THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 603/08

FRED KRUGER NO
Appellant

and

DENISE EMMERENTIA GOSS

First Respondent

MASTER OF THE HIGH COURT

Second Respondent

________________________________________________________________

Neutral citation:
Kruger v Goss and another (603/08) [2009] ZASCA 105
(21 September 2009)

CORAM:

NAVSA, BRAND and PONNAN JJA

HEARD:

14 September 2009
DELIVERED:
21 September 2009
CORRECTED:

SUMMARY: Rehabilitative maintenance order ─ claim against deceased
estate ─ s 7(2) of the Divorce Act 70 of 1979 and the common law
discussed ─ claim held not to be enforceable.

________________________________________________________________

________________________________________________________________
ORDER
________________________________________________________________

On appeal from:
High Court, Pretoria (Hartzenberg J sitting as court of first
instance).
1.
The appeal is upheld with costs.
2.
The order of the court below is set aside and substituted as follows:
‘The application is dismissed with costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________

NAVSA JA (BRAND and PONNAN JJA concurring):

[1] The question in this appeal is whether an order for rehabilitative
maintenance, pursuant to a decree of divorce, is enforceable by a spouse
against her former husband’s deceased estate.

Background

[2] The respondent, Ms Denise Emmerentia Goss, and Mr Fred Loll
Stephanus Kruger married each other on 23 March 1988. The marriage was out
of community of property with the exclusion of the accrual system as
contemplated in Chapter 1 of the Matrimonial Property Act 88 of 1984.

[3] Approximately three and a half years later they were divorced by order of
the Pretoria High Court (Hartzenberg J). The divorce order was granted after a
trial lasting a week. The respondent had no capital claim against her former
husband and had restricted her claim to one for rehabilitative maintenance. The
relevant part of the order reads as follows:
‘ “2.
THAT the Plaintiff is to pay rehabilitative maintenance to the Defendant as follows:

2.1
R8 000-00 per month for the months of October, November and December 2003;

2.2
R6 000-00 per month for the next 57 months;

2.3
All payments are to be paid on or before the 3rd day of each month;

2.4
If the Defendant becomes employed and earns an income, the Plaintiff will not be

entitled to advance that income as changed circumstances for purposes of an

alteration of the maintenance order.” ’

[4] Subsequent to the divorce proceedings and the order referred to above,
Mr Kruger, to whom I shall hereafter refer as the deceased, duly and punctually
paid rehabilitative maintenance to the first respondent until 31 August 2006. He
passed away on 29 September 2006 due to natural causes. By this time the
deceased had paid 33 of the envisaged 57 monthly instalments.

[5] On 13 February 2007 the deceased’s son, Mr Fred Kruger, was appointed
executor of the latter’s estate. The first respondent lodged a claim against the
deceased’s estate for the remainder of the rehabilitative maintenance, which she
considered due to her. This amounted to R144 000, which was calculated as
follows: 24 months x R6 000. The executor, after taking legal advice, rejected the
claim.

[6] Not surprisingly, this led to the litigation culminating in the present appeal.
During March 2008 the first respondent launched application proceedings in the
Pretoria High Court against Mr Kruger, in his capacity as executor of the
deceased’s estate. She sought an order declaring that the estate was liable to
pay her rehabilitative maintenance. More specifically, she sought an order for
payment of the amount of R144 000, with interest a tempore morae.

[7] As fate would have it the matter once again came before Hartzenberg J,
who granted the relief sought by the first respondent and ordered the executor,
the appellant herein, to pay her costs.

[8] It is against that order, with the leave of the court below, that the present
appeal is directed.

Conclusions

[9] Section 7 of the Divorce Act 70 of 1979 provides for the division of assets
and the maintenance of parties. The relevant part of s 7(2) provides that a court,
in the absence of an agreement, 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, … 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.’ (My
emphasis).

[10] As can be seen, the power to grant maintenance is confined not to the
duration of the life of the spouse liable to pay, but rather to the life of the
beneficiary spouse. This legislative provision should, however, not be viewed in
isolation. The common law viewed the duty of support which spouses owed each
other, and consequently the liability for maintenance, as incidents of their
matrimonial relationship. Termination of the relationship by death brought that
duty to an end.1

[11] The Maintenance of Surviving Spouses Act 27 of 1990 (the MSSA)
allowed widows and widowers, in specified circumstances, to be maintained from
the estates of their late partners.2 Up until the promulgation of the MSSA there
was no such entitlement. The MSSA was limited legislative intervention, altering

1 See Glazer v Glazer NO 1963 (4) SA 694 (A).
2 Section 2(1) provides:
‘If a marriage is dissolved by death after the commencement of this Act the survivor shall have a
claim against the estate of the deceased spouse for the provision of his reasonable maintenance
needs until his death or remarriage in so far as he is not able to provide therefor from his own
means and earnings.’

the common law to the extent set out therein. The common law rule remained
otherwise untouched.

[12] It can hardly be argued that before the MSSA came into being, divorced
persons, whose erstwhile spouses had died, were in a more favourable position
than widowed ones, giving them ‘rights against the estates of people no longer
married to them at the time of death which widowed spouses did not enjoy
against the estates of those to whom they were then still married.’3

[13] I agree with the conclusion reached by Didcott J in Hodges v Coubrough,4
that s 7(2) of the Divorce Act cannot be construed so as to alter the common law
position reflected in para 10 above. The following passage from that case (at
64E-F) is worth noting:
‘Had [the legislature] meant something so surprising, something so startling, it would surely have
spelt out the meaning. It would hardly have left such to be conveyed by the sidewind of generally
worded provisions which, while accommodating the idea linguistically, dealt with it obliquely and
elliptically.’

[14] The court below held that s 7(2) was inapplicable, in that, rehabilitative
maintenance is ‘an animal of its own’, and if ordered in the terms referred to in
para 3, the estate of ‘the maintaining spouse’ is liable to pay the outstanding
maintenance. On that basis the court below granted the first respondent the relief
sought.

[15] Counsel on behalf of the first respondent rightly conceded before us that if
rehabilitative maintenance is to be regarded as a species of maintenance the
appeal should succeed. Rehabilitative maintenance is most certainly a species of
maintenance. I cannot imagine how rehabilitative maintenance can be
maintenance of a kind that does not fall within the ambit of s 7(2) of the Divorce
Act. For this reason alone the appeal should succeed. There are further

3 Per Didcott J in Hodges v Coubrough 1991 (3) SA 58 (D & CLD) at 64B-E.
4 Op cit 64E-G.

considerations that militate against the conclusion reached by the court below,
which are alluded to hereafter.

[16] Of course a spouse is free to agree to bind his/her estate to pay
maintenance after death. That is not what occurred in the present case.  To allow
maintenance claims of the kind encountered here against deceased estates
might have all sorts of undesirable consequences. The legitimate claims to
maintenance of minor children might be diminished or excluded. And, the rights
of beneficiaries might be implicated. Section 3(b) of the MSSA provides that a
claim for maintenance of a surviving spouse shall have the same order of
preference against the estate of the deceased spouse as a claim for
maintenance of a dependant child of such deceased person and that in the event
of competing claims, each shall, if necessary be reduced proportionately.
Theoretically, a claim for maintenance such as the present one could compete
with the claim of a surviving spouse and with claims by dependant children and
beneficiaries. In the absence of legislative regulation the permutations and
uncertainties abound.

[17] Furthermore, maintenance is always relative to the means and needs of
the respective spouses. In the present case the earning capacity of the first
respondent was held not to be a changed circumstance on which the deceased
could rely to seek a variation of the maintenance order. The propriety of that
aspect of the order appears to be doubtful. But that issue is not before us.  In any
event, that portion of the order did not preclude the deceased from approaching a
maintenance court to seek a variation based on a diminution in or lack of means.
Remarriage was not excluded. To subject a deceased estate to assessments of
this kind is not only undesirable but appears to me to offend against first
principles.

[18] If there is to be intervention of any kind it should be by the legislature on
an informed and well-considered basis. For the moment the legislature is content
with s 7(2) of the Divorce Act. So too, should we be.

[19] The following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court below is set aside and substituted as follows:
‘The application is dismissed with costs.’

_________________
M S NAVSA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
M C Erasmus SC

Instructed by

Du Plessis Attorneys Sandton

Symington & De Kok Bloemfontein

For Respondent:
L C Matthysen

Instructed by

Chris Kotzé & Partners c/o Hendriëtte Müller Attorneys Pretoria

McIntyre & Van Der Post Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
21 September 2009
Status:
Immediate
Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

On 21 September 2009 the Supreme Court of Appeal handed down judgment
in Fred Kruger NO v Denise Emmerentia Goss and another. It overturned a
judgment of the Pretoria High Court which held that an order for rehabilitative
maintenance pursuant to a decree of divorce is enforceable by a wife against
her former husband’s deceased estate.

The first respondent, Ms Denise Emmerentia Goss, and Mr Fred Loll
Stephanus Kruger married each other on 23 March 1988. The marriage was
out of community of property with the exclusion of the accrual system as
contemplated in Chapter 1 of the Matrimonial Property Act 88 of 1984.
Approximately three and a half years later they were divorced by order of the
Pretoria High Court (Hartzenberg J). The divorce order was granted after a
trial lasting a week. The respondent had no capital claim against her former

husband and had restricted her claim to one for rehabilitative maintenance.
The court granting the divorce order made an order, inter alia, that Mr Kruger
pay Ms Goss R6 000 per month for 57 months.

Subsequent to the divorce proceedings and the order referred to above,
Mr Kruger duly and punctually paid rehabilitative maintenance to the first
respondent until 31 August 2006. He passed away on 29 September 2006
due to natural causes. By this time he had paid 33 of the envisaged 57
monthly instalments.

After his death the deceased’s son, Mr Fred Kruger, was appointed executor
of his estate. Ms Goss lodged a claim against the deceased’s estate for the
remainder of the rehabilitative maintenance, which she considered due to her.
This amounted to R144 000, which was calculated as follows: 24 months x
R6 000. The executor, after taking legal advice, rejected the claim.

During March 2008 the first respondent launched application proceedings in
the Pretoria High Court against the executor. She sought an order declaring
that the estate was liable to pay her rehabilitative maintenance. More
specifically, she sought an order for payment of the amount of R144 000
together with interest.

The Pretoria High Court granted the relief sought by her and also ordered the
executor, the appellant in this case, to pay her costs.

The SCA, with reference to s 7(2) of the Divorce Act 70 of 1979, and after
considering the common law, held that the duty of support which spouses owe
each other and consequently the liability for maintenance are incidents of their
matrimonial relationship. Termination of that relationship by death brought the
duty to an end. The SCA held that the court had erred in enforcing the first
respondent’s claim against her former husband’s deceased estate. It noted
that a spouse is free to agree to bind his or her estate to pay maintenance

after death but that is not what occurred in the present case. To allow claims
of this kind might have all sorts of undesirable consequences. The legitimate
claims to maintenance of minor children might be diminished or excluded. And
the rights of beneficiaries may be implicated. A claim such as the one in
question could compete with the claim of the surviving spouse and with claims
by dependant children and beneficiaries. In the absence of legislative
regulation the permutations and uncertainties abound.

The appeal was upheld with costs.