THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1324/2019

In the matter between:
CASPER HENDRIK BAILEY

FIRST APPELLANT
SAREL LOUIS AUGUSTYN

SECOND APPELLANT
and
HAZEL JOHANNA CICELIA BAILEY

RESPONDENT

Neutral citation:
Bailey and Another v Bailey (Case no 1324/2019) [2020] ZASCA
178 (18 December 2020)

Coram:
VAN DER MERWE, MOCUMIE and MAKGOKA JJA and LEDWABA and
EKSTEEN AJJA

Heard:
4 November 2020

Delivered:  This judgment was handed down electronically by circulation to the
parties’ representatives by email, and by publication on the Supreme Court of Appeal
website and release to SAFLII. The time and date for hand down is deemed to be
09h45 on 18 December 2020.

Summary: Family law – interpretation of word ‘remarriage’ in deed of settlement made
order of court – means marriage recognised by law – religious Christian ceremony
performed not remarriage.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Neukircher J) sitting
as court of first instance:
(a)
The appeal is upheld.
(b)
The order of the court a quo is set aside and replaced with the following:
‘1.
Paragraph 5.1 of the settlement agreement between the parties made an order of court
on 28 August 2017 is amended/varied to read as follows and with effect from date of this order
“The Defendant shall pay an all-inclusive amount of R10 000 (Ten Thousand Rand)
maintenance to the Plaintiff per month until her death or remarriage and/or cohabitation with
another man in a common law marriage whichever occurs first.”
2.
It is declared that the ceremony that had been performed in respect of the applicant
and Mr Riaan Visagie on 9 December 2017 did not constitute a remarriage within the meaning
of the said deed of settlement between the parties.
The respondent is directed to pay the costs of the application.’
(c)
There is no order as to the costs of the first appellant and the respondent on
appeal.
(d)
The respondent is directed to pay the costs of appeal of the second appellant.

JUDGMENT

Mocumie JA (Van der Merwe JA and Ledwaba and Eksteen AJJA concurring):
[1] The marriage of the first appellant, Mr Casper Hendrik Bailey, and the
respondent, Mrs Hazel Johanna Cicelia Bailey, was dissolved by a court order
incorporating a settlement agreement which they had concluded. The second
appellant, Mr Sarel Louis Augustyn, acted at all relevant times as the attorney of the
first appellant. The main issue for determination in this appeal is the interpretation of
the word ‘remarriage’ in the settlement agreement entered into between the first
appellant and the respondent in the divorce proceedings. The further issues are

whether the first appellant was in contempt of court and whether the costs orders of
the court a quo, particularly that the second appellant, be mulcted with costs de bonis
propriis, were justified. The appeal is with leave of this Court.

[2] The relevant background facts appear from what follows. On 28 February 1987,
the first appellant and the respondent were married in community of property. They
separated in June 2016 with the common intention to divorce. The respondent then
initiated divorce proceedings against the first appellant. Pending the finalisation of the
divorce proceedings, they entered into negotiations assisted by their respective
attorneys. In June 2017, they signed a settlement agreement. Clause 5.1 of the
settlement agreement, which is in dispute, reads:
‘The Defendant shall pay an all-inclusive amount of R10 000.00 (Ten Thousand Rand)
maintenance to the Defendant per month until her death or remarriage whichever occurs first.’
In the court a quo and this Court, the first appellant accepted that the second reference to
‘Defendant’ was simply an error and should read ‘Plaintiff’.

[3] On 28 August 2017, a decree of divorce, incorporating the signed settlement
agreement, was made an order of the court. After the divorce, the respondent
cohabited with Mr Visagie. On 9 December 2017, Reverend van Huyssteen, a minister
of the Dutch Reformed Church, conducted a ceremony during which he blessed and
sanctioned their cohabitation so that they would not ‘live in sin.’ Both the respondent
and Mr Visagie invited friends and relatives to the ceremony, the photos of which were
posted on Facebook by the respondent with the caption that Mr Visagie was her
husband. By 5 March 2019, the date of the hearing in the high court, the respondent,
and Mr Visagie had already separated.

[4] At the end of February 2018, the ceremony between the respondent and Mr
Visagie came to the attention of the first appellant. Upon the advice of the second
appellant, the first appellant stopped paying maintenance to the respondent on the
basis that the respondent had remarried, thus ending his duty to maintain her. He
stopped payment at the end of March 2018, which prompted the respondent to lay a
criminal charge against the first appellant for failure to pay maintenance. On 23 April
2018, the first appellant appeared in the magistrate court where he raised the following
defence in respect of the charge proffered against him:

‘On advice of Counsel and informing him of the so-called marriage on 9 December 2018, the
Court was informed on the date of appearance of 23 April 2018 that the Court Order of the
High Court could not be enforced in the Criminal Court without an attempt to amend/vary it in
terms of legal process which would in any event be opposed as being moot in the light of the
fact that maintenance orders lapse automatically in the event of a re-marriage by the recipient
of maintenance.’

[5] The magistrate apparently accepted what the first appellant had stated and
struck the matter from the roll. The respondent thereafter approached the high court
where she sought to amend clause 5.1 of the settlement agreement by replacing the
second word ‘Defendant’ with ‘Plaintiff’, as it ought to have read in the first place. She
also sought to hold the first appellant in contempt of a court order for his failure to pay
maintenance since April 2018.

[6] The first appellant filed a conditional counter-application in which he sought a
declaratory order that on 9 December 2017 in the Dutch Reformed Church Montana;
the respondent and Mr Riaan Visagie concluded an unregistered common law or
Christian relationship of cohabitation as husband and wife, and, as a result of which
his duty to pay maintenance had lapsed. He also sought orders that:
‘1.1
The word “remarriage” in paragraph 5.1 of the settlement agreement between the
parties made an order of the court on 28 August 2012, be interpreted and extended to include
an unregistered common law alternatively Christian marriage relationship as husband and
wife.
. . .
Alternatively,
. . .
2.1
Paragraph 5.1 of the settlement agreement between the parties made an order of
Court on 28 August 2017 is amended/varied by adding after the word “remarriage” the
following words
“alternatively, Plaintiff entering into an unregistered common law alternatively Christian
marriage relationship of cohabitation as husband and wife”
. . .
Alternatively
. . .
3.1
Paragraph 5.1 of the settlement agreement made an order of the court on 28 August
2017 is amended/varied by adding after the word “remarriage” the following words

“alternatively, Plaintiff entering into a relationship of cohabitation as husband and wife with
another man.”’

[7] The high court (Neukircher J) found in favour of the respondent. It found that
the insertion of the second word ‘Defendant’ instead of ‘Plaintiff’ in clause 5.1 was a
patent error that was not apparent to the parties, their legal representatives or the
court. The high court also held that the ceremony conducted in respect of the
respondent and Mr Riaan Visagie did not constitute remarriage. It furthermore held
that the meaning of the word did not include cohabitation, as the first appellant had
contended. The first appellant and the respondent, however, reached agreement,
contained in a draft order, as to the amendment of clause 5.1 for future purposes. The
court a quo thus varied the settlement agreement to read:
‘1.
Paragraph 5.1 of the settlement agreement between the parties made an order of the
court on 28 August 2017 is amended/varied to read as follows and with effect from the date
of order: The defendant shall pay an all-inclusive amount of R10 000 (Ten Thousand Rand)
maintenance to the plaintiff per month until her death or remarriage and/or cohabitation with
another man in a common-law marriage, whichever occurs first.’

[8] The high court also held the first appellant in contempt of court for failing to pay
the respondent maintenance in terms of the settlement agreement; and it mulcted the
second appellant with costs de bonis propriis. In addition, it ordered the first appellant
to pay costs on the scale of attorney and client.

[9] On the question whether the ceremony between the respondent and Mr Visagie
was a ‘remarriage’ as contemplated by the parties when they concluded the settlement
agreement, the high court found, with reference to several cases including Ochberg v
Ochberg’s Estate1, that on the evidence presented, what occurred on 9 December
2017 was no valid and binding legal marriage ceremony. Thus, the respondent’s legal
obligation to pay maintenance had not lapsed. Addressing the first appellant’s
provisional counter-application based on rectification, at para 40 of the judgment, the
high court found that:
‘[a]t the time that the settlement was entered into, the respondent had the opportunity to add
into the settlement agreement that any cohabitation by the applicant would result in a

1 Ochberg v Ochberg’s Estate 1941 CPD 15.

nullification of the maintenance payable by him to her. He failed to do so. He was represented
by an attorney at the time and despite this, no such clause was added to the settlement
agreement’.

[10] As I have said, counsel for the first appellant handed up a draft order in which
the respondent consented to a variation of the settlement agreement and which
included the variation that the respondent had sought from the outset. The court,
however, held at para 51 that ‘had it not been for this concession, the [conditional]
counter-application would have been dismissed with costs.’

[11] In respect of the contempt of court relied upon by the respondent, the high court
found at para 48 of the judgment that:
‘[i]n so far as the contempt of court regarding the failure to pay maintenance because of the
argument that the applicant has remarried is concerned, I am of the view that the wilfulness
and mala fides cannot be established. It is clear that the respondent was advised by his legal
representatives that this argument was a valid one and given that he is a lay person, in my
view he would know no better.’
It nevertheless found the first appellant guilty of contempt of court consisting of
deductions from maintenance made before April 2018 and sentenced him to three
months’ imprisonment which was suspended conditionally.

[12] As the appeal revolves around the interpretation of the word ‘remarriage’ in the
divorce settlement agreement and flowing from that what constitutes a marriage, the
Marriage Act 25 of 1961 (the Marriage Act) must be the starting point. The relevant
provisions are the following:
‘11.
Unauthorised solemnization of marriage ceremonies forbidden
(1)
A marriage may be solemnized by a marriage officer only.
(2) . . . .
(3)
Nothing in subsection (2) contained shall apply to any marriage ceremony solemnized
in accordance with the rites or formularies of any religion if such a ceremony does not
purport to effect a valid marriage.
29A.
Registration of marriages
(1)
The marriage officer solemnizing any marriage, the parties thereto and two competent
witnesses shall sign the marriage register concerned immediately after such marriage
has been solemnized.
(2)
The marriage officer shall forthwith transmit the marriage register and records

concerned, as the case may be, to a regional or district representative designated as
such under section 21 (1) of the Identification Act, 1986 (Act No. 72 of 1986).’

[13] The purpose of interpretation, is to establish the intention of the parties from the
words used in the context of the document as a whole, the factual matrix surrounding
the conclusion of the agreement and its purpose or (where relevant) the mischief it
was intended to address.2 In Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun
Transport (Edms) Bpk3, with reference to Natal Joint Municipal Pension Fund v
Endumeni Municipality4, this Court affirmed that:
‘Interpretation is the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the context provided
by reading the particular provision or provisions in the light of the document as a whole and
the circumstances attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which the provision appears; the apparent purpose to
which it is directed, and the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective. A sensible meaning is to be preferred to one
that leads to insensible or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to and guard against, the temptation to substitute what they
regard as reasonable, sensible, or business-like for the words actually used. To do so in regard
to a statute or statutory instrument is to cross the divide between interpretation and legislation.
In a contractual context, it is to make a contract for the parties other than the one they in fact
made. The “inevitable point of departure is the language of the provision itself”, read in context
and having regard to the purpose of the provision and the background to the preparation and
production of the document.’

[14] The ordinary meaning of remarriage is to enter into a further marriage
recognised by South African law (legal marriage). The context provides several
indications that this was the meaning of the word remarriage in clause 5.1 of the deed
of settlement. First, the parties used the word in the agreement that regulated the

2 KPMG Chartered Accountants (SA) v Securefin Ltd and Another [2009] ZASCA 7; [2009] 2 All SA 523
(SCA); 2009 (4) SA 399 (SCA) para 39; Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] ZASCA
111; [2015] 4 All SA 417 (SCA); 2016 (1) SA 518 (SCA) paras 27, 28, 30 and 35.
3 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk3 [2013] ZASCA 176;
[2014] 1 All SA 517 (SCA); 2014 (2) SA 494 (SCA).
4 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) para 18.

consequences of the dissolution of their legal marriage. In the absence of an indication
to the contrary, the parties must be taken to have intended a remarriage of the same
status, ie a legal marriage. Second, clause 5.1 echoed the phrase ‘until death or
remarriage’ in s 7(2) of the Divorce Act 70 of 1979.5 There the phrase undoubtedly
refers to a legal remarriage. Again, in the absence of an indication to the contrary, the
phrase must have been intended to have the same meaning as in s 7(2). Third, the
very wording of the agreed amendment shows that it introduced into the clause what
was not there before.

[15] Thus, the parties agreed that the first appellant’s duty to maintain the
respondent would lapse when another person becomes legally obliged to maintain
her. But should the respondent cohabitate with a person who de facto contributes to
her maintenance (which on the uncontroverted evidence, Mr Visagie did not), the first
appellant would have the remedy of approaching the maintenance court for a variation
or discharge of the maintenance order under s 6(1) read with s 16(1)(b) of the
Maintenance Act 99 of 1998.The agreement must now be applied to the facts.

[16] Reverend Van Huysteen’s uncontradicted evidence was that he is an ordained
minister and marriage officer in terms of the Marriage Act (s 29A(a)). That on
9 December 2017, he conducted the ceremony between the applicant and Mr Visagie.
However, that ceremony had no legal consequences, as he did not solemnise it in
terms of the Marriage Act. No one signed the marriage register as prescribed in the
Marriage Act (s 29A(b)). He did not pronounce the applicant and Mr Visagie to be
husband and wife to those in attendance of the ceremony. On the contrary, he
expressly informed the audience that no legal marriage was concluded. Nor did he
after the ceremony transmit the marriage register and other relevant documents to a
regional or district representative at the Department of Home Affairs (s 29A(c)).

5 Section 7(2) 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 breakdown 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.’ (Emphasis added.)

[17]  In terms of s 29A of the Marriages Act the requirements for the registration of a
valid marriage are that:
(a)
the solemnization of the marriage is done by a marriage officer designated in
terms of the Marriage Act;
(b)
the (i) parties to the marriage together with the (ii) marriage officer and (iii) two
witnesses are required to sign the marriage register immediately after such
solemnization;
(c)
the marriage officer is thereafter charged to forthwith transmit the marriage
register and other relevant documents to a regional or district representative
designated as such under s 21(1) of the Identification Act 72 0f 1986, at Home Affairs.
None of these requirements were fulfilled during the ceremony. Thus, the finding of
the high court that there was no ‘remarriage’ cannot be faulted.

[18] Counsel for the respondent fairly, and correctly, conceded that the high court
erred in holding the first appellant in contempt of court. In the respondent’s founding
affidavit, it was expressly stated that the alleged contempt of court consisted of non-
payment of maintenance since April 2018. That was the case that the first appellant
had been called upon to answer. As I have said, the high court in fact held that the first
appellant did not commit contempt of court in this regard. In the circumstances it erred
in holding that the first appellant was in contempt of court in respect of deductions that
he had made from the monthly amount prior to April 2018. On the evidence, the bulk
of these deductions were in any event in respect of the respondent’s medical fund
contributions and were made with her consent.

[19] As I have said, this Court granted leave to the second appellant to appeal
against the de bonis propriis costs order. Before us, counsel for the respondent rightly
conceded that the order was vitiated by procedural unfairness. In this regard the high
court referred to two matters. First, it said, ‘the application was served on Mr Augustyn
during October 2018’. Second, it stated:
‘[o]n Monday, the 4th of March 2018 when the matter was called, I insisted that Mr Augustyn
be present in court to explain why a de bonis propriis costs order should not be granted against
him. He thus had an opportunity until Tuesday, 5 March 2019 when this matter was argued to
provide such an affidavit. None was forthcoming. In my view, Mr Augustyn has had ample

opportunity to provide an explanation to this court, as to why he should not pay costs de bonis
propriis and he failed to do so.’

[20] But the second appellant was not a party to the application in the high court.
His firm merely accepted service of the respondent’s application on behalf of the first
appellant. The mere fact that the second appellant had in these terms been informed
to attend the hearing the following day, did not give expression to the entrenched audi
alteram partem principle. The second appellant was not informed of the purported
grounds for a de bonis propriis costs order and was not provided a fair and proper
opportunity to explain himself.

[21] There was also no substantive ground for the order. It is settled law that
generally a court would only grant a costs order de bonis propriis against an attorney
in cases that involve gross incompetence or gross disregard of professional
responsibilities, dishonesty, wilfulness, or negligence of a serious degree.6 The high
court based the de bonis propriis costs order (and the attorney and client costs order
against the first appellant) on the propositions that in both the maintenance court and
in the papers before it, the first appellant, upon the advice of the second appellant,
had relied on the obvious error in the deed of settlement as a substantive defence to
the claim for payment of maintenance. It was wrong on both scores. The first appellant
did not appear in the maintenance court. He appeared on a criminal charge in the
criminal court. In facing a criminal charge, it was perfectly reasonable to put forward
what I have quoted in para 5 above. The first appellant did not rely on the error as a
defence in the high court. He expressly accepted that it was a patent error and
defended the matter, as I have said, on the basis that his admitted liability to pay
maintenance had lapsed. For the same reasons, attorney and client costs against the
first appellant were not justified.

[22] Paragraph 1 of the order of the court a quo was granted by agreement, was not
appealed against and must stand. For the reasons stated, the rest of the order of the
court a quo does not withstand scrutiny. The first appellant and the respondent,
sensibly, agreed that a declarator would be to the benefit of the parties in order to

6 Pheko v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6)
BCLR 711 (CC) para 51 and 54. See also Stainbank v South African Apartheid Museum at Freedom
Park and Another [2011] ZACC 20; 2011 (10) BCLR 1058 (CC) paras 52-54.

arrange their affairs accordingly. It is fair and just that the first appellant and the
respondent pay their own costs of appeal. The respondent did not abandon the costs
order against the second appellant but attempted to defend it in the heads of argument
filed in this Court. In the result the respondent should pay the second appellant’s costs
of appeal.

[23] In the result, the following order is granted:
(a)
The appeal is upheld.
(b)
The order of the court a quo is set aside and replaced with the following:
‘1. Paragraph 5.1 of the settlement agreement between the parties made an order of court on
28 August 2017 is amended/varied to read as follows and with effect from date of this order
“The Defendant shall pay an all-inclusive amount of R10 000 (Ten Thousand Rand)
maintenance to the Plaintiff per month until her death or remarriage and/or cohabitation with
another man in a common law marriage whichever occurs first.”
2.
It is declared that the ceremony that had been performed in respect of the
applicant and Mr Riaan Visagie on 9 December 2017, did not constitute a remarriage
within the meaning of the said deed of settlement between the parties.
3.
The respondent is directed to pay the costs of the application.’
(c)
There is no order as to the costs of the first appellant and the respondent on
appeal.
(d)
The respondent is directed to pay the costs of appeal of the second appellant.

________________________
B C MOCUMIE
JUDGE OF APPEAL

Makgoka JA (dissenting)

[24] I have had the benefit of reading the main judgment by my colleague,
Mocumie JA. I agree with it, save for the reasoning and conclusion on the
interpretation of the ‘re-marriage clause’ in the settlement agreement, as well as the
costs order as between the first appellant and the respondent.  The main judgment
declares that ‘the ceremony … performed in respect of the applicant and Mr Riaan
Visagie on 9 December 2017, did not constitute a remarriage within the meaning of
the …deed of settlement between the parties.’ I conclude, in the specific context of
clause 5.1 of the parties’ settlement agreement, that the respondent and Mr Visagie
indeed entered into a ‘re-marriage’.
[25] The relevant facts are common cause. The first appellant and the respondent
were previously married. They divorced on 28 August 2017. Their decree of divorce
incorporated a settlement agreement which was made an order of court. Paragraph
5.1 thereof obliged the first appellant to pay R10 000 maintenance monthly to the
respondent ‘until her death or remarriage, whichever occurs first…’. A month and half
later, on 13 October 2017, the respondent announced to the world via the social
medium of Facebook,7 that she and Mr Visagie, with whom she had been cohabiting,
were getting married on 9 December 2017 in a church ceremony in Montana, Pretoria.
[26] After that date, the respondent’s Facebook page depicted, among others
things, photos of the ceremony, which in all respects, resembled a marriage
consummation: the respondent was dressed in a wedding dress; she was escorted
into the church by a male person; the respondent and Mr Visagie stood in front of a
priest, and later knelt while being blessed by the priest, and the couple exchanged
wedding rings. The ceremony was witnessed by the couple’s families and friends. Mr
Visagie also updated his Facebook status to ‘Married Hazel Bailey’, in reference to the
respondent. Later, on Mr Visagie’s birthday, the respondent posted a birthday
message for the latter on Facebook, referring to him as ‘the best husband ever.’

7 Facebook is an American online social media and social networking service.

[27] Unsurprisingly, the above developments caught the first appellant’s interest, as
the respondent’s marriage would have a direct bearing on his maintenance obligation
towards the respondent. As stated already, that obligation would lapse upon the
respondent’s re-marriage. Shortly after becoming aware of the ceremony, the first
appellant sought confirmation from the respondent that she was indeed married to Mr
Visagie, which the respondent denied.  His further investigation revealed that, at the
request of the respondent and Mr Visagie, the priest who presided over the ceremony
neither completed the marriage register nor registered the marriage, as the respondent
sought to avoid the lapsing of the first appellant’s maintenance obligation. On advice
from his attorney, the first appellant stopped paying maintenance to the respondent.
[28] As a result, the respondent laid a complaint against the first appellant in the
magistrate’s court for failure to pay maintenance for the period September 2017 to
February 2018. The maintenance court dismissed the complaint based on an artificial
ambiguity due to a patent error in the settlement agreement where in respect of the
maintenance obligation, ‘defendant’ was used instead of ‘plaintiff’. The respondent
appealed to the court a quo, before which the first appellant contended that his
maintenance obligation towards the respondent had lapsed because the latter Mr
Visagie were married. The court concluded that because the registration formalities
prescribed in s 29A of the Marriages Act had not been observed, there was no ‘valid
marriage’ and thus the first appellant’s maintenance obligation to the respondent had
remained extant.
[29] As a prelude to my consideration of the ‘re-marriage clause’ in the settlement
agreement, I make a general observation that the concept of ‘marriage’ has taken an
elastic nature over the past decade or two. For example, African customary, Muslim,
Hindu and Jewish, and same-sex unions have become accepted as ‘marriages’.
Although none of the ceremonies performed in terms of these unions comply fully with
the strict prescripts of s 29(A), they give rise to legal consequences of a marriage.
[30] The fatal flaw in the court a quo’s judgment is that it did not consider the context
of clause 5.1 of the settlement agreement. As Lord Steyn famously remarked, ‘In law,

context is everything.’8 By narrowly focusing on whether the ceremony conducted on
9 December 2017 constituted a marriage, the court a quo asked a wrong question,
and consequently, it was led astray in its analysis of the ‘re-marriage clause.’ The
correct enquiry, to my mind, should have been whether the relationship between the
respondent and Mr Visagie constituted a ‘re-marriage’ as envisioned in the settlement
agreement. Viewed in this light, instead of it being the sole and focal point of the
enquiry, the ceremony was but one of the factors to be taken into account in answering
the contextual question.
[31] It is common cause that the respondent and Mr Visagie cohabited, and for all
intents and purposes, lived as husband and wife. According to the respondent, she
and Mr Visagie are Christians, and in terms of their faith, any sexual relationship
outside the confines of a marriage is sinful. The ceremony on 9 December 2017, she
explained, was to ‘legalise our relationship before God and not to live in sin’. It is not
clear how an avowedly ‘sinful’ relationship can be ‘legalised’ before God. Be that as it
may, the respondent’s assertion confirms the depth of the relationship as being akin
to that of a husband and wife.
[32] This, in my view, is the context within which the word ‘re-marriage’ in the
settlement agreement should be construed. The word was used in the context of
providing maintenance for the respondent. The agreement was premised on an
archaic and sexist notion that the respondent needed a man to financially maintain
her. Whether the man she ‘re-married’ in fact supported her financially or was able to
do so, was irrelevant to the first appellant’s maintenance obligation to the respondent.
As soon as she ‘re-married’, that obligation would lapse. Seen in this light, and given
the nature of the relationship between the respondent and Mr Visagie, the latter fulfilled
the purpose for which the clause was inserted in the settlement agreement. The
ceremony on 9 December 2017 was but a confirmation of a de facto state of affairs
between the respondent and Mr Visagie.

8 In R v Secretary for the Home Department, ex parte Daly [2001] 3 All ER 433 (HL) at 447. This was
approved in Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para 1.

[33] Regarding the ceremony itself, but for the non-completion of the marriage
register, it was a complete marriage ceremony. It should be borne in mind that the
non-completion of the marriage register was not an oversight or a mistake. It was a
conscious decision aimed singularly at preventing the ‘re-marriage’ clause in the
settlement agreement from kicking in. It was a manipulation of the law, concocted by
the respondent and aided by a priest, to frustrate the eventuality which the parties had
clearly in mind when concluding the settlement agreement. And to the extent it was
assumed that the new man in the respondent’s life would automatically support her, it
follows that Mr Visagie should be assumed to have done so. It is irrelevant that he
says he did not. The result was, at least notionally, that the respondent enjoyed
maintenance from the first appellant and Mr Visagie. This, in my view, is a contrived
and disingenuous scheme which a court should frown upon, instead of giving it its
imprimatur.
[34] What is more, when interpreting documents, courts are enjoined to avoid a
construction that leads to absurd results. In the present case, it is clear that the parties
envisaged that once the respondent cohabited with another man in a relationship akin
to that of husband and wife, the first appellant’s maintenance obligation to the
respondent would lapse. The mischief intended to be addressed by the ‘re-marriage
clause’ was the respondent being maintained simultaneously by the first appellant and
a man she cohabitated with. By construing the clause within the strict prescripts of s
29A, the result is that the respondent received maintenance from two men: exactly
what the parties had intended to avoid. In the court a quo, the respondent agreed to
an amendment of the settlement agreement to the effect that, for future purposes ‘re-
marriage’ would include her cohabitating with another man in a common law marriage.
To my mind, far from signalling a different intention, it confirms the parties’ true, original
intention when the settlement agreement was concluded.
[35] For these brief reasons, I am unable to agree with para 2 of the order of the
majority judgment, as well as the costs order as between the first appellant and the
respondent. Given the view I take of the matter, I would order the respondent, in
addition to the second respondent’s costs, to pay the first appellant’s costs. Her
reprehensible conduct deserves that much.

[36] Other than that, I am in full agreement with the rest of the order of the majority
judgment and the reasoning underpinning it.

____________________
T M MAKGOKA
JUDGE OF APPEAL

Appearances:

For appellants:

E Prinsloo
Instructed by:
Wilsenach Van Wyk Goosen & Bekker Inc., Pretoria
Bezuidenhout Inc., Bloemfontein.

For respondent:

J J Strijdom SC
Instructed by:

Rianie Strijdom Attorneys, Pretoria
Symington De Kok Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Bailey and Another v Bailey (Case no 1324/2019) [2020] ZASCA 178 (18 December 2020)

From:
The Registrar, Supreme Court of Appeal
Date:
18 December 2020
Status:
Immediate
Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.
Today, the Supreme Court of Appeal (SCA) upheld the appeal by the appellant and set aside the
order of the court a quo with the respondent paying the second appellant’s costs of appeal.
The marriage of the first appellant, Mr Casper Hendrik Bailey, and the respondent, Mrs Hazel
Johanna Cicelia Bailey, was dissolved by a court order incorporating a settlement agreement which
they had concluded. The main issue for determination in this appeal was the interpretation of the word
‘remarriage’ in the settlement agreement. The appeal was with leave of this Court.
The first appellant and the respondent were married in community of property. They separated in
June 2016 with the common intention to divorce. The respondent then initiated divorce proceedings
against the first appellant. Pending the finalisation of the divorce proceedings, they entered into
negotiations which led to the signing of the settlement agreement. A decree of divorce was granted
incorporating the signed settlement agreement which was made an order of the court. After the
divorce, the respondent cohabited with Mr Visagie. Later, Reverend van Huyssteen, a minister of the
Dutch Reformed Church, conducted a ceremony during which he blessed and sanctioned their
cohabitation so that they would not ‘live in sin.’ The ceremony between the respondent and Mr
Visagie later came to the attention of the first appellant. Upon the advice of the second appellant, the
first appellant stopped paying maintenance to the respondent on the basis that the respondent had
remarried, thus ending his duty to maintain her.
The respondent approached the high court where she sought to hold the first appellant in contempt of
a court order for his failure to pay maintenance since April 2018 in accordance to the settlement
agreement. The first appellant filed a conditional counter-application in which he sought a declaratory
order that on 9 December 2017 in the Dutch Reformed Church Montana; the respondent and Mr
Riaan Visagie concluded an unregistered common law or Christian relationship of cohabitation as
husband and wife, and, as a result of which his duty to pay maintenance had lapsed.

The high court held that the ceremony conducted in respect of the respondent and Mr Riaan Visagie
did not constitute remarriage. It further held that the meaning of the word did not include cohabitation,
as the first appellant had contended. In this Court, it was held that the purpose of interpretation, is to
establish the intention of the parties from the words used in the context of the document as a whole,
the factual matrix surrounding the conclusion of the agreement and its purpose or (where relevant)
the mischief it was intended to address. The SCA noted that the ordinary meaning of remarriage is to
enter into a further marriage recognised by South African law (legal marriage).
The SCA in its majority judgment held that none of the requirements set out in s 29A of the Marriages
Act for the registration of a valid marriage were fulfilled during the ceremony. Although the SCA found
that the high court was correct in holding that the ceremony was not a "remarriage", it expanded on
the meaning of "remarriage" in the context of the settlement agreement to not include "cohabitation"
as propounded by the appellant. It however, upheld the appeal on the grounds that the settlement
agreement should be amended to read as the appellant sought in the high court ie to include
"cohabitation" under clause 5.1 as the appellant sought in his counter claim in the high court, which
was not granted. The order of the court a quo was set aside and the SCA upheld the appeal against
the cost order debonis propris in respect of the second appellant. It ordered the respondent to pay the
costs of the appeal in so far as the second appellant was concerned as she only conceded before the
SCA that the high court erred in that regard.
The minority judgment, Makgoka JA, held that for the reasons advanced in his judgment, he was
unable to agree with the majority finding that the ceremony did not constitute a remarriage within the
meaning of the deed of settlement between the parties, as well as the costs order as between the first
appellant and the respondent. Given the view, Makgoka JA took of the matter, he would order the
respondent, in addition to the second appellant’s costs, to pay the first appellant’s costs. Other than
that, the minority judgment was in full agreement with the rest of the order of the majority judgment
and the reasoning underpinning it.