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[2020] ZAWCHC 24
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H.M v L.M (19881/2019) [2020] ZAWCHC 24 (26 March 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
[Delivered
by email on the 26
th
of March 2020, by
agreement]
Case
No: 19881/2019
In
the matter between:-
H
M
Applicant
and
L
M Respondent
CORAM:
WILLE, J
DATE
OF HEARING: 6
TH
OF MARCH 2020
DATE
OF JUDGMENT: 26
TH
OF MARCH 2020
JUDGMENT
WILLE,
J;
INTRODUCTION
[1]
The applicant was granted certain interim relief on the 28
th
of January 2020 and seeks confirmation of this relief,
pendente
lite
.
The relief now sought is not in any broader terms than the relief
granted in terms of the Interim Order.
[1]
[2]
The following relief was granted to the applicant in terms of the IO,
namely that the respondent was;
‘
interdicted
and restrained from alienating, entering into any sale of or
transferring, disposing of or encumbering, in any manner
whatsoever,
the immovable property situated at […] Victoria Bay, Western
Cape, South Africa (the property), pending the
outcome of the divorce
action between the parties, under case number 19881/19 (the divorce
action);
and
2.1
ejected from the property, pending
the outcome of the divorce action’
[3]
The parties were married in 2008 under and in terms of an antenuptial
contract which excluded the accrual regime. About (11)
years later
they decided to leave their matrimonial home
[2]
on a farm in the Northern Cape and they together moved and lived in
Victoria Bay
[3]
, which became
their new matrimonial home.
[4]
[4]
During October 2019, the respondent left the property
[5]
and returned to the old matrimonial home and from that time until the
5
th
of December 2019, the applicant lived at the property in peace,
whilst the respondent lived in the old matrimonial home.
THE
APPLICANT’S CASE
[5]
It is the applicant’s case that because she issued out a
divorce action against the respondent during November 2019, this
triggered certain abusive and inappropriate behaviour by the
respondent, which in turn led to threatening and inappropriate
messages
from the respondent. Further, it is alleged, that the
respondent caused security personnel to enter upon the property
without the
consent of the applicant in order to harass her.
[6]
In addition, it is alleged that the applicant received a threatening
video from the respondent via ‘Facebook Messenger’,
during the beginning of December and then, without prior
notification, the respondent stayed for one night, uninvited, at the
property. This was all, despite a letter from the applicant’s
attorneys requesting the respondent not to attend on the property.
[7]
During his stay, it is averred that he threatened, intimidated, swore
at and became aggressive towards the applicant. Following
upon this
behaviour, the applicant sought and obtained an Interim Protection
Order
[6]
against the respondent
on the 12
th
of December 2019.
[8]
This IPO, seemingly assisted the respondent for a fortnight, as
during this period, she lived at the property, in peace. During
late
December 2019, the applicant’s mother fell ill, and she left to
property, in order to assist her ailing mother in Springbok.
The
property remained vacant
[7]
during this time.
[9]
On the 14th January 2020
[8]
, and
without prior notification and uninvited, the respondent again
occupied the property. It was during this time, that the applicant
became aware of the respondent’s extramarital affair as she
witnessed footage of the respondent cuddling and kissing his
girlfriend on a CCTV camera installed in the property.
[10]
On the 21
st
of January 2020, the applicant advised the
respondent that she would be returning to the property on the 24
th
of January 2020 and requested the respondent vacate the property,
prior to her occupation. In anticipation, it is alleged, that
the
respondent re-configured the access codes on the front access gate,
so as to prevent the applicant from accessing the property.
In direct
response to this,
arrangements were made with the
sheriff of the court for the service of the IPO on the respondent.
[11]
In order to run further interference, so it is alleged, the
respondent re-configured the codes for access to the garage and
simultaneously discontinued the applicant’s access to the alarm
system, so that effectively she
was unable to enter the
property. Thereafter, the respondent reluctantly, allowed the
applicant access to the property, but not
access to all areas and
rooms of the property. An argument ensued and the respondent
allegedly verbally abused the applicant. The
applicant left the
property the following day as the situation with the respondent being
on the property became ‘intolerable’
for her.
[12]
The following night the respondent’s girlfriend slept at the
property and allegedly wore some of the applicant’s
clothing of
a personal nature. This all culminated in the applicant launching and
urgent application which resulted in the IO being
granted on the 28
th
January 2020, in the terms referenced earlier in this judgment.
THE
RESPONDENT’S CASE
[13]
The respondent denies that any conduct on his part could have made
staying with applicant intolerable and takes the position
that they
are indeed, despite all their differences
[9]
,
able to stay together. This, I must say is rather far fechted. He
further denies that the applicant ever had any cause to be fearful
him and avers that he has never ill-treated or verbally abused
her.
[10]
[14]
The respondent also takes the view that the property is not the
parties matrimonial home, but is in fact their ‘holiday
home’.
Further, the respondent avers that he did not prevent the applicant
from having access to the property, save for the
fact that he denied
her access to the main bedroom of the property.
[11]
[15]
The respondent admits that he is romantically involved with another
woman, to which he submits he is entitled, as the applicant
instituted divorce proceedings against him. He concedes that their
marriage relationship has broken down irretrievably.
[12]
THE
DISPUTE REGARDING THE REGISTRATION OF THE PROPERTY
[16]
Central to some of the disputes between the applicant and the
respondent in connection with the granting of the IO and indeed
this
order,
pendente lite
,
is a dispute about the ownership of the property. The applicant
advances that after the IO had been granted, she consulted with
a new
set of legal representatives, who advised her that an error had been
made in her initial particulars of claim, and that this
error
regrettably, also found its way into her initial founding affidavit.
[17]
She, at the outset, referred to the property as being an asset in the
‘universal partnership’ between the parties.
Her position
is now that despite the fact that the property is registered in the
respondent’s name, half of the property
is held by the
respondent as her ‘nominee’ and the parties are co-owners
of the property, in undivided equal shares.
[18]
The applicant’s new case is; that at the outset the parties
orally agreed to purchase the property in their joint names
[13]
;
that they would hold the property as co-owners in equal undivided
shares; that the parties, as purchasers, signed a deed of sale
to
purchase the property in their joint names and that subsequently the
parties’ conveyancing attorney advised that the property
could
not lawfully be registered in their joint names because of a
statutory limitation. The applicant’s case is that she
relied
on this advice, rightly or wrongly, it matters not.
[19]
In order to fortify her position, the applicant referred to some
historical facts in order to understand the negotiations leading
up
to the purchase of the property in the proper context. According to
the applicant, the parties orally agreed that the property
would be
purchased in the name of a company, whose shares would be held
equally by them but that ultimately, due to pressure applied
by the
seller of the property, who refused to wait for the registration of a
company, the parties agreed that the property would
be purchased and
registered in the name of the respondent, who would hold the
applicant’s half share in the property, as
her ‘nominee’.
This is vehemently denied by the respondent. The respondent takes
issue with these allegations and advances
that it was never agreed
that the property was to be registered in both parties’ names.
[20]
It is argued by the respondent that the seller of the property was a
‘trust’ which could have been purchased by
both parties,
had this been their true intention. Further, the applicant did not
contribute financially towards the purchase of
the property. The
respondent takes the position that he is the outright owner of the
property and he can do with the property as
he pleases. Accordingly,
no rights of any nature accrue to the applicant in connection with
the property and particularly she enjoys
no right to occupy the
property which is solely his holiday home.
THE
LAW AND THE DECIDED AUTHORITIES
[21]
The applicant takes the view that the legal test to be applied, is
the test which is traditionally applied when determining
the granting
of interim relief. This because the application is an interlocutory
application and the relief requested is
pendent lite
.
[22]
The respondent takes the view that although the application is
interlocutory in nature, the effect of the relief as sought,
if
granted, will be final in nature. Accordingly, the test to be
applied, so submits Mr Olivier, is the test to be applied when
granting an interdict for final relief. What is significant is that,
should the latter approach be adopted, the ‘balance
of
convenience’ will not weigh in when the relief is considered.
[23]
The appropriate test to be applied was clearly set out in
Dempsey
[14]
,
a matter in which the wife, inter alia, sought confirmation of an
order ejecting her husband from the matrimonial home, pending
the
outcome of a divorce action, where it was held as follows;
‘
It should
however be realised that the application is merely interlocutory and
the effect of the granting thereof is only temporary
and not finally
decisive of either party’s rights. Therefore the court will
normally grant an interdict upon a degree of
proof less exacting than
that required for the final grant of a final interdict’
[24]
In
Badenhorst
[15]
,
a
matter somewhat analogous to this, an interim interdict was granted,
preventing a husband from gaining access to a farm, in circumstances
where his wife was residing, and the following, inter alia, was held;
‘
The wife’s
right to eject him must therefore flow from considerations which to a
great extent must depend on the merits of
the matrimonial dispute’
[25]
It seems to me that the relief sought by the applicant is very much
temporary in nature, pending the outcome of the divorce
action
scheduled to commence in August 2020, a few months hence.
Accordingly, in my view, the applicant, in order to succeed, must
show a prima facie right; a well-grounded apprehension of irreparable
harm if the interim relief is not granted and the ultimate
relief is
eventually granted; that the balance of convenience favours the
granting of interim relief and that there is no other
satisfactory
remedy.
A
PRIMA FACIE RIGHT
[26]
The requirement of a prima facie right requires a delicate balancing
act of the facts, provided by the respondent weighed up
against the
facts advanced by the applicant, viewed in the context of whether the
facts advanced by the respondent, place real
doubt on the applicant’s
case. If this is well established, the applicant case must fail. If
the facts advanced by the respondent,
appropriately measured, offer
up only an unconvincing explanation, the respondent’s case must
fail. Put in another way, the
proper approach is to consider the
factual allegations made by the applicant, read together with the
facts set out by the respondent,
which facts the applicant is unable
to dispute.
[27]
Simply put, I must weigh up the inherent probabilities and then
consider whether the applicant will be able to obtain final
relief at
a trial, with reference to the facts presented, specifically in
connection with the disputed issues. I must at
the same time bear in
mind that the applicant bears the onus of proof.
[28]
This approach may be influenced to some extent, depending in whose
favour the balance of convenience ‘leans’ and
whether
this incline is heavily in favour of the applicant or the respondent,
as the case may be.
BALANCE
OF CONVENIENCE
[29]
The applicant contends that the balance of convenience favours her,
because; the respondent has other properties at which he
can reside;
the respondent
could easily move back to the old
matrimonial home and has more than sufficient funds to obtain
alternative accommodation in Victoria
Bay, should he wish to stay
there in the area. The respondent advances a similar argument, as the
applicant may move to the old
matrimonial home or rent a suitable
property,
pendent lite
,
for a few months.
[30] I have to weigh up
the prejudice the applicant stands to suffer if the order is not
granted, against the prejudice that will
be suffered by the
respondent, if the order is granted. The stronger the prospects of
success, the less the need for such balance
to favor the applicant. I
am vested with a wide discretion which must in essence be a
carefully
considered judicial discretion
, taking into account the facts and
the law.
NO
OTHER SATISFACTORY REMEDY
[31]
The applicant takes the position; that she has nowhere else to stay;
has no viable alternative to living at the property and
accordingly
the application was necessary and urgent. No other satisfactory
remedy was available to her. Further, it is submitted
that the
applicant should not have to use her own funds to rent or buy another
house to live in
pendente lite
, because it is her husband’s
conduct which makes living with him intolerable. The respondent takes
the position that the
applicant is a woman of some considerable means
and can easily rent a suitable property should she not wish to reside
in the matrimonial
home in the Northern Cape.
DISCUSSION
[32]
Mr Pincus, on behalf of the applicant submits that the ‘nominee’
arrangement between the parties cannot be the
subject of any serious
challenge. This, inter alia, due to the fact that the respondent’s
stated position is that he desires
to sell the property and tenders
to hold half the nett proceeds in trust
pendente lite.
In
addition, the applicant relied on the advice by the conveyancing
attorney regarding the alleged statutory impediment regrading
joint
ownership. Finally, the correspondence from the transferring attorney
was addressed to both parties.
[33]
Further, it is submitted that the respondent’s inappropriate
behaviour and interference of the applicant’s rights
to
peaceful occupancy of the property prevented the applicant from
remaining on the property. This made it impossible for the parties
to
continue living together. The property is a matrimonial home and
accordingly the applicant enjoys the legal right to be restored
to
her peaceful occupation of the property. It would be tantamount to
‘driving her out’ to allow respondent to remain
in the
property, taking into account his wholly inappropriate behaviour and
conduct.
[34]
The submission is made on behalf of the applicant that the decided
authorities support her right to occupy the property in
these
circumstances, whether the home is owned solely by the respondent,
solely by the applicant, or jointly, and even to the exclusion
of the
respondent.
[35]
In addition, it is submitted by Mr Pincus that the conduct and
behavior of the respondent by; attempting to rent out the property
even though the applicant was living there; threatening that he would
fetch homeless people from the street and house them in the
property;
carrying on an intimate relationship with another woman at the
property; sleeping with his girlfriend in the main bedroom;
allowing
his girlfriend to wear the applicant’s night gown and, telling
the applicant to ‘take [her] panties and toothbrush
and f…..
off’, are all factors that militate in favour of the applicant.
[36]
Mr Olivier, submits in the main, that the applicant issued out a
divorce action and in her particulars of claim she did not
claim
maintenance from the respondent. Significantly, she did not allege
that she was dependent on the respondent for accommodation
and
finally, the property was not their matrimonial home, but is a
holiday home.
[37]
In his view, the applicant enjoys no rights to occupy any other home,
other than the
matrimonial
home
which is situated in the Northern Cape. The respondent avers that the
applicant must occupy the matrimonial home in the Northern
Cape. The
main point seems to be that no allegation has ever been made that the
property was converted from a holiday home to the
matrimonial
home.
[16]
I am not convinced
that this
conversion
contended
for is necessary in law.
[38]
The respondent’s opposition is largely based on the argument
that a spouse, who is not the owner of the matrimonial property,
cannot eject the
owner spouse
from the property, pending a
divorce action. The position taken is that the applicant is not
entitled to an eviction order and
that the trial court will be in a
better position to decide these issues, including costs. This issue
bears further scrutiny particularly
in view of the fact that most of
the authorities to which I have been referred were decided prior to
our constitutional democracy.
It is however important for the
purposes of this judgment to analyse and consider the current decided
authorities, on this issue.
[40]
In
Buck
,
[17]
and
Silverstone
,
[18]
it was held, inter alia, as follows;
[19]
‘
In my view she
[the wife] has a right to be in the matrimonial home while a petition
is pending before this court and this court
is entitled to protect
that right and ensure that pressure is not put on a wife to abandon
her petition by evicting her from the
home. In the present case I am
satisfied that if I let the husband return to the house I am really
driving the wife out’
[41]
McWhirte
r,
[20]
it was held that;
[21]
‘
In my opinion,
therefore, the right of a deserted wife to stay in the matrimonial
home proceeds out of an irrevocable authority
which the husband is
presumed in law to have conferred on her. This accounts for the fact
that the husband cannot turn the wife
out……..the
authority which is thus conferred on her is an authority to stay in
the house until the court orders her
to go out. This authority flows
from the status of marriage, coupled with the fact of separation
owing to the husband’s misconduct…..…..If
a
husband has been guilty of desertion and nothing else, he is entitled
to come back at any time asking to be forgiven and she
is then bound
to receive him. She cannot then keep him out of his house. But if he
has, in addition to desertion, been guilty of
cruelty or adultery,
she is not bound to take him back. She can keep him out of the house.
Her possession may then be quite exclusive’
[42]
In
Hall,
[22]
it was held that:
[23]
‘
But I would
like to say that an order to exclude one spouse or the other from the
matrimonial home is a drastic order. It ought
not to be made unless
it is proved to be impossible for them to live together in the same
house…’
[43]
In
Buck
supra, it was, in addition, held that;
[24]
‘
The question
which spouse (if either) owns the property may have some weight in
the case of a wife seeking the remedy, but as a
rule very little
weight. Where the husband has not left the matrimonial home much
stronger grounds would have to emerge than when
he returns after
desertion or periodic absences. Much turns on questions of physical
molestation or pressures of other kinds exerted
by the husband, and
the Court must also consider the motives of the spouses……..This
is a case where it is clear that
the Respondent is not returning [to
the matrimonial home] for the benefit of his wife’s company or
to promote a reconciliation………My
conclusion is
that the petitioner has made out a sufficient case that the presence
of respondent in the same house as herself creates
an impossible
situation with which the petitioner must not be expected to put
up.......I consider that there will be little hardship
on him if he
has to resort to an hotel during the interim…..’
[44]
In applying
the appropriate test, I am
of the view that, inter alia, that because of the respondents
inappropriate behaviour and conduct, the
applicant was obliged to
seek interim relief. Had she not proceeded in this fashion, the
respondent would have continued to make
life at the property
intolerable and this in turn, would have ‘driven her out’
of the property.
[45]
T
he respondent’s behavior and conduct, was
in my view, of a sufficient degree to establish a ‘
reasonable
fear of molestation
’ by the
respondent, should she return to the property. This in turn, goes
directly to the issue of balance of convenience
as the trial in the
main action is only some (5) months hence. Accordingly, I find in
favor of the applicant on the issue of balance
of convenience.
[46]
The respondent argues that the property is not
the parties matrimonial home, but it is their holiday home.
Accordingly, it is submitted
that the applicant falls to be evicted
as she enjoys no protection. It is difficult for me to accept that in
modern society a married
couple are capable, by legal definition, of
having only one single matrimonial home. Many married couples have
holiday homes, homes
in the city and homes in the country which they
occupy together because of the marriage relationship between them.
These homes,
in my view, are all matrimonial homes because they
occupy these homes together as a married couple.
[47]
As a matter of logic, as long as the property has been used from time
to time as the married couple’s residence prior
to separation,
this in my view, qualifies it as a matrimonial home. This property
was
ordinarily occupied by the
parties as their residence for regular family life and in my view
undoubtedly qualifies as a matrimonial
home of the parties.
[48]
With regard to the sale of the property, this issue is of necessity,
inextricably linked to the relief sought by the applicant
to occupy
the property,
pendent lite
. In the event that she is afforded
the right to live in the property, she will of necessity, be entitled
to protect the property
against it being sold
pendente lite
,
particularly while she is in occupation
.
[49]
Again on this issue, I find in favour of the applicant.
In
the applicant’s amendment application, the applicant includes a
prayer that she be entitled to purchase the respondent’s
half
interest in the property, at a market related price. Although this is
disputed by the respondent, this remains a factor that
militates
against the sale of the property
pendent
lite.
COSTS
[50]
The applicant seeks her costs of and incidental to this application.
The applicant contends that no evidence will emerge at
the trial,
which is relevant to these issues, which will have the effect of
placing the trial court in a better position to determine
the costs
of this application. The respondent submits that costs should stand
over for determination by the trial court as there
may be evidence
presented at the trial, which is relevant, and which may have an
effect on the determination of these costs. I
agree with the
respondent.
[51]
I am not satisfied that a proper case has been
made out that costs should be awarded at this stage. I am not
convinced that it is
a
racing
certainty
that no relevant evidence
may be tendered at the trial which may place the trial court in a
better position, to decide upon the
costs of this application.
ORDER
[52]
In the result the following order is granted, namely;
1. That the interim order
granted on the 28
th
of January 2020 is hereby confirmed
pendente lite.
2. That the costs of and
incidental to this application and the wasted costs incurred on the
26
th
of February 2020 (if any), including costs of two
counsel, shall stand over for determination by the trial court.
‘
D
WILLLE’
WILLE,
J
[1]
The
“IO”
[2]
The
old matrimonial home
[3]
The
property
[4]
This
is disputed and the respondent takes the position that this is the
parties holiday home and is not a matrimonial home
[5]
The
respondent’s case is that they went to the property for a
break and he left the property for work purposes only
[6]
The
‘IPO’
[7]
This
in my view is significant and is a factor to be considered in
connection with the ‘balance of convenience’
[8]
The
respondent did not occupy the property for a considerable period of
time
[9]
This
despite the IPO being in operation so as to avoid acts of “domestic
violence’
[10]
These
denials in my view amount to ‘bald’ denials and are
never really engaged with sufficiently and in the proper
context
[11]
The
IPO specifically caters for the fact that the respondent is
prevented from denying the applicant access to the property
[12]
He offers no explanation how the parading of his new partner in the
applicant’s night gown would assist in creating an
atmosphere
in which they could live together in peace and harmony pending the
finalization of their pending divorce action
[13]
The
letters and statement of account from the conveyancing attorney was
addressed to both parties
[14]
[1998] JOL 1936
(SE) at paragraph 5
[15]
1964 (2) SA 676 (T).
[16]
I
am of the view that this is an extremely ‘old-fashioned’
way of approaching this issue and is artificial
[17]
1974 (1) SA 609
(R), cited with approval in Oosthuizen v Oosthuizen
1986 (4) SA 984
(T) at 992I
[18]
(1953) 1 All ER 556
[19]
At 557G-H.
[20]
(1952) 1 All ER 1311.
[21]
At 1311.
[22]
(1971) 1 All ER 762 (CA).
[23]
At 764B-C.
[24]
At 613A-F