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[2013] ZAWCHC 161
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ER v LB (2237/2013) [2013] ZAWCHC 161 (11 September 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT)
Reportable
Case No: 2237/2013
In
the matter between:
ER
.......................................................................................................................
Applicant
and
LB
..................................................................................................................
Respondent
___________________________________________________________________
JUDGMENT DELIVERED ON
11 SEPTEMBER 2013
BOQWANA AJ
Introduction
This is an application
for the repayment of maintenance in the amount of R40 976.00,
on the basis of unjustified enrichment,
which the applicant alleges
he paid to the respondent for the period of April 2007 to November
2012.
At the commencement of
these proceedings, I enquired from the applicant’s Counsel, Mr
Shaw, why this matter was brought
in the High Court when the quantum
was clearly within the jurisdiction of the Magistrate’s Court.
Mr Shaw remarked that
his clients had not received good service from
the Magistrate’s Court that this matter was complex and it had
a constitutional
element that could be better determined in the High
Court.
I find Mr Shaw’s
remarks about the Magistrate’s Court’s service very
unfortunate and degrading of the lower
courts and hardly a valid
reason for a party’s decision to bring a matter deserving of
being heard in lower courts, to
the High Court. In view of the costs
already incurred by the litigants I proceeded to hear the matter.
Before the hearing of
this application, the issue concerning the late filing of the
answering affidavit was raised. I granted
condonation on the basis
that the respondent had shown good cause for the late filing of the
answering affidavit in her papers.
Facts
On 09 July 2004 a decree
of divorce incorporating the terms of the agreement of settlement
between the parties, dated 03 March
2004, was granted by the
Witwatersrand Local Division (‘South Gauteng High Court’).
The agreement of
settlement made provision for payment of maintenance for the
parties’ two minor children, by the applicant,
at the rate of
R500.00 per month, per child, commencing on 01 April 2004. In terms
of clause 3.5 of the agreement of settlement
parties agreed that
payment of the aforesaid maintenance would increase yearly on the
1
st
day of April, in accordance with the CPI rate from
time to time.
On 10 September 2007,
maintenance was increased to R 1500.00 per month per child, by means
of the Consent and Maintenance Order
granted by the Bellville
Magistrate’s Court. This Order was signed by the applicant and
was effective from 01 October 2007.
It substituted the Order made by
the South Gauteng High Court. The new Order was obtained with the
written consent of the applicant
as the party against whom the Order
was made.
This Order however did
not provide for an escalation clause as did the previous one.
Despite this, the applicant paid yearly increases
from the period of
April 2007 to November 2012 totalling an amount of R40 976.00
in respect of maintenance.
The applicant alleges
that he was pressurised by the respondent’s attorneys in April
2008 to pay these further increases
based on the rate of inflation,
whereas they knew or should have known that the amounts were not due
by him. He also alleges
that the amounts were paid in error and
under duress to the respondent and although he had employed a lawyer
to write a letter,
the lawyer was not fully involved in the matter.
The overpayment, he
alleges, only came to light during the course of preparing for his
defence in a suit filed by the respondent
in June 2011 against him,
for a further increase in maintenance.
The respondent contends
that, although the new Maintenance Order is silent on the matter,
the parties had agreed during their
negotiations that maintenance
would be R1500 per child per month and would escalate annually in
accordance with inflation. She
alleges that the agreement was in
fact preceded by a debate on whether the increase should be 10% per
annum or inflation linked.
According to her, the parties agreed that
inflation would be more reasonable in the circumstances. She alleges
further that the
maintenance officer conveyed the agreement to the
parties and specifically mentioned that its escalation was linked to
inflation.
She only noticed recently, when it was raised by the
applicant, that the Magistrate erroneously failed to record the
escalation
clause on the Order itself. The agreement was
nevertheless not in doubt as evidenced by the payments made by the
applicant. She
further submits that the applicant’s consent to
the payments was implied or tacit.
The respondent further
contends that the two versions presented by the applicant, (i.e. the
payments were made in error and that
the payments were made under
duress), are mutually destructive. Either he made a bona fide
mistake or he was made to pay under
duress, it could not be both,
the respondent contends. She further submits that payment was in
respect of maintenance of the
children and not her, accordingly it
would be the children that were ‘enriched’ and not her.
Discussion
Mr Shaw submits on
behalf of the applicant that the application is based on the
conditio indebiti
, alternatively on the
conditio sine
causa
, alternatively on the
conditio ob turpem vel iniustam
causam
.
The requirements for an
enrichment claim are that the respondent must be enriched, the
applicant must be impoverished, the enrichment
must be at the
expense of the applicant and the enrichment must be unjustified. See
MN v AJ
2013 (3) SA 26
(WCC) at paragraph 17
. The central
requirement of
conditio indebiti
is that the payment or
transfer must have been effected in the mistaken belief that the
debt was due.
The mistake giving rise
to the payment must be excusable in the circumstances. See
Bowman,
De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd
1997 (2) SA
35
(A) at 44C and Willis Faber Enthoven (Pty) Ltd v Receiver of
Revenue and another
[1991] ZASCA 163
;
1992 (4) SA 202
(A) 223H – 224H.
Excusability
The applicant must place
sufficient facts before the Court to justify a finding that the
error that gave rise to the payment was
excusable. In the decision
of
Affirmative Portfolios CC v Transnet Ltd t/a Metrorail
[2009]
1 All SA 303
(SCA)
the Court referred to the decision of Hefer
JA’s in
Willis Faber
(at 224E–G) as guidance as
to what factors might determine the excusability of a particular
error. In the Willis’
the following was said:
‘
It
is not possible nor would it be prudent to define the circumstances
in which an error of law can be said to be excusable or,
conversely,
to supply a compendium of instances where it is not. All that need be
said is that, if the payer’s conduct is
so slack that he does
not in the court’s view deserve the protection of the law, he
should, as a matter of policy, not receive
it. There can obviously be
no rules of thumb; conduct regarded as inexcusably slack in one case
need not necessarily be so regarded
in others, and vice versa. Much
will depend on the relationship between the parties; on the conduct
of the defendant who may or
may not have been aware that there was no
debitum
and
whose conduct may or may not have contributed to the plaintiff’s
decision to pay; and on the plaintiff’s state of
mind and the
culpability of his ignorance in making the payment.’
In that matter the Court
rejected the argument by the respondent that overpayments were
induced by the fact that the appellant
had submitted invoices
claiming the increased rate of R17.25 per hour plus the 15 per cent
as an administrative fee.
Turning
to the facts of this case. It is apparent from the papers that the
applicant continued to pay increased maintenance over
a sustained
period of four years. The applicant avers in his replying affidavit
that there were discussions regarding the matter
of escalation but
there was no final agreement to this regard and the Court Order is
evidence to that. The problem with the applicant’s
version in
that regard is that, his conduct in paying the increase accords with
the respondent’s version that the parties
had indeed agreed
during the negotiations the maintenance would escalate based on
inflation. If the applicant knew already during
the negotiations
that there was no agreement, why was he of the mistaken belief that
he was liable to pay an increased maintenance
and in fact proceeded
to pay such an increase. In any event, the applicant chose motion
proceedings. In this regard, the respondent’s
version is to be
accepted in accordance with the Plascon-Evans rule. See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Lt
d
[1984]
ZASCA 51
[1984] ZASCA 51
; ;
1984
(3) SA 623
(
AD)
at
634 F.
Besides, the respondent’s version is the more probable of the
two when regard is had to all the facts before the Court.
The applicant’s
argument that he made a reasonable error is not supported by other
factors. First, he argues that he was
pressurised by the
respondent’s attorney in April 2008 whilst in his own version
he started making payments a year earlier,
(i.e. in April 2007). The
alleged pressure from the respondent’s attorneys could
certainly not have been a trigger to his
mistaken belief that he was
liable to pay the increase. In addition, he argues that he
discovered the error whilst preparing
his defence after institution
of legal proceeding by the applicant in July 2011 but he continued
to make payments up to November
2012. That conduct is certainly not
in keeping with a person who discovered that he had all along been
making incorrect payments.
He went along and continued to pay
voluntarily for more than a year after discovering the error. That
conduct is suggestive of
the fact that even if no oral agreement
existed as he alleges, he had tacitly and by his conduct agreed to
the increase.
Another important factor
is that correspondence sent to his attorneys by the respondent’s
attorneys in 2008 specifically
mentioned that the order of 10
September 2007 should be read with the original order of 2004. If
the applicant had an issue with
that (as he claims the parties had
not agreed) he or his attorneys should have raised it. It makes no
sense for the matter to
be raised after four years, when the parties
and attorneys were engaging on the maintenance increase issue long
before November
2012. At best the applicant’s conduct would be
one of those described by Boruchowitz AJA in the
Affirmative
Portfolios
decision, supra, at paragraph 31 of his judgment as
being a ‘Grossly negligent conduct or inexcusable slackness in
the
conduct of one’s own affairs’ which is generally,
(but not necessarily) regarded as inexcusable conduct.
The
allegation of duress is also without merit.
In
BOE
Bank Bpk v Van Zyl
2002
(5) SA 165
para [36],
the
Court re-affirmed that the party wishing to rely on duress in order
to set aside a contract, must allege and prove that there
was a
threat of considerable evil to the person concerned, or to his or
her family, such as to induce a reasonable fear of an
imminent or
inevitable evil; that the threat or intimidation was unlawful or
contra
bonos mores
;
and the moral pressure used must have caused damage. (see also
Arend
and Another v Astra Furnishers (Pty) Ltd
1974
(1) SA 298
(C) at 306A-B)
.
None of that has been shown in this matter by the applicant.
Enrichment
To succeed in a claim
under
conditio indebiti
, the onus is on the applicant to show
that the respondent’s estate has been enriched to the extent
that there has been
an increase in her assets as a consequence of
the payments. In the
MN v AJ
matter
supra,
where the money paid as maintenance had been spent on
maintaining a child who was not the plaintiff’s biological
child with
some of the money having been used for the payment of
school fees, the Court held that the plaintiff did not establish a
prima facie
case of enrichment by simply proving payment of
money to the defendant. The Court held the following at paragraph
74:
‘
Given the
fact that the money that was paid (albeit grudgingly and somewhat
irregularly, according to the plaintiff) was for the
maintenance of a
child (and there is no suggestion that the defendant did not use it
for that purpose), it would not be fair to
the defendant to now order
her to restore either the entire amount or a part thereof to the
plaintiff.’
It is not enough for the
applicant to show that the money was paid into the respondent’s
bank account as Mr Shaw submits.
The money was paid to the applicant
not for her own use but for the children’s maintenance. There
is no suggestion that
the money was not used for maintenance. The
applicant’s allegation that the respondent lives in a house
which is worth
millions of rand is no proof that she used
maintenance money for the house. That claim is farfetched and must
be rejected.
Furthermore the
allegation that she is married to a millionaire husband is also
irrelevant as the current husband owes no legal
duty to maintain the
parties’ minor children. The issue before this Court is in any
case not whether or not the applicant
can afford to pay maintenance
or the amount he is currently paying.
Public policy
This takes me to the
public policy considerations and rights of children. Mr Shaw argues
that even if the oral agreement existed,
it would be invalid because
of the parole evidence rule in that the parties decided to reduce
their agreement in writing. It
is well established that where
parties decide to embody their final agreement in written form the
execution of the document deprives
all previous statements of their
legal effect. See
Affirmative Portfolios
at paragraph 13. In
that case the Court held that not all oral or collateral agreements
are necessarily deprived of legal effect.
It said the following at
paragraph 14:
‘
The
parole evidence rule applies only where the written agreement is or
was intended to be the exclusive memorial of the agreement
between
the parties. Where the written agreement is intended merely to record
portion of the agreed transaction, leaving the remainder
as an oral
agreement, then the rule prevents the admission only of extrinsic
evidence to contradict or vary the written portion
without precluding
proof of the additional or supplemental oral agreement. This is often
referred to as the “partial integration”
rule. See
Johnston v Leal and the cited cases’
In order to determine
whether the parties intended a written contract to be an integration
of their whole transaction or merely
a partial transaction, the
Court may look at surrounding circumstances, including the relevant
negotiations of the parties. In
this case, the Court has already
found that the circumstances of this case are suggestive that the
common intention between the
parties was for the maintenance to
escalate annually based on inflation. There is no evidence that the
parties agreed that the
escalation clause would not form part of the
Consent Maintenance Order. To the contrary, evidence suggests that
parties agreed
to the increase and it must have been an oversight
for it not to be included in the Order. In any event, the Consent
Maintenance
Order does not contain a non-variation clause.
To take this point even
further, in a decision of
GF v SH and Others 2011 (3) SA (GNP)
that dealt with variation by subsequent oral agreement between the
parties of a maintenance regime set out in a settlement agreement,
Kollapen AJ (as he then was) held that even though the Shifren
principle (established in
Shifren and Others v SA Ko-op
Graanmaatskappy Bpk
1964 (2) SA 343
(O)
) which holds that any
attempt to agree informally to vary a contract containing a
non-variation clause, except in writing, must
fail is subject to
public policy considerations which may well permit and indeed
justify departure from such a principle. I agree
with the remarks
made by Kollapen AJ when he stated:
‘
[21
In conclusion, I find that while the principle remains a firmly
entrenched and necessary part of the law, the departure may
not only
be constitutionally permissible, but perhaps even
constitutionally mandated.
[22]
If indeed the
Shifren
principle were entrenched and did not
apply in the context of family law, it may well have the effect of
achieving all kinds of
unintended consequences that may well militate
against the development of a public policy consistent with the norms
and values
of our Constitution. In particular, a strict
adherence to those principles may well mean that parents become
saddled with
a disproportionate share of their responsibility in
respect of the maintenance and upbringing of a minor child. It may
well have
the effect of restricting the ability of parents to do that
which the best interests of the child demand, as opposed to that
which they are obliged to do in terms of an agreement of settlement,
which terms and provisions may well not have kept in touch
with the
changing times and developments relevant to the context.’
In
casu,
cost-of-living
is not static. M
aintenance
orders generally include a
cost-of-living
provision to keep up with the inflation. To suggest that the
applicant would pay a flat rate of R1500.00 for all the years with
no adjustments is most unlikely and could not be in the best
interests of the children. In particular the applicant’s claim
for repayment of the maintenance amount offends public policy and
totally ignores the reciprocal obligations of both parents
towards
the minor children. The applicant’s application simply focuses
on the extra R333 to R 1144 amounts he paid per
month per child that
he alleges were not part of the Court Order and pays little regard
to the fact that those payments were
made towards the maintenance of
his minor children.
.
Mr Shaw’s
‘constitutional’ submission that the fathers would be
unequally treated if they are not allowed to
reclaim overpayment of
maintenance is misplaced. He presupposes that only fathers have an
obligation to pay maintenance and he
assumes that they are currently
barred from claiming any overpayment on legitimate grounds. This is
incorrect. Anyone who has
a legitimate claim has recourse if they
can prove unjustified enrichment as required by the law. The rights
of the fathers or
parents that Mr Shaw refers to must be considered
in the context of public policy and the constitution. Those rights
cannot in
my view be paramount over the best interests of a child. I
do not hold the view that parents should be required to maintain
their
minor children beyond their abilities nor am I unsympathetic
towards those parents that disproportionately share beyond what they
are responsible for. In this particular I cannot find that there has
been an unjustified enrichment.
Conditio sine causa
and
conditio ob turpem vel iniustam causam
The applicant’s
obligation to pay maintenance was both natural and legal in nature.
If the oral agreement to pay the yearly
increases had occurred as it
has in this case, the applicant cannot claim enrichment.
Condicto
sine causa
is therefore not applicable. The alternative of
condictio ob turpem vel iniustam causam
is not applicable
either as the central requirement of the
condictio ob turpem vel
iniustam causam,
is that the amount claimed must have been
transferred pursuant to an agreement that is void and unenforceable
because it is illegal,
i.e. because it is prohibited by law (see
FNB
v Perry NO
2001 (3) SA 960
(SCA) at paragraph 22. The
application,
in casu
, is not based on any illegal contract.
The
condictio ob turpem vel iniustam causam
as an alternative
is rejected
.
Conclusion
In conclusion, there is
no basis for finding that the respondent was unjustifiedly enriched
and there is no reason why I should
deviate from ordering costs on a
High Court scale. As I indicated this matter should have been
determined in the Magistrate’s
Court but the applicant chose
to bring it to the High Court.
I therefore order as
follows:
The
application is dismissed with costs
.
___________________________
N P BOQWANA
Acting Judge of the High
Court
APPEARANCES:
FOR THE APPLICANT:
Advocate D J Shaw
INSTRUCTED BY: Len Dekker
Attorneys C/O Scheibert & Associates, Cape Town
FOR THE RESPONDENT:
Advocate J P Steeenkamp
INSTRUCTED BY: Kemp &
Associates C/O VGV Mohohlo Incorporated, Cape Town