‘You cannot walk away from maintenance deal,’ high court tells spouse

The Johannesburg high court has ended a divorced couple’s maintenance battle by overruling the Randburg magistrate’s court decision to absolve one party from paying R30,000 a month to the other. 

The court found that not enough investigation had been carried out, that the magistrate had failed to properly interrogate the dispute and had erred by dismissing the parties’ maintenance resolution. 

The matter, which was decided on Friday, saw LDB applying to the high court for JSB to be compelled to resume paying monthly support after abandoning the agreement in early 2020. 

JSB divorced LDB on January 31 2014. In terms of the settlement agreement, JSB was to pay LDB maintenance from the day LDB left the marital home. The obligation would be terminated only if LDB died, remarried or moved in with anyone other than their mother. JSB was to also pay for LDB’s vehicle expenses not covered by insurance. 

The arrangement was said to be “fair and necessary” and provided for the tracking of JSB’s income with that information communicated to LDB once a year. In the event of JSB’s income being affected by “regulatory factors”, “political interference”, “illness” or any other development over which JSB has no control, JSB would be entitled to apply for a “review” of the agreement. 

JSB honoured the arrangement until April 2020, when they stopped paying. JSB approached the Randburg magistrate’s court and applied for a complete discharge of the maintenance arrangement, and the matter was handled as an “ordinary civil claim”.

In June 2021 the magistrate granted an order that permanently relieved JSB of all maintenance obligations, effectively dismissing the divorce settlement agreement. Two days later LDB applied to the court for written reasons for the decision. It took well over 10 months for the court to produce these reasons. 

“They consisted of 13 terse sentences which amounted to the propositions that, in the magistrate’s view, JSB’s earning capacity had decreased ‘tremendously’ as a result of the Covid-19 pandemic and JSB’s ‘own personal health’; that JSB was reliant on their savings to meet their expenses; that LDB did not need the maintenance provided for in the agreement; and that the parties’ relative financial positions were more or less identical,” the high court stated. 

This prompted LDB to lodge an appeal, arguing that the magistrate’s factual findings were not based on a reliable foundation. The court said the biggest difficulty with the magistrate’s reasons — “aside from their unexplained and, on the face of it, inexcusable lateness” — failed to “engage at all with the provisions of the settlement agreement that ended the parties’ marriage”. 

The high court found the lower court was wrong to approach the matter “afresh in a vacuum” and without asking JSB to justify the nature and extent of the departure from the original agreement in which there had been conceded that the maintenance obligations were “fair and necessary” and should be departed from only in defined circumstances. 

“The magistrate’s decision cannot stand,” the court said, finding that there was no justification for the discharge of JSB’s maintenance obligations other than a temporary suspension of the payments when there had been a “temporary collapse of JSB’s fee income during the early months of the pandemic”.

In upholding LDB’s appeal against the magistrate’s order, the court absolved JSB from making maintenance payments between April and September 2020.

“Anyone who has ever had to participate in proceedings determining spousal maintenance appreciates that the exercise is fraught with difficulty. The principal source of that difficulty is that, by the time the matter has reached a judge or a magistrate for decision, the facts are hotly contested, and neither party can really be relied upon to give a frank and straightforward account of their means and needs,” the high court said. 

The court said JSB’s application for the discharge of their maintenance obligations “on good cause” should have been properly probed by a maintenance investigator in terms of the act, and only after this was completed should the inquiry have gone before a magistrate. “The object is cheap and efficient identification of a just and fair set of maintenance arrangements between those subject to the act, using as little court time as possible.”

No attempt was made to compile a reliable set of financial information against which JSB’s complaint could be considered.

—  Johannesburg high court

The high court said no maintenance investigation had been done, there had been “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”.

This had resulted in numerous court days in which “JSB gave wide-ranging evidence of what they said was their inability to discharge their obligations”, and LDB was asked to give “evidence of their need for maintenance, and their own means of support”. 

“The evidence was eked out, one day at a time, over months. The whole process, from the institution of the complaint, to the point at which the magistrate gave her reasons, lasted just short of two years. I have little doubt that if those responsible for framing the act were asked to set out the sort of situation the act was designed to avoid, they would have described a scenario with many, if not all, of the features of this case,” the high court said, adding that during this time the magistrate had lost sight of the fact that the settlement had already been decided and agreed upon by the parties themselves. 

The high court found that though it had been claimed that JSB had been diagnosed with a dread illness that resulted in a loss of earnings, they had recovered from it by late 2019 — just before experiencing another dip in income during Covid-19 lockdown. 

“But the evidence is that JSB was able to resume their work from mid-August 2022 and that their practice had recovered by October 2020 at the latest,” the court said, describing much of the evidence submitted as “unreliable” as it was based on “self-produced fee books and audit trails, with little attempt at independent verification”. 

It was also found that the evidence was marred by a failure to state what JSB’s income was when the settlement agreement was concluded and to what extent it had changed. 

“Unless there was good cause to depart completely from the terms of the agreement (I can find none), then any argument JSB made about their changed earning capacity would have to have commenced with an account of that capacity when the settlement agreement was concluded. That is nowhere in evidence,” the court said. 

“JSB’s evidence fell woefully short of establishing that there was any change in their income that could not be dealt with by simply applying the terms of the settlement agreement,” the court said, adding that the magistrate’s comments that LDB owned their own home and had built up significant savings were “wholly irrelevant to the issues she had to decide”. 

The court found that JSB was obligated to honour the maintenance arrangement — apart from the middle six months of 2020 — as from June 2020, and JSB’s cross-appeal for the scrapping of the maintenance agreement be dismissed.