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[2016] ZAWCHC 154
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L.S v G.A.S (2558/2016) [2016] ZAWCHC 154 (26 August 2016)
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IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE DIVISION
CAPE TOWN)
CASE
NUMBER
: 2558/2016
DATE
:
26 AUGUST 2016
In the matter between:
L
S
APPLICANT
and
G
A
S
RESPONDENT
J
U D G M E N T
DAVIS,
J:
This
matter concerns important questions with regard to an application in
terms of rule 43 of the Uniform Rules of the High Court.
These
questions are triggered by the present application in which the
applicant
inter alia
seeks orders regulating interim care contact arrangements in respect
to the parties’ minor child (“G”) as well
as
maintenance
pendente lite
for herself and G as from 1 March 2016, together with an initial
contribution towards legal costs in the amount of R50 000
and
costs of the application on a punitive scale.
The
respondent has raised a point
in limine
in that this application was launched prior to any institution of a
divorce action. According to respondent it falls to be dismissed
with
costs on this basis alone.
Counsel for both parties
were requested by the Court to furnish heads of argument in relation
to this point, which has implications
which range far wider than
merely the vindication of the interests of the two parties.
Accordingly, I am indebted to both
Mr Steenkamp, on behalf of the
applicant, and Mr Newton, on behalf of the respondent, for carefully
considered heads of argument
which have proved invaluable to me in
the disposition of this case.
RULE
43:
Rule
43 provides
inter alia
as follows:
This rule should apply
whenever a spouse seeks relief from the Court in respect of one or
more of the following matters:
(a)
Maintenance
pendente
elite
(b)
A contribution towards the costs of a
pending matrimonial action
(c)
Interim custody of any child
(d)
Interim access to any child.
In
their commentary on this rule, Herbstein & Van Winsen
Civil
Practice of the High Courts and Supreme Court of Appeal of South
Africa
(5
th
ed) at 1532 say:
“
The
means as provided by rule 43 for an expeditious, and it is to be
hoped, inexpensive method, of deciding a number of interlocutory
matters arising out of matrimonial proceedings such as those relating
to interim custody of children, interim access to them, interim
maintenance of spouses and children and contributions towards costs.
The rule refers only to pending matrimonial disputes
and has no
application to any matrimonial dispute that has come to an end by a
final divorce or to any other type of action between
spouses. “
In similar fashion, the
authors of Erasmus
Superior Court Practice
Vol 2 at D1-579
state:
“
Rule
43 deals only with pending matrimonial disputes and has no
application to any matrimonial dispute which has come to an end
by a
final divorce.”
Mr
Newton submitted that the following features of Rule 43 can be
identified:
1.
The rule which is headed “Matrimonial
Matters” only applies to matrimonial disputes and not to any
other type of action
between spouses.
2.
The rule is intended to regulate certain
interlocutory matters arising out of matrimonial proceedings.
Orders made in terms
of the Rule are therefore of an interlocutory
nature.
3.
The Rule only applies to a pending
matrimonial dispute and it automatically ceases to apply once that
matrimonial dispute comes
to an end, whether by a final decree of
divorce or as a result of the withdrawal of the relevant action.
A
“PENDING” DISPUTE
Erasmus
at D1-578 suggests that:
“
A
matrimonial action may be ‘pending’ even though summons
has not yet been issued.”
We
have arrived at the critical question in the present case as it is
common cause that no divorce action has yet been instituted
by either
party.
As
authority for his proposition, Erasmus relies on three cases
Bienenstein v Bienenstein
1965(4) SA 449(T) at 451,
Varkel
v Varkel
1967(4) SA 129(C) at 131 and
Noah v Union National
South British Insurance Company Limited
1979(1) SA 330(T) at 332.
Turning
to these three cases, in Bienenstein, supra,
De Villiers
, AJ
with regard to Rule 43(1)(b) said:
“
That
has been interpreted to mean not only after summons is issued but
also in respect of a proposed matrimonial action.”
No
authority was cited for this proposition in this judgment. It
was merely a statement by the learned Judge without more.
In
Varkel
, supra,
Van Winsen
, J in dealing with a review
of taxation stated:
“
Rule
43 was devised and promulgated with the object of providing an
expeditious and inexpensive procedure for obtaining interim
relief in
matters relating to matrimonial disputes pending or about to be
instituted…” This much is I think
clear from the
tenor of the Rule read as a whole.
As
authority for this proposition, the learned Judge referred to two
cases, namely
Colman v Colman
1967(1) SA 291(C) and
Zaphiriou
v Zaphiriou
1967(1) SA 342(W). In
Colman
,
supra,
summons was issued on the 3
rd
August 1966 and it appears
that the application in terms of Rule 43 was heard before the Court
on the 7
th
September 1966; hence the case holds no
application for the present dispute. In short summons was issued in
this case before the
Rule 43 application was heard, which is the
converse of the present situation.
Although
the Court in
Zaphiriou
, supra, dealt with a Rule 43
application, which was launched prior to the issue of a divorce
summons, the issue in dispute was
whether the rule could apply where
validity or existence of the marriage itself was in dispute.
The Court held that it so
applied.
Trollip
,
J (as he then was) said at 345:
“
There
is therefore good authority that in the common law even though the
validity of the marriage was being disputed nevertheless
the Court
had jurisdiction in the preliminary application proceedings to award
maintenance and the contribution towards costs pending
an action to
determine that fundamental dispute. And I have no doubt that
that applies equally, if not
a fortiori,
where, although the validity of the marriage is admitted its
continued subsistence is disputed, as in the present case.
Rule
43 was merely designed to provide a streamlined and inexpensive
procedure for procuring the same interim relief in matrimonial
actions as was previously available under the common law in regard to
maintenance and costs, and I think therefore, that Rule 43
must be
construed accordingly; in other words that ‘spouse’ in
sub rule (1) must be interpreted as including not only
a person
admitted to be spouse but also one who alleges that he or she is a
spouse and that allegation is denied. In other
words the Rule
also applies where the validity of the marriage or its subsistence is
disputed.”
For
this reason,
Trollip
, J was not specifically required to
address the question of whether a Rule 43 application may be
instituted prior to the issuing
of a divorce summons. Again the
authority cited in Varkel, for support of its conclusion being
Zaphiriou, is hardly authority
for the proposition which was
advanced.
In
Noah v Union National South British Insurance Company Limited
supra
Eloff
, J was called upon to decide the meaning of
the word ‘pending’ as used within the context of an
insurance policy which
provided that an insurance liability would
cease after expiry of 12 months from the happening of the loss…
unless the claim
is a subject of pending action or arbitration.”
After
referring to the Shorter Oxford English Dictionary’s definition
of pending as “remaining undecided, awaiting settlement”
and also including “impending” as a possible meaning of
the word which is defined as
inter alia
“to be able to
happen, to be imminent”,
Eloff
, J said:
“
There
are decisions indicating that the word ‘pending’ is
capable of the meaning of something which has not yet started.”
332 B-F.
As
an example,
Eloff
, J referred to the statement in Bienenstein
at 451 E and went on to say:
“
[I]t
was the context of the Rule which dictated the extended use of the
word ‘pending’. Whenever reference is
made in
procedural matters to something which has to be done or omitted
‘pending the decision action’ it is, I think,
implicit
that that action either has been or will be instituted The same
applies to the use of the phrase ‘pending
action’, which
is usually employed in relation to the G. of interim interdicts: it
frequently refers to an action which has
not been instituted but
which is
about
to be instituted; if it is not instituted in a period which is
usually fixed the interim relief ‘
pendente
lite
’ normally falls away.
In that setting the somewhat loose and possibly extended use of the
word ‘pending’
is understandable.” (My emphasis)
332H-333A
The
issue whether the Rule 43 may be invoked prior to the issue of
summons has most recently been dealt with by
Seriti
, J (as he
then was) in
Moolman v Moolman
(unreported decision
2007
ZAGPHC 273:
15 November 2007). After reviewing the authorities
in question Sereti, J concluded at paras 11 to 15 as follows:
“
From
the above authorities (
inter alia
Mahlangu & Another v Van Eerden
& Another
2000(3) All SA 321(LCC);
Van Tonder v Van Tonder
2000(1) SA 529(O)) it is clear to me that an action can only pend
once at least summons has been issued. Prior to the issuing
of
summons there can be no talk of a pending action. The intention
of the parties prior to the issuing of summons is irrelevant
…
pending matrimonial action cannot included a proposed matrimonial
action … if an action commences at least with
the issuing of
summons there can be no pending action prior to the issue of
summons…. The proper reading of Rule 43
and the purpose
thereof supports the view that there must be a pending action between
the parties prior to the launching of the
Rule 43 and pending action
in my view means at least a divorce summons must be issued.”
For
this reason, Sereti, J concluded that an applicant is not entitled to
approach the Court by way of a Rule 43 application prior
to divorce
summons having been issued.
Mr
Steenkamp, on behalf of the applicant in his attempt to argue to the
contrary, referred to a passage from the judgment in Van
Tonder
supra
at 532:
“
In
my oordeel beteken hangende geding enige aksie waarin die
geskilspunte tussen die partye nog nie finaal oor besleg is nie.
Die feit dat die besonderhede van vordering vir ʼn egskeiding en
gepaardgaande regshulp wel al uitgereik is maar nog nie aan
die
respondent beteken is nie doen geen afbreek aan die omskrywing wat
aan die begrip ‘hangende geding’ gegee is nie.
Dit
is, op die stukke voor my, duidelik dat applikante se ernstige
voorneme is om met die egskeiding geding voort te gaan, vandaar
die
uitreiking van die dagvaarding. Die blote feit dat dit nog nie
op respondent beteken is nie kan nie haar voornemens ongedaan
maak
nie.”
Thus,
Mr Steenkamp submitted that the intention to proceed with a divorce
action would suffice for a triggering of Rule 43.
Furthermore
Mr Steenkamp submitted that
Moolman
, supra, was incorrectly
decided, as the authorities referred to therein had little bearing on
Rule 43 proceedings.
Mr
Steenkamp referred to three key cases upon which Sereti, J had
relied, namely
Marine & Trade Insurance Company Limited v
Reddinger
1966(2) SA 407(A),
Nxumalo v Minister of
Justice
1961(3) SA 663(W) and
Mahlangu
supra
.
In his view, the first related to an insurance claim, the second to
the question of prescription in the context of a damages
claim
against the police and the third to eviction proceedings. None
of these judgments, in his view, had any bearing on
Rule 43
proceedings.
Furthermore,
on a reading of Rule 43 it applied to four separate scenarios,
maintenance
pendent lite
, a contribution towards the cost of a
pending matrimonial action, interim custody of a child and interim
access to a child.
Mr
Steenkamp submitted that it was notworthy from a reading of Rule 43
that a distinction was drawn between maintenance and a contribution
to costs. The former only spoke of
pendente lite
while
the latter referred to costs of a
pending
matrimonial action.
He suggested that nowhere in the rule was there any requisite that
interim custody or interim access
to a trial was dependent upon the
issuing of summons.
He therefore submitted
that given this distinction, it could be accepted, at the very least,
that certain of the components of the
rule, namely maintenance
pendente lite
, interim custody of a child and interim access
to a child could apply, notwithstanding that summons had not been
issued.
EVALUATION
If
Rule 43 was not to apply, save for pending litigation, i.e. a divorce
action, the High Court would certainly remain clothed with
jurisdiction in respect of minor children. It is the upper
guardian of children and it is therefore their interests
that
are protected by the inherent jurisdiction of the Court. Accordingly,
the concept of
pendente lite
has to be given some meaning so
as to confine the scope of the rule. Were it otherwise, Rule 43
would equate to a
rule nisi
without any return date. The
problem could be, on Mr Steenkamp’s argument, that the rule
could apply indefinitely unless
“pending” was given some
clear meaning.
On
the strength of the
Van Tonder
judgment, at the very least,
there would have to be a clear intention, based on evidence, being
for example, an explanatory affidavit,
showing that summons is about
to be issued and providing some explanation for the delay prior
to the institution of a Rule
43 application in order to give
efficacious meaning to the Rule.
In
this case, the Rule 43 application was launched in February
2016 and some six months later no summons had been issued.
Very
belatedly I should add, shortly before the hearing, which was
conducted on the 24
th
August 2016, an explanatory
affidavit from applicant was tendered, that is on the 24
th
August 2016, to the following effect:
“
The
Applicant is suffering financial difficulties, illustrated in Rule 43
application. The Applicant, acting on my advice,
the affidavit
is deposed to by Applicant’s attorney) thought it prudent to
focus her limited resources on attempting to settle
the divorce
rather than issuing summons. The Applicant was hopeful
that upon settlement, summons could be issued on
a unopposed basis
with the financial assistance of the Respondent, whose financial
position is after all substantially better than
that of the
Applicant’s …. I moreover assured the Applicant
that the historic legal position (which I had considered
trite until
a few days ago) was that one can institute Rule 43 proceedings in the
absence of pending action.”
This
is a skeletal application at the very best and provides scant reasons
as to why summons was not issued or even, is about to
be issued in
relation to these proceedings. Contemplated litigation must
mean litigation about to be launched, not litigation
that, at best,
remains unexplained and may proceed at a glacial pace at the behest
of the applicant without any further explanation.
In
short, when the Rule 43 is carefully examined the issue of interim
custody of a child and interim access to a child is a residual
jurisdictional power of the Court. Accordingly, the scope of
Rule 43 must be confined to at least a trigger of pending litigation,
that is pending divorce action. Pending must, even on the
authority cited by Mr Steenkamp, mean in the contemplation of the
parties evidenced by some concrete explanation.
For
this reason, it is my view correct for respondent to have raised the
in limine
objection. It is well taken.
However,
in the light of the very narrow differences between the parties
insofar as the respondent offers and counterproposal in
respect of
maintenance (custodial arrangements are not in dispute), judicial
pragmatism inclines towards making an order.
In this particular
case it appears to me that a conditional order would be appropriate;
that is an order which is dependent on
the applicant issuing summons
within a clearly defined period which promotes the expeditious
objectives of Rule 43.
I
have followed the approach adopted by both parties in this regard and
for this reason I make the following order:
1.
G. S. (the minor) shall primarily reside
with the applicant
pendent elite
,
subject to the following contact arrangements:
1.1
The minor shall reside with the respondent
every alternate weekend from 19h30 on a Friday to 1h30 on a Sunday.
1.2
The respondent shall have reasonable
telephonic and text message contact with the minor.
1.3
The contact arrangements may be adapted
between the parties in writing (writing to include email and/or text
messaging).
2.
Subject to paragraph 3 of this order the
respondent is to make the following payments to the applicant
pendent
elite
:
2.1
R6 800.00 per month in respect of
maintenance for G. S. (the minor) with the first payment to be made
on 1 September 2016, to be
repeated monthly on the 1
st
day of the month into a bank account to be nominated by the
applicant.
2.2
Payment of the minor’s school fees
and extramural activities.
2.3
Maintaining the applicant and the minor on
his current medical aid scheme and payment of all reasonable costs of
their medical expenses
not covered by the medical aid.
2.4
The insurance costs in respect of the
applicant’s motor vehicle.
2.5
A contribution to applicant’s legal
fees in the amount of R10 000.
3.
The applicant is required to issue summons
in the proposed divorce action within 7 (seven) days of the issuing
of this order, failure
of which renders her rights in terms of
paragraph 2 to be of no force and effect.
4.
The costs of the current application are
reserved for determination at the trial.
…………………………
DAVIS,
J