Schlesinger v Commissioner for Inland Revenue

• Jurisdiction: South Africa
• Judge: Steyn CJ, Beyers JA, Van Blerk JA, Holmes JA and Van Wyk JA
• Judgment Date: 29 May 1964
• Citation: 1964 (3) SA 389 (A)
• Hearing Date: 22 May 1964
• Court: Appellate Division

Schlesinger v Commissioner for Inland Revenue
1964 (3) SA 389 (A)

1964 (3) SA p389

Citation	1964 (3) SA 389 (A)
Court	Appellate Division
Judge	Steyn CJ, Beyers JA, Van Blerk JA, Holmes JA and Van Wyk JA
Heard	May 22, 1964
Judgment	May 29, 1964

Flynote : Sleutelwoorde

Revenue — Income tax — Gross income — Deductions — Maintenance to wife — Sec. 58 (3) of Act 31 of 1941, as amended — 'Judicial order of separation' — Section applies to orders of foreign countries — Maintenance paid under ancillary order made in B foreign country included — Amount so paid deductible — Evidence — Of foreign laws — Proof of — When parties deemed to have agreed that Court should have regard thereto without further proof.

Headnote : Kopnota

Section 58 (3) of Act 31 of 1941, as amended, includes judicial C separation orders of foreign countries.

The expression 'judicial orders of separation' in section 58 (3) of Act 31 of 1941, as amended, is used in the wide sense to include an ancillary order, such as an order for maintenance or alimony, which has not been made on the same day as the judicial order of separation stricto sensu, or which has been made by a different Judge or has not been recorded in the document which records such judicial separation D order. Accordingly a taxpayer who has been ordered by a foreign Court to pay such maintenance is entitled to have his taxable income reduced by the amounts so paid as alimony.

Parties may in certain circumstances be taken to have agreed, at least tacitly, that the Court should have regard to the foreign laws referred to by them, and to laws referred to in such laws and certain law reports, as they appear in the generally accepted publications, without further proof. E

Case Information

Appeal from a decision of the Special Income Tax Court. The facts appear from the judgment of VAN WYK, J.A.

D. Gould, Q.C. (with him C. J. M. Nathan), for the appellant: The decree of separation granted by the English High Court, and which was varied by the Court of Appeal in Schlesinger v Schlesinger (1959) 1 F All E.R. 155, was a 'judicial order of separation' within the meaning of sec. 58 (3) of Act 31 of 1941. The sub-section speaks of 'any' judicial order of divorce and was accordingly intended to apply not only to alimony, allowances or maintenance payable under orders of judicial separation or divorce granted by our Courts or under written agreements G of separation executed in the Republic but also to alimony, allowances and maintenance payable under orders of judicial separation or divorce granted by foreign Courts or under written agreements of separation executed in foreign Countries. This is fortified by the aims and provisions of the amendments introduced into Act 58 of 1962 by secs. 7 (c), 8 (b) and 16 of Act 90 of 1962; see secs. 9 (1) (h), 10 (1) (u) and H 21 of the Income Tax Act, 90 of 1962 as amended. As to the principle of Parliamentary expositions, see Patel v Minister of the Interior, 1955 (2) SA at p. 493; Clan Transport Corp. (Pvt.), Ltd v Road Services Board, 1956 (4) SA at p. 33; R v Correia, 1958 (1) SA at p. 540; Halsbury, Laws of England, 3rd ed., vol. 36, para. 610. The question therefore narrows itself into an enquiry as to whether the alimony and maintenance awarded in the present case were payable by appellant 'under' the decree of judicial separation granted by the

1964 (3) SA p390

English High Court. As to the meaning of the word 'under', see Johnstone v Kommissaris van Binnelandse Inkomste, 1960 (4) SA 592. It is submitted that, in that case, this Court did not intend to lay down A that, in order to qualify as maintenance payable 'under' an order of divorce, it was essential that the order for payment of maintenance should be made contemporaneously with the order of divorce or that it should necessarily be incorporated in the same order of Court. What the Court sought to lay down, having regard to the issue under consideration in that case, was merely that it was essential that the order for B maintenance should be granted by way of ancillary relief in the same proceedings. In a case in which a Court may deem it expedient to grant an order of divorce or judicial separation and, because of the inadequacy of the evidence adduced at the trial or for some other reason, to postpone the hearing of the claim for ancillary relief, it is C submitted that any subsequent hearing of such claim would be regarded as a continuation of the same proceedings and not a separate or independent proceeding and that orders for ancillary relief, though not incorporated in the original order of divorce or judicial separation, would be regarded as supplementary orders made in the same proceedings. On this Court's reasoning in Johnstone's case, supra, such orders would D qualify as alimony or maintenance payable 'under' a judicial order of separation or a divorce. If this interpretation of the judgment in Johnstone's case is correct it follows that the alimony and maintenance under consideration in the present case were payable by appellant 'under' a judicial order of separation within the meaning of sec. 58 (3) E of Act 31 of 1941, as amended. In view of the fact that the proceedings were commenced by appellant's wife before 30 April, 1957, they were governed by the Matrimonial Causes Act 1950 (14 Geo. 6, C. 25) and the Matrimonial Causes Rules, 1950; see Rules 83, 1 (1) and 3 (1); Rayden 8th ed., pp. 1367, 1329, 1330; Annual Practice, (1954) p. 2342. For the law and procedure generally applicable to proceedings for judicial F separation and ancillary relief by way of alimony and maintenance, see secs. 14, 20, 26, 27 and 28 of the Act and Rules 3, 4 (2), 8 (2), 42, 45, 48, 51, 52 and 59. Mrs. Schlesinger's petition for judicial separation included claims for permanent alimony for herself and her children. These claims were clearly claims for ancillary relief, see Rule 3 (3) (b) and (e); Schlesinger v Schlesinger, (1959) 1 All E.R. G at p. 158. Mrs. Schlesinger's claims for alimony and maintenance were not dealt with at the trial and they therefore fell to be dealt with by the Registrar in terms of Rules 51 and 52. It is submitted that, contrary to the findings of the Court a quo, the Registrar, in dealing with these claims, acted as a member of the Divorce Division of the High H Court and that his orders were orders of that Court. The Registrars of the Divorce Division are officers of the High Court and exercise both administrative and judicial functions. As to their appointment and powers and duties generally, see Halsbury, ibid paras. 400 and 405. As to their increased jurisdiction when no Judge is available, see Rule 78 (2); Annual Practice (1954), p. 2386; Halsbury, ibid paras. 410, 411. Within the range of the judicial powers conferred upon them, the Registrars have the same authority and exercise the same jurisdiction as a Judge in Chambers; see Halsbury, ibid vol. 9,

1964 (3) SA p391

para. 993; Rules of the Supreme Court, Order 54, Rule 12 (Annual Practice, (1954) p. 1052); Rules 75, 78 (2) and 80 of the Matrimonial Causes Rules. For the powers of a Judge in Chambers, see Halsbury, ibid vol. 9 para. 829; Rayden, ibid p. 18. The jurisdiction to make orders in A Chambers for the payment of alimony or maintenance is, in terms of the Matrimonial Causes Act, 1950, vested in 'the Court', which is defined in sec. 33 as meaning the High Court; see secs. 19, 20, 22, 26 - 8. Under Rules 42 to 52 the power to make such orders is conferred upon the Registrars, and is exercisable by them in the circumstances therein B prescribed. In terms of Rules 51 and 52, the power of the Registrar to adjudicate on claims for permanent alimony or maintenance contained in a petition, arises only if the Judge has not dealt therewith at the trial and has not otherwise directed. The Registrar, when seized of the matter, may either make an order himself or refer the matter back to the Judge for final determination. The jurisdiction conferred upon the C Registrar is thus a jurisdiction in substitution for that exercisable by the Judge and is conferred upon him to relieve the Judge of the task of inquiring into matters of detail regarding the financial affairs of the parties to the suit, which are of no public interest or importance; cf. Bernbaum v Bernbaum, 1949 P. at pp. 328, 330. In exercising his jurisdiction under these Rules, therefore, the Registrar D acts as a member of the Court in the Judge's stead and any orders made by him are orders of the Court. That this is so is manifest from the headings of the orders made for payment of alimony and maintenance in the present case. The mere fact that an appeal lies from an order of a Registrar to a Judge in Chambers in no way affects the position. Any E order of the Judge under this Rule is merely by way of confirmation or variation of the Registrar's order; see Bernbaum's case, supra, Waight v Waight, 1952 P. 282. The proceedings for alimony and maintenance under Rules 51 and 52 were not separate and independent proceedings as held by the Court a quo, but were merely steps in continuation of the F original proceedings for judicial separation and ancillary relief. The proceedings instituted by Mrs. Schlesinger were therefore not concluded until all her claims had been finally adjudicated upon. The proceedings before the Registrar were thus incidental to the main proceedings; see Halsbury, ibid vol. 12, para. 959; Rayden, ibid p. 710; and the orders G for alimony and maintenance were supplementary to the decree for judicial separation. As such, they were made with effect retrospective to the date of the decree, namely 18 December, 1958, and 'under' that decree; see Halsbury, ibid para. 962; Schlesinger v Schlesinger, (1960) 1 All E.R. 724. As to the maintenance for the children, the amounts for such maintenance were payable by...