Davis v Davis

• Jurisdiction: South Africa
• Judgment Date: 24 September 1992
• Citation: 1993 (1) SA 621 (C)

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

1993 (1) SA p621

Citation	1993 (1) SA 621 (C)
Court	Cape Provincial Division
Judge	King J
Heard	September 17, 1992
Judgment	September 24, 1992

Flynote : Sleutelwoorde H

Husband and wife — Divorce — Maintenance — Consent paper, incorporated in order of Court, providing for maintenance to be paid to wife and for annual escalation of maintenance to extent of increase in CPI — Wife I subsequently obtaining order in magistrate's court in terms of s 5(4)(b) of Maintenance Act 23 of 1963 for increased award of maintenance in substitution of original order in consent paper — Five years later wife obtaining writ arising out of ex-husband's failure to pay what he would have been liable to pay if escalation clause in consent paper had been operative at all material times — Substitution by magistrate of original J order valid and of force and effect — Writ set aside.

1993 (1) SA p622

Headnote : Kopnota

A The applicant and respondent were divorced in 1984 and a consent paper was incorporated in the Court's order which contained a provision for the payment of maintenance by applicant (the husband) to respondent and a provision for the annual increase of the maintenance payments to the extent of the annual increase in the consumer price index. Subsequent to the divorce, respondent approached the magistrate's court in terms of s 4 of the Maintenance Act 23 of 1963 and on 8 September 1987 she obtained a B judgment in the magistrate's court for an increased amount of maintenance in substitution of the existing maintenance order in the consent paper. The magistrate specifically did not incorporate the escalation clause or any escalation factor in his order. Thereafter, in 1992, the respondent took out a writ of execution in respect of applicant's alleged indebtedness arising out of his maintenance obligations based on his failure to make payment of what he would have been liable to pay if the C escalation clause contained in the consent paper had been operative at all material times. The applicant's case was that by reason of the fact that the magistrate, on 8 September 1987, acting in terms of s 5(4)(b) of the Maintenance Act, had substituted his order for the maintenance order contained in the consent paper, the writ of execution lacked a valid cause and accordingly had to be set aside. It was contended on respondent's behalf that the magistrate did not have the jurisdiction, alternatively was not competent, to substitute or amend the terms of the consent paper.

D Held, that the order made by the Supreme Court and incorporated in the consent paper was a maintenance order and that the magistrate was competent and at liberty to substitute his own order for such maintenance order as was in force at the material time.

The decision in Rubenstein v Rubenstein 1992 (2) SA 709 (T) followed.

Held, accordingly, that the escalation clause had been validly substituted and that the writ was therefore bad and had to be set aside. E

Case Information

Application for the setting aside of a writ of execution. The facts appear from the reasons for judgment.

A C Oosthuizen for the applicant.

P R van Zyl for the respondent. F

Cur adv vult.

Postea (September 24).

Judgment

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

1993 (1) SA p623

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...