Cohen v Cohen and Another

JurisdictionSouth Africa
JudgeGriesel J
Judgment Date26 August 2002
Citation2003 (1) SA 103 (C)
Docket Number4383/2002
Hearing Date22 August 2002
CounselF J Gordon-Turner for the applicant. D A Stephens for the first respondent. No appearance for the second respondent.
CourtCape Provincial Division

Griesel J:

[1] In this application the applicant is seeking an order against the first respondent in terms of s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (the Act). She also seeks an order directing that proceedings instituted by the first respondent against her in the maintenance court in Cape Town under case No 01/816/95 be postponed pending the determination of this I application. The relevant maintenance court magistrate has formally been joined herein as second respondent, but does not oppose the application and no relief is claimed against her. I shall accordingly refer to the first respondent herein simply as 'the respondent'. J

Griesel J

The facts A

[2] The applicant, who is presently an estate agent, was formerly married to the respondent, a businessman, for some 21 years. On 10 February 1995 this Court granted a decree of divorce, incorporating the terms of a consent paper, entered into between the parties on 4 November 1994. In terms of the consent paper, custody of the two minor children born of the marriage was awarded to the B applicant. The respondent was obliged to pay maintenance to the applicant in respect of the minor children. In addition, the respondent had to pay maintenance to the applicant personally at the rate of R3 000 per month plus medical costs, servicing costs in respect of her motor vehicle, replacement thereof every five years, as C well as levies payable in respect of her townhouse. The maintenance obligation would endure until her death or remarriage, 'or until she should 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' (the dum casta clause). D

[3] Notwithstanding the terms of the consent paper, the minor children remained in the de facto custody of the respondent after the divorce. The position was later regularised when the respondent obtained an order by consent, awarding custody to him. Apart from that application, the parties have been embroiled in numerous court applications since then, most of which related to the E respondent's obligations to maintain the applicant. For present purposes the following brief synopsis will suffice.

[4] In November 1995, some nine months after the divorce, the respondent approached the maintenance court, seeking to F discharge his maintenance obligations in respect of the minor children as well as the applicant. With regard to maintenance for the applicant, the respondent asserted that the very reason for having agreed to personal maintenance for her had fallen away, because the minor children did not live with the applicant. On 23 February 1996, the court discharged the maintenance order in respect of the children, but G refused the application to discharge the maintenance obligation in respect of the applicant.

[5] The respondent appealed against the latter finding to this Court, but on 22 November 1996 his appeal was dismissed with costs, the Court (per Van den Heever J, Chetty J concurring) finding that there was 'no merit in the appeal'. H

[6] Some five months later, on 11 April 1997, the respondent launched a fresh application in the maintenance court, once again seeking to discharge his maintenance obligation towards the applicant. The applicant brought a counter-application for an increase in the amount of maintenance I payable. On 15 January 1998 the court refused to discharge the High Court order, but reduced the monthly amount from R3 000 to R1 500 per month.

[7] Shortly afterwards, on 3 April 1998 the respondent brought an application to this Court for variation of the custody order in respect of J

Griesel J

the two minor children, who had been living with him since the divorce. A deed of settlement to this effect was A signed by both parties and an order was granted by agreement on 22 April 1998.

[8] Having obtained a formal custody order in respect of the children, the respondent launched another application in the maintenance court a month later, claiming payment from the applicant in an amount of R4 000 per month as maintenance for each of the children. B This amount, which exceeded the applicant's monthly income at the time, was reduced at the hearing to R1 000 per month. The applicant again brought a counter-application for an increase in the maintenance order in respect of herself. On 21 December 1998 the maintenance court granted the counter-application by increasing the C applicant's maintenance from R1 500 to R3 500 per month, but declined to make any order in respect of the respondent's claim for maintenance in respect of the children.

[9] Less than a week after this judgment the respondent approached the maintenance court with an identical application, D namely a claim for maintenance for the minor children at the rate of R1 000 each, as well as an order discharging his maintenance obligation in respect of the applicant. The matter came before the maintenance officer on 8 January 1999. The record contains an endorsement to the effect that the respondent sought maintenance 'iro same application finalised on 21.12.98. Advised to go on appeal. Proceedings stopped.' E

[10] The respondent followed this advice and on 20 January 1999 he noted an appeal to this Court against the orders granted on 21 December 1998. However, when the appeal was set down for hearing on 18 February 2000 and heads of argument were called F for, the respondent's attorneys indicated that the respondent was prepared to withdraw the appeal on condition that each party would pay their own costs. The applicant reluctantly accepted this proposal and the necessary notice of withdrawal of the appeal was filed on 23 December 1999.

[11] Less than a month later, on 19 January 2000 the respondent instituted an action in this Court, relying on the G dum casta clause in his claim for a declarator that his maintenance obligations in...

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5 practice notes
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...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......
  • Rens v Gutman NO and Others
    • South Africa
    • Invalid date
    ...a recognition of an existing Court order of 30 April 2002, an order must be made that provides, on the one hand, a declaration of the J 2003 (1) SA p103 Davis correct legal position, without in any implicit way setting aside the order, which would be the case if the order of this A Court ha......
  • Absa Bank Ltd v Dlamini
    • South Africa
    • Invalid date
    ...(D): dictum at 608D - G applied A Corderoy v Union Government (Minister of Finance) 1918 AD 512: referred to Cohen v Cohen and Another 2003 (1) SA 103 (C) ([2002] 4 All SA 21): dictum in para [14] Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C): dictum at 773I - 774B applied B In re ......
  • Martin v Minister of Correctional Services Commissioner of Correctional Services
    • South Africa
    • Gauteng Local Division, Johannesburg
    • 13 September 2016
    ...Date of Hearing: 06 September 2016 Date of Judgment: 13 September 2016 [1] 1997 (3) SA 721 (SCA) at 734 [2] Cohen v Cohen and Another 2003 (1) SA 103 (CPD). S v Sitebe 1965 (2) SA 908 [3] Western Assurance Co. v Colderwall's Trustee 1918 AD 262 at 271. ...
  • Request a trial to view additional results
5 cases
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...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......
  • Rens v Gutman NO and Others
    • South Africa
    • Invalid date
    ...a recognition of an existing Court order of 30 April 2002, an order must be made that provides, on the one hand, a declaration of the J 2003 (1) SA p103 Davis correct legal position, without in any implicit way setting aside the order, which would be the case if the order of this A Court ha......
  • Absa Bank Ltd v Dlamini
    • South Africa
    • Invalid date
    ...(D): dictum at 608D - G applied A Corderoy v Union Government (Minister of Finance) 1918 AD 512: referred to Cohen v Cohen and Another 2003 (1) SA 103 (C) ([2002] 4 All SA 21): dictum in para [14] Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C): dictum at 773I - 774B applied B In re ......
  • Martin v Minister of Correctional Services Commissioner of Correctional Services
    • South Africa
    • Gauteng Local Division, Johannesburg
    • 13 September 2016
    ...Date of Hearing: 06 September 2016 Date of Judgment: 13 September 2016 [1] 1997 (3) SA 721 (SCA) at 734 [2] Cohen v Cohen and Another 2003 (1) SA 103 (CPD). S v Sitebe 1965 (2) SA 908 [3] Western Assurance Co. v Colderwall's Trustee 1918 AD 262 at 271. ...
  • Request a trial to view additional results

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