Van Lear v Van Lear

• Jurisdiction: South Africa
• Judge: Goldstone AJ
• Judgment Date: 20 February 1979
• Hearing Date: 14 February 1979
• Court: Witwatersrand Local Division

H Goldstone AJ:

This application arises in connection with a pending matrimonial action. When it came before NICHOLAS J in the trial Court the learned Judge held that there was a question of law which it would be convenient to have determined in the Motion Court before any evidence was led. NICHOLAS J stated the question as follows:

"Whether the plaintiff is, as a matter of law, entitled to claim on the basis set out in para 7 of the particulars of claim."

It is that issue which I am now called upon to decide.

Para 7 of the particulars of plaintiff's claim reads as follows:

"During the subsistence of the marriage the plaintiff has paid debts

Goldstone AJ

in respect of household necessaries incurred by the parties in the sum of R60000 which the plaintiff is entitled to claim from the defendant in A terms of s 3 of Act 37 of 1953 in respect of her aforesaid payments from the date of the marriage until 7 March 1976."

The parties were married to each other out of community of property at Salisbury, Rhodesia (then Southern Rhodesia) on 16 May 1949. In further particulars furnished on behalf of the plaintiff it is alleged that certain of the debts in respect of the household necessaries were paid by the plaintiff in Rhodesia to the extent of approximately R40 000.

B Section 3 of Act 37 of 1953 provided that:

"A husband and wife married out of community of property shall be liable jointly and severally for all debts incurred by either spouse in respect of necessaries for the joint household: Provided that if the wife pays any C such debt or part thereof, she shall have a right of recourse against the husband for the full amount paid by her."

I shall refer to this provision, for convenience, as "the 1953 enactment".

That provision has now been repealed by Act 13 of 1976. It has been replaced by a new s 3 which reads as follows:

"(1) Spouses married out of community of property shall against third D parties be liable jointly and severally for all debts incurred by BS either of them in respect of the necessaries for the joint household.

(2) A spouse married out of community of property shall be liable to contribute pro rata according to his or her income in respect of necessaries for the joint household.

(3) A spouse married out of community of property shall have a right of E recourse against the other spouse insofar as he or she has BScontributed more in respect of necessaries for the joint household than is provided by ss (2)."

I shall refer to this provision, for convenience, as "the 1976 enactment".

The whole of the claim of the plaintiff arose prior to the repeal of the 1953 enactment. The question is whether that claim has been taken away by the 1976 enactment which came into operation on 24 March 1976.

F It was argued on behalf of the plaintiff that in the absence of any provision in the 1976 enactment making its terms retrospective, the Court will not give it retrospective operation. In this regard reliance was placed both on the common law canons of construction of statutes and upon G the provisions of the Interpretation Act 33 of 1957. The general rule of the common law was stated as follows by INNES CJ in Curtis v Johannesburg Municipality 1906 TS 308 at 311:

"The general rule is that, in the absence of express provision to the contrary, statutes should be considered as affecting future matters only; and more especially that they should, if possible, be so interpreted as not to take away rights actually vested at the time of their promulgation. The Legislature is virtually omnipotent, but the Courts will not find that H it intended so inequitable a result as the destruction of existing rights unless forced to do so by language so clear as to admit of no other conclusion."

See too Peterson v Cuthbert & Co Ltd 1945 AD 420 at 430.

The terms of the Interpretation Act apply to the interpretation of every law, in terms of s 1 thereof -

"unless there is something in the language or context of the law... repugnant to such provisions or unless the contrary intention appears therein".

Section 12 (2) provides inter alia that:

Goldstone AJ

"Where a law repeals any other law, then unless the contrary intention appears, the repeal shall not

............

(b)

A affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed;

(c)

affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed;

............

(e)

affect any investigation, legal proceedings or remedy in respect of B any such right, privilege, obligation, liability, forfeiture or punishment as in this sub-section mentioned, and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed."

Generally on this topic see Steyn Die Uitleg van Wette 4th ed at 86 ff.

C Counsel for the defendant sought to meet these provisions of the common law and the Interpretation Act in two ways. Firstly, he submitted that the wife's right of recourse only arises on dissolution of marriage and that accordingly, where a marriage is dissolved after 24 March 1976, such right of recourse only comes into being at such date. Hence there is no question D of retrospectivity as the 1976 enactment will govern the nature and content of the right of recourse. Secondly, counsel submitted, in the alternative, if the right of recourse does relate back to a period prior to 24 March 1976, then the 1976 enactment must be interpreted so as to give it retrospective operation. Both of these submissions require careful analysis.

E The word "retrospective" is ambiguous. In its narrow connotation an enactment is only retrospective if it provides or has the effect that, as at a particular date, the law shall be taken to have been that which it was not. However, a statute is also deemed to be retrospective when it interferes with existing rights or obligations. As to this ambiguity see Cape Town Municipality v F Robb & Co Ltd 1966 (4) SA 345 (C) at 350 - 352; F Steyn (loc cit at 89). In support of the submission that the wife's right of recourse is only exigible on dissolution of the marriage reference was first made to the common law...