PP v MP

• Jurisdiction: South Africa
• Judge: J Cloete J
• Judgment Date: 06 November 2018
• Citation: 2018 JDR 1923 (WCC)
• Docket Number: 11672/2017
• Court: Western Cape Division, Cape Town

J Cloete:

[1]

The parties were divorced on 26 November 1991. In clause 3 of their Consent Paper, the applicant undertook to maintain the respondent until her death or remarriage, whichever occurred first. The cash portion of the maintenance was agreed at R2 500 per month. Clause 4 provided that this would increase annually

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on the anniversary of the divorce at the fixed rate of 12% per annum but that 'notwithstanding the aforegoing, either party may apply to vary the said maintenance payable on good cause shown'.

[2]

The applicant has approached court in terms of s 8 of the Divorce Act [1] which reads in relevant part as follows:

'8. Rescission, suspension or variation of orders.-(1) A maintenance order… made in terms of this Act, may at any time be rescinded or varied… if the court finds that there is sufficient reason therefor.'

[3]

The applicant does not rely on inability to afford the maintenance or on a deterioration in his financial circumstances. He only seeks to vary the annual escalation fixed at 12% per annum on the cash component to an annual escalation in accordance with the Consumer Price Index ("CPI").

[4]

When the applicant agreed to the annual 12% escalation in 1991 the prime lending rate was 21% per annum and the CPI over the following year (December 1991 to November 1992) was 9.6% per annum. He alleges that the R2 500 per month cash maintenance was considered by the parties as sufficient to cover the respondent's reasonable and actual needs in 1991 (excluding her accommodation and almost all of her medical expenses which the applicant also agreed to pay). [2] This allegation is admitted by the respondent, who merely contends that the applicant is an astute businessman who was legally represented, was fully apprised of the significance of each provision of the

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Consent Paper and 'went into the agreement with his eyes open'. She denies that the applicant, as he alleges, failed to appreciate the future effect of the annual escalation provision over time.

[5]

The monthly amount currently paid by the applicant (i.e. R2 500 plus the 12% annual escalation) is R47 767.73. This will increase to R53 499.86 per month on 26 November 2018. It is common cause that the respondent has a fully paid home in Bantry Bay. The applicant alleges that it is worth in excess of R15 million. This allegation was met with a bald denial by the respondent who elected not to disclose any details of her assets and liabilities or income and expenses.

[6]

It is the applicant's case that the annual fixed escalation of 12% (which is of course compounded) has meant that, given the common cause fact of the respondent's reasonable needs at the time of divorce, the monthly amount paid by him far exceeds what her current reasonable needs should be. By comparison, had the cash component been linked to an annual CPI escalation, the applicant would currently pay R12 870 per month. The respondent concedes that the increases she has received over the years have exceeded the inflation rate. Importantly, the applicant only seeks a variation of the annual escalation as from 26 November 2018 which means that, if granted, the respondent will continue to receive R47 767.73 per month escalating annually in accordance with the CPI at her current age of 67 years.

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[7]

The applicant previously approached the maintenance court in 2016 but the maintenance officer refused to entertain his application on the erroneous basis that he had not supported it with full information concerning his own financial position, despite the fact that this was irrelevant, given that his ability to pay was not in issue. In Havenga v Havenga [3] it was held that the magistrate's view that there had to be a material change in circumstances before he could hear the matter was incorrect; the presence or absence of changed circumstances was not a statutory jurisdictional fact; and parties were therefore entitled to agree that this procedural requirement would not be applicable to them. It also found that the appropriate remedy which should have been employed was a review of the magistrate's decision and not an appeal. However in the present matter the parties specifically agree that neither wishes to approach the maintenance court any further.

[8]

In the maintenance court the applicant was provided with the statutory Form J107 E for completion, which required him to set out why 'good cause/reason' exists for a substitution of the existing maintenance order as contemplated in s 6(1)(b) of the Maintenance Act [4] .

[9]

The explanation he provided was as follows:

'The cash amount payable by the deponent as and for maintenance has for the past 25 years artificially been increased annually in terms of the High Court Order, at 12% per annum, a percentage vastly in excess of a rate equal to the annual Consumer Price Index, when the needs of the said Maria Papapetros

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have not increased at such a rate over the past 25 years and will not in future increase annually at such a rate.

Future automatic and unsubstantiated increases at 12% per annum, without good cause being shown for such increases, will be unjust to the deponent and it would be unfair to the deponent that the High Court Order, as granted on 26th of November 1991, should be allowed to stand and remain in force in its original form, thereby enriching the said Maria Papapetros at the expense of the deponent.'

[10]

The parties are ad idem that there is no precise definition of 'sufficient reason' or 'good cause' and that this...