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IN THE SUPREME COURT OF SOUTH__AFRICA

APPELLATE DIVISION

In the matter between

HELEN MENTZ APPELLANT

and
REGINALD CEDRIC SIMPSON RESPONDENT CORAM : BOTHA, HEFER et F H GROSSKOPF JJA. HEARD : 12 SEPTEMBER 1989. DELIVERED : 2 OCTOBER 1989.

JUDGMENT

JJF_HEFER_JA_

1.

HEFER JA :

The parties to this appeal were formerly husband and wife. When their marriage ended in divorce during 1974 custody of their minor daughters, Laura and Ruth, was awarded to the appellant and the respondent was ordered to pay maintenance at the rate of R50 per month for each child.
During 1986 the appellant filed a complaint in terms of sec 4(1) of the Maintenance Act 23 of 1963. Her aim was to have the maintenance increased to R750 per month for each of her daughters. The maintenance court enquired into the matter in terms of sec 5 of the Act and increased the maintenance to R225 per month in respect of Laura and R175 in respect of Ruth. This did not satisfy the appel-lant. She appealed to the Eastern Cape Division but her

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appeal was dismissed. With leave granted by the court
a guo she has now appealed to this court.

It is necessary to state at the outset that
according to the decision of this court in Bordhin v Bord-
hin 1956(2) PH B32 the approach to an appeal of the pre-

sent kind should be "along the lines adopted in compensa-

tion cases" (per BEYERS JA at p 9 of the original judgment).
This approach, BEYERS JA said, is outlined in the follow-

ing passage from the judgment of WATERMEYER JA in Sandler
v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199-200 :

"The amount to be awarded as compensation can oniy be determined by the broadest general con-siderations and the figure arnived at must ne-cessarily be uncertain, depending upon the jud-ge's view of what is fair in all the circumstan-ces of the case. For this reason a Court of Appeal does not readily interfere with an

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estimate made by the Court appeaíed from. At-tempts have been made in several cases in which the assessment of damage was a matter of esti-mation rather than calculation to define the class of case in which a Court of Appeal should interfere .... These citations suggest that a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages anci that of the trial court, and further unless there is some unusual degree of certainty in its mind that the esti-mate of the trial Court is wrong."
This approach to an appeal against an award of

compensation was adopted in several later cases which need
not be listed. It is sufficient to refer to A_A_Mutual
Insurance_Association_Ltd_v_Magula 1978(1) S A 805 (AD)

at 809 B-C where JOUBERT JA said:

" .... this Court will not, in the absence of any misdirection or irreguiarity, interfere with a trial Court's award of damages unless there is

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a substantial variation or a striking disparity between the trial Court's award and what this Court considers ought to have been awarded, or unlêss this Court thinks that no sound basis exists for the award made by the trial Court."
I accept that the present appeal has to be ap-

proached along similar lines but I must draw attention to
a further passage in the judgment in Sandler's case (at
200) which was not quoted in the judgment in the Bordhin
case. It reads as foliows:

"But it does not follow that a Court of Appeal must renounce its functions as a Court of Ap-peal by deferring to the estimate of the triai Court in a case of doubt or difficulty ....See-ing that an appeal is a rehearing of all the questions involved in the action, including the guantum of damages, a Court of Appeal must necessarily decide upon the figure which it thinks should have been awarded. When it has done that, if the figure arrived at, considered from all aspects, differs súbstantially from

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the figure awarded, the Court of Appeal must give effect to it. If it does not do so, it is deferring to the judgment of the trial Judge and not carrying out its functions as a Court of Appeal by exercising its own judgment upon a matter which is before it on appeal."

In order to consider whether there are grounds

for interfering with the award in the present case I shall

briefly state the relevant facts and thenídeal, firstiy,
with the court a quo's judgment and, secondly, with the
magistrate's reasons.

It emerged at the enquiry that, after her di-

vorce from the respondent, the appellant married her pre-

sent husband, Mr Mentz, who had been divorced from his
wife. Respondent in turn married the former Mrs Mentz
who had the custody of her and Mr Mentz's three minor

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6. children. After the parties' remarriage the Simpson household thus consisted of the respondent and his newly acquired wife and stepchildren, and the Mentz household of Mr Mentz and the appellant, Laura and Ruth. Initi-ally Mr Mentz paid maintenance to Mrs Simpson at the rate of R60 per month for each of his three children but at the tíme of the enquiry the eldest, Jonathan, had left school and was doing national service. Mr Mentz had stopped paying maintenance for him although he was not entirely self supporting. For the other two children he was still paying maintenance at the original rate whilst the respon-dent was still contributing towards Laura and Ruth's main-tenance, also at the original rate. At that stage Laura was a nineteen year old student at Rhodes University and

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7. Ruth a fifteen year oid pupil at Victoria Girls High School in Grahamstown.
At the enquiry the parties were agreed that an increase of the respondent's contribution to the mainte-nance of his daughters was necessary. What was in issue was, firstly, the total amount reasonabiy required for maintaining them and, secondly, the amount which the re-spondent should contribute. According to the appellant the total amount was Rl 053,94 per month in respect of Laura and R749,94 in respect of Ruth, and her contention was that the respondent should contribute R750 per month for each child. The respondent disputed the reasonable-ness of the appellant's total figures and maintained that he could-in any event not afford to pay R750 per month

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for each child.

The judgment of the court a guo (which was pre-

pared by KROON J with MULLINS J concurring) proceeds on the

basis of the well-known dictum in Herfst v Herfst 1964(4)

S A 127 (W) at 130 C that

"(the) general principles are that a child of di-vorced parents is entitled to be maintained by them, and they are correspondingly obliged to provide it with everything that it reasonably requires íor its proper living and upbringing according to their means, standard of living and station in life. That obiigation attaches to both parents jointly, but inter se, their respective shares of that obligation are ap-portioned according to the financial resour-ces and circumstances of each of them."

Having rightly stressed that "the assessment of the reason-able requirements must be made in the light of, inter alia,

the means of the parents and their standard of living" KROON

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J proceededto state the reasons why he regarded the appel-

lant's claim as excessive. I do not propose dealing with
every reason advanced in the judgment; the amounts which
the appellant demanded were obviously excessive and there

is substance in many of the learned judge's remarks. But
there are others which, with respect, do not bear scrutiny.

In relation eg to the appellant's decision to seek an in-
crease in the maintenance the learned judge said:

"On the face of it, it appears to be a sudden de-cision inconsistent with what had been the long-standing mutual arrangement between the parties relating to the maintenance of the children. Al-though, as already mentioned, it is not necessary for an applicant to establish a change in cir-cumstances as a pre-requisite to a claim for in-creased maintenance, the apparent unilateral withdrawal from a iongstanding mutual arrange-ment of this nature seems to me to demand some-thing more from the appellant than the needs of

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the children and the ability of the respondent to pay. Apart from financial considerations, moral or equitable considerations also play a part when the alteration of a maintenance order is in issue (JACOBS V JACOBS 1955(1) S A 235 (W) at 237; SAWDEN V SAWDEN 1956 (4) S A 109 (W) at 111)."
The court a quo was apparently not aware of the

decision in Walson v Watson 1979(2) S A 854 (AD) in which
this court rejected an argument that a mother was not en-
titled to seek an increase in maíntenance for her minor
daughter only four months after she had signed a consent
paper regulating the maintenance, by adopting (at 860 A-D)
the following passage from the judgment appealed against:

"The Court could and would (all other factors being favourable) not refuse the application for an increase if it were 'satisfied on the facts that the true interests of the minor re-quire a change'. (Christian v Christian 1945

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T P D 434 at 437). Such conduct on the part of a wife might bar her from relief where she was claiming an increase in respect of her own maintenance but I do not see how her moral tur-pitude (if such it were held to be) could be a ground for depriving a child of maintenance to which it was otherwise entitled."

I respectfully agree. In any event, the appellant testi-

fied at the enquiry that she filed the complaint after the

respondent had threatened to deprive the children of the
benefits of his medical aid scheme and had refused to make
a contribution to Laura's tuition fees at the university.

It is difficult to see what better explanation she could
have advanced or how there could be any suspicion about
the morality or the equity of her conduct in filing the
complaint.

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12.
Laura's tuition fees were dealt with in another

context in the following passage from the court a quo's

judgment:

"It is established law - c.f. BOONZAIER V PROVIN-CIAL INSURANCE CO.LTD, Corbett and Buchanan, The Quantum of Damages, page 87 - that although a father may agree to fund his child's attendance at a university and such funding would constitute portion of his support and maintenance of the child, he is not obliged to pay for his child to attend university nor would the child be en-titied in law to claim that his father do so. In the instant case the respondent joined issue with the appellant's attorney on the latter's contention that LAURA was entitled to attend university and require him to pay therefor. In law the respondent is entitled to resist the as-sertion that LAURA, who is presumably able to secure employment and support herself, is en-titled as of right to claim that he pay for her attendance at university."

There are two reasons why this reasoning cannot

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13. be supported; the first relates to the court's exposition

of the law and the other to the facts. The statement that

a parent is not legally obliged (unless he consents to do

so) to pay for his child's university education is not in

accordance with my conception of the law. It is trite

that the duty of support includes the obligation to provide

the child with a suitable education (Van Vuuren v Sam 1972

(2) S A 633 (AD) at 642 F; Boberg, The Law of Persons and
the Family 239). In an appropriate case, depending on mat-

ters such as the child's intellectual capacity and the stan-
ding and íinancial resources of the family, this may extend
to a university education (Voet 25.3.4, Richter v Richter

1947(3) S A 86 (W) at 92, Ex parte Pienaar 1964(1) 600 (T)
at 607B, Smit v Smit 1980(3) S A 1010 (O) at 10I8F - 1020D).

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14.

It is true that the question of a proper education for
their children is usually left for both parents to decide
but, where the parents are divorced, it is the custodian
parent who takes this decision. The position in such a
case is correctly described in Scott v Scott 1946 W L D
399 at 401 as follows:

"Where then the custody has been awarded to the mother at the time of a divorce the decision whether a child should attend a university pas-ses, in my opinion, to the mother. But of course her bare decision cannot burden the fat-her with the obligation to provide maintenance for that purpose. Whether he should provide that maintenance is judged by considering whet-her such education should be regarded as part of the necessary maintenance of that child, having regard to the standard of living and income of the parents."

(See also Richter v Richter (supra)at 90).

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In the present case the court a quo clearly lab-oured under the mistaken impression that the respondent's attitude was decisive and accordingly failed to consider the question of Laura's education properly. Moreover, al-though mention is made in the judgment of the fact that the respondent challenged his daughter's right to a uni-versity education, the nature of the challenge is not dis-closed. In effect all that the respondent said when he was asked at the enquiry whether he disputed that Laura was en-titled to a university education, was that she had no right to demand it. Upon being asked what should happen if a child has the ability and the parents can afford such an education, he replied: "If that is the situation then the parents should do what they can to send the child to university".

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16. He did not suggest that Laura does not have the abiíity nor did he dispute appellant's evidence that she was in fact doing very well at Rhodes, or that he had refused to make a contribution towards her fees for no other reason than, as he said , that he could not afford it. All this, and the fact that the respondent is an engineering graduate himself, leaves one with the firm impression that the appellant's decision to send Laura to university was the correct one and that both parents should indeed do what they can to keep her there.
Respondent's assertion that he could not afford a contribution towards Laura's tuition fees (or, for that matter, towards her and Ruth's maintenance generally) was made largely in view of the expense involved in the up-

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17. bringing of his three stepchildren. Appellant's conten-tion at the enquiry and again in the court a quo was that the respondent was not obiiged to maintain his stepchild-ren and that he should spend a larger portion of his in-come on the maintenance of his own daughters. She was plainly correct. That a stepfather is not legally ob-liged to maintain a stepchild, is trite (S v MacDonald 1963(2) S A 431 (C) at 432 F; In Re Estate Visser 1948 (3) S A 1129 (C) at 1133) and was accepted by the court a quo. Applying certain dicta in MacDonald's case at 433 the court ruled, however, that the respondent may, in the event of his present marriage being one in com-munity of property, be liable íor the maintenance of his stepchildren in his capacity as administrator of the joint

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18. estate and that it operated against the appellant that it was not canvassed at the enquiry whether the marriage was in or out of community of property. And, since the re-spondent was in any event liable for the price of neces-sities supplied to the household of which the stepchild-ren are members (Clark & Co v Lynch 1963(1) S A 183 (N)), the expenses incurred ín respect of the latter "is accor-dingly a commitment which has to be taken into account in considering the means available to the respondent with which to contribute to the support of his own children".

This part of the court's reasoning cannot be supported either. Respondent's liability to the suppliers of household necessities is quite irrelevant and the pos-sibility that he might be married in community of property

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19. was not raised either at the enquiry (where he was repre-sented by an attorney) or in the court a guo(where he was represented by counsel). If his legal representatives did not see fit to raise the point, it may safely be assumed that they knew perfectly well that the respondent was in fact not married in community of property. Bearing in mind that the interests of minors were at stake it is re-

grettable that the court a quo relied on a matter that was

never an issue and, moreover, actually made it count against

them. But, even if the respondent had been married in

community of property, the court a quo did not take into

account that Mrs Simpson, the other partner in the joint

estate, was not working at the time of the enquiry, was

not earning any income and was receiving only R120 per

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month by way of maintenance for the children from Mr Mentz. It is clear that the respondent bore the lion's share of their maintenance. His evidence was that an amount of R730 per month was required to maintain the two youngest children and a further amount of R165 per month in respect of Jonathan - a total of R895 per month of which Mr Mentz contributed only R120. If in these círcumstances he found it difficult to make ends meet, his first duty obviously was to maintain his own children properly and to leave it to his wife to see to it that Mr Mentz did likewise in respect of his children. Judging by the standard of living which, according to the appellant's evidence, he maintained, the amount which Mr Mentz contributed was ludicrously low and plainly inadequate. The court a quo was, no doubt, conscious

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21 . of the fact that Mr Mentz was in turn the major contribu-tor to Laura and Ruth's maintenance and that a demand by Mrs Simpson for an increase might affect his contribution. This is indeed so. But by, in effect, requiring both fathers to give preference to their stepchildren the court perpetuated a situation which should never have been al-lowed to develop.
Unfortunately the court a quo's approach to Laura's university education and to the respondent's com-mitment to his stepchildren brought about that the needs of his own children were not properly considered. Some of the component items of the appellant's claim were con-sidered and found to be either unjustified or excessive but tbe judgment gives no indication of an effort on the

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part of the court to assess the children's actuai needs or the actual extent of the respondent's ability to con-tribute thereto. This was an unfortunate omission par-ticuiarly since the magistrate's reasons, to which I now turn, are open to criticism in these very respects.
The reasons commence with the finding that the appellant was entitled to an increase. Relating to the amount of the increase the magistrate states that-

" ... complainant failed to satisfy the court that the amounts claimed are the needs of the children. The court finds that the claims for most of the items are excessive. More particularíy Laura can save on pocket money, clothes, deodorants and make-up, toothpaste soap, petrol, and Ruth on clothes, deodorants, make-up, toothpaste, soap and toiletries."

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Without disclosing what the extent of these savings could

be the magistrate states further:

"If both parties contribute 50-50 towards the maintenance of the children it means that with a payment of R400 per month the children re-ceive in total an amount of R800 per month which seems to this court a reasonable amount .... to provide for the children's needs, edu-cation and social standing in life."

How these amounts were? arrived at is again not disclosed.
One can only assume that they are not calculated amounts

but mere estimates. But even if they are, one would ex-

pect them to be based on, and in accordance with, the evi-

dence. An examination of the evidence reveals that they

are not. This is vividly illustrated by the way in which

the magistrate dealt with Laura's maintenance. The res-

pondent's main objection was to the amounts which the

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appellant claimed in respect of accommodation, clothing and

toiletries for the children. The items which he did not

dispute or against which he had no serious objection, total,

in Laura's case, R519 per month. Of the R400 per month

that the respondent was ordered to pay, R225 was allocated

to Laura and this presupposes, on the magistrate's reason-

ing, that the total amount required for her maintenance

was R450. This is considerably less than the R519 already
mentioned and to which a further amount has to be added for

Laura's accommodation, clothing and toiletries.

This and certain remarks elsewhere in the reasons

create the impression that the magistrate set about his

task by first estimating what the respondent could afford

to contribute and by adapting the children's needs accordingiy.

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It need hardly be stated that this was not the correct way to arrive at a decision. And the error was compounded by the fact that, like the court a quo, the magistrate was clearly not impressed with the contention advanced on ap-pellant's behalf that the respondent should cut down on the expenses incurred in connection with his stepchildren and thus to enhance his ability to maintain his own child-ren.
It follows from what I have said that this is a case in which interference with the magistrate's award is justified. I proceed, therefore, to assess the amount that the respondent should have been ordered to pay to the best of my ability on the available evidence. A convenient point of departure is the amount

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of R475 that, according to the respondent, is required

monthly for the maintenance of his stepdaughter,Gabrielle,

who was thirteen at the time of the enquiry. Her require-
ments are comparable to those of the fifteen year old

Ruth so that it would not be unreasonable to assess the

requirements of these two girls on the same level and on

the respondent's own figures. Included in the amount of
R475 is an amount of R25 in respect of Gabrielle's schooi

fees which are about the same as Ruth's. By deducting the

school fees and adding Laura's university fees of R184 per
month one arrives at a figure of R634 per month as a guide

to assess the latter's requirements. 1 realize that Laura

is older than the other two girls and that some of her re-

quirements are not the same as theirs but there are certain

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items which the respondent included in the R475 that are

somewhat higher than the amounts claimed by the appellant

for the corresponding items for Ruth. A fair amount can

be arrived at by adjusting the apportionment between Laura

and Ruth of the total amount which the respondent should

be ordered to pay. On the respondent's own figures I ac-

cordingly assess their joint total requirements at about
R475 + R634 = R1109 (say R1110) per month.

In order to apportion this amount between the

parents I take into account the respondent's monthly nett

income of about R2200 (the precise amount cannot be gleaned

from the evidence) and the appellant's monthly income oí
R240. It would not be unreasonable in the circumstances
of the case to require the appellant to devote her entire

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income to the maintenance of the girls. I also take into account that the appellant provided accommodation for the girls in her house which, again using the respondent's own comparable figures, may be valued at about R110 per month for each child. I would apportion to the appellant a total amount of R500 per month, including the value of the accom-modation, and to the respondent the balance of R610 per month.
The apportionment of this amount between Laura and Ruth must provide, of course, for the former's higher tuition fees and personal requirements. Having considered all the available information it appears to me that a rea-sonable award would have been R400 in respect of Laura and R210 in respect of Ruth.

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It must be understood, of course, that the fi-gures that were used and the situation that was contem-plated in these calculations reflect the position three years ago when the enquiry was held. No account was taken of any changes which might have occurred, and prob-abiy did occur, in the meantime. The effect of this judgment will, moreover, be that quite a considerable amount will be due to the appellant on account of the long lapse of time between the enquiry and the hearing of the appeal. There is no way in which this court can prevent any possible hardship to the respondent arising from his liability in terms of our judgment. Bearing this in mind and that there is a distinct pos-
sibility of a demand by Mrs Simpson for an increase in

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the maintenance that Mr Mentz is presumably still paying,

I wish to express the sincere hope that the parties will
act sensibly in the interest of their children in what-
ever future steps they might take.

The appeal is accordingly allowed with costs
and the order of the court a quo set aside.
Substituted for it is the following order:

"The appeal is allowed with costs; the Main-

tenance Order issued by the magistrate on

11 November 1986 is amended by substituting

the amounts of R610, R400 and R210 for the

amounts of R400, R225 and R175 respectively

in paragraph (a) of the order."

J J F HEFER JA. BOTHA JA ) F H GROSSKOPF JA ) CONCUR.

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