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2024
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[2024] ZAECELLC 36
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C.E v N.E (EL 1710 / 2022) [2024] ZAECELLC 36 (9 July 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY
– Maintenance –
Variation
–
Interpretation
of order – Applicant’s position is that amount was for
accommodation only – Respondent contends
that amount is for
maintenance and accommodation – Background to order
considered – Respondent was meant to seek
and obtain
accommodation for herself and children – Cash maintenance
order – Not meant to cover accommodation
costs only –
Order varied – Maintenance ordered in sum of R4,000 per
month – Uniform Rule 43(6).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case
No: EL 1710 / 2022
In
the matter between:
C[…]
E[…]
Applicant
and
N[…]
M[…]
E[…]
Respondent
JUDGMENT
BODLANI
AJ
[1]
The applicant applies, in terms of uniform rule 43(6), for the
variation of an order granted by Norman J in an application in
terms
of uniform rule 43 on 11 April 2023 (“the order”). The
variation sought is for the deletion of paragraph 9 of
the order. In
full, the order provides:
1.
The residence of the minor children, namely, MJ E, a boy born on
[….], CL E, a boy born on [….] SC E, a girl born
on
[….] and RJ E, a boy born on. […..] (“the minor
children”) be shared between the Applicant and the
Respondent,
with change-over to take place on a Friday.
2.
Alternate short school holidays, being March/April and
September/October with the two holidays to alternate annually.
3.
The June/Jully holidays shall be alternated annually as follows:
3.1
2023 the Applicant shall have the minor children for the first two
weeks (14 uninterrupted days) and the Respondent shall have
the minor
children for the remaining week of the three-week holiday;
3.2
2024 the Respondent shall have the minor children for the first two
weeks (14 uninterrupted days) and the Applicant shall have
the minor
children for the remaining week of the three-week holiday.
4.
The December/January holidays shall be alternated annually as
follows:
4.1
2023 the Applicant shall have the minor children for the first two
weeks (14 uninterrupted days);
4.2
The Respondent shall have the minor children for the next three weeks
(21 uninterrupted days);
4.3
The Applicant shall have the minor children for the final week until
the minor children return to school/tertiary facility;
4.4
2024 the Respondent shall have the minor children for the first two
weeks (14 uninterrupted days);
4.5
The Applicant shall have the minor children for the next three weeks
(21 uninterrupted days);
4.6
The Respondent shall have the minor children for the final week until
the minor children return to school/tertiary facility.
5.
Additional contact in relation to Public Holidays, father’s
Day, Mother’s Day, Applicant’s birthday and respondent’s
birthday shall be discussed, planned and agreed to, by the parties
together with the minor children, and shall be implemented in
accordance with such plans and/or agreements.
6.
The minor children shall have the right to have telephonic contact
with the Applicant and Respondent at any time they wish.
7.
For half of the available time on the minor children’s
birthday.
8.
The Respondent is directed
pendente lite
to:
8.1
retain the Applicant and minor children on his current medical aid
and benefit scheme and pay the monthly premiums in respect
thereof.
8.2
pay 100% of any and all reasonable and necessary medical costs for
the minor children and the Applicant which are not covered
by the
said medical aid benefit scheme, such costs to include, but not
limited to all medical, dental, ophthalmic, and allied expenses,
including all costs of hospitalisation, surgical treatment,
spectacles and prescribed medication;
8.3
pay 100% of the educational costs and expenses of the minor children,
such to include but not limited to school fees, school
excursions and
cultural and sporting tours, school uniforms and clothing, books,
stationery and electronic equipment and the costs
and expenses
incurred in relation to any and all extra mural and sporting
activities, including the clothing and equipment relating
thereto;
8.4
pay all other fixed living expenses as are currently paid by him,
including but not limited to:
8.4.1
bond instalments;
8.4.2
rates and utilities at the matrimonial home;
8.4.3
insurances for the matrimonial home, contents and vehicles;
8.4.5
the monthly premiums for C Fit and Virgin Active;
8.4.6
the monthly premiums for the Telkom and Multi Choice for the
matrimonial home;
8.4.7
the Applicant’s monthly cell phone contract.
9.
The Respondent is directed to pay maintenance to the Applicant for
herself and the minor children in the amount of R15 000.00
(Fifteen Thousand Rand) per month to enable the Applicant to secure
suitable accommodation.
10.
The Respondent is directed to make payment of the monthly mortgage
bond instalment, insurance premiums, rates and utilities
on the
jointly owned immovable property situate at 5[…] M[…]
Road, London, United Kingdom.
11.
The costs of this application are reserved for determination by the
trial court in the divorce proceedings.
[2]
I need not dwell much on the history of this matter. The facts are
common cause. Only where it is necessary and for context
shall I
venture into the background facts.
In
EH
v SH
[1]
the Supreme Court of Appeal held that it will only be just for a
maintenance order to be issued by a court where a party applying
for
the relief can establish a need to be supported by the other spouse.
[3]
This being an application for the variation of a maintenance order, I
approach the matter on the basis that the need for maintenance
and by
extension, for the payment to the respondent of R15 000.00
(fifteen thousand rand) per
month, was established before Norman J. Otherwise, the applicant
would not have been ordered to pay
it.
[4]
There are 4 (four) children born of the marriage between the parties.
They are
MJ E
and
CL E
, twin boys born in 2005;
SC
E
, a girl born in 2007; and
RJ E
, a boy born in 2011.
Unless when specifically dealing with matter that relates to a
specific child, I refer collectively to the
parties’ children
simply as “the children”.
[5]
At the time of the institution of the divorce proceedings, in October
2022, the children resided with the parties in the matrimonial
home.
The older boy children were studying at Selborne College. The last
born child was enrolled at Selborne Primary whilst the
girl child,
SC
E
, was studying at Clarendon. Among others, in the application
that led to the order of Norman J, the respondent pleaded thus:
“
it
is no longer an option for me the respondent and I to share the
matrimonial home” and “I have to seek alternative
suitable accommodation for them and me in due course, depending on
the decision of this Court”.
[6]
In view of the respondent’s then impending move out of the
matrimonial home, she went about in search of available suitable
accommodation for her and the children
.
She found suitable accommodation in the amount of R15 000.00
(fifteen thousand rand). Out of the R15 000.00 (fifteen
thousand
rand), she allocated R5 000.00 (five thousand rand) for herself and
R2 500.00 (two thousand five hundred rand) for each
child. This
appeared in the schedule of necessities that she attached to her
application for relief in terms
of
uniform rule 43
.
[7]
The applicant
contends that since the grant of the order, circumstances have
changed. This too is common cause. Even though
MJ
E
and
CL
E
no longer reside in the
matrimonial home, they do not reside in accommodation that has been
sought and secured by the respondent.
They are students at the
University of Pretoria. In keeping with paragraph 8.3 of the order of
Norman J, the applicant is responsible
for their tuition and boarding
fees. The position in regard to
SC E
and
RJ E
has
not changed. They still reside in the matrimonial home.
[8]
The position of the respondent has also changed. She left the
matrimonial home in June 2022. She has not found accommodation
of her
own and currently lives with her partner. Even though she left the
matrimonial home, the respondent still gets to see the
children.
According to her, she works until 13h00 one week and until 16h00 each
alternate week. When she works until 13h00, she
collects
SC E
and
RJ E
from school, takes them to their extra murals and
provides for them. She also earns about R4 000.00 (four thousand
rand) more
than she did at the time of the grant of the order.
[9]
Ms. Watt,
for the applicant, contended that paragraph 9 of the
order was for the applicant to pay towards the accommodation needs of
the respondent
pendente lite
. Now that the respondent has left
the matrimonial home, alone, to live with her partner, in her
partner’s accommodation,
and does not pay for it, paragraph 9
of the order serves no other purpose but to unduly enrich the
respondent at the expense of
the applicant.
[10]
For her part,
Ms. Beard
for the respondent argued that there
is more to paragraph 9 of the order than just accommodation. The
order envisages that the
applicant would pay towards the maintenance
of the respondent and the children. It also makes provision for its
use towards accommodation
for the respondent and the children,
contended
Ms. Beard
.
[11]
In an application such as this, the responsibility to prove the
change in circumstances lies with the applicant. Where the
extent of
the change contended for by the applicant is in dispute, the
respondent has an evidentiary burden, to place before court
material
which militates against the variation sought by the applicant. It is
unavailing to the respondent simply to disagree with
the applicant.
Unfortunately,
the respondent’s
affidavit does not state how much is the average and/or exact expense
does she incur in regard to the collection
of
SC
E
and
RJ
E
from school, taking them to their
extra murals and providing for them in this regard.
[12]
To decide the extent of the variation each party contends for, it is
important first to understand the meaning of the order
sought to be
varied. This is because the applicant’s position is that the
amount
R15 000.00
(fifteen thousand rand)
implicated
in paragraph 9 was for accommodation only. The respondent comes from
a different position altogether, it being her contention
that the
said amount is for her maintenance, that of the children and for
their accommodation as well. On this basis, the respondent
accepts
the need for variation and contends for the reduction of the amount
of R15 000.00 (fifteen thousand rand) to R11 000.00
(eleven
thousand rand) per month.
[13]
The law on the interpretation of court orders has evolved with the
law on the interpretation of contracts, statutes, documents,
or other
instruments. In
Firestone
South Africa (Pty) Ltd v Genticuro AG
,
[2]
the Appellate Division (as it then was) set out the approach to
interpretation, the effect of which was that a court first looked
to
the plain meaning of the order (and if there was a reasoned judgment,
the reasons for such order) to ascertain the meaning of
the order. If
there was ambiguity in the meaning then the court was entitled first
to consider extrinsic evidence “surrounding
or leading to the
order” and, if there was still ambiguity, a court was entitled
to consider “other relevant extrinsic”
evidence.
[14]
Because of the difficulties in
distinguishing between –
“
extrinsic
evidence “surrounding or leading to the order” and “other
relevant extrinsic” evidence; and background
circumstances”
and “surrounding circumstances”, issues which had also
arisen in the interpretation of contracts,
the Supreme Court of
Appeal developed and simplified this approach in the following way:
“
First,
the integration (or parol evidence) rule remains part of our law. …
If a document was intended to provide a complete
memorial of a jural
act, extrinsic evidence may not contradict, add to or modify its
meaning. …
Second,
interpretation is a matter of law and not of fact, and, accordingly,
interpretation is a matter for the court and not for
witnesses (or,
as said in common-law jurisprudence, it is not a jury question …)
Third,
the rules about admissibility of evidence in this regard do not
depend on the nature of the document, whether statute, contract
or
patent …
Fourth,
to the extent that evidence may be admissible to contextualise the
document (since ‘context is everything’)
to establish its
factual matrix or purpose or for purposes of identification, ‘one
must use it as conservatively as possible’
… The time
has arrived for us to accept that there is no merit in trying to
distinguish between ‘background circumstances’
and
‘surrounding circumstances’. The distinction is
artificial and, in addition, both terms are vague and confusing.
Consequently, everything tends to be admitted. The terms ‘context’
or ‘factual matrix’ ought to suffice.
…”
[3]
[15]
The
decision of the Supreme Court of Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[4]
followed
the decision referred to above. The
dictum
in
Endumeni
was
applied by the Constitutional Court in
Airports
Company South Africa v Big Five Duty Free (Pty) Ltd and Others
[5]
when
it was interpreting a settlement agreement which had been made an
order of court.
[16]
Thus, it is permissible for a court to consider relevant evidence
indicating the factual matrix or context in which such order
was
sought. It is no longer necessary or helpful to distinguish between
extrinsic evidence “surrounding or leading to the
order”
(surrounding circumstances) and “other relevant extrinsic”
evidence (background circumstances). A court
is required to consider
the relevant factual matrix to determine the context and purpose.
This approach has been affirmed more
generally in several other
cases, for example by the Constitutional Court
.
[6]
These principles were recently endorsed by the Constitutional Court
in
University
of Johannesburg v Auckland Park Theological Seminary and Another
.
[7]
[17]
Now that I have stated
what the law is, I turn to the interpretative exercise, regard being
had to the law and the facts of the
matter.
To
get to the proper meaning of the order, the inevitable starting point
is the language of the order itself. I have considered
the entire
order, the circumstances attendant upon its coming into existence and
the background to it being the divorce proceedings
between the
parties, the material that served before Norman J, the parties’
respective means as presented before Norman J,
their needs and those
of their children at the time.
[18]
When regard is had to the circumstances attendant upon the coming
into existence of, the background to the order being the
divorce
proceedings between the parties, and the material that served before
Norman J – it is clear that at the time the
respondent intended
to move out of the matrimonial home with the children. She was meant
to seek and obtain accommodation for herself
and the children
because, as she stated before Norman J “……, since
it is no longer an option for the respondent
and I to share the
matrimonial, I now seek an order that the respondent pay a cash
portion of the maintenance to me whilst continuing
to cover the
agreed expenses set out in paragraph 28 above.”
[8]
[19]
Further, in her
sworn
statement filed in support of the application
in terms of uniform rule 43,
the
respondent listed what the envisaged expenses would be, should she
and the children move out of the matrimonial home.
The
expenses were for accommodation, groceries, general household
assistance, transport, entertainment, general maintenance and
upkeep
for her and the children. It is common cause that the children remain
in the matrimonial home, only the applicant has moved
out.
[20]
Given the content of paragraphs 8 and 10 of the order of Norman J, I
am persuaded that the amount of R15 000.00 (fifteen
thousand)
provided for in paragraph 9 of the order is what is colloquially
referred to as “cash maintenance”. It was
granted for
used towards the future accommodation costs of the respondent and the
children. It was also intended for it to cover
food and grocery
expenses at the home in which the respondent intended to move with
the children. It was also intended to cater
for general household
expenses.
[9]
Thus, contrary to
the applicant’s contentions, it was not meant to cover
accommodation costs only.
[21]
The absence, anywhere else in the order other than in paragraph 9, of
a provision for payment to be made for food, grocery
expenses and
other general household expenses; or, for maintenance; and reference
therein to “maintenance’ supports
the conclusion I have
arrived at regarding the meaning of paragraph 9 thereof. This is more
so because in her application in terms
of uniform rule 43, the
respondent had made a claim for food, grocery expenses and other
general household expenses.
[22]
This then brings me to the extent of the variation that I should
grant, so far apart as the parties are in this regard. This
task is
not made easy by the fact that the respondent did not provide any
specifics as to what goes into the amount of R11 000.00
(eleven
thousand) she contended for. In contrast, the basis for the
applicant’s contention for a complete deletion of paragraph
9
of the order is his interpretation thereof. To him, paragraph 9 of
the order was for the respondent to seek and pay for accommodation
for her and the children. She has not done that. Therefore, the
payment is not due.
[23]
Even though in her opposing affidavit the respondent did not provide
any specifics as to what goes into the amount of R11 000.00
(eleven thousand) she contended for, I am mindful that given the
change in circumstances, whatever maintenance she now requires,
it is
mainly for herself. She does not pay for her accommodation, at least
since the grant of the order to date. I am fully cognisant
of the
fact that
when she works until
13h00, she collects
SC E
and
RJ E
from
school, takes them to their extra murals and provides for them. This
occurs, on the respondent’s version, in alternate
weeks. I have
also considered that the respondent earns about R4 000.00 (four
thousand rand) more than she did at the time
of the grant of the
order.
[24]
In the circumstances I vary paragraph 9 of the order by reducing the
amount of
R15 000.00 (fifteen
thousand) by R11 000.00 (eleven thousand) per month. Thus, with
effect from 01 August 2024, the applicant
shall pay a sum of
R4 000.00 (four thousand rand) per month to the
respondent. Accordingly, the following order shall issue:
1.
Paragraph 9 of the order of Norman J, issued on 11 April 2022,
is
varied and shall read as follows:
9.
The Respondent is directed to pay maintenance to the Applicant for
herself and the minor children in the amount of R4 000.00
(Four
Thousand Rand) per month.
2.
The costs of this application shall be costs in the divorce.
A
M BODLANI
ACTING
JUDGE OF THE HIGH COURT,
EASTERN
CAPE DIVISION.
For
the Applicant
:
MS. K. WATT
Intrusted
by
:
MESSRS DRAKE FLEMMER & ORSMOND INC
Attorneys
for the Applicant
Quenera
Office Park
No.
12 Quenera Drive
Beacon
Bay
EAST
LONDON
Tel:
(043) 722 4210
Email:
angus@drakefo.co.za
Ref:
AJ PRINGLE/bb/MAT61019/E172
For
the Respondent
:
MS. M. BEARD
Intrusted
by
:
MESSRS BURMEISTER VICKERS ATTORNEYS
Attorneys
for the Respondent
16
Cecil Lloyd Street
Stirling
EAST
LONDON
Ref:
EAR1/0001
Heard
:
11 June 2024
Delivered
:
09 July 2024
[1]
2012
(4) SA 164 (SCA).
[2]
1977 (4) SA 298
(A).
Firestone
has
subsequently been confirmed in part by the Constitutional Court in
Minister
for Justice and Constitutional Development v Chonco and others
[2010]
ZACC 9
;
2010 (7) BCLR 629
(CC) (8 April 2010), at para 6.
[3]
KPMG
Chartered Accountants (SA) v Securefin Limited and Another
[2009]
ZASCA 7
;
2009 (4) SA 399
(SCA);
[2009] 2 All SA 523
(SCA), at para
39
.
Case
references omitted and paragraphing inserted.
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593 (SCA).
[5]
2019 (5) SA 1
(CC) at para 29.
[6]
Independent
Institute of Education (Pty) Limited v KwaZulu-Natal Law Society &
Others
2020
(2) SA 325
(CC), at para 41.
[7]
(CCT 70/20)
[2021] ZACC 13
;
2021 (8) BCLR 807
(CC) ;
2021 (6) SA 1
(CC) (11 June 2021), para [63] to [69] and [80] to [81].
[8]
Paragraph
31 of the respondent’s sworn statement in support of the rule
43 application.
[9]
Compare
the decision in
Butcher
v Butcher
2009
(2) SA 421
(C), para 17.