Rubenstein v Rubenstein

• Jurisdiction: South Africa
• Judge: Eloff JP, McCreath J, De Klerk J
• Judgment Date: 20 February 1992
• Hearing Date: 20 February 1992
• Citation: 1992 (2) SA 709 (T)
• Court: Transvaal Provincial Division

McCreath J:

On 7 June 1977 the marriage between the appellant and the E respondent in this matter was dissolved by a decree of divorce granted by the Witwatersrand Local Division of the Supreme Court. A written agreement concluded between the parties was made an order of Court. The agreement made provision for the custody of the two minor children of the parties, the payment by the respondent of maintenance and other F expenses in respect of the children and for the further payment by him of various sums of moneys to the appellant which were in settlement of the proprietary rights of the parties.

Clause 3 of the agreement contains the following further provision:

'The defendant (ie the present respondent) shall pay to the plaintiff (the appellant) as maintenance for herself the sum of R350 G per month subject to the following conditions, namely:

(a)

that the defendant's obligation to pay maintenance to the plaintiff shall cease immediately on the plaintiff's remarriage or on her death;

(b)

that the aforesaid maintenance shall be paid by the defendant to H the plaintiff irrespective of whether the plaintiff is employed or not;

(c)

that in the event of the defendant predeceasing the plaintiff and still being under an obligation to pay maintenance to the plaintiff then and in such event the plaintiff shall be entitled to claim payment of maintenance from the defendant's estate.'

It is apparent that clause 3 does not regulate any proprietary right and I is solely directed towards the provision of maintenance for the appellant.

During 1983 the appellant approached the maintenance court for the district of Johannesburg, established in terms of the Maintenance Act 23 of 1963, for an increase in the amount of maintenance payable by the respondent to her. The court ordered that the maintenance be increased J from the sum of R350 per month to an amount of R725 per month.

McCreath J

A During 1990 the appellant again applied to the maintenance court, Johannesburg for a further increase of the maintenance. At the commencement of the hearing the magistrate raised the question whether the maintenance court had jurisdiction to entertain the matter. Counsel for both the appellant and the respondent addressed argument to the B magistrate on this aspect. Counsel were ad idem that the court did have jurisdiction. That notwithstanding, the magistrate, in a comprehensive and closely reasoned judgment, came to the conclusion...