Cohen v Cohen (born Coleman) (010/2002) [2003] ZASCA 5; 2003 (3) SA 337 (SCA) (3 March 2003)

Cohen v Cohen (born Coleman) (010/2002) [2003] ZASCA 5; 2003 (3) SA 337 (SCA) (3 March 2003)

The Supreme Court of Appeal held that the maintenance court's order was limited to varying the amount of maintenance payable and did not expressly or by necessary implication deal with the dum casta condition contained in the original consent paper and divorce order. The evidence before the maintenance court related solely to the parties' financial circumstances and needs, and the dum casta clause was neither raised nor considered. The order made by the maintenance court referred only to the quantum and certain sub-paragraphs of the consent paper, leaving the introductory paragraph (which included the dum casta condition) untouched. Therefore, the dum casta clause remained in force. The...

Citation
[2003] ZASCA 5
Parties
Appellant: Roy Selwyn Cohen; Respondent: Brenda Cohen (born Coleman)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 March 2003
Case Number
010/2002
Procedural Posture
Civil Appeal / Appeal From High Court Judgment
Outcome
Appeal upheld; respondent's defence based on deletion of dum casta clause struck out.
Judges
Olivier, Brand, Conradie
Legal Topics
Maintenance Variation, Dum Casta Clause, Consent Paper Interpretation, Maintenance Act Application
Family and Children Civil Procedure Maintenance Variation Dum Casta Clause Consent Paper Interpretation Maintenance Act Application

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Roy Selwyn Cohen

Appellant

Brenda Cohen (born Coleman)

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether a maintenance court's order varying the amount of maintenance payable also varied or eliminated the dum casta clause in the original Supreme Court divorce order.
  2. 2 Whether the variation order substituted the entire consent paper or only the amount of maintenance payable.

Ratio Decidendi

The Supreme Court of Appeal held that the maintenance court's order was limited to varying the amount of maintenance payable and did not expressly or by necessary implication deal with the dum casta condition contained in the original consent paper and divorce order. The evidence before the maintenance court related solely to the parties' financial circumstances and needs, and the dum casta clause was neither raised nor considered. The order made by the maintenance court referred only to the quantum and certain sub-paragraphs of the consent paper, leaving the introductory paragraph (which included the dum casta condition) untouched. Therefore, the dum casta clause remained in force. The...

Court Disposition

Appeal upheld; respondent's defence based on deletion of dum casta clause struck out.

Orders

  • The appeal is upheld with costs.
  • The defence raised by the defendant in paragraphs 2.1 to 2.3 of her Plea to the plaintiff's Amended Particulars of Claim dated 15 October 2001 is struck out.