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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 0042146/17

In the matter between:

M, S                                                                                                                    APPLICANT

and

M, S                                                                                                               RESPONDENT

 

JUDGEMENT

 

NKOSI - THOMAS AJ

Introduction

[1] At issue in this application is the applicant’s entitlement to relief, in terms of the provisions of section 8(1) of the Divorce Act 70, 1979 (“the Divorce Act”), varying the order of this Court granted on 26 April 2013 (“the Court Order”) in regard to the maintenance obligations of the applicant towards the parties’ two major children.  

[2] Section 8(1) of the Divorce Act, in its material parts, provides that:

“A maintenance order … may at any time be rescinded or varied … if the court finds that there is sufficient reason therefor…” 

[3] The applicant and the respondent were married to each other out of community of property excluding accrual system. During the subsistence of their marriage two major children were born, namely, S (“S”) and L (“L”).

[4] On 26 April 2013 the parties’ marriage was dissolved by the order of this Court incorporating a settlement agreement hitherto entered into between the parties (“the settlement agreement”). At the time of the dissolution of the marriage, S was a dependant major child as he was enrolled at the University of […] and L was in matric. S had, however, stopped attending lectures at the University of […] in his third year in 2012.

[5] In terms of clauses 4.1 and 4.2 of the settlement agreement the applicant was ordered to pay maintenance in the amount of R25 000,00 in respect of both S and L. The applicant paid this amount into the respondent’s banking account on a monthly basis until 24 April 2014, at which time the applicant stopped paying maintenance.

[6] L passed her matriculation examinations in December 2013 and decided, thereafter, to simply stay at home and not pursue her studies any further.

[7] During  2014 S re-registered at the University of […] but subsequently dropped out, yet again. L, for her part, enrolled at a college in […] for a graphic design course only to drop out, soon thereafter.

[8] In April 2017 both S and L took up residence in […], United States of America without saying a word to the applicant. However, S has since returned to South Africa, in December 2017, in order to pursue his studies at the University of […].

[9] During January 2018, S registered at the University of […] for his third and fourth year modules in order to complete his degree. The applicant has been responsible for S’s upkeep since his return from the United States of America, which upkeep includes the payment of tuition fees at the University of […]:

[10] The applicant relies on the common cause facts set out below in support of the proposition that there exists “sufficient reason” in terms of section 8(1) of the Divorce Act for relief for the variation of the Court Order.

[10.1] In the case of S, that:

[10.1.1] He is currently 27 years of age;

[10.1.2] He matriculated at […], a private school, at the end of 2009

[10.1.3] The applicant paid for all his private school education and living expenses;

[10.1.4] In 2010  he  registered  for  his  first  year of study at the University of […], enrolled for Electrical Engineering for a period of three years which he did not complete;

[10.1.5] The applicant made payment in respect of all the fees, textbooks stationery and to the like required by S;

[10.1.6] The applicant took him to the University every morning;

[10.1.7] During his third year, when the parties’ marriage broke down, he stopped attending classes and simply stayed at home;

[10.1.8] The applicant offered him employment at  his  company and the respondent intervened with  a  refusal  as  in her opinion “work is beneath her precious children” (including  L)  whose  father is allegedly  a  millionaire  and whose father can and must support them;

[10.1.9] The respondent maintained that the applicant should simply pay the  adult  children  a monthly salary as  he could afford to  do  so without  both the adult children doing any work;

[10.1.10] The applicant arranged employment with a friend of his, for S, an arrangement that was, yet again, rejected out of hand;

[10.1.11] The  applicant   offered  him a  range  of  products  to  sell and his response  thereto  was  that  it  was unacceptable  inasmuch as he did  not  require  the  applicant’s charity;

[10.1.12] He  began drinking and smoking  marijuana,  which  led  to  him exhibiting  anti-social  and aggressive behaviour  to the extent that he  threatened  to  beat  the  applicant  up  when  he  spoke  to  him regarding his conduct;

[10.1.13] The applicant, in an attempt to ensure that he completes his degree, arranged a  meeting  with  the Dean of the relevant faculty in order to plead that he be allowed to continue and complete his degree;

[10.1.14] S  was  allowed  to  return  to his studies only to drop out, yet again;

[10.1.15] S  has  not  as  yet completed his studies. He  has returned to  South  Africa  but  everything  is  still  in the  air  as  regards  his future  prospects  of  gainful  employment as he has not acquired any  qualification  despite  the applicant’s  efforts to ensure that   he does so;

[10.1.16] He has, however, enrolled at the University of […];

[10.1.17] The  applicant  is  currently  paying  for  his  tuition  and  living expenses;

[10.2] In the case of L, that:

[10.2.1] She is currently 22 years of age;

[10.2.2] She matriculated at the end of 2013 from […];

[10.2.3] She also  attended  a  private  school  whose  school  fees and  related  expenses were paid for by the applicant;

[10.2.4] Despite  the  above,  she  elected  to  stay  at home for a period of approximately two  years  after  matric  without  doing any part time work  and  rendering  herself solely dependent on the applicant for her clothing and social activities;

[10.2.5] She has achieved  neither  a  degree nor a diploma and hence she is unable to work;

[10.2.6] She is currently in […], United States of America;

[10.2.7] The applicant has not been informed as to what she is currently   doing in the United States of America.

[11] The picture that emerges from the common cause facts is one of two adult children who were financially fully provided for by the applicant, who were given the best education money can buy but who, unfortunately, have failed to achieve what is reasonably expected of them in the way of self - sufficiency as adults.

[12] The question that therefore comes to the fore is whether it can be said, on these papers, that the applicant has shown “sufficient reason” for the variation of the consent order referred to above. That is the question to which I now turn.

[13] Before I do so, I propose to briefly deal with the objection in limine raised on behalf of the respondent that this Court should dismiss this application as the applicant ought to have approached the maintenance Court, instead, for relief.

 

Is the Maintenance Court the Appropriate Forum?

[14] The respondent, relying on the dictum in Troskie v Troskie [1],  maintained that this Court should dismiss this application with costs on the ground that it ought properly to have been brought in the maintenance Court by the applicant.

[15] The Court in Troskie held that:

“It seems to me,  therefore,  that  this Court  in  the  exercise  of  his discretion, should not entertain any application to enforce payment of the arrears of a maintenance order, unless there are good and sufficient circumstances warranting it.

In the present  case I have not been informed of any such circumstances. No exceptional circumstances been brought to my attention. On the contrary, the parties do not appear to be wealthy; the respondent is an unrehabilitated insolvent; he has appeared in person to resist the application.  Consequently, the parties appear to be the very kind of person for which the procedure under the maintenance act was designed.”

[16] Troskie is plainly distinguishable from the case at hand.

[16.1] First, Troskie was decided within the context of an application under Rule 45 (12), the applicable Rule at the time to enforce payment of the arrear maintenance in terms of the order of the Court in respect of a minor child. Here, we are seized with a variation application that pertains to two major children who are reasonably expected to have been self-supporting by now.

[16.2] Second, the applicant in Troskie gave notice in terms of the Rule requiring the respondent  to  appear  before  Court  for  an  investigation  into his financial position. Here, no investigation  into the  financial position of the applicant  is  called  for. The  only  issue  is  whether  the applicant should continue  paying  an amount of R25 000,00 monthly to the respondent in respect of maintenance of their two adult children.

[16.3] Third, the parties in Troskie were impecunious.  The parties  in  casu are anything but impecunious.

[16.4] Fourth, when Troskie was decided the maintenance Court was held to have  been  capable  of providing “a simple, inexpensive and  effective[2] procedure.”  That does not  appear  to  be the case currently and the Constitutional Court held in that regard that:

“… there is evidence of logistical  difficulties in the maintenance courts that result in the system not functioning effectively. The CGE  placed  material  before  the  Court,  demonstrating  the difficulties  with  the  operation  of  the  Act,  including problems ranging from inadequately trained staff to  insufficient   facilities and resources.”[3]

[16.5] Fifth,  the  Court  in  Troskie  held  that  there  were  no  exceptional circumstances  entitling  it to entertain the enforcement application. In the case   before me, there are exceptional circumstances which warrant this Court  to  entertain  this  matter,  chief  among  them  being  the respective ages of the parties’ adult children.

[17] The objection in limine must, accordingly, fail.

 

Sufficient Reason

[18] As stated above, section 8(1) of the Divorce Act provides, in material parts, that:

“ A  maintenance  order  …  may  at any time be rescinded or varied … if the court finds that there is sufficient reason therefor…” 

[19] It, accordingly, follows that in order to be entitled to relief, the applicant must demonstrate “sufficient reason” in terms of section 8(1). 

[20] The applicant placed much store, in this regard, on the fact that the Court Order  provides that the applicant must pay maintenance for the two adult children until they are self-sufficient. In this regard, reliance was placed on the dictum in Bursey v Bursey and Another [4] where the SCA held that:

“In my view, the present order fixed a time for its duration, i. e until John becomes self-supporting, and it will cease to operate when that event occurs (or conceivably when John becomes capable of supporting himself, a matter which I need not decide.) Whether that event has indeed occurred may be the subject of dispute but it is an objective fact capable of being established with sufficient certainty.”  [own emphasis]

[21] The facts in Bursey are, however, distinguishable from those in casu. There, the major child involved was 21 years old, enrolled for his third year of study at Rhodes University and was completing his degree. The major child in Bursey was clearly not self-supporting and has not “conceivably … [become] capable of supporting himself” in accordance with the above dictum. He was simply not the author of his predicament.

[22] In this case, however, it would not be an exaggeration to state that the major children “conceivably… [became] capable of supporting” themselves and have only themselves to thank for being not self-supporting.

[23] I find that to be so because, in the case of S, the applicant offered him employment at his company which was flatly refused as being “beneath” him. An attempt by the applicant to get S employment with the applicant’s friend was also rebuffed. A range of products to sell were offered to S by the applicant which were similarly met by a rebuff.  Instead, S elected a life of “drinking”[5]  and substance abuse.

[24] L has similarly exhibited irresponsible conduct which only resulted in her dropping out of a tertiary learning institution and she is currently in the United States of America and what she is doing there remains a mystery to the applicant. When an employment offer was made to the children the respondent refused on account of work being beneath her children.

[25] In my judgment, the parties’ adult children are “conceivably capable of supporting” themselves and have only themselves to thank for the predicament in which they find themselves currently.

[26] I am fortified in the above conclusion by the judgment of this Court in Gliksman v Talekinsky [6] where it was held that:

“A child, when it becomes of age, should normally be able to provide for himself or herself… [ and] the liability on her father to support her only arises when it is shown that she cannot support herself, she being a major who should be able to provide for herself in normal circumstances…”  [ emphasis is mine]

[27] As stated above, in my judgment, the two adult children are quite capable of supporting themselves. Their cases are thus distinguishable from Gliksman.

[28] The two adult children did not only enjoy good quality private school education which has prepared them for all manner of economic activity, but they have flatly refused offers from the applicant for work in order to render them self-supporting.

[29] The two adult children’s predicament, unlike that in Gliksman, was self-created. It can hardly be expected of the applicant, in the circumstances of this case, and no matter how wealthy, to maintain his adult children ad infinitum.

[30] Accordingly, and in my judgment, the applicant has shown “sufficient reason” as contemplated in section 8(1) of the Divorce Act for the variation of the order of 26 April 2013.

[31] In the result, I grant an order in the following terms: 

[31.1] The settlement agreement dated 22 October 2012 and made an Order of Court on 26 April 2013 is varied as follows:

[31.1.1] by the deletion of clauses 4.1, 4.2, 4.3, 4.4, 4.5, 4.7, 4.8 and 5.9 thereof;

[31.1.2] by the renumbering of the current clause 4.6 to read 4.1;

[31.2] The  above  variation  to  the  settlement  agreement  shall  apply retrospectively from 1 April 2017;

[31.3]  There shall be no order as to costs.

 

L.G NKOSI-THOMAS AJ

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

 

 

Heard: 2 August 2018

Judgment: 20 August 2018.

 

For the applicant: Advocate M Feinstein, with her, L Mnqandi  

For the Respondent : Mr. D Sithole

 

[1] 1968(3) SA 369 (W)

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