Background Facts: A Tale of Two Estates in Paarl
The marriage between RJS and LAS was dissolved by decree of divorce granted by the Western Cape Division of the High Court on 27 May 2019. The parties had been married out of community of property with the inclusion of the accrual system and had two minor children, a girl and a boy. The divorce decree incorporated a settlement agreement which provided for the maintenance of LAS in clause 4, a provision that would become the focal point of intense litigation.
The maintenance clause stipulated that the defendant (RJS) would maintain the plaintiff (LAS) until her death, remarriage, or her cohabitation with a third party for a continuous period of six months as though married, whichever event occurred first. This dum casta clause, common in divorce settlements, was intended to balance the former wife’s need for financial support against the former husband’s interest in not indefinitely supporting an ex-spouse who had moved on to a new relationship.
After the divorce, both parties remained residing in the same estate, though the geographic proximity would prove significant. LAS initially resided in a rented house at number H5 with the two minor children whilst their former matrimonial home at number H2 was being refurbished. Once the refurbishment was complete, LAS took occupation of H2 together with the minor children and her domestic helper, PM, a Zimbabwean citizen who had been employed by LAS for approximately eight years.
The move from H5 to H2 marked a turning point in the narrative. Although a removal company was engaged, SPR assisted LAS with labour and transport during the move, which took place over a few days. During this transition period, SPR slept in the spare room whilst LAS slept with her children. It was this assistance, and what followed thereafter, that would eventually catch the attention of RJS.
RJS also remained residing in the estate and had established a romantic relationship with one Ms B, whose house was situated next door to H2 where LAS resided. It was when he moved in with Ms B that RJS noticed SPR’s bakkie was always parked outside H2. This observation ultimately led to RJS gathering information which would form the basis of his application to declare his maintenance obligations terminated.
Val De Vie is an exclusive lifestyle estate in the Paarl area. Access to the complex is controlled through two main entrances which are manned by security guards. Residents gain access to the estate through a biometric system installed at the main gate. Once inside the complex, access to various sections of the estate is controlled through boom gates operated by remotes. Each household in the complex is issued several remotes, depending on their requirements, which are registered with the security company in the name of that household. The use of each remote device to open or close a boom gate is captured on the records of the security company by means of that individual remote’s serial number. Visitors or non-residents are allowed entry into the estate by security at the entrance or may gain access by means of access codes.
The evidence presented included photographs documenting the relationship between LAS and SPR from its inception, electronic WhatsApp messages exchanged between them, and a calendar meticulously compiled by LAS herself. The calendar used a colour-coding system: green days indicated nights LAS admitted she had spent with SPR in Val De Vie; brownish coloured days were nights when she and SPR were in the same house but sleeping in separate rooms; pink days were those nights when she and SPR were on the same estate but not in the same house; blue coloured days indicated when LAS and SPR were in Mauritius but not together; and white days were when they were not together at all. This calendar was later supplemented with biometric records from the security gate which became available after being subpoenaed through an interlocutory order.
The Legal Question: Interpreting the Dum Casta Clause in Clause 4
The application brought by RJS sought a declarator that his maintenance obligations towards LAS had ended. The central legal question turned on the proper interpretation of clause 4 of the consent paper incorporated into the divorce decree, and specifically the meaning of cohabitation with a third party for a continuous period of six months as though married.
RJS contended that he had established, on a balance of probabilities, that LAS and SPR had been cohabiting with each other for a continuous period of more than six months as though married, and that therefore his maintenance obligations towards LAS had terminated. He submitted that if the court did not find that his maintenance obligations ended on 30 June 2021, then it should determine such alternative date as the court may determine. Furthermore, RJS argued that in the event of the court concluding that the respondent had not been cohabiting with the third party for a continuous period of six months as though married, that LAS continued to act in bad faith and that she deliberately prevented fulfilment of the resolutive condition contained in the consent paper, and that this had been fulfilled based on the doctrine of fictional fulfilment.
LAS, whilst admitting that she had been in an exclusive intimate relationship with SPR, denied that they had been cohabiting with each other for a period of six months though married. She maintained that the requirements for cohabitation had not been satisfied and that RJS had failed to discharge the onus of proof resting upon him.
When the matter first came for hearing on 17 November 2023, the parties agreed to postpone the matter for the hearing of oral evidence in terms of rule 6(5)(g). The order granted consequent upon their agreement provided for the determination of several legal issues, namely whether LAS and SPR had been in a cohabitation relationship which exceeded a period of six months as contemplated in clause 4 of the consent paper; whether RJS’s maintenance obligations towards LAS ended on 30 June 2021 or such alternative date as the court may determine; whether LAS must repay all the amounts RJS had paid to her as maintenance from 1 July 2021 or such alternative date as the court may determine; and the costs of the application, including costs of the interlocutory applications.
The order further provided that in determining these issues, the court could have regard to the factual disputes between the parties arising from the affidavits filed of record. The parties could also elect to call witnesses who had already deposed to affidavits in the matter, but neither party would be entitled to call any other person as a witness unless that party had served on the other party, at least twenty court days before the date appointed for the hearing, a witness statement deposed to under oath containing a summary of the evidence to be given by that witness. Such evidence was to be limited to the issues set out in the order, and either party could subpoena any person duces tecum.
Drummond Revisited: What Constitutes Cohabitation “As Though Married”?
Before analysing the evidence presented by the parties, it was necessary for the court to set out the legal framework regarding dum casta clauses. The Appellate Division addressed the origin and purpose of such clauses in Drummond v Drummond 1979(1) SA 161(AD) at 167A, holding that dum casta was obviously designed to provide for the contingency that a woman receiving maintenance from an ex-husband 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 man.
The Drummond case further gave content to the phrase living together as man and wife by outlining its basic components, endorsing the view of the High Court that it denotes the basic component of a marital relationship except for the formality of marriage. Eloff J in the Full bench decision of the High Court added more detail to these components in the Drummond case, stating that the main components 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. The learned judge added that 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 connotes, in my view, a continuing relationship, one that is intended by the parties to continue indefinitely without change.
The use of the phrase the main components in the description of what living together as man and wife entails was significant. It indicated that the court was not intending to give a definition but a description of the concept. The court recognised that in some instances, and not always, some components may be prominent and essential while in others not so important. The Appellate Division still found that there was cohabitation and consequently a relationship akin to that of husband and wife, though in Drummond at some stage the third party was employed in Sasolburg and only spent weekends with the respondent in Rivonia, demonstrating that he was not present together under one roof at all times but the circumstances under which the parties were together or apart that determine whether there was cohabitation.
Whilst the Drummond case remained good law, it had to be borne in mind that the effective use of stare decisis depends on several critical factors, such as subsequent legal and societal developments, whether the statement was obiter dicta or ratio decidendi, and the relevant facts of a particular case. There had been subsequent legal developments since the Drummond case was decided, notably the constitutional dispensation which predated the judgment. It did not deal with the recognition of permanent same sex life partnerships which had since been embraced as part of South African law.
In Stellenbosch Farmers Winery Group Limited and Others v Martell et Cie and Others 2003(1) SA 11(SCA) at par 11, the Stellenbosch case stated that to resolve factual disputes the court must employ the following technique: the credibility of the various factual witnesses; their reliability; and the probabilities. As to the credibility of a particular witness, the court’s finding would depend on its impression about the veracity of the witness, which in turn would depend on a variety of subsidiary factors including the witness’s candour and demeanour in the witness-box, their bias, latent and blatant, internal contradictions in their evidence, external contradictions with what was pleaded or put on their behalf, or with established fact or with their own extracurial statements or actions, the probability or improbability of particular aspects of their version, and the calibre and cogency of their performance compared to that of other witnesses testifying about the same incident or events.
Counsel for LAS relied mainly on the Drummond case but also on the judgements of EH v SH 2012(4) SA 164(SCA) at par 10 and DBG v NG (born De H) (7032/03) [2011] ZAWCHC 27 (24 February 2011), respectively, where the components of cohabitation between man and wife as if married were restated. In line with these judgements, Counsel submitted that to succeed, RJS must establish that LAS and SPR had been living under the same roof; that they had established and maintained a joint household; that their relationship was intimate and permanent; and that LAS enjoyed the advantage of being supported by SPR.
Counsel further found support in the judgment of the Constitutional Court in Bwanya v The Master of the High Court and Others 2022(3) SA 250(CC), a matter in which the appellant challenged the constitutionality of sections of the Maintenance of Surviving Spouse Act 27 of 1990 and the Intestate Succession Act 81 of 1987. The Bwanya court found these two pieces of legislation unconstitutional, to the extent that they excluded surviving partners in permanent heterosexual life partnerships, where the partners had undertaken reciprocal duties of support, from claiming maintenance and inheritance from the estates of their deceased partners.
Evaluating the Evidence: Living Under the Same Roof vs. Establishing a Joint Household
The existence of an intimate and exclusive relationship between LAS and SPR was not in dispute, nor was its duration. What was essentially in dispute was whether there was cohabitation for a continuous period of six months as though married. To be successful, RJS had to prove that LAS was involved in a dum casta relationship, or in the alternative, that his maintenance obligations ceased based on the doctrine of fictional fulfilment.
Counsel for LAS relied mainly on the Drummond case but also on the judgements of the EH case and the DBG case, respectively, where the components of cohabitation between man and wife as if married were restated. The EH case and the DBG case submitted that to succeed, JRS must establish that LAS and SPR had been living under the same roof; that they had established and maintained a joint household; that their relationship was intimate and permanent; and that LAS enjoyed the advantage of being supported by SPR.
How SPR and LAS met was that during or about 26 September 2020, SPR was invited to a braai by his brother RR, which was at LAS’s holiday home in Shelley Point. SPR and LAS took an immediate liking to each other so much that they agreed to see each other again. They met again about a week later. From that first encounter at the braai, a romantic relationship developed. They thereafter found themselves regularly in each other’s company, often going to romantic dinners at restaurants. Their dinners were mostly on Thursdays. Their Thursday dinners, however, were not always possible as sometimes something would crop up to derail their plans, in which case they would just have a braai.
LAS and SPR were intimate with each other for the first time, according to their evidence, on 28 November 2020 when they stayed overnight in Robertson after attending a wedding. They started dating each other on 14 February 2021. Prior to that, however, they had already spent a lot of time together, mostly in Val De Vie, though she had also been to his house in Durbanville a few times.
The couple regularly spent time together at LAS’s holiday home in Shelley Point, sometimes spending up to a week together during holidays. SPR had friends in Port Owen, and since this is close to Shelley Point, he would sometimes go to his friend’s place. SPR and LAS had often socialised with his friends in Port Owen. Although he had a house of his own in Port Owen, he hardly ever went there as his ex-wife lived in that house. He served on the Homeowners Association and attended its bi-monthly meetings.
The couple had regularly socialised with each other’s friends. SPR was introduced to LAS’s mother around Christmas of 2020 and found her a pleasant person whom they visited regularly. He had also spent time in the company of LAS’s stepfather as well as other relatives. He got on well with LAS’s minor children and had been to one or two of the minor children’s school events, though he chose to term these chance occurrences.
Right from the beginning, LAS and SPR’s relationship had been avidly documented through photographs, taken by LAS, which were often posted on social media platforms. LAS refused, claiming privacy, to disclose many other photographs which had not been posted on social media platforms. It took an interlocutory order compelling her to make available to RJS’s legal team those photographs which related to the dates on the calendar. Only then were these discovered. Although these were still photographs, they nevertheless, more than the ipse dixit of the parties, provided a wealth of circumstantial evidence which would play a major role in the determination of the issues in contention in this application.
As the relationship with LAS unfolded, SPR was added to a WhatsApp chat group called SLCC. The name was made up of the first letters of the names of SPR, LAS and her two minor children.
SPR and his brother RR owned and ran a paint business which sold upmarket paints. The business had many clients on the estate and was doing so well that it even sponsored one of the Polo teams on the estate. RR, his wife, and their minor children, lived on the estate. As stated above, SPR, who divorced his wife in August 2020, lived in Durbanville. He had two grown-up children. However, he was often on the estate because of their business’s clients, and always driving in his company’s branded vehicle. He, however, hardly used the access codes created for him to gain access at the security checkpoint. His explanation was that he would frequently drive in with his brother who would then biometrically gain access for both.
Despite his regular presence and his brother living on the estate for the past ten years, SPR was only registered on the security biometric system by SR on 28 October 2020, whereafter he started using the biometric system for access. He also started using a remote or remotes registered in the name of LAS. LAS’s version was that she had never assigned a specific remote to SPR and that it was a mere coincidence that he had used the same two remotes all the time. According to her, all the remotes registered in her name were kept in a container and she, PM, her children, and SPR would randomly pick any remote for use. SPR’s version, on the other hand, was that he kept the remote he used in his vehicle.
The calendar showed that early in their relationship, LAS and SPR were already going on holidays together. In addition to Shelley Point, they had been to several other places in the country, sometimes with LAS’s children or with friends. They had also been on overseas holidays together: a skiing holiday in Italy and to Mauritius. Other holidays which SPR undertook alone were those planned before he met LAS.
SPR and LAS testified to many breakups followed by immediate reconciliations during the period under review. They were, according to them, on one such breakup when they went on holiday to Mauritius. They could not cancel the arrangements which were made well in advance. They stayed overnight in Johannesburg en route to Mauritius and, although SPR initially stayed elsewhere, they eventually linked up.
On LAS’s version in the period between October 2020 and January 2023, she and SPR spent three hundred and sixty nights in the same bed in Val De Vie, fifty-eight nights in the same house in Val Die Vie but not in the same bed, and only five nights at SPR’s house in Durbanville. SPR was also in Val De Vie for seventy-five nights but had allegedly spent the night at his brother’s house. These days did not include those nights where they were together on holiday.
There was no independent verification of SAL’s records that SPR spent certain nights at his brother’s house and not with her. Mr Bosman, an IT specialist who worked for Val De Vie Management, testified that loadshedding had affected the accuracy of the boom results and that there were no biometric and boom records for certain periods. As such, he could not conclusively state the movement of SPR, once he was on the estate, whether he turned right to Las’s house or left to RR’s house. Even so, SPR and LAS could provide any tangible reason why SPR would choose to sleep at his brother’s house and not at her place with her.
SPR testified that he and his brother were engaged in litigation against a company which was involved in the paint business and had to spend time with his brother going through documents in preparation for a hearing. He therefore had to spend time on the estate. He initially stated that they were working from LAS’s house but quickly said they worked from his brother’s house. In the same breath, he said that they also worked from LAS’s house since she had a printer and they needed to print documents. The court found that if they were working from her home, it was logical that he would spend the night with her rather than go to his brother’s house, where due to the size of his house there would not be ideal.
Dolamo J held that the substantial number of days SPR had spent on the estate; the fact that SPR entertained his friends at LAS’s house; Mr Ackermann’s testimony that SPR had attended at least two parties held for LAS’s children and had often seen his bakkie parked at LAS’s house; that Ms B regularly saw his bakkie in front of house H2; and that SPR was registered on the biometric system soon after meeting LAS all pointed to cohabitation. The court noted that no explanation was given why, if he was regularly doing business and his brother had been residing on the estate for ten years, SPR was not registered on the system earlier and why the need to register him then.
Dolamo J approached the evidence of RJS, LAS, PM, and to a lesser extent Ms B, with a measure of caution. RJS and LAS had conflicting interests in the outcome of the matter. RJS’s interest was in a declarator ending his maintenance obligations to LAS whereas LAS’s interest was the opposite. Though the court did not detect any embellishment in his evidence, mainly because he was simply repeating the evidence in his affidavits, the judge found his evidence too mechanically delivered which left little room for a thorough assessment. In the end the court was satisfied that he was telling the truth.
PM, a Zimbabwean citizen, had been employed by LAS for approximately eight years, resided with her child at H2, and regarded LAS as her friend. She was very articulate and confident in delivering her evidence. This, however, was not a guarantee of her reliability as a witness. Inherent in her testimony was the eagerness to help her employer and friend. The outcome of this application could adversely affect her job security, which came with substantial benefits. Like RJS and LAS, she had a vested interest in the outcome of the application. She tried to minimize the number of times SPR had been present at H2 alleging that he only slept there over weekends, which was contradicted by the biometric records and the evidence of SPR. The court found her evidence that there was no room for SPR’s clothes at H2 an exaggeration tailored to fit in with the version that he always carried his clothes with him.
The Court’s Finding: When Does Maintenance Terminate Under a Dum Casta Clause?
The court held that living under the same roof to constitute cohabitation did not require that the parties must be together every night in the same house. Each case had to be determined by reference to its peculiar circumstances. Spending time together on holidays, as SPR and LAS often did, counted as factors pointing toward cohabitation. SPR and LAS placed much emphasis on the fact that SPR did not have or leave any of his clothes or other belongings at LAS’s house and that he carried his clothes with him in a tog bag and his medication and toiletries in a toiletries bag. This evidence was tendered as proof that he was not cohabiting with her. The significance of this evidence was destroyed or reduced in probative value by a photograph of SPR’s shirt hanging in a cupboard in LAS’s house.
Dolamo J approached the evidence of RJS, LAS, PM, and to a lesser extent Ms B, with a measure of caution. RJS and LAS had conflicting interests in the outcome of the matter. RJS’s interest was in a declarator ending his maintenance obligations to LAS whereas LAS’s interest was the opposite. Though the court did not detect any embellishment in his evidence, mainly because he was simply repeating the evidence in his affidavits, the judge found his evidence too mechanically delivered which left little room for a thorough assessment. In the end the court was satisfied that he was telling the truth. The judge indicated that she would deal with her impression of LAS later in the judgement.
PM, a Zimbabwean citizen, had been employed by LAS for approximately eight years, resided with her child at H2, and regarded LAS as her friend. She was very articulate and confident in delivering her evidence. This, however, was not a guarantee of her reliability as a witness. Inherent in her testimony was the eagerness to help her employer and friend. The outcome of this application could adversely affect her job security, which came with substantial benefits. Like RJS and LAS, she had a vested interest in the outcome of the application. She tried to minimize the number of times SPR had been present at H2 alleging that he only slept there over weekends, which was contradicted by the biometric records and the evidence of SPR. The court found her evidence that there was no room for SPR’s clothes at H2 an exaggeration tailored to fit in with the version that he always carried his clothes with him.
Counsel for LAS questioned the constitutionality of a dum casta clause for the first time in the heads of argument. This was against the background of criticising Counsel for RJS for relying on foreign case law to broaden the common law by adopting a new definition of cohabitation, when public mores was changing and it was no longer considered to be against public policy for a woman to be supported by more than one man. Further, that cohabitation outside of a formal marriage was now widely practiced and where clauses of this nature allowed ex-husbands to use money to retain control over their ex-wives, which may constitute unjustifiable sex and gender inequality.
The court held that the above criticism was a mischaracterisation of the dum casta clause in this case. This clause was found in an agreement which was freely and voluntarily entered into by JRS and LAS. Both enjoyed legal representation and engaged in the crafting of the clause. Public policy, in general, required parties to honour contractual obligations that had been freely and voluntarily undertaken. This was because the principle of pacta sunt servanda was a profoundly moral principle, on which the coherence of any society relied, as stated in Barkhuizen v Napier 2007(5) SA 323(CC) at par 87.
The ex lege duty of reciprocal maintenance would have terminated with the granting of the decree of divorce but for the agreement to extend it by means of clause 4. In the Beadica case, the court dealt with the question of how public policy, as a basis upon which a court may refuse to enforce the terms of a contract, should be determined. The Beadica court clarified that constitutional values like fairness could not be used as stand-alone reason to refuse enforcement of a contract. Instead, courts could only refuse to enforce a contract if the enforcement was so unfair, unreasonable, or unjust that it was contrary to public policy, a determination that required a balancing act where constitutional values played a crucial, but not autonomous, role.
Other than the bald statement that JRS was an extremely controlling individual who wanted to retain oversight and involvement in all facets of my life despite the fact that we are divorced and he was able to do so as I am financially dependent on him, LAS had not suggested that any constitutional value was implicated in JRS’s application to enforce the terms of their agreement. Dolamo J held that the clause was neither unreasonable nor contrary to public policy. In all the circumstances of this case there was no impediment to enforcing it, should the evidence be sufficient to make such a finding. The court therefore proceeded to look at whether the evidence adduced had sufficiently established all the elements of cohabitation in the context of a dum casta clause as set out in the Drummond case.
Counsel for LAS submitted that it was apparent from the authorities, the Stellenbosch case authorities in particular, that the defining characteristics of a relationship that would allow for termination or reduction of maintenance obligations were cohabitation under the same roof and de facto maintenance contributions. She also referred to a paragraph in the Bwanya case where the court, in outlining the components of a relationship akin to marriage, stated that Mr Ruch bought all the groceries and other household necessities and paid for all other household expenses, while Ms Bwanya provided him with love, care and emotional support and companionship. Mr Ruch assisted Ms Bwanya in her efforts to obtain a driver’s licence. To this end, he paid for her driving lessons. He intended to buy her a car which she was also to use in a cleaning business they planned to start together.
In the CB case, the court held that the parties agreed that the first appellant’s duty to maintain the respondent would lapse when another person became legally obliged to maintain her. But should the respondent cohabit with the person who de facto contributes to her maintenance, the first appellant would have the remedy of approaching the maintenance court for a variation or discharge of the maintenance order. LAS and SPR denied that they had established, maintained, or were contributing to a joint household. LAS was adamant that she and SPR had never discussed any contributions to a joint household nor did SPR bring any groceries to her home whenever he came over. They had never discussed any household budgets be it his or hers. LAS went as far as to say that SPR would bring his own meat whenever his family were coming with him to her house. She also denied that SPR would perform any tasks at her house.
SPR was also adamant that he was not cohabiting with LAS. His understanding of cohabitation was limited to living with somebody as husband and wife and sharing expenses as husband and wife. As proof of financial independence, details of reciprocal refunds of sums of money the one had spent on the other were provided.
The issue of undertaking of a duty of support could in certain instances be decisive. However, as Counsel for LAS pointed out, and with which the court agreed, in the majority of cases the issue of whether the life partners had undertaken a duty of support was considered to be determinative, although in others the issue of whether life partners had a consortium omnis vitae was considered to be particularly relevant. The evidence showed that the parties were leading opulent lifestyles. They regularly holidayed locally and overseas, and LAS lived in an upmarket estate, where SPR spent most of his time with her. In the circumstances, the court held that inquiring about whether the parties ever discussed household budgets may not be helpful.
It was the existence or not of a consortium omnis vitae in the relationship between LAS and SPR that required close examination. In the Grobbelaar case, after examining English authorities, the court defined the consortium omnis vitae as an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage. These rights and duties included affection, mutual support and sexual intimacy in a marriage. The Grobbelaar case had been followed in subsequent judgements, including those of the Constitutional Court. With the evolution of the concept of marriage, the definition applied equally to life partnerships.
The evidence showed that SPR and LAS had no doubt been enjoying mutual support and sexual intimacy, which was accompanied by affection. This was admitted by both. Their lifestyles made it unnecessary to do any menial tasks for each other. Such tasks were left for their servants.
Although LAS and SPR’s relationship was punctuated by many breakups, these were immediately followed by reconciliations. Dolamo J held that the emphasis on breakups was intended to convey the impression that their relationship was not continuous and lacked permanency. The breakups were always of a short duration. These breakups, on the contrary, proved durability of the relationship and that they regarded it as indefinite because they continued to reconcile after every breakup. The duration of their relationship had therefore been uninterrupted. Although LAS made room for disappointment, she nevertheless regarded SPR as her soulmate. SPR, on the other hand, alleged that he was not interested in bringing up another man’s children and that he had made that clear to LAS. Many photographs, however, showed him with LAS’s children on many excursions where he clearly was playing a father figure. Other photographs showed LAS and SPR mostly in the company of their friends with whom they socialised.
Contrary to Counsel for LAS’s submissions that they were candid in their evidence, the court had not been impressed by either LAS or SPR as witnesses. They contradicted each other and themselves. SPR alleged that SR gave him a remote, but LAS testified that he got the remote from picking it randomly from a basket. SPR was evasive and readily resorted to avoiding a question by saying he could not recall. Both had been at pains to portray their relationship as tumultuous with intermittent breakups, but the chronology of the photographs told a different story. They were always shown as happy including when they were in Mauritius and supposedly not together as a couple.
In the circumstances, Dolamo J was satisfied that RJS had discharged the onus of proving, on a balance of probabilities, that SPR and LAS had been cohabiting for a continuous period of more than six months as though married. Consequently, he was entitled to a declarator that his maintenance obligation towards LAS, as provided for in clause 4 of the consent paper, which was incorporated into final divorce decree, had ceased. Because of the conclusion the court had reached, it deemed it unnecessary to deal extensively with the question of whether RJS would have succeeded under the doctrine of fictional fulfilment. LAS and SPR’s obstructive conduct and the presentation of evidence which was aimed at obscuring the fact that they were cohabiting with each would have entitled RJS to the relief prayed for under this rubric.
The next question was whether LAS should be ordered to repay the amounts paid to her as maintenance and, if so, from which date. RJS submitted that this should be from 1 July 2021. RJS had shown that LAS and SPR were cohabiting as if married and for over six months but the date of 30 June 2021 as the date on which his maintenance obligations ended was not sufficiently substantiated. The court held that she should be ordered to repay the amounts which were paid to her as from 5 December 2024, being the date after closing arguments were heard and judgement reserved. It was on this date that the issue became clearer and crystalised.
In the result, Dolamo J made the following order: It was hereby declared that the applicant’s maintenance obligations towards the respondent, as provided for in clause 4 of the consent paper incorporated in the court order granted on 27 May 2019, and all subsequent addendums entered into between the parties, amending the terms of the order as far as it related to the applicant’s maintenance obligations towards the respondent had ended on 4 December 2024; the respondent should repay the applicant all amounts paid to her by the applicant as monthly maintenance from 5 December 2024; and the respondent should pay the costs of this application, including the costs of all interlocutory applications, on a party and party scale C, including the costs of the employment of two Counsel, where employed.
Questions and Answers
What is a dum casta clause and what is its purpose?
A dum casta clause is a provision commonly included in divorce settlement agreements that terminates a former husband’s maintenance obligations towards his ex-wife upon certain events occurring. The purpose of such a clause, as explained in the Drummond case, is to provide for the contingency that a woman receiving maintenance from an ex-husband 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 former husband.
What are the main components of cohabitation as though married according to Drummond?
The Drummond case identified that the main components 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. Eloff J added that in which sexual intercourse, in the case of parties of moderate age, would usually, but not necessarily always, be an essential concomitant, and that the phrase on a permanent basis connotes a continuing relationship, one that is intended by the parties to continue indefinitely without change.
Did the court in RJS v LAS interpret the Drummond components as a strict definition or as a flexible description?
The court emphasised that the Drummond case used the phrase the main components rather than providing a rigid definition. This was significant because it indicated that the court was not intending to give a definition but a description of the concept. The court recognised that in some instances, and not always, some components may be prominent and essential while in others not so important. Each case had to be determined by reference to its peculiar circumstances.
Does living under the same roof require the parties to be together every night in the same house?
No, living under the same roof to constitute cohabitation does not require that the parties must be together every night in the same house. The Drummond case itself demonstrated this principle where Bosch was employed in Sasolburg and only spent weekends with the respondent in Rivonia, yet the court still found cohabitation. It is not the presence together under one roof at all times but the circumstances under which the parties are together or apart that determine whether there is cohabitation.
What is consortium omnis vitae and why is it relevant to cohabitation?
Consortium omnis vitae is a Latin term defined in the Grobbelaar case as an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage. These rights and duties include affection, mutual support and sexual intimacy in a marriage. The Grobbelaar case had been followed in subsequent judgements, including those of the Constitutional Court, and with the evolution of the concept of marriage, the definition applied equally to life partnerships. The existence or not of consortium omnis vitae was considered particularly relevant in determining whether parties were cohabiting.
Is financial contribution or maintenance support essential to establish cohabitation?
The issue of undertaking of a duty of support may in certain instances be decisive. However, as the court noted, in the majority of cases the issue of whether the life partners had undertaken a duty of support was considered to be determinative, although in others the issue of whether life partners had a consortium omnis vitae was considered to be particularly relevant. In the circumstances of the RJS case, where the parties were leading opulent lifestyles and regularly holidayed locally and overseas, inquiring about whether the parties ever discussed household budgets was not helpful.
Can a dum casta clause be challenged on constitutional grounds?
Counsel for LAS questioned the constitutionality of a dum casta clause for the first time in the heads of argument, arguing that cohabitation outside of a formal marriage was now widely practiced and where clauses of this nature allowed ex-husbands to use money to retain control over their ex-wives, which may constitute unjustifiable sex and gender inequality. However, the court rejected this characterisation. The clause was found in an agreement which was freely and voluntarily entered into by JRS and LAS, both parties enjoyed legal representation and engaged in the crafting of the clause, and public policy required parties to honour contractual obligations that had been freely and voluntarily undertaken.
What principle did the Beadica case establish regarding enforcement of contracts and public policy?
The Beadica case clarified that constitutional values like fairness could not be used as stand-alone reason to refuse enforcement of a contract. Instead, courts could only refuse to enforce a contract if the enforcement was so unfair, unreasonable, or unjust that it was contrary to public policy, a determination that required a balancing act where constitutional values played a crucial, but not autonomous, role. The court in the RJS case found that the clause was neither unreasonable nor contrary to public policy and there was no impediment to enforcing it.
What is the principle of pacta sunt servanda and why is it important?
The principle of pacta sunt servanda means that agreements must be kept. As stated in the Barkhuizen case, this is a profoundly moral principle, on which the coherence of any society relies. Public policy, in general, required parties to honour contractual obligations that had been freely and voluntarily undertaken. This principle was applied in the RJS case to uphold the dum casta clause that the parties had freely agreed to in their divorce settlement.
What test did the Stellenbosch case establish for resolving factual disputes?
The Stellenbosch case stated that to resolve factual disputes the court must employ the following technique: the credibility of the various factual witnesses; their reliability; and the probabilities. As to credibility, the court’s finding would depend on its impression about the veracity of the witness, which would depend on subsidiary factors including the witness’s candour and demeanour in the witness-box, their bias, internal and external contradictions in their evidence, the probability or improbability of particular aspects of their version, and the calibre and cogency of their performance compared to that of other witnesses.
How did the court assess the credibility of LAS and SPR as witnesses?
The court was not impressed by either LAS or SPR as witnesses. They contradicted each other and themselves on material aspects. SPR was evasive and readily resorted to avoiding a question by saying he could not recall. Both had been at pains to portray their relationship as tumultuous with intermittent breakups, but the chronology of the photographs told a different story. They were always shown as happy including when they were in Mauritius and supposedly not together as a couple. The court found their evidence aimed at obscuring the fact that they were cohabiting with each other.
Are frequent breakups in a relationship evidence against permanency and cohabitation?
No, the court found that the emphasis on breakups was intended to convey the impression that the relationship was not continuous and lacked permanency. However, the breakups were always of a short duration and were immediately followed by reconciliations. These breakups, on the contrary, proved durability of the relationship and that they regarded it as indefinite because they continued to reconcile after every breakup. The duration of their relationship had therefore been uninterrupted, demonstrating permanency rather than the absence of it.
What standard of proof must an applicant discharge to establish cohabitation in a dum casta application?
The applicant must discharge the onus of proving cohabitation on a balance of probabilities. As the Drummond case recognised, the evidence by which the existence of this sort of relationship is proved is seldom, if ever, direct; generally speaking, it is usually impossible to prove it except by circumstantial evidence. The question is whether the inference sought to be drawn from such evidence would be the most reasonable inference to be drawn in the circumstances.
What is the doctrine of fictional fulfilment and when might it apply?
The doctrine of fictional fulfilment applies when a party deliberately prevents the fulfilment of a resolutive condition in a contract. RJS argued that if the court did not find that LAS and SPR had been cohabiting for six months, then LAS continued to act in bad faith and deliberately prevented fulfilment of the resolutive condition contained in the consent paper. The court found it unnecessary to deal extensively with this doctrine but noted that LAS and SPR’s obstructive conduct and presentation of evidence aimed at obscuring the fact that they were cohabiting would have entitled RJS to relief under this rubric.
From what date did the court declare that RJS’s maintenance obligations had ended?
The court declared that RJS’s maintenance obligations ended on 4 December 2024, being the date after closing arguments were heard and judgement was reserved. Although RJS submitted that his obligations should have ended on 30 June 2021, the court found that this date was not sufficiently substantiated. The court held that 4 December 2024 was the date on which the issue became clearer and crystalised, and ordered LAS to repay all amounts paid to her as monthly maintenance from 5 December 2024.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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