Johannesburg High Court
Ashraf Hendrix / Ground Up
- The Gauteng High Court has ruled in favor of a divorcee who is seeking to recover spousal support and back payment from her ex-husband.
- The couple separated in 2014 and the defendant initially agreed to pay monthly installments of R30,000 as spousal maintenance.
- They reversed this decision in April 2020.
The Gauteng High Court in Johannesburg granted an appeal to a divorcee seeking reinstatement of R30,000 for spousal support and back payment from her ex-husband.
The appellant, referred to as LDB in court papers, was divorced from the defendant, referred to as JSB, in January 2014.
At that time the JSB agreed that they would pay R30 000 per month as spousal benefit to the LDB from the day she left the marital home.
This agreement was to last until the LDB died, remarried, or cohabited with anyone other than her mother.
JSB also agreed that they would keep the LDB vehicle and repair costs not covered by the insurance company.
Both parties agreed that the terms of their divorce were “fair and necessary”.
However, in April 2020, JSB stopped paying monthly spousal support and in June of that year, they approached the Randburg Magistrates Court for permission to stop making monthly payments altogether.
First Instance Court decision
The Supreme Court ruling penned by Justice Stuart Wilson criticizes the lower court’s handling of the case as if it were an ordinary civil suit, in contrast to provisions of the maintenance law.
Wilson said:
After hearing seven days of evidence spread out over the six months between October 20, 2020, and April 29, 2021, the judge, on June 17, 2021, issued an order permanently relieving JSB of all of their cash maintenance obligations under Section 3 of the agreement.
On June 23, 2021, the LDB asked the judge to provide written reasons for its decision, but a response was not received until April 1, 2022.
This, too, was criticized by Wilson, who said the delay in response was unforgivable.
The judge’s reasons for ruling in JSB’s favor were that their earning capacity had decreased “dramatically” during the Covid-19 pandemic, that JSB was relying on their savings to make ends meet and that both parties appeared to have been in a similar financial position.
Much of Wilson’s problem with the lower court’s ruling stemmed from the fact that the judge’s ruling was made after legally flawed judicial procedures.
“An examination of the record reveals that there is no credible basis for any of the facts reached by the judge,” Wilson said.
He added that the judge did not consider the settlement agreement that ended the marriage of the two parties when she made her decision.
He said:
The judge, quite wrongly, approached the matter on the grounds that the relative means of the parties could be considered anew in a vacuum, and that there was no burden on the JSB to justify the nature and extent of any departure from the agreement.
There was no justification for her to allow JSB to end her monthly spousal support for the LDB, he said in a valid analysis of the evidence before the judge.
The most justifiable, he said, was the suspension of cash payments between April 2020 and September 2020 when JSB was unable to operate their practice.
Another factor raised by Wilson in this matter is that the maintenance officer, who is involved in the case, did not conduct a proper investigation, in line with the Maintenance Act, following the JSB complaint in June 2020.
“As far as I can see, there has been no maintenance investigation, no attempt to identify and narrow down the real issues between the parties, and no attempt to compile a reliable body of financial information against which a JSB complaint can be considered,” Wilson said.
The court also overturned the Magistrates Court’s decision to suspend spousal support altogether, and determined that only April 2020 payments can be suspended until September 2020.
The case will now go back to the lower court where, according to legal expert Melosi Cholo, the issue of late payment may be settled.