Martin v Martin

• Jurisdiction: South Africa
• Judge: Howard JP, Combrinck J
• Judgment Date: 09 September 1996
• Citation: 1997 (1) SA 491 (N)
• Docket Number: 331/96
• Hearing Date: 02 September 1996
• Counsel: H P Jefferys for the appellant A G Jeffrey for the respondent
• Court: Natal Provincial Division

Howard JP:

The parties to this appeal were previously married to each other and were divorced by an order of this Court on 23 September 1985. In terms of that order the respondent (the wife) was awarded the D custody of four minor children of the marriage and the appellant (the husband) was ordered to pay maintenance for the appellant at the rate of R600 per month and for the children at the rate of R300 per month per child.

During March 1988 the respondent made a complaint to a maintenance officer as envisaged by s 4(1) of the Maintenance Act 23 of 1963 E ('the Act'). This gave rise to negotiations which resulted in the parties concluding a written agreement on 30 March 1988, the material terms of which were the following:

(a)

In full and final settlement of all claims which the respondent had or in the future might have against him, the appellant agreed to F pay inter alia the balance due to the United Building Society in respect of the mortgage bond registered over the respondent's immovable property situated at 3 Wimbledon Place, Durban North.

(b)

The appellant undertook to pay the respondent's monthly petrol account up to an amount of R80 per month. G

(c)

The appellant agreed to pay, in respect of the four minor children:

(i)

maintenance at the rate of R250 per month per child, which amount

'shall be reviewable by the parties on 1 October 1988, and which maintenance shall be increased annually with effect from 1 October 1989 H by an amount equal to the percentage increase in the rate of inflation during the preceding 12-month period';

(ii)

all reasonable medical and allied expenses, including medical aid surcharges.

On 30 March 1988, acting in terms of s 5(4)(b) of the Act and in accordance with the appellant's written consent as contemplated by I s 5(7), the maintenance court purported to make a maintenance order in favour of the respondent and the children in substitution of the order of this Court dated 23 September 1985. Instead of specifying the sums of money to be paid as maintenance, the order reads 'see annexure', the annexure thereto being the parties' written agreement of the same date. J

Howard JP

On 9 October 1991 the respondent instituted action in the Durban A and Coast Local Division of the Supreme Court for the recovery of various amounts allegedly due and payable by the defendant by virtue of the written agreement dated 30 March 1988. On 7 August 1992 the case was transferred to the Durban magistrate's court in terms of Rule 39(22) of the Supreme Court Rules. The respondent's claims, as amended before and during the trial, were for payment of: B

(a)

R31 788,55, being the balance due to the United Building Society and discharged by the respondent upon transfer of the property at 3 Wimbledon Place on 31 August 1994, plus interest thereon at the rate of 15,25% per annum from 1 September 1994; C

(b)

R1 682, being the difference between the amount payable in respect of the respondent's monthly petrol account for the period 1 April 1988 to February 1994 (R5 680) and the amount paid (R3 998) plus interest thereon at the rate of 15,5% per annum from 1 March 1994; D

(c)

R35 444,12, being the difference between the total amount payable as maintenance for the children for the period 1 October 1989 to 31 August 1994 (R91 444,12) and the amount paid (R56 000) plus interest thereon at the rate of 15,5% per annum from 1 September 1994; E

(d)

R3 274,80, being medical and allied expenses incurred in respect of the children.

By notice dated 6 November 1992 the appellant applied to introduce a special plea to the effect that the written agreement on which the respondent based her cause of action had been made an order of the maintenance court and that the magistrate's court therefore had no F jurisdiction to entertain the action. This application was refused and the trial commenced in May 1994. It was not concluded until 8 March 1996 when the magistrate gave judgment in favour of the respondent for payment of the amounts claimed in respect of the United Building Society's mortgage bond and the petrol account, R33 569,28 in respect G of arrear maintenance for the children and R2 884,33 for medical and allied expenses.

In the court below the appellant made a determined but futile attempt to dispute his liability to pay the balance of the mortgage bond and the amount of R80 a month in respect of the petrol account, thereby...