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[2014] ZAWCHC 100
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P.D.T.H v M.H and Another (5995/14, 11887/12, 3801/12) [2014] ZAWCHC 100 (25 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: 5995/14
WITH
CASE NO: 11887/12
AND
CASE NO: 3801/12
REPORTABLE
DATE:
25 JUNE 2014
In
the matter between:
P
D T H
................................................................
Applicant
And
M
H
................................................................
First
Respondent
THE
SHERIFF FOR WYNBERG
NORTH
........................................
Second
Respondent
JUDGMENT
: 25 JUNE 2014
GAMBLE,
J:
INTRODUCTION
[1]
The Applicant and the First Respondent are embroiled in on-going
divorce litigation in this Court. In 2012 the First Respondent
made application for interim relief under Rule 43 against her
husband, the Applicant. The parties settled their differences
on 26 October 2012 and presented to this Court an order to be taken
by agreement. The case therefore falls into that category
of
cases in which the parties’ contractual arrangement is made an
order of Court without the Court itself having pronounced
on the
merits of the dispute
[1]
.
[2]
In terms of clause 1 of the agreement the Applicant undertook to
maintain the parties’ minor son P........... by the payment
of
cash in the amount of R7 000.00 per month to the First
Respondent, by covering his reasonable medical expenses and by paying
his school fees. The relevant part of the order recording the
agreement in regard to maintenance reads as follows:
“
IT
IS ORDERED BY AGREEMENT THAT:
1.
For as long as the respondent continues to support the parties’
daughter L........, by paying her full academic fees and
cost of
academic books as well as her medical expenses, the respondent shall
only contribute to the maintenance of the parties’
minor child,
P............,
pendente
lite
as follows:
1.1
By paying an amount of R7 000.00 per month to the Applicant
before or on the first day of every month…
1.2
By covering the applicant and the minor child as dependents on his
current medical aid scheme and by bearing the reasonable
costs of all
additional expenditure in respect of medical, dental, surgical,
hospital, orthodontic, ophthalmological and orthopaedic
treatment
needed by the minor child, including any sums payable to a
physiotherapist, occupational therapist, speech therapist,
psychiatrist, psychologist and chiropractor, the costs of medication
and supplements (incurred on prescription only) and the provision,
where necessary, of spectacles and/or contact lenses.
1.3
By paying the school fees in respect of the minor child.”
[3]
P[...] was born on 28 June 1995 and so at the time that the agreement
was reached he was already seventeen years old.
He turned
eighteen some eight months later, in the middle of his Grade Twelve
school year.
[4]
The Applicant continued to pay the maintenance in respect of
P........... up to the beginning of 2014. It then transpired
that the First Respondent decided to enroll P[...] in a so-called
“
cram
college
”
(A[...] C[...]) in 2014 to enable him to improve his Matric grades in
respect of certain of his subjects. The Applicant
evidently
took umbrage at the lack of consultation which accompanied this
decision and consulted his attorney for advice.
[5]
The Applicant’s attorney held the view that since P[...] was
then eighteen, the Rule 43 order no longer applied and that
the
Applicant was no longer required to pay maintenance directly to the
First Respondent. He told the Applicant that it was
a matter
for discussion between father and son.
[6]
A flurry of lawyers’ letters then ensued in which the First
Respondent was cautioned against taking any formal steps to
enforce
the Rule 43 order
vis-a-vis
P.........
.
This
notwithstanding, on 5 March 2014 the First Respondent’s
attorneys took out a writ of execution with the Registrar
of this
Court for the attachment of movables belonging to the Applicant in
the amount of R65 770.40. The amount was made
up as to one
month’s maintenance (R7 000.00) and fees payable to A[...]
C[...] in the sum of R58 770,40. The Sheriff
attended on the
Applicant and attached goods in that amount but did not remove same.
[7]
After a further flurry of correspondence the Applicant launched the
present urgent application on 3 April 2014 in which he sought
to set
aside the writ in its entirety and asked for an order:
“
2.
Declaring that the order of this Honourable Court granted on 26
October 2012 under case no. 11887/2012 had lapsed
ex
lege
insofar
as it relates to the Applicant’s obligation to contribute to
the maintenance of the parties’ son P[...] H[...],
as contained
and set out in paras 1.1 and 1.3 of the said order, due to the said
P[...] H[...] attaining the age of majority during
the currency of
the said order.”
[8]
The application is opposed by the First Respondent, principally on
the basis that the mere fact that P[...] attained the age
of majority
did not necessarily bring about the termination of this Court’s
order. Ordinarily, the position is that
upon the attainment of
majority of the child, the parent in whose care the child is, no
longer has the
locus
standi
to
claim the payment of maintenance on behalf of the child. In
Smit
[2]
Flemming J explained the position thus:
“
(W)hen
the child turns 21 [as the age of majority then was] a claim by one
parent against the other for the latter’s portion
of the common
parental duty to support is, usually at least, no longer relevant.
It is the child itself who henceforth must
claim directly against one
or both parents to the extent that he may have a claim for support
with effective content.”
[9]
In
Richter
[3]
the Court was called upon to determine for how long an order of
divorce contemplated that maintenance payable in terms thereof
would
continue. It held that, where there was no time limit specified
in the order, the order ceased to operate upon the
attainment of
majority.
[10]
In
Kemp
[4]
the Court found that it depended on the terms of the divorce order:
If the order expressly fixed a time period or a date
up to which
maintenance was payable, that was finally determinative of the duty
of support:
”
It
would seem that if the order stipulates periodic payment of a fixed
sum of money until the minor reaches a certain age, there
should be
no room for an implication that the order wil
ipso
jure
cease
to operate before that time if the child becomes self-supporting.”
[11]
In
Gold
[5]
the Court dealt as follows with the implications that flowed from a
maintenance order that did not fix a period of time for its
duration:
“
As
the maintenance order did not fix any period for its operation it was
implied that the respondent’s liability thereunder
in respect
of each child would cease when the child reached the age of majority
or earlier if he became self-supporting.
The liability would
cease
ipso
jure
in
either of those events, without the necessity for a variation of the
order by the Court.”
[12]
Richter
was
considered by the Supreme Court of Appeal in
Bursey
[6]
,
a case in which the divorce order provided for payment of a
fixed amount of money “
until
the said children became self-supporting”.
Given
the fact that the wording of the order before it differed materially
from those in
Richter
and
Gold
,
the Supreme Court of Appeal held that it was unnecessary to decide
the correctness of the two earlier cases. However, the
Court
was unequivocal about the import of the clause before it:
“
The
effect of this order is simply that after [the child’s]
majority the maintenance payable to him by his parents would
continue to be paid to him by the first respondent who would recover
under the court’s order the appellant’s contribution
to
this common parental duty to support. This she was fully
entitled to do in terms of the order. [The child’s]
position was not affected as he could at any time during the
operation of the order have enforced his common-law right to an
upward
variation of the maintenance payable by his parents upon proof
of the requisites for such a variation. I cannot, therefore,
agree with the submission that the mere fact that [the child’s]
maintenance was payable to the first respondent meant that
the
maintenance ceased upon his majority.”
[7]
[13]
In
Bursey
,
Viviers JA noted the fact that the order in question arose from an
agreement between the litigants and concluded by observing
that the
following at 38I-J.
“
In
my view, the present order fixed a time for its duration, i.e. until
[the child] becomes self-supporting, and it will cease to
operate
when that event occurs (or conceivably when [the child] becomes
capable of supporting himself, a matter which I need not
decide).
Whether that event has indeed occurred may be the subject of dispute
but it is an objective fact capable of being established
with
sufficient certainty.”
[14]
All of the reported cases to which I have referred involved the
liability for maintenance incorporated in orders of divorce
at the
conclusion of the litigation process. The present matter,
however, involves maintenance
pendente
lite
which
is governed by the provisions of Rule 43. In
Butcher
[8]
Gassner AJ dealt extensively with a Rule 43 claim by a mother on
behalf of two major children who were still living with her.
The Court found that there was no bar to it granting an order that
compelled the father to pay maintenance
pendente
lite
to
the mother where the sum payable included the costs associated with
the childrens’ co-habitation in the erstwhile common
home.
Gassner AJ was not prepared, however, to make an order directing the
father, at the request of the mother, to pay certain
amounts directly
to the daughters. Such claims, she found, vested only in the
daughters.
[15]
In
JG
[9]
Symon AJ disagreed with Gassner AJ and found in a similarly
considered and reasoned judgment that Gassner AJ was wrong in regard
to the absence of
locus
standi
on
the part of the mother to claim payments directly by the father to
the children, and went on to find that such a situation was,
inter
alia
,
constitutionally unsound. It is not necessary to address the
dissonance between these judgments since both Judges
recognized, and
accepted (basing their respective judgments on,
inter
alia
,
Bursey)
,
that a claim by the mother for interim maintenance payable directly
to her to cover the costs of the continued residence by the
children
in the matrimonial home was permissible under Rule 43.
[16]
In my view, the principles which have been applied in respect of
agreements to pay maintenance incorporated into orders of
divorce can
usefully be applied to agreements in relation to Rule 43
applications, as the following passage in
Bursey
[10]
demonstrates:
“
According
to our common law both divorced parents have a duty to maintain a
child of the dissolved marriage. The incidence
of this duty in
respect of each parent depends upon their relative means and
circumstances and the needs of the child from time
to time. The
duty does not terminate when the child reaches a particular age but
continues after majority…That the
duty to maintain extends
beyond majority is recognized by
s6
of the
Divorce Act 70 of 1979
.
Section 6(1)(a)
provides that a decree of divorce shall not be
granted until the Court is satisfied that the provisions made or
contemplated with
regard to the welfare of any minor or dependent
child of the marriage are satisfactory or are the best that can be
effected in
the circumstances.
Section 6(3)
provides that
a Court granting a decree of divorce may make any order which it
deems fit in regard to the maintenance of a dependent
child of the
marriage. This provision must be contrasted with the provision
in the subsection relating to the custody or
guardianship of, or
access to, a minor child. A maintenance order does not replace
or alter a divorced parent’s common
law duty to maintain a
child. In
Kemp
v Kemp
(supra)
Jansen J stated at 738A-B that as a matter of expediency the Court,
as the upper guardian of the child, usually regulates
the incidence
of this duty as between the parents when it grants the divorce and
that its order for maintenance is ancillary to
the common law duty to
support.”
[17]
What then was the parties’ intention when they concluded the
agreement embodied in the draft order? The “
golden
rule
“
is
to have regard to the language of the written instrument in question,
and to give it its grammatical and ordinary meaning.
[11]
In my view, it is clear from the language which the parties
employed in the draft order presented to the Court that they
did in
fact intend that the order to maintain P[...] was to be time bound.
In the first place, the payment of maintenance
to the First
Respondent in the amount of R7 000.00 was to be linked to the
Applicant’s duty of support to their daughter
L[...] (who, it
was common cause, was already a major when the order in respect of
P[...] was made). Then, it seems to me
that the parties in fact
contemplated that once the duty to support L[...] had lapsed the duty
to support P[...] would continue
if the divorce action was still
unresolved, hence the further reference in the draft order to the
pendente
lite
status
of the action. But, either way, it is clear that the parties
contemplated continued payments by the Applicant directly
to the
First Respondent after Philllip’s majority, which, after all,
was just six months away when the agreement was concluded.
[18]
To the extent that it may be argued that there is ambiguity in the
agreed order (and that assumption flows from the fact that
Counsel on
either side took up differing positions in respect of the same
clause), it is permissible in interpreting a written
instrument to
have regard to,
inter
alia
,
background and surrounding circumstances which prevailed at the time
of conclusion thereof, as well as the subsequent conduct
of the
parties in giving effect to the order
[12]
.
[19]
In this regard, the evidence shows that P[...] suffers from ongoing
severe mental health conditions, including a Bipolar Disorder,
an
Obsessive Compulsive Disorder and Asperger’s Syndrome, all of
which impact severely on his ability to study and enter
the open
labour market. Furthermore, there was no debate that, after the
separation of the Applicant and the First Respondent,
P[...] would
continue to reside with his mother who was required to bear the
primary responsibility for his day-to-day needs.
[20]
Finally, there is the fact that the Applicant did not stop
maintaining P[...] when he attained majority – he continued
to
do so for more than six months as he no doubt appreciated he was
obliged to do under the order – and the Applicant only
stopped
paying maintenance when advised by his attorney that he was not
legally bound to do so. And even then, the
Applicant did not
adopt the stance that P[...] was not entitled to be maintained.
Rather, he invited his son to negotiate
directly with him and the
Applicant has subsequently paid amounts to P[...] from time to time.
The Applicant’s objection
it seems was aimed at releasing him
from the obligation to pay anything directly to his wife in respect
of P[...]’s maintenance
needs.
[21]
In the light of the aforegoing, I am not persuaded that the
Applicant’s obligation to maintain P[...] under the order
which
I granted on 26 October 2012 under case no. 11887/2012 has lapsed
ex
lege
.
It follows that the Applicant is not entitled to the declaratory
relief sought under prayer 2.
[22]
A further aspect which was argued by Counsel related to the extent of
the debt attached under the writ. Counsel for the
Applicant,
Mr.
Spamer
,
pointed out that the evidence showed that the First Respondent had
managed to negotiate a payment plan with A[...] C[...], and
that the
annual fee of R58 770.40 was payable in monthly instalments of
R5 565.61, after payment of two capital sums
of R7 418.94
and R6 312.27. Counsel for the First Respondent,
Ms.
Anderson
,
confirmed this and pointed out that although the fee was payable in
full at the commencement of the academic year, the First Respondent
had been able to arrange otherwise with Abbotts when the Applicant
had refused to pay the school fees.
[23]
The upshot of the arrangement between the First Respondent and
Abbotts is that a lesser amount was due and payable by the Applicant
when the writ was issued.
Mr.
Spamer
argued that this meant that the entire writ fell to be set aside
given that it was issued in an amount not then due and payable.
[24]
Ms.
Anderson
,
however, referred the Court to a number of cases to the contrary
[13]
and asked that the amount of the writ be varied downwards to
R32 705.76. I did not understand
Mr.
Spamer
to
challenge this proposition in reply in light of the case law.
It seems to me then that the writ falls to be adjusted accordingly.
[25]
As to costs, although the effect of my order is that the Applicant
has achieved some success in attacking the writ as issued
and
procuring a reduction in the extent thereof, I consider that
the First Respondent has nevertheless been substantially
successful
in warding off the substantial challenge brought under prayer 2 and
that she is entitled to her costs. Given that
the Applicant
acted on the advice of his attorney, there is no basis for costs on a
punitive scale as sought by the First Respondent.
[26]
ORDER OF THE COURT
1.
The writ of execution issued in favour of the First Respondent on 5
March 2014 under case no. 11887/2012 is amended by substituting
the
amount of R65 770.40 in paragraph 1 thereof with the amount of
R32 705.76.
2.
Save as aforesaid, the application is dismissed with costs.
GAMBLE,
J
[27]
ORDER OF THE COURT
1.
The application is dismissed with costs.
2.
The writ of execution issued in favour of the First Respondent on 5
March 2014 under case no. 11887/2012 is amended by substituting
the
amount of R65 770.40 in paragraph 1 of the writ of execution
with the amount of R32 705.76.
L
VAN BILJON
[1]
Johannesburg
Taxi Association v Bara-City Taxi Association and Others
1989
(4) SA 808
(W) at 810E
[2]
Smit
v Smit
1980
(3) SA 1010
(0) at 1018B-C
[3]
Richter
v Richter
1947
(3) SA 86
(W)
[4]
Kemp
v Kemp
1958
(3) SA 736
(N) at 738H
[5]
Gold
v Gold
1975
(4) SA 237
(D) at 239D
[6]
Bursey
v Bursey and Another
1999
(3) SA 33
(SCA)
[7]
37
D-F
[8]
Butcher
v Butcher
2009
(2) SA 421
(C)
[9]
JG
v CG
2012
(3) SA 103
(GSJ)
[10]
36C-H
[11]
Coopers
and Lybrand v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at 767E-768E.
[12]
Christie
and Bradfield
:
The Law of Contract in South Africa 6
th
ed
at 226-7;
Rane
Investments Trust v Commissioner, SARS
2003
(6) SA 332
(SCA);
Telcordia
Technologies Inc. v Telkom SA Ltd
2007
(3) SA 266 (SCA).
[13]
Perelson
v Druain
1910
TPD 458
;
Dunlop
Rubber Co v Stander
1924
CPD 431
;
Du
Preez v Du Preez
1977
(2) SA 400
(C)