Summary of Judgment

1. Introduction

The matter concerned appellate proceedings in the Supreme Court of Appeal arising from post-divorce enforcement steps taken under a maintenance provision incorporated into a divorce order. The appellant was Graham John Bursey (the former husband and maintenance debtor), and the first respondent was Jane Noelle Bursey (the former wife and custodian parent at the time of divorce). The second respondent was the Sheriff of the High Court of South Africa (South Eastern Cape Local Division), cited because the sheriff’s office executed the writ complained of, but the sheriff abided the decision and played no substantive role.

The procedural history began after the parties’ divorce on 17 October 1994, when the divorce order incorporated a settlement agreement regulating, among other things, maintenance for two children. A dispute later arose regarding maintenance for the elder child, J., after he reached majority. The first respondent caused a writ of execution to be issued in the Eastern Cape Division under Uniform Rule 45(1) and property belonging to the appellant was attached. The appellant then applied to set aside the writ.

The application succeeded before Erasmus J, whose judgment is reported as B v B and Another 1997 (4) SA 1018 (SECLD). The first respondent’s appeal to the Full Court succeeded, reversing Erasmus J’s order. The appellant then appealed to the Supreme Court of Appeal. In the Supreme Court of Appeal, the first respondent filed a notice that she would abide the decision and was not represented at the hearing.

The general subject-matter of the dispute was the interpretation and enforceability of a divorce-order maintenance clause that required payment “until the said children become self-supporting”, and, specifically, whether that obligation in relation to J. ceased upon majority, whether it remained enforceable by the former wife, and how such an order operates in relation to the common-law duty of support.

2. Material Facts

The parties were divorced on 17 October 1994. The divorce order incorporated an agreement awarding custody of the two children, J. and K., to the first respondent. The agreement further obliged the appellant to pay maintenance “as and for maintenance for the said minor children” in the amount of R750 per month per child, payable monthly, and stipulated expressly that the maintenance “shall be paid until the said children become self-supporting”.

At the time of divorce, J. was already 19 years and 7 months old (born 6 March 1975). He was a first-year student at Rhodes University and had registered for a three-year course ordinarily to be completed by the end of 1996. The maintenance dispute arose after the appellant wrote to J. on 21 February 1996, indicating that when J. turned 21 on 6 March 1996, the appellant considered that he would no longer be obliged to pay maintenance “through” the first respondent because she would no longer be J.’s custodian. He stated that he would thereafter pay maintenance directly to J., and he requested details of J.’s expenses, part-time earnings, and amounts received from the first respondent in order to calculate future maintenance.

J.’s attorney provided the appellant with a list of expenses. The appellant then complained, in a letter dated 29 April 1996, that he had not been provided with details of J.’s part-time earnings or the amounts received from the first respondent. The appellant stated that, due to J.’s attitude, he had decided not to assist further and that the issue would have to be resolved in court. The appellant had also advised J. to approach the maintenance court. After that correspondence, the appellant paid no further maintenance for J.

Following cessation of payment, the first respondent (who had moved to Cape Town) issued a small claims court summons in Cape Town on 21 June 1996 for arrear maintenance for J. under the divorce order. J. also caused the appellant to be summoned to appear in the maintenance court at Grahamstown on 29 July 1996. That maintenance court matter was postponed to 28 October 1996, when it was withdrawn. The small claims action was withdrawn on the day of hearing, 24 October 1996.

While the small claims and maintenance court proceedings were still pending, the first respondent caused a writ of execution to be issued on 1 October 1996 from the Eastern Cape Division in terms of Rule 45(1). Pursuant to the writ, certain of the appellant’s law reports were attached by the deputy sheriff in Port Elizabeth on 9 October 1996. The first respondent refused the appellant’s request to withdraw the writ, and the appellant applied to court to have it set aside. The sheriff abided the decision.

The material dispute was not about the existence of the divorce order or the wording of the maintenance clause, nor about the sequence of enforcement steps taken; it centred on the proper interpretation and legal effect of the clause “until the said children become self-supporting”, and on who could enforce the obligation after J. attained majority. A factual defence that J. had, in truth, become self-supporting (or that the appellant was no longer liable on that basis) was not raised in the proceedings.

3. Legal Issues

The central legal questions the court was required to determine were, first, whether on a proper interpretation of the divorce order the appellant’s obligation to pay maintenance for J. terminated upon J. attaining majority, despite the express wording that maintenance would be paid until the children became self-supporting. This issue was primarily one of law, involving the construction of a court order embodying an agreement, informed by the legal context of the parental duty of support.

Secondly, the court had to determine whether the fact that maintenance was payable to the first respondent (as custodian at the time of divorce) meant that, upon J.’s majority, the obligation either ceased, or became enforceable only by J. and not by the first respondent. This issue concerned the application of legal principle to the form and function of a maintenance order, including its relationship to the common-law duty.

Thirdly, the court considered whether the settlement agreement incorporated in the order constituted a stipulatio alteri in favour of J., with the result that only J. could enforce the maintenance obligation. This was a question of law, turning on contractual characterisation and the parties’ intention.

Although not advanced as a substantive defence on the facts, the judgment also addressed the conceptual question whether such a maintenance order is automatically varied or terminated when changed circumstances occur, and, more specifically, whether it would cease to operate when the child becomes self-supporting. This required an assessment of how a maintenance order operates in relation to factual changes, and whether termination is ipso jure or depends on variation/termination by a court, depending on the terms of the order.

4. Court’s Reasoning

The court began by restating the common-law position that both divorced parents owe a duty to maintain a child of the dissolved marriage, with the incidence of the duty depending on the parents’ relative means and circumstances and the child’s needs. Crucially, the court emphasised that the duty does not terminate at a fixed age; it can continue after majority. The court located this understanding within both common law and the structure of section 6 of the Divorce Act 70 of 1979, particularly the distinction between provisions relating to minor children (custody/guardianship/access) and the broader concept of maintenance for a “dependent child”.

Building on that foundation, the court treated a divorce maintenance order as ancillary to, and not a replacement of, the common-law duty of support. The court endorsed the view that, as a matter of expediency, divorce courts typically regulate the incidence of the duty between parents in the divorce order, but the underlying duty remains.

Turning to the construction of the specific clause, the court held that the order was clear and unambiguous. It rejected the appellant’s attempt to rely on the phrase “maintenance for the said minor children” as qualifying the duration of the maintenance obligation. The court construed those words as identifying the children by reference to the custody clause, rather than importing a limitation that maintenance would end on majority. The decisive textual feature was the express duration term that maintenance “shall be paid until the said children become self-supporting”, which, on its ordinary meaning, contemplated possible continuation beyond majority.

The court then addressed the appellant’s contention (drawn from reasoning associated with earlier cases) that because maintenance was payable to the first respondent in her capacity as custodian, the obligation either ended when custody status ceased at majority or could thereafter be enforced only by J. The court rejected this, reasoning that the order regulated the incidence of the parents’ joint duty such that, after majority, the first respondent could continue paying maintenance to J. and could recover, under the order, the appellant’s contribution to that duty. The court added that J.’s position remained protected in that he could, during the operation of the order, enforce his common-law rights against his parents, including seeking an upward variation upon proof of the requirements for variation.

In evaluating the approach taken by Erasmus J, the court considered the proposition adopted in the court of first instance that, “as a general rule”, an order to pay maintenance for a minor child to a custodian parent loses effect upon the child reaching majority. The Supreme Court of Appeal agreed with the Full Court that the authorities relied upon did not support such a broad general rule. It distinguished Richter v Richter and Gold v Gold on the basis that, in those matters, the orders did not specify a terminating event; implication was used to supply a cessation point (majority or earlier self-support) so that effect could be given to the order. By contrast, the present order did specify a terminating event—self-support—so there was no need to imply a condition to interpret it. The court also discussed Kemp v Kemp, noting that it was not authority for the broad proposition stated by Erasmus J; in Kemp, the order itself specified payment until a certain age, and the court cautioned against implying an automatic cessation prior to that age.

On that basis, the court concluded that the present maintenance clause meant what it said: the appellant was obliged to pay maintenance for J. until J. became self-supporting, even if that occurred after majority. The court further observed that there is no legal obstacle to a divorce order providing for maintenance beyond majority in appropriate circumstances, and referred to Raff v Cohen as an example where clear wording extending maintenance beyond majority was enforced according to its terms.

The court then considered, as a matter of clarity, whether the order would cease to operate automatically when J. becomes self-supporting. Drawing from the analysis in Kemp, the court explained that a maintenance order exists separately from fluctuations in the common-law duty; it is not ipso jure varied by changed circumstances, though it can be brought into harmony with the underlying duty by a court. However, where the order itself stipulates a period or event delimiting its duration, it will cease to operate when that event occurs. Applying that to the present order, the court held that it fixed the duration as lasting until J. becomes self-supporting, and it would cease when that objective event occurs (while noting, without deciding, a possible question whether “capable of supporting himself” could be relevant). The court stressed that whether self-support has been achieved is an objective fact capable of determination, but also noted that no defence based on self-support had been raised in the proceedings.

Finally, the court rejected the submission that the agreement was a stipulatio alteri in favour of J. The court found no intention, when concluding the agreement, to confer upon J. a contractual right distinct from the right flowing from the parents’ common-law duty of support. The court treated the settlement clause as regulating parental obligations inter se rather than creating a third-party contract.

A further submission advanced in written argument—concerning the discretionary staying or setting aside of the writ—was recorded as having been abandoned at the hearing, and the court therefore did not engage with it.

5. Outcome and Relief

The Supreme Court of Appeal dismissed the appeal. The result was that the Full Court’s decision, which had upheld the enforceability of the writ (and rejected the setting aside ordered by Erasmus J), remained in place.

The court ordered that the appeal was dismissed with costs.

Cases Cited

In re Estate Visser 1948 (3) SA 1129 (C).

Kemp v Kemp 1958 (3) SA 736 (D & CLD).

Lamb v Sack 1974 (2) SA 670 (T).

Hoffmann v Van Herdan NO and Another 1982 (2) SA 274 (T).

Richter v Richter 1947 (3) SA 786 (W).

Gold v Gold 1975 (4) SA 237 (D & CLD).

Russell v Boughton 1955 (2) SA 229 (SR).

Raff v Cohen 1956 (4) SA 426 (C).

Total South Africa (Pty) Ltd v Bekker NO [1991] ZASCA 183; 1992 (1) SA 617 (A).

B v B and Another 1997 (4) SA 1018 (SECLD).

Legislation Cited

Divorce Act 70 of 1979, section 6(1)(a) and section 6(3).

Rules of Court Cited

Uniform Rules of Court, Rule 45(1).

Held

The court held that, properly interpreted, the divorce order required the appellant to pay maintenance for J. until J. became self-supporting, and that this obligation was not limited to the period of J.’s minority. The phrase referring to “minor children” served to identify the children and did not qualify the duration of the maintenance obligation in the face of the express “self-supporting” term.

The court further held that the first respondent was entitled to enforce the maintenance obligation under the order, notwithstanding that J. had attained majority, and that the order did not become enforceable only by J. on the basis that payments were originally directed to the custodian parent.

The court held that the incorporated agreement was not a stipulatio alteri creating a separate contractual right in favour of J., because the necessary intention to confer such a right was not established.

The appeal against the Full Court’s decision was dismissed, and the appellant was ordered to pay costs.

LEGAL PRINCIPLES

A divorced parent’s common-law duty of support towards a child does not terminate automatically upon the child reaching majority; it may continue beyond majority where the child remains dependent, with the incidence of the duty depending on the parents’ means and the child’s needs.

A maintenance order made upon divorce is generally ancillary to the common-law duty of support and regulates the incidence of that duty between the parents; it does not replace or extinguish the underlying duty.

Where a maintenance order is clear and unambiguous as to its duration, a court will give effect to its express terms and will not imply a condition (such as cessation at majority) merely because the beneficiary was referred to as a “minor” elsewhere in the consent paper.

Authorities implying cessation upon majority in the absence of a stated termination event do not justify a broad general rule that maintenance orders payable to a custodian parent always lose effect at majority; the proper approach depends on the wording of the order.

A maintenance order is not automatically varied by changed circumstances, but it may stipulate an objective terminating event; where it does, it will cease to operate upon the occurrence of that event. A party liable under the order may raise, as a factual defence where appropriate, that liability has ceased because the terminating event (such as self-support) has occurred, but such a defence must be properly raised on the facts.

An incorporated divorce settlement providing for maintenance is not, without more, a stipulatio alteri in favour of the child; the creation of a third-party contractual right requires an intention to confer such a right distinct from the right flowing from the parental duty of support.