Cohen v Cohen (born Coleman)

In February 1995, the parties were divorced and a consent paper was made an order of the Cape of Good Hope Provincial Division of the High Court. The consent paper required the appellant (plaintiff) to pay maintenance to the respondent (defendant), subject to a dum casta condition: the obligation would endure until her death, remarriage, or until she lived with another man as husband and wife for more than six months in any calendar year or nine months in any three-year period. The maintenance included a monthly amount of R3 000 (subject to CPI adjustment), medical expenses, car servicing and replacement, and levies on her townhouse. In 1997, the appellant approached the maintenance court to discharge his obligation; the magistrate instead reduced the monthly amount to R1 500. In May 1998, the appellant applied for maintenance for the children, while the respondent counter-applied for an increase in her own maintenance. In December 1998, Magistrate Venter varied the order by substituting a new order for R3 500 per month, operative retrospectively from 1 December 1998, and expressly stated that clauses 4(a)(ii) to (iv) of the consent paper remained in force, but made no mention of the dum casta condition in the introductory part of clause 4(a). In January 2000, the appellant sued the respondent in the High Court, alleging she had breached the dum casta condition and seeking a declaratory order that he was no longer liable to pay maintenance, plus repayment. The respondent defended the claim on the basis that the dum casta clause had ceased to exist when the maintenance court made its substitution order in December 1998. The court a quo accepted this defence, and the appellant appealed to the Supreme Court of Appeal with leave.

• Whether an order of a maintenance court varying the quantum of maintenance payable in terms of a prior High Court order (incorporating a consent paper) also varies and extinguishes a dum casta clause contained in the consent paper.
• Whether a substitution order made under section 16(1)(b)(i) of the Maintenance Act 99 of 1998 replaces the entire previous maintenance order or only that part thereof expressly or by necessary implication dealt with by the maintenance court.
• Whether the dum casta condition was an inherent and indivisible part of the maintenance order such that a variation of quantum necessarily entailed its extinguishment.

The appeal was upheld with costs. The defence raised by the respondent in paragraphs 2.1 to 2.3 of her plea was struck out. The costs of the hearing before Comrie J in the court a quo and of the application for leave to appeal were stood over for decision by the court hearing the merits.

A maintenance court order made in substitution of a prior maintenance order under section 16(1)(b)(i) of the Maintenance Act 99 of 1998 causes the prior order to cease to have force and effect only to the extent that the new order expressly or by necessary implication replaces it. An order varying only the quantum of maintenance payable does not, by necessary implication, vary or extinguish other distinct terms of the maintenance order, such as a dum casta clause or resolutive conditions. Maintenance court orders must be interpreted by identifying the issues placed before the court and construing the order restrictively so as to be limited to those issues.

The court remarked that the question of whether the original Supreme Court order, incorporating the consent paper, had become an order of the maintenance court or remained a Supreme Court order—an issue relevant to the High Court's jurisdiction to grant a declaratory order—was not in issue before the Supreme Court of Appeal and that it would be unwise to express an opinion on it. The court also observed that the judgment of the Constitutional Court in Bannatyne v Bannatyne, delivered on 20 December 2002, did not affect the conclusion reached in the matter.

The case is significant for clarifying the effect of a substitution order by a maintenance court under the Maintenance Act 99 of 1998. It establishes that such an order does not automatically replace an entire prior High Court maintenance order; rather, the prior order ceases to be of force and effect only to the extent that the maintenance court order expressly or by necessary implication replaces it. The judgment protects ancillary and conditional provisions in consent papers (such as dum casta or resolutive conditions) from being extinguished when only the quantum of maintenance is varied, and it affirms that maintenance court orders must be interpreted restrictively in accordance with the specific issue before the court.