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[2020] ZASCA 178
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C B and Another v H B (1324/2019) [2020] ZASCA 178; 2021 (6) SA 332 (SCA) (18 December 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1324/2019
In
the matter between:
C
B
FIRST APPELLANT
SAREL
LOUIS
AUGUSTYN
SECOND APPELLANT
and
H
B
RESPONDENT
Neutral
citation:
C
B and
Another v
H
B
(Case no
1324/2019)
[2020] ZASCA 178
(18
December 2020)
Coram
:
VAN DER MERWE, MOCUMIE and MAKGOKA JJA and
LEDWABA and EKSTEEN AJJA
Heard
:
4 November 2020
Delivered:
This judgment was handed down electronically
by circulation to the parties’ representatives by email, and by
publication on
the Supreme Court of Appeal website and release to
SAFLII. The time and date for hand down is deemed to be 09h45 on 18
December
2020.
Summary:
Family law – interpretation of word ‘remarriage’
in deed of settlement made order of court – means marriage
recognised by law – religious Christian ceremony performed not
remarriage.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Neukircher J) sitting as court
of first instance:
(a) The appeal is upheld.
(b) The order of the
court a quo is set aside and replaced with the following:
‘
1. Paragraph 5.1 of the
settlement agreement between the parties made an order of court on 28
August 2017 is amended/varied to read
as follows and with effect from
date of this order “The Defendant shall pay an all-inclusive
amount of R10 000 (Ten Thousand
Rand) maintenance to the Plaintiff
per month until her death or remarriage and/or cohabitation with
another man in a common law
marriage whichever occurs first.”
2. It is declared that the ceremony
that had been performed in respect of the applicant and Mr R V on 9
December 2017 did not constitute
a remarriage within the meaning of
the said deed of settlement between the parties.
3 The respondent is directed to pay
the costs of the application.’
(c) There is no order as
to the costs of the first appellant and the respondent on appeal.
(d) The respondent is
directed to pay the costs of appeal of the second appellant.
JUDGMENT
Mocumie
JA (Van der Merwe JA and Ledwaba and Eksteen AJJA concurring):
[1]
The marriage of the first appellant, Mr C B, and the respondent, Mrs
H B, was dissolved by a court order incorporating a settlement
agreement which they had concluded. The second appellant, Mr Sarel
Louis Augustyn, acted at all relevant times as the attorney
of the
first appellant. The main issue for determination in this appeal is
the interpretation of the word ‘remarriage’
in the
settlement agreement entered into between the first appellant and the
respondent in the divorce proceedings. The further
issues are whether
the first appellant was in contempt of court and whether the costs
orders of the court a quo, particularly that
the second appellant, be
mulcted with costs
de bonis propriis
,
were justified. The appeal is with leave of this Court.
[2]
The relevant background facts appear from what follows. On 28
February 1987, the first appellant and the respondent were married
in
community of property. They separated in June 2016 with the common
intention to divorce. The respondent then initiated divorce
proceedings against the first appellant. Pending the finalisation of
the divorce proceedings, they entered into negotiations assisted
by
their respective attorneys. In June 2017, they signed a settlement
agreement. Clause 5.1 of the settlement agreement, which
is in
dispute, reads:
‘
The Defendant shall pay an
all-inclusive amount of R10 000.00 (Ten Thousand Rand)
maintenance to the Defendant per month until
her death or remarriage
whichever occurs first.’
In
the court a quo and this Court, the first appellant accepted that the
second reference to ‘Defendant’ was simply
an error and
should read ‘Plaintiff’.
[3]
On 28 August 2017, a decree of divorce, incorporating the signed
settlement agreement, was made an order of the court. After
the
divorce, the respondent cohabited with Mr V. On 9 December 2017,
Reverend van Huyssteen, a minister of the Dutch Reformed Church,
conducted a ceremony during which he blessed and sanctioned their
cohabitation so that they would not ‘live in sin.’
Both
the respondent and Mr V invited friends and relatives to the
ceremony, the photos of which were posted on Facebook by the
respondent with the caption that Mr V was her husband. By 5 March
2019, the date of the hearing in the high court, the respondent,
and
Mr V had already separated.
[4]
At the end of February 2018, the ceremony between the respondent and
Mr V came to the attention of the first appellant. Upon
the advice of
the second appellant, the first appellant stopped paying maintenance
to the respondent on the basis that the respondent
had remarried,
thus ending his duty to maintain her. He stopped payment at the end
of March 2018, which prompted the respondent
to lay a criminal charge
against the first appellant for failure to pay maintenance. On 23
April 2018, the first appellant appeared
in the magistrate court
where he raised the following defence in respect of the charge
proffered against him:
‘
On advice of Counsel and
informing him of the so-called marriage on 9 December 2018, the Court
was informed on the date of appearance
of 23 April 2018 that the
Court Order of the High Court could not be enforced in the Criminal
Court without an attempt to amend/vary
it in terms of legal process
which would in any event be opposed as being moot in the light of the
fact that maintenance orders
lapse automatically in the event of a
re-marriage by the recipient of maintenance.’
[5]
The magistrate apparently accepted what the first appellant had
stated and struck the matter from the roll. The respondent thereafter
approached the high court where she sought to amend clause 5.1 of the
settlement agreement by replacing the second word ‘Defendant’
with ‘Plaintiff’, as it ought to have read in the first
place. She also sought to hold the first appellant in contempt
of a
court order for his failure to pay maintenance since April 2018.
[6]
The first appellant filed a conditional counter-application in which
he sought a declaratory order that on 9 December 2017 in
the Dutch
Reformed Church Montana; the respondent and Mr R V concluded an
unregistered common law or Christian relationship of
cohabitation as
husband and wife, and, as a result of which his duty to pay
maintenance had lapsed. He also sought orders that:
‘
1.1 The word “remarriage”
in paragraph 5.1 of the settlement agreement between the parties made
an order of the court
on 28 August 2012, be interpreted and extended
to include an unregistered common law alternatively Christian
marriage relationship
as husband and wife.
. . .
Alternatively,
. . .
2.1 Paragraph 5.1 of the settlement
agreement between the parties made an order of Court on 28 August
2017 is amended/varied by
adding after the word “remarriage”
the following words
“
alternatively, Plaintiff
entering into an unregistered common law alternatively Christian
marriage relationship of cohabitation
as husband and wife”
. . .
Alternatively
. . .
3.1 Paragraph 5.1 of the settlement
agreement made an order of the court on 28 August 2017 is
amended/varied by adding after the
word “remarriage” the
following words
“
alternatively, Plaintiff
entering into a relationship of cohabitation as husband and wife with
another man.”’
[7]
The high court
(Neukircher J)
found in favour of the respondent. It
found that the insertion of the second word ‘Defendant’
instead of ‘Plaintiff’
in clause 5.1 was a patent error
that was not apparent to the parties, their legal representatives or
the court. The high court
also held that the ceremony conducted in
respect of the respondent and Mr R V did not constitute remarriage.
It furthermore held
that the meaning of the word did not include
cohabitation, as the first appellant had contended. The first
appellant and the respondent,
however, reached agreement, contained
in a draft order, as to the amendment of clause 5.1 for future
purposes. The court a quo
thus varied the settlement agreement to
read:
‘
1. Paragraph 5.1 of the
settlement agreement between the parties made an order of the court
on 28 August 2017 is amended/varied
to read as follows and with
effect from the date of order: The defendant shall pay an
all-inclusive amount of R10 000 (Ten
Thousand Rand) maintenance
to the plaintiff per month until her death or remarriage and/or
cohabitation with another man in a common-law
marriage, whichever
occurs first.’
[8]
The high court also held the first appellant in contempt of court for
failing to pay the respondent maintenance in terms of
the settlement
agreement; and it mulcted the second appellant with costs
de
bonis propriis.
In addition, it ordered the
first appellant to pay costs on the scale of attorney and client.
[9]
On the question whether the ceremony between the respondent and Mr V
was a ‘remarriage’ as contemplated by the parties
when
they concluded the settlement agreement, the high court found, with
reference to several cases including
Ochberg
v Ochberg’s Estate
[1]
,
that on the evidence presented, what occurred on 9 December 2017 was
no valid and binding legal marriage ceremony. Thus, the respondent’s
legal obligation to pay maintenance had not lapsed. Addressing the
first appellant’s provisional counter-application based
on
rectification, at para 40 of the judgment, the high court found that:
‘
[a]t the time that the
settlement was entered into, the respondent had the opportunity to
add into the settlement agreement that
any cohabitation by the
applicant would result in a nullification of the maintenance payable
by him to her. He failed to do so.
He was represented by an attorney
at the time and despite this, no such clause was added to the
settlement agreement’.
[10]
As I have said, counsel for the first appellant handed
up a draft order in which the respondent consented to a variation of
the
settlement agreement and which included the variation that the
respondent had sought from the outset. The court, however, held at
para 51 that ‘had it not been for this concession, the
[conditional] counter-application would have been dismissed with
costs.’
[11]
In respect of the contempt of court relied upon by the respondent,
the high court found at para 48 of the judgment that:
‘
[i]n so far as the contempt of
court regarding the failure to pay maintenance because of the
argument that the applicant has remarried
is concerned, I am of the
view that the wilfulness and
mala fides
cannot be established.
It is clear that the respondent was advised by his legal
representatives that this argument was a valid
one and given that he
is a lay person, in my view he would know no better.’
It
nevertheless found the first appellant guilty of contempt of court
consisting of deductions from maintenance made before April
2018 and
sentenced him to three months’ imprisonment which was suspended
conditionally.
[12]
As the appeal revolves around the interpretation of the word
‘remarriage’ in the divorce settlement agreement and
flowing from that what constitutes a marriage, the Marriage Act 25 of
1961 (the Marriage Act) must be the starting point. The relevant
provisions are the following:
‘
11. Unauthorised
solemnization of marriage ceremonies forbidden
(1) A marriage may be solemnized by a
marriage officer only.
(2) . . . .
(3) Nothing in subsection (2)
contained shall apply to any marriage ceremony solemnized in
accordance with the rites or formularies
of any religion if such a
ceremony does not purport to effect a valid marriage.
29A. Registration of marriages
(1) The marriage officer solemnizing
any marriage, the parties thereto and two competent witnesses shall
sign the marriage register
concerned immediately after such marriage
has been solemnized.
(2) The marriage officer shall
forthwith transmit the marriage register and records concerned, as
the case may be, to a regional
or district representative designated
as such under section 21 (1) of the Identification Act, 1986 (Act No.
72 of 1986).’
[13]
The purpose of interpretation, is to establish the intention of the
parties from the words used in the context of the document
as a
whole, the factual matrix surrounding the conclusion of the agreement
and its purpose or (where relevant) the mischief it
was intended to
address.
[2]
In
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[3]
,
with reference to
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[4]
,
this Court affirmed that:
‘
Interpretation is the process
of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision or
provisions in the light of the document
as a whole and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must
be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears;
the apparent purpose to which
it is directed, and the material known to those responsible for its
production. Where more than one
meaning is possible each possibility
must be weighed in the light of all these factors. The process is
objective, not subjective.
A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the apparent purpose
of the document. Judges must be alert to and
guard against, the temptation to substitute what they regard as
reasonable, sensible,
or business-like for the words actually used.
To do so in regard to a statute or statutory instrument is to cross
the divide between
interpretation and legislation. In a contractual
context, it is to make a contract for the parties other than the one
they in fact
made. The “inevitable point of departure is the
language of the provision itself”, read in context and having
regard
to the purpose of the provision and the background to the
preparation and production of the document.’
[14]
The ordinary meaning of remarriage is to enter into a further
marriage recognised by South African law (legal marriage). The
context provides several indications that this was the meaning of the
word remarriage in clause 5.1 of the deed of settlement.
First, the
parties used the word in the agreement that regulated the
consequences of the dissolution of their legal marriage. In
the
absence of an indication to the contrary, the parties must be taken
to have intended a remarriage of the same status, ie a
legal
marriage. Second, clause 5.1 echoed the phrase ‘until death or
remarriage’ in
s 7(2)
of the
Divorce Act 70 of 1979
.
[5]
There the phrase undoubtedly refers to a legal remarriage. Again, in
the absence of an indication to the contrary, the phrase must
have
been intended to have the same meaning as in
s 7(2).
Third, the very
wording of the agreed amendment shows that it introduced into the
clause what was not there before.
[15]
Thus, the parties agreed that the first appellant’s duty to
maintain the respondent would lapse when another person becomes
legally obliged to maintain her. But should the respondent cohabitate
with a person who
de
facto
contributes to her maintenance (which on the uncontroverted evidence,
Mr V did not), the first appellant would have the remedy
of
approaching the maintenance court for a variation or discharge of the
maintenance order under
s 6(1)
read with
s 16(1)(
b
)
of the Maintenance Act 99 of 1998.The agreement must now be applied
to the facts.
[16]
Reverend Van Huysteen’s uncontradicted evidence was that he is
an ordained minister and marriage officer in terms of
the Marriage
Act (s 29A
(a)
). That
on 9 December 2017, he conducted the ceremony between the
applicant and Mr V. However, that ceremony had no legal consequences,
as he did not solemnise it in terms of the Marriage Act. No one
signed the marriage register as prescribed in the Marriage Act
(s
29A
(b)
). He did not
pronounce the applicant and Mr V to be husband and wife to those in
attendance of the ceremony. On the contrary, he
expressly informed
the audience that no legal marriage was concluded. Nor did he after
the ceremony transmit the marriage register
and other relevant
documents to a regional or district representative at the Department
of Home Affairs (s 29A
(c)
).
[17]
In terms of s 29A of the Marriages Act the requirements
for the registration of a valid marriage
are
that:
(a)
the solemnization of the
marriage is done by a marriage officer designated in terms of the
Marriage Act;
(b)
the (i) parties to the
marriage together with the (ii) marriage officer and (iii) two
witnesses are required to sign the marriage
register immediately
after such solemnization;
(c)
the marriage officer is
thereafter charged to forthwith transmit the marriage register and
other relevant documents to a regional
or district representative
designated as such under s 21(1) of the Identification Act 72 0f
1986, at Home Affairs.
None
of these requirements were fulfilled during the ceremony. Thus, the
finding of the high court that there was no ‘remarriage’
cannot be faulted.
[18]
Counsel for the respondent fairly, and correctly, conceded that the
high court erred in holding the first appellant in contempt
of court.
In the respondent’s founding affidavit, it was expressly stated
that the alleged contempt of court consisted of
non-payment of
maintenance since April 2018. That was the case that the first
appellant had been called upon to answer. As I have
said, the high
court in fact held that the first appellant did not commit contempt
of court in this regard. In the circumstances
it erred in holding
that the first appellant was in contempt of court in respect of
deductions that he had made from the monthly
amount prior to April
2018. On the evidence, the bulk of these deductions were in any event
in respect of the respondent’s
medical fund contributions and
were made with her consent.
[19]
As I have said, this Court granted leave to the second appellant to
appeal against the
de bonis propriis
costs order. Before us,
counsel for the respondent rightly conceded that the order was
vitiated by procedural unfairness. In this
regard the high court
referred to two matters. First, it said, ‘the application was
served on Mr Augustyn during October
2018’. Second, it stated:
‘
[o]n Monday, the 4
th
of March 2018 when the matter was called, I insisted that Mr Augustyn
be present in court to explain why a
de bonis propriis
costs
order should not be granted against him. He thus had an opportunity
until Tuesday, 5 March 2019 when this matter was argued
to provide
such an affidavit. None was forthcoming. In my view, Mr Augustyn has
had ample opportunity to provide an explanation
to this court, as to
why he should not pay costs
de bonis propriis
and he failed to
do so.’
[20]
But the second appellant was not a party to the application in the
high court. His firm merely accepted service of the respondent’s
application on behalf of the first appellant. The mere fact that the
second appellant had in these terms been informed to attend
the
hearing the following day, did not give expression to the entrenched
audi alteram partem
principle. The second appellant was not informed of the purported
grounds for a
de bonis propriis
costs
order and was not provided a fair and proper opportunity to explain
himself.
[21]
There was also no substantive ground for the order. It is settled law
that generally a court would only grant a costs order
de
bonis propriis
against
an attorney in cases that involve gross incompetence or gross
disregard of professional responsibilities, dishonesty, wilfulness,
or negligence of a serious degree.
[6]
The high court based the
de
bonis propriis
costs order (and the attorney and client costs order against the
first appellant) on the propositions that in both the maintenance
court and in the papers before it, the first appellant, upon the
advice of the second appellant, had relied on the obvious error
in
the deed of settlement as a substantive defence to the claim for
payment of maintenance. It was wrong on both scores. The first
appellant did not appear in the maintenance court. He appeared on a
criminal charge in the criminal court. In facing a criminal
charge,
it was perfectly reasonable to put forward what I have quoted in para
5 above. The first appellant did not rely on the
error as a defence
in the high court. He expressly accepted that it was a patent error
and defended the matter, as I have said,
on the basis that his
admitted liability to pay maintenance had lapsed. For the same
reasons, attorney and client costs against
the first appellant were
not justified.
[22]
Paragraph 1 of the order of the court a quo was granted by agreement,
was not appealed against and must stand. For the reasons
stated, the
rest of the order of the court a quo does not withstand scrutiny. The
first appellant and the respondent, sensibly,
agreed that a
declarator would be to the benefit of the parties in order to arrange
their affairs accordingly. It is fair and just
that the first
appellant and the respondent pay their own costs of appeal. The
respondent did not abandon the costs order against
the second
appellant but attempted to defend it in the heads of argument filed
in this Court. In the result the respondent should
pay the second
appellant’s costs of appeal.
[23]
In the result, the following order is granted:
(a) The appeal is upheld.
(b) The order of the
court a quo is set aside and replaced with the following:
‘
1. Paragraph 5.1 of the
settlement agreement between the parties made an order of court on 28
August 2017 is amended/varied to read
as follows and with effect from
date of this order “The Defendant shall pay an all-inclusive
amount of R10 000 (Ten Thousand
Rand) maintenance to the Plaintiff
per month until her death or remarriage and/or cohabitation with
another man in a common law
marriage whichever occurs first.”
2. It is declared that
the ceremony that had been performed in respect of the applicant and
Mr R V on 9 December 2017, did not constitute
a remarriage within the
meaning of the said deed of settlement between the parties.
3. The respondent is
directed to pay the costs of the application.’
(c) There is no order as
to the costs of the first appellant and the respondent on appeal.
(d) The respondent is
directed to pay the costs of appeal of the second appellant.
________________________
B
C MOCUMIE
JUDGE
OF APPEAL
Makgoka
JA (dissenting)
[24]
I have had the benefit of reading the main judgment by my colleague,
Mocumie JA. I agree with it, save for the reasoning
and
conclusion on the interpretation of the ‘re-marriage clause’
in the settlement agreement, as well as the costs
order as between
the first appellant and the respondent. The main judgment
declares that ‘the ceremony … performed
in respect of
the applicant and Mr R V on 9 December 2017, did not constitute a
remarriage within the meaning of the …deed
of settlement
between the parties.’ I conclude, in the specific context of
clause 5.1 of the parties’ settlement agreement,
that the
respondent and Mr V indeed entered into a ‘re-marriage’.
[25]
The relevant facts are common cause. The first appellant and the
respondent were previously married. They divorced on 28 August
2017.
Their decree of divorce incorporated a settlement agreement which was
made an order of court. Paragraph 5.1 thereof obliged
the first
appellant to pay R10 000 maintenance monthly to the respondent ‘until
her death or remarriage, whichever occurs
first…’. A
month and half later, on 13 October 2017, the respondent announced to
the world via the social medium of
Facebook,
[7]
that she and Mr V, with whom she had been cohabiting, were getting
married on 9 December 2017 in a church ceremony in Montana,
Pretoria.
[26]
After that date, the respondent’s Facebook page depicted, among
others things, photos of the ceremony, which in all respects,
resembled a marriage consummation: the respondent was dressed in a
wedding dress; she was escorted into the church by a male person;
the
respondent and Mr V stood in front of a priest, and later knelt while
being blessed by the priest, and the couple exchanged
wedding rings.
The ceremony was witnessed by the couple’s families and
friends. Mr V also updated his Facebook status to
‘Married H
B’, in reference to the respondent. Later, on Mr V’s
birthday, the respondent posted a birthday message
for the latter on
Facebook, referring to him as ‘the best husband ever.’
[27]
Unsurprisingly, the above developments caught the first appellant’s
interest, as the respondent’s marriage would
have a direct
bearing on his maintenance obligation towards the respondent. As
stated already, that obligation would lapse upon
the respondent’s
re-marriage. Shortly after becoming aware of the ceremony, the first
appellant sought confirmation from
the respondent that she was indeed
married to Mr V, which the respondent denied. His further
investigation revealed that,
at the request of the respondent and Mr
V, the priest who presided over the ceremony neither completed the
marriage register nor
registered the marriage, as the respondent
sought to avoid the lapsing of the first appellant’s
maintenance obligation. On
advice from his attorney, the first
appellant stopped paying maintenance to the respondent.
[28]
As a result, the respondent laid a complaint against the first
appellant in the magistrate’s court for failure to pay
maintenance for the period September 2017 to February 2018. The
maintenance court dismissed the complaint based on an artificial
ambiguity due to a patent error in the settlement agreement where in
respect of the maintenance obligation, ‘defendant’
was
used instead of ‘plaintiff’. The respondent appealed to
the court a quo, before which the first appellant contended
that his
maintenance obligation towards the respondent had lapsed because the
latter Mr V were married. The court concluded that
because the
registration formalities prescribed in s 29A of the Marriages Act had
not been observed, there was no ‘valid
marriage’ and thus
the first appellant’s maintenance obligation to the respondent
had remained extant.
[29]
As a prelude to my consideration of the ‘re-marriage clause’
in the settlement agreement, I make a general observation
that the
concept of ‘marriage’ has taken an elastic nature over
the past decade or two. For example, African customary,
Muslim, Hindu
and Jewish, and same-sex unions have become accepted as ‘marriages’.
Although none of the ceremonies
performed in terms of these unions
comply fully with the strict prescripts of s 29(A), they give rise to
legal consequences of
a marriage.
[30]
The fatal flaw in the court a quo’s judgment is that it did not
consider the context of clause 5.1 of the settlement
agreement. As
Lord Steyn famously remarked, ‘In law, context is
everything.’
[8]
By
narrowly focusing on whether the ceremony conducted on 9 December
2017 constituted a marriage, the court a quo asked a wrong
question,
and consequently, it was led astray in its analysis of the
‘re-marriage clause.’ The correct enquiry, to
my mind,
should have been whether the relationship between the respondent and
Mr V constituted a ‘re-marriage’ as envisioned
in the
settlement agreement. Viewed in this light, instead of it being the
sole and focal point of the enquiry, the ceremony was
but one of the
factors to be taken into account in answering the contextual
question.
[31]
It is common cause that the respondent and Mr V cohabited, and for
all intents and purposes, lived as husband and wife. According
to the
respondent, she and Mr V are Christians, and in terms of their faith,
any sexual relationship outside the confines of a
marriage is sinful.
The ceremony on 9 December 2017, she explained, was to ‘legalise
our relationship before God and not
to live in sin’. It is not
clear how an avowedly ‘sinful’ relationship can be
‘legalised’ before
God. Be that as it may, the
respondent’s assertion confirms the depth of the relationship
as being akin to that of a husband
and wife.
[32]
This, in my view, is the context within which the word ‘re-marriage’
in the settlement agreement should be construed.
The word was used in
the context of providing maintenance for the respondent. The
agreement was premised on an archaic and sexist
notion that the
respondent needed a man to financially maintain her. Whether the man
she ‘re-married’ in fact supported
her financially or was
able to do so, was irrelevant to the first appellant’s
maintenance obligation to the respondent. As
soon as she
‘re-married’, that obligation would lapse. Seen in this
light, and given the nature of the relationship
between the
respondent and Mr V, the latter fulfilled the purpose for which the
clause was inserted in the settlement agreement.
The ceremony on 9
December 2017 was but a confirmation of a
de facto
state of
affairs between the respondent and Mr V.
[33]
Regarding the ceremony itself, but for the non-completion of the
marriage register, it was a complete marriage ceremony. It
should be
borne in mind that the non-completion of the marriage register was
not an oversight or a mistake. It was a conscious
decision aimed
singularly at preventing the ‘re-marriage’ clause in the
settlement agreement from kicking in. It was
a manipulation of the
law, concocted by the respondent and aided by a priest, to frustrate
the eventuality which the parties had
clearly in mind when concluding
the settlement agreement. And to the extent it was assumed that the
new man in the respondent’s
life would automatically support
her, it follows that Mr V should be assumed to have done so. It is
irrelevant that he says he
did not. The result was, at least
notionally, that the respondent enjoyed maintenance from the first
appellant and Mr V. This,
in my view, is a contrived and disingenuous
scheme which a court should frown upon, instead of giving it its
imprimatur.
[34]
What is more, when interpreting documents, courts are enjoined to
avoid a construction that leads to absurd results. In the
present
case, it is clear that the parties envisaged that once the respondent
cohabited with another man in a relationship akin
to that of husband
and wife, the first appellant’s maintenance obligation to the
respondent would lapse. The mischief intended
to be addressed by the
‘re-marriage clause’ was the respondent being maintained
simultaneously by the first appellant
and a man she cohabitated with.
By construing the clause within the strict prescripts of s 29A, the
result is that the respondent
received maintenance from two men:
exactly what the parties had intended to avoid. In the court a quo,
the respondent agreed to
an amendment of the settlement agreement to
the effect that, for future purposes ‘re-marriage’ would
include her cohabitating
with another man in a common law marriage.
To my mind, far from signalling a different intention, it confirms
the parties’
true, original intention when the settlement
agreement was concluded.
[35]
For these brief reasons, I am unable to agree with para 2 of the
order of the majority judgment, as well as the costs order
as between
the first appellant and the respondent. Given the view I take of the
matter, I would order the respondent, in addition
to the second
respondent’s costs, to pay the first appellant’s costs.
Her reprehensible conduct deserves that much.
[36]
Other than that, I am in full agreement with the rest of the order of
the majority judgment and the reasoning underpinning
it.
____________________
T
M MAKGOKA
JUDGE
OF APPEAL
Appearances:
For
appellants:
E Prinsloo
Instructed
by:
Wilsenach Van Wyk Goosen & Bekker Inc., Pretoria
Bezuidenhout
Inc., Bloemfontein.
For
respondent:
J J
Strijdom SC
Instructed
by:
Rianie Strijdom Attorneys, Pretoria
Symington
De Kok Attorneys, Bloemfontein.
[1]
Ochberg
v Ochberg’s Estate
1941 CPD 15.
[2]
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
[2009]
ZASCA 7
;
[2009] 2 All SA 523
(SCA);
2009 (4) SA 399
(SCA) para 39;
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
[2015]
ZASCA 111
;
[2015] 4 All SA 417
(SCA);
2016 (1) SA 518
(SCA) paras
27, 28, 30 and 35.
[3]
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[3]
[2013]
ZASCA 176; [2014] 1 All SA 517 (SCA); 2014 (2) SA 494 (SCA).
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) para 18.
[5]
Section
7(2)
provides:
‘
In
the absence of an order made in terms of subsection (1) with regard
to the payment of maintenance by the one party to the other,
the
court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities,
financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living of the
parties prior to the
divorce, their conduct in so far as it may be relevant to the
breakdown of the marriage, an order in terms
of subsection (3) and
any other factor which in the opinion of the court should be taken
into account, make an order which the
court finds just in respect of
the payment of maintenance by the one party to the other for any
period
until the death or remarriage
of the party in whose
favour the order is given, whichever event may first occur.’
(Emphasis added.)
[6]
Pheko
v Ekurhuleni Metropolitan Municipality (No 2)
[2015]
ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) para 51 and
54. See also
Stainbank v
South African Apartheid Museum at Freedom Park and Another
[2011]
ZACC 20
;
2011 (10) BCLR 1058
(CC) paras 52-54.
[7]
Facebook
is an American online social media and social networking service.
[8]
In
R
v Secretary for the Home Department, ex parte Daly
[2001] UKHL 26
;
[2001] 3 All ER 433
(HL) at 447. This was approved in
Aktiebolaget
Hässle and Another v Triomed (Pty) Ltd
2003 (1) SA 155
(SCA) para 1.