19
IN THE HIGH COURT OF ESWATINI
JUDGMENT
21 OCTOBER 2020
HELD AT MBABANE CASE NO. 1766/2014
In the matter between:
IVEANAH JOHNSTON (born JUTE) Applicant
And
MARLIN CHRISTOPHER JOHNSTON 1st Respondent
MAGAGULA AND HLOPHE ATTORNEYS 2nd Respondent
Neutral Citation: IVEANAH JOHNSTON v Marlin Christopher Johnston and Another (1766/2014) [2020] SZHC 213 (21 October 2020)
Coram: MAMBA J.
[1] This matter comes before me for the second time; having been remitted by the Supreme Court with its order dated 29 July 2015. In that order, the Supreme Court ordered, inter alia, that
‘(c) The matter is referred to the Court a quo to hear oral or such other evidence as it may deem necessary on all matters in dispute between the parties including but not limited to the interpretation of the consent order (referred to as the Settlement Agreement in this judgement) in case 47672/2007, the sums, if any appropriated by the [Applicant] from the proceeds of the rental of the property in lieu of maintenance.’
[2] In the first instalment of this matter before this court, the following was stated regarding the parties:
‘[4] The applicant and the first respondent were married to each other in terms of civil rites and in community of property in 1980. They experienced serious difficulties in their marriage in 2005. This culminated in the applicant successfully applying for a maintenance court order for herself and the family against the first respondent on 16 March 2007. In that order, the first respondent was ordered inter alia, to ‘pay a sum of twelve thousand Emalangeni per month and this sum, it was decreed, could be paid from the family business called Stiltek (Pty) Ltd or such other Estate assets as are in the first respondent’s control.
[5] It is common cause that the couple obtained a final decree of divorce on 01 March 2011 at the North Gauteng High Court in Pretoria, South Africa and an agreement or Deed of Settlement entered into by and between them was made an order of Court. Two of the terms of that agreement were first that: ‘The parties abandon all claims regarding maintenance against each other in toto and secondly; ‘on signature of this agreement, save as aforesaid, neither party shall have any further claims against the other of whatever nature whatsoever’ This agreement was signed or executed by the parties thereto on 18 February 2011.
‘[6] Following the final decree of divorce aforesaid, a liquidator or receiver of the joint Estate of the parties was appointed, who after finalizing his duties, he in turn appointed the second respondents to distribute the funds of the joint Estate between the applicant and first respondent.’
[3] Following and or in compliance with the order of the Supreme Court aforestated, Counsel in their statement of agreed facts dated the 3rd day of February 2020, stated the issues for determination in this second instalment of the matter, inter alia, as follows:
‘3.4 In [the Court order of the 16th day of March 2007] the respondent was ordered, inter alia, to pay a sum of E12,000.00 per month to the applicant and the sum, it was decreed, could be paid from the family business called Stiltek (Pty) Ltd or such other Estate assets as are in the 1st respondent’s control.
3.5 Whilst the applicant avers that the 1st respondent has never paid a cent in respect of maintenance as ordered by the Court in 2007 it was in arrears of E576,000.00---- at the time of the judgement.
3.6 The first respondent avers that the applicant did receive maintenance from the business as ordered by the Court.
4.
This is a dispute of fact, whether she did receive maintenance or not from the family business that must be resolved.
5.
The second leg of the issues to be resolved pertains to what the Court described as a sharp disagreement between the parties pertaining a Deed of Settlement and in particular two clauses. [The said Deed of Settlement was made an order of the Pretoria High Court on 01 March 2011, when the final decree of divorce was granted].---
7.
The 2 clauses are first that:
7.1 The parties abandon all claims regarding maintenance against each other in toto. And secondly;
7.2 On signature of this agreement, save as aforesaid, neither party shall have any further claims against the other of whatever nature whatsoever.
---
11.
The parties have agreed that the onus lies with the applicant to prove on a balance of probabilities that she was never paid money in respect of the maintenance from the 1st respondent per the order in the year 2007 and was in arrears of E576,000.00--- at the time of judgement.
12.
The applicant has to bring oral evidence to shed light on what she intended to agree or not agree on when she entered into the Deed of Settlement--- on 01 March 2011 [in respect of the 2 clauses quoted above under 7.1 and 7.2].’
[4] In her evidence in Court, the applicant stated that the sum of E576,000.00 she was claiming from the 1st respondent was in respect of arrear maintenance due to her by the 1st respondent. This is in respect of maintenance at the rate of E12,000.00 per month for a period of four years or forty-eight months. This period is reckoned from the date of the grant of the maintenance order by this Court on 16 March 2007 up to and including the 01st day of March 2011, when the final divorce order was granted. (E12,000.00 x 48 (months) = E576,000.00). Assuming of course that she is correct in her evidence that the 1st respondent did not pay her anything as ordered by the Court, her calculation appears to be in order.
[5] The first respondent did not state that he, at any given time, gave money to the applicant as and for maintenance. He stated that, as ordered by the Court, the applicant did receive cash in respect of maintenance from the family businesses. These businesses did not include Stiltek which is specifically mentioned in the maintenance Court order. The applicant, it must be said, conceded that indeed she did receive monies from the family businesses but she emphasized that such monies were not enough to cater for the Court order in full. This concession must, perforce, be a concession that the money due to her in this regard is not the sum of E576,000.00 claimed by her from the 1st respondent.
[6] The applicant stated that Stiltek was controlled or exclusively managed by the 1st respondent and she did not receive or collect any money from it. It is common cause that Mr. Zacharia Mkhonta of Typek Consult (Pty) Ltd was at all times material hereto, the 1st respondent’s accountant. The applicant and the 1st respondent assigned him to work jointly with the applicant in collecting and utilizing the monies from the parties’ family businesses. The applicant also testified that with effect from July 2011, about four months after the divorce, she started receiving her half share of the rentals, which was about E8,000.00 per month. That would suggest that at the time about E16,000.00 per month was being collected.
[7] Mr. Mkhonta gave evidence in support of the applicant’s case. He testified that he collected all the rentals from the family businesses and was also mandated or authorised to pay all the debts that needed to be paid by the couple. These included, rentals at VJR Agencies, property rates, mortgages and utilities at the home occupied by the applicant. He also testified that not all of the properties were occupied at the material time.
[8] In support of his evidence, Mr. Mkhonta submitted to Court a spreadsheet, (document) showing a summary of the monthly rentals he collected from 2007 to 2014. That document was prepared by him and is dated 04 December 2014. He stated that he prepared this summary from the receipts he had issued to the tenants upon payment of rentals each month. This document also reflects the payments he made each month. For instance, a sum of E3,190.00 was being paid to VJR agencies for the residential house occupied by the applicant and a sum of E1,500.00 was being paid for household necessities. He also testified that the money collected was never enough or sufficient to honour all the debts that the family had to pay each month, such that at times he found himself having to use his own money to honour these debts. This would, however, be repaid to him by the applicant. It was Mr. Mkhonta’s further evidence that he did not collect any money from Stiltek and the 4 rooms that were being leased out at the residential premises. I note herein that it was put to the 1st respondent that only two of these rooms were being rented out at a monthly rate of E200.00 each. The 1st respondent was unable to deny or dispute this.
[9] The document prepared by Mr. Mkhonta shows that the total rental monthly collections in 2007 was a sum of E10,791.20 whilst in 2011 it was a sum of E17,315.10. This document also reflects a monthly expenditure (outflows) of E11,440.00. This, however, does not reflect the actual period in question. Significantly, it does not show or reflect any rates being paid or at least being budgeted for. Not all the businesses were in operation all the time or at least paying rent all the time. For instance, LE’Look only began paying rentals in 2011, whilst Valley Auto Garage ceased paying rent in 2009.
[10] As stated above, the said document is a summary of what Mr. Mkhonta did. He did not produce the actual primary documents or receipts from which he compiled this summary. He was criticised in this respect by the 1st respondent. However, there was no suggestion that this document was, on that account, inadmissible or inaccurate. But as already observed above, the monthly outflows are not stated whether or not they were for 2007 or 2014 or all the years to which the report relates.
[11] Another shortcoming or unexplained item in the report is what, for example, Mr.Mkhonta did with the difference between the monthly collections of E17,315.10 in 2011 and the monthly outflows of E11,440.00 for the same period; assuming of course that the said outflows relate to that period too.
[12] From the above evidence, it is plain to me that during the period in question, the applicant received a sum of E1,500.00 (household) and E400.00 from the two rooms that were rented out (where rental was not being collected by Mr. Mkhonta). Rent in the sum of E3,190.00 was also being paid on her behalf for the residential house leased from VJR Agencies. The total amount is E5,090.00. This is E6,910.00 less than what the Court ordered in the maintenance order.
[13] As recorded in the statement of agreed facts, the applicant bears the onus to establish her case on a balance of probabilities. Imprecise or weak as her case may have been at the close of her case, it was not hopelessly weak that no Court acting reasonably could find in her favour. For that reason, the application for absolution from the instance was refused. (See Ekuphumuleni Society v Piet Zacharias Ebersohn and 2 Others 452/017 [2017] SZHC 103 (29 May 2020).
[14] The first respondent stated that Mr. Mkhonta did not account to him for all the rent he was collecting from the various tenants at the family businesses. He stated that, to his knowledge, all the premises save for the two rooms already referred to above, had been leased out. He estimated that between E5,00000 and E7,000.00 was being paid for the salon; E7,000.00 for the supermarket, E5,000.00 for the workshop, E1,000.00 for the driving school and E10,000.00 for the butchery and bar. This total estimated monthly rental is E30,000.00. This estimate was stated by the 1st respondent during cross-examination and he was not seriously challenged thereon.
[15] I have noted above the shortcomings or inadequacies in the evidence of both parties herein. Neither party was able or willing to bring concrete or reliable evidence to support their respective assertions; particularly regarding the exact amounts that were being collected as rental. It is largely all surmise and conjecture. That is not satisfactory. The court is being called upon to do the same or grope in the dark for the actual answers or evidence.
[16] The 1st respondent, contrary to the evidence of the applicant, also testified that he paid the mortgage charges with the Building Society. Again, this is contrary to the document prepared by Mr. Mkhonta which reflected a sum of E5,000.00 budgeted monthly for this purpose. But again, neither party submitted tangible or cogent proof for their respective assertion.
[17] The next enquiry in this case is that pertaining to the terms of the Settlement Agreement or Court order. It is really a matter of interpretation. In that Court order, inter alia, the parties abandoned all claims regarding maintenance against each other in toto-[and]- also agreed that
neither party shall have any further claim against the other of whatever nature whatsoever. The 1st respondent states that the issue being pursued herein by the applicant is one of or regarding maintenance and this is untenable inasmuch as the applicant through the said Court order, abandoned her claim for maintenance against him. The 1st respondent states further that that Court order is very clear in its terms and simply means what it says.
[18] The applicant states that she was advised by her attorney during the divorce proceedings and later by Mr. Jordaan, the executor of the joint estate that the relevant clause did not have any effect on the maintenance Court order that was granted by this court in 2007. In the final analysis, she stated that she did not intend to abandon her rights to maintenance enshrined in that Court order.
[19] In Swaziland Government v Lucky Mhlanga & 2 Others (432/2017) [2018] SZHC 176 (01 August 2018) this Court had this to say on the interpretation of documents; namely:
‘In Brutus v Cozens [1972] 2 ALL ER 1297 at 1299 Lord Reid stated that the meaning of ordinary words is a question of fact, whilst the meaning to be attributed to enacted words in a statute is a question of law, as it is a matter of statutory interpretation. The primary rule of statutory interpretation or construction is that words must be given their ordinary, natural, primary grammatical meaning unless this makes no meaning at all or results in some absurdity or anomaly or injustice. The meaning must, however, be in relation to a particular factual setting; not in vacuo. On Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) as para 28 the Court stated as follows:
A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity.’
See also Coopers and Lybrandt and Others v Bryant 1995 (3) SA 761 (A).
[20] More pointedly, in Visagie and Associates CC and another v Small Enterprise Finance Agency Ltd (262/2018) [2019] ZASCA 32 (28 March 2019) the Court stated as follows:
‘[14] As the appeal revolves around the interpretation of a court order- the
settlement agreement and its relevant clauses – we must apply the approach to interpretation of contracts and legislation, outlined in Natal Joint Pension Fund v Endumeni Municipality and Novartis v Maphil.
[15] As stated, in respect of the central issue, regard must be had to the express terms of the settlement agreement, the surrounding circumstances at the time of the conclusion of the settlement agreement and the conduct of the parties post the conclusion of the settlement agreement. The starting point is the express terms of the settlement agreement: one must determine whether, in view of its express terms, there is any room for importing the alleged tacit term. The express terms of the settlement agreement are neutral with regard to the relocation of the original lease agreement. And it also contains no express term from which any inference can be drawn.
[16] The relevant surrounding circumstances are the following. At the time of the conclusion of the settlement agreement there was a history of repeated non-payment of rental by the appellants. The respondent refused to renew the lease agreement after the appellants had continued to occupy the leased premised without paying rental as proposed by the respondent after it acquired ownership from the previous owner. In fact, despite the failure by the appellants to pay rental timeously, the respondent accepted late payments without raising the issue that it was entitled to cancel the lease agreement as provided for in the original agreement. Negotiations between the parties failed as the email dated 30 September 2013, referred to in para 3 above shows. There was resultant acrimony between the parties. By the time the settlement agreement was concluded and made an order of Court on 18 July 2016, the June and July rentals had been paid, but in neither case by the first days of the month in question (the June rent was paid on 8 June, the July rent on 4 July). Considering the acrimony between the parties whether or not rental was paid on the first day of each month was not important to the respondent. All the respondent wanted was to see the first appellant vacate the leased premises. A factor of some importance is that the respondent received payment after the first working day of the month, particularly in respect of August 2016, without protest (the August rent was paid on 11 August). The respondent took no action for about a month in respect of the ‘late’ august payment. A delay in asserting rights which allegedly emanate from a tacit term has a direct bearing on the probabilities. (See Wilkins v Voges above, at 143B-D). The parties’ email exchanges show that the dispute arose not because of alleged late payments, but due to their different views on the scale on which the costs would be payable by the appellants.
[17] Viewed in its proper contextual setting and bearing in mind the surrounding circumstances, the settlement agreement plainly intended to achieve two important objects as far as the respondent was concerned:
(a) First, it enabled the forbearing respondent to get its rentals for the period June-September 2016 and to have the first appellant vacate the premises by the end of September 2016, clearly an important consideration for the respondent; and
(b) Secondly, the unjust enrichment claim by the appellants, which lingered in the background, would be withdrawn.
Since insistence that rental payments be made by the first day of each month (something which had not historically occurred) may have jeopardized the achievement of these objects, one cannot find on a balance of probability that the respondent would have held out for this strict term. That is why it was evidently content to receive payment later in the month without objection. As stated, its subsequent discontent originated from the dispute about the scale of the costs to be paid.
[18] Having regard to the surrounding circumstances and the conduct of the parties at the time of the conclusion of the settlement agreement and subsequently, I am not satisfied that the respondent discharged the burden of proving a tacit term that ‘timeous’ payment referred to in clause 12 means the first working day of the month. This is so taking into consideration that even when the parties concluded the settlement agreement, the respondent did so when the appellants had already been ‘late’ in paying the rentals for June and July and in a sense waived those arrears. It also accepted late payment despite the clear language of the forfeiture clause under clause 12. Put differently, if the officious bystander had asked the parties, when they concluded their settlement, by what date the rent would have to be paid, it is more probable than not that they would both have promptly answered, ‘By the first day of each month’. There may have been some discussions, with the respondent being willing to receive the rent at any time before the appellants vacated on 30 September 2016.’
(Foot notes have been omitted by me).
[21] In the present application, the terms of the Court order in question are clear and unambiguous. There was already in place or existence a Court order by which the 1st respondent was obliged to pay a specified monthly sum as maintenance for and to the applicant. Apparently, the1st respondent had at the time of the divorce not fully discharged his obligations in terms of the Order. Corollary, or as a direct effect thereof, the applicant had a claim for maintenance against him; she decided to abandon that claim against him; whatever the extent thereof. As a matter of fact, each party abandoned all and any claim whatsoever against each other not only the one for maintenance.
[22] About four months after the divorce decree, the 1st respondent was allowed to draw and take his one half share of the rentals in the sum of E8,000.00 without any demur from the applicant. She inexplicably waited until 28 October 2014 when she filed this application.
[23] From the above, it is clear to me that the applicant made a conscious and deliberate decision to abandon whatever claim she then had for maintenance against the 1st respondent. That clause is in clear and precise terms and needs no elaboration. The applicant confirmed its clarity, meaning and import but sought to say that it did not relate to the order by this court. She was, however, unable to say what other maintenance claims she had against the 1st respondent- to which this could be or was applicable.
[24] Consequently, I hold that the applicant has failed to satisfy this court that she did not abandon her claim for maintenance against the 1st respondent. This application is accordingly dismissed with costs.
FOR THE APPLICANT: MR. S. M. MASUKU
FOR THE FIRST RESPONDENT: MR. L. R. MAMBA