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[2003] ZASCA 5
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Cohen v Cohen (born Coleman) (010/2002) [2003] ZASCA 5; 2003 (3) SA 337 (SCA) (3 March 2003)
REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case Number : 010 / 2002
In the matter between
ROY SELWYN COHEN Appellant
and
BRENDA COHEN (born Coleman) Respondent
Composition of the Court OLIVIER, BRAND and
CONRADIE JJA
Date of hearing
: 1 NOVEMBER 2002
Date of delivery
: 3 MARCH 2003
SUMMARY
Maintenance - Variation of part of Supreme Court order by
maintenance court - whether whole order is varied.
________________________________________________________________
J U D G M E N T
________________________________________________________________
OLIVIER JA
[1]
The crisp question in this appeal is whether
an order made by a maintenance court (
ie
a magistrate's court)
varying the amount of maintenance payable by the appellant to the
respondent in terms of a previous Supreme
Court order issued in a
divorce action and incorporating a consent paper entered into between
the parties, also varied and in effect
eliminated a '
dum
casta
'
clause which was a part of the consent paper and
consequently of the divorce order made by the Supreme Court. The
issue turns on
the interpretation of the order made by the
maintenance court.
[2]
In February 1995 the parties were divorced
and a consent paper signed by them was incorporated in the divorce
order issued by the
Cape of Good Hope Provincial Division of the
Supreme Court. It provided
inter alia
for the payment of
maintenance by the present appellant ('the plaintiff') to the present
respondent ('the defendant').
[3]
The relevant clause reads as follows:
'4. MAINTENANCE FOR DEFENDANT:
(a) Plaintiff shall maintain Defendant with effect from the date of
her vacating the former common home in terms of sub-paragraph
5.3
hereinbelow and thereafter on the 1
st
day of each and
every succeeding month until her death or remarriage or until she
shall live together as husband and wife with another
man for a period
aggregating more than 6 months in any calendar year or alternatively
9 months in any period of 3 years, by:
(i) effecting payment of the sum of R3 000,00 per month, and such sum
shall be increased or decreased on each anniversary of the
date of
the granting of a Final Order of Divorce on a percentage basis in
accordance with such rise or decline as has occurred in
the Consumer
Price Index in respect of the Republic of South Africa, as notified
by the Central Statistical Service from time to
time, based on the
twelve urban areas as reflected in the middle income group for a
period of 1 year expiring on the last day of
the month preceding the
aforesaid anniversary date;
(ii) effecting payment of all reasonable medical, dental,
pharmaceutical (incurred on doctors' prescriptions), surgical,
hospital,
orthodontic, ophthalmic (including the provision of
spectacles and/or contact lenses) expenses or medical treatment
reasonably incurred,
but excluding any form of cosmetic or prosthetic
surgery;
(iii) effecting payment of the servicing costs in respect of the
motor vehicle utilised by Defendant from time to time;
(iv) replacing the said motor vehicle presently utilised by Defendant
in 5 years time and every 5 years thereafter with a motor vehicle
equivalent to a Toyota Corolla automatic of approximately 2 litres in
engine capacity. Plaintiff shall be entitled to purchase
such
vehicle second hand provided it shall be no more than 15 months old;
(v) effecting payment of the levies on such townhouse as Defendant
and the minor children may from time to time occupy. This
obligation
shall continue for so long as at least one of the minor
children formally reside with Defendant or until his liability to
maintain
Defendant terminates, whichever event shall first occur.'
[4]
The phrase in contention is the one in the
introductory portion of paragraph 4 of the consent paper
viz
that maintenance is payable by the plaintiff to the defendant 'until
her death or remarriage or until she shall live together as
husband
and wife with another man for a period aggregating more than 6 months
in any calendar year or alternatively 9 months in any
period of three
years.' I will refer this phrase as the
dum casta
condition.
[5]
The consent paper and divorce order gave rise
to a series of opposed applications and counter-applications between
the parties.
In 1997 the plaintiff approached the maintenance
court. He requested the total discharge of his maintenance
obligation because
the defendant was now employed and did not require
maintenance payments from him. The defendant counter-applied for an
increase
of the maintenance. Magistrate Ludick who heard the
application and counter-application, reduced the maintenance payable
by the
plaintiff to the defendant from R 3 000 to R 1 500 per month.
[6]
In May 1998 the plaintiff once again
approached the maintenance court, seeking an order against the
defendant for payment of maintenance
for their two children (who were
in his custody) in the sum of R1 000 per month per child. The
defendant launched a counter-application,
seeking a variation of the
existing maintenance order,
ie
the order made by magistrate
Ludick in January 1998, by increasing the amount of maintenance
payable to herself from R1 500 to R3
500 per month plus payment of
her medical expenses.
[7]
At the end of a hearing lasting four days,
the presiding magistrate, Mr Venter, made the following order :
'
ORDER
In regard to the Applicant's
(
ie
the
plaintiff's)
application for maintenance for the two children,
NO ORDER IS MADE
.
In respect to the Respondent's (
ie
the
defendant's)
application for variation, the Court Orders that
the Maintenance Order of the High Court, Cape of Good Hope,
Provincial Division
dated the 10
th
of February 1995 as
varied by the Order of the Magistrate, Cape Town on the 15
th
of January 1998,
IS VARIED
by the substitution thereof with
the following Order:
ORDER
The Defendant, Roy Selwyn Cohen, is
ORDERED
to pay the sum of
R3 500
per month as maintenance for the Complainant, Mrs
Brenda Cohen. Such Order to operate retrospectively from the 1
st
December 1998 and thereafter on the 1
st
day of each
succeeding month. Such sum shall be increased or decreased in
accordance with the Order set out in paragraph 4.1(i)
of the Consent
Paper. Clauses 4.1(ii) to (iv) of the Consent Paper also remain in
force. All payments are to be made directly
to Mrs Cohen.'
[The references to paragraph 4.1 should read 4 (a)]
[8]
In January 2000 the plaintiff instituted
action against the defendant in the Cape of Good Hope Provincial
Division of the High Court.
In his amended particulars of claim,
the plaintiff referred to the
dum casta
condition mentioned
above, averred that the defendant had violated the said condition by
living together as husband and wife with
another man, and concluded
that he was consequently relieved of his obligation to pay
maintenance to the defendant. He prayed for
a declaratory order to
that effect, including an order for the repayment of all maintenance
payments made after 1 January 2000.
[9]
The main defence raised by the defendant, and
the only matter now before this Court, was that the
dum casta
condition ceased to be of any force and effect by virtue of the
substitution of clause 4 (a) of the consent paper by the aforesaid
order of the maintenance court (per magistrate Venter) on 21 December
1998, quoted above.
[10]
On behalf of the defendant it was argued in
the court
a quo
and in this Court that the effect of the order
made by magistrate Venter was to delete the
dum casta
condition.
In the court
a quo
Comrie J was persuaded by the arguments
submitted on her behalf. The appeal is before us with his leave.
[11]
It is not necessary to repeat all the
arguments presented by counsel appearing for the parties in this
Court or the reasoning of
Comrie J in the court
a quo
. In my
view it is clear that the appeal must succeed, for the reasons set
out below.
[12]
Firstly, it is obvious that the variation
order made by magistrate Venter was limited to a variation of the
amount of maintenance
payable and was never intended to deal with,
vary or delete the
dum casta
condition. It is a significant
feature of the magistrate's judgment and order that he nowhere
alludes, even faintly or
en passant
, to the
dum casta
condition. All the evidence led before the magistrate related to
the parties' standard of living and their expenditure and needs.
The existence, deletion or survival of the
dum casta
condition
was never raised. It was not one of the issues which the magistrate
was called upon to determine, nor did it have any
bearing on the
issue which he was called upon to determine. This is reflected in
the order made, because it makes no reference
to paragraph 4(a) of
the consent paper, which contains the
dum casta
condition.
Only sub-paragraphs (i) to (iv) of paragraph 4 (a) of the consent
paper were referred to, sub-paragraph (i) being the
only paragraph
which contained the terms which were in issue before the magistrate.
[13]
It is also significant that magistrate
Venter expressly recorded that 'clauses 4 (a) (ii) to (iv)' of the
consent paper 'remain in
force'. These sub-paragraphs require an
introductory paragraph in order to make grammatical sense. This
introductory paragraph,
viz
par 4(a), was not varied or
substituted by the magistrate and, it follows, remains in force.
[14]
Consequently, one must give a common sense
interpretation to the judgment and order made by the magistrate.
The point of departure
is to identify the issue between the parties
that the maintenance court has been called upon to decide and then to
compare the order
made with that issue. If there is any ambiguity,
the order should be interpreted restrictively, so as to be limited to
the said
issue. The analogy with the basic principle of statutory
interpretation,
viz
that the statute must be restrictively
interpreted having regard to its object and rationale, is both
convincing and obvious (see
eg
Hira and Another v Booysen
and Another
1992 (4) SA 69
(A) at 78 C - D;
Barclays Zimbabwe
Nominees (Pvt) Ltd v Black
[1990] ZASCA 92
;
1990 (4) SA 720
(A) at 726 D - E;
Engels v Allied Chemical Manufacturers (Pty) Ltd and Another
1993
(4) SA 45
Nm HC);
Plaaslike Oorgangsraad, Bronkhorstspruit v
Senekal
2001 (3) SA 9
(SCA) at 18 J - 19 A;
S v Radebe
1988 (1) SA 772
(A) at 778 C - G and see
Administrator, Cape, and
Another v Ntshwaqela and Others
1990 (1) SA 705
(A), at 715 F
et
seq
;
Firestone South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 928
(A) at 304 D - H).
[15]
But reliance was also placed on behalf of
the defendant on ss 16(1)(b)(i) and 22 of the Maintenance
Act 99 of 1998 ('the
Act').
Section 16(1) outlines the powers of a maintenance
court. It provides that after considering the evidence adduced at
the enquiry,
the maintenance court may
'(b) in the case where a maintenance order is in force -
(i) make a maintenance order contemplated in paragraph
(a)(i)
in substitution of such maintenance order
;
or
(ii) discharge such maintenance order; or
(c) make no order.'
(My emphasis)
Section 22 reads as follows:
'
22
.
Notice of substitution or discharge of
maintenance orders. -
Whenever a maintenance court -
(a) makes an order under section 16 (1) (b) in substitution of a
maintenance order; or
(b) discharges a maintenance order under section 16 (1) (b),
the maintenance order shall cease to be of force and effect
,
and the maintenance officer shall forthwith give notice of the
decision to the registrar or clerk of the court in the Republic where
the maintenance order was issued or where the sentence concerned was
imposed, as the case may be, who shall deal with the relevant
records
or registers in the prescribed manner.'
(My emphasis)
[16]
The argument proceeded on the basis that the
order made by magistrate Venter totally replaced the order made by
the High Court, with
the result that the
dum casta
condition,
since it was not repeated, also fell away. The absurdity of this
argument if taken to its logical conclusion is obvious.
Does a mere
variation order of the amount of maintenance payable bring about that
an obligation to deliver certain items of furniture
or transfer a
residence automatically falls away if it is not expressly repeated
and confirmed by the maintenance court when it varies
the amount of
maintenance payable? Faced with the absurdity of this consequence,
Ms Gordon-Turner, who appeared for the defendant,
argued that the
dum
casta
clause was an inherent and indivisible part of the
maintenance order and that a variation order that varied the amount
of maintenance
payable in effect substituted the whole of the consent
paper and the divorce order incorporating it, which then ceased to be
of any
force and effect. Reliance was placed on a passage in the
judgment in
Purnell v Purnell
[1993] ZASCA 22
;
1993 (2) SA 662
(A) at 667 I -
668 A, where it was said:
'Counsel for the plaintiff sought to argue, albeit faintly and as a
last resort, that the magistrate's order did not replace the
whole of
the maintenance order made in the WLD in the divorce action but only
that part of it fixing the monthly amount payable.
That, so the
argument ran, had been the common intention of the parties before the
magistrate and again in the proceedings before
Roux J and Zulman J.
The argument is untenable. It flies in the face of the underlying
rationale of the
Maintenance Act, which
contemplates the
replacement
of the previous order and not its amendment, and in any event lacks
any factual foundation in the papers.'
[17]
However, the question posed in the present
case is quite different. It does not relate, as was the position in
Purnell,
to the effect that a variation of the
amount
payable
has on the previous order relating to the
amount
payable
, but to a completely different question,
ie
whether a variation of the
amount payable
also affects another
part of the consent paper which does not deal with the
amount of
maintenance
payable, but with other terms and conditions.
[18]
The principle is clear : the existing
Supreme or High Court order ceases to be of force and effect, but
only insofar as the order
of the maintenance court expressly or by
necessary implication replaces such order. In the present case the
effect of the order
of the maintenance court was to vary the amount
of maintenance payable. It did not deal expressly or by necessary
implication with
the resolutive conditions in clause 4(a), and they
remain of full force and effect.
[19]
In argument before us, various other matters
were touched upon by counsel,
inter alia
the question whether
the whole of the order made by the Supreme Court, incorporating the
consent paper, has now become an order of
the maintenance court or
whether it remains a Supreme Court order. This question relates to
the jurisdiction of the High Court
to issue a declaratory order in
respect of the
dum casta
clause. However, this question was
not in issue before us, and it would be unwise to express an opinion
on it. It is also clear
that the judgment of the Constitutional
Court in
Bannatyne v Bannatyne
, delivered on 20 December 2002
does not affect the conclusion reached herein.
[20]
The following order is made:
1 The appeal is upheld with costs.
2 The defence raised by the defendant in paragraphs 2.1
to 2.3 of her Plea to the plaintiff's Amended Particulars of Claim
dated 15
October 2001 is struck out.
3 The costs of the hearing before Comrie J in the court
a quo
and of the application for leave to appeal will by
agreement between the parties stand over for decision by the court
hearing the
merits of this matter.
P J J OLIVIER JA
CONCURRING:
BRAND JA
CONRADIE JA