EH v SH

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Cloete JA, Mhlantla JA, Leach JA and Boruchowitz AJA
• Judgment Date: 22 March 2012
• Citation: 2012 (4) SA 164 (SCA)
• Docket Number: 188/2011 [2012] ZASCA 19
• Hearing Date: 06 March 2012
• Counsel: A Beyleveld SC for the appellant. GJ Friedman (attorney) for the respondent.
• Court: Supreme Court of Appeal

Leach JA (Mthiyane DP, Cloete JA, Mhlantla JA and Boruchowitz AJA concurring): I

[1] The appellant appeals against an order obliging him to pay R2000 per month to the respondent, his wife of almost 29 years, upon dissolution of their marriage. His principal objection against the order lies in the fact that for some eight years prior to the divorce the J respondent had been cohabiting with another man. This, the appellant

Leach JA (Mthiyane DP, Cloete JA, Mhlantla JA and Boruchowitz AJA concurring)

contends, disentitles her from receiving maintenance from him. In the A alternative, the appellant suggested the sum of R2000 per month is in any event too high given his straitened finances.

[2] The parties were married out of community of property in December 1972. Two sons, both now majors and self-supporting, were born from B their union. In December 2000, after 28 years of marriage, the appellant left the matrimonial home in Port Elizabeth as he had formed a relationship with another woman and had decided on a new life. He purchased another residence in the city, but his new relationship also failed and within six months he had formed an intimate relationship with another man with whom he has since been cohabiting. They left C Port Elizabeth and at the time of the trial in the high court were living in Steytlerville, a small town in the rural areas of the Eastern Cape.

[3] The respondent was friendly with a married couple, Tim and Diana Smith, whom she had come to know some years previously when their sons attended the same school. In April 2001, shortly after the appellant D had moved out of the common home, Diana Smith passed away. In September 2001 (by which time the appellant was already cohabiting with his male partner) a relationship began to blossom between the respondent and Tim Smith. With the passage of time the relationship became more intimate and, in April 2003, the respondent moved into E both Mr Smith's home and bedroom, and they thereafter cohabited as man and wife. During the first two years that they had lived together the respondent's youngest son, Mark, who was at university at the time, lived with them as well.

[4] In the meantime, in February 2003, the respondent issued a divorce F summons out of the Port Elizabeth High Court in which, as ancillary relief, she claimed payments of maintenance for both Mark and herself, and payment of a sum equivalent to one-half of the value of the appellant's estate. The parties thereafter entered into settlement negotiations and, in September 2003, some six months after the respondent had commenced to live with Mr Smith, a deed of settlement was G concluded in which the appellant undertook to pay the respondent R3000 per month as maintenance until her death or remarriage and to retain her as a beneficiary on his medical-aid scheme. In addition the appellant also agreed to make various payments in respect of Mark's upkeep and to pay various monetary amounts. H

[5] Unfortunately for all concerned, the appellant had run into financial difficulties and was sequestrated the day before the divorce hearing. As a result, the judge hearing the matter indicated that he would not be prepared to make the terms of the settlement an order of court, apparently being of the view that certain of its provisions could not be I enforced by reason of the appellant's sequestration. As a result the divorce did not proceed and remained unresolved. The appellant continued living with his partner and the respondent cohabiting with Mr Smith. Moreover, pursuant to the sequestration the respondent's assets were frozen in terms of the Insolvency Act 24 of 1936. This led to...