Cohen v Cohen

• Jurisdiction: South Africa
• Citation: 2002 (2) SA 571 (C)

Cohen v Cohen
2002 (2) SA 571 (C)

2002 (2) SA p571

Citation	2002 (2) SA 571 (C)
Case No	257/2000
Court	Cape Provincial Division
Judge	Comrie J
Heard	October 16, 2001
Judgment	October 30, 2001
Counsel	D A Stephens for the plaintiff.; F J Gordon-Turner for the defendant.

Flynote : Sleutelwoorde B

Husband and wife — Divorce — Maintenance of spouse — Variation of — Cessation of maintenance by invocation of dum casta clause — Clause in consent paper stipulating that ex-wife to be maintained until she having lived together as husband and wife with another man for six months in any calendar year or nine months in any period of three years — Ex-husband seeking to have clause declared valid C and effective, alleging ex-wife fulfilling requirements — Ex-wife averring that dum casta clause substituted in entirety by subsequent order by maintenance court — Ex-husband arguing that maintenance court not competent to delete dum casta provision — Magistrate's order in maintenance court regarding maintenance for ex-wife personally expressly made in substitution of maintenance order granted by High Court — Magistrate's order making D incursions into relevant clause as articulated in consent paper, constituting complete reworking of clause and indicating intention to substitute order for whole of clause — Effect of magistrate's order to eliminate dum casta provision from revised maintenance obligations — Although dum casta clause in nature of E resolutive condition incorporated by contract into consent paper, it was part of maintenance order and maintenance obligation — Stipulations as to when maintenance ceased variable by agreement or order of competent court — Maintenance court such competent court — Maintenance court competent to omit dum casta provision. F

Headnote : Kopnota

The plaintiff and the defendant had been divorced in 1995. The decree of divorce had incorporated a consent paper dealing with maintenance, proprietary rights and ancillary issues. The present matter revolved around a clause in the consent paper which set out a dum casta provision, providing for the maintenance of the ex-wife until her death or remarriage or until she lived together as G husband and wife with another man for six months in any calendar year or nine months in any period of three years. The plaintiff, the ex-husband, alleged that the defendant had been living with another man for the stipulated period and instituted action in a Provincial Division for an order declaring the dum casta clause to be valid and effective and that he was entitled to a refund of the maintenance payments made in terms of the consent paper. The H defendant, however, alleged that in December 1998 the maintenance court had substituted the relevant clause with a different maintenance provision, effectively eliminating the dum casta provision. The judgment of the maintenance court had resulted from an application by the plaintiff that the defendant contribute to the maintenance of the children, who were living with him despite a contrary provision in the consent paper, and a counter-application by the defendant to I increase her personal maintenance. The plaintiff's application had failed but the defendant's counter-application had succeeded in substance, and it was on the formulation of this second part of the order that the defendant's defence in the current matter turned. The defendant averred that the whole of the relevant clause of the consent paper had been replaced by the magistrate's order. J

2002 (2) SA p572

The plaintiff disputed this and argued in addition that it was not legally A competent for the magistrate to have deleted the dum casta provision. This was so, it was argued, because the dum casta provision was a resolutive condition separate and distinct from the maintenance order, properly regarded. There could never have been sufficient cause for the court to interfere with a contractual arrangement between the parties as to when maintenance would cease. B

Held, that the judgment or order of a court and its reasons for giving it had to be read as a whole to ascertain its intention. If the meaning of the judgment was clear and unambiguous, no extrinsic fact or evidence was admissible to contradict, vary, qualify or supplement it. However, if there was uncertainty in its meaning, the extrinsic circumstances surrounding or leading up to the court's granting of the judgment or order had to be investigated in order to C clarify it. (At 575F/G - I/J.)

Held, further, that the death, remarriage and dum casta provisions in the consent paper dealing with the cessation of maintenance had not been in contention before the magistrate. There had accordingly been no need to do away with those provisions. However, the magistrate's order regarding maintenance for the defendant personally was a self-contained order unto itself and expressly made in D substitution of the maintenance order granted by the High Court. (At 578A/B - C/D.)

Held, further, that the magistrate's order had made incursions into the relevant clause as articulated in the consent paper, constituting a complete reworking of the clause. This, and other factors, indicated an intention on the part of the magistrate to substitute his order for the whole of the relevant clause. (At 578D and E E - E/F.)

Held, accordingly, that, by the reference to the 'maintenance order' of the High Court, the magistrate had referred to the whole of the relevant clause in which the plaintiff's maintenance obligations to the defendant had initially been defined. It followed that the effect of the magistrate's order was to eliminate the death, remarriage and dum casta provisions from the revised maintenance obligations. (At 578F - G/H.) F

Held, further, regarding the competence of the maintenance court to vary the dum casta provision, that, although the dum casta clause was in the nature of a resolutive condition incorporated by contract into the consent paper, it was very much part of the maintenance order and the maintenance obligation. Stipulations as to when maintenance would cease were binding unless varied by G agreement or order of a competent court, and the maintenance court was such a court. It had accordingly been competent for the magistrate to omit the dum casta provision. The defendant's substitution defence therefore had to succeed and the plaintiff's action dismissed. (At 578J - 579B/C and 579E/F - F.)

Cases Considered

Annotations H

Reported cases

Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (A): dicta at 715F and 716A applied

Davis v Davis 1993 (1) SA 621 (C): compared

Drummond v Drummond 1979 (1) SA 161 (A): referred to I

Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A): applied

Martin v Martin 1997 (1) SA 491 (N): referred to

Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): dictum in para [11] applied

Purnell v Purnell 1993 (2) SA 662 (A): applied

S v Miller 1976 (1) SA 12 (C): compared J

2002 (2) SA p573

Schmidt v Schmidt 1996 (2) SA 211 (W): referred to A

Stinnes v Stinnes 1996 (4) SA 1024 (T): compared

Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd and Others 1992 (2) SA 489 (A): referred to.

Case Information

Civil trial in an action for validation of a dum casta clause in a consent paper incorporated in a decree for divorce and for the return of the maintenance paid in terms of the B consent paper. The facts appear from the reasons for judgment.

D A Stephens for the plaintiff.

F J Gordon-Turner for the defendant.

Cur adv vult. C

Postea (October 31).

Judgment

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...