FATHER RECLAIMS MAINTENANCE AFTER HE FINDS OUT HE IS NOT THE FATHER

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1 Bulletin 618 of of 2013 Period: 126 February April to 3 to May 8 February CIRCULAR REGISTRAR S CIRCULAR 4 OF 2013 IMPLEMENTATION OF THE AMENDMENTS TO REGULATIONS TO THE DEEDS REGISTRIES ACT 47 OF 1937 The purpose of this circular is to clarify the requirements and provide guidelines to the implementation of the latest amendments to Regulations to the Deeds Registries Act and Chief Registrar s Circular 4 of Contact the Knowledge Centre for a copy of above circular. GENERAL FATHER RECLAIMS MAINTENANCE AFTER HE FINDS OUT HE IS NOT THE FATHER MN v AJ 2013 (3) SA 26 (WCC) This case illustrates that a father who pays maintenance under the impression that he is the natural father of a child may not have a claim to sue the mother of the child to repay the maintenance when he eventually finds out through a paternity test that he is not the natural father of the particular child. The defendant and the plaintiff were married to each other on 25 February Their union bore a daughter, N, who was born in June On 3 February 1995 the parties were divorced and pursuant thereto the plaintiff was directed to maintain N by effecting the payment of the sum of R350,00 per month and to retain her on his medical aid fund. It was common cause that during the period February 1995 to June 2006 the plaintiff paid to the defendant the sum of R50050,00 in respect of maintenance for N. The said sum included payment of an amount of R1000,00 to the Edgemead Primary School in January In June 2006 N underwent a paternity test which showed conclusively that the plaintiff was not her natural father. On 30 July 2007 pursuant to an application brought by the plaintiff, the Court issued an order declaring that he was not the natural father of N and inter alia, varying the divorce order in terms of Section 8 of the Divorce Act 70 of 1979, by the deletion of the Plaintiff's maintenance obligations towards N. At the same time the plaintiff instituted action in the Magistrate s Court for recovery of the sum of R His claim was upheld and the defendant now appealed against the order of the Magistrate. In the Court a quo the plaintiff's cause of action provided that, plaintiff paid the maintenance in the bona fide and reasonable belief that he was N's natural father and as such legally obligated to maintain her. In the premise, the defendant was liable to compensate plaintiff for the maintenance paid in respect of N. Despite due demand, the defendant refused to pay the amount claimed or any part thereof. The plaintiff s claim was predicted on the condicition indebit. However no allegation was made that the defendant was enriched by the plaintiff payments. Further the plaintiff did not plead that the payment was made wrongfully or without just cause. The Magistrate s Court approached the matter on the basis of the condictio indebiti and accepted the argument advanced by the plaintiff that the parties had laboured under a mutual error. The Court found that the maintenance order granted by the Court as part of the divorce order was void ab initio, because it was founded on a mutual error. Accordingly the order and the underlying consent of the plaintiff did not found a valid causa upon, which the defendant could rely on. According to the plaintiff he did not oppose the divorce action, because he did not object to the relief which his erstwhile wife was claiming therein. The divorce was accordingly settled by the conclusion of a consent paper and there could therefore be no question of any "mutual error'" arising in a contractual setting. Rather the position was that the plaintiff was taken to have consented to the defendant s claims. Furthermore the Magistrate s Court finding of voidness in regard to the maintenance order was beyond the jurisdiction of that Court. In the circumstances the reasoning of the court a quo was fundamentally flawed and warranted intervention on appeal.

2 2 This matter must be approached on the basis of our law as it currently stands and since the plaintiff presented the claim on the basis of the condictio indebiti, it was that form of enrichment action which was to be considered in this case. There were four general requirements for an enrichment action namely, the defendant must be enriched; the plaintiff must be impoverished; the defendant's enrichment must be at the expense of the plaintiff; and the enrichment must be unjustified. Not only was there no mention of any enrichment on the part of the Defendant at the expense of the Plaintiff, there was no allegation either that the payments by the Plaintiff to the Defendant were made without just cause and were therefore unjustified. Notwithstanding this the Defendant elected not to note an exception, but seems rather to have sat back somewhat smugly waiting to see whether the Plaintiff would lead any evidence on these points. When the plaintiff duly failed to do so, the defendant argued that his case was fatally defective on the basis that the pleadings failed to make any such allegation. The counsel for the defendant readily accepted that the condictio indebiti was an appropriate cause of action for the factual scenario before the Court. The complaint was however that the plaintiff had not properly pleaded that cause of action and that the defendant was therefore entitled to a dismissal of the claim against her. The Court was of the view that the plaintiff's case was formulated on the basis of the condictio indebiti that the defendant was alive thereto and that the defendant was not prejudiced by the poor formulation of the plaintiff's claim. The plaintiff bore the onus of establishing the existence of all of the elements of the enrichment action. This meant that the plaintiff had to set up sufficient facts to justify an excusable error on his part in effecting payment of the amounts of maintenance to the defendant, that the defendant had been enriched thereby and that his estate had been impoverished in the process. It was common cause that the parties were married on 25 February 1989 and that N was born on 12 June Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived. The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February The Plaintiff further testified that he did not oppose his wife's claims at divorce, because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained N for more than ten years. He testified that he later became resentful about the Defendant's persistent claims for maintenance increased and eventually decided to ask for a paternity test. The Plaintiff also testified that he was urged by certain family members to go for such tests, they evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties. The Plaintiff concluded by saying that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years, but said that he had then paid up in full from time to time. He confirmed that he had paid the maintenance, because he was obliged to do so in terms of the divorce order. The Defendant did however not testify and so one did not know the circumstances surrounding her pregnancy, there was no evidence to suggest that she knew that her adultery that had resulted in the birth of N and that she intentionally withheld that information from the Plaintiff. Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action. The Plaintiffs legal obligation to pay the maintenance in respect of N arose directly from an order of the Court and was accordingly an obligation he could not avoid. The basis therefore was his assumption that a child born during the subsistence of the marriage was fathered by him. This was in accordance with the rebuttable common law presumption: pater est quern nuptiae demonstrant. Accordingly the Court could not find that the Plaintiff laboured under a mistake of law. The divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff. While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so. When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that N was his daughter. As stated by not contesting the divorce action, he effectively consented to the Defendant's claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act, which precluded the granting of a decree of divorce until the Court was satisfied that adequate provision had been made for the care and maintenance of any child born of the marriage. It was only when the child was about fifteen years old that DNA tests established conclusively that the Plaintiff was not her biological father. Those tests of course, showed that the Plaintiff had neither a "legal or natural obligation" to maintain the child. In the Court s view there could ultimately be little doubt that there was an error of fact on the part of the Plaintiff, which rendered payment of the maintenance indebite. However that was not all that the Plaintiff must establish to succeed with the condictio indebiti. He must further show that his error in paying the maintenance was reasonable. Having regard then to all the relevant circumstances the Court was not persuaded that the Plaintiff established that his mistake was justified to the extent that it entitled him to "judicial exculpation". There was no suggestion that the Defendant did not utilize the money to support the child who would have been the primary and the ultimate beneficiary of the maintenance payments. The Court thus had difficulty in understanding, how it

3 3 could be said that the Defendant was enriched by these payments. There was no evidence on the record which dealt with this issue, for instance whether the Defendant was employed, what her income was, whether she was in receipt of any child support grant or whether any other family members assisted with the maintenance of the child. One or more of these factors might have assisted one in assessing whether the Defendant had contributed more or less than her pro rata share towards the cost of maintaining N. The counsel for the Plaintiff contented himself with the submission that once the Plaintiff had established payment of the agreed sum to the Defendant, the latter drew an onus to show that she had not been enriched thereby. Counsel for the Defendant on the other hand, maintained that since enrichment had not been pleaded, it was not necessary for the Defendant to deal with this element of the claim. While it was correct that generally proof of an over-payment by a Plaintiff to a Defendant was prima facie proof of enrichment and that the Defendant then attracted an onus to show that she was not enriched. In this case it was common cause that the payments made to the Defendant were for the maintenance of the child. In fact in one instance, the Plaintiff made payment of N's school fees directly to the school clearly not an act which would have enriched the Defendant. The Defendant therefore received these payments for the child on whom the money was spent. Accordingly the Plaintiff did not establish a prima facie case of enrichment by simply proving the payment of money to the Defendant. To succeed in a claim under the condictio endebiti, the onus was on the Plaintiff to show that the Defendant's estate has been enriched to the extent that there has been an increase in her assets as a consequence of the payments. There was no doubt that in cases of over-payment of monies the Defendant attracted an onus to prove either nonenrichment or a partial enrichment, but this case was not about an over-payment. Accordingly it was for the Plaintiff to show that the Defendant's estate had been enriched by the receipt of the monthly maintenance payments made in respect of N and importantly what the extent of that enrichment was at the time that the summons was issued in the Magistrate's Court. The Plaintiff could have established that the Defendant had saved the monthly maintenance and held it in a savings account in her name, there might have been an argument regarding enrichment. But where the money has been spent on maintaining a third party whom the recipient was bound to support, there could be no enrichment. Not only did the Plaintiff fail to plead any enrichment, he also omitted to set up a prima facie case of enrichment on the part of the Defendant at the commencement of the action. Given the fact that the money that was paid (albeit begrudgingly and somewhat irregularly according to the Plaintiff) for the maintenance of a child (and there was no suggestion that the Defendant did not use it for that purpose), it would not be fair to the Defendant to now order her to restore either the entire amount or a part thereof to the Plaintiff. Accordingly the Court a quo erred in finding that the Plaintiff had established a claim of enrichment. The appeal should therefore be upheld with costs and that the order of the Magistrate of the court a quo should be varied. SEMINARS FOCUS ON THE NATIONAL CREDIT ACT The seminar discusses the context in which the NCA operates and the significant changes it has brought about. The focus is on the latest developments, with an update on relevant case law and possible amendments to the Act. TOPICS OF DISCUSSION The National Credit Act of 2005 is the umbrella legislation controlling credit in South Africa. Examine the latest developments in: The application of the Act; Registration requirements; Costs of credit; The drafting of credit agreements; Pleadings and debt restructuring; and Possible amendments to the National Credit ActDATES: Cape Town 20 May 2013 Durban 27 May 2013 Pretoria 3 June 2013 Bloemfontein 5 June 2013 Port Elizabeth 10 June 2013

4 4 East London 11 June 2013 Johannesburg 13 June 2013 COSTS: Practising attorneys: R 990 Candidate attorneys / support staff: R 870 Practising attorneys from firms located further than 200 km from the closest venue: R 650 Non-practising attorneys / Others: R For more information please visit or contact the Knowledge Centre. DEBT COLLECTION - THE LITIGATION PROCESS This seminar takes a closer look at the practical application of the debt collection litigation process to assist businesses maximise the chances of recovery. SEMINAR CONTENT: The National Credit Act (NCA) in terms of o collections; o categories of credit agreements; o Section 129 Notices; o debt review and admin orders from a credit provider s perspective; and o charging interest and costs Consents to judgment Instituting action Enforcing judgment debts through: o warrants of execution; o initiating financial enquiries; o garnishee applications; and o emoluments attachment applications The latest court decisions A brief look at prescription of debts and proposed changes to the prescription laws DATES: Johannesburg 10 July 2013 Pretoria 11 July 2013 Cape Town 19 July 2013 Durban 23 July 2013 East London 29 July 2013 Port Elizabeth 30 July 2013 Bloemfontein 2 August 2013 COSTS: Practising attorneys: R 990 per person Candidate attorneys/support staff: R 870 per person Practising attorneys from firms located further than 200 km from the closest venue: R 650 per person Non-practising attorneys/others: R per person For more information please visit or contact the Knowledge Centre. RECOMMENDED READING

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