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[2016] ZAGPJHC 183
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G v G (23735/2016) [2016] ZAGPJHC 183 (13 July 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
23735
/2016
DATE:
13 JULY 2016
In
the matter between:
G,
A
C
.........................................................................................................................................
Applicant
And
G,
D
M
.....................................................................................................................................
Respondent
Judgment
Van
der Linde, J:
[1]
This is an application drawn by a lay
person for interim relief pending a divorce action only set down for
next year. The applicant
is the wife; the source of a substantial
activity of interlocutory applications is a rule 43 order made last
year by Meyer, J in
terms of which the respondent husband was
directed to pay, pendent lite, R35000 per month as maintenance for
the applicant and
their two minor children. He also had to pay
additional amounts.
[2]
The respondent’s counsel explained
that since then there have been an unsuccessful application by the
respondent to reduce
the rule 43 amount, an application by the
applicant to commit the respondent for contempt of court for not
paying the maintenance
ordered in the rule 43 application, a judgment
to that effect, a notice of appeal by the respondent against that
judgment, an application
by the applicant for leave to execute the
contempt order pending the appeal, an interdict application by the
respondent to freeze
the proceeds of the sale by the applicant of the
matrimonial home, and a further application by the applicant for
contempt of court
and payment of arrear maintenance.
[3]
Counsel further explained that the latest
orders made by these courts were by Matojane, J as recently as last
week. The learned
judge then dismissed two applications of the
applicant, one for leave to execute the contempt of court order
pending the appeal
by the respondent, and the other for a fresh
contempt of court order and payment of arrear maintenance.
[4]
The last mentioned application is the only
one of immediate relevance before this court, because the mainstay of
the respondent’s
resistance against the present application, as
argued by counsel, apart from relying on the predictable factual
disputes, is res
judicata, meaning that Matojane, J has decided the
relief sought and has dismissed it.
[5]
That brings one at last to what the
applicant wants in the present matter and what Matojane, J decided
last week. The applicant’s
relief is poorly formulated, because
the notice of motion is not also coherent and is interspersed with
factual averments. This
matter is again raised below in the context
of costs; but in oral argument the applicant made it plain that she
wants in these
proceedings is payment of R46068 and payment of
R11000.
[6]
Dealing first with the latter amount, the
R11000 is due, per month, for school fees. This particular amount was
due on 1 July 2016.
According to paragraph 2 of the notice of
motion that came before Matojane, J that relief was also sought
there. Since it
was dismissed by the learned judge, there is no scope
now to revisit it.
[7]
The R46068 is made up of three smaller
amounts. One such amount is R22810 as maintenance for June 2016,
payable on 30 June 2016.
That amount too was specifically identified
in the notice of motion before Matojane, J and dismissed by my
colleague. It too cannot
be revisited.
[8]
That leaves R23 258 which by
definition was not sought before Matojane, J because no further
amounts were there claimed. This
amount is therefore not struck by
the res judicata defence, and the question becomes whether the
applicant has made out a case
for payment of this amount.
[9]
This amount is made up of three components:
R2898 being a loan the applicant incurred to provide food for the
children, R2352 in
respect of medical braces for the children, and
R18 008 owed to the applicant’s brother in respect of a
loan to be able
to pay school fees for the children.
[10]The
starting point is that in terms of the rule 43 order the respondent
had to pay R35000 as maintenance, and all dental costs,
and all
private school fees. In the present matter the papers before me do
not include an answering affidavit by the respondent.
They comprise
only the applicant’s notice of motion, founding affidavit and
annexures to the founding affidavit, being A,
B, C, D, F, G, H, I, J,
K, L, P, Q, R, S, T, U, V, W, X, Y, Z1, Z2, Z3, and W4 to W8.
[11]The
founding affidavit makes averments that these amounts were properly
incurred and are owing, particularly since the respondent
is in
arears with his rule 43 payments in a substantially larger amount.
These assertions are not traversed and disputed in an
answering
affidavit. It appears the respondent adopted the attitude, reflected
in a letter of Monday’s date (11 July 2016),
handed up during
the hearing (12 July 2016), addressed by his attorney to the
applicant, that the same application has again been
placed before the
court.
[12]The
applicant was accordingly advised in the letter to withdraw her
latest application and tender costs, “failing which
we will
request a dismissal of the pending application and seek a punitive
cost order against you on attorney and client scale.”
[13]
But a successful plea of res judicata requires for
the same, or substantially the same, relief to have been sought in
the earlier
matter between the parties. The only documents placed
before me were the present papers (comprising only papers on behalf
of the
applicant), and the founding papers (some 159 pages) that
served before Matojane, J.
[14]
And the only documents of relevance for the res judicata point are
the two notices of motion, because they convey what was
claimed
earlier and what is being claimed now. As pointed out above, a
comparison of those two shows that some items now claimed
were in
fact not claimed then.
[15]
In the result the plea of res judicata cannot be upheld in respect of
the three items making up R23258, referred to and discussed
above.
[16]
The applicant asks for costs. She appeared in person, and it was not
clear what costs she would have incurred. She made no
submissions in
that regard. In any event, the papers are badly drawn and do not
comply with the rules of court in many respects.
They are, in places,
also incoherent and difficult to follow. In the result I am not
prepared to make a costs order.
[17]
The following order issues:
(a)
Judgment is entered in favour of the
applicant against the respondent for R23258.
(b)
No order as to costs will issue.
WHG van der Linde
Judge, High Court
Johannesburg
For the
applicant: in person
For the
respondent: Adv. Garvey
Instructed by
Masilo Freimond Inc
011-9580488
Date heard:
12 July 2016
Date
judgment: 13 July 2016