Cohen v Cohen

• Jurisdiction: South Africa
• Citation: 2003 (3) SA 337 (SCA)

Cohen v Cohen
2003 (3) SA 337 (SCA)

2003 (3) SA p337

Citation	2003 (3) SA 337 (SCA)
Case No	010/2002
Court	Supreme Court of Appeal
Judge	Olivier JA, Brand JA and Conradie JA
Heard	November 1, 2002
Judgment	March 3, 2003
Counsel	R W F MacWilliam SC for the appellant.; F J Gordon-Turner for the respondents.

Flynote : Sleutelwoorde

Husband and wife — Divorce — Maintenance for spouse — Variation of — Maintenance B payable to spouse in terms of settlement agreement incorporated in High Court divorce order — Effect on High Court order of maintenance court order varying amount of maintenance payable to spouse — Appellant seeking to enforce dum casta clause in settlement agreement forming part of existing High Court order after maintenance court had varied amount of maintenance payable C to spouse — Respondent contending that maintenance court order substituting High Court order and effectively eliminating dum casta clause — Maintenance court order causing existing High Court to cease to be of force and effect, but only insofar as maintenance court order expressly, or by necessary implication, replacing such order — In present D case, maintenance court order not dealing expressly, or by necessary implication, with dum casta clause in High Court order — Dum casta clause therefore remaining of full force and effect.

Headnote : Kopnota

In an appeal from a decision in a Provincial Division the question for decision was whether an order made by a maintenance court varying E the amount of maintenance payable by the appellant to the respondent in terms of a Supreme Court order issued in a divorce action and incorporating a consent paper entered into between the parties, also varied and, in effect, eliminated a dum casta clause which was part of the consent paper and which consequently F formed part of the Supreme Court order. The dum casta clause provided that maintenance was payable by the appellant to the respondent until her death or remarriage or until she lived together as husband and wife with another man for a period aggregating six months in any one year or nine months in any consecutive three years.

Subsequent to their divorce and pursuant to a maintenance enquiry, the G maintenance court ordered that the amount of maintenance payable by the appellant to the respondent be increased. Thereafter, the appellant instituted action against the respondent in the High Court, in which he relied on the dum casta clause and claimed repayment of all of his maintenance payments to her since the date upon which she began living together with another man as husband and wife. The respondent raised the defence that, by virtue of the H maintenance court order varying the amount of maintenance payable to her by the appellant, the dum casta condition had ceased to be of any force or effect. The Court a quo upheld this defence.

Held, that the appeal had to succeed for the following reasons:

(1)

The variation order made by the magistrate was limited to a variation of the amount of maintenance payable and was never intended to deal with, vary or delete the dum casta condition. The I order made no reference to para 4(a) of the consent paper, which contained the condition. (Paragraphs [11] and [12] at 342A/B - B/C and D.)

(2)

The magistrate expressly recorded that clauses 4(a)(ii) - (iv) of the consent paper were to remain in force. These subparagraphs required an introductory paragraph in order to make grammatical sense. It J

2003 (3) SA p338

followed that para 4(a) had necessarily not been varied or substituted and A remained in force. (Paragraph [13] at 342D/E - E/F.)

Held, further, that the principle was clear: a maintenance court order caused the existing Supreme Court or High Court order to cease to be of force and effect, but only insofar as the maintenance court order expressly, or by necessary implication, replaced such order. (Paragraph [18] at 343I/J - 344A.)

Held, further, that, in the present case, the maintenance court order did not deal expressly, or by necessary implication, with B the dum casta clause and it therefore remained of full force and effect. (Paragraph [18] at 344A - A/B.)

The decision in the Cape Provincial Division in Cohen v Cohen 2002 (2) SA 571 reversed.

Cases Considered

Annotations

Reported cases C

Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A): compared

Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA 363 (CC): distinguished

Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (A): compared D

Cohen v Cohen 2002 (2) SA 571 (C): reversed on appeal

Engels v Allied Chemical Manufacturers (Pty) Ltd and Another 1993 (4) SA 45 (Nm): compared

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A): compared E

Hira and Another v Booysen and Another 1992 (4) SA 69 (A): compared

Plaaslike Oorgangsraad, Bronkhorstspruit v Senekal 2001 (3) SA 9 (SCA): compared

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

S v Radebe 1988 (1) SA 772 (A): compared. F

Case Information

Appeal from a decision in the Cape Provincial Division (Comrie J), reported at 2002 (2) SA 571. The facts appear from the judgment of Olivier JA.

R W F MacWilliam SC for the appellant.

F J Gordon-Turner for the respondents. G

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following:

Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) at 704E - H

Cohen v Cohen and Another 2003 (1) SA 103 (C) at 107F H

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

Desai v Inman & Co 1971 (1) SA 43 (N) at 51B - D

Douglas v Douglas [1996] 2 All SA 1 (SCA) at 17b

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A) at 265G I

Fose v Minister of Safety & Security 1997 (3) SA 786 (CC) at paras [19], [20] at 799 - 800

Graaff-Reinet Municipality v Van Ryneveld's Pass Irrigation Board 1950 (2) SA 420 (A) at 424

Minister of Agricultural Economics and Marketing v Virginia Cheese and Food Co (1941) (Pty) Ltd 1961 (4) SA 415 (T) at 422 - 4 J

2003 (3) SA p339

Owen-Smith v Owen-Smith 1982 (1) SA 511 (ZSC) at 517E - 518H A

Rossouw v Haumann 1949 (4) SA 796 (C) at 801

S v Absalom 1989 (3) SA 154 (A) at 164E - G

Schierhout v Minister of Justice 1925 AD 417 at 424 - 5

Schmidt v Schmidt 1996 (2) SA 211 (W) at 212G, 212I, 223C and 218G - 219A B

Stinnes v Stinnes 1996 (4) SA 1024 (T) at 1027J - 1028A

Suid-Afrikaanse Sentrale Ko-operatiewe Graanmaatskappy Bpk v Shifren and Others and the Taxing Master 1964 (1) SA 162 (O) at 164D - H and 168A

Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W) at 183D - F C

Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA) at 1213D

Hoffmann and Zeffertt The South African Law of Evidence 4th ed at 510

Hutchison 'Contracts Embodied in Orders of Court: The Legal Nature and Effect of a Judgment by Consent' published in The Quest for Justice: Essays in Honour of Michael McGregor Corbett edited by Ellison Kahn at 249 - 54 D

Joubert (ed) The Law of South Africa vol 9 first re-issue at para 639.

Cur adv vult.

Postea (March 3). E

Judgment

Olivier JA:

[1] The crisp question in this appeal is whether an order made by a maintenance court (ie a magistrate's court) varying the amount of maintenance payable by the appellant to the respondent in terms of a...