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[1995] ZASCA 147
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Douglas v Douglas (467/94) [1995] ZASCA 147; [1996] 2 All SA 1 (A); (28 November 1995)
REPORTABLE CASE NO. 467/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
KENNETH JOHN DOUGLAS
APPELLANT
and
BLANCHE DAW
DOUGLAS
RESPONDENT
CORAM
: HEFER, SMALBERGER, F H
GROSSKOPF, OLIVIER JJA et VAN COLLER AJA
DATE OF HEARING
: 7 NOVEMBER 1995
DATE OF JUDGMENT
: 28 NOVEMBER 1995
JUDGMENT
OLIVIER JA:
This appeal arises from an enquiry initiated by the appellant
before the Maintenance Court at Grahamstown on 18 June 1993 in terms
of sec
4(l)(b) of the Maintenance Act, 23 of 1963 ("the Act"). In the complaint
initiating the
2
enquiry the appellant claimed a reduction of the maintenance which he had
been ordered by the Witwatersrand Local Division of the
Supreme Court to pay to
his two sons, born out of the marriage between the respondent and himself, when
the marriage was dissolved
by a decree of divorce on 26 October 1990.
BACKGROUND
:
The parties to this appeal were married to each other in
January 1982. Twin boys were born on 17 October 1984. The marriage ended
in
divorce on 26 October 1990, a final decree being issued by the Witwatersrand
Local Division on that day. Custody of the boys was
awarded to the respondent.
Clause 4 of a settlement agreement reached between the parties and incorporated
in the decree of divorce
provided for the payment of maintenance for the two
boys as follows:
"4.1 The defendant will pay R1250 a month maintenance in respect of each child,
plus all their reasonable educational expenses (including
school fees and
levies, stationery, school uniforms and extramural activities) as well as all
their necessary medical, dental and
orthodontal expenses.
4.2 The defendant will increase the maintenance on 1 March each
year
3
in the same ratio as the official weighted average consumer price index has
increased, since the date of this agreement in the case
of 1 March 1991 and
since the previous 1 March after that."
No provision was made for
the payment of maintenance to respondent personally, but in a further agreement,
also incorporated in the
decree of divorce, arrangements were made for the
division of the not inconsiderable assets of the parties.
At the time of the
divorce the parties were living in Johannesburg. The appellant was and is a
partner of a large firm of attorneys.
He holds a Ph.D. degree in banking law and
is mostly involved in commercial legal work. The respondent held, at that time,
five university
degrees, viz. two bachelor's degrees in psychology, two honours
degrees and a master's degree. She practised as a consultant psychologist
from
the matrimonial home.
After the divorce the respondent and the boys moved to
Grahamstown. The respondent did so in order to enrol for a Ph.D. degree in
psychotherapy which, according to her evidence, she could only obtain from
Rhodes University. Such a degree would, according to her
evidence, enhance her
professional
4
potential. She moved into a flat in Grahamstown with the boys and took up
such part-time employment as she could procure, i.a. as
part-time lecturer at
Rhodes University and part-time consultant at Fort England Hospital.
The
correct application of the formula for the increase of the maintenance payable
to the children, set out in paragraph 4.2 of the
agreement mentioned above,
would have resulted in an obligation on the appellant's part to pay R1695,00 per
child per month i.e.
a total of R3390,00 per month as of 1 June 1993. He
approached respondent for a consensual reduction of the maintenance payable to
the children. When such consent was refused, the appellant launched proceedings
on 18 June 1993 for a reduction as from 1 June 1993
of the said maintenance in
the Maintenance Court in Grahamstown by filing a complaint in terms of sec
4(l)(b) of the Act. In the
complaint he requested that the existing court order
be replaced by an order for payment of R500 per month per child and the
cancellation
of his obligation to pay any educational expenses (including school
fees and levies, stationery, school uniforms and extramural activities)
for the
children.
5
The enquiry commenced on 10 August 1993. The appellant appeared in person,
while the respondent was represented by an attorney. Both
parties testified and
were cross-examined. The main basis of the appellant's complaint was that he had
been suffering for some months
in 1993 from endogenous depression; that as a
consequence his capacity to work, concentrate and carry out ordinary
responsibilities
was severely impaired; that he had had to reduce his work load
in the firm; and as a result, and pursuant to the terms of the partnership
agreement, his earnings had been drastically reduced. From the evidence it
appeared that the appellant had suffered from endogenous
depression since the
age of 18 years; that this was a recurrent condition for which he was receiving
excellent medical treatment;
that by the time of the trial, the condition had
already improved markedly; and that he might regain his full earning capacity at
any stage. It also appeared that he had considerable capital assets,
inter
alia
a trust fund in Canada amounting to R190 000 which could be used for
the maintenance of the children; that since the divorce he had
remarried and had
moved into a more luxurious and expensive residence with
6
considerable additional mortgage bond and other liabilities.
The magistrate presiding dismissed the complaint in the following terms:
"Taking the evidence of both parties, it was a war of figures. The court is not
going to comment on that. The court has to see whether
there is any change in
the status of any of the parties. Now what Dr Douglas concerns, according to his
evidence, he has depression
for the last 12 years as I understand. So it's a
matter of up and down with him. He says he is quite capable to work at this
moment,
maybe not at full capacity but that also happened in the past. He gave
no indication that he is going to take his pension so maybe
the period of
depression is longer than normal but taken over a period there is no change to
what happened in the past. The court
must also take into consideration that
provisions have to be made in a situation like this where it is a matter of up
and down and
therefore Dr Douglas has some capital assets that can be
capitalised in order to support the children. He also was aware of this
maintenance order the moment he remarried. The court is of the opinion that
there is no change in his situation at the moment and
the application is then
dismissed."
The appellant appealed against this order to the
Eastern Cape Division of the
Supreme Court in terms of sec 7(1) of the Act.
Kroon J (with whom Nepgen J concurred) held that certain of the
items
of monthly expenditure claimed by the respondent to be
necessary for the
maintenance of the boys could be reduced, decreasing the reasonable
7
maintenance payable to R2600 per month in respect of both children, i.e.
R1300
in respect of each child. He held that the escalation clause contained
in the
existing order should continue to operate in order to make allowance
for future
increases in the needs of the children. The court upheld the
appeal with costs
and made the following order:-
"With effect from 1 June 1993 the amount of maintenance payable in cash by the
applicant in respect of the two minor children will
be the sum of Rl 300,00 per
child per month. The provisions of clause 4 of the Agreement marked 'XT
incorporated into the order of
the Supreme Court of South Africa (Witwatersrand
Local Division) dated 26 October 1990 in case no. 15711/90 will otherwise remain
in force."
Implicit in this order is the continuation of the
appellant's obligation to pay all the reasonable educational expenses (including
school fees and levies, stationery, school uniforms and extramural activities)
as well as the necessary medical, dental and orthodontic
expenses of the boys,
as set out in paragraph 4.1 of the aforesaid court order.
Not content with
the limited success achieved in his appeal to the Eastern Cape Division, the
appellant gave notice of an application
for leave to appeal to
8
this Court. In the application the appellant appeared in person. Kroon J
(with whom Nepgen J agreed) held that, save in one respect,
the grounds of
appeal were in substance either a restatement of the arguments which were
presented to the court at the hearing of
the appeal, or an attack on the manner
in which these arguments were dealt with in the judgment of the Court. The
additional ground
was that the appellant was entitled to an order that a
considerable amount of money allegedly misappropriated by the respondent out
of
the maintenance paid by him in the past for the children's maintenance be set
off against his future maintenance payments. Kroon
J held that this argument was
untenable and that any leave to appeal, if granted, could not embrace leave to
advance the said claim,
Leave was granted, however, on the basis that this Court
might hold that an analysis of the respondent's cash flow might"... be a
decisive pointer to the children's reasonable needs being in a sum cognizably
less" than that fixed by the Eastern Cape Division.
The next step in the proceedings was the filing by the appellant of a Notice
of Appeal which, together with "Grounds of Appeal" (for
which the Rules
9
of this Court do not make provision), because of the argumentative manner
in
which it was clothed, covered no less than 103 pages. In its amended form
the
order sought by appellant from this Court reads as follows:
"A. The appellant is ordered:
A.1 to pay to the respondent R500 a month maintenance ('the cash maintenance'),
with effect from the date set out in paragraph B
of this order, in respect of
each of the parties' children, Aidan Michael Douglas and Lance Alexander
Douglas, ('the children') and
to pay the children's necessary medical, dental
and orthodontal expenses with effect from 1 June 1993;
A.2 to increase the cash maintenance on 1 March each year in the same ratio as
the official weighted average consumer price has increased,
since 1 September
1993 in the case of 1 March 1994 and since the previous 1 March after that.
B. The liability of the appellant to pay the cash maintenance shall commence
when:
B.l the aggregate amount of the cash maintenance that would have been payable
had such liability commenced on 1 June 1993, plus interest
as set out
below
equals
B.2 the aggregate amount misappropriated by the respondent to her own use out of
the maintenance paid by the appellant in
respect
10
of the children between 1 January 1991 and 31 July 1993 (namely R55 443), less
any portion of the R55 443 repaid by the respondent
to the appellant, plus
interest as set out below
The interest referred to in B.l and B.2
above is interest as set out in paragraph D of this order on the
accumulating/reducing balance
from time to time of the amount under B.l or B.2,
as the case may be, from 1 January 1991.
C. To the extent that the maintenance paid by the appellant in
respect of the
period from 1 June 1993 up to the date of this
order (including medical and
educational expenses) exceeds the
maintenance payable under this order in
respect of the same
period (including medical expenses), such excess shall
be
reimbursed by the respondent to the appellant, together with
interest
as set out in paragraph D of this order on the
accumulating and/or decreasing
balance from time to time of the
excess from 1 June 1993.
D. The interest referred to in paragraphs B and C of this order shall
be
calculated at the rate and in the manner payable by the
respondent on the
amount owing from time to time on her access
bond account relating to Lot 614
Parktown North (or a
comparable rate if there should cease to be any amount
owing on
such account or if interest should cease to be payable on
that
account or at the normal rate on such an account), alternatively
at
the rate under the Prescribed Rate of Interest Act.
E. This order replaces, with effect from 1 June 1993, the maintenance
order
made by the Supreme Court of South Africa, Witwatersrand
Local Division, on
26 October 1990 in case 15711/90 pursuant to
11
clause 4 of the Settlement annexed as 'X1' to the divorce
order.
F. Further or alternative relief.
G. Costs."
The date of 1 June 1993 refers to the date of the
amended order sought in the application to the Maintenance Court.
Preliminary
procedural matters
.
Prayers B and C are based on the appellant's
allegation that in the period since the divorce and up to the date of the
complaint,
the respondent had misappropriated for her own use R55 443 of the
children's maintenance money.
When the appellant testified and cross-examined the respondent during the
trial at the Maintenance Court, he never accused her of
misappropriating the
children's money. Only during argument did he produce a document, exhibit H, in
which he purported to have done
a "cash flow analysis" in respect of the
respondent's income and expenditure during three selected periods, viz. 1
January 1991 to
31 December 1991,1 January 1992 to 31 July 1992 and 1 August
12
1992 to 31 July 1993. The appellant's case, as set out in his amended Notice
of Appeal is that the cash flow analysis shows what funds
the respondent
received during these periods from all sources (eg earnings and investment
income, maintenance paid by the appellant
and borrowings), the capital
expenditure and other non-living expenses the respondent paid out of these funds
(eg the purchase of
a share in a farm and a trip she took overseas), and the
balance, being the amount spent by her on her and the children's living
expenses. By then determining the ratio between the respondent's own living
expenses and her expenses in respect of the children,
and applying this ratio to
the total amount spent, one arrives at the amount spent by the respondent on her
own living expenses and
her expenses in respect of the children. The appellant
further calculated, allegedly on the respondent's evidence, alternatively
on the
calculations made by the court
a quo
, that the
ratio
between the
respondent's own and the children's needs (or expenditure) was 73%: 27% (i.e. of
all income received, respondent spent
73% on herself and only 27% on the
children). Consequently, the appellant submitted that"... it had required only
less than half
13
of the appellant's maintenance to enable the children to be maintained at
substantially the same standard of living that had applied
during the marriage
..." and that the respondent had misappropriated the aforesaid amount for her
own use.
The appellant's insistence on raising the alleged misappropriation
and his right of set-off or reimbursement in this Court, led to
a procedural
dilemma. It arose in this way: In the appeal to the court
a_quo
, counsel
for the appellant relied, for the first time, on the so-called misappropriation
by the respondent. Counsel for the respondent
objected to this argument with the
submission that the respondent had not been taxed in the Maintenance Court with
the inferences
which the appellant now sought to draw, and that there simply was
not sufficient evidence to sustain the said inferences, i.a. that
it had not
been proved that the respondent's income, on which she was cross-examined, was
the only income she had received during
the relevant period. In the absence of
such proof, it was argued, the cash flow analysis was fatally flawed. Counsel
for the appellant,
apparently aware of this problem in his client's case, relied
on an agreement,
14
presumably entered into between counsel prior to the appeal being heard by
the court
a quo
, to the effect that the respondent had had no other
sources of income than those appearing from the evidence led in the Maintenance
Court,
In dismissing the appellant's approach based on the alleged
misappropriation, the court
a quo
did not consider it necessary to
express any view as regards the alleged agreement.
In his copious heads of
argument in this Court, the appellant did not refer to or rely on the alleged
agreement. But in her heads
of argument, counsel for the respondent, apart from
advancing several reasons why a set-off or suspension could, in law, not be
maintained,
also questioned the alleged agreement, She merely stated that the
court
a quo
had made no finding that the alleged agreement had been
endorsed by counsel for the respondent, and in any event, its terms as mentioned
in passing in the court
a quo
were vague. For purposes of dealing with
the alleged misappropriation, she stated that she would ignore the alleged
agreement, the
exact terms of which do not appear from the record.
These remarks by counsel for the respondent elicited a petition,
running
15
into 28 pages, by the appellant. In the petition, the appellant seeks
permission to "rectify" the record so as to include proof of
the alleged
agreement, alternatively to remit the matter to the Maintenance Court at
Grahamstown to hear further evidence on the
question of whether the respondent
had any receipts other than those reflected in the said cash flow analysis. The
respondent opposed
the relief sought in the petition.
There is, however, also a further procedural problem arising from the
appellant's Notice of Appeal. It relates to paragraphs B and
C quoted
above.
Paragraph B, which purports to request a "suspension" of the
appellant's obligations to pay maintenance to the children, is nothing
but an
indirect way of raising set-off. The appellant was expressly denied leave to
appeal to this Court on that basis. In fact,
in the appellant's original Notice
of Appeal he openly and directly relied on such set off, notwithstanding the
aforesaid order.
It is trite law that, in both criminal and civil matters, leave to appeal may
be limited so as to allow only particular grounds of
appeal to be advanced (see
Ngqumba en 'n Ander v Staatspresident en Andere;
Damons NO en Andere
v
16
Staatspresident en Andere
:
Jooste v Staatspresident en Andere.
1988(4) SA 224 (A) op 246 C - 247 C;
S v Safatsa and Others
1988(1) SA 868
(A) at 877 A - G). But it is also true that"... this Court will not necessarily
consider itself bound by the grounds
upon which leave has been granted. If this
Court is of the view that in a ground of appeal not covered by the terms of the
leave
granted there is sufficient merit to warrant the consideration of it, it
will allow such a ground to be argued" (
S v Safatsa, supra,
at 877 B - D.
See also
R v Mpompotshe and Another
1958(4) SA 471 (A) at 472 H - 473
F).
Although leave to appeal on a ground refused by the court which granted
leave to appeal to this Court should, generally speaking,
be requested by way of
petition, which would normally be considered by the court hearing the appeal,
the required leave can also
be sought by way of application when the appeal is
heard. In such a case condonation for the delay in asking such leave should also
be requested (see
R v Mpompotshe and Another
,
supra
, at 473 E -
F).
The appellant did not present a petition requesting the required leave prior
to the hearing of this appeal. He was patently not aware
of the decisions
17
of this Court mentioned above. When these problems were mentioned to him he
applied orally for leave to rely on set-off. As I understood
him, his
application also included leave to ask for paragraph C of the amended Notice of
Appeal, i.e. for judgment against respondent
for payment of the allegedly
misappropriated amount.
There are, therefore, four preliminary applications
before this Court dealing with procedural matters, viz. (i) an application to
rectify the record so as to include the terms of the
agreement allegedly entered into between counsel for the parties prior to
the hearing of the appeal by the court
a quo
relating to the
respondent's
sources of income;
(ii) alternatively, an order that the hearing of the appeal in this Court be
postponed and that the matter be remitted to the Maintenance
Court at
Grahamstown for the re-opening of the enquiry and the hearing of evidence
relating to the respondent's post-divorce income;
18 (iii) Leave
to advance prayer B;
(iv) Leave to advance prayer C.
I deal with these applications
seriatim
, (i)
The application to rectify the record
.
This Court
has the inherent power to regulate its own procedural matters (see also
Universal City Studios Inc and Others v Network Video (Pty) Ltd
1986(2)
SA 734 (A) at 754 G;
S v Malinde and Others
1990(1) SA 57 (A) at 67 A -
E). But does this power encompass the rectification of the record of the
proceedings in a court
a quo
? We were not referred to any authority on
this point. But, even assuming for the moment that it does, rectification of a
record of
the proceedings before a court
a quo
will not be granted by
this Court on appeal merely for the asking. If the matter relates to an
agreement entered into between counsel
for the parties as alleged in the present
case, at least it would be required that the parties are, in this Court,
ad
idem
as to the terms of the agreement and that it was intended that the
agreement would be taken into
19
account by the court
a quo
.
In the present case the terms of the alleged agreement were disputed by the
respondent in this Court and there is no consensus that
such agreement was
intended to bind the court
a quo
. This Court is not a trial court to
solve factual disputes and to decide on questions relating to alleged and
disputed omissions
from the record.
If the refusal of the application now
under discussion prejudices the appellant, he only has himself to blame. As
stated previously,
he never canvassed with the respondent in cross-examination
the alleged cash flow analysis, the ratio of expenditure between herself
and the
children or the alleged misappropriation. Because he did not traverse these
matters fully and openly, he found himself in
difficulties at the appeal before
the court
a quo
in that the possibility of the existence of other sources
of income of the respondent, not canvassed with her, could not be excluded.
As
long as such possibility existed, he could not rely on the cash flow analysis as
being correct, nor could he advance the argument
of misappropriation.
20
In an ordinary civil matter, where the cases of the respective parties are
set out in the pleadings, it is required of a litigant
to put his case fairly
and squarely to each opposing witness (see
Small v Smith
1954(3) SA 434
(SWA) at 438 C - H). This salutary rule forms part of our legal ethical code. It
enhances notions of fair play and
equity and prevents civil proceedings from
degenerating into trials by ambush. This approach applies
a fortiori
to
an enquiry under the Act, where there are no pleadings and formal discovery of
documents. The appellant, in failing to put his
case fairly to the respondent
when he was cross-examining her, prevented the issues from being fully and
openly vented. That failure
has now led to the appellant's predicament.
The application for rectification of the record so as to include
the
contested agreement clearly must fail.
(ii)
The application for postponement of the hearing of this appeal and
remittal to the Maintenance Court for the re-opening of the enquiry
and the
hearing of evidence relating to the respondent's post-divorce income
.
Sec 22 (a) of the Supreme Court Act, 59 of 1959, empowers this
Court,
21
on the hearing of an appeal, to remit the matter to the court of first
instance, or the court whose judgment is the subject of the
appeal, for further
hearing.
In a long line of cases, certain guiding principles for the exercise
of this power have been developed. They are as follows:
(a) whether the evidence tendered or envisaged could with reasonable diligence
have been tendered or elicited at the trial;
(b) whether the said evidence is "presumably to be believed" or "apparently
credible";
(c)
the
effect it will have on the case;
(d) whether conditions since the trial have so changed that the fresh evidence
will prejudice the opposite party.
(See Nathan Barnett and Brink
3rd ed.
Uniform Rules of Court
606;
Colman v Dunbar
1933 AD 141
at
161 - 2;
Benjamin v Gurewitz
1973(1) SA 418 (A) at 427 E - 430 E;
Deintje v Gratus and Gratus
1929 AD 1
at 6 - 7;
Shein v Excess
Insurance Co Ltd
1912 AD 382
at 389 - 393; 418 at 427 - 431.)
I am of the view that the present application for remittal and
re-opening
22
of the enquiry fails to meet these requirements. For instance, as regards
requirement (a), it is clear that the failure to place the full facts before
the
Maintenance Court was due to the appellant's failure, and his failure alone,
to
disclose his case to the respondent and to elicit the required information
from
her. In this Court he conceded that in the course of the trial she had
made
available all her financial books and statements to him and that he had
already
then decided that he was going to do a cash flow analysis to prove
the
misappropriation on the respondent's part and to disprove the children's
needs
as put forward by her. In the event, he can expect little sympathy from
this
Court. In
Deintje v Gratus and Gratus
.
supra
at 6, the
following
dictum
from
two venerable English cases was approved of:
"It is an invariable rule in all the Courts, and one founded on the clearest
principles of reason and justice that if evidence which
either was in the
possession of parties at the time of the trial, or by proper diligence might
have been obtained, is either not
produced or has not been procured, and the
case is decided adversely to the side to which the evidence was available, no
opportunity
for producing that evidence ought to be given by the granting of a
new trial."
Furthermore, as regards requirement (c), the effect of remittal of
the
23
matter and re-opening the enquiry will be that the appeals to the Eastern
Cape Division and to this Court would have been in vain.
If new evidence is
heard by the Maintenance Court, the possibility of new appeals by either of the
parties to the Eastern Cape Division
and to this Court cannot be excluded. The
envisaged process militates against the principle
interest reipublicae ut sit
finis litium
(see
Mkwanazi v Van der Merwe and Another
. 1970(1) SA
609 (A) at 616 F).
Consequently, this application must also fail. (iii)
Leave to advance prayer B
i.e. the suspension of maintenance payments
until the allegedly misappropriated funds have been utilised by the respondent
for the
children's maintenance.
It is clear that the suspension of
maintenance payments is but an indirect form of set-off. Appellant had been
refused leave to rely,
in this Court, on setoff. As set out above, this Court
may grant leave to advance a ground of appeal not allowed by the court
a
quo
, if there is sufficient merit to warrant the consideration of it. I
turn, therefore, to a consideration of the merits of prayer B.
24
I have considerable difficulties with the legal basis underlying prayer
B.
Voet, who deals with this matter, was of the view that neither
set-off nor suspension could be raised in respect of an obligation
to pay
maintenance (see
Comm. ad Pand
. 16.2.16 and 25.3.5).
Our courts appear
to have followed Voet's point of view. It seems to be an accepted rule that if
the husband who has been ordered
to pay maintenance to a child, avers that he
has paid more than his share, or that the wife has wrongfully spent the
children's maintenance,
the correct remedy is to institute action against the
wife and not to claim set-off against the children, (see
R v Glasser
1944
EDL 227
at 232, 233;
Kanis v Kanis
1974(2) SA 606 (RAD) at 609 C - H;
Phillips v Phillips
1961(2) SA 337 (D) at 341 B - D.)
It is, however, not necessary to formulate the correct legal principle and
dispose of the instant case in accordance therewith, for
there are
insurmountable factual problems in granting leave to advance prayer B. As stated
before, the claim for set-off rests on
the alleged misappropriation by the
respondent. As explained above, the factual substratum of this allegation has
not been proved,
25
and it would be futile to consider prayer B.
Consequently, leave to advance prayer B must be refused.
(iv)
Leave to advance prayer C, i.e. the reimbursement by the respondent of
the alleged misappropriated maintenance monies
.
The order
encompassed in prayer C by the appellant in effect seeks judgment against the
respondent for payment of R55 443 plus interest.
Neither the Maintenance Court nor the court
a quo
was asked for a
similar order. By virtue of sec 5(4)(b) of the Act, the Maintenance Court had no
jurisdiction to make such order.
And although the court
a quo
and this
Court on appeal to it, according to sec 7(2) of the Act"... may make such order
in the matter as it may deem fit", this
is clearly not a case where the order
requested should be granted. As indicated above, the alleged misappropriation
was never canvassed
with the respondent at the trial and was never proved. It
would be futile to grant the leave requested.
The application to advance prayer C is refused.
The merits of the appeal:
underlying principles
.
26
This brings us to the proper scope and object of this appeal, viz. an
evaluation of the correctness or otherwise of the judgment of
the court
a
quo
. In this regard, attention should once again be drawn to the decision of
this Court in
Bordihn v Bordihn
1956(2) PH B32 (A) at 91-2, reiterated in
Mentz v Simpson
1990(4) SA 455 (A) at 456E - 457C, in which the
respective approaches by a trial court and a court of appeal to cases such as
the
present one were formulated. In deciding what, in the circumstances of a
particular case, a reasonable amount to award as maintenance
for a child would
be, the trial judge has to consider a variety of factors,
inter alia
, the
needs of the child, the social status of the parties, the ability of the father,
and if need be, the means of the mother to
pay maintenance. The amount arrived
at must necessarily be an estimate. In these circumstances the approach of an
appeal court, when
asked to interfere with the estimate of the trial judge,
should be along the lines adopted in compensation cases. In
Sandler v
Wholesale Coal Supplies Ltd
1941 AD 194
at 199 - 200 Watermeyer JA
stated:
"The amount to be awarded as compensation can only be determined
by
27
the broadest general considerations and the figure arrived at must necessarily
be uncertain, depending upon the Judge's view of what
is fair in all the
circumstances of the case. For this reason a Court of Appeal does not readily
interfere with an estimate made
by the Court appealed from. Attempts have been
made in several cases in which the assessment of damage was a matter of
estimation
rather than calculation to define the class of case in which a Court
of Appeal should interfere. ...These citations suggest that
a Court of Appeal
should not interfere unless there is some striking disparity between its
estimate of the damages and that of the
trial Court, and further unless there is
some unusual degree of certainty in its mind that the estimate of the trial
Court is wrong."
Joubert JA in
AA Mutual Insurance Association Ltd v Maqula
1978(1)
SA 805 (A) at 809 B - C succinctly formulated the
principle as follows:
"... (T)his Court will not, in the absence of any misdirection or irregularity
interfere with a trial Court's award of damages unless
there is a substantial
variation or a striking disparity between the trial Court's award and what this
Court considers ought to have
been awarded, or unless this Court thinks that no
sound basis exists for the award made by the trial Court."
But, as was pointed out by Watermeyer JA in the
Sandier
-case (at
200),
this does not imply the abdication by a court of appeal of
its essential function.
"But it does not follow that a Court of Appeal must renounce its functions as a
Court of Appeal by deferring to the estimate of the
trial Court in a case of
doubt or difficulty. ...Seeing that an appeal is a rehearing of all the
questions involved in the action,
including
the
28
quantum
of damages, a Court of Appeal must necessarily decide upon the
figure which it thinks should have been awarded. When it has done
that, if the
figure arrived at, considered from all aspects, differs substantially from the
figure awarded, the Court of Appeal must
give effect to it. If it does not do
so, it is deferring to the judgment of the trial Judge and not carrying out its
functions as
a Court of Appeal by exercising its own judgment upon a matter
which is before it on appeal."
I intend to apply the approach
outlined above to the judgment of the court
a quo
.
An order made by
the Supreme Court at the time of divorce of the parents relating to the
maintenance of a child or children may be
varied by the Maintenance Court by
virtue of sec 4(l)(b) of the Act or by the Supreme Court by virtue of
sec 8(1)
of the
Divorce Act, 10 of 1979
.
As general point of departure it can be
stated that in the absence of a material change in the circumstances since the
making of the
original court order, there can be no sufficient cause for
amending such order. But proof of a material change in the relevant
circumstances
is not a statutory prerequisite
Havenga v Havenga
1988(2)
SA 438 (T) at 445 C - F).
The point of departure for proceedings for a variation of an existing
order
29
must be the children's needs. Once that has been established, the ability of
the party obliged to pay the maintenance (and also that
of the other parent)
should be established. The children's needs can then be adapted accordingly, if
necessary (see
Mentz v Simpson
,
supra
, at 461 I - J).
The needs
of the children
.
The court
a quo
has given extensive and careful consideration to the
figures and arguments presented by both parties. The court reduced a number
of
items claimed by the respondent, and arrived at the figures referred to earlier
in this judgment.
Nowhere in his copious heads of argument did the appellant
analyse or criticise the court's calculation. He rather aimed attacks at
the
respondent from various, mostly irrelevant, angles, e.g. her misappropriation of
the children's maintenance, his claim for interest
on such monies, the alleged
failure of the court
a quo
to take into account that the children spent
some of their holidays with him, that he pays a small (indeed negligible) amount
of
pocket-money to the children directly, her decision to give up her practice
in Johannesburg and
30
to move to Grahamstown in order to further her studies, which he described as
self-indulgence, and her decision to retain two properties
in Johannesburg which
she lets at a loss. At the hearing of the appeal the appellant was invited to
give attention to the calculations
by the court
a quo
. It soon appeared
that his criticism was not based on any evidence and is quite unfounded. Indeed,
his suggested figures as compared
to his allegations of what he spends on his
own household, e.g for food, are clearly unfounded and unreasonable.
Under
these circumstances there is no basis on which the calculation of the children's
needs by the court
a quo
can be disturbed.
The standard of living of
the parties
.
The next enquiry then is whether these expenses are
commensurate with the standard of living of the parties.
The appellant was a
partner in a very large firm of attorneys. At one
stage he was one of the top
fee-earners in his firm. For the past few years his
earnings from fees, as
certified by the firm's auditors, were as follows:
28 February 1989 R128
222
31
28 February 1990 R135 374
28
February 1991 R254
066
29
February 1992 R281 656 28 February
1993 R348 502.
He also earned R3250
per annum
(i.e. R270 per month) lecturing in business law, and earned dividends in the sum
of R90 - R125 per month.
After their marriage, the parties lived in a house
in Melville, then went on study leave to New York for a year (at a cost,
according
to appellant, of more than R190 000) and returned to the Melville
residence for two or three years. They then purchased a house in
Parktown North,
where they lived until they separated some time prior to the divorce, whereupon
the appellant moved back to the Melville
residence, which still belonged to
him.
During the subsistence of the marriage the parties lived for some time in
Parktown North, which the appellant described as one of
the better areas of
Johannesburg. The house was situated on half an acre of ground, with a swimming
pool. The appellant described
the house as "a very nice house" with
32
very expensive woollen carpets in the main bedroom and study. The kitchen was
fitted with top quality fittings. After the appellant
had bought the house, he
spent approximately R45 000 on renovating it. The house was fitted with quarry
tile patios, and underfloor
heating in the master bedroom and study. He employed
a gardener, a domestic servant and a half-day nanny. They had two motorcars,
and
dined out at very expensive restaurants, sometimes as often as once a week. Once
they went to Europe on holiday; every year they
would go on holiday, hiring a
cottage and even motorcars, and again dining out at very expensive restaurants.
During 1982/1983 he
did not work in the legal firm; but took a year off to read
for his doctorate in banking law at the University of the Witwatersrand.
They
bought a very expensive lounge suite in 1988; the diningroom suite was of
expensive yellowwood; the lounge and family room were
fitted with very expensive
mohair curtains; they enjoyed the benefit of all the modem conveniences such as
dishwashers etc.; the
appellant maintained a selection of good wines and they
drank two to three bottles of wine per week. The appellant and the respondent
both pursued post-graduate studies and they
33
had a propensity towards intellectual activities.
After the divorce, until
1992, the appellant continued living in the house in Melville, which was fully
paid for i.e. the appellant
had no bond repayments in respect of the property.
In September 1992 he purchased a house in Forest Town for R440 000, incurring
a
bond repayment obligation of ± R4200 per month. He also had to spend R40
000 on renovations on the property. The appellant
says the Melville property was
not an appropriate address for a senior partner in his firm and hoped to sell
it. He also considered
the price he paid to be a bargain. The purchase of the
Forest Town residence brought about additional expenditure in the form of
rates
at R337,08 per month, maintenance at R250 per month and furniture purchases at
R250 per month. He claimed R400 per month for
clothing for himself, and
testified that the amount was mainly spent on suits; he later reduced this claim
to R200 per month. He
also claimed R870 per month for motor repairs and R300 for
sundry monthly expenses. He conceded that the new residence had a swimming
pool,
but said that it was non-functional. The property in Melville, which has not
been sold
34
yet, is worth R140 000 but is let at a loss of R90,00 a month, the appellant
having bonded it for R96 000. His shares are worth R17
800 and finally he is
entitled to the capital of a trust fund in Canada, which stands at R190 000.
There would be no problem, according
to his evidence, in bringing that money to
South Africa and spending it on the maintenance of his children. The evidence
was that
the fund was, in any event, established to provide for the tertiary
education of the boys in Canada. Subsequent to the divorce he
had spent
approximately R25 000 on compact discs.
The appellant conceded that, should there be a remission in his depression (a
matter to which I return later), he had the potential
to be a top fee-earner in
the firm, and that he would be able to charge very high fees.
As far as the respondent is concerned, at the time of the divorce she had
obtained the five degrees hereinbefore described. She practised
as a
psychologist from the matrimonial home and earned between R2500 and R3000 per
month. She stopped practising as a psychologist
in December 1990 and was
accepted by Rhodes University for a doctorate in psychotherapy. Such a degree
would
35
enable her to generate more income. Her net income at the time of the enquiry
was approximately R4567 per month after tax deductions,
being a salary from
Rhodes University as a part-time lecturer; a salary from Fort England Hospital
for work performed there; monthly
fees earned and rental income. At the end of
1993 her nett income would be reduced because the Rhodes appointment would come
to an
end. The appointment at Fort England was a temporary one. If, at the end
of 1993, she had completed the Ph.D. degree, she would forfeit
the right to
occupy a university flat. She intended then purchasing a modest house in
Grahamstown near Graeme College, which the
boys would attend, at a price of R160
000 to R170 000. The bond repayment would amount to approximately R2030 to R2170
per month.
The boys had skateboards and bicycles, footballs, marbles, and tennis
balls, they kept fish and rabbits and they intended building
a tree house. They
were also taking tennis and gymnastics lessons. The respondent needed a car to
get to her work and classes.
The court
a quo
described the house in Parktown North as a luxury
abode and stated that the evidence disclosed that the family enjoyed a high
standard
36
of living. In his Notice of Appeal the appellant criticized these findings by
the court
a quo
and also described the alleged failure of the court
a
quo
to mention that "some reduction in (the) standard of living for both
spouses and their children is normally the result of the break
up of a joint
home" as an error.
The appellant's criticism of the findings of the court
a quo
is unfounded. The parties indeed,
stante matrimonio,
maintained a very high standard of living; after the divorce this standard did
not drop. On the contrary, measured against the appellant's
increased income and
his move to a more luxurious and expensive residence etc, his standard of living
has risen.
There is, accordingly, no reason why the children's needs should now
be
measured against a lower standard than that which prevailed at
the time of the
divorce.
The appellant's ability to pay the maintenance as ordered by the Supreme
Court at the time of divorce
.
I have already alluded to the fact that the appellant's annual income
rose
from R128 220,00 for the year ending 28 February 1989, to
R135 374 in 1990,
37
R254 066 in 1991 to R281 656 in 1992 and R348 502 to 28 February 1993.
According to the evidence his income for March 1993 was R25752,72,
which was
still consistent with the income earned in the tax year ending on 28 February
1993. But then, in April 1993 it decreased
to R12363,00, in May 1993 to R225,
June 1993 to Rl 125,00 and July 1993 to R675,00. At the enquiry he estimated his
monthly income
for the tax year ending 28 February 1994 as R176488, i.e. R14707
per month.
The decrease in income for the four months preceding the
application to the Maintenance Court was the sole basis of the complaint,
and
was in turn laid at the door of the economic recession and the appellant's
endogenous depression.
The reliance on an economic recession is not convincing at all, despite the
claim that his firm's income was dropping steadily. The
appellant's own income
up to the end of February 1993 was increasing steadily. His income in March 1993
was not markedly less than
that of his average income in the previous tax
year.
38
As far as the reliance on endogenous depression is concerned, there is a
total lack of convincing evidence as regards the duration
of the condition
complained of. Moreover, the appellant conceded that by the time of the hearing
of the enquiry, which occurred in
August 1993, his condition had shown a marked
improvement over what it had been earlier that year. Moreover, the first letter
by
the appellant's firm recording the appellant's drop in income stated that
"... his problems were already manifesting themselves in
March ...". Apparently
the condition complained of only influenced his income as from March 1993. By
August 1993 there was a marked
improvement. In my view the evidence of a
decrease in income for five months does not constitute sufficient cause for a
variation
of the order made by the Witwatersrand Local Division. This is
especially so where the appellant had a trust fund of R190 000 available
from
which he could supplement his temporary cash flow problem. His refusal to do so
is, in my view, unreasonable and unjustifiable.
The ultra vires
argument
.
Finally, reference should be made to the appellant's reliance on
the
39
alleged nullity of that part of the judgment of the court
a quo
relating to
educational expenses. As mentioned earlier, the court
a quo
expressly
ordered
that, apart from a reduction in the cash amount payable by the
appellant he
must obey all the other terms of the order made by the Supreme
Court, i.a. the
payment of all the reasonable educational expenses (including
school fees and
levies, stationery, school uniforms and extramural
activities) of the two children.
The appellant now argues that such order was
ultra vires
the Act.
His
argument is set out in the heads of argument as follows:
"Section 5(4)(b) of the Maintenance Act 23 of 1963 gives the maintenance court
the power to order payment of a cash sum and medical
expenses but makes no
mention of educational expenses. A maintenance court's order is in substitution
for the existing order and
replaces it in its entirety
Purnell v Purnell
1993(2) SA 662 (A) at 667 J to 668 A - so that the fact that the previous order
granted by the divorce court by consent included
educational expenses cannot
serve as the basis for an order that the appellant pay educational expenses. It
follows, it is respectfully
submitted, that the appeal court's order that the
appellant pay the children's educational expenses is
ultra vires
."
The appellant's argument is ill-conceived. As was clearly pointed out
in
Purnell v Purnell
,
supra
, at 666 F - 667 H, an
existing maintenance order only
40
ceases to be of force and effect if the Maintenance Court makes an order
replacing or discharging it (see secs 4(1), 5(4) and 6(1)
of the Act).
In the
present case the Maintenance Court did not issue an order replacing or
discharging the existing Supreme Court order. In fact,
in dismissing the
appellant's complaint, it left the existing order intact. The court
a quo
in turn only reduced the cash amount monthly payable to the children and
confirmed the continuation of all the appellant's other
maintenance obligations.
The court
a quo
was entitled to make such an order by virtue of sec 7(2)
of the Act.
The respondent gave notice of intention to ask this Court for a
special
order of costs, on the attorney and client scale, against
the appellant. Having
given the matter careful consideration, I am not
convinced that such an order
should be made in the present appeal.
The
following orders are made
:
1. The applications numbered (i) to (iv) hereinbefore are dismissed with
costs.
41
2. The appeal is dismissed with costs.
HEFER, JA )
SMALBERGER, JA )
)CONCUR F H GROSSKOPF, JA )
VAN COLLER, AJA )