, not
only for the reasons set out above, but also because the applicant
has, in my view, waived her right
to claim extended maintenance
beyond the period as set out in the consent paper.
Waiver
It
is settled law, since the decision of the Appellate Division in
Schutte v Schutte
,
16
that a waiver of the right to apply in terms of s 8(1) of the
Act for a variation of a maintenance order contained in a consent
paper in a divorce action, is not contrary to public policy. (In
that case, the relevant clause stipulated that the maintenance
payable by the one party to the other would not be subject to any
increase or reduction.)
It
is true, as argued on behalf of the applicant herein, that the onus
rests on the party relying on waiver to prove that the other
party
has waived his or her rights, and that waiver is not lightly
presumed.
17
Nonetheless, as pointed out by Nienaber JA in
Road Accident
Fund v Mothupi
,
18
the question whether or not a party has waived a right is first and
foremost a matter of intention and the test to determine intention
to waive is an objective one:
‘
[16]
…That means, first, that intention to waive, like intention
generally, is adjudged by its outward manifestations…; secondly,
that mental reservations, not communicated, are of no legal
consequence…; and, thirdly, that the outward manifest­ations of
intention are adjudged from the perspective of the other party
concerned, that is to say, from the perspective of the latter’s
notional alter ego, the reasonable person standing in his shoes.’
19
In
support of her denial that she had waived her right to apply for a
variation of the maintenance order in this case, the applicant
relied heavily on the judgment of Roux J in
Purnell v
Purnell
,
20
where it was held that the court has the power in terms of s 8(1)
of the Act to shorten or extend the period during which
maintenance
is payable if circumstances justify it.
21
In that matter, however, there was no consent paper between the
parties. Instead, the trial court, after a ‘protracted hearing’,
issued an order in terms of s 7(2) of the Act, directing the
former husband to pay maintenance to his former spouse for a
period
of two years. The position is therefore entirely distinguishable
from the present matter, as the potential problem of the
court
making an agreement for the parties did not arise in
Purnell
.
In any event, Roux J’s judgment was set aside on appeal to the
Appellate Division in
Purnell v Purnell
,
22
because the preliminary point submitted to the court
a quo –
namely whether s 8(1) of the Act permitted a court to
extend the period of operation of a maintenance order – was held
to
be irrelevant in the light of the circumstances of that case. The
Appellate Division accordingly did not find it necessary to deal
with the merits of the decision of the court
a quo
.
Counsel
also relied on the cases of
Girdwood v Girdwood, supra
,
Davis
v Davis
,
23
and
Hoal v Hoal.
24
Comparisons were made,
inter alia
, between relevant clauses
of the consent papers in those matters and those of the consent
paper in the present matter. In this
regard, it bears repetition
that limited assistance can be obtained from considering the terms
of agreements which featured in
other cases and that each case must
be decided on its own facts.
25
In any event, this matter has important features which distinguish
it from the
Girdwood
and
Davis
matters. In the consent
papers in both those matters, the parties agreed that the one party
would pay maintenance to the other in
a fixed amount
until death
or remarriage
. In both cases, it was in issue whether a clause
in the consent paper to the effect that the consent paper
constituted a full and
final settlement of all the issues between
the parties and that they would have no further claims against each
other, precluded
a variation of the
amount of maintenance
pay­able by the one party to the other. In both cases, it was
held that the respective applicants had not waived their rights
to
claim an increase in maintenance in future. This is not the
situation that pertains here. To my mind, there is a distinct
difference
between a consent paper where provision is made for
payment of maintenance in a fixed amount until the former spouse’s
death,
remarriage or co-habitation, as in
Girdwood
and
Davis
,
and a consent paper that provides for payment of a fixed amount of
maintenance
and
, in express terms, for a limited period, as
here.
26
The
third decision, which bears a closer resemblance to the facts of the
present matter, is the judgment of McLaren J in
Hoal v Hoal,
supra.
In that matter, the consent paper provided
inter
alia
for the payment of ‘rehabilitative mainte­nance’ by
the husband to the wife at the rate of R3 000 per month for 24
months commenc­ing from the date of divorce; R100 000
interest free, within a period of two years commencing from the
date
of divorce; R4 000 on the granting of the divorce; R3 000
30 days after the granting of the divorce; as well as
a maximum
amount of R2 500 for ‘educational courses’ for the wife. In
addition, the husband undertook to retain the wife
on his medical
aid policy for a period of five years or her earlier remarriage.
The
consent paper also contained the following provisions:
‘
10.
General
10.1 This
agreement contains all the terms and conditions of the agreement
between David and Sylvia and shall be binding upon them
on signature
by them both.
10.2 No
variation of or abandonment or waiver of rights or obligations shall
be binding unless contained in this agreement or subsequently
reduced
to writing and signed by David and Sylvia.
10.3 Save
as is provided in this agreement, neither David nor Sylvia shall have
any further claims against the other and hereby waives
and abandons
all and any such claims.’
Before
the expiry of the period of 24 months referred to in the consent
paper, the former wife launched an application to extend
the period
of 24 months for an indefinite period and to increase the monthly
amount of maintenance from R3 000 to R5 500.
The
preliminary question that had to be decided was whether the
applicant
was entitled to bring the
application at all or whether she was contractually precluded from
applying for a variation of the terms
of the consent paper. In the
course of his judgment on this prelimi­nary issue, McLaren J
held
that a court does indeed have the power in terms of
s 8(1) of the Act, not only to increase or reduce the amount of
maintenance,
but also to vary the period during which it is
payable.
27
The only authority referred to in support of that conclusion was the
decision of Roux J in
Purnell.
28
With
respect to McLaren J, I do not find his reasoning helpful to a
resolution of the present issue. In the first place, as
noted above
and as the learned judge himself pointed out,
29
limited assistance can be obtained from considering the terms of the
agree­ments which featured in other cases and each case
must be
decided on its own facts. Secondly, there is at least one
significant difference between the terms of the consent paper
in the
present case that distinguishes it from the consent paper in that
case: In clause 3 of the consent paper in this matter,
it was
expressly recorded that after the main­tenance period of 3
years, the pay­ment of maintenance ‘
shall cease
on the
1
st
day of February 2006’
(my emphasis). The
meaning of ‘cease’ is clear and unambiguous: ‘stopping,
ending, discontinue, come to or be at an end, no
longer exist’.
30
The word ‘cease’ is in fact the exact opposite of ‘continue’,
and leaves no room for the possibility that the period of
the
duration of the maintenance obligation can be extended. The consent
paper in
Hoal
did not contain this word or a similar word or
phrase.
In
any event, McLaren J did not refer to the fact that the
Purnell
judgment of Roux J had been overturned on appeal (albeit on
different grounds), nor did he refer to any of the persuasive
comments of Didcott J in
Claassens, supra
. In the
circum­stances, to the extent that the reasoning in
Hoal
appears to lead to a different conclusion from the one reached by me
above, I respectfully disagree with it.
Applying
the above test to the relevant provisions of the consent paper under
consideration in this case, I am satisfied that the
applicant had
indeed waived her right to claim maintenance from the respondent
beyond the period of three years as agreed. The
terms of clause 3,
read with clause 7, stipulate quite specifically that maintenance
will be payable for a period of three years,
until the 1st day of
February 2006, after which it ‘shall cease’. On the evidence
before the court the applicant was well aware,
when she signed the
consent paper, of the relevant considerations – including her
unemployment due to ill health, which ill health
was caused by a
permanent condition present since birth. In the circumstances, the
alleged mental reservations to which the
applicant
referred in her founding affidavit are of ‘no legal consequence’
in the circum­stances.
31
Counsel
for the applicant also sought to find support for his argument
against waiver in the wording of clause 3 of the consent
paper,
where it was recorded in the introductory paragraph that the parties
‘agree to the following financial arrangements
for the
foreseeable future
’ (my emphasis). Counsel argued that these
words evinced an intention that the agreement between them would not
be a final and
binding one.
I
do not find this argument persuasive. In my view, the words in
question must be read in the context of the agreement as a whole.
The terms of clauses 3 and 7, to which I have referred above, are
clearly the dominant terms and amount, in my view, to a waiver
by
the applicant to claim maintenance for any period beyond the
original period of three years, as stipulated in the agreement.
Conclusion
For
the reasons set out above,
the application is
dismissed
with costs.
B
M Griesel
Judge of the High Court
1
‘8(1)
A maintenance order … made in terms of this Act, may at
any time be rescinded or varied or … suspended by a court if the
court
finds that there is sufficient reason therefor.
’
2
Copelowitz v Copelowitz
1969 (4) SA 64
(C) at 74B. See also
Hahlo ‘Non-variation clauses in maintenance agreements: a
commentary on
Claassens v Claassens’
(1981) 98
SALJ
330
at 339.
3
Section 1
sv
‘maintenance order’.
4
See Hahlo
The South African Law of Husband and Wife
(5ed
1995) at 364 and cases referred to in n57; 16 Lawsa (1
st
reissue, 1998)
sv Marriage
para 201;
Osman v Osman
1992 (1) SA 751
(W) at 754H–I.
5
Clark (ed)
Schäfer
Family Law Service
at C32 and the
cases referred to in n17;
Roels v Roels
[2003] 2 All SA 441
(C) para 17.
6
Levin v Levin
1984 (2) SA 298
(C) at 303D–G.
7
See eg
Roos v Roos
1945 TPD 84
at 88;
Hancock v Hancock
1957 (2) SA 500
(C) at 501;
Levin v Levin
1984 (2) SA 298
(C)
at 303G–H;
Reid v Reid
1992 (1) SA 443
(E) at 445J–446A.
8
1988 (2) SA 438
(T) at 445C–F.
9
Id.
10
Laws v Rutherford
1924 AD 261
at 264 per Innes CJ.
11
Cf eg
Reid v Reid,
n7 above at 447A–B;
Botha v Botha
2005 (5) SA 228
(W) at 233G–234E.
12
1981 (1) SA 360
(N) at 371A–E.
13
Supra
at 447B–G.
14
See n 2 above at 339.
15
Id
at 340
in fin
.
16
1986 (1) SA 872
(A). See also 16 Lawsa (1
st
reissue,
1998)
sv Marriage
para 195.
17
Girdwood v Girdwood
1995 (4) SA 698
(C) at 708B–D and cases
referred to therein.
18
2000 (4) SA 38
(SCA) para 15.
19
Other case references omitted.
20
1989 (2) SA 795
(W).
21
At 797G–H.
22
[1993] ZASCA 22
;
1993 (2) SA 662
(A).
23
1993 (1) SA 621
(C).
24
2002 (3) SA 209
(N).
25
Hoal v Hoal, supra
, at 214A.
26
Cf para below.
27
At
214C.
28
Cf para above.
29
At 214A.
30
See: The Shorter Oxford English Dictionary (Vol I, at pp 364, 365).
31
Cf
Mothupi’s
case,
supra, loc cit.