Purnell v Purnell (576/91) [1993] ZASCA 22; 1993 (2) SA 662 (AD); [1993] 2 All SA 153 (A) (11 March 1993)
- Citation
- [1993] ZASCA 22
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Supreme Court of Appeal
- Panel
- Hoexter, Eksteen, F.H. Grosskopf, Goldstone, Krieger
- Case number
- 576/91
More details
- Court
- Supreme Court of Appeal
- Panel
- Hoexter, Eksteen, F.H. Grosskopf, Goldstone, Krieger
- Case number
- 576/91
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court of Appeal held that the Witwatersrand Local Division was competent to entertain the application to vary the original divorce maintenance order under section 8 of the Divorce Act. The subsequent maintenance order granted by the magistrate did not oust the jurisdiction of the High Court nor did it supersede the original divorce order. The respondent's chronic illness and permanent disability constituted a material change in circumstances justifying the removal of the time limitation on maintenance. The appeal was dismissed and the order of the Witwatersrand Local Division was upheld.
Court disposition
Appeal dismissed; order of Witwatersrand Local Division upheld.
Orders
- The appeal is dismissed with costs.
- The order of the Witwatersrand Local Division varying the maintenance order is confirmed.
02
Material facts
Parties
David J. Purnell
AppellantLynette V.P. Purnell
RespondentAmounts and remedies
- Monthly Maintenance (original Order): ZAR 1,000
- Monthly Maintenance (magistrate's Order): ZAR 1,500
03
Procedural history
Posture
Civil Appeal / Appeal From Order of Witwatersrand Local Division Regarding Variation of Maintenance Order
04
Questions and positions
Legal issues
- 01
Whether the Witwatersrand Local Division had jurisdiction to vary the maintenance order under section 8 of the Divorce Act.
- 02
Whether the maintenance order granted by the magistrate under the Maintenance Act affected the original divorce order.
- 03
Whether the respondent was entitled to a variation of the maintenance order due to chronic illness and permanent disability.
Party arguments
- Applicant
- The appellant argued that the Witwatersrand Local Division was not competent to vary the maintenance order as the maintenance had already been increased by the magistrate under the Maintenance Act. He contended that the respondent's application should have been directed to the magistrate's order, not the original divorce order, and that the jurisdiction of the High Court was ousted by the subsequent maintenance proceedings.
- Respondent
- The respondent maintained that the original divorce order remained in force and could be varied by the High Court under section 8 of the Divorce Act. She argued that her chronic illness and permanent disability justified the removal of the time limitation on maintenance, and that the magistrate's order did not supersede the divorce order but merely supplemented it.
05
Court’s reasoning
Legal principles
- 01
Divorce Act No 70 of 1979, section 8
A High Court retains jurisdiction to vary its own maintenance orders under section 8 of the Divorce Act, even if a magistrate has subsequently made an order under the Maintenance Act.
- 02
Maintenance Act No 23 of 1963
The existence of a magistrate's maintenance order does not extinguish or replace the original divorce order; both may coexist.
- 03
Purnell v Purnell (576/91) [1993] ZASCA 22
A party seeking variation of a maintenance order must show a material change in circumstances, such as chronic illness or disability.
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court of Appeal held that the Witwatersrand Local Division was competent to entertain the application to vary the original divorce maintenance order under section 8 of the Divorce Act. The subsequent maintenance order granted by the magistrate did not oust the jurisdiction of the High Court nor did it supersede the original divorce order. The respondent's chronic illness and permanent disability constituted a material change in circumstances justifying the removal of the time limitation on maintenance. The appeal was dismissed and the order of the Witwatersrand Local Division was upheld.
Obiter and limits
- The coexistence of maintenance orders under the Divorce Act and the Maintenance Act may lead to practical difficulties, but does not create a legal bar to variation by the High Court.
- The court emphasized the importance of clarity in maintenance orders to avoid confusion between orders granted by different courts.
Court disposition
Appeal dismissed; order of Witwatersrand Local Division upheld.
- The appeal is dismissed with costs.
- The order of the Witwatersrand Local Division varying the maintenance order is confirmed.
Source and reliance status
Supreme Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Appeal
Judgment
Case number 576/91607/91/alIN THE SUPREME COURT OF SOUTH AFRICA(APPELLATE DIVISION)In the matters between:DAVID J. PURNELL AppellantandLYNETTE V.P. PURNELL Respondent
CORAM: HOEXTER, EKSTEENT, F.H. GROSSKOPF, GOLDSTONE
JJA, et KRIEGLER AJADATE OF HEARING : 22 February 1993
DATE OF JUDGMENT : 11 March 1993
JUDGMENT
KRIEGLER AJA/ 2 KRIEGLER AJA:
The issue in these two related appeals
is maintenance by a man to his former wife. Theparties were divorced on 1 July 1986 by order of
the Witwatersrand Local Division of the Supreme
Court ("the WLD"). The present respondent was the
plaintiff in that action and the appellant was the
defendant. It will be convenient to retain their
original designations in what follows. The order
of court inter alia' contained the following
provision:
"3. The defendant is ordered to pay maintenance for the plaintiff at the rate of Rl 000,00 per month from 1 August 1986 to 31 July 1988."
In November 1987 the plaintiff, by consent,
obtained an order in terms of the Maintenance Act
No 23 of 1963 ("the Maintenance Act") from the
Johannesburg Maintenance Court ("the magistrate")
for an increase in such maintenance to Rl 500,00
3
per month. Then in July 1988 she applied to theWLD for relief couched as follows in prayer 1 of
the notice of motion:
"That Clause 3 of the Court order under Case No. 11294/84 [i.e. the divorce action] in the matter between the applicant and the respondent is varied by the deletion of the words 'to 31 July 1988'."
Although the plaintiff's founding affidavit made
mention of the order by the magistrate, and annexed
the relevant record, the order sought to be varied
was that of the WLD.
The factual foundation advanced in support of
the application was that the plaintiff was
chronically ill and permanently disabled from
earning a living. Affidavits were filed on that
issue. An opposed application came before Roux J
on the preliminary point whether the WLD was
competent to grant the relief sought under s 8 of
the Divorce Act No 70 of 1979 ("the Divorce Act").
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