L.D.B v J.S.B (A3079/2021) [2023] ZAGPJHC 786 (13 July 2023)
BACKGROUND
On the 31st of January 2014, the respondent, JSB, had divorced the appellant, LDB. The terms of the divorce had been outlined in a settlement agreement which the Randburg Regional Court had endorsed.
Clause 3 of the settlement agreement had recorded that JSB would pay R30 000 per month in maintenance from the day on which LDB vacated the marital home (clauses 3.1 and 3.2); that this obligation would terminate if LDB died, remarried, or cohabited with anyone other than their mother (clause 3.3); and that JSB would reimburse LDB’s vehicle maintenance and repair expenses not covered by LDB’s insurer, upon presentation of proof of such expenditure (clause 3.4).
Clause 3 also recorded that JSB and LDB had agreed that the maintenance provided for was “fair and necessary” (clause 3.5). The maintenance payments provided for would track JSB’s professional fee income, and notice of any change in that income would be provided to LDB annually (clause 3.6). Finally, in the event of JSB’s professional fee income being affected by “regulatory factors”, “political interference”, “illness” or any other development over which JSB had no control, JSB would be entitled to apply for a “review” of the agreement (clause 3.7).
JSB had honoured clause 3 until early 2020. In April 2020, JSB had ceased all payments under it. JSB then applied, in June 2020, to the Randburg Magistrates’ Court under section 6 of the Maintenance Act 99 of 1998 for a complete discharge of his obligations under the agreement. Apparently contrary to the detailed provisions of the Act, the matter had been dealt with as if it were an ordinary civil claim. After hearing seven days of evidence spread out over the six months between the 20th of October 2020 and the 29th of April 2021, the Magistrate, on the 17th of June 2021, had granted an order in which she permanently relieved JSB of all his cash maintenance obligations under clause 3 of the agreement.
On the 23rd of June 2021, LDB had requested that the Magistrate provide written reasons for her decision. Those reasons were not produced until the 1st of April 2022. They consisted of 13 succinct sentences which amounted to the propositions that, in the Magistrate’s view, JSB’s earning capacity had decreased “tremendously” as a result of the Covid-19 pandemic and JSB’s “own personal health”; that JSB was reliant on his savings to meet his expenses; that LDB did not need the maintenance provided for in the agreement; and that the parties’ relative financial positions were more or less identical.
LDB had appealed to the High Court against the Magistrate’s order. An examination of the record revealed that none of the Magistrate’s factual findings had any reliable foundation in it. However, the biggest difficulty with the Magistrate’s reasons (aside from her unexplained and, on the face of it, inexcusable lateness) was that she did not engage at all with the provisions of the settlement agreement that ended the parties’ marriage. The Magistrate, quite wrongly, according to the High Court, had approached the matter on the basis that the parties’ relative means could be considered afresh in a vacuum, and that there was no burden on JSB to justify the nature and extent of any departure from the agreement. In the High Court’s view of the provisions of the settlement agreement, which explicitly recorded the parties’ consensus that the maintenance obligations JSB assumed were “fair and necessary” and that it could only be departed from in defined circumstances, the Magistrate’s decision could not stand.
The High Court had analysed the evidence before the Magistrate, and found that there was no justification for the discharge of JSB’s maintenance obligations. The most that could have been justified was a suspension of the cash payments due under clause 3.1 to reflect what appeared to have been a temporary collapse of JSB’s fee income during the very early months of the pandemic. Interpreting the evidence before the Magistrate in the manner that is most generous to JSB, that temporary suspension could only have been justified between the months of April and September 2020. According to the High Court, the appeal had to be upheld, and the Magistrate’s order had to be substituted for one dismissing the application for a discharge of JSB’s obligations, but suspending the operation of clause 3.1 of the settlement agreement between the months of April and September 2020. This conclusion followed from the analysis of the applicable law and the relevant evidence discussed below.
THE COURT’S ANALYSIS
The High Court had expressed that anyone who had been involved in proceedings to determine spousal maintenance would understand that the process was filled with challenges. The Court stated: “The principal source of that difficulty is that, by the time the matter has reached a Judge or a Magistrate for decision, the facts are hotly contested, and neither party can really be relied upon to give a frank and straightforward account of their means and needs. In this court, that difficulty is addressed by the requirement that the parties make the financial disclosures enumerated in E v E 2019 (5) SA 566 (GJ).”
The High Court had pointed out that the investigation in the Maintenance Court was much more strictly regulated. The Maintenance Act outlined a comprehensive set of procedures designed to uncover relevant information and make orders that reflected duties of support across a broad range of situations. The process was initiated under section 6 of the Act, which allowed for the filing of complaints where (a) the complainant alleges and sought to enforce a legal duty of support, (b) the complainant seeks the substitution or discharge of an existing maintenance order or (c) where the complainant seeks the substitution or discharge of an obligation embodied in a maintenance agreement.
The High Court held the perspective that JSB had lodged his application under section 6 (1) (b) of the Act, a provision that permitted the substitution or discharge of an existing maintenance order on good cause shown. Upon the filing of such a complaint, it is incumbent on a maintenance officer to conduct an investigation in accordance with the guidelines set out in sections 7, 8 and 9 of the Act. These sections details a broad spectrum of powers for fact-finding, inclusive of the authority to undertake necessary measures to locate any individual against whom a complaint was made, or to request information pertaining to “the financial position of any person affected” by the legal obligation to provide maintenance (section 7 (2) (e) (ii)). In this process, a maintenance officer could be supported by a maintenance investigator, who carries out a distinct statutory role, equipped with its own set of powers and responsibilities. It is only upon the completion of such an investigation that the maintenance officer is authorised to initiate a maintenance enquiry before a Magistrate (section 6 (2)).
The High Court stated: “The purpose of this manner of proceeding should be obvious. It is to ensure that the parameters of any dispute about a duty to maintain are established, that a body of basic, hopefully uncontested, information about the parties’ financial positions is compiled, and, where disputes about the parties’ relative means and needs have emerged, the contours of that dispute and the information necessary to resolve it have, as far as possible, been established.”
The High Court had expressed that all these measures were in place to prevent the Magistrate, who would ultimately be tasked with the enquiry, from making decisions in a vacuum, or from having to conduct what could potentially become a lengthy civil trial to determine whether to issue a maintenance order under section 16 of the Act, and what order should be made. The aim was to identify a just and fair set of maintenance arrangements between those subject to the Act in a cost-effective and efficient manner, using as little court time as possible. However, this was not what transpired in this case. As far as the High Court could discern, there was no maintenance investigation, no effort to identify and narrow down the real issues between the parties, and no attempt to compile a reliable set of financial information against which JSB’s complaint could be evaluated. The maintenance officer had referred JSB’s complaint to the Magistrate for an enquiry under section 10 seemingly without trying to define the terms of the dispute and without fulfilling any of her statutory functions.
The High Court had noted that the outcome was foreseeable. The parties and the Magistrate had treated the proceedings in the lower court as a standard civil trial. JSB had provided extensive evidence of what he claimed was his inability to fulfil his obligations. He was thoroughly cross-examined. Then it was LDB’s turn to present evidence of her need for maintenance, and her own means of support. The enquiry had spanned seven court days (excluding the days when no evidence was presented). Despite the Act’s directive that a maintenance court ensures that “postponements are limited in number and in duration”, the evidence was presented gradually, one day at a time, over several months. The entire process, from the filing of the complaint to the point at which the Magistrate provided her reasons, had taken just under two years. The High Court was fairly certain that if those responsible for drafting the Act were asked to describe the kind of situation the Act was designed to prevent, they would have outlined a scenario with many, if not all, of the characteristics of this case.
THE EVIDENCE
The High Court stated: “No doubt because nothing was done to investigate the case, and to shape the terms of the maintenance enquiry, the court below lost sight of the fact that the parties had already decided in the settlement agreement what the maintenance regime should be, and had identified for themselves the circumstances under which that obligation could be varied.”
The High Court had identified two such situations. The first was a change in JSB’s professional fee income. Clause 3.6 made it abundantly clear that the maintenance due to LDB would fluctuate with JSB’s professional fee income. Although Clause 3.6 was unfortunately vaguely worded, its unmistakable purpose was that the maintenance due to LDB would vary in proportion to the rise or fall of JSB’s professional fee income, taking JSB’s income as at 31 January 2014, and the amount of R30 000 per month in maintenance, as the starting points. The second situation was any other change in JSB’s fee-earning capacity that was beyond his control, including, but not limited to illness, political manipulation of JSB’s profession or what is somewhat cryptically referred to as “regulatory factors”.
In order to alter the maintenance payable to LDB by substituting the settlement agreement for a new maintenance regime, the Magistrate had to be convinced that there was “good cause” to do so in terms of section 6 (1) (b) of the Act. While the terms of the settlement agreement were obviously not binding on the Magistrate, any evaluation of whether there was “good cause” in this sense should have started with the terms of the agreement, because that is where the parties had decided for themselves what good cause entailed. If there was good cause to depart from the agreement’s terms, by completely extinguishing the cash maintenance obligation provided for in clause 3.1, that should have been identified and recorded in the Magistrate’s reasons.
Regrettably, the Magistrate had not mentioned the settlement agreement at all in her reasons. However, it could be inferred from her statements that she found what she described as a “tremendous” decrease in JSB’s earning capacity caused by illness and the Covid-19 pandemic. The finding that JSB’s earnings had suffered due to illness was not supported by the evidence. JSB had been diagnosed with a severe illness, but the evidence showed that he had recovered from it by late 2019, in time for an increase in the maintenance payable to LDB to be implemented in January 2020. It was undeniable that JSB had experienced a significant dip in his income during the early part of the Covid-19 lockdown. However, the evidence indicated that JSB was able to resume his work from mid-August 2022 and that his practice had recovered by October 2020 at the latest.
Furthermore, much of the evidence of JSB’s income presented to the Magistrate was unreliable. Firstly, he relied on self-produced fee books and audit trails, with little effort at independent verification. Under cross-examination, counsel for LDB identified critical shortcomings and contradictions in the information provided, such that very little of it could be safely relied upon.
In any case, the evidence JSB relied upon was flawed by a failure to identify what JSB’s income was at the time the settlement agreement was concluded, and to track the extent to which it had been adjusted since then. Unless there was good cause to completely depart from the terms of the agreement that governed those adjustments (the High Court found none), then any argument JSB made about his changed earning capacity would have had to begin with an account of that capacity when the settlement agreement was concluded. That was nowhere in evidence.
It followed that, apart from the evident and steep drop in income in the middle six months of 2020, which was to some extent explained and corroborated by objective facts related to the impact of the Covid-19 pandemic, JSB’s evidence fell significantly short of establishing that there was any change in his income that could not be addressed by simply applying the terms of the settlement agreement.
The other reasons the Magistrate provided for her order were, in the High Court’s view, entirely irrelevant to the issues she had to decide. It was immaterial that LDB owned her own home. That home was itself purchased pursuant to the terms of the settlement agreement, and so was part of the bargain in which the cash maintenance payments were deemed to be “fair and necessary”. Nor did it matter that LDB had built up significant savings since the agreement was entered into. The Magistrate did not identify the facts on which she concluded that the maintenance payable under the agreement was more than LDB needed. In the absence of such facts, the conclusion could not be justified – especially, it was worth repeating, in light of the parties’ consensus, recorded in the settlement agreement, that the maintenance payments are “fair and necessary”.
ORDER
The appeal had to be upheld. In a cross-appeal, JSB requested that the Magistrate’s discharge of his cash maintenance obligation be back-dated to 1 June 2020. Given the conclusions the High Court had reached, the cross-appeal had to be obviously dismissed.
The Maintenance Act did not provide for a Maintenance Court to award costs, except in defined circumstances, which were not applicable here. The implication was that each party generally paid their own costs in maintenance proceedings dealt with under the Act. However, there was no reason why costs should not follow the result in the appeal. LDB, having been substantially successful, was entitled to those costs.
For all these reasons, the court had made the following order –
1. The appeal was allowed, with costs.
2. The cross-appeal was dismissed, with costs.
3. The order of the court below was set aside and replaced with the following order –
4. The complainant’s obligations under clause 3.1 of the settlement agreement entered into between the parties and made an order of court on 31 January 2014 were suspended during the period between 1 April 2020 and 30 September 2020.
5. No order was otherwise made on the complainant’s complaint.
6. Each party would pay their own costs.
Summarised 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.