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[2011] ZAWCHC 27
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D.B.G v N.G (born De H) (7032/03) [2011] ZAWCHC 27 (24 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA [WESTERN CAPE HIGH COURT, CAPE TOWN]
Case No: 7032/03
In the matter between:
D B G
…................................................................................................
Applicant
and
N G(born
DE H)
…..................................................................................
Respondent
JUDGMENT DELIVERED: 24
FEBRUARY 2011
FOURIE,
J:
[1]
Applicant has brought an urgent application for the staying of four
warrants of execution issued out of this court by respondent
under
case number 7032/2003, until such time as an action to be launched
by applicant seeking,
inter
alia,
the
setting aside of such warrants, has been finally determined.
Respondent opposes the application. I should add, that the intended
action setting aside the said warrants, was instituted by applicant
on 3 December 2010.
[2] The background to the
application may be briefly summarised as follows:
The parties were previously
married to each other. The marriage was terminated upon this court
issuing a decree of divorce on
17 October 2003, when a consent paper
entered into between the parties was made an order of court.
Paragraph I of the consent
paper makes provision for the payment of
maintenance by applicant to respondent until respondent's death,
remarriage or cohabitation
in a relationship analogous to that of
husband and wife for a period exceeding 6 months, whichever event
shall first occur. Applicant
contends that respondent has been
cohabiting with a third party, one Alistair Wood, in a relationship
analogous to that of husband
and wife for a period exceeding 6
months and he has accordingly ceased paying maintenance to
respondent. The aforementioned warrants
were issued by respondent in
respect of the outstanding maintenance payments. Pursuant to an
application brought by respondent
regarding sendee of the warrants,
applicant has launched this application.
[3] Respondent opposes the
application on several grounds relating to the merits thereof, as
well as on the basis that the matter
is not urgent. In view of the
conclusion that I have reached, it is not necessary for me to deal
with the issue of urgency.
[4] Clause 1 of the consent
paper, expressly provides that applicant's obligation to pay
maintenance to respondent shall continue
until her death, remarriage
or cohabitation in a relationship analogous to that of husband and
wife for a period exceeding 6
months, whichever event shall first
occur. As I see it, the obligation to maintain respondent is subject
to a resolutive condition
(death or remarriage or cohabitation), the
fulfilment of which would terminate applicant's obligation to effect
payment of maintenance.
Put differently, the obligation to pay
maintenance shall continue until one of the events occur, which
would terminate the obligation.
[5] The
parties are agreed that the onus to prove the fulfilment of the
resolutive condition, i.e. cohabitation by respondent
in a
relationship analogous to that of husband and wife for a period
exceeding 6 months, rests upon the applicant. As the relief
sought
entails the suspension of the execution of a court order, rule 45A
of the Uniform Rules of Court, comes into play. It
provides that a
court may suspend the execution of any order for such period as il
may deem fit, thereby affording the court
a discretion of the widest
kind and imposing no procedural or other limitation on the power so
conferred. (See
Road
Aecident Fund v Strydom
2001
(1) SA 292
(G) at 301 B-C). In
Strydom
it
was emphasised, at 304, that courts will, generally speaking, grant
a stay of execution where real and substantial justice
requires such
a stay or where injustice would otherwise be done. As pointed out by
Erasmus,
Superior
Court Practice,
at
Bl -330A, a court could, in the determination of its discretion
under Rule 45A, with advantage borrow from the requirements
for the
granting of an interim interdict. However, this does not mean that
only the principles relative to an interim interdict
have to be
followed in the exercise of the court's discretion in an application
under Rule 45A.
[6] In
RAF
v Strydom,
supra,
at 304-306, the court did borrow- from the requirements for the
granting of an interim interdict. It found that an injustice
would
be done to applicant by way of irreparable harm being caused to it
if execution for the full balance of the judgment plus
costs were to
take place at the instance of respondent, who would probably
afterwards not be able to satisfy the costs order
in applicant's
favour. Therefore, the court held that the balance of convenience
favoured applicant and that applicant had no
other satisfactory
remedy.
The first
step in the enquiry whether real and substantial justice requires a
stay of the warrants pending the final determination
of the action
instituted by applicant, is to determine whether it has been shown
by applicant that respondent is cohabiting with
Wood in a
relationship analogous to that of husband and wife for a period
exceeding 6 months. If one borrows from the requirements
for the
granting of an interim interdict, applicant has to demonstrate that
he has a clear right, or at least a
prima
facie
right,
to the relief sought in the main action. I should mention that in
the main action applicant seeks an order declaring that
the
aforementioned resolutive condition has been fulfilled and that his
liability to pay maintenance to respondent has been terminated,
as
well as an order setting aside the four warrants of execution.
[8] At the
outset it is necessary to determine the common intention of the
parties by having regard to the words used by them
in the consent
paper, viz
"the
aforementioned payments will continue until plaintiff's
cohabitation
in a
relationship
analogous to that of husband and
wife
for a
period exceeding six months
....
" (my emphasis). What did the parties intend to convey by using
these words in formulating the resolutive condition
in the consent
paper?
[9] The
ordinary meaning of the word
"cohabit"
is
defined in the Concise Oxford English Dictionary as
"live
together, and have a sexual relationship without being married".
There
is no indication in the consent paper that the parlies intended the
word
"cohabitation"
to
have a meaning different from the ordinary meaning of living
together without being married.
[10] In
Drummond
v
Drummond
1979
(1) SA 161
, the Appellate Division had occasion to interpret the
phrase
"living
together as man and wife",
as
follows at 167B-C:
"I respectfully agree
with the observations of EloffJ in the judgment of the Full Court,
namely that it denotes:
'the basic of components of
a marital relationship except for the formality of marriage...the
main components of a modus vivendi
akin to that of husband and wife
are, firstly, living under the same roof secondly, establishing,
maintaining and contributing
to a joint household, and thirdly
maintaining an intimate relationship'.
[11] In
Drummond
the
phrase employed by the parties was
'Hiving
together as man and wife'\
while
in the present consent paper the parties used the phrase
"cohabitation
in a relationship analogous to that of husband and wife".
In
my view, both the phrases employed simply mean the living together
of the parties in a relationship akin to the relationship
between a
husband and his wife. It was argued on behalf of applicant that the
difference in the wording between
Drummond
and
the present case, indicates that applicant has a lower hurdle to
clear, i.e only proof of cohabitation in a relationship
analogous
to that of
husband and wife. In this regard reliance was placed on the
dictionary meaning of the word
"analogous",
namely
"partially
similar".
It
was accordingly submitted that respondent's relationship with Wood
does not need to be the same as that of husband and wife;
it only
needs to be partially similar to that of husband and wife.
[12] In my
view this distinction is more apparent than real. It also loses
sight of the wording of the clause in the consent paper,
requiring
cohabitation, i.e. the living together of respondent and Wood. It
appears to me that there is no difference between
a relationship
where two unmarried persons live together as husband and wife and
the case where they live together in a relationship
analogous
to that of
husband and wife. In both instances the relationship necessarily has
to be analogous to that of husband and wife, as
they are, in fact,
not married, but cohabiting or living together in a relationship as
if they were husband and wife.
[13] In my opinion, the
resolutive condition imposed by the parties in the consent paper, is
clear. The event upon which the applicant's
liability for the
payment of maintenance would cease, is the living together of
respondent and Wood in a relationship similar
to that of husband and
wife for a period exceeding six months, with the main components of
such a relationship being their living
under the same roof, having
established, maintained and contributed to a joint household and
maintaining an intimate relationship.
[14] If one now turns to the
facts of this case, it is common cause that respondent and Wood are
involved in a personal and intimate
relationship. However, that is
not sufficient to establish a relationship analogous to that of
husband and wife. As indicated
above, it has to be shown that, in
addition to the intimate relationship, they are living under the
same roof and have established,
maintained and contributed to a
joint household. Can it be said that, on the facts before the court,
the latter two requirements
have been established?
[15] I believe not. Il is
common cause on the papers that respondent and Wood do not live
under the same roof. She has her own
residence in Newlands, while
Wood's primary residence is on his farm at Franschoek. There is
nothing to gainsay the allegation
of respondent that they have never
cohabited and very seldom see each other during the week. According
to respondent, she visits
Wood approximately three times per month
and spends the weekend with him on such occasions. They have also
never been on holiday
together.
[16] It is clear from the
papers that respondent and Wood have not established or maintained a
joint household. She says that
Wood has never contributed a cent
towards her household expenses, nor has she contributed towards
Wood's household expenses.
What happens, is that when she visits him
on the farm over weekends, she purchases food as she loves cooking
and Wood then reimburses
her for such expenses.
[17] It follows, in my view,
that applicant has not shown that respondent and Wood are
cohabiting, in the sense envisaged in the
consent paper. They are
not living together and therefore not cohabiting. Their relationship
can also not be described as one
analogous to that of husband and
wife. I agree with the submission on behalf of respondent, that, at
best, the evidence shows
that they arc simply involved in a romantic
relationship while the main components of a relationship akin to
that of husband
and wife, are absent.
[18] I
therefore find that applicant has failed to prove that he has the
necessary clear right, or
prima
facie
right,
to entitle him to the interim relief sought in this application. It
follows, in my view, that applicant has also failed
to show that
real and substantial justice requires a stay of the warrants pending
the final determination of the main action.
In the circumstances it
is not necessary for me to consider the remaining requirements for
the granting of an interim interdict.
[19] During
argument I raised the question whether this
dum
casta
clause
in the consent paper, withstands constitutional scrutiny. In
particular, it may be asked whether the clause, which seems
to
constitute an implied term as to chastity, does not offend the
respondent's constitutional rights entrenched in sections 10
and 18
of the Constitution. However, in view of the conclusion that I have
reached in regard to the interpretation and application
of the
clause, it is not necessary for me to prolong this debate.
[20] This
brings me to the issue of costs. When an application for an interim
interdict is refused, the general rule is to refuse
it with costs.
(See
Goldsmid
v The South African Amalgamated Jewish Press Ltd
1929 AD
441
at 446). There are, in my view, no circumstances present in the
instant case which would justify a departure from this general
rule.
It was submitted on behalf of respondent that a punitive costs order
should be made in her favour, but, in my opinion,
there are no
grounds to justify the making of such an order.
[21] In the result the
application is dismissed with costs, including the costs occasioned
by respondent in regard to the substituted
service application.
P B Fourie, J