M.K v D.K (1246/2021) [2021] ZAECPEHC 36 (29 June 2021)

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[2021] ZAECPEHC 36
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M.K v D.K (1246/2021) [2021] ZAECPEHC 36 (29 June 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
Case No.: 1246/2021
Date Heard:
22 June 2021
Date Delivered: 29
June 2021
In the matter
between:
M
[…..]
K
[…..]
Applicant
and
D
[…..]
K
[…..]
Respondent
JUDGMENT
EKSTEEN J:
[1]
The
parties are married to one another and there are two minor children
born of their union.  They are currently embroiled in
divorce
proceedings in the Regional Court, Port Elizabeth.  In the
course of this process the applicant launched an application
for
interim relief
pendente
lite
in
terms of Rule 58 of the Magistrate’s Courts Rules (the Rule 58
application).
[1]
[2]
In the Rule 58 application the applicant sought an
order:
“
1.1
That the Applicant be granted primary care of the two minor children
born of the marriage, from
date of order, to the date that a decree
of divorce is granted, subject to the Respondent’s right to
reasonable supervised access;
1.2
That the Respondent be ordered to pay interim maintenance in the sum
of      R50,000.00
for the Applicant and the
two minor children;
2.1
That the Respondent pay relocation costs in the sum of R200,000.00;
2.2
That the Respondent contributes R300,000.00 for the Applicant’s
legal expenses and disbursements.”
[3]
On 29 March 2021 the magistrate dismissed the Rule
58 application, however, she provided no reasons for her ruling.
Subsequent
to these events, on 2 May 2021, the parties concluded an
agreement in respect of the care of and contact with the children, to
which
they have referred as a “parenting plan”.
Notwithstanding the conclusion of this agreement, on 12 May 2021, the
applicant
commenced these proceedings, purportedly in terms of Rule
43 of the Uniform Rules of Court in the high court (the Rule 43
application).
In the Rule 43 application she claims the same
monetary relief which she had sought in the Rule 58 application,
together with an
order that the “parenting plan” be made an order
of court.  The proceedings are opposed.
[4]
Mr Friedman, who appeared on behalf of the
applicant, contended that the high court is entitled to decide the
issues in this matter
in terms of Rule 43.  In the alternative,
he argued that I should exercise my inherent jurisdiction to come to
the assistance
of the applicant, because, so the argument went, the
magistrate, having dismissed the Rule 58 application, was
functus
officio
and that there was no right of
appeal against her order.  Accordingly, the applicant would be
remediless.
[5]
Rule
58 is identical, in all material respects, to Rule 43.  The
former finds application in proceedings pending in the magistrate’s
court whilst the latter is concerned with proceedings pending in the
high court.  In
SW
[2]
this
Court held:
“
[12]
… 'The court' before which the procedure may be invoked is that
court before which the main action is pending. A 'court' is
defined
in the rules to mean a court constituted in terms of s 13 of the
Supreme Court Act 59 of 1959. Although the rules have not
been
amended, the definition must be read to refer to the equivalent
section in the
Superior Courts Act 10 of 2013
, namely
s 14
, which
is to all intents and purposes identical in its terms to the
erstwhile
s 13
, save that it utilises the changed names of the courts
and refers to the High Court.
[13]
A reading of
rule 43
in the light of the relevant provisions of the
Superior Courts Act indicates
that the procedure provided by the
rule may only be invoked before the court in which the main
lis
in the divorce action is pending.”
[6]
These
findings are decisive of the first argument advanced on behalf of the
applicant.  The high court does not have jurisdiction
in terms
of
Rule 43
to decide interlocutory applications in respect of matters
pending in the regional court.  As a single judge, in the same
court,
I am bound by the decision in
SW
unless
I am satisfied that it is clearly wrong.  I am not so persuaded,
on the contrary, the reasoning therein seems to me to
be sound.
[3]
[7]
I turn to consider the second argument advanced.
In
Green
Jones
J stated:
“
Reference
has already been made in
Venter's
case
supra
to
the possibility of a Court making an interim custody award in these
circumstances where this is urgently required in the best interests
of the child. In appropriate circumstances the reasoning
in
Massey's
case
may justify a Court in exercising jurisdiction in preliminary matters
though the main action is pending elsewhere. But in
the ordinary
course authority and common sense dictate that a claim which
is
pendente
lite
should
be tried in the Court in which the
lis
itself
is to be tried.”
[4]
[8]
In
SW
Goosen
J considered these remarks in
Green
and
the cases referred to therein.  He concluded that where a court
does exercise its inherent jurisdiction it does not, in matrimonial
matters, do so on the basis of the provisions of
Rule 43.
Rule
43
, he concluded, regulates the procedure in matrimonial matters by
which the court exercises its jurisdiction to make appropriate orders
pendente
lite
in
relation to matters pending before it.  The jurisdiction
referred to in
Green
is
therefore not jurisdiction by virtue of the divorce action pending.
It is an aspect of the inherent jurisdiction to protect
the interest
of minor children.
[5]
[9]
I align myself with the conclusions reached in
Green
and
SW.
The application in terms of
Rule 43
was misconceived.  Mr
Friedman, however, argued that even if the application was
misconceived I should, as upper guardian of
minor children, exercise
my inherent jurisdiction in any event. There is no merit in this
submission.  The minor children are
currently resident with the
applicant and her mother.  As I have said, a parenting plan has
been agreed upon and is in operation.
There is no evidence of
any immediate threat to the welfare of the minor children. Applicant
has not made out a case for the exercise
of my inherent jurisdiction
on these grounds.
[10]
That brings me to the alleged motivation for the
Rule 43
proceedings.
As adumbrated earlier, there is no right of appeal against an order
made in terms of
Rule 58
and it was argued that the magistrate is
functus officio.
On
the papers in this Court the applicant contends that the magistrate
had considered it inappropriate for her to seek relief in terms
of
Rule 58
and had taken the position that the applicant’s remedy lies
in the domestic violence and maintenance courts.  She
accordingly
declined to consider the application on its merits.
Assuming, for purposes of this judgment, that these accounts
correctly
reflect the position, the magistrate clearly erred.
The relief sought falls squarely within the ambit of
Rule 58
and she
was obliged to consider the application on its merits.
[11]
The
contention on behalf of the applicant that she is left without any
remedy in the face of a decision which she considers to be
incorrect
is, however, fallacious.  The argument misconstrues the nature
of proceedings in terms of
Rule 58.
In
South
Cape Corporation
[6]
Corbett
JA summarised the general effect of a line of cases dealing with
interlocutory orders.  The material portion of the summary,
as
set out in
The
Civil Practice of the High Court of South Africa
[7]
records:
‘
(a)
In a wide and general sense the term "interlocutory" refers
to all orders pronounced
by the court, upon matters incidental to the
main dispute, preparatory to, or during the progress of, the
litigation. But orders
of this kind are divided into two classes: (i)
those which have a final and definitive effect on the main action;
and (ii) those,
known as "simple (or purely) interlocutory
orders" or "interlocutory orders proper".
(b)
…
(c)
The
general test as to whether an order is a simple interlocutory one or
not was stated by SCHREINER, J.A., in the
Pretoria
Garrison Institutes
case
[8]
,
supra
,
as follows :
"...
a preparatory or procedural order is a simple interlocutory
order and therefore not appealable unless it is such as
to 'dispose
of any issue or any portion of the issue in the main action or suit'
or, which amounts, I think, to the same thing, unless
it 'irreparably
anticipates or precludes some of the relief which would or might be
given at the hearing'."
(d)
If an order when given effect to or executed bears directly upon and
in that way affects the decision in
the main suit it is not a purely
(or simple) interlocutory order.
(e)
At common law a purely (or simple) interlocutory order may be
corrected, altered or set aside by the Judge
who granted it at any
time before final judgment; whereas an order which has final and
definitive effect, even though it may be interlocutory
in the wide
sense, is
res judicata.
’
[12]
What
emerges from this summary is that the general rule that a court may
not alter its own judgment does not apply to simple interlocutory
orders which are susceptible to variation.
[9]
Such orders are open to reconsideration, variation or rescission on
good cause shown.
[10]
Our courts have exercised the power to vary simple interlocutory
orders when the facts on which the orders are based have changed
[11]
or where orders were based on an incorrect interpretation of a
statute which only became apparent later.
[12]
In
Zondi,
[13]
Ngcobo J held that the rationale for holding interlocutory orders to
be subject to variation seems to be their very nature.
They do
no dispose of any issue or any portion of the issue in the main
action.
[13]
In
this matter it was the applicant’s contention, as I have explained,
that the magistrate misconstrued the provisions of
Rule 58
and
considered that the applicant’s relief lay in the family violence
courts and the maintenance courts.  If this is correct,
she was
clearly wrong.  An order in terms of
Rule 58
has no bearing on
the decision in the main suit and is undoubtedly a simple
interlocutory order which may be revisited at any time,
either by the
magistrate who originally made the order, or by any other magistrate
sitting in the same court and exercising the same
jurisdiction.
[14]
If an order was made based on an incorrect interpretation of
Rule 58
I can conceive of no reason in logic or in law why the application
could not be re-enrolled, or a fresh application made, and the
decision reconsidered.  The magistrate is not
functus
officio
and
the applicant is not without remedy.
[14]
I
am alive to the costs implications which flow from the conclusion to
which I have come and I have given careful consideration to
referring
the
Rule 43
application to the magistrate for adjudication on its
merits.  However, for the reasons which are set out hereafter, I
consider
that it would be inappropriate to do so.
Rule 43
(and
Rule 58)
contemplate a speedy and cost-effective resolution of
disputes relating to the subject matter set out in these rules.
The rules
require that an applicant is to deliver a sworn statement,
in the nature of a declaration, setting out the relief claimed and
the
grounds therefore.  It requires of a respondent thereafter
to deliver a sworn reply, in the nature of a plea.  What is
envisaged is a concise statement of the essential facts relied upon
so as to enable the court to determine the issues expeditiously.
Lengthy affidavits could serve only to obstruct the purpose of the
rule which is to decide applications thereunder as inexpensively
and
quickly as possible.  Prolixity has been held to be an abuse of
the process of court.
[15]
In
Visser
Kroon
J, sitting in this Court, observed
[16]
:
“
It
is my experience, and I understand that of my Brothers to be the
same, that there is a tendency for the provisions of
Rule 43
to
be disregarded and for the applications and the reply thereto to
assume voluminous proportions. That practice must be firmly
discouraged and the present is an appropriate case where that
discouragement will commence.”
[15]
The tendency has re-emerged.  The applicant, purporting to
approach this Court
in terms of
Rule 43
, filed papers comprising 54
pages with a lengthy affidavit, including numerous aspects which were
entirely unnecessary and irrelevant
to the issues to which
Rule 43
relate.  The respondent, apparently enthused by the applicant’s
disregard for
Rule 43
, responded in like manner with papers
comprising 90 pages.  To add insult to injury, when the
application was heard, the applicant
sought leave to file a further
42 pages in reply to the respondent’s statement.
[16]
I
do not suggest that the rule does not permit of exceptions in
extraordinary cases, however, this is not such a case.  As I
have said the papers contain numerous allegations which have no
bearing on the relief sought in terms of
Rule 43.
The
application is, in my view, an abuse of the process because it
defeats the very purpose of the rule, which is to arrive
at an
inexpensive and expeditious, interim resolution of disputes.
[17]
In the circumstances I consider it inappropriate to refer the current
application to the magistrate for determination.
[17]
That brings me to the issue of costs.  Both parties were
represented by attorneys
of some experience and were equally guilty
in their disregard for the rules.  In my view the litigants
should not be penalized
for the abuse of the process by their legal
representatives.  In the circumstances it would be appropriate
to order that neither
parties’ legal representatives may recover
any costs from their respective clients in respect of the drafting,
preparation or presentation
of the application.
[18]
In the result, I make the following order:
1.
The application is dismissed.
2.
Neither parties’ attorney may recover any costs from
their
respective clients in respect of the drafting, preparation or
presentation of the application.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Mr Friedman instructed by Friedman Scheckter, Gqeberha
For
Respondent:      Mr Laubscher instructed by
Stuart Laubscher Inc Attorneys, Gqeberha
[1]
Rule
58 of the Magistrate’s Courts Rules is identical in all material
respects to Rule 43 of the Uniform Rules of Court in the
High
Courts.  Rule 58(1) of the Magistrate’s Courts Rules
provides:
“
(1)
This rule shall apply whenever a spouse seeks relief from the court
in respect of one or more of the following matters:
(a) interim
maintenance;
(b)  a
contribution towards the costs of a pending matrimonial action;
(c)  interim
care of any child;   or
(d) interim contact
with any child.”
[2]
SW
v SW and Another
2015
(6) SA 300
(ECP) at para [12] and [13]
[3]
See
Green
v Green
1987
(3) SA 131
(SECLD) at 134B-C
[4]
At
134D
[5]
SW
para
[19]
[6]
South
Cape Corporation Pty Ltd v Engineering and Management Services
1977
(3) SA 534 (A)
[7]
Herbstein
and Van Winsen:  The Civil Practice of the High Courts of South
Africa
(5
th
ed)
at  913-914
[8]
1948
(1) SA 839
(AD) at 870
[9]
Duncan
NO v Minister of Law and Order
1985
(4) SA 1
(T) at 2E-F
[10]
South
Cape Corporation
at
550;
Duncan
NO
at
3;  and
Zondi
v MEC, Traditional and Local Government Affairs
and
Others
2006 (3) SA 1
(CC)
[11]
See
Rule 58(6)
[12]
Sandell
and Others v Jacobs and Another
1970
(4) SA 630
(SWA);
Meyer
v Meyer
1948
(1) SA 484 (T)
[13]
At
para [30]
[14]
Sandell
at
634D
[15]
Maree
v Maree
1972
(1) SA 261
(O) at 263H;
Smit
v Smit
1978
(2) SA 720
(W) at 722G;
Niehaber
v Niehaber
1980
(2) SA 803
(O) at 806F;
Micklem
v Micklem
1988
(3) SA 259
(C) at 262C;
Visser
v Visser
1992
(4) SA 530 (SE)
[16]
At 531D
[17]
Smit
at
722G