SH v EH

• Jurisdiction: South Africa
• Citation: 2011 (5) SA 496 (ECP)

SH v EH
2011 (5) SA 496 (ECP)

2011 (5) SA p496

Citation	2011 (5) SA 496 (ECP)
Case No	271/03
Court	Eastern Cape High Court, Port Elizabeth
Judge	Schoeman J
Heard	October 14, 2010
Judgment	January 27, 2011
Counsel	Q Spruyt (attorney) for the plaintiff.; OH Ronaasen for the defendant.

Flynote : Sleutelwoorde B

Husband and wife — Divorce — Maintenance — Spouse — Husband may be obliged to pay maintenance to wife who after divorce is involved in relationship with another man.

Headnote : Kopnota

C A husband may be obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. (Paragraphs [1] and [42] at 496I – J and 504D.)

Cases Considered

Annotations:

Reported cases

Carstens v Carstens 1985 (2) SA 351 (SE): distinguished D

Cohen v Cohen 2002 (2) SA 571 (C): followed

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC): referred to

Drummond v Drummond 1979 (1) SA 161 (A): dictum at 167B – D applied

Horowitz v Brock and Others 1988 (2) SA 160 (A): referred to E

Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) ([1995] 1 All SA 517): referred to

MB v NB 2010 (3) SA 220 (GSJ): followed

Smith v Porritt and Others 2008 (6) SA 303 (SCA): referred to

SP v HP 2009 (5) SA 223 (O): distinguished

Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC): referred to F

Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of Development Planning and Local Government, Gauteng 2009 (3) SA 577 (SCA): applied.

Unreported cases

Qonqo v Qonqo [2010] ZAFSHC 107 (11 March 2010): distinguished. G

Case Information

Action for divorce and maintenance.

Q Spruyt (attorney) for the plaintiff.

OH Ronaasen for the defendant.

Cur adv vult. H

Postea (January 24).

Judgment

Schoeman J:

Introduction I

[1] This judgment concerns the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, J maintenance for herself and their son M and ancillary relief. Due to the

2011 (5) SA p497

Schoeman J

defendant's sequestration and subsequent procedures in terms of A s 21 of the Insolvency Act 24 of 1936, the patrimonial issues between the parties have been resolved. Furthermore, as the parties' son M is self-supporting and a major, the claim for his maintenance was not an issue. The trial proceeded on the claims for a decree of divorce and the payment of maintenance for the plaintiff. B

The issues

[2] The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable C break-down of the marriage. It is not an issue that the plaintiff is entitled to a decree of divorce.

[3] The remaining issues are whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be.

[4] The defendant's case in respect of the plaintiff's entitlement to D maintenance is two-pronged: (a) that the rule 43 judgment is issue estopped; and (b) that it is against public policy that a woman should be supported by two men.

[5] I will first deal with the aspect of issue estoppel. Thereafter the E plaintiff's alleged entitlement to maintenance post-divorce will be dealt with, and if it is found that she is entitled to be paid maintenance by the defendant, I will then deal with the amount payable.

Background

[6] The following facts are common cause or not really disputed. The F parties were married to each other on 9 December 1972 out of community of property. During 2000 or 2001 the defendant, an architect, moved out of the common home and moved in with another woman, and six months later with another man. The defendant has been involved in a relationship with this man for the past ten years. G

[7] The plaintiff formed a relationship with a family friend, Mr S, during 2001 after the defendant had moved out of the common home. The plaintiff and the parties' son, M, who was at university at the time, moved in with S during April 2003. The plaintiff and S have been living together ever since. H

[8] The parties to the divorce action entered into a deed of settlement during July 2003. The salient points of this deed of settlement were that the defendant would pay the plaintiff an amount of R3000 per month towards her maintenance and keep her on his medical-aid scheme. I

[9] A day before the matter was to be finalised the estate of the defendant was sequestrated and shortly afterwards the plaintiff's assets were attached in terms of the provisions of s 21 of the Insolvency Act. Litigation ensued between the plaintiff and the trustees of the defendant's estate. The plaintiff and the trustees settled the litigation in 2007 and the plaintiff's assets were released to her in 2008. All the J

2011 (5) SA p498

Schoeman J

A plaintiff's assets were frozen and she did not have access to any of those assets for a period of approximately five years.

[10] Initially when the plaintiff moved in with S the agreement between her and S was that the plaintiff would pay for the expenses of her and M.

B [11] It is common cause that the plaintiff and M were supported by S while they both lived with him after the defendant's sequestration. This was brought about by the fact that the defendant did not pay maintenance towards plaintiff or their son M (although the defendant contributed to some of M's study expenses), and the plaintiff's assets were frozen as set out above. The plaintiff could not honour her agreement C with S that she would pay her own way.

[12] In 2006 the defendant stopped the plaintiff's benefits on his medical-aid scheme.

[13] In 2007, after the litigation between the plaintiff and the trustees of D the defendant's estate was finalised, the plaintiff's attorney approached the defendant and proposed a 'walk-away' agreement in terms of which the plaintiff would waive her right of maintenance. Such an agreement was drawn up by the plaintiff's attorney and signed by the defendant. The plaintiff refused to sign the agreement, primarily because it did not E make provision for the period that the defendant did not maintain M, who was maintained by S. The plaintiff testified that she did not mandate her attorney to draw up such an agreement and she did not waive her right to maintenance.

[14] In April 2009 the plaintiff was diagnosed with a malignant neoplasm of her right lower gum and underwent treatment, inter alia, F surgery and radiotherapy. The costs amounted to approximately R150 000. She still suffers from the after-effects of the cancer: she had a metal plate implanted and underwent a bone transplant in her jaw; there is a gap in her jaw through which air and food can pass; the bone of her lower right jaw is exposed and she wears a plaster to cover the opening G where there is no skin and where the wound has not healed. She will need rehabilitation which entails that teeth are implanted once the necrotic bone of her jaw is removed. The plaintiff will undergo further corrective surgery at a State hospital which procedure will cost in the region of R1300. No medical evidence was presented in respect of the costs of the rehabilitative surgery and teeth implantations by a maxillofacial H surgeon.

[15] In April 2010 the plaintiff brought an application in terms of rule 43 for maintenance pendente lite, which application was refused with costs on the basis, inter alia, that it is unlikely that the plaintiff will I succeed with a claim for maintenance in the court hearing the action.

[16] The defendant enrolled the matter for trial.

Issue estoppel

[17] The argument is that, due to the finding of the judge in the rule 43 application that the plaintiff was not entitled to maintenance J pendente lite because it is unlikely that the plaintiff would succeed with

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