Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: A388/11 (Maintenance ref no. 30608MAI001021)
Before: The Hon. Mr Justice Yekiso 
And
The Hon. Mr Justice Binns-Ward

In the matter between: 
ANDRE ABRAHAM SEPTEMBER 					Appellant
and
JACQUELINE LETITIA SEPTEMBER				Respondent
JUDGMENT DELIVERED: 15 FEBRUARY 2012
BINNS-WARD, J:
[1] This matter came before us on appeal against a decision by the maintenance court refusing an application by the appellant in terms of s 27(3) of the Maintenance Act 99 of 1998 ('the Act') for the setting of aside of a writ of execution. The writ was issued at the instance of the respondent to enforce payment of arrear personal 
[2]     The marriage which had formerly subsisted between the parties was
dissolved in terms of an order of the High Court made on 12 May 2006. The divorce
order incorporated the provisions of a deed of settlement entered into by the parties.
Clause 2.10 of the deed provided:

[3]     Section 27(3) of the Act is intended to provide a remedy to a maintenance
debtor who is served with a writ of execution and who contends that s/he has
complied with the maintenance order in question. It provides:
A maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section, set aside the warrant of execution if the maintenance court is satisfied that he or she has complied with the maintenance or other order in question.

As in the case of any document, the judgment or order and the Court's reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. indeed, in such a case not even the Court that gave the judgment or order can be asked to state what its subjective intention was in giving it. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the Court's granting the judgment or order may be investigated and regarded in order to clarify it.
[7] In considering this issue the presiding officer in the court below concluded that although the wording of the deed was loose and inaccurate in certain respects, it was nevertheless clear that clause 2.10 of the document set out the terms of a maintenance obligation by the appellant in favour of the respondent. In my view this conclusion cannot be faulted.

'Wat natuurlik aanvaar moet word, is dat, wanneer die betekenis van woorde in 'n kontrak bepaal moet word, die woorde onmoontlik uitgeknip en op 'n skoon stuk papier geplak kan word en dan beoordeel moet word om die betekenis daarvan te bepaal. Dit is vir my vanselfsprekend dat 'n mens na die betrokke woorde moet kyk met inagneming van die aard en opset van die kontrak, en ook na die samehang van die woorde in die kontrak as geheel.'
The correct approach to the application of the 'golden rule' of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard:
(1) to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract, as stated by Rumpff CJ supra;

2009 (4) SA 399 (SCA) at para. 39:

[9]     The preamble to the deed of settlement records that:
WHEREAS the Plaintiff has instituted action in the above Honourable Court against the Defendant for, inter alia, a decree of Divorce AND WHEREAS....
AND WHEREAS the parties have reached an agreement in respect of Custody of their minor children, maintenance, proprietary matters and further matters ancillary to this action; NOW THEREFORE the parties agree as follows and humbly request that the Honourable Court make this agreement an Order of Court.
This highlights, insofar as might have been necessary, the intended purpose of the document. It confirms that the objects of the deed were consistent with those ordinarily or commonly regulated as ancillary arrangements upon the dissolution of a marriage. It is significant that the issue of maintenance is mentioned generally, and not as 'maintenance of the minor children'. Thus if the parties had intended that the maintenance obligations to be imposed on the appellant were to be limited to the children one would have expected the relevant clause in the preamble to have recorded 'custody and maintenance of the minor children'. I mention this characteristic not to suggest that it would, by itself, be determinative, but merely as one of the salient features of the agreement that is pertinent to an assessment of the appellant's contentions as to its proper construction. The common intention expressed in the preamble to have the terms of the deed incorporated a court order furthermore confirms that the document must have been intended to fully integrate the terms of their divorce settlement. This intention is reiterated in clause 12.2 of the deed. This is of significance for the application of the parol evidence rule. 

[14] Turning to the second ground of the appellant's application. Section 41 of the Act provides as follows:
If during the course of any proceedings in a magistrate's court in respect of-
(a) an offence referred to in section 31(1); or
(b) the enforcement of any sentence suspended on condition that the convicted person make periodical payments of sums of money towards the maintenance of any other person,
it appears to the court that it is desirable that a maintenance enquiry be held, or when the public prosecutor so requests, the court shall convert the proceedings into such enquiry.

[15] The circumstances in which the criminal proceedings against the appellant were converted into an enquiry are not clear on the record. If, as he has it, the contemplated purpose of the enquiry was to determine whether or not clause 2.10 constituted a maintenance order, then the conversion was misdirected. It behoved the court seized with the criminal case itself to determine the meaning of the clause. There was no warrant to defer the question. If the clause were held not to be a maintenance order, the offence created in terms of s 31(1) of the Act could not have been committed and the appellant would thus have been entitled to an acquittal. Only if it were determined that the provision was indeed a maintenance order might there be grounds for a conversion of the criminal trial into a maintenance enquiry. 

[17] The proceedings in the court below took place in November 2009, some six months after the purported conversion of the appellant's criminal trial into a maintenance enquiry. It is apparent, however, that notwithstanding the conversion no progress whatsoever had been made in hearing or determining the maintenance enquiry; hence my description of it as ineffectual.

[20]   The appeal is dismissed with costs.

A.G. BINNS-WARD 
Judge of the High Court

YEKISO, J:

I concur.
N.J.YEKISO
Judge of the High Court

FOR THE APPELLANT                  :           Mr C.J. Grobbelaar
                                                            
INSTRUCTED BY                            :           Marais Muller Yekiso
 
FOR THE  RESPONDENT                        :           Adv. J.M. Bernstein 
 
INSTRUCTED BY                            :           Malherbe Attorneys
 
DATE OF HEARING                       :           10 FEBRUARY 2012
 
DATE OF JUDGMENT                    :           15 FEBRUARY 2012