IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 607/98
In the matter between :
PHILENE ZWIEGELAAR
Appellant
and
CORNELIOUS JOHANNES ZWIEGELAAR
Respondent
CORAM :
Smalberger, Zulman JJA, Melunsky, Mthiyane and Chetty AJJA
HEARD :
3 November 2000
DELIVERED :
28 November 2000
Summary:   Section 7(2) of the Divorce Act No 70 of 1979 - what constitutes
maintenance.
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JUDGMENT
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CHETTY AJA/
CHETTY AJA :
[1] In a contested divorce action brought by the appellant (in reconvention)
against the respondent in the Cape of Good Hope Provincial Division, the trial
court (Louw J) dissolved the marital regime between the parties and made certain
ancillary orders including an order for maintenance.  Paragraph 2 of the order as
formulated reads:
“Verweerder word gelas om, as onderhoud ingevolge die bepalings
van artikel 7(2) van die Wet:
(a)
Die bedrag van R8 000-00 per maand aan eiseres te
betaal vanaf 1 Januarie 1997 tot haar dood of hertroue
welke ookal eerste mag plaasvind;
(b)
die bedrag van R50 000-00 voor of op 15 Januarie 1997
aan eiseres te betaal vir die aankoop van huishoudelike
benodigdhede.”
[2] The respondent unsuccessfully applied for leave to appeal against certain of
the orders granted, including paragraph 2(b).  On petition to this Court the

respondent was granted leave to appeal to the Full Court of the Provincial Division
solely on the question whether the trial court was in law competent to make the
order as set forth in paragraph 2(b) thereof.
[3] The Full Court (Hlophe J with  Selikowitz et Kuhn JJ concurring) allowed the
appeal holding that s 7(2) of the Divorce Act 70 of 1979 (the “Act”) precluded the
trial court from making the said order.  The judgment is reported - see 1999 (1) SA
1182 (C).  This Court thereafter granted the appellant special leave to appeal against
the whole of the order of the court a quo, hence the present appeal.
[4] The question of law which arises for determination is whether the trial court
was empowered under s 7(2) of the Act to order the respondent to pay to the
appellant, as part of her maintenance requirements, the sum of R50 000 for the
purchase by her of household necessaries, together with an order for monthly
maintenance.
[5] Before adverting to the merits of the legal issue raised in the appeal it is to be

observed that the trial court accepted the appellant’s evidence that having been
ordered out of the common home she was obliged to acquire certain household
necessaries to render the home habitable.  It also found that the respondent was
financially able to provide these.
[6] Section 7(2) of the Act provides:
“In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party to the other,
the court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities, financial needs
and obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior to the divorce, their
conduct in so far as it may be relevant to the break-down of the
marriage, an order in terms of subsection (3) and any other factor
which in the opinion of the court should be taken into account, make
an order which the court finds just in respect of the payment of
maintenance by the one party to the other for any period until the
death or remarriage of the party in whose favour the order is given,
whichever event may first occur.”
[7] This Court has recognised that in determining the question relating to
maintenance requirements, the section confers a wide discretion upon a trial court

(see Beaumont v Beaumont 1987 (1) SA 967 (A) at 987E;  Katz v Katz 1989 (3)
SA 1 (A) at 11A-C).
[8] It was submitted on behalf of the respondent that in as much as the term
maintenance is not defined in the Act its proper meaning is to be gleaned from the
definition of the words “maintenance order” in the Maintenance Act 23 of 1963
where it is defined as:
“... any order for the periodical payment of sums of money towards
the maintenance of any person made by any court (including the
Supreme Court of South Africa) in the Republic ...”
Consequently, where s 7 of the Divorce Act refers to maintenance it must be
understood to mean periodic payments and specifically excludes the payment of
a lump sum.
[9] In dealing with the argument advanced on behalf of the respondent, the trial
court stated:
“Ek is van mening dat die betaling van &n eenmalige bedrag, nie instede

van nie, maar tesame met ander periodieke bedrae, as deel van &n
onderhoudsbevel in terme van artikel 7(2) van die Wet gelas kan
word.”
[10] The argument that maintenance in terms of s 7(2) is restricted to periodical
payments is supported by the academic literature.  Hahlo in The South African Law
of Husband and Wife, 5th ed at 357 stated with reference to ss 7(1) and (2) of the
Act respectively:
“An agreement for the payment of a lump sum, even where it is
expressly stated that the lump sum is to be paid in lieu of maintenance,
is not an agreement for the payment of maintenance in terms of s 7(1).
Section 1 of the Maintenance Act 23 of 1963 defines a maintenance
order as ‘any order for the periodical payment of sums of money
towards the maintenance of any person made by any court ...’ (My
emphasis.)  It may, however, amount to an agreement as to the
division of assets, which the court may embody in its order.”
And:
“Section 7(2) envisages periodical payments.  It does not allow the
court to make an award of a lump sum, in lieu of maintenance.”
(See also Lesbury Van Zyl, Family Law Service C36 and  The Law of South

Africa, Vol 16 first reissue at para 191.)  For the purposes of this judgment I shall
assume, without deciding, that s 7(2) envisages periodical payments.
[11] In advancing his argument Mr Cloete, for the respondent, submitted that in
adjudicating whether it was permissible for the trial court to make the order, a clear
distinction ought to be drawn between the common law obligation of support
stante matrimonio and the statutory duty of support post-divorce.
[12] Ordinarily, the reciprocal duty of support stante matrimonio ceases upon
dissolution of the marriage.  However, the duty of support i e maintenance, may be
extended after divorce if the court is satisfied having regard to the jurisdictional
requirements laid down in s 7(2) of the Act that it is just to do so.
[13] It was not submitted, nor indeed could it be argued, that the term
“maintenance” should be narrowly construed.  Sinclair in The Law of Marriage
Vol 1 at p 443 correctly refers to maintenance in the matrimonial context as a
reciprocal duty of support which

“entails the provision of accommodation, food, clothing, medical and
dental attention, and whatever else the spouses reasonably require.”
[14] Upon dissolution of the marriage, the word cannot attract a different
meaning.  Where a court is satisfied that the one spouse is entitled to maintenance
and the jurisdictional requirements as laid down in s 7(2) of the Act have been met,
then it is entitled to make an order which is just.  Just, in the context of s 7(2)
entails a recognition in an appropriate case that the accommodation requirements
of the one spouse have to be met as part of such spouse’s reasonable maintenance
needs.  To hold otherwise would be to render nugatory the clear requirement that
the maintenance award be just.
[15] It is implicit from  the judgment of the trial court that, notwithstanding the
imprecise formulation of the order, the learned judge intended to award the
appellant a sum of money as part of her maintenance requirements for the purchase
by her of household necessaries in order to establish a home - she having been

ordered out of the common home.  This sum was awarded not in lieu of, but in
addition to, what she reasonably required for her monthly maintenance needs.
[16] The effect of the order does not offend against s 7(2) and seen in proper
perspective (i e having regard to its substance rather than its form) the order is
clearly valid.  Mr Cloete was constrained to concede that a reformulation of the
order which in effect achieves the same result would not offend against s 7(2).
Whilst the section may envisage periodic payments these need not be equal.  In
principle there can be no objection to an order which in effect makes provision for
fixed monthly payments but in respect of one or more months makes provision for
the payment of an increased amount , or provides for recurring, unquantified future
amounts such as medical expenses or school fees - cf Schmidt v Schmidt 1996 (2)
SA 211 (W).  In doing so, the court must of course take into account the
prospective means of the parties and the ability of the party in respect of whom the
order is made to comply therewith.  By way of example, the sum of R50 000

awarded to the appellant could have been spread over the first ten months and the
respondent ordered to pay R13 000 per month over that period and R8 000 per
month thereafter.  Mr Cloete did not dispute that Louw J could legitimately have
done so to give effect to what he intended.
[17] It appears from the judgment of the Full Court (at 1185D-G) that Hlophe J
laboured under the misapprehension that the appellant could have applied for a
redistribution of  assets in terms of s 7(3) of the Act and by not doing so and
applying for a lump sum payment under s 7(2) the appellant attempted to achieve
the result of a s 7(3) award,  which she was not entitled to do.
[18] The fallacy underlying the reasoning arose as a result of a failure to appreciate
that the appellant could not have applied for a redistribution order under s 7(3) of
the Act as the section was not of application.  In terms of the antenuptial contract
concluded between the parties, the accrual system under Chapter 1 of the
Matrimonial Property Act 88 of 1984, was made applicable to their marriage.  In

addition each party excluded all their declared assets in the antenuptial contract
from the operation of the accrual.
[19] The intention of the trial court in making the order as evinced from the
judgment is clear.  It sought, as it was empowered and entitled to do, to provide for
the appellant’s reasonable maintenance requirements, including provision for
household  necessaries.  This court is entitled to give effect thereto.  A
reformulation of the order is not warranted given the clear import of the judgment
of the trial court.
[20] The following order is made:
1.
The appeal is allowed, with costs.
2.
The order of the court a quo (the Full Court) is set aside and

there is substituted in its stead the following:
“The appeal is dismissed, with costs”.
...................
D CHETTY
ACTING JUDGE OF APPEAL

Concur:
Smalberger JA
Zulman JA
Melunsky AJA
Mthiyane AJA