Cohen v Cohen

• Jurisdiction: South Africa
• Judge: Comrie J
• Judgment Date: 30 October 2001
• Citation: 2002 (2) SA 571 (C)
• Docket Number: 257/2000
• Hearing Date: 16 October 2001
• Counsel: D A Stephens for the plaintiff. F J Gordon-Turner for the defendant.
• Court: Cape Provincial Division

Comrie J:

The parties to this action were divorced on 10 February 1995. The decree of divorce incorporated a consent paper which dealt with the minor children and their maintenance, with maintenance for the defendant wife, with the D proprietary rights and with ancillary matters. The provisions regarding maintenance for the defendant are contained in clause 4 which I reproduce in full:

'4. Maintenance for defendant

(a)

Plaintiff shall maintain defendant with effect from the date of her vacating the former common home in terms of E subpara 5.3 hereinbelow and thereafter on the 1st day of each and every succeeding month until her death or remarriage or until she shall live together as husband and wife with another man for a period aggregating more than six months in any calendar year or alternatively nine months in any period of three years, by:

(i)

effecting payment of the sum of R3 000 per month, and such sum shall be increased or decreased on each anniversary of the date of F the granting of a final order of divorce on a percentage basis in accordance with such rise or decline as has occurred in the consumer price index in respect of the Republic of South Africa, as notified by the Central Statistical Service from time to time, based on the twelve urban areas as reflected in the middle income group for a period of one year expiring on the last day of the month preceding the aforesaid G anniversary date;

(ii)

effecting payment of all reasonable medical, dental, pharmaceutical (incurred on doctors' prescriptions), surgical, hospital, orthodontic, ophthalmic (including the provision of spectacles and/or contact lenses) expenses or medical treatment reasonably incurred, but excluding any form of cosmetic or prosthetic surgery; H

(iii)

effecting payment of the servicing costs in respect of the motor vehicle utilised by defendant from time to time;

(iv)

replacing the said motor vehicle presently utilised by defendant in five years' time and every five years thereafter with a motor vehicle equivalent to a Toyota Corolla automatic of approximately two litres in engine capacity. Plaintiff shall be entitled to purchase such vehicle secondhand provided it shall be no I more than 15 months old;

(v)

effecting payment of the levies on such townhouse as defendant and the minor children may from time to time occupy. This obligation shall continue for so long as at least one of the minor children formally reside with defendant or until his liability to maintain defendant terminates, whichever event shall first occur.' J

Comrie J

It may be noted that the clause stops at (a)(v) and that there is no subpara (b). A

The present action revolves around part (a) of the above clause, and in particular the rather unusual dum casta provision:

'. . . or until she shall live together as husband and wife with another man for a period aggregating more than six months in any calendar year or alternatively nine months in any period of three years'. B

As to the meaning of 'living together as man and wife', see Drummond v Drummond1979 (1) SA 161 (A) at 167. The plaintiff alleges that during the three-year period from January 1997 to December 1999, and for not less than nine months during that period, the defendant lived together as husband and wife with one Ephron. C

The plaintiff accordingly prays for the following orders:

'(a)

An order declaring that the dum casta clause in the consent paper incorporated in the divorce D order made in case No 14692/94 is valid and effective between the parties.

(b)

An order declaring that defendant's conduct has resulted in the operation of the said dum casta clause.

(c)

An order declaring that plaintiff is accordingly entitled to invoke the dum casta clause in the consent paper incorporated in the divorce order made in case No 14692/94 to obtain a discharge of the order in terms of which he is currently required to provide for the personal maintenance of defendant until her death or remarriage. E

(d)

An order declaring that plaintiff is entitled to claim from defendant all maintenance payments effected by plaintiff to defendant pursuant to the provisions of the maintenance order currently in effect in respect of the personal maintenance of defendant by plaintiff from 1 January 2000 until the discharge of such order in accordance with the dum casta clause.

(e)

Costs of suit.' F

The defendant initially pleaded a denial, but in a witness statement which has been filed on her behalf, she admits to an intimate relationship with Mr Ephron falling short, she claims, of what is contemplated by the dum casta clause. The defendant also pleaded that the dum casta provision is void for vagueness. (Compare prayer (a) quoted above.)

A few days before the trial was due to commence the defendant's legal representatives advised the plaintiff's legal representatives of G the defendant's intention to amend her plea by adding a new defence. There was no objection to the amendment, which is granted. The new defence, in summary, is that on 21 December 1998 the maintenance court, Cape Town, substituted clause 4 with a different maintenance provision, and that this had the effect, inter H alia, of eliminating most of part (a), and in particular the dum casta provision. The amendment to the plea was drawn with one eye on Purnell v Purnell1993 (2) SA 662 (A).

Counsel for the parties then developed the idea that it would be wise to ask the Court to decide two issues first and separately in terms of Rule 33 of the Uniform Rules of Court, namely the void for vagueness defence and the substitution defence. A pre-trial agreement to this end I was prepared. What counsel had in mind was not a trial, but legal argument. I indicated, however, that I was not prepared to decide the void for vagueness issue unless either evidence was adduced or I was assured that no evidence would be tendered. Compare Christie Law of Contract 4th J

Comrie J

ed from 108. Mr Stephens, for the plaintiff, intimated that unless I ruled that any vagueness was A incurable by evidence, it was his intention in due course to tender such evidence. Ms Gordon-Turner, for...