MB v NB

• Jurisdiction: South Africa
• Judge: Brassey AJ
• Judgment Date: 25 August 2009
• Citation: 2010 (3) SA 220 (GSJ)
• Docket Number: 2008/25274
• Counsel: I Ossin for the plaintiff. AA Crutchfield for the defendant.
• Court: South Gauteng High Court, Johannesburg

Brassey AJ:

Introduction

[1] Marriage is, typically, born out of such love and solemnised with G such hope that its termination by divorce cannot but be tragic. But the death of this marriage, or at least the manner in which the last rites have been pronounced over it, represents a tragedy of an especially painful sort.

[2] So much was rightly acknowledged by counsel for one of the parties and would, I think, have been evident to anyone sitting in court H throughout the days, sometimes seemingly endless, on which the evidence was presented, challenged and minutely examined in argument. I cherish no hope that this judgment will diminish the acrimony between the parties, for I suspect only time can do this; but, beyond settling the outstanding issues between the parties (which is of course my primary I task), I do entertain the hope, vain though it may be, that what I say will reduce the risk of a repetition of this tragedy.

The marriage and its consequences

[3] The plaintiff, a widow with a son of 14, married the defendant on 24 October 1998 in Johannesburg. In the early years the commitment J

Brassey AJ

A between them was so strong that the defendant agreed to adopt SB, the son, with whom he had by then formed a strong bond. The process of adoption was not pursued, perhaps because the parties considered that a change of name would suffice, but in September 2000 SB took the surname of B in consequence of an official entry in the Births and Deaths B Registration Act 51 of 1992.

[4] In 2007 the plaintiff and the defendant, on a visit to the Eastern Cape, looked over St Andrew's College in Grahamstown. Excited by what they saw, they completed and signed, as father and mother, the application forms for his admission to the school as a boarder. The application was successful. At the beginning of 2008 he took up a place C in grade 8 at the school and, if all continues as originally contemplated, he can expect to matriculate and leave the school in three years' time.

[5] Education at senior level at a private school is, according to the plaintiff, the path the parties envisage for JB, the daughter born of the D marriage in March 2002.

[6] At present she is a day scholar in a State-funded school and lives with her mother. There is no quarrel with this arrangement, for these and other matters of parental rights and responsibilities are, happily, the subject of agreement between the parties.

E [7] It was shortly after JB was born that the defendant began to stray. According to the plaintiff, he would go out on his own and return, late at night, in a drunken and repellent state. Her pronounced disapproval of his conduct had little effect on his conduct and seems to have done nothing to improve the relationship. At some point - the date is unclear - the defendant embarked upon a secret, long-standing relationship F with another woman, a liaison that he may or may not have augmented by other dalliances.

[8] Her suspicions aroused, the plaintiff hired a private detective and together they raided the flat he had acquired for his affairs. Enough was found there to confirm her suspicions and the defendant was put on G terms to leave the matrimonial home, which he did in mid-2008. The plaintiff lost no time in bringing divorce proceedings and, acting with commendable speed, the lawyers contrived to secure a hearing of the matter, hotly contested though it was, in just over a year.

The issues H

[9] Matters of custody and access having been all but completely agreed, the case presented to the court concerns the patrimonial entitlements and obligations of the parties. Some items, such as the maintenance payable for JB, have been conceded and they will be recorded in the I order ultimately made by me. One claim is, moreover, formally contested, but is met by no defence that is valid in law. It is the claim for repayment of an amount of R191 000, together with interest, paid by the plaintiff to the defendant under a scheme designed to maximise the income of the plaintiff's erstwhile mother-in-law. The defendant admits that the payment took the form of a loan that was repayable on demand J and, demand having been made at the end of August 2008, the

Brassey AJ

defendant has no legal right, questions of set-off aside, to refuse to A repay it. All that is contested is the duty to pay interest on the amount, but the law is clear on the point, and plaintiff is entitled to mora interest from the date of demand, which is 31 August 2008.

[10] What the defendant does contest is the plaintiff's claim for B maintenance for herself; he says she earns, or will be able to earn, enough to be self-supporting. Also contested is the plaintiff's claim that he should pay SB's school fees for so long as the boy remains at St Andrew's College. In addition, the plaintiff claims that the defendant should make corresponding payments for JB at the point when she becomes old enough to go to senior school. C

[11] In addition, the plaintiff has a fairly significant claim under the so-called system of accrual. One defence originally mounted to this claim was for forfeiture of benefits, to which the plaintiff responded by a defence in equivalent terms, but these contentions were jettisoned during the trial. As matters stand, the defendant, while accepting the D application of the accrual principle, contends that the plaintiff's claim reflects an inflated assessment of the value of his estate at the date of trial.

[12] In issue, finally, is the question of costs. It is a matter on which I shall have quite a lot to say at the end of this judgment. E

SB's school fees

No contractual right

[13] In the particulars of claim the plaintiff pleads that the defendant, by agreement, undertook a general duty to maintain SB and that this specifically encompassed a duty to pay his school fees. In the course of F preparing for trial the plaintiff abandoned the general claim for maintenance and elected to proceed only for the school fees. In making this concession, she was, I have little doubt, persuaded by the prevailing principle that a spouse has no general duty to support a child born of another marriage, unless the child is, in consequence of formal adoption, deemed to be his or her own. G

[14] In proceeding for the school fees, however, the plaintiff placed reliance on the agreement to pay maintenance that, she contended, was implicit in the defendant's agreement to pay SB's school fees. The plaintiff said that the agreement constituted a contract that bound the H defendant to pay the school fees until SB left St Andrew's school. She based this conclusion on the defendant's endorsement of the decision to send SB to the school and his formal undertaking, expressed in the application form, to be jointly and severally liable for the school fees that she, as applicant, was under an obligation to pay. In addition, she pointed out that the defendant had in fact made some payments to the I school, but in argument this point was rightly accepted as neutral on the issue of contractual liability.

[15] None of this supports an inference that, as between the two spouses, the defendant made a contractual commitment to pay the school fees. The decision was the product of a domestic arrangement, J

Brassey AJ

A and so does not sustain the inference that the defendant's concurrence was given with intention to contract. Pothier, according to RH Christie The Law of Contract 4 ed (2001) at 34, illustrates the extra-contractual nature of such arrangement by giving an example, instructive in the present case, of a father's promise to reward his son who does well at college. This, Pothier makes plain, may be an undertaking of sorts, but B it does not generate a binding contract, since it is not given animus contrahendi.

[16] Still less does the defendant's promise constitute an undertaking to pay the fees for so long as the plaintiff elects to keep SB at the school. An C undertaking so far-reaching in effect would have subjected the defendant, whatever his financial position, to the unfettered discretion of the plaintiff, and such an arrangement is scarcely probable between spouses, even when (as these were not) they are on the best of terms. In terms of the application form, SB's enrolment at the school was subject to a term's notice. If, contrary to my finding, the defendant were under a D contractual obligation to pay the fees, the obligation would endure only until the expiry of a term following the fact of repudiation. This would be so, even if the defendant gave the plaintiff no formal notice of his intention to terminate the contract. In Honono v Willowvale Bantu School Board and Another 1961 (4) SA 408 (A), a schoolmaster was obliged to E treat his summary dismissal, unlawful in itself, since no misconduct was proved against him, as though it were expressed to expire at the end of the period, an entire term, for which notice might lawfully have been given.

The duty of maintenance and support

F [17] But the matter does not begin and end within the parameters of the law of contract. The defendant's obligation to pay SB's school fees was pleaded as a species of maintenance, and the question that now presents itself is whether the defendant has the obligation to support SB in this way.

G [18] In the passage from Christie I have referred to, Pothier is said to put the father's promise of a reward on the footing that it is 'only the expression of polite sympathy or made by way of a compliment', but Pothier then goes on to say that it is 'an offer to render assistance when called upon'. Brought up to date, as Christie says the example must be, H this is suggestive of some kind of duty of support, and the facts of the present case bear out such a duty emphatically. By agreeing to give SB his name, the defendant impliedly...