Davis v Davis

JurisdictionSouth Africa
JudgeKing J
Judgment Date24 September 1992
Citation1993 (1) SA 621 (C)
Hearing Date17 September 1992
CourtCape Provincial Division

King, J.:

The parties were divorced by order of this Court granted on G 2 March 1984. Incorporated in the Court's order was a consent paper which contained a provision for the payment of maintenance by applicant (the husband) to respondent at the rate of R400 per month until her death or remarriage (clause 2) and a provision for the annual increase, on the anniversary of the final decree of divorce, of the maintenance payments H provided for in clause 2 to the extent of the annual increase in the consumer price index (clause 3).

Subsequent to the divorce respondent on a number of occasions approached the magistrate's court in terms of s 4 of the Maintenance Act 23 of 1963. One such occasion resulted in a judgment delivered by the magistrate, Wynberg, on 8 September 1987. He purported to award respondent an I increased amount of maintenance in substitution of the existing maintenance order as contained in both clauses 2 and 3 of the original order.

On 5 May 1992 respondent took out a writ in execution of applicant's alleged indebtedness arising out of his maintenance obligations, based, it J is common cause, on his failure to make payment of what he would have

King J

A been liable to pay if the escalation clause in terms of clause 3 of the consent paper had been operative at all material times. The amount of the writ is R17 415,34.

It is applicant's case that by reason of the fact that the magistrate, on 8 Sep- tember 1987, acting in terms of s 5(4)(b) of the Maintenance Act, substituted his order for the maintenance order contained in the consent paper, the writ of execution lacks a valid cause and accordingly B falls to be set aside.

It was argued on behalf of respondent that the magistrate did not have the jurisdiction, alternatively was not competent, to substitute or amend the terms of the consent paper. This submission was based on a number of propositions, viz, firstly, that a consent paper providing for payment of maintenance to one ex-spouse by the other can be made an order of Court C either by virtue of the provisions of s 7(1) of the Divorce Act 70 of 1979 or by the Court in terms of its inherent jurisdiction at common law. (See S v Loubser 1969 (2) SA 652 (C) at 662A.) It was argued that, although the Divorce Act had done away with the previous considerations of 'guilt' and 'innocence', these were still relevant by reason of the provisions of s D 7(2) of that Act to the extent that the conduct of the parties, insofar as it may be relevant to the break-down of the marriage, is one of the factors to which the Court may have regard in fixing maintenance where there is no written agreement between the parties.

The consent paper here is silent, so the argument proceeded, as to E whether it was made an order of Court pursuant to the common law or the statute and if it had been intended to have been made under the Act 'one would have expected this fact to have been clearly stipulated in the agreement'. (I quote from respondent's counsel's heads.) I may mention here that I have never in all the years I have been concerned with consent F papers, either as counsel or Judge, seen a consent paper with such a 'stipulation'.

I confess to some difficulty in understanding the relevance of this argument. The maintenance court (ie every magistrate's court within its area of jurisdiction) is empowered in terms of s 5(4) of the Maintenance Act, where there is no maintenance order (ie an order for the periodical G payment of sums of money), to make an order against any person proved to be legally liable to maintain any other person (s 5(4)(a)) or where, as here, there is a maintenance order in force (assuming for the moment that this is so) to make an order for payment of maintenance in substitution of such maintenance order. (Section 5(4)(b).) It is in terms of s 5(4)(b) H that the magistrate purported to act.

The first point to be made is that the distinction which prevailed at that time and which was the basis of the decision in Loubser's case no longer applies. Section 10 of the Matrimonial Affairs Act 37 of 1953 was...

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15 practice notes
  • Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance
    • South Africa
    • Juta Stellenbosch Law Review No. , January 2021
    • 26 January 2021
    ...marryi ng a partner to ma intain her maintenance entitleme nts from a forme r husband.9385 Reid v Reid 1992 1 SA 443 (E); Davis v Davis 1993 1 SA 621 (C); Luttig v Luttig 1994 1 SA 523 (O); Girdwood v Girdwood 1995 4 SA 698 (C); Hoal v Hoal 2002 3 SA 209 (N ) For a co ntrary decision, s ee ......
  • Girdwood v Girdwood
    • South Africa
    • Invalid date
    ...cases in its judgment: Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) Claassens v Claassens 1981 (1) SA 360 (N) Davis v Davis 1993 (1) SA 621 (C) Feinstein v Niggli and Another 1981 (2) SA 684 (A) Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) Laws v Rutherfurd 1924 A......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...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 Produc......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...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 M......
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14 cases
  • Girdwood v Girdwood
    • South Africa
    • Invalid date
    ...cases in its judgment: Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) Claassens v Claassens 1981 (1) SA 360 (N) Davis v Davis 1993 (1) SA 621 (C) Feinstein v Niggli and Another 1981 (2) SA 684 (A) Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) Laws v Rutherfurd 1924 A......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...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 Produc......
  • Cohen v Cohen
    • South Africa
    • Invalid date
    ...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 M......
  • Martin v Martin
    • South Africa
    • Invalid date
    ...were cited in the judgment of the Court: Blaikie-Johnstone v P Hollingsworth (Pty) Ltd and Others 1974 (3) SA 392 (D) Davis v Davis 1993 (1) SA 621 (C) I Hoffmann v Hoffmann 1964 (1) SA 746 (C) Kirk v Kirk 1970 (1) SA 128 (R) Schmidt v Schmidt 1996 (2) SA 211 (W) Swadif (Pty) Ltd v Dyke NO ......
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1 books & journal articles
  • Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance
    • South Africa
    • Juta Stellenbosch Law Review No. , January 2021
    • 26 January 2021
    ...marryi ng a partner to ma intain her maintenance entitleme nts from a forme r husband.9385 Reid v Reid 1992 1 SA 443 (E); Davis v Davis 1993 1 SA 621 (C); Luttig v Luttig 1994 1 SA 523 (O); Girdwood v Girdwood 1995 4 SA 698 (C); Hoal v Hoal 2002 3 SA 209 (N ) For a co ntrary decision, s ee ......

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