About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 136
|
|
K.O (born H) v M.O (6912/2013) [2017] ZAWCHC 136 (21 November 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
6912/2013
In
the matter between:
K
O (born
H)
Applicant/Plaintiff
and
M
O
Respondent/Defendant
Court
:
Acting Justice JH Loots
Heard
:
28 August 2017
Delivered
:
21 November 2017
REPORTABLE
JUDGMENT
[1]
With the present application, the latest in a string of
applications by both parties in what can only be described as an
extremely
acrimonious divorce action, the applicant, in terms of
Uniform Rule 33(4), seeks to have the question of the decree of
divorce
separated from the remaining issues in the action.
[2]
This the applicant has formulated in paragraph 1.1 of
the Notice of Motion, as follows:
“
whether a decree
of divorce should be granted, as claimed by Applicant (Plaintiff in
the main action) in prayer (A) of her Amended
Particulars of Claim
and admitted by Respondent (Defendant in the main action) in
paragraph 1 of his amended Plea, as further amended,
to Plaintiff’s
Amended Particulars of Claim based on the irretrievable breakdown of
the parties’ marriage
”
[3]
Together with the above relief, the applicant seeks, per
prayer 2 of the Notice of Motion:
“
that all further
proceedings in the main action be stayed until the aforementioned
issues have been determined and the decree of
divorce dissolving the
marriage between Applicant and Respondent has been granted
”
.
[4]
The respondent opposes the application.
RELEVANT
CHRONOLOGY
[5]
The parties were married on 16 December 1995, out of
community of property, by antenuptial contract, with the inclusion of
the accrual
system as provided for in Chapter 1 of the
Matrimonial
Property Act 88 of 1984
. They have four children; E (born on
[…] 1996), H (born on […] 1998), J (born on […]
2006) and T (born
on […] 2008). T and J are still
minors, while E and H, although both having reached the age of
majority, are still
reliant on their parents for support.
[6]
The parties separated on 22 November 2012 and have lived
apart ever since, with the applicant also having entered a committed
relationship.
[7]
It is common cause the parties’ marriage
relationship has broken down irretrievably; with the result that, on
6 May 2013,
the applicant instituted divorce proceedings.
[8]
In November 2014 Nuku J certified the matter trial
ready, with the result that 15 April 2015 was allocated as the
date on which
the trial was to proceed.
[9]
In December 2014 the applicant instituted proceedings in
terms of Uniform
Rule 43
for a contribution of the monthly
maintenance requirements of the children.
[10]
On 19 February 2015, Blignault J, by agreement between
the parties,
inter alia
,
made the parenting plan annexed to the draft order that served before
him an order of court; and ordered that, pending the determination
of
the divorce action, the respondent shall continue to contribute to
the maintenance of the parties’ children as set out
in the
order.
[11]
On 15 April 2015 the trial was postponed to 4 August
2015.
[12]
On 28 April 2015, the applicant’s Rule 43
application (under case number 21450/14) was heard pursuant to which
Ndita J, on
29 April 2015, granted an order in terms of which the
respondent was ordered to pay a monthly cash contribution in the
amount of
R28 000.00 towards the maintenance of the parties’
children, as well as to make payment of certain expenses relating
to
the children, pending the determination of the divorce action between
the parties.
[13]
On 3 July 2015 the respondent launched an application
pursuant to the provisions of Uniform
Rule 43(1)(b)
, in terms of
which he sought a contribution towards his legal costs in the amount
of R 498 180.00. On 8 September 2015
this application was
dismissed.
[14]
In the meantime the trial was postponed from 4 August
2015 to 26 October 2015.
[15]
On 26 October 2015 the trail was again postponed, this
time to 19 April 2016.
[16]
On 27 January 2016 the applicant instituted contempt
proceedings against the respondent arising from his failure to comply
with
the order granted by Ndita J in April 2015.
[17]
On 5 February 2016 the trial was removed from the roll
and postponed from 19 April 2016 to 10 May 2016. The trial did
not
proceed on 10 May 2016 and it has not been set down again.
[18]
Also in February 2016 the respondent approached the
Wynberg maintenance court for a reduction in the maintenance ordered
by Ndita
J. The court refused to entertain this application and
the respondent then appealed the magistrate’s decision. The
appeal was dismissed.
[19]
The following month, on 11 March 2016, the respondent
instituted an urgent application against the applicant and her mother
in terms
of which,
inter alia
,
the respondent sought to prevent the applicant from making payment to
her mother of the proceeds of the sale of an immovable property
in
respect of which a bond was registered in favour of the applicant’s
mother. This application was heard on 6 April
2016, and
dismissed with costs.
[20]
The aforementioned contempt application was heard by
Kose AJ on 10 May 2016 who, on 30 May 2016, found the respondent
to be
in contempt of court.
[21]
On 30 September 2016 Kosi AJ heard argument with
regard to the appropriate sanction in respect of the respondent’s
contempt
of court, but is yet to deliver judgment in this regard. At
this juncture I mention that, while the applicant pressed me not to
hear the respondent due to his failure to purge his contempt, because
the application before me has the potential to affect the
rights of
the parties’ children, particularly those of their minor sons,
Jacob and Thomas, I considered it appropriate to
hear the respondent,
despite his failure to have purged his contempt.
[22]
Shortly before the hearing of this application the
respondent instituted an application in terms of Uniform
Rule 43(6)
,
seeking a reduction in the maintenance obligations, as well as a R
50 000.00 contribution towards his legal costs. This application
has been dismissed.
[23]
Numerous attempts at mediation have failed.
UNIFORM
RULE 33(4)
APPLICANT’S
CONTENTIONS IN FAVOUR OF THE SEPARATION OF ISSUES
[24]
In support of the application the applicant,
essentially, contends the following:
a.
That
the matter is not trial ready and should again be placed on the
managed pre-trial roll. In support of this contention she cites
the
facts that discovery is outdated, and so are the expert reports
relating to the patrimonial consequences of the dissolution
of the
parties’ marriage.
b.
A
decree of divorce will draw a line in the sand for the purpose of
calculating the relative accrual of the parties’ estates.
c.
She
has entered into what is already a long term, committed,
relationship. She wishes to marry her partner but, because the
parties’
divorce has not been finalised, she is unable to do
so.
d.
The
children are being adversely affected by virtue of the divorce not
nearing finalisation, despite the parties being ad idem that
the
marriage relationship is beyond redemption. As an illustration of
this, the applicant attached a letter from Thomas’
class
teacher to the founding papers.
e.
The
delay in finalising the divorce is adversely affecting the
applicant’s health. In confirmation of this contention
the applicant annexed to the founding papers a letter from a health
care practitioner she has been consulting regularly.
RESPONDENT’S
OPPOSITION
[25]
Against the factors advanced in support of the
application, the essential opposing contentions must be juxtaposed.
These are:
a.
That
a separation of the issues pertaining to the welfare of the children
from the decree of divorce is impermissible as being in
conflict with
section 6(1) (a) of the Divorce Act.
b.
The
Applicant’s motivation for the separation is essentially a
matter of convenience for her, rather than a matter of convenience
to
all concerned, including the court.
c.
The
applicant’s true motive for the separation is to stifle all
further litigation between her and the respondent.
d.
A
separation will not materially shorten the proceedings.
e.
The
applicant is seeking to avoid the consequences of a calculated choice
that she made to introduce into the divorce action a considerable
commercial claim against the respondent for the payment of an amount
of some R 4 050 000,00 plus interest. By seeking to delay
the
determination thereof indefinitely, she is, in effect, “withdrawing”
the claim, but avoiding tendering the costs.
f.
It
is neither appropriate nor fair to separate the issues as proposed
and the proposed separation is highly prejudicial to the respondent,
essentially because a decree of divorce will deprive him of the
benefit of Uniform Rule 43 prior to the finalisation of the divorce.
Specifically the respondent contends that he would not be able to
apply for a cost contribution from the applicant.
THE
PROVISIONS OF UNIFORM RULE 33(4)
[26]
Uniform Rule 33(4) provides
as
follows:
“
If, in any pending
action, it appears to the court
mero
motu
that there is a
question of law or fact which may conveniently be decided either
before any evidence is led or separately from any
other question, the
court may make an order directing the disposal of such question in
such manner as it may deem fit and may order
that all further
proceedings be stayed until such question has been disposed of, and
the court shall on the application of any
party make such order
unless it appears that the questions cannot conveniently be decided
separately.
”
[27]
The purpose of Uniform
Rule 33(4) was formulated as follows in
Rauff
v Standard Bank Properties
[1]
,
where Flemming AJP stated:
"The
entitlement to seek separation of issues was created in the Court
Rules so that an alleged lacuna in the plaintiff's case
or an answer
to a case can be tested; or simply so that a factual issue can be
determined which can give direction to the rest
of the case and in
particular to obviate a parcel of evidence. The purpose is to
determine the fate of the plaintiff's claim (or
one of the claims)
without the costs and delays of a full trial.”
[28]
To the above statement by
Flemming AJP the statements of the Supreme Court of Appeal, in
Denel
(Edms) Bpk v Vorster
[2]
,
where
the scope and application of Uniform Rule 33(4) was discussed, must
be added:
“
Rule 33(4) of the
Uniform Rules – which entitles a Court to try issues separately
in appropriate circumstances – is
aimed at facilitating the
convenient and expeditious disposal of litigation. It should
not be assumed that that result is
always achieved by separating the
issues. In many cases, once properly considered, the issues
will be found to be inextricably
linked, even though, at first sight,
they might appear to be discrete. And even where the issues are
discrete, the expeditious
disposal of the litigation is often best
served by ventilating all the issues at one hearing, particularly
where there is more
than one issue that might be readily dispositive
of the matter. It is only after careful thought has been given
to the anticipated
course of the litigation as a whole that it will
be possible properly to determine whether it is convenient to try an
issue separately.”
[29]
These views were echoed
by the Supreme Court of Appeal in the judgment of
Molotlegi
v Mokwalase
[3]
where they were expressed as follows:
“
It follows that a
court seized with such an application (for a separation of issues in
terms of Rule 33(4)) has a duty to carefully
consider the application
to determine whether it will facilitate the proper, convenient and
expeditious disposal of litigation.
The notion of convenience
is much broader than mere facility or ease or expedience. Such
a court should also take due cognisance
of whether separation is
appropriate and fair to all the parties. In addition the court
considering an application for separation
is also obliged, in the
interests of fairness, to consider the advantages and disadvantages
which might flow from such separation.
Where there is a
likelihood that such separation might cause the other party some
prejudice, the court may, in the exercise of
its discretion, refuse
to order separation. Crucially in deciding whether to grant the
order or not the court has a discretion
which must be exercised
judiciously.”
[30]
I am, accordingly,
mindful thereof that, despite the wording of Uniform Rule 33(4) and
the important function its provisions fulfil
in the efficient
management of litigation, expeditious disposal of litigation is often
best served by ventilating all the issues
together.
[4]
[31]
I am also mindful thereof
that one should not lose sight of the possibility of inconvenience
and prejudice to a party should the
litigation be dealt with on a
piecemeal basis
[5]
.
[32]
For, I believe, similar
reasons the courts have distilled the following factors in their
application of Uniform Rule 33(4)
[6]
:
a.
Whether
the hearing on the separated issues will materially shorten the
proceedings.
b.
Whether
the separation may result in a significant delay in the ultimate
finalisation of the matter
[7]
.
The granting of the application, although it may result in the saving
of many days of evidence in court, because of the possibility
of a
lengthy interval between the first hearing at which the special
questions are canvassed and the commencement of the trial
proper, may
nevertheless cause considerable delay finalising the matter.
c.
Whether
there are prospects of an appeal on the separated issues,
particularly if the issues sought to be separated out are
controversial
and appear to be of importance.
[8]
d.
Whether
the issues in respect of which a separation is sought are discrete,
or inextricably linked to the remaining issues
[9]
.
e.
Whether
the evidence required to prove any of the issues in respect of which
a separation is being sought will overlap with the
evidence required
to prove any of the remaining issues
[10]
.
[33]
It is also so that
convenience
must
be demonstrated, and it is therefore incumbent on the applicant for a
separation of issues to set out facts with sufficient
specificity to
enable the court to consider whether,
prima
facie
,
it is convenient to separate the issues.
[11]
Once the applicant has done this the
onus
to
demonstrate that the balance of convenience favours him, and
therefore that a separation should not be ordered, rests on the
respondent
[12]
. Failing to
discharge this
onus
will
result in the court being obliged to order the separation.
DISCUSSION
FACTORS
IN FAVOUR OF GRANTING THE SEPARATION CONSIDERED
[34]
In considering this aspect I have grouped
inter
alia
the factors listed above together as set
out below.
It
is Common Cause that the Marriage Relationship Has Broken Down
Irretrievably
[35]
As stated above, the parties are
ad
idem
that their marriage relationship has
broken down irretrievably.
[36]
Accordingly, I consider
the following statement in
CC
v CM
[13]
at paragraph [42], apposite:
“
The need decreed
by public-policy considerations to as soon as possible normalise the
lives of parties bound to a moribund broken-down
marriage was
highlighted in
Levy
v Levy
[1991] ZASCA 81
;
1991
(3) SA 614
(A), which militates against parties being shackled to a
dead marriage.”
[37]
Therefore, if a court is able to do so it must endeavour
to give effect thereto. This will in appropriate circumstances, as
indeed
happened in
CC v CM
,
include ordering the separation of the hearing of the issues relevant
to the decree of divorce from the remaining issues in dispute
between
the parties.
[38]
In the present matter:
a.
The
parties have been separated for five years.
b.
The
applicant is in a committed relationship and wishes to marry her
partner. This she cannot do unless the marriage between her
and the
respondent is dissolved.
c.
It
cannot be seriously disputed that the delay in the finalisation of
the divorce is hampering the commencement of the normalisation
of the
lives of the parties, particularly (for the reasons set out above)
that of the applicant.
d.
It
can also not be seriously disputed that the delay in the finalisation
of the divorce action is having a negative impact on the
health of
the parties’ children, specifically with reference to T.
[39]
In addition a decree of divorce carries the benefit that
the parties can, in circumstances where they have for many years led
separate
lives, both build up separate estates without fear of this
impacting on the accrual, with the converse risk of a diminution in
one party’s estate in the present instance (where the
respondent contends that he is entitled to benefit from the accrual
in the estate of the applicant) not outweighing this benefit to be
gained by a decree of divorce.
Calculation
of the Accrual
[40]
It is common cause that the patrimonial consequences of
the dissolution of the parties marriage form part of the divorce
action,
and that this aspect of the action, including the calculation
of the respective parties’ estates for the purposes of accrual,
remains in dispute.
[41]
It is well established
that accrual, in terms of
section 3
of the
Matrimonial
Property Act
>
[14]
,
is calculated at the dissolution of the marriage, i.e. the date of
divorce
[15]
.
[42]
In circumstances where it was contended that, due to the
delays in the finalisation of the action, discovery is outdated as
are
the expert reports relating to the parties’ estates, both
parties would benefit from a definite date from which to calculate
the value of their respective estates for the purpose of the
calculation of accrual.
[43]
This is so because the parties would then have a fixed
reference point on which to base their respective contentions in
regard to
accrual; which, in turn, will to a large extent prevent a
repetition thereof that discovery, as well as the expert reports, are
rendered outdated and redundant through the passage of time.
[44]
The separation of the question of whether to grant the
decree of divorce, to be heard prior to the questions relating to the
patrimonial
consequences of the dissolution of the parties’
marriage, therefore carries with it the very real prospect of an
earlier
finalisation of the divorce action than would be the case if
the date for the calculation of the accrual is to be an uncertain
future date of divorce.
No
Delay in Finalising the Divorce Action
[45]
Since, as stated above, it is common cause that the
parties both seek a decree of divorce, the questions of overlapping
evidence
and the possibility of conflicting findings on the same or
similar issues do not arise in this instance.
[46]
To this must be added the already stated benefits of
having a fixed point from which to calculate accrual.
[47]
In addition, and as alluded to above, should there not
be certainty with regard to the date on which the accrual is to be
calculated,
there is a definite risk that the litigation will be even
more protracted as, should the action not be finalised soon after the
matter has again been declared trial ready, the information presented
in respect of the parties’ respective estates may,
once again,
be rendered outdated and thus redundant.
[48]
Because the Uniform Rules empower litigants enforce to
compliance with the rules of court I do not accept that the applicant
will
be in a position to escape the consequences of having instituted
any claim. It is within the power of the respondent to
prosecute
the remaining issues in the divorce action, and to force
the applicant to do the same unless she formally withdraws any
portion
of her case in terms of the Uniform Rules
THE
OPPOSITION TO THE SEPARATION OF THE ISSUES CONSIDERED
[49]
I now turn to those grounds of opposition not discussed
as part of the previous section; which grounds I have, similarly,
grouped
together where it appeared appropriate.
Section
6 of the Divorce Act
[50]
In
Schwartz
v Schwartz
[16]
Corbett JA (as he then was) summarised the position regarding the
discretion in respect of the grant of a decree of divorce as
follows:
“
Section 4 (1)
empowers the Court to grant a decree of divorce on the ground of the
irretrievable breakdown of the marriage "if
it is satisfied
that..."; and then follows a specified state of affairs which is
in effect the statutory definition of irretrievable
breakdown.
Clearly satisfaction that this state of affairs exists is a necessary
prerequisite to the exercise by the Court of its
power to grant a
decree of divorce on this ground. But once the Court is so satisfied,
can it, in its discretion, withhold or grant
a decree of divorce? It
is difficult to visualize on what grounds a Court, so satisfied,
could withhold a decree of divorce. Moreover,
had it been intended by
the Legislature that the Court, in such circumstances, would have a
residual power to withhold a decree
of divorce, one would have
expected to find in the enactment some more specific indication of
this intent and of the grounds upon
which this Court might exercise
its powers adversely to the plaintiff. In Smit's case supra it seems
to be suggested that, notwithstanding
the fact that a marriage has
broken down irretrievably, the Court may refuse a decree of divorce
in order to exercise the power
granted to it in terms of s 4 (3) of
the Act, ie to postpone the proceedings in order that the parties may
attempt a reconciliation
(see at 41H - 42A). The pre-requisite to the
exercise of the power contained in s 4 (3) is that it must appear to
the Court that
there is a reasonable possibility that the parties may
become reconciled through marriage counsel, treatment or reflection.
If
there is this reasonable possibility, can it be said that the
marriage has broken down irretrievably? And conversely if the
marriage
is found to have broken down irretrievably, can such a
reasonable possibility exist? It seems to me that there is much to be
said
for the view that these concepts, ie irretrievable breakdown and
the reasonable possibility of reconciliation, are mutually
contradictory
and that the existence of the power conferred by s 4
(3) does not necessarily indicate a residual discretion vested in the
Court
by s 4 (1).
In Smit's case supra at
42A s 6 (1) is also referred to, apparently in support of the thesis
that the Court enjoys a discretion
under s 4 (1).
Section
6 (1) provides that a decree of divorce "shall not be granted"
until the Court is satisfied that the provisions
made or contemplated
with regard to the welfare of any minor or dependent child of the
marriage are satisfactory or are the best
that can be effected in the
circumstances. And in order to satisfy itself in this regard the
Court is empowered by s 6 (2) to cause
any investigation which it may
deem necessary to be carried out. Section 6 (1) thus requires, in
imperative terms, that the Court
should be satisfied in regard to
these matters concerning minor or dependent children before it grants
a decree of divorce. The
power of the Court to grant a decree of
divorce on the ground of irretrievable breakdown of the marriage (and
on the other grounds
stated in s 3) is thus qualified, or made
subject to, the Court being satisfied as to the matters referred to
in s 6 (1);
but I do not read s 6 (1) as
conferring, or substantiating the existence of, a discretion under s
4 (1).”
[51]
From the above passage it is evident that:
a.
Where
the court is satisfied that a marriage has broken down irretrievably
the court has no discretion but to grant a decree of
divorce; save
that
b.
The
court can only grant the decree of divorce if, as is provided by
section 6(1) of the Divorce Act, it is satisfied that the provisions
made or contemplated with regard to the welfare of any minor or
dependent child of the marriage are satisfactory or are the best
that
can be effected in the circumstances.
[52]
The manner in which the applicant has framed the issue
for referral, as set out in paragraph 1.1 of the Notice of Motion,
does not
fetter the court with regard to compliance with the
provisions of section 6(1) of the Divorce Act.
[53]
The court hearing the issue of the decree of divorce
will therefore, in deciding whether to grant a decree of divorce,
have the
ability to satisfy itself that the provisions made or
contemplated with regard to the welfare of any minor or dependent
child of
the marriage are satisfactory or are the best that can be
effected in the circumstances.
[54]
This in my view disposes of this ground of opposition,
as advanced.
[55]
Notwithstanding the foregoing, it also bears mentioning;
firstly, that there is a parenting plan that has been implemented and
which,
as was recorded above, has by agreement been made an order of
court, together with further maintenance provisions in respect of
the
parties’ children; secondly, considering the papers before
court, the parties appear to be of sufficient means to maintain
the
children (with the applicant certainly having contended to be so);
and thirdly, as will be discussed below, the provisions
of Uniform
Rule 43 will remain available to the parties to the extent necessary.
Uniform
Rule 43
[56]
One of the central grounds advanced both in support of
the application for separation and as a ground of opposition was
that, once
a decree of divorce has been granted, the relief granted
in terms of Uniform Rule 43 lapses and an ex-spouse would no longer
be
entitled to the relief afforded a spouse in terms of the Rule.
[57]
The basis of the
contention that the relief in terms of Uniform Rule 43 lapses, and
that once a decree of divorce is granted relief
in terms of this
section is not open to parties in a matrimonial action, is the
appearance of the word “spouse” in
sub-rule 43(1).
In support of these contentions I was referred to the case of
Bienenstein
v Bienenstein
[17]
where, at 451 D, De Villiers AJ found that Uniform Rule 43 refers
only to pending matrimonial disputes, adding “that is before
the final order of divorce has been granted
”
.
[58]
As was found in the
matter of
Carstens v Carstens
[18]
,
to which case I shall return presently, and in contradistinction with
Bienenstein
,
which concerned a Rule 43 application during the appeal stage of
proceedings where the entire divorce action had been finalised,
the
action in the present instance will still be pending following the
separation of issues the applicant prays for. In the present
instance
I, therefore, also find that
Bienenstein
is distinguishable on the
facts that served before De Villiers AJ to the matter serving before
me.
[59]
In respect of the word “spouse”, as it
appears in Uniform Rule 43(1), I agree with Roberson J in her
analysis of the
meaning of the word as contained at paragraphs [5]
and [6] of the judgment in
Carstens v
Carstens
, where she stated the following:
“
[5] It was
submitted on behalf of the respondent that the words “
pendente
lite”
and
“pending matrimonial action” contained in Rule 43, relate
to an action that has not been finalised. The marriage
between
the parties has come to an end by divorce, therefore, so it was
submitted, Rule 43 does not apply. It was further
submitted
that a claim for contribution towards costs is
sui
generis
and
applies to spouses: the parties are unrelated litigants and
there is therefore no obligation on the respondent to contribute
towards the applicant’s costs.
[6]
It
is so that the parties are no longer married. However the
“matrimonial action” has not been finalised.
The
status of the applicant with regard to the remaining issues in the
action, is that of a spouse. It can be nothing else.
The parties themselves agreed in the Rule 37 minute that
interim arrangements would continue until the action was finalised.
This agreement could only mean that the respondent acknowledged that
the applicant was still a spouse, or was pursuing relief to
which she
was allegedly entitled as a spouse, for the purpose of adjudication
of the remaining issues. The situation is distinguishable
from
that in
Bienenstein v Bienenstein
1965 (4) SA 449
(TPD), to which I was referred. In
that matter the respondent had instituted an action against the
applicant for restitution
of conjugal rights and failing which,
divorce. A final order of divorce was granted. The
applicant noted an appeal
against this order and applied in terms of
Rule 43 for a contribution towards her costs of appeal. With
reference to the
contention of the applicant’s counsel that the
application fell under Rule 43, De Villiers AJ said the following at
451D:
“
I
cannot agree with that contention. Rule 43 to my mind clearly
refers only to pending matrimonial disputes; that is before
the final
order of divorce has been granted
.”
In
Bienenstein
, unlike
the present matter, no further matrimonial disputes were pending.
The judgment therefore does not assist the respondent.”
[emphasis added]
[60]
It cannot be the correct position that, in a pending
divorce action, following a granting of the decree of divorce, the
fact that
the parties are no longer married, would disentitle a
person who, until the decree of divorce (which is but one part of the
divorce
action), was entitled to the relief set out in Rule 43,
pendente lite
, would
no longer be entitled thereto due to an unnecessarily strict
interpretation of the word “spouse” for the purpose
of
the Rule.
[61]
Accordingly, I find that, pending the finalisation of
the divorce action, an extant order in terms of Rule 43 survives a
decree
of divorce to the extent the issues regulated thereby remain
unresolved.
[62]
The finding that an existing order in terms of Uniform
Rule 43 does not lapse with the granting of a decree of divorce in
circumstances
where the remaining issues in the divorce action remain
pending in terms of Uniform Rule 33(4), follows ineluctably.
This
is reinforced by the wording of Rule 43(1) itself, the relevant
portion of which states that:
“
This rule shall
apply
whenever
a spouse seeks relief
from the court in
respect of one or more of the following matters:
”
[emphasis
added]
There
is nothing in Rule 43 which states that, once relief has been granted
to a spouse in terms thereof, the order lapses following
the granting
of the decree of divorce; save where the matrimonial action is no
longer pending. In addition to this the definition
of a divorce
action, as contained in section 1 of the Divorce Act
[19]
,
militates against finding otherwise.
[63]
Section 1 of the Divorce Act defines a divorce action as
follows:
'divorce action'
means an action by which a decree of divorce or other
relief in connection therewith is applied for, and includes-
(a) an application
pendente lite
for an
interdict or for the interim custody of, or access to, a minor child
of the marriage concerned or for the payment of maintenance;
or
(b) an application for a
contribution towards the costs of such action or to institute such
action, or make such application, in
forma pauperis, or for the
substituted service of process in, or the edictal citation of a party
to, such action or such application.”
[64]
Save for it being
necessarily so that only a spouse
[20]
can apply for a decree of divorce, the remaining relief contemplated
by the definition is not dependant on a party being a spouse
at the
time the relief is sought; with the operative words in sub-section
(a) being “
pendente
lite
”
and
in sub-section (b) being “such action”. Should the
legislator have wished to limit the relief claimable in
a pending
divorce action to only spouses, the Divorce Act would have stipulated
so in terms, and would not have contented itself
with the manner in
which it defined a divorce action.
[65]
I am further fortified in
my view when the purposes of Rule 43 are concerned. In a
nutshell Rule 43 aims (in a robust and
cost effective manner) to
provide interim relief on certain aspects in a divorce action pending
their final determination
[21]
,
and to provide a level playing field in respect of the determination
of the action. It would therefore make no sense that
aspects of
the action the Rule intends to regulate pending their determination
would lapse despite not having been finally determined.
[66]
Furthermore, in the present matter the operative part of
the order granted pursuant the applicant’s application in terms
of
Uniform Rule 43 under case number 21450/14 commences with the
words “pending the determination of the divorce action
”
.
The order will therefore, in terms, not lapse on the granting of the
decree of divorce should the envisaged separation of
issues be
ordered, but will remain in force pending the determination of the
divorce action.
[67]
In my view the same principles stated above regarding
the lapsing of the relief granted in terms of Rule 43 also applies to
the
contention that the relief becomes unavailable to an ex-spouse
pending the finalisation of the divorce action the moment a decree
of
divorce is granted.
[68]
From what has been stated above regarding the definition
of a divorce action in the Divorce Act; should it have been so that
the
relief granted in terms of Uniform Rule 43 lapses or becomes
unavailable on the granting of a decree of divorce in the current
circumstances, an applicant for the relief contemplated in the
definition of divorce action, but regulated in terms of Rule 43,
would have to launch proceedings in terms of Uniform Rule 6. In both
these scenarios Rule 43 was imported to prevent the necessity
of
having to do so, and in the former scenario the applicant would be
constrained to apply for the same relief he or she had already
obtained in terms of Uniform Rule 43.
[69]
For the reasons mentioned
above I also find that an agreement such as was referred to in
Carstens
is not a prerequisite for
Uniform Rule 43 to remain operative following the granting of a
decree of divorce, but pending the finalisation
of the action, the
reference to which appears to have been included in the said
judgment, not to serve as a
sine
qua non
,
for the Rule to remain operative, but in support of the definitional
analysis undertaken by Roberson J
[22]
.
[70]
The above findings dispose of the remaining factual
grounds of opposition advanced by the respondent, in that the
respondent will
be entitled launch applications for cost
contributions until the final determination of the action.
[71]
It also makes it unnecessary to consider the effect the
lapsing of the Rule 43 order would have on the maintenance of the
parties’
children, the respondent’s concerns in respect
of which have already been dealt with above.
CONCLUSION
[72]
In the premises I find that the applicant has made out a
proper case for separating the question of the granting decree of
divorce
from the remaining issues in dispute between the parties and
that it be heard separately and prior to those issues.
COSTS
[73]
Having considered whether it would be more appropriate
to have costs stand over for later determination, I have come to the
conclusion
that this court is in the best position to consider the
question of costs in respect of this application.
[74]
In awarding costs I have come to the conclusion that the
circumstances of this application do not warrant a departure from the
ordinary
rule that costs follow the event in respect of which I
mention that,
inter alia
,
I have considered the fact that the applicant has been substantially
successful in the application, as well as that the respondent
asserted that he would not have opposed the application should the
applicant have agreed thereto that the provisions of Uniform
Rule 43
remain operative, pending the finalisation of the divorce action.
[75]
With regard to the respondent’s aforementioned
assertion I have also considered the effect of the respondent’s
opposition
based on section 6 of the Divorce Act (which contradicts
the respondent’s assertion that he would have agreed to the
order
in the circumstances described in the immediately preceding
paragraph), on the respondent’s opposition of the application
as a whole.
ORDER
[76]
I, accordingly, make the following order:
a.
The
following questions of law or fact are to be decided separately from
and before any other issues in dispute in the action pending
under
case number 6192/2013 (“the main action”):
i.
whether a decree of divorce should be granted, as
claimed by Applicant (Plaintiff in the main action) in prayer (A) of
her Amended
Particulars of Claim and admitted by Respondent
(Defendant in the main action) in paragraph 1 of his amended Plea, as
further amended,
to Plaintiff’s Amended Particulars of Claim
based on the irretrievable breakdown of the parties’ marriage.
b.
All
further proceedings in the main action are stayed until the
aforementioned issues have been determined and the decree of divorce
dissolving the marriage between applicant and respondent has been
granted.
c.
The
respondent is ordered to pay the applicant’s costs.
______________
JH
LOOTS
Appearances:
For
the Applicant: Adv L Buikman SC, instructed by Catto Neethling
Wiid Attorneys.
For
the Respondent: Adv F Gordon-Turner, instructed by Luitingh &
Associates.
[1]
2002
(6) SA 693(W)
at 703.
[2]
2004
(4) SA 481
(SCA), at par [3].
[3]
2010
All SA 258
(SCA) at par 20.
[4]
Privest
Employee Solutions (Pty) Ltd v Vital Distribution Solutions (Pty)
Ltd
2005
(5) SA 276
(SCA) at pars [26] and [27];
First
National Bank – A Division of Firstrand Bank Limited v Clear
Creek Trading 12 (Pty) Ltd and Anothe
r
[2015]
JOL 32957
(SCA) at par [9];
Absa
Bank Ltd v Bernert
2011
(3) SA 74
(SCA) at par [21];
SATAWU
v Garvis and Others
2011
(6) SA 382
(SCA) at par [45]; and
Consolidated
News Agencies (Pty) Ltd (In Liquidation) v Mobile Telephone Networks
(Pty) Ltd and Anothe
r
2010
(3) SA 382
(SCA) at pars [89] – [91]
[5]
Braaf
v Fedgen Insurance Ltd
1995
(3) SA 938
(C) at 941D.
[6]
Hollard
Insurance Company Ltd v SA Coetzee and Others
(24120/2011)
[2015] ZAWCHC 57
at par
[15]
.
[7]
Netherlands
Insurance Co of SA Ltd v Simrie
1974
(4) SA 287
(C) at 289B – C.
[8]
Hollard
Insurance Co Ltd v S A Coetzee and Others
supra
at
par [15]; and
Minister
of Agriculture v Tongaat Group Ltd
1976
(2) SA 357
(D) at 363G – 364B.
[9]
Denel
(Edms) Bpk v Vorster
supra
at
par [3]; and
Consolidated
News Agencies (Pty) Ltd (In Liquidation) v Mobile Telephone Networks
(Pty) Ltd and Another
supra
at
par [89].
[10]
Internatio
(Pty) Ltd v Lovemore Brothers Transport CC
2000
(2) SA 408 (SECLD) 411 G – I.
[11]
Hotels,
Inns and Resorts SA (Pty) Ltd v Underwriters at Lloyds and Others
supra
;
and
Internatio
(Pty) Ltd v Lovemore Brothers Transport CC
supra
at
413 D – G.
[12]
Braaf
v Fedgen Ins Ltd
1995
(3) SA 938
(C) at 939.
[13]
2014
92) SA 430 (GJ).
[14]
Act
No. 88 of 1984.
[15]
AB
v JB
2016
(5) SA 211
(SCA) and the cases cited there.
[16]
[1984] ZASCA 79
;
1984
(4) SA 467
(A) at 474 D- 475 C; cited with approval, and applied,
in
Levy
v Levy
1991
(3) SA 614 (A).
[17]
1965 (4) SA 449
(TPD).
[18]
(2267/2012)
[2012] ZAECPEHC 100 (20 December 2012), Saflii.
[19]
Act
70 of 1979.
[20]
A term which is not separately
defined in the Divorce Act, but which must be construed in
accordance with the development of the
definition thereof by both
Statute and the courts.
[21]
Du
Preez v Du Preez
2009
(6) SA 28 (T).
[22]
In this regard, I mention in passing
that paragraph 4 of the order by agreement made by Blignault J,
referred to in the narrative
above, it is ordered that “
Pending the determination
of the divorce action between the parties
,
respondent shall continue to contribute to the maintenance of the
minor children Hannah, Jacob, and Thomas, as follows:”
[Emphasis added]. Although this order appears to have been overtaken
by the order made pursuant to Rule 43, which itself, as
stated in
the narrative, provides that it will remain in force pending the
determination of the divorce action.