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[2019] ZAGPJHC 442
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L S v R S (3646/2012) [2019] ZAGPJHC 442 (15 October 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No:
3646/2012
In
the matter between:
S:
L APPLICANT
and
S:
R RESPONDENT
JUDGMENT
MTATI
AJ
Introduction
[1]
This application is brought before Court on an urgent basis. The
applicant seeks an order to the effect that a Rule 43 order
granted
on 23 May 2012 by Coppin J, as later varied, was not extinguished by
a subsequent order of Francis J handed down on 6 July
2017 in the
divorce proceedings. Put differently, it is argued on behalf of the
applicant that the Rule 43 order is still extant
notwithstanding
judgment in the divorce proceedings. This argument is raised as a
result of a pending order as to costs by Francis
J and as a result,
it is the case of the applicant that the divorce proceedings have not
been finalised. A second argument linked
to the costs determination
is that there is a pending appeal and, as such, the Rule 43 order
should continue to operate. Ms De
Wet, for the applicant, argues that
the fact that there is still an undecided appeal, that should be
construed to mean that the
matrimonial
lis
has not been
finally determined.
[2]
On the other hand, there are two alternatives to the main order
sought above. Firstly, that the order of Francis J dated 6 July
2017
is and be immediately executable in terms of
section 18(1)
of the
Superior Courts Act 10 of 2013
, secondly, and in the further
alternative, that the same order of Francis J be varied in terms of
section 8
of the
Divorce Act 70 of 1979
in respect of the amount of
maintenance payable. The alternative reliefs sought by the applicant
is as a result of an application
for leave to appeal that was granted
by Francis J on 4 August 2017.
Background
[3]
The parties were married to each other out of community of property
subject to the accrual system. Three children were born
out of the
marriage between the parties. The marriage relationship between them
broke down irretrievably necessitating the applicant
to institute
divorce proceedings claiming,
inter alia
, a decree of divorce,
division of the accrual, spousal maintenance and payment of
maintenance for the three children.
[4]
The applicant launched an application in terms of
Rule 43(1)
seeking
relief for maintenance and a contribution towards costs. On 23 May
2012 an order was granted in the
Rule 43
application. The salient
terms of the
Rule 43
order as far as they find relevance to this
application, are that the respondent was to pay:
4.1. R25 000.00 per
month to the applicant in respect of maintenance for the applicant
and the three children; and
4.2. certain expenses
directly to the service providers concerned.
[5]
On 11 September 2013, the applicant launched a
Rule 43(6)
application
seeking an increase of the quantum of the maintenance that was
awarded to her in terms of the initial
Rule 43
order and the initial
order was duly varied.
[6]
The divorce matter proceeded to trial and was heard over some
nineteen days whereafter, on 6 July 2017, judgment was handed
down by
Francis J. The salient terms of the order finding relevance to this
application are the following:
6.1. a decree of divorce
was granted;
6.2. the respondent was
ordered to pay maintenance to the applicant in respect of the
three children for as long as they resided
with the applicant and
were not self-supporting in the sum of R8 000.00 per month per
child;
6.3. the respondent was
ordered to pay maintenance in respect of the applicant for a period
of twenty four months in the sum of
R16 000.00 per month;
6.4. the respondent was
ordered to pay other costs for the children including educational,
medical and mobile phone expenses; and
6.5. The costs of the
divorce action were to be determined in a separate judgment.
[7]
The applicant filed an application for leave to appeal. The
application for leave to appeal related to the maintenance orders
only. Leave to appeal was granted on 4 August 2017 to the Full Court
of this Division.
[8]
This application is premised on the basis that the respondent,
rightfully or erroneously, proceeded to comply with the maintenance
order as per the judgment of Francis J and has since alerted the
applicant that he has fully complied with the court order in respect
of spousal maintenance. In other words, the respondent informed the
applicant that he will no longer pay spousal maintenance since
he has
done so in terms of the order of Francis J. It is on this basis that
the applicant seeks an order from this Court declaring
the
Rule 43
order, as existed prior to the judgment in the divorce action, to be
extant or that the Court considers the alternative prayers
claimed.
Issues
for determination
[9]
In my view, the following issues require determination by the Court:
9.1. Application of a
Rule 43
order pending a hearing of an appeal against maintenance
orders;
9.2. Requirements and
application of
section 18
of the
Superior Courts Act, 10 of 2013
in
the matter before Court;
9.3. Variation in terms
of
section 8
of the
Divorce Act; and
9.4. Urgency
Rule 43 of the
Uniform Rules of Court
[10] Rule 43 provides as
follows:
“
Interim
relief in matrimonial matters
(1)
This
rule shall apply whenever a spouse seeks relief from the court in
respect of one or more of the following matters:
(a)
Maintenance pendent lite;
(b)
A
contribution towards the costs of a matrimonial action, pending or
about to be instituted;…”
[11]
This rule is interim in nature pending finalisation of a divorce
action
[1]
. Ms De Wet for
the applicant argued at length in justifying application and
relevance of Rule 43 in the matter before Court.
In particular, an
emphasis was based on the fact that the issue of costs has not yet
been determined by Francis J. The question
for determination is
whether the divorce court has not pronounced on the substantial
issues constituting the divorce action. If
the substantive issues
have been determined by the divorce court, it seems to me, that the
Rule 43 order should lapse. There has,
however, been a number of
cases that proffered different views on this aspect.
[12]
The Court was referred to a number of decisions dealing with the
appropriate application of Rule 43. It is apposite to deal
with some
of these authorities before coming to my conclusion. In
S
v S and Another
[2]
the Constitutional Court explained that Rule 43 was not designed to
resolve issues between litigating spouses for an extended period,
but
rather as an interim measure until all the issues are properly
ventilated by the trial court. Once the trial court has finally
determined all the issues in the divorce action, Rule 43 no longer
finds application.
[13]
In the matter of
Bienenstein
v Bienenstein
[3]
,
De
Villiers AJ was called upon to adjudicate an objection
in
limine
to an application in terms of Rule 43 for a contribution towards
costs, under the following circumstances:
13.1. At the instance of
Mr Bienenstein, a judge granted a final rule
nisi
in an action
for restitution of conjugal rights and granted a decree of divorce.
Mrs Bienenstein noted an appeal against the final
order.
13.2. Thereafter Mrs
Bienenstein made an application in terms of Rule 43 for a
contribution towards her costs of the appeal to enable
her to furnish
security for the costs of the appeal. De Villiers AJ stated that Rule
43 deals “
only
with regulating the position of the parties or the children and the
costs before the final order has fallen
.”
[4]
[14]
However, in the matter of
Carstens
v Carstens
[5]
,
there Roberson J held that, unlike in Bienenstein, despite the decree
of divorce having been granted, there were still matrimonial
disputes
pending between the parties. In addition, it appears that the parties
themselves had agreed in the minutes of a pre-trial
conference that
“
the
interim arrangements”
will
continue until the action was finalised. In the result, the court
granted an order in terms of Rule 43 in favour of Mrs Carstens.
[15]
In his judgment in the matter of
Beckley
v Beckley
[6]
,
Tsoka J was also called upon to adjudicate an application for interim
maintenance in terms of Rule 43. Pursuant to a separation
application, the Beckley’s were divorced and a division of the
joint estate was ordered, with Mrs Beckley’s claim for
spousal
maintenance and a damages claim, being postponed
sine
die
. As
part of the separation order, Mrs Beckley was granted the right to
claim interim maintenance in terms of Rule 43. By the time
the
application for interim maintenance was launched, there was no longer
a pending matrimonial action between the parties. Tsoka
J considered
it apparent that the provisions of Rule 43 were no longer applicable.
[16]
In
KO
v MO
[7]
,
Loots AJ agreed with the view held by Roberson J in
Carstens
by finding that, pending the finalisation of the divorce action, an
extant order in terms of Rule 43 survives a decree of divorce
to the
extent that issues regulated thereby remain unresolved. In this
matter an order was granted in terms of Rule 43 whereof
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.
[17]
Ms De Wet for the applicant, argued at length in persuading the Court
that the case of
Joubert
v Joubert
[8]
finds application in these proceedings. In this case the parties were
embroiled in an acrimonious divorce. There was a Rule 43
order which
primarily addressed various aspects of the respondent’s
maintenance obligations towards the applicant. A separation
order in
terms of Rule 33(4) was granted whereby the final decree of divorce
was separated from the issues pertaining to the determination
of the
accrual and the defendant’s spousal maintenance. The applicant
then approached the court on an urgent basis seeking
a declaratory
directive that the Rule 43 order remains operative, in respect of the
separated issues and that her rights to approach
the court for
further relief in terms of Rule 43 remain unaffected by the granting
of the divorce order. It was argued on behalf
of the respondent that
Rule 43 has no application to any matrimonial dispute which has come
to an end by the final order of divorce.
17.1. In finding for the
applicant in the
Joubert
matter, Opperman J stated as follows
in paragraph 21:
“
The applicant’s
claim for spousal maintenance can be nothing else but a dispute
arising from a matrimonial action and/or proceedings
incidental to
such action.”
17.2. She continues at
paragraph 26 and states further that:
“
Where the issue
of spousal maintenance is expressly kept alive (like the present
case), the lis contemplated in Rule 43 has not
come to an end. Such
lis is clearly a matrimonial one in respect of the proceedings
incidental to an action for divorce. However,
I need not go that far
in this matter as in this case the respondent expressly invited the
court to separate out the issue of spousal
maintenance and undertook
to be governed by the rule 43 relief which had already, by the time
the undertaking was made, been granted.”
17.3. It should be noted
that Mr Joubert had stated under oath that the granting of a
separation order would not prejudice Mrs Joubert
as the Rule 43 order
was in place and would remain in place pending a decision in respect
of the issues to be separated.
[18]
The argument on behalf of the applicant is that there is still a
matrimonial
lis
pending since there is a pending appeal
relating to maintenance for the applicant and the children.
Furthermore, Counsel for the
applicant sought to persuade the Court
that, since the determination of costs in the divorce action has not
been finally determined,
that makes the
lis
pending.
[19]
What appears to be common facts on all the cases referred to above
where the courts ordered continuation of the Rule 43 orders,
is that
there had been separation of issues ordered. The substantial disputes
between the parties had not been resolved whereas
the situation is
different in the present case. In addition, if the facts of the case
before me were as a result of a separation
order, in my view, I would
have had to find cogent reasons to deviate from the conclusions
reached by Tsoka J in the
Beckley
[9]
matter in the light of the doctrine of
stare
decisis,
since
that is the latest decision that could be found in this Division
dealing with similar circumstances. In
Patmar
Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and
Others
[10]
,
Wallis JA stated as follows:
“
The
basic principle is stare decisis, that is, the Court stands by its
previous decisions, subject to an exception where the earlier
decision is held to be clearly wrong. A decision will be held to have
been clearly wrong where it has been arrived at on some fundamental
departure from principle, or a manifest oversight or
misunderstanding, that is, there has been something in the nature of
a palpable
mistake. This Court will only depart from its previous
decision if it is clear that the earlier court erred or that the
reasoning
upon which the decision rested was clearly erroneous.”
[20]
A further distinguishing feature in the matter before me is that an
application for leave to appeal was granted to the applicant.
The
appeal is not to dispute whether maintenance is payable but instead
how much more should maintenance be paid and for how long.
The Court
could not find any authority supporting the argument on behalf of the
applicant that noting of an appeal, as in this
case, constitutes a
matrimonial
lis.
I am not persuaded that granting of leave and
the subsequent noting of the appeal constitutes a matrimonial
lis
justifying continuation of the Rule 43 order.
[21]
The applicant sought and obtained leave to appeal against a limited
number of the maintenance orders as per the judgment of
Francis J.
This is in respect of spousal maintenance where the contention
relates to the duration thereof, and an increased amount
payable in
respect of the children. The remainder of the orders as per the
judgment remain enforceable. For example, the children’s
educational costs, their medical expenses and the payment of
R2 700 000.00 to the applicant are not affected by the
leave to appeal. In my view, the very fact that the application for
leave to appeal was granted, demonstrates the final effect of
the
order made by Francis J. An appeal lies only against an order having
a final effect and is not susceptible to the court of
the first
instance; an order which is definitive of the rights of the parties;
and has the effect of disposing of at least a substantial
portion of
the relief claimed in the main proceedings. The issue of costs that
is still to be determined is ancillary and obviously
had no bearing
to the granting of the application for leave to appeal by Francis J.
Section
18(1)
of the
Superior Courts Act 10 of 2013
[22]
The next issue for determination is whether the order made by Francis
J on 6 July 2017 is immediately executable in terms of
section 18(1)
of the Superior Courts Act 10 of 2013 (the Act). The relevant portion
of the Act reads as follows:
“
Suspension
of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution
of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of a
decision
that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application for leave to
appeal
or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A
court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders…”
[23]
The applicant needs to prove to the Court, on a preponderance of
probabilities that exceptional circumstances exist to warrant
execution of an order that is otherwise suspended by section 18(1).
This is not the end of the matter for the applicant. She needs
to
further establish, on a balance of probabilities that she will suffer
irreparable harm if the Court does not grant the order
and that the
respondent will not suffer irreparable harm if the order sought is
granted. In analysing the requirements of section
18, Fourie AJA, as
he then was, in the matter of
UFS
v Afriforum & another
[11]
,
had the following to say:
“
[8]
This is the first appeal under s 18(4)(ii) of the Act that has
reached this court. Section 18 of the Act has, however, been
considered by divisions of the high court. In this regard reference
can be made to Incubeta Holdings (Pty) Ltd & another v
Ellis &
another
2014 (3) SA 18
9 (GJ); Liviero Wilge Joint Venture &
another v Eskom Holdings Soc Ltd [2014] ZAGPJHC 150 and The Minister
of Social Development
Western Cape & others v Justice Alliance of
South Africa & another
[2016] ZAWCHC 34.
Although these judgments
differ in certain respects as to the application of the requirements
of s 18 of the Act, they are closely
reasoned and of much assistance
in the interpretation of this novel provision.
[9]
In embarking upon an analysis of the requirements of s 18, it is
firstly necessary to consider whether, and, if so, to what
extent,
the legislature has interfered with the common law principles
articulated in South Cape Corporation, and the now-repealed
Uniform
rule 49(11). What is immediately discernible upon perusing ss 18(1)
and (3), is that the legislature has proceeded from
the
well-established premise of the common law that the granting of
relief of this nature constitutes an extraordinary deviation
from the
norm that, pending an appeal, a judgment and its attendant orders are
suspended. Section 18(1) thus states that an order
implementing a
judgment pending appeal shall only be granted ‘under
exceptional circumstances’. The exceptionality
of an order to
this effect is underscored by s 18(4), which provides that a court
granting the order must immediately record its
reasons; that the
aggrieved party has an automatic right of appeal; that the appeal
must be dealt with as a matter of extreme urgency
and that pending
the outcome of the appeal the order is automatically suspended.
[10]
It is further apparent that the requirements introduced by ss 18(1)
and (3) are more onerous than those of the common law.
Apart from the
requirement of ‘exceptional circumstances’ in s 18(1), s
18(3) requires the applicant ‘in addition’
to prove on a
balance of probabilities that he or she ‘will’ suffer
irreparable harm if the order is not made, and
that the other party
‘will not’ suffer irreparable harm if the order is made.
The application of rule 49(11) required
a weighing-up of the
potentiality of irreparable harm or prejudice being sustained by the
respective parties and where there was
a potentiality of harm or
prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience, as the case
may be, was required. Section
18(3), however, has introduced a higher threshold, namely proof on a
balance of probabilities that
the applicant will suffer irreparable
harm if the order is not granted and conversely that the respondent
will not, if the order
is granted.
[11] In Incubeta
Holdings at para 24 Sutherland J aptly commented as follows on
s 18(3):
‘
A
hierarchy of entitlement has been created, absent from the South Cape
[Corporation] test. Two distinct findings of fact must now
be made,
rather than a weighing-up to discern a “preponderance of
equities”.’
D E
Van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice 2
ed vol 1 Service issue 2, correctly concludes that s 18(3)
‘is
a novel provision and places a heavy onus on the applicant’. On
a proper construction of s 18, it is clear that
it does not merely
purport to codify the common law practice, but rather to introduce
more onerous requirements. As submitted on
behalf of the UFS, had the
legislature intended the section to merely codify the common law, it
would have followed the authoritative
formulation by Corbett JA in
South Cape Corporation.
[24]
The common cause facts before me are that the respondent commenced
paying spousal maintenance to the applicant as per the judgment
of
Francis J. He proceeded to do so for a period of twenty five months.
These payments were occasioned by a legal advice that the
respondent
received. The nub of the advice was to the effect that noting of an
application for leave to appeal does not automatically
suspend the
execution of the maintenance order. It is only after the respondent
intimated to the applicant that he has fully complied
with the court
order in relation to spousal maintenance that led to this
application. The main reason advanced by the applicant
as
constituting exceptional circumstances, is that she will be left
destitute without spousal maintenance whilst the hearing of
the
appeal is awaited.
[25]
I agree with Ms De Wet for the applicant that the court in the
UFS
case found that the prospects of success play a role in determining
granting execution of the order sought. The court the held
as
follows:
“
[14]
A question that arises in the context of an application under s 18,
is whether the prospects of success in the pending appeal
should play
a role in this analysis. In Incubeta Holdings Sutherland J was of the
view that the prospects of success in the appeal
played no role at
all. In Liviero Wilge Joint Venture Satchwell J, Moshidi J
concurring, was of the same view. However, in Justice
Alliance
Binns-Ward J (Fortuin and Boqwana JJ concurring), was of a different
view, namely that the prospects of success in the
appeal remain a
relevant factor and therefore ‘. . . the less sanguine a court
seized of an application in terms of s 18(3)
is about the prospects
of the judgment at first instance being upheld on appeal, the less
inclined it will be to grant the exceptional
remedy of execution of
that judgment pending the appeal. The same quite obviously applies in
respect of a court dealing with an
appeal against an order granted in
terms of s 18(3)’.
[15]
I am in agreement with the approach of Binns-Ward J. In fact, Justice
Alliance serves as a prime example why the prospects
of success in
the appeal are relevant in deciding whether or not to grant the
exceptional relief. Binns-Ward J concluded that the
prospects of
success on appeal were so poor that they ought to have precluded a
finding of a sufficient degree of exceptionality
to justify an order
in terms of s 18 of the Act. This conclusion was subsequently proven
to be justified when this court upheld
the main appeal in Justice
Alliance. However, in the present appeal, the appeal record in the
review application was not before
us. The prospects of success shall
therefore not feature in our consideration of whether or not the
order of the Full Court should
be upheld.”
[26]
Ms De Wet argued that the court
a quo
found that there is a
“
high likelihood that another Court may come to a different
decision…”
I had an opportunity to read through the
judgment of Justice Francis in the application for leave to appeal
and I can unfortunately
not agree with the assertions made by
Counsel. In my reading of the judgment, it appears as though Justice
Francis was distressing
about the initial order made. This does not
mean, in my view, that his judgment was clearly erroneous. At least I
could not find
anything that warrants sanction for the views
expressed by Counsel. Even if I am wrong at arriving at this
conclusion, prospects
of success in the appeal are just but one of
many factors for consideration.
[27]
The applicant has been receiving a benefit of “spousal
maintenance” until after a period of twenty five months.
There
has been very little or no progress in prosecuting the appeal during
this period. The response for this failure by the applicant
is that
she did not have funds to do so. On a question by the Court on why
the Legal Aid South Africa or a similar institution
was not
approached for assistance, there was very little convincing
explanation that was advanced to the Court.
[28]
I accept that the applicant will suffer harm by the discontinuation
of payment of her spousal maintenance. This is evident
and can be
discerned from the fact that she is still unemployed. However,
section 18(3) further requires that the applicant proves
on a balance
of probabilities that there will be no harm to the respondent. It is
common cause that the respondent has since been
medically boarded
from his employment. He is now living through insurance benefits
which are lower than what he was earning. The
respondent’s
changed circumstances do not justify the appropriateness of the order
sought. It cannot be argued that the respondent
will not suffer
irreparable harm in the light of his medical condition and the
reduced income. On this basis alone, the application
for the
execution of the order of Francis J in respect of spousal maintenance
falls to be dismissed.
Variation
in terms of
section 8
of the
Divorce Act
[29
]
It was argued on behalf of the applicant that this Court has the
power to vary the judgment of Francis J in respect of spousal
maintenance. The Court is aware that the situation of the
applicant will definitely not be the same if she does not continue
to
receive monetary support to acquire basic human necessities such as
food, medical services, clothing etcetera. The question
however, is
whether the Court is empowered to vary an order which is a subject of
an appeal?
Section 8
of the
Divorce Act 70 of 1979
provides that:
“
A
maintenance order or an order in regard to the custody or
guardianship of, or access to, a child, made in terms of this Act,
may at any time be rescinded or varied or, in the case of a
maintenance order or an order with regard to access to a child, be
suspended by a court if the court finds that there is sufficient
reason therefor: Provided that if an enquiry is instituted by the
Family Advocate in terms of section 4(1)(b) or (2)(b) of the
Mediation in Certain Divorce Matters Act, 1987, such an order with
regard to the custody or guardianship of, access to, a child shall
not be rescinded or varied or, in the case of an order with
regard to
access to a child, not be suspended before the report and
recommendations referred to in the said section 4(1) have been
considered by the court.”
[30]
In my view, the maintenance orders granted in favour of the applicant
and the children have been overtaken by events, being
the pending
appeal. As a result, this Court is not permitted to vary the impugned
orders. Furthermore, on a question by the Court
to both Counsel if
this Court, sitting as an urgent court, has all the necessary
information to determine the necessity and the
amount payable for
maintenance, both Counsel conceded that I was not placed with
sufficient information to come to such a determination.
The
Maintenance Court has wide powers in the determination of maintenance
matters and that is the appropriate forum to make a determination
as
sought by the applicant. As a result, I find that this Court cannot
interfere with the order of Francis J in the light of the
pending
appeal.
Urgency
[31]
At the commencement of the proceedings, the Court permitted both
Counsel to advance their arguments on both merits and urgency.
This
practice is not unheard of but in particular, the Court was sensitive
to the nature of the application brought before Court.
This matter
relates to vulnerable groups being children and a woman. It was and
still is my view that the Courts need to show more
vigilance and
appreciation of the difficulties faced by the vulnerable groups of
our society. Maintenance related applications
generally affect women
and children. Whilst this Court can consider and call for argument on
the urgency of the matter first and
make a determination thereon
which may culminate in strucking off an application, it seems to me,
in matters relating to vulnerable
groups, the Courts have to
entertain the merits as well before coming to a conclusion. At least,
such an exercise shall demonstrate
vigilance on the part of the
courts in considering the rights of vulnerable groups. At any rate,
it is at the discretion of a Judge
to consider both merits and
urgency at once in urgent applications.
[32]
Having said that, I do not propose to deviate from the
well-established principles setting out the requirements of urgency
but I merely put forward a proposition that an added attention needs
to be given to these matters and they need to be disposed
of as
speedily as possible.
[33]
The applicant has been receiving spousal maintenance for a period of
twenty five months until end of August 2019. In terms
of the court
order, the respondent was to pay this maintenance for a period of
twenty four months. Notwithstanding the order, the
respondent
continued to pay for an additional one month. It is apparent from the
papers filed before Court that the applicant was
under the impression
that the maintenance will continue until, at least, the final
determination of the appeal. This application
was launched on 23
August 2019, soon after the applicant became aware that the
respondent is not proceeding with the payment of
her maintenance.
[34]
The respondent opposes the urgency of the application on the basis
primarily that the applicant knew, as early as July 2017,
that the
respondent understood the judgment of Francis J to mean he should
proceed to comply therewith and nothing was forthcoming
to enforce
implementation of the order.
[35]
I am not swayed that the applicant delayed in bringing this
application before Court. She re-acted immediately upon realizing
that she will be left destitute. As indicated above, the nature of
the application brought before me persuaded the Court to consider
same on urgent basis. Accordingly, I am persuaded that a proper case
has been made to justify hearing of this application in an
urgent
Court.
Costs
[36]
The issue of costs lies in the discretion of the Court. Ordinarily
the successful party is entitled to costs of the application.
Sadly,
this is a matrimonial matter which has clearly become acrimonious
between the parties where there are also children involved.
This
application revolves around maintenance of one of the parties. Both
parties have also begun to experience health problems.
On proper
reflection, I do not think it will serve any purpose to make any
order as to costs as this can only exacerbate the financial
means of
either of the parties.
[37]
As a result, I make the following order:
Order
1.
The application that this matter be
heard as one of urgency in terms of Rule 6(12) is hereby granted;
2.
The application for the continuation
of the Rule 43 order is dismissed;
3.
The application in terms of
section
18(1)
of the
Superior Courts Act for
the implementation of the order
granted on 6 July 2017 is dismissed;
4.
The application to vary the order
granted on 6 July 2017 in terms of
section 8
of the
Divorce Act is
dismissed; and
5.
Each party shall pay his/her own
costs.
________________________
T.
MTATI
Acting
Judge of the High Court, Gauteng Division, Johannesburg
APPEARANCES
ON
BEHALF OF THE APPLICANT: ADV A.A. DE WET SC
INSTRUCTED
BY: MERCHAK ATTORNEYS
ON
BEHALF OF THE RESPONDENT: ADV S LIEBENBERG
INSTRUCTED
BY: ALAN JOSe’ INC
DATE
OF HEARING: 5 SEPTEMBER 2019
DATE
OF JUDGMENT: 15 OCTOBER 2019
[1]
Gunston
v Gunston
1976 (3) SA 179
(W); Van Oudenhove De St Gery v Gruber 1981
(3) SA 737 (E)
[2]
(CCT147/18)[2019]
ZACC 22
[3]
1965
(4) SA 449 (T)
[4]
At
451 I
[5]
(2267/2012)
[2012] ZAECPEHC 100 (20 December 2012)
[6]
Unreported.
Case number 01098/2015, Gauteng Local Division, 6 May 2015
[7]
2017
JDR 1839 (WCC)
[8]
Unreported.
Case number 67591/2013, Gauteng Division, Pretoria
[9]
See
note 6
supra
[10]
2018
(4) SA 107
SCA
[11]
[2016]
ZASCA 165
(17 November 2016)