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[2011] ZAGPPHC 34
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K.C.M v M.P.M (51139/2007) [2011] ZAGPPHC 34 (28 March 2011)
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
NOT REPORTABLE
Case
No:51139/2007
DATE:23/03/2011
In the matter
between:
KC
M
......................................
APPLICANT
And
M P
M
.....................................
RESPONDENT
JUDGMENT
MAVUNDLA J;
[1] The applicant brought two urgent
applications, both under the same case number, against the
respondent. The first application
was dated the 2 November 2007,
the second application was dated 4 December 2007. Both these
applications were opposed and
served before me.
[2] In the first
application, the applicant sought an order, pending the
institution of an action,
1. interdicting the respondent from interfering or coming
within 100 meters of:
1.1 the lodge
situated at Mokoena-a-Meetse, Mamone Village, Ga-Mohlaia Section,
Jane Furse Sekhukune Limpopo;
1.2 the immovable
property situated at 16 Avril Street Birchleigh North, Kempton Park;
2. Interdicting the
respondent from damaging or using or controlling motor vehicles BMW
and Toyota Corolla.
3. Directing the
respondent to return the keys to the lodge;
4. Directing the
respondent to refrain from damaging the electricity and Telkom
communication supply to the lodge situated at Mokoena-a-
Meetse,
Mamone Village, Ga-Mohlala Section, Jane Furse Sekhukune, Limpopo;
5. Restraining the
respondent from interfering with or threatening or harassing or
assaulting or pointing or using a firearm or
verbally abusing the
applicant in any manner whatsoever.
6. Interdicting the
respondent from telling anyone that the applicant has spread the HIV
/ AIDS virus to him
7. That the costs of
the application be reserved for determination at the trial.
[2] The second
application was for an order:
2.1 declaring the
respondent to be in contempt of court in respect of the order granted
on November 2007, and 2.2 directing the
respondent to hand over the
keys of the lodge situated at Mokoena-a-Meetse, Mamone Village,
Ga-Mohiala Section, Jane Furse Sekhukune
Limpopo;
2.3 directing the
respondent to hand over the Toyota Corolla to the Sheriff of the High
Court upon service of this order.
3. Ordering the
respondent to pay the costs of this application.
[3] In respect of
the first application Hartzenberg J on the 20 November 2007 granted
the applicants an interim order with immediate
effect, pending the
divorce action, substantially the orders referred to in her
application, with certain variances. In respect
of the lodge the
respondent was ordered to return the keys thereof by not later than
10: 00 on 22 November 2007 to the attorney/
Paul Du Plessis Attorneys
at 588 Norvat Moreleta Park. The respondent was granted leave to file
an answering affidavit on or before
30 November 2007. The applicant
was granted leave to file her replying affidavit on or before 7
December 2007 in the event the
respondent filed his answering
affidavit in time.
[4] On the 11
December 2007 Bertelsmann J issued a rule nisi, with immediate
effect, in terms of prayers 3 and 4 returnable on 14
December 2007 in
terms of which the respondent was ordered to hand over the keys of
the lodge situated at Mokoena-a-Meetse, Mamone
Village, Ga-Mohlala
Section, Jane Furse Sekhukune Limpopo; and that he hand over the
Toyota Corolla to the sheriff of the High
Court upon service of this
order. It was further ordered that if the respondent has failed to
act as ordered herein above, upon
service of this order, he must come
to court on 14 December 2007 to show cause why he cannot be held for
contempt of court order
and be sentenced to 60 days imprisonment. The
costs were reserved. This order, flows from the second application
brought by the
applicant against the respondent also on urgent basis.
[5] The order of
Bertelsmann J was further extended on various occasions. On 14
December 2007 I extended the rule nisi to 20 December
2007 on which
date it was further extended by Van Oosten J to 25 January 2008. On
the latter date it was further extended by Hartzenberg
J to 15
February 2008 with a further order that the Respondent is to file an
opposing affidavit on or before 25 February 2008.
Dolamo A.J. to 25
June 2008. The Court also noted that the respondent avers that he is
no longer in posession of the keys, of the
lodge. The Court ordered
that, in the event the respondent finds the keys, they must be
immediately handed over to the applicant,
and that they may not be
used by the respondent. On 15 February 2008 Dolamo AJ extended the
rule nisi to 9 June 2008 and he reserved
the costs.
[6] On 9 June 2008
the matter appeared once more before me and I reserved judgment. It
is regrettable that it has taken this much
for me to hand down this
judgment. I have no doubt that the parties herein would have wanted
this judgment to have been delivered
much earlier. The delay is
primarily due to the
systemic
circumstances that prevail in this Division, which hopefully would be
addressed at an appropriate forum.
[7] The respondent
subsequently filed his answering affidavit on 11 February 2008. The
applicant filed her replying affidavit which
was deposed to on 27 May
2008. In paragraph 4 of her affidavit the applicant seeks condonation
for the late filing of the replying
affidavit. She states that: "As
it can be seen from the content the lodge was ransacked by the
respondent and I had to go
to great lengths to collect the various
documents attached to this affidavit. For a portion of time (sic) I
had to go into hiding
because of the respondent's threats to me. In
the circumstances I respectfully submit that there is no prejudice to
the respondent
Because this is a replying affidavit the respondent
does not need time to respondent to it. By the time this affidavit is
filed
there will be sufficient time for the respondent's counsel to
prepare for the motion court week of 9th June 2008."
[8] The respondent's
answering affidavit was filed on 11 February 2008. In terms of rule
6(d)(iii) the applicant was supposed to
have filed her replying
affidavit within 10 (ten) days of the filing of the answering
affidavit. Her replying affidavit was filed
well out of time. Her
replying affidavit was deposed to on 27 May 2008. Its filing sheet is
dated the 28 May 2008. There is no
indication when it was served and
filed with the registrar. I assume that it was served and filed on 28
May 2008.
[9] It is trite that
condonation is matter of the discretion of the court. Where a party
seeks the indulgence of the court, such
party must, to the court's
satisfaction, advance an adequate explanation for the remissness and
also show that there is no prejudice
to be suffered by the other
party; vide Standard Bank ofSA Ltd v RTS Techniques and Planning
(Pty) Ltd
1
.
[10] Where a party
realises that it is going to be out of time in filing court papers,
such party must in advance seek the indulgence
of its opponent and
indicate when it anticipates to be ready with its papers and filing
thereof. In the event its opponent is not
accommodative, then it must
immediately approach the court on application for condonation; vide
Darries v Sheriff, Magistrates
Court, Wynberg and. Another.
2
If such party does not want to burden the costs with such an
application, it must nonetheless place it on record to its opponent
that, in order to avoid burdening the costs; it will bring an
application for condonation for the late filing of its papers on
the
hearing of the matter. But it must appreciate that, in the event of
the condonation not being granted, it stands or fall on
whatever
papers it has already filed. The applicant was 3 (three) months late
with her replying affidavit. The matter was to be
heard on 9 June
2008. It means that the filing of her replying affidavit was also
filed in court not within 10 days before the
hearing of the matter.
The respondent still had to prepare for the hearing of the matter. In
my view the respondent was prejudiced
by the late filing of the
replying affidavit as he was afforded very little time to do so. The
delay of three months is in my opinion
inexcusable; vide
Commissioner for Inland Revenue v Burger
3
.
In the result I therefore decline to exercise my discretion in favour
of the applicant and therefore the condonation is refused.
[13] In my view,
what I need to decide is whether the rule nisi should be confirmed. I
will have to decide this aspect by having
regard to the evidence
before me, which is the affidavit of the applicant and that of the
respondents.
[14] It is common
cause that the parties were married to each other in community of
property on 6 July 1998 and the marriage still
subsists. It is also
common cause that whatever assets bought by either party, belong to
the joint estate. Some of these assets
are, for instance, the Toyota
Corolla, motor vehicle, a BMW vehicle motor vehicle, a Lodge situated
at Mokoena-a-Meetse, Mmamone
Village, Ga-Mohlala Section, Jane Furse
Sekhukhune, Limpopo, immovable property situate at 16 Avril Street,
Birchleigh North Park,
Johannesburg, Gauteng.
[15] The rule nisi
interdicts the respondent, inter alia, from controlling the vehicles
belonging to the joint estate, from entering
into the immovable
properties of the joint estate. These orders, if confirmed, would be
of final nature.
[16] The respondent
has denied some of the allegations made against him by the applicant.
In that regard it is apposite to cite
what was said in Mkhatshwa v
Mkhatshwa and Another
4
by Moseneke J (as he then was): "It is settled law that in
motions proceedings the appropriate stage for making an application
to refer the application to evidence is at the outset and not after
argument on the merits. Of course, this rule is not inflexible.
As
the Rule 6(5) of the Uniform Rules of Court provides, a Court faced
with a real dispute of facts may dismiss the application
or 'make
such order as to it seems meet with a view to ensuring a just and
expeditious decision'. See Kali v Decotex (Pty) Ltd
and Another
5
.
If there is a
dispute of fact on the affidavits, the general rule is that the
relief sought by the applicant should only be granted
if the facts as
stated by the respondent together with the admitted facts in the
applicant's affidavit justify the granting of
the order. See
Plascon-Evans Paintings Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634E-G."
[17] In my view,
both parties have a right to access and the use of these properties,
irrespective who bought or contributed how
much for the procurement
of what assets. The applicant does not have a better right than what
the respondent has. On a balance
of convenience, it is not desirable
to confirm the rule nisi, which has the effect of divesting the
respondent of his rights over
such property, no matter how transient
in duration. Such an order would, in my view, violate the
respondent's
constitutionally
enshrined rights to property or housing; vide ss 25 and 26 of the
Constitution of the Republic of South Africa
6
.
[18] Some of the
orders through the rule nisi are to protect the applicant against any
assault or threat by the respondent. The
respondent has in his
answering affidavit stated that the applicant has an alternative
remedy against any assault or threat by
the respondent in the form of
a Domestic Violence Interdict as well as well as the police. On her
own version, the respondent's
firearm was confiscated by the police.
This refutes applicant's version that the police do not want to
assist her. The respondent
has denied her averments of intimidation
and assault. In the circumstances I must accept the version of the
respondent, in my view,
the applicant has not shown that she does not
have any other remedy either than obtaining the order sought. Put
differently, the
facts stated by the applicant and admitted by the
respondent do not justify the confirmation of the rule nisi.
[19] In so far as
the contempt order application, the respondent has stated that he did
comply with the court order, in this regard
he has stated that the
Toyota Corolla was with the sheriff. He has also denied that he was
in contempt of the court. I am not inclined
to find otherwise, as
there is insufficient material upon which I can premises any finding
that the respondent is in contempt of
court orders.
[20] In the
premises, I am of the view that both the main application and the
contempt order application should be dismissed. The
costs were
reserved on several occasions. In view of the fact that the parties
are married in community of property, in the event
I order any of the
parties to pay the costs, these would be borne in the final analysis
by the joint estate. In the circumstances,
I am of the view that an
appropriate order would be to order that each party pay his or her
own costs.
[21] In the premises
I make the following order:
1. That the rule
nisi is discharged;
2. That the
contempt order application is dismissed;
3. That each party
is ordered to-pay his/ her costs.
N.M MAVUNDLA
JUDGE OF THE HIGH
COURT
HEARD : 14 MARCH
2011
DELIVERED : 28 MARCH
2011
APPLICANT'S ATT:
M.C.KRUGER ATTONEYS.
APPLICANT'S ADV: MS.
NADINE ERASMUS.
RESPONDENT'S ATT:
MALOPE MAHLALELA ATTORNEYS.
RESPONDENT'S' ADV :
MR. MABUSE
1
1992
(2) SA 532
(TPD) at 534G-I.
2
1998 (3) SA 34
(SCA) at 40I-41D
3
1956
(4) SA 438
(AD) at 449E-F
4
2002
(3) SA 441
(TPD) at 445 G-I.
5
1988
(1) SA 943
(A) at 366G-367D
6
Act
108 of 1996