About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2013
>>
[2013] ZAECPEHC 35
|
|
Ketse v Ketse and Others (1319/2013) [2013] ZAECPEHC 35 (8 August 2013)
11
REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 1319/2013
Date heard: 16.5.2013
Reasons made
available:8.8.2013
In the matter between:
MZIMKULU AMOS KETSE
..............................................................................
Applicant
vs
NONQABA FLORENCE KETSE
........................................................
First
Respondent
NEDBANK LIMITED
......................................................................
Second
Respondent
TELKOM RETIREMENT FUND
.........................................................
Third
Respondent
REASONS FOR JUDGMENT
TSHIKI J:
[1] This matter was
brought to me by way of urgency on 13
th
May 2013 and the
grounds of urgency relied on by the applicant were as follows:
“
1. That the
parties were divorced after an order granted by the Honourable
Magistrate Koopman on 29 January 2013.
2. The Divorce Order is currently the
subject of an appeal filed by the applicant in the Eastern Cape
Division of the High Court
at Grahamstown under case number
CA122/2013.
3. The basis of the appeal is,
inter
alia
, that the learned magistrate misdirected himself in not
granting forfeiture of the benefits of marriage to the
applicant/plaintiff
in the lower court and that the learned
magistrate erred in awarding a lifelong order for maintenance of the
first respondent against
the applicant/plaintiff.
4. Pursuant to clauses 4.5 and 6 of
the Divorce Order, the third respondent paid out an amount of
R1 200 000.00 to the
first respondent as her half-share of
the applicant’s pension interest.
5. The applicant is being prejudiced
by the payment from his pension fund in the following ways:
5.1. The first respondent may
dissipate the money out of her or part thereof before the appeal is
finalised;
5.2. The first respondent may have
moved the funds or part thereof to another bank account;
5.3. The applicant is losing compound
interest on the amount for every day that the money is not invested
with his pension fund.
6. The applicant has a reasonable
prospect of success on appeal and in the event of the moneys being
dissipated pending the appeal,
judgment in the applicant’s
favour will be rendered nugatory.”
[2] The case was then set
down for hearing on 14
th
May
2013 at 09h30 being the next motion court day and applicant having
been advised to serve the papers on the respondents.
[3] A notice of
opposition was, together with the opposing affidavit,
filed
by first respondent on the morning of 14
th
May 2013 and at the same time the representatives of the
parties Mr Abrahams for the applicant and Mr
Beyleveld
SC
for the first respondent approached me in
chambers. Times for the filing of the outstanding papers were set and
the matter was set
down for argument at the end of the motion court
roll on Thursday 16
th
May
2013. When the date of argument was arranged only the applicant’s
founding and answering papers for the first respondent
were filed.
The third and fourth respondents did not oppose the application.
[4] The matter was then
argued on 16
th
May
2013, applicant having elected not to file a replying affidavit.
After the argument I made an order dismissing the application
with
costs on an attorney and client scale. I further ordered that reasons
for my decision would follow later. These are my reasons.
[5] According to the
applicant’s founding affidavit, applicant and first respondent
were married to each other in community
of property on 22
nd
August 1982. They were finally divorced on 29
th
January 2013 in the Regional Court in Port Elizabeth.
For the purposes of this judgment only paragraphs 1, 2, 3.1, 4, 5 and
6 of
the order of divorce,
which are relevant to
this application, will be stated. They read as follows:
“
THIS court
orders:
1. A decree of divorce.
2. That the plaintiff pays maintenance
for the defendant in the sum of R4 000.00 per month commencing
on 29
th
January 2013 and thereafter on or before the last
day of each following month.
3.1 Division of the joint estate.
3.2 ...
4. An order directing that the
defendant shall be entitled to 50% of the value of the plaintiff’s
pension interest in the
Telkom Pension Fund determined as at the date
of divorce, and that such amount be paid by the said Telkom Pension
Fund to the defendant,
in terms of
section 7
of the
Divorce Act 70 of
1979
. The plaintiff’s membership number with the Telkom Pension
Fund is 4049532 and plaintiff’s date of birth is 1952-08-03.
5. That the Telkom
Pension Fund endorses its records, as contemplated in
section
7(8)(a)(ii)
of the
Divorce Act that
part of the plaintiff’s
pension interest concerned is so payable to the defendant and that
the Administrator of the Telkom
Pension Fund furnishes proof of such
endorsement and payment to the defendant’s attorneys of record
i.e Cecil Kerbel Attorneys
of 9 Bird Street, Port Elizabeth, fax no
041-585 7981, email:
kerbel@mweb.co.za
in writing
within 30 days of the granting of the divorce herein.
6. That payment by Telkom Pension Fund
to the defendant shall be made directly to the defendant by
depositing the amount due to
her in her account with Nedbank
Greenacres as follows:
6.1 NF Mooi (defendant’s maiden
name)
Nedbank Greenacres
Savings account
Account no: 1216125341
Within 60 (sixty) days of the date of
you receiving the Court order herein.
7. That plaintiff pays defendant’s
costs of this action.”
[6] A litigant who has
been unsuccessful in a litigation in the Magistrate’s Court has
a right to note an appeal against such
judgment. The powers to appeal
against the magistrate’s Court judgment are provided for by
section 83
of the Magistrate’s Court Act
1
(the Act) which provides:
“
Subject to
the provisions of
section 82
2
,
a party to any civil suit or proceeding in a Court may appeal to the
provincial or local division of the Supreme Court having
jurisdiction
to hear the appeal against –
any judgment of the nature described
in
section 48
3
anc" HREF="#sdfootnote3sym">
3
;
any rule or order made in such suit
or proceeding and having the effect of a final judgment, including
any order under Chapter
IX
4
and any order as to costs;
any decision overruling an exception,
when the parties concerned consent to such an appeal before
proceeding further in an action
or when it is appealed from in
conjunction with the principal case, or when it includes an order as
to costs. ”
[7] Nothing was done by
applicant until on 8
th
March 2013, twenty eight days after
the order was granted, when his attorneys filed a request for reasons
for judgment purportedly
acting in terms of
Rule 51of
the
Magistrate’s Court Rules which reads:
“
51 APPEALS
IN CIVIL CASES
Upon a request in writing by any
party within 10 days after judgment and before noting an appeal the
judicial officer shall within
15 days hand to the registrar or clerk
of the Court a judgment in writing which shall become part of the
record showing –
the facts he or she found to be
proved; and
his or her reasons for judgment.
The registrar or clerk of the Court
shall on receipt from the judicial officer of a judgment in writing
supply to the party applying
therefor a copy of such judgment and
shall endorse on the original minutes of record the date on which
the copy of such judgment
was so supplied.
An appeal may be noted within 20 days
after the date of a judgment appealed against or within 20 days
after the registrar or clerk
of the Court has supplied a copy of the
judgment in writing to the party applying therefor, whichever period
shall be the longer.”
[8] It follows from the
provisions of
Rule 51(1)
above that the applicant’s request for
reasons for judgment was out of time and therefore it was necessary
for him to apply
for an extension of time before making a request for
reasons for judgment. More to this will be explained later in this
judgment.
[9] Reverting back to the
applicant’s story he was informed by the Telkom Retirement Fund
(the fund) that in the absence of
a Court order or a notice of appeal
the fund had to adhere to the existing Court order quoted in
paragraph 5
supra
. It should be noted that a request for
reasons for judgment is not a notice of appeal and the one that has
been filed out of time
cannot, even in the least, prevent the
operation of a judgment of the Court. Applicant was then informed on
30
th
April 2013 that payment to the first respondent in
terms of the divorce order had been authorised. Indeed the payment to
the first
respondent of a sum of R1 200 000.00 was made to
first respondent on 26
th
April 2013. It is this payment
which apparently caused applicant to move this application.
[10] Apparently the
magistrate who heard the divorce action, and in response to the
request for reasons for judgment, indicated
that he had nothing to
add to his judgment which he delivered in Court on 29
th
January 2013 consisting of 14 pages. I am surprised that applicant
filed a request for reasons for judgment when in fact detailed
reasons for judgment were pronounced by the divorce Court on 29
th
January 2013. Neither had applicant’s request for reasons
specified a particular point or points in the magistrate’s
judgment on which reasons were requested.
[11] In answer to the
applicant’s founding affidavit first respondent has denied that
applicant’s application is urgent.
The answering affidavit also
reveals that applicant was informed as early as March 2013 that the
intended appeal by the applicant
herein was out of time and therefore
no valid notice of appeal could be filed in Court and this was
confirmed by Mr
Abrahams
who appeared for the
applicant in these proceedings. The record shows clearly that as far
back as March 2013 both the attorneys
for the applicant as well as
his counsel Mr
Abrahams
were informed that their
request for reasons for judgment as well as the purported notice of
appeal were out of time. It is also
apparent that applicant,
notwithstanding communications by the first respondent’s
attorneys regarding the lateness of the
intended appeal, never
thought it wise to make an application for extension of time
5
within which to file the
notice in terms of
Rule 51(1).
[12] In a nutshell,
applicant had filed a request for reasons for judgment 28 days after
the trial Court granted the order, and
thereafter applicant filed a
notice of appeal 57 days after the judgment was granted. In response
to the applicant’s non-compliance
with the Rules of the Court
aforementioned first respondent filed a notice in terms of
Rule 30
in
the Grahamstown High Court challenging the irregular proceedings
filed by the applicant herein which was the late filing of
the notice
of appeal.
[13] During argument of
the application, Mr
Abrahams
for the applicant initially
insisted that his client was entitled to an urgent order of
interdict. He, however, later conceded
that the procedure adopted by
his client was irregular in that it does not comply with the rules of
both the Magistrate’s
Court and the High Court. It is apparent
that applicant did not disclose all the relevant facts in his
founding affidavit and therefore
applicant was not honest to the
Court. Applicant simply proceeded to apply for an urgent interdict
when he is aware that he has
not filed either a valid request for
reasons for judgment or a valid notice of appeal against the
magistrate’s order dated
29
th
January 2013.
[14]
Mr Beyleveld SC
for the first respondent contended that there was absolutely no
urgency in this matter. The applicant had not been honest to the
Court. In his view, urgency in this case had been self created. He
requested the Court to dismiss the application with costs on
the
scale as between attorney and client.
[15] In this matter the
procedure adopted by the applicant reveals a disregard and lack of
knowledge of the Rules and Acts applicable
to both the Magistrate’s
and the High Courts. Such ignorance also displays a singular lack of
knowledge of the applicable
rules of both Courts by the legal
representatives of the applicant herein.
[16]
Rule 51(1)
and (2)
above deal specifically with the procedure before noting an appeal
against the appealable judgment of the magistrate.
Rules 51(3)
-(12)
deal with the procedure from noting an appeal against the
magistrate’s appealable judgment, the processing and
prosecution
thereof until the appeal is heard in the relevant local
division of the High Court.
[17] The latest judgment
I could lay my hands on which deals with the issue concerning the
equivalent of the provisions of
Rule 51(1)
and (2)) of the current
rules was decided in 1959
6
.
In that case the equivalent of
Rules 51(1)
, (2) and (3) applicable in
1959 were
Rules 47(1)
, (2) and (3) of the Magistrate’s Court
Rules. In my judgment I will put emphasis only on
Rule 51(1
-
3
) and
Rule 60(5).
Rule 60(5)
of the Magistrate’s Court rules reads:
“
60
Non-compliance with rules, including time limits and errors
...
...
...
...
Any time limit prescribed by these
rules, except the period prescribed in
rule 51(3)
and (6), may at
any time, whether before or after the expiry of the period limited,
be extended –
by the written consent of the
opposite party; and
if such consent is refused, then by
the Court on application and on such terms as to costs and otherwise
as it may deem fit.”
[18] Relative to the
issue at hand which is the failure by the applicant herein to request
in writing the written reasons for judgment
within 10 days after
judgment as provided by
Rule 51(1)
, the applicant should have first
applied for an extension of time to enable him to file his request in
terms of
Rule 51(1).
His failure to do so makes his request irregular
and cannot be complied with until he or she has been granted an
extension of time
within which to file the request for the reasons he
seeks to obtain from the magistrate.
[19] The problems of the
applicant were compounded by him taking other irregular steps in
that, instead of requesting extension
of time, he filed a notice of
appeal which on its own was not only out of time but could not have
been resorted to after he had
realised that he is out of time
relating to the provisions of
Rule 51(1).
On realising that applicant
has not filed within the prescribed time his
Rule 51(1)
request for
reasons he cannot resort to filing a notice of appeal in terms of
Rule 51(3)
with the hope that he will apply for condonation in the
appeal Court when the appeal is argued. This is so because he is
already
out of time in the application in terms of
Rule 51(1)
which
has not been finalised in the Magistrate’s Court. He is not
allowed to leave the documents hanging in the magistrate’s
court and run to the High Court with the hope that in that Court he
will be granted condonation for the late filing of the notice
of
appeal. He is not allowed to file papers in Court and simply ignore
them when it suits him. He is already out of time even with
respect
to the notice of appeal and therefore cannot simply abandon the
Rule
51(1)
process and should first deal with his request in terms of
Rule
51(1)
to a finality. The Court cannot encourage a total disregard of
the rules of the Magistrate’s Court by allowing the applicant
to abandon his irregular proceedings in the Magistrate’s Court
with the hope of convincing the appeal Court that he has good
cause
to be condoned by it. In dealing with a similar case on the same
issue in
Murray & Daddy (Pty) Ltd v Floros
supra
Fannin J at p 138 held as follows:
“
The
appellant, in my view, cannot take advantage of the provisions of the
second part of
Rule 47(3)
and deliver his notice of appeal more than
21 days from the date of the judgment appealed against, unless he has
complied with
the provisions of
Rule 47(1)
and filed, within four
days, the request in writing referred to. In this case, that was not
done. The time within which this appeal
ought to have been noted was
therefore the 21 days referred to in the first part of
Rule 47(3).
The appeal was therefore noted late.” (The equivalent
Rule
47(10
-(3) is the current
Rule 51(1)
-(3)).
[20] The only available
option for the applicant herein was to seek an extension of time
within which to file his request for reasons
for judgment
7
.
[21] Applicant herein had
all the time to have approached the High Court to grant him
condonation of the late filing of the appeal.
In view of the
magistrate’s response indicating that he did not wish to add to
the reasons already furnished could simply
have withdrawn the request
for reasons in the Magistrate’s Court and deal with the appeal
in the High Court in terms of
Rule 51(3)
which would have to be
accompanied by a notice of condonation for the late filing of the
notice of appeal. This, however, would
depend on whether he succeeds
in his application for condonation in the High Court for the late
filing of the appeal. From what
I have read on the papers, I do not
believe that he would have succeeded in such application.
[22] In terms of
Rule
60(5)
, if the opposing party, the first respondent herein, refuses to
grant the applicant a written consent to the extension of time,
only
the Magistrate’s Court in which the case was tried has the
power to grant or refuse the application for extension of
time
aforementioned.
Rule 60(5)(a)
and (b) require that in the event of
the other party refusing to consent to the extension of time within
which to take a further
step, the Court may upon application on
notice and on good cause shown, make an order extending or abridging
any time limits prescribed
by the rules
8
.
The circumstances or ‘cause’ must be such that a valid
and justifiable reason exists why compliance did not occur
and why
non-compliance can be condoned.
[23] Mr
Beyleveld
has also emphasized that the matter was not urgent. I agree with him
in that even on the merits of the case there is no justification
for
bringing this matter by way of urgency. The parties were married in
community of property and therefore,
prima facie
, there was
proper justification for the division of the joint estate which is
inclusive of the pension benefits. The judgment was
delivered on 29
th
January 2013 and therefore applicant should have filed his interdict
at least by then or immediately thereafter. He failed to do
so and
cannot blame any other person for his failure to act immediately
especially when he was at all material times represented
by his own
attorneys.
[24] In my view, the
whole urgent application exercise was an abuse of the Court process
more so when the applicant was throughout
the proceedings represented
by attorneys. It is not excusable and in my view the order of costs
on a punitive scale is justified
in the circumstances. Therefore, it
is for the above reasons that I made the order dated 14
th
May 2013 in this matter.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH
COURT
Counsel for the
applicant : Adv R Abrahams
Instructed by :
Coltman Attorneys and Notaries
PORT ELIZABETH
Counsel for the first
respondent : Adv A Beyleveld SC
Instructed by : Cecil
Kerbel Attorneys
PORT ELIZABETH
No appearances for
second and third respondents.
1
Act
32 of 1944
2
Section
82 of the Act provides that no appeal shall lie from the decision of
a Court if, before the hearing is commenced, the
parties lodge with
the Court an agreement in writing that the decision of the Court
shall be final.
3
Section
48 of the Act lists the type of judgments or orders upon which an
appeal shall lie.
4
Chapter
XI deals with appeals and reviews from the magistrate’s court
to the High Court. Thus it refers to “the process
by which,
apart from appeals, the proceedings of the lower courts of justice,
both civil and criminal, are brought before the
High Court, in
respect of grave irregularities or illegalities occurring during the
course of such proceedings. See Jones &
Buckle – The Civil
Practice of the Magistrate’s Courts in South Africa 9
th
ed Volume I p 343.
5
In
terms of Rule 60(5) of the Magistrate’s Court details of which
are explained in para [17]
supra
6
Murray
& Daddy (Pty) Ltd v Floros
1959 (4) SA 137
(N)
7
Snyman
v Crouse en ‘n Ander
1980 (4) SA 42
(O)
8
Snyman
v Crouse en ‘n Ander
supra
fn 2