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[2017] ZAGPJHC 400
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T v T (012580/16) [2017] ZAGPJHC 400 (19 November 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 012580/16
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
T
T
Plaintiff
and
T
R
Defendant
Coram
:
Thompson AJ
Date
of Hearing
: 7
December 2017
Date
of Judgment
: 19
December 2017
JUDGMENT
LEAVE TO APPEAL
THOMPSON AJ:
[1]
In this matter I made an order whereby the seeking of unopposed
matrimonial relief was removed from the roll, together with
an order
that the Plaintiff is to pay the costs occasioned by the enrolment of
the matter on the unopposed roll. The Plaintiff
now seeks leave
to appeal against my alleged refusal to grant an unopposed decree of
divorce and the resultant costs order.
[2]
For various reasons this application must fail. Foremost, the
matter was removed from the roll by agreement between the
Plaintiff
and the Defendant. The only issue that was argued before me was
the issue of costs. At this moment I need
to digress.
Prior to the hearing of the matter I had grave doubts regarding the
correctness and validity of the order by
Shirelele AJ. This
concern I raised with Counsel for the Plaintiff when the matter was
called, and the matter was stood down.
When the matter was
recalled Counsel for the Plaintiff indicated that the matter is to be
removed from the roll. Counsel
for the Defendant agreed to the
removal of the matter from the roll, however he wished to argue the
issue of costs. During
the costs argument the validity of
Shirelele AJ’s order was debated at length. I, during
argument, indicated to Counsel
for the Plaintiff that the Plaintiff’s
contention that the divorce can proceed on an unopposed basis could
only possibly
have been entertained if the Plaintiff’s
liability for spousal maintenance was not in issue. Plaintiff’s
Counsel,
after having taken instructions in court, formally conceded
that the Plaintiff is liable to the Defendant for spousal
maintenance.
[3]
The matter, however, did not end there. The Defendant contended
that the matter is still not ripe for hearing due to various
proprietary issues that still requires to be dealt with.
Counsel for the Plaintiff, on the other hand and in light of the
concession made on behalf of the Plaintiff, did not seek to renege
from the agreement with the Defendant’s Counsel whereby
the
matter is to be removed from the roll.
[4]
In addition to the above, the order whereby the matter was removed
from the roll does not constitute an order that is final
in effect
[1]
and is not susceptible to an appeal. Counsel for the Plaintiff
sought to overcome this difficulty by relying on paragraph
16 of my
judgment whereby I noted that at least one proprietary claim is
related to the matrimonial property regime. When
the
application for leave to appeal was filed, the original court file
was missing. Despite a request therefor, I was not
provided
with a set of pleadings at the time of hearing this application for
leave to appeal. No prejudice can result to
the Plaintiff in
this regard due to the fact that the unopposed divorce was removed
from the roll by agreement and not susceptible
to an appeal.
However, in so far the Plaintiff believes that I made a final finding
on the state of the pleadings and the
issues to be traversed through
evidence, this belief does not bear scrutiny. I heard no
evidence and no argument of substance
was addressed to me on the
pleadings. I was also not required to make any finding in
relation thereto. As such my remark
can be construed as nothing
more than
obiter
.
[5]
I must also point out that the necessity for my judgment was borne
out of the fact that a real possibility existed that the
Plaintiff
may attempt to set the divorce down again on the unopposed roll on
the strength of the order by Shirelele AJ. In
my view there is
no need for another court to be burned with an unopposed divorce on
the strength of an order that, in my view,
is void
ab
initio
.
[6]
After the Plaintiff’s Counsel, during the hearing for the
application for leave to appeal, conceded that the matter was
removed
from the roll by agreement and there was no attempt by the Plaintiff
to renege from the agreement, Plaintiff’s counsel
urged me to
grant leave to appeal against the costs order only. In my view
the principles relating to appeals generally and
costs orders are
against the Plaintiff in this regard.
[2]
Counsel for the Plaintiff did not make any submission that I did not
exercise my discretion judicially, nor were any such
ground advanced
in the filed application for leave to appeal. The only
submission that Counsel for the Plaintiff made in
this regard is that
as I allowed argument in the matter despite the Plaintiff’s
non-compliance with the Practice Manual of
this division, I should
not have made a costs order against the Plaintiff.
[7]
My willingness to condone the failure of the Plaintiff of filing a
proper J117 was premised thereon that most matters before
me that
morning did not comply with the J117 requirement. Refusal to
hear any unopposed divorce due to non-compliance with
the J117
requirement would have led to a situation where only some 4 divorces
that morning would have been granted. I am
of the view that I
am fully justified to condone a procedural defect whilst, at the same
time in my judicial discretion, expressing
my displeasure at the
Plaintiff’s failure to comply with the provisions of Practice
Manual.
[8]
I am not satisfied that another court will reasonably come to another
conclusion or that compelling reasons exists why leave
to appeal.
Accordingly, I make the following order:
1.
The application for leave to appeal is dismissed
with costs.
CE
THOMPSON
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
For
the Plaintiff: Adv M Tshivhase
Instructed
By: TS Tshantsha Attorneys
Johannesburg
For
the Defendant: Adv KM Mokotedi
Instructed
By: Lingenfelder & Baloyi Inc
Johannesburg
[1]
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A)
at 532J - 533A;
Pitelli
v Everton Gardens Projects
2010
(5) SA 171
(SCA)
at 176D
[2]
Logistic
Technologies (Pty) Ltd v Coetzee
1998 (3) SA 1071
(W)