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[2021] ZAWCHC 43
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O.B v L.B.D.S (20540/2018) [2021] ZAWCHC 43; [2021] 2 All SA 527 (WCC); 2021 (6) SA 215 (WCC) (9 March 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 20540/2018
In
the matter between:
O[…]
B[…]
Appellant
and
L[…]
B[…] D[…] S[…]
Respondent
Coram:
Saldanha J, Henney J
et
Cloete J
Heard:
22 January 2021; supplementary notes delivered: 2
and 25 February 2021
Delivered
electronically:
9 March 2021
JUDGMENT
CLOETE
J: (HENNEY J concurring, SALDANHA J dissenting)
[1]
This is an appeal with leave of the court a
quo against its order dismissing the appellant’s unopposed
divorce action on the
ground that the jurisdictional requirements
contained in s 2(1) of the Divorce Act 70 of 1979 (“the
Divorce Act&rdquo
;) had not been met. There is no opposition to the
appeal.
[2]
The relevant background facts are as
follows. On 6 December 2017 at Cape Town the parties, both
foreign nationals, entered
into a civil union in terms of the
Civil
Union Act 17 of 2006
, in which they married out of community of
property by antenuptial contract with the incorporation of the
accrual system.
[3]
On 18 October 2018 they concluded a
settlement agreement in anticipation of a divorce. The appellant’s
summons was issued
on 7 November 2018. She alleged in her
particulars of claim that she was domiciled within this court’s
area of jurisdiction
and was also ‘
currently
residing’
on a farm in the
Caledon area. The respondent was alleged to be residing in Namibia.
It was further alleged that the marriage had
broken down
irretrievably and that the parties ceased living together on ‘
the
estimated date’
of 15 December
2017. The settlement agreement (‘
Consent
Paper’
) was annexed to the
particulars of claim, and the appellant sought a decree of divorce
incorporating its terms.
[4]
On 22 January 2019 an
ex
parte
order was granted authorising the
appellant to serve the summons via the sheriff on the respondent
personally in Namibia. This
duly occurred and the matter was
thereafter enrolled on an unopposed basis in the motion court for
hearing on 10 April 2019.
[5]
The appellant testified that she relocated
back to Moscow, Russia (her country of origin) sometime around the
end of December 2018.
In response to a question by her counsel she
confirmed that she was ‘
permanently
resident’
in Caledon from April
2018 until December 2018, and conducted her freelance accounting
business remotely from there for her clients
in Russia.
[6]
The appellant was afforded the opportunity
to give further evidence after the court a quo indicated that it was
not satisfied, based
on that testimony, that it had the necessary
jurisdiction. The appellant then explained that she and the
respondent came to South
Africa with the intention of marrying here,
since same-sex marriages are not recognised in either Namibia or
Russia.
[7]
She testified further that before the
marriage, the parties travelled to various places in South Africa:
‘
We were looking for a place where
we want [to] maybe live’.
In
Caledon they met a certain Mr Kleyn who had what she described
as a beautiful farm: ‘
So we became
friends and he suggested to us [that] before we find our own property
to live, to live at his place…’.
An agreement was then reached in terms of which the parties would
reside on the farm: ‘
We choose
Caledon and decide to stay there’.
From what can be gleaned from the evidence, the parties were residing
in Caledon and intended to remain there indefinitely at the
time of
their marriage.
[8]
It was a few weeks after the marriage,
towards the end of December 2017, that they travelled to Germany on
honeymoon for 10 days.
The appellant testified that while on
honeymoon she realised the marriage had been a mistake. Although she
no longer wished to
continue with the marriage she nonetheless
planned to continue living in Caledon.
[9]
She travelled on to Moscow to make the
necessary arrangements with her clients, and returned to Caledon
during April 2018. It bears
mention that the appellant signed the
Consent Paper in Moscow on 8 October 2018 and the court a quo
stated in its judgment
that the founding affidavit in the edictal
citation application was also signed by her in Moscow on 27 November
2018. Her
evidence in this regard was limited to ‘
I
was for two weeks in Moscow in November, and I was moving’
,
and that she also travelled to Russia during the period April to
December 2018 for business purposes.
[10]
Although not entirely clear from the record
given the appellant’s testimony in English (her mother tongue
being Russian),
it would seem on the probabilities that in stating ‘
I
was moving’
she was referring to
her move to South Africa, since in response to a question by the
court a quo whether her entire life was still
in Moscow she replied:
‘
No, my entire life was in
Caledon’
. She explained that over
that period she was also looking to buy property in the Caledon area
in which to live.
[11]
It appears that after the appellant’s
visit to Russia in November 2018 matters with her clients did not
work out as planned,
since some insisted on personal contact which
was impossible given the geographical distance. The appellant’s
evidence was
that it was at the end of December 2018 she came to
realise that she would have to move back to Russia permanently.
[12]
Counsel for the appellant, without dealing
with domicile, then addressed the court a quo on the issue of
residence, and more particularly
the meaning of ‘
ordinarily
resident’
as it appears in
s 2(1)
of the
Divorce Act, which
provides as follows:
‘
2.
Jurisdiction.
– (1) A
court shall have jurisdiction in a divorce action if the parties are
or either of the parties is---
(a)
domiciled in the area of
jurisdiction of the court on the date on which the action is
instituted; or
(b)
ordinarily resident in the area of
jurisdiction of the court on the said date and have or has been
ordinarily resident in the Republic
for a period of not less than one
year immediately prior to that date.’
[13]
In its judgment the court a quo dealt
comprehensively with the issue of jurisdiction, but focused on the
meaning of ‘
ordinarily resident’
in light of the submissions made by counsel at the hearing. The
learned Judge concluded that the period of the appellant’s
‘
sojourn’
in Caledon was insufficient to meet the ordinary resident requirement
in
s 2(1)(b).
He correctly stated that during the hearing the
appellant’s counsel, by implication, abandoned any reliance on
s 2(1)(a)
above.
[14]
The failure to rely on
s 2(1)(a)
persisted in the application for leave to appeal, the notice of
appeal and the appellant’s heads of argument filed prior
to the
appeal. The approach taken was that at the time the divorce action
was instituted neither of the parties were domiciled
or resident in
this court’s area of jurisdiction, seemingly in terms of
s 2(1)
of the
Divorce Act. I
say “seemingly” since the grounds
of appeal were that the court a quo erred in failing to find it had
jurisdiction
under the common law, alternatively developing the
common law to provide a basis for jurisdiction in the particular
circumstances
of this matter.
[15]
An invitation was extended to us to develop
the common law so as to permit spouses in the position of the parties
to divorce in
South Africa where the countries in which they are
domiciled or ordinarily resident at the time of institution of
divorce proceedings
do not recognise same-sex marriages.
[16]
It
was however incumbent upon us to nevertheless raise the issue of
domicile, in terms of
s 2(1)(a)
, with the appellant’s
counsel during the appeal. As the Constitutional Court remarked in
Quartermark
Investments (Pty) Ltd v Mkhwanazi and Another
[1]
:
‘
[20]
In considering the role of the court, it is appropriate to have
regard to the well-known dictum of
Curlewis JA in
R
v Hepworth
to the effect that a criminal
trial is not a game and a judge’s position is not merely that
of an umpire to ensure that the
rules of the game are observed by
both sides. The learned judge added that a ‘judge is an
administrator of justice’
who has to see that justice is done.
While these remarks were made in the context of a criminal trial they
are equally applicable
in civil proceedings and in my view, accord
with the principle of legality. The essential function of an appeal
court is to determine
whether the court below came to a correct
conclusion. For this reason the raising of a new point of law on
appeal is not precluded,
provided the point is covered by the
pleadings and its consideration on appeal involves no unfairness to
the party against whom
it is directed. In fact, in such a situation
the appeal court is bound to deal with it as to ignore it may ‘amount
to the
confirmation by it of a decision clearly wrong’, and not
performing its essential function. This in turn would infringe upon
the principle of legality…’
[17]
Domicile in terms of
s 2(1)(a)
was
raised because what the appellant’s counsel overlooked, and
thus failed to draw to the court a quo’s attention,
is that
s 1(2)
of the
Divorce Act contains
the following deeming
provision:
‘
(2)
For the purposes of this Act a divorce action
shall
be deemed to be instituted on the date on which the summons is issued
or the notice of motion is filed or the notice is delivered in terms
of the rules of court, as the case may be.’
[emphasis supplied]
[18]
Accordingly, the question is whether or not
the evidence before the court
a quo
was sufficient to warrant the conclusion that the appellant was
domiciled in its area of jurisdiction on 7 November 2018,
the
date when summons was issued by the registrar, and not the date when
it was later served on the respondent in Namibia after
the appellant
returned permanently to Russia. (In its judgment the court a quo
stated that the summons was served on the respondent
on 31 April
2019 and that the action therefore commenced on 4 April 2019. I
accept that what he probably meant was that
the summons was served on
30 April 2019 and the action thus commenced on that date).
[19]
The appellant’s counsel was afforded
the opportunity to provide us with a supplementary note, in which the
invitation to develop
the common law was abandoned, and we were
instead requested to decide the appeal solely on the basis that the
court a quo erred
in failing to find the appellant was in fact
domiciled within its area of jurisdiction when the summons was issued
in terms of
s 1(2) as read with s 2(1)(a) of the
Divorce
Act. Written
submissions were also provided in support thereof.
[20]
Since its amendment by GN R472 of 12 July
2017, uniform
rule 49(4)
mirrors the wording of sub-rules 7(3)(a) and
(b) of the Supreme Court of Appeal rules. They read as follows:
‘
Every
notice of appeal and cross-appeal shall state –
(a)
what part of the judgment or order
is appealed against; and
(b)
the particular respect in which the
variation of the judgment or order is sought.’
[21]
In
Leeuw
v First National Bank Limited
[2]
the Supreme Court of Appeal set out the position as follows:
‘
In
this court it is not required that grounds of appeal be stated in the
notice of appeal. The nature of the proceedings is such
that this
court is entitled to make findings in relation to “any matter
flowing fairly from the record”. The parties
in their written
and oral arguments have dealt with all the issues relevant to the
appeal and the appellant has not pointed to
anything that has been
overlooked…’
[22]
Accordingly, in addition to the authority
of
Quartermark Investments
,
we are in any event not precluded from dealing with the appeal on the
new ground advanced.
[23]
There
is a dearth of authority on the deeming provision in
s 1(2)
of the
Divorce Act. In
H
V v C V
[3]
the respondent had already issued summons for a divorce in
KwaZulu-Natal when one was issued at the instance of the applicant
out of this court. The applicant’s summons was served on the
respondent before his was served on her.
[24]
The applicant thereafter launched a
rule 43
application in this court and the respondent objected to its
jurisdiction on the basis of
s 1(2).
Although his counsel conceded in
argument that this court had jurisdiction, Binns-Ward J considered
the import of
s 1(2)
as follows:
‘
[5] Counsel,
however, quite properly, drew my attention to the provisions
of
s 1(2)
of
the
Divorce
Act 70 of 1979
,
which at first blush might be read to have the opposite effect…
Counsel
were not able to refer me to any decided case in which the import
of
s 1(2)
of
the
Divorce
Act had
been
considered or determined, and in the limited time available to me in
the context of managing the Third Division roll I have
also not been
able to find any.
[6] There
are two striking features about the provision. The first is
that it is a deeming provision and the second is
that the object of
the deeming function is to serve
“
the
purposes of th[e] Act”
.
A deeming provision generally has the effect of causing something to
be treated as if it were something that it is actually
not.
Actual joinder, and the attendant commencement of the action, occurs
only upon service of the initiating summons.
I
have been unable to identify any purpose of the Act that would be
served by treating the date of
issue
of
an unserved summons as determinative of the question before which
court the action is pending when
service
of
a summons issued later in another court of competent jurisdiction had
been effected
.
Put otherwise, it does not serve any purpose of the Act to treat the
court before which the action is not actually pending
as if it were
the court in which the action was effectively commenced.
[7] What
then are the purposes to which the deeming effect of
s 1(2)
might
sensibly pertain? In my view, the deeming provision is germane
in respect of a number of issues arising for determination
under the
Act, in which the effect of the decision is time-related in terms of
the Act. I do not pretend to have undertaken
an exhaustive
consideration, but examples that leap out on a cursory examination of
the statute’s provisions are the time-related
presumption
bearing on proof of the irretrievable breakdown of a marriage
relationship provided in
s 4(2)(a)
,
and the calculation of the two-year period of detention in respect of
mentally ill spouses for purposes of
s 5(1)
of
the Act and the six-month period of continuous unconsciousness
in
s 5(2)
in
respect of defendant spouses who are suffering from a physical
disorder. Those periods fall to be calculated from the deemed
date of the institution of the divorce action irrespective of the
court in which that action became pending.
[8]
In the circumstances, I am satisfied that this court is seized of the
divorce action, and that the deeming provision in s 1(2)
does not
detract from that fact…’
[emphasis supplied]
[25]
There is however another reason for the
deeming provision in s 1(2), and this was explained by the
authors of
The Law of Divorce and
Dissolution of Life Partnerships in South Africa
(editor Heaton) at 507-508:
‘
Action
proceedings are generally regarded as having been instituted when
they are served on the Defendant. An exception operates
in respect of
divorce proceedings.
Section 1(2)
of the
Divorce Act provides
that
for the purposes of the Act, a divorce action is deemed to be
instituted on the day on which the summons is issued, or the
notice
of motion is filed, or the notice delivered in terms of the rules of
court.
This section can be very
important, particularly in respect of jurisdictional disputes. It can
sometimes be very tricky to effect
service of proceedings instituted,
and parties frequently attempt to forum shop to secure the most
favourable result. Although
it is not a failsafe means of securing
jurisdiction in respect of a matter, the institution of proceedings
will at the very least
secure the litigant the opportunity of
litigating in his or her chosen jurisdiction
.’
[emphasis supplied]
[26]
In his further written submissions counsel
for the appellant submitted that whilst at first blush it may seem
that
H V v C V
renders
s 1(2) ‘
redundant’
,
this is not the case; the learned Judge’s findings were clearly
directed at those instances where a spouse causes a divorce
summons
to be issued but thereafter takes no steps to have it served, but
although the other spouse’s summons is issued thereafter
(in
another court of competent jurisdiction), he or she does ensure that
service is effected. In such circumstances, he submitted,
s (1(2)
would have no bearing on the matter since the deeming provision would
serve no purpose, and the parties should not be required
to proceed
with an action in a court where the matter is not actually pending.
[27]
I am unable to agree with this submission.
Binns-Ward J expressly stated that he had been unable to identify any
purpose of the
Divorce Act that
would be served by treating the date
of issue of an unserved summons as determinative of jurisdiction,
where service of such a
summons issued later in another court of
competent jurisdiction had been effected.
[28]
As previously stated, the purpose which I
have identified (as submitted by Heaton et al) is to afford a spouse
the opportunity of
litigating in his or her chosen area of
(competent) jurisdiction. There may of course be other purposes,
including those mentioned
by the learned Judge, but they have no
bearing on jurisdiction. However it is not necessary to go further
than this since in the
instant case the date of issue of the
appellant’s summons by the registrar is all-important.
[29]
That being said, it may well be necessary
in an appropriate case to consider whether there should be a “reading
in”
of a proviso in
s 1(2)
to the effect that a later
issued summons, subsequently served, shall be determinative of
jurisdiction in divorce actions if the
spouse who first caused
summons to be issued subsequently fails to take steps to effect
service either wilfully or negligently.
This would however no doubt
require input from the Government Minister(s) concerned as well as
other interested parties, with their
attendant joinder(s).
[30]
Returning to the instant matter, the court
a quo found that the appellant gave no evidence regarding her
domicile. It also referred
to her testimony that the parties wished
to establish whether they liked South Africa for purposes of
relocating here permanently.
As the learned Judge put it: ‘
It
was more a trial run before finally deciding to establish a domicile
of choice in this country’.
[31]
While the latter may have been the factual
position when the parties first arrived in South Africa, my
understanding of the appellant’s
evidence is that an agreement
had already been concluded with Mr Kleyn prior to the marriage
that the parties would reside
on his farm because they had chosen
Caledon as the place where they would live.
[32]
This is consistent with the appellant’s
testimony that after the parties separated in December 2017 she took
the necessary
steps to inform her Russian clients of her intention to
do so, in fact returned on her own to this court’s jurisdiction
for
some nine months, and considered buying property here, before
circumstances caused her to realise at the end of December 2018 that
she had no choice but to return to Russia. There is also her evidence
that her trips to Russia during the period April to December
2018
were not because she still considered it to be her home (or
domicile).
[33]
All of these facts, cumulatively, lend
support for the averment in her particulars of claim that at the time
the action was instituted
on 7 November 2018 she was domiciled
within this court’s area of jurisdiction.
[34]
Section 1 of the Domicile Act 3 of 1992
(“the Domicile Act”) provides as follows:
‘
1.
Domicile of choice.
---(1) Every
person who is of or over the age of 18 years, and every person
under the age of 18 years who by law has
the status of a major,
excluding any person who does not have the mental capacity to make a
rational choice, shall be competent
to acquire a domicile of choice,
regardless of such a person’s sex or marital status.
(2)
A domicile of choice shall be acquired by a person when he is
lawfully present at a particular place and has the intention
to
settle there for an indefinite period.’
[35]
There
is no suggestion that at any stage the appellant was in South Africa
unlawfully. In
Chinatex
Oriental Trading Co v Erskine
[4]
the court dealt with the acquisition of a domicile of choice for
purposes of the Domicile Act as follows:
‘…
A
domicile of choice can thus be acquired by sufficing two elements:
(i)
physical presence (an objective
fact) and
(ii)
an intention to remain indefinitely
(a subjective test).
A
person’s physical presence requires more than a visit or a
sojourn to the country. Accordingly the longer the person is
settled
at a particular place, the greater the likelihood of a court
regarding him as resident there for the purposes of domicile.
(
Johnson v Johnson
1931
AD 391
at 411.)
The second
element,
animus manendi
,
does not require an intention to remain permanently. The person must
display a state of mind which is consistent with the intention
of
remaining indefinitely, which intention need not be irrevocable in
order to show that a domicile of choice has been acquired
.
(Pollak (1933) 50
SALJ
at
465;
Ley v Ley’s Executors and
Others
1951 (3) SA 186
(A);
Eilon
v Eilon
1965 (1) SA 703
(A) at 721A.)
Furthermore a continuing emotional attachment to one’s country
of origin is insufficient to negative a domicile
of choice. (
Eilon
v Eilon
(
supra
)at
705A).)’
[emphasis
supplied]
[36]
In the absence of an adverse credibility
finding against the appellant by the court a quo, we are bound to
accept her version. As
submitted by C F Forsyth
Private
International Law
(5ed) at 141 the most
apt description of an intention to reside in a particular place for
an indefinite period is ‘
until and
unless something, the happening of which is uncertain, occurs to
induce the person to leave…’.
[37]
In
LAWSA:
Conflict of Laws
(2ed 2(2)) at para 301
the author, relying on the opinion expressed in para 3.44 of the
South African Law Commission Working Paper
20 on the issue of
domicile of choice, states:
‘
Whilst
the strength of an intention to settle in a country may be easy
enough to gauge… and thus satisfy the test of intention,
the
just resolution of hard cases will require a more flexible approach
for determining the acquisition of a domicile of choice
than can be
provided by the test of intention which serves legal certainty
alone.’
[38]
Having regard to the evidence before the
court a quo I am persuaded that, although the facts in this matter
may constitute a “hard
case” on domicile, a flexible
approach is called for, and that to lean on legal certainty alone
would militate against the
interests of justice. It would follow, on
this reasoning, that the appellant established on a balance of
probabilities that at
the time of institution of the divorce
proceedings she was domiciled within this court’s area of
jurisdiction, and the court
a quo thus had the requisite jurisdiction
to grant the decree of divorce.
[39]
The following order is made:
1.
The appeal succeeds.
2.
The order of the court
a
quo
is set aside and substituted
with the following:
‘
A
decree of divorce is granted incorporating the terms of the parties’
Consent Paper’.
3.
No order is made as to costs.
__________________
J I CLOETE
I agree.
__________________
R
C A HENNEY
SALDANHA
J (dissenting)
:
[1]
I have had the advantage of reading the
judgment of the majority, for which I am grateful, and for the
reasons set out herein respectfully
dissent therefrom. In my
view, the appellant had, on a careful reading of the evidence
presented to the court
a quo
,
failed to establish as a matter of fact that she had adopted a
domicile of choice in this country, and in particular the Western
Cape, on the date on which the proceedings were instituted, and that
the court a quo had the necessary jurisdiction to terminate
the
marital relationship between the parties.
[2]
It is perhaps necessary to reflect very
briefly on the proceedings before the court
a
quo
, and in particular with regard to
the concerns raised by Dolamo J regarding the appellant’s
domicile, and his findings in
relation thereto.
[3]
It is not necessary to set out the details
of the relationship between the appellant and the defendant, save to
state that both,
as peregrines, elected to solemnise their marriage
in South Africa in terms of the Civil Union Act 17 of 2006 (“the
Civil Union Act&rdquo
;). The appellant claimed that her country
of origin, Russia, did not recognise same sex marriages, and so too
did the country
of origin of the defendant, Namibia. For that
reason they elected to live in South Africa after their marriage, and
chose
it as their domicile of choice in light of their marital
relationship.
[4]
In the particulars of claim the appellant
claimed that, at the time of the institution of the divorce
proceedings, she had ‘currently
resided’ at plot 240
Tesselaarsdal, Caledon, in the Western Cape. She also claimed
to be domiciled within the area
of jurisdiction of the court.
[5]
At the date on which the divorce
proceedings were heard before the court
a
quo
, 10 April 2019, the appellant
resided in Moscow, in her country of origin. When led by her
counsel in her evidence in chief,
she stated that she had been
permanently resident in Caledon in the Western Cape prior to having
returned to Moscow. In response
to a question from the court as
to whether she had intended to remain in Caledon, or whether it was
just a temporary stopover,
she stated: ‘I was just trying to
return me myself (sic) and to stay at a place where I like to stay’.
It is
to be noted that no English-Russian interpreter was used in the
proceedings, which may have accounted for the manner in which the
appellant expressed herself in her testimony. In further
clarification to the court she stated that Caledon was the place
that
she ‘had liked but [she] had to move to Russia because of
work’. It was apparent from the evidence that
after the
parties’ marriage on 6 December 2017, the relationship had
lasted no more than about 10 days, and that the parties
had,
subsequent to their honeymoon in Germany during December 2017, no
longer lived together.
[6]
The appellant, an accountant, appeared
thereafter to have gone to Moscow, where she entered into contracts
with her clients to attend
to their work, which she was to conduct
remotely from South Africa. She had no clientele in South
Africa, and explained that
she would have had to enter into contracts
on an annual basis with her clients in Moscow.
[7]
She also claimed that the intention behind
the decision for herself and the defendant to live in South Africa,
was to ‘live
as a family here’.
[8]
During the course of her testimony in the
court
a quo,
the
court indicated that it was not satisfied that the appellant had
established the court’s jurisdiction to terminate the
marriage. The appellant was led further in evidence by her
counsel in an attempt to clear that aspect up. She explained
that prior to her marriage to the defendant, they had travelled
around in search of a place to settle down. They had struck
up
a friendly relationship with one Mr. Donovan Kleyn in Caledon, who
owned a large property and allowed them to reside on part
of his farm
without a formal lease. In response to the question as to why
she had returned to Caledon after the relationship
between herself
and the defendant broke down, she stated: ‘I still intended to
go to Caledon because I really wanted that
place…’.
It appeared that she had returned to South Africa in April 2018.
Although it is not clear from
the evidence, it appears that at the
time the divorce proceedings were instituted, on 7 November 2018, she
had been in Moscow,
as she had shortly thereafter deposed to an
affidavit for the summons to be served on the defendant, in Namibia,
by way of edictal
citation. She returned to South Africa
sometime in either November or December and, because of personal and
financial reasons,
‘finally decided’ in December 2018 to
return permanently to Russia.
[9]
The court
a
quo
, in its judgment, stated that the
legal question for determination was whether the appellant was
domiciled within the area of jurisdiction
of the court at the time of
the institution of the divorce proceedings; alternatively, whether
the defendant was ordinarily resident
in the area of jurisdiction of
the court, and had been so ordinarily resident for a period of no
less than one year immediately
prior to the institution of the
divorce proceedings. In respect of the question of domicile,
the court stated: ‘this
bold statement was not borne out by the
evidence. Not a stitch of evidence was led regarding the
domicile’
.
The court recorded that the appellant’s legal
representative had, by implication, conceded as much and had not
persisted
with the argument that domicile was a basis for the court’s
jurisdiction. Instead, he sought to persuade the court that
the
appellant had been ordinarily resident in the country at the time the
proceedings were instituted. The court
a
quo
dealt extensively in the judgment
with the issue of ‘ordinarily resident’, as provided for
in the Divorce Act 70 of
1979 (“the
Divorce Act&rdquo
;), and
arrived at the conclusion that the appellant had not proved that she
had been ordinarily resident within the jurisdiction
of the court for
a period of no less than 12 months immediately prior to the
institution of the action. On that basis, the
court
a
quo
found that it did not have
jurisdiction and dismissed the action.
[10]
The
appellant sought leave to appeal against this decision, on the basis
that the court
a
quo
had failed to consider the common law as a basis for jurisdiction,
and/or alternatively had failed to develop the common law in
terms of
sections 39
[5]
and 173
[6]
of the Constitution, Act 108 of 1996, to provide a basis for
jurisdiction for the court to determine the divorce proceedings
peculiar
to same sex couples whose country of origin did not
recognise such unions. In the judgment of the court
a
quo
on the application for leave to appeal, it noted that the issue as to
the development of the common law had not been raised before
it at
all, but given its importance, granted leave to appeal.
[11]
When the appeal was first heard by the full
bench of this court, we raised the following issues with the
appellant’s legal
representative:
Inasmuch
as the appellant sought the development of the common law in respect
of the jurisdiction of the court, in circumstances
where the parties
were married in terms of the
Civil Union Act and
in which their
countries of origin did not recognise such unions, and given its
impact, not only on the common law but also on
various statutory
provisions, it was necessary that notice was given in terms of
Rule
16A
of the Superior Courts, and in particular to the relevant
Ministers of Justice and Constitutional Development and Home Affairs,
as such ministries may have an interest in the relief sought.
The appellant was also required to provide expert testimony
with
regard to the issue of jurisdiction in the country of origin of the
defendant, Namibia, and, to the extent relevant, the application
of
the doctrine of f
orum non conveniens.
[12]
In
a note provided to the court by the appellant’s legal
representative he stated that, in light of the difficulties with
regards to the non-compliance with
Rule 16A
, as well as the issue of
forum
non conveniens
,
and in consideration of the court’s remarks with regard to the
issue of domicile, in particular the application of the deeming
provision in
section 1(2)
[7]
of the
Divorce Act, that
the appellant would now seek relief in the
appeal on the following basis:
1.
That the court
a
quo
had erred and/or misdirected itself
by its failure to consider the fact that the court had jurisdiction
to entertain the divorce
proceedings on the basis that the appellant
was domiciled within this court’s jurisdiction upon the issuing
of the divorce
action; and consequently
2.
That the court
a
quo
had erred and/or misdirected itself
by finding that it had no jurisdiction to entertain the divorce
action.
[13]
The
appellant further contended that on the basis of
section 1(2)
of the
Divorce Act, which
provides that ‘[f]
or
the purposes of this Act a divorce action shall be deemed to be
instituted on the date on which the summons is issued…’,
and
read with section 2(3)
[8]
of the
Divorce Act,
that
the court
a
quo
had had the necessary jurisdiction to hear the divorce proceedings on
10 April 2019. In a further note to the appeal court,
upon
enquiry as to whether the appellant had confined herself to the
grounds of appeal raised in (1) and (2) above, counsel for
the
appellant confirmed that that was now the position of the appellant.
[14]
The appellant’s legal representative
contended that from the appellant’s evidence before the court
a
quo
, she had ‘formed the
unequivocal intention to pursue her future in South Africa’,
had made all the necessary arrangements
with her clients in Russia
for her to work remotely from South Africa, and that her entire life
was situated in this court’s
jurisdiction. She had only
eventually decided to move back to Russia at the end of December
2018. Counsel for the appellant
contended that she had had a
clear intention to remain in South Africa for an indefinite period,
to which she had given effect
by having resided in Caledon for the
period April 2018 to late December 2018. That view appears also
to be shared by my colleagues
in the majority judgment, although with
less certitude than that proffered by counsel for the appellant.
I, however, as was
the court a quo, am not persuaded that the
appellant had in fact unequivocally expressed or established that she
had elected the
Western Cape and South Africa as her domicile of
choice. More so, in my view, after the breakup of the marriage
between the
parties. It was apparent that she and the defendant
had initially sought to live in South Africa, and to establish it as
their domicile of choice, because of their marriage not being
recognised in their countries of origin. The situation,
however,
appeared to be more tenuous after the breakdown of the
marital relationship, and with the appellant’s sojourn to
Moscow in
2018 when the divorce proceedings were instituted.
She herself stated that she had ‘finally taken’ the
decision
to return to Moscow in December 2018. In my view,
there was clearly no expressed and clear intention that she had in
fact
chosen South Africa as her domicile of choice, or that she had
demonstrated that it was so as at 7 November 2018, when the divorce
proceedings were instituted.
[15]
The authorities are clear that to establish
a domicile of choice the person concerned, besides expressing a mere
intention to reside
permanently at a proposed domicile, must also
establish such choice of domicile from all the surrounding
circumstances and that
she has in fact done so. See LAWSA Vol
7(1) 3
rd
Ed para 328: ‘Factors to be considered in determining whether a
new domicile has been acquired are the (probably questionable)
assumption that a spouse who leaves the other spouse behind at a
place does not change his or her domicile there; the period of
residence at the alleged domicile; the motive for residing there; the
ownership of property there (or sale of property in the previous
domicile); the application for permanent residence or citizenship
there; any circumstantial evidence indicating the presence or
absence
of an
animus manendi
;
direct evidence about the subjective intention to be domiciled in a
certain area; and evidence of past expressions of intention.’
(Original text footnotes omitted.) In the evidence presented by
the appellant in the court
a quo
,
she did no more than to express her ‘liking’ to live in
South Africa after the marriage relationship had broken down
between
herself and the defendant. She had established no other
connection with South Africa, whilst retaining her clientele
in
Moscow and servicing them remotely. Moreover, she had indicated
no more than an intention to acquire property in her own
name.
No indication was provided that she had officially sought to obtain
formal residence or citizenship in South Africa,
or that she had a
social circle here. She certainly had no clients in South
Africa. She was required to return to Russia
to enter into or
renew contracts with her Russian clients. That arrangement,
however, appeared to be neither feasible nor
financially viable and,
for personal reasons also, she was forced to ‘finally’
return to Russia in December 2018.
[16]
In this regard I am mindful of the
reference by the majority to LAWSA: Conflict of Laws (Vol 7(1) 3
rd
Ed para 326), where reliance is placed on the opinion expressed by
the South African Law Commission Working Paper 20 on the issue
of
domicile of choice. While this may indeed be a ‘hard
case’ on domicile, I am not persuaded that a flexible
approach,
in respect of the facts of this matter, can be adopted in the
interests of justice. In my view, the interests of
justice are
more properly served when a domicile of choice is properly
established on the facts and on the evidence presented,
rather than
on an overly generous interpretation of the evidence, or by a lack
thereof. That, in my view, could also lead
to undesirable
situations where a domicile of choice is expediently chosen as a
guise for jurisdiction (country or forum) shopping,
or by a peregrine
in an attempt to subvert the requirements of the relevant statutes
and the common law relating to the jurisdiction
of our courts.
[17]
I am therefore not persuaded that the
appellant established that the court
a
quo
had the necessary jurisdiction to
deal with the divorce proceedings, and, in my view, the court
a
quo
correctly dismissed the action.
__________________
V C SALDANHA
Judge
of the High Court
[1]
2014
(3) SA 96 (SCA).
[2]
2010
(3) SA 410
(SCA) at para [5].
[3]
(6384/2019)
[2019] ZAWCHC 74
(21 June 2019).
[4]
1998
(4) SA 1087
(C) at 1093J-1094C.
[5]
‘
(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote
the spirit, purport and objects of the Bill of Rights.’
[6]
‘The Constitutional Court, Supreme Court of
Appeal and High Courts have the inherent power to protect and
regulate their own process, and to develop the common law, taking
into account the interests of justice.’
[7]
‘For the purposes of this Act a divorce action
shall be deemed to be instituted on the date on which the summons
is
issued or the notice of motion is filed or the notice is delivered
in terms of the rules of court, as the case may be.’
[8]
‘
A
court which has jurisdiction in terms of this section in a case
where the parties are or either of the parties is not domiciled
in
the Republic shall determine any issue in accordance with the law
which would have been applicable had the parties been domiciled
in
the area of jurisdiction of the court concerned on the date on which
the divorce action was instituted.’