Bates v Bates

• Jurisdiction: South Africa
• Judge: Yekiso, J
• Judgment Date: 19 January 2003
• Citation: 2004 JDR 0004 (C)
• Docket Number: 3236/02
• Court: Cape Provincial Division

Yekiso J:

[1] The applicant in these proceedings has instituted contempt of Court proceedings against the respondent arising from the alleged failure by the respondent to comply with his maintenance obligations in terms of the Divorce Order granted on 17 March 1980 under case no: I991/80

[2] In terms of the Consent Paper entered into between the applicant and the respondent which was incorporated in the Decree of Divorce, the respondent, as Plaintiff in that action, undertook to make certain monthly payments in respect of the maintenance of the applicant and the minor children born of the marriage. Over and above the monetary obligations which the respondent was obliged to fulfil, the respondent further undertook to provide for the provision of accommodation and payment of rentals for the applicant and the minor children, the provision of a motor vehicle for the applicant and as well as replacement of applicant's household furniture and effects as and when circumstances would justify replacement of such items.

2004 JDR 0004 p2

Yekiso J

[3] The maintenance of applicant, the provision of a motor vehicle, accommodation and replacement of household furniture and effects was made subject to a dum casta clause save that the dum casta clause would be suspended in the event the applicant established a common home with a member of the opposite sex and live with such a party as husband and wife.

[4] The relevant clauses of the Consent Paper, which I propose to reproduce in full, except for clauses 2(a), 2(c) and 2(d) which provide for the maintenance of the minor children all of whom have since attained the age of majority, read as follows:

"2.

Plaintiff undertakes and agrees in order to make due provision for the maintenance of Defendant and the four minor children born of the marriage between the parties to effect payment of the undermentioned sums and to provide as hereinafter prescribed:

2 (b)

To effect payment to Defendant monthly in advance on the first day of each and every month with effect from the 1st March 1980, free of exchange at such address at Cape Town as Defendant may from time to time appoint in writing, of R 150 per month as and for maintenance in respect of Defendant personally, which payments shall continue until her death or remarriage, whichever event shall first occur, save that should Defendant establish a common home with a member o the opposite sex and live with such party as wife and husband, then and in such event Plaintiff's obligation with respect to payment of any maintenance in respect of Defendant personally shall be suspended whilst such liaison continues."

2 (e)

For as long as Plaintiff is legally liable to maintain Defendant as hereinbefore set forth, Defendant shall be entitled to occupy, free of any payment whatsoever in respect of rental and/or water and/or electricity, the immovable property constituting the former common home and situate and known as 7 Lakeview, Pekalmy, Cape, in respect whereof Plaintiff is the registered owner, or such alternative dwelling as the parties might mutually agree upon from time to time. It is however specially understood and agreed that Defendant's right of occupation as hereinbefore set forth shall cease in the event of Defendant establishing a liaison on the basis hereinbefore referred to consequent whereupon Plaintiff's obligation to effect payment of maintenance in respect of Defendant personally shall be suspended, and this provision shall mutates mutandis apply in respect of the provision by Plaintiff is the free use of a motor vehicle to which reference is hereinafter made.

2 (f)

Plaintiff furthermore undertakes and agrees for as long as he is legally liable to maintain Defendant as hereinbefore prescribed, to provide her with the free use of a motor vehicle analogous to such motor vehicle as is present at being utilised by her.

2004 JDR 0004 p3

Yekiso J

2 (g)

Plaintiff acknowledges that his obligations with respect to maintenance in respect of Defendant personally as hereinbefore set forth, shall be binding on his estate.

3 (a)

Defendant shall be entitled to retain as her own free and unfettered property all household furniture and effects of whatsoever nature or description at present situate at the former common home.

3 (b)

Plaintiff specially undertakes and agrees for as long as he is legally liable to maintain Defendant to replace from time to time the furniture and household effects hereinbefore referred to as and when same become unserviceable and/or reasonably require replacement, at his own proper cost and expense.'

[5] As can be seen in terms of clause (b) of the Consent Paper, the respondent's obligations in terms of this clause constitutes an order ad pecuniam solvendam whereas the respondent's obligation relating to the provision of accommodation, provision of a motor vehicle and replacement of household furniture and effects are orders ad factum praestandum.

[6] During 1995 the applicant made an application in the maintenance court, Bellville for an increase in the amount of maintenance payable in terms of the Divorce Order dated 17 March 1980 which, as at the time of the Application, provided maintenance in respect of the applicant in an amount of R 150 and an amount of R 100 in respect of one minor child, Tamsyn, who had not yet attained the age of majority and had not yet become self supporting. The respondent consented to an increase in an amount of R 1 500.00 per month in respect of the applicant and to a further amount of R 1 500 in respect of the minor child.

[7] No reference was made in that application to the respondent's obligations relating to the provision of accommodation and payment of rentals, the provision of a motor vehicle and the replacement of household furniture and effects. The order dated 28 December 1995 made by the maintenance court, Bellville, merely reads as follows:

'The maintenance order dated 17/03/1980 made by the Supreme Court Cape Town is substituted by the aforegoing maintenance order.

Dated at Bellville this 28th day of December 1995.'

2004 JDR 0004 p4

Yekiso J

The Order was made in terms of s 5(7) of the Maintenance Act 23 of 1963, which has since been repealed and substituted by the Maintenance Act 99 of 1998. The latter piece of legislation came into operation on 26 November 1999.

[8] During 1999 the applicant launched yet a further application for an increase in maintenance payable to herself only as the youngest of the children, Tamsyn, had by then also reached the age of majority. This application culminated in the respondent consenting to maintenance payable to the applicant in an amount of R 3000 per month with effect from 1 November 2000. This order, made on 3 October 2000, substituted the earlier order made on 28 December 1995 by the maintenance court, Bellville.

[9] On this occasion the parties recorded that there was a dispute as regards the non-pecuniary regime of the Order granted on 17 March 1980 and the record of this dispute was annexed as annexure A to the consent form signed by the respondent. Annexure A annexed to this consent form reads as follows:

'It is recorded that there is a dispute between the parties whether the following claims of the applicant in terms of the Consent Paper which were incorporated in a decree of Divorce on 17 March 1980 were subsequently compromised by applicant and it is recorded that the maintenance of R 3000 does not cover the expenses contemplated in the following clauses of the Consent Paper.

a)

Clause 2(e) of the Consent Paper (the claim for accommodation including electricity costs and water costs);

b)

Clause 2(f) of the Consent Paper (the claim in respect of a motor car);

c)

Clause 3(b) of the Consent Paper (the claim for replacement of household furniture and effects);

The applicant reserves her rights to approach the appropriate forum to pursue these claims.'

What annexure A in effect records is that the maintenance of R 3 000 per month does not cover the expenses, and in effect, the respondent's obligations contemplated in paras 2(e), 2(f) and 3(b) of the Consent Paper.

2004 JDR 0004 p5

Yekiso J

[10] The respondent is opposing this application on three principal grounds, namely:

[10.1]

That he and the Application had reached an agreement during early December 1995 that the respondent would pay the applicant an amount of R 17 000 in full and final settlement of all or any claims which the applicant may have against the respondent arising from the respondent's obligation to provide the applicant with accommodation, a motor vehicle and the replacement of household furniture and effects. The respondent further alleges in his papers that because of this agreement, the applicant's cash component of the maintenance was considerably increased from an amount of R 1 500 per month to an amount of R 3 000 per month.

[10.2]

The entire Maintenance Order granted by the High Court on 17 March 1980 was substituted by the order granted by the maintenance court, Bellville on 28 December 1995, and that the latter order was in turn substituted by the one granted on 3 October 2000.

[10.3]

That these proceedings be stayed until the applicant pays the respondent's taxed bill of costs totalling an amount of R 22 135,65 together with...