M.M.L v J.J.L (A66/2023) [2023] ZAFSHC 170 (18 May 2023)
This appeal had its origins in an application that was pursued in the Maintenance Court for the district of Bethlehem (“the Court a quo”) in accordance with the provisions of section 6(1) of the Maintenance Act, no. 99 of 1998. The application was initiated by the respondent (as the applicant) against the appellant (as the respondent). A summary of the proceedings before the Court a quo revealed that the respondent sought various reliefs, including the termination of his maintenance obligations towards the appellant and a reduction in the amount of maintenance payable by the respondent for their minor child. The Court a quo, among other findings, held with regard to the respondent’s maintenance obligations towards the appellant that:
“This court, based on the evidence, concluded that the respondent is cohabiting with another man, which triggers the suspensive condition terminating her entitlement to continued maintenance.”
Although the appeal was also pursued regarding the maintenance order that was granted by the Court a quo for the minor child of the parties, this aspect of the relief was withdrawn during the course of the arguments. Consequently, the appeal was solely directed against the order of the Court a quo pertaining to the termination of the respondent’s maintenance obligation towards the appellant. The applicable legal principles in this appeal stemmed from and revolved around the provisions of clause 3 of a written Deed of Settlement that was concluded during the divorce proceedings initiated by the appellant (as plaintiff) against the respondent (as defendant).
Clause 3, read as follows:
“That the Defendant is required to provide maintenance to the Plaintiff until her death, remarriage, or cohabitation with another man, whichever event occurs first, in the amount of R16 000,00 per month, …”
THE LAW
The extracted portion of clause 3 of the Deed of Settlement is commonly known as a dum casta clause.
In Drummond v Drummond 1979 (1) SA 161 (A) at 167 A to C the Court held as follows regarding the interpretation of such a clause:
“This clause was obviously designed to provide for the contingency that the appellant might establish a permanent relationship with some other man, and enjoy the advantage of being supported by him, without attracting the consequences of a marriage and the resultant cessation of any liability for maintenance on the part of the respondent. As to the meaning of the phrase ‘living together as man and wife’, I respectfully agree with the observations of ELOFF, J in the judgment of the Full Court, namely that he denotes:
“the basic components of a marital relationship except for the formality of marriage”
and that
“the main component of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.” “…. in which sexual intercourse, in the case of parties of moderate age, would usually, but not necessarily always, be an essential concomitant and, in that context, the phrase “on a permanent basis”.
The judge noted that this connoted, in his view, a continuing relationship, one that is intended by the parties to continue indefinitely without change.
In the matter of Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Cie SA and Others (427/01 [2002] ZASCA 98 (6 September 2002), the Supreme Court of Appeal, addressing the resolution of factual disputes, made the following holding:
‘ [5] The technique generally employed by courts in resolving factual disputes of this nature can be summarized as follows. To reach a conclusion on the contested issues, a court had to make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. Regarding (a), the court’s finding on the credibility of a specific witness depended on its assessment of the witness’s truthfulness. This assessment, in turn, relied on various subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candor and demeanor in the witness box, (ii) any bias displayed, whether obvious or hidden, (iii) internal contradictions in the witness’s testimony, (iv) external contradictions with what was pleaded or presented on behalf of the witness, or with established facts or the witness’s own extrajudicial statements or actions, (v) the likelihood or unlikelihood of specific aspects of the witness’s account, (vi) the quality and persuasiveness of the witness’s testimony compared to that of other witnesses testifying about the same incident or events. Regarding (b), a witness’s reliability was dependent, in addition to the factors mentioned under (a)(ii), (iv), and (v) above, on (i) the opportunities the witness had to experience or observe the event in question and (ii) the quality, integrity, and independence of the witness’s recollection. Regarding (c), this required an analysis and evaluation of the probability or improbability of each party’s version concerning each of the disputed issues. Based on its assessment of (a), (b), and (c), the court would then, as a final step, determine whether the party with the burden of proof had successfully discharged it. The challenging scenario, which would undoubtedly be rare, arose when a court’s credibility findings pointed in one direction while its evaluation of the overall probabilities pointed in another. The more compelling the former, the less persuasive the latter would be. However, when all factors were balanced, probabilities prevailed…’
The judgement delivered in the matter of National Employers’ General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D – 441A according to the Judge was also instructive:
“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in criminal cases, but nevertheless where the onus rests on the Plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the Defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the Plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the Plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the Plaintiff’s case any more than they do the Defendant’s, the Plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the Defendant’s version is false.
This view seems to me to be in general accordance with the views expressed by Coetzee J in Koster KO-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorwee en Hawens (supra) and African Eagle Assurance Co Ltd v Cainer (Supra). I would merely stress however that when in such circumstances one talks about a Plaintiff having discharged the onus which rested upon him on a balance of probabilities that means that he was telling the truth and that his version was therefore acceptable. It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitutes separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.”
THE FACTS
During the proceedings in the Court a quo, the following more pertinent facts came to the fore.
The appellant, and one Mr Coetzee, were in a relationship since or about October 2016. They had entered into their relationship approximately two months after the bonds of marriage between the appellant and the respondent had been dissolved by way of a decree of divorce. The relationship between Mr Coetzee and the appellant was of an intimate nature, and they shared the same room and bed when he frequented the applicant’s residence in Bethlehem.
Mr Coetzee, although working in Gauteng during the week, spent his weekends, holidays, and free time with the appellant at her residence in Bethlehem. Mr Coetzee also spent in excess of two weeks at the appellant’s residence during the national lockdown brought about by the recent Covid-19 global pandemic. While at the appellant’s residence, Mr Coetzee would “buy some stuff,” make contributions to petrol, and take the appellant and her (and the respondent’s) minor child out for dinner. Mr Coetzee and the appellant also took vacations together with the appellant and respondent’s minor child, to destinations such as Mozambique, for which he paid, albeit not necessarily covering all the expenses brought about by such vacations.
Mr Coetzee possessed and had the benefit of using an Isuzu bakkie that had been financed by the respondent. Mr Coetzee paid the appellant amounts equal to the instalments due in terms of the appellant’s financing of the aforementioned motor vehicle.
Additionally, various items belonging to Mr Coetzee were stored at the appellant’s residence in Bethlehem, including his Venter trailer, his braai stand, and various canopies.
His clothing items were also regularly hung up on the washing line at such residence. However, this particular aspect of the evidence was disputed by the appellant. She testified that the only male items of clothing hung on the washing line belonged to her son-in-law, who could not return to China as a consequence of the Covid-19 global pandemic and resided with the appellant for a period of two weeks. More about this aspect will be discussed later.
Moreover, Mr Coetzee contributed to the needs of the minor child conceived during the marriage between the appellant and the respondent. For instance, he purchased a horse for the minor child and paid for her cellphone.
CONCLUSION
The element of an intimate relationship (as dealt with and explained in the Drummond matter dealt with herein above) was common cause between the respective parties, and as such, this aspect did not need to be considered further by the Judge.
The Judge dealt with the two remaining elements, evident from the Drummond matter, which were “living under the same roof” and “establishing, maintaining, and contributing to a joint household.”
The more pertinent facts of this matter, as dealt with herein above, were by and large common cause between the respective parties, and they effectively only differed in the applications of the principles of law to such facts.
At this juncture, the judge pointed out that it was relevant to point out that the dum casta clause in terms of the deed of settlement did not require the cohabitation by the appellant with another man “as man and wife” but only “samewoning met ‘n ander man.”
In weighing up the evidence and testing the respondent’s allegations against the general probabilities, it, in the Judge’s view, fell to be accepted that the respondent’s version was probably true, and the Court a quo was correct in accepting the same. The Court a quo made no findings as to the respective parties’ credibility, nor was it necessary for it to do so.
The tipping of the probabilities in favour of the respondent was borne out by the largely common cause facts recorded herein above.
The facts illustrated that Mr. Coetzee had been in a relationship with the appellant shortly after her divorce from the respondent. Based on the probabilities, Mr. Coetzee’s employment in Gauteng was the sole reason he was only able to spend his weekends, holidays, and free time with the appellant at her residence situated in Bethlehem. The judge noted: “In today’s day and age, it could hardly be contended that it was uncommon for individuals to live in one place and work at another. But for his employment, Mr. Coetzee would, on the probabilities, live at the appellant’s residence during the week too.”
Moreover, the storage of Mr. Coetzee’s Venter trailer, his braai, and various canopies, and the regular hanging of his clothing items upon the washing line at the appellant’s residence were, in the judge’s view, further proof of the fact that he lived under the same roof as the appellant. The appellant’s explanation that the male clothing items hung on the washing line belonged to her son-in-law did not bear scrutiny as it only accounted for a paltry period of 2 weeks, whereas Mr. Coetzee and the appellant had been in a relationship for several years, and the appellant’s clothing had been regularly seen on the washing line.
As for the final element of “establishing, maintaining, and contributing to a joint household,” it was clear that Mr. Coetzee had financially contributed to the appellant in more than one way. He “bought some stuff,” made contributions to petrol, took the appellant and her (and the respondent’s) minor child out for dinner, went on vacations for which he paid (although not necessarily all the expenses), possessed and benefited from the use of the Isuzu bakkie, and contributed to the needs of the minor child.
For these reasons, the appeal stood to be dismissed with costs.
The last aspect, which was considered, was the costs that remained outstanding when the appeal was brought before this Court and was postponed on both 1 August 2022, and 14 November 2022.
Regarding the costs related to the proceedings on 1August 2022, the postponement on that date was necessitated by the appellant’s unsuccessful attempt(s) to reconstruct the record and provide the Court with a complete record for the purpose of the appeal. Therefore, that postponement was solely the result of the appellant’s failure to comply with her obligations under Uniform Rule of Court 50. She had failed to deliver a complete record or take the necessary steps to ensure the reconstruction and provision of a complete record.
On 14 November 2022, the appeal was again postponed due to the record being incomplete. According to the Judge this postponement was once again caused by the appellant’s failure to construct the record.
Considering these facts, it was appropriate according to the Judge for the appellant to bear the wasted costs resulting from these postponements. As for the costs of the appeal, there was no compelling reason why those costs should not follow the result.
ORDER
The appeal was dismissed with costs, including the wasted costs occasioned by the postponement of the appeal on 1 August 2022 and 14 November 2022.
Summarised by Authored by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.