Johannesburg High Court
Ashraf Hendricks/GroundUp
- The Gauteng High Court has ruled in favour of a divorcee seeking reinstatement of spousal support and backpay from her former spouse.
- The couple divorced in 2014 and the respondent initially agreed to pay R30 000 monthly instalments in spousal support.
- They reneged on this decision in April 2020.
The Gauteng High Court in Johannesburg has granted an appeal to a divorcee seeking reinstatement of R30 000 spousal support and backpay from her former spouse.
The appellant, referred to as LDB in court papers, was divorced from the respondent, referred to as JSB, in January 2014.
At the time, JSB agreed that they would pay R30 000 monthly in spousal support to LDB from the day she left their marital home.
This agreement was meant to last until LDB dies, remarries or cohabits with anyone other than her mother.
JSB also agreed that they would maintain LDB’s vehicle and repair costs not covered by an insurer.
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Both parties agreed that the terms of their divorce were “fair and necessary”.
However, in April 2020, JSB stopped paying the monthly spousal support and in June that year, they approached the Randburg Magistrate’s Court for permission to stop making the monthly payments altogether.
Lower court decision
A High Court judgment penned by Judge Stuart Wilson criticises the lower court’s handling of the case as if it was an ordinary civil claim, contrary to the provisions of the Maintenance Act.
Wilson said:
After hearing seven days of evidence spread out over the six months between 20 October 2020 and 29 April 2021, the Magistrate, on 17 June 2021, granted an order in which she permanently relieved JSB of all their cash maintenance obligations under clause 3 of the agreement.
On 23 June 2021, LDB asked the magistrate to give written reasons for her decision, however the response was only given on 1 April 2022.
This too, was criticised by Wilson, who said the delayed response was inexcusable.
The magistrate’s reasons for ruling in favour of JSB were that their earning capacity decreased “tremendously” during the Covid-19 pandemic, that JSB was reliant on their savings to meet their expenses and that both parties appeared to have been in a similar financial position.
Much of Wilson’s issue with the lower court judgement stemmed from the fact that the magistrate’s ruling was issued following legally flawed court proceedings.
“An examination of the record reveals that none of the magistrate’s factual findings has any reliable foundation in it,” said Wilson.
He added that the magistrate did not consider the settlement agreement that ended the parties’ marriage when she made her decision.
He said:
The magistrate, quite wrongly, approached the matter on the basis that the parties’ relative means could be considered afresh in a vacuum, and that there was no burden on JSB to justify the nature and extent of any departure from the agreement.
He said on a proper analysis of the evidence before the magistrate, there was no justification for her to permit JSB to end their monthly spousal support of LDB.
He said the most that could have been justified was the suspension of cash payments between April 2020 and September 2020 when JSB could not operate their practice.
Another factor raised by Wilson in the matter is that a maintenance officer, involved with the case, did not conduct a proper investigation, in line with the Maintenance Act, after JSB’s complaint in June 2020.
“As far as I can see, there was no maintenance investigation, no attempt to identify and narrow the real issues between the parties and no attempt to compile a reliable set of financial information against which JSB’s complaint could be considered,” said Wilson.
The court also set aside the magistrate’s court’s decision to suspend the spousal support altogether and specified that only payments for April 2020 until September 2020 could be suspended.
The matter will now revert to the lower court where, according to legal expert Melusi Xulu, the issue of backpay may be settled.