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[2020] ZAGPJHC 19
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M C v F D (5544/2017) [2020] ZAGPJHC 19 (30 January 2020)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 5544/2017
In
the matter between:
C,
A
Applicant
And
D,
F
Respondent
J U D G M E N T
MODIBA,
J:
[1]
On 5 September 2019, I granted
two orders at Mr C’s instance. The first is an order striking
out Ms D’s defense and
counter claim in a divorce action
instituted against her by Mr C. The second, an order varying a Rule
43 order in terms of Rule
43(6). Ms D has requested reasons for the
orders.
[2]
In this judgment, I also deal
with the dispute in respect of costs which erupted on 14 January 2020
when Ms D withdrew in court,
an application she had brought seeking
an order in terms of which I am to recuse myself as the case manager
in the divorce action,
but refused to tender costs on the basis that
she did not set the application down for hearing.
[3]
The parties are involved in an
acrimonious and protracted divorce action. The only issue in dispute
is the primary residency and
the non-custodial parent’s contact
rights with the minor children. The parties’ long litigation
history is well documented
in approximately 8 judgments that have
been handed down to date. No purpose would be served by regurgitating
it here.
[4]
The Deputy Judge President
appointed me to case manage the divorce at the beginning of 2018.
Therefore, I am privy to the parties
conduct in the matter.
[5]
Ms D’s conduct is
characterized by dilatory tactics, such as her attorneys withdrawing
from record at a pertinent point in
various applications, pleading
indigence and taking time to appoint new attorneys but later briefing
senior counsel, not responding
to correspondence, ignoring
invitations to case management meetings or failing to instruct her
attorney to attend case management
meetings and the like. She has
changed attorneys more than 20 times since the divorce action
commenced.
[6]
She had not filed opposing
papers when the above applications were granted, despite the long
time it took Mr C to have them heard.
She spent the time pursuing my
recusal through inappropriate means, thereby holding the further
conduct of the divorce action to
ransom.
[7]
Prior to the applications being
heard, a case management meeting was scheduled at Mr C’s
request. A request to Ms D’s
attorney for convenient dates for
the meeting was not responded to. The meeting was scheduled in the
absence of such confirmation
at my directive. On the eve of the
meeting, Attorney Japhta who was on record at the time, informed me
that he holds no instruction
to attend the case management meeting on
behalf of Ms D, but rather, to bring an application for my recusal.
The meeting proceeded
as scheduled. Subsequently, the recusal
application was not forth coming.
[8]
In a surprising twist to this
trail, Ms D personally addressed a long letter to the Judge
President, despite the fact that she was
legally represented at the
time, without copying Attorney Japhta and Mr C’s attorney, and
without fully disclosing material
facts. In the letter, she cited
issues in which her petition to the Supreme Court of Appeal in
respect of an order I granted in
2018 incarcerating her for civil
contempt of court had been dismissed, and failed to disclose this to
the Judge President. The
Judge President directed her to copy the
relevant parties before he would attend to her complaint. She failed
to comply with this
directive and did not pursue the request
further.
[9]
Attorney Japhta subsequently
withdrew from the record. Her new attorney of record, Ms Pillay
pestered me for a meeting in my chambers
to discuss my recusal,
without copying Mr C’s attorneys in the emails where she made
the request. She ignored my directive
to cease from such behaviour.
She withdrew as Ms D’s attorney of record after I threatened to
report her to the Legal Practice
Council for her unprofessional
conduct.
[10]
In the meantime, Ms D’s
threats to seek my recusal held the proceedings to ransom as she did
not take further action. It is
in this context that the applicant set
the applications down for the hearing.
[11]
On the date of hearing, Ms D
re-instructed Japhta attorneys who briefed counsel to appear on her
behalf to seek a postponement from
the bar. Due to the history of Ms
D’s obstructionist and dilatory conduct, particularly after
these applications were issued,
and given that the postponement
application was brought at the last minute and informally from the
bar, I refused to entertain
it. I proceeded to grant both
applications as I was satisfied that Mr C had made out a proper case
thereof.
[12]
The order in terms of Rule
43(6) is not appealable. Therefore, Ms D’s request in respect
of this order is academic.
[13]
The prejudice that Mr C and the
minor children have suffered due to Ms D’s dilatory and
obstructive conduct in these proceedings
justified the striking out
order, despite the substantial effect of the order on Ms D’s
case in the divorce action.
COST
ORDER IN RESPECT OF THE RECUSAL APPLICATION
[14]
A punitive cost order in
respect of this application is justified, primarily because the
application was incompetent from the beginning,
as it was handed up
by Ms D’s counsel in court on 5 September 2019 after I handed
down the above orders and certified the
divorce ready for trial. It
is also justified for other reasons set out below.
[15]
In her customary dilatory and
obstructive conduct, Ms D failed to respond to subsequent requests
for a date of hearing the recusal
application. She had become
unrepresented yet again, hence the requests were addressed to her
personally.
[16]
I pursued the hearing of the
recusal application as it held the further conduct of the divorce to
ransom, even after it had become
unopposed as a result of the
striking out order. On 13 September 2019, Mr C’s attorneys
enrolled the divorce action for hearing
on the unopposed divorce
roll. It did not proceed at Ms D’s instance as she informed
Acting Judge Shingisa that she intends
seeking reasons for the 5
September 2019 orders and to appeal the striking out order.
[17]
The prospect of an application
for leave to appeal rendered the determination of the recusal
application pivotal, as I would have
to determine the former
application. Again the further conduct of the divorce stalled as Ms D
ignored requests for the date of
hearing. She was compelled to give
attention to the recusal application when she brought an urgent
application during the December
2019 recess before Acting Judge
Millar. The recusal application had been raised in the papers filed
in that application. At
this stage, Shapiro Attorneys had come
on record as her attorneys. This is how her attendance in court on 14
January 2020 was secured.
[18]
Shapiro Attorneys withdraw on
the eve of the later hearing. On 14 January 2020, an Advocate
appeared on behalf of Ms D, having been
briefed by her new attorney
of record. Ms D withdrew the application on the basis that it is
redundant, as it is clear from the
order of 5 September 2019 that I
have certified the divorce action trial ready, and thus have become
functus officio
as the case manager.
[19]
I certified the divorce action
trial ready before the application was served and filed. Therefore it
was already redundant when
it was served and filed. Ms D did not have
to proceed to serve and file it, and having done so, to wait another
5 months before
withdrawing it. She could have even withdrawn it
before Acting Judge Millar to avoid it being set down at his
directive, but failed
to do so.
[20]
The circumstances sketched-out
herein justify a punitive costs of this application against Ms D.
[21]
In the premises, the following
order is made:
ORDER
1.
Ms D shall pay Mr C’s
costs of the recusal application on the attorney and client scale,
which costs shall include Advocate
Bedeker’s appearance fee for
14 January 2020,
________________________________________
L
T MODIBA
JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES
Counsel
for the applicant: Adv L Bedeker
Instructed
by: Fiona Mclachlan Attorneys
Counsel
for the respondent:
Instructed
by:
Date
of hearing: 5 September 2019, 14 January 2020
Date
of judgment: 30 January 2020