Whitfield v Whitfield (02/2021) [2021] ZAECPEHC 55 (26 October 2021)

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
>>
2021
>>
[2021] ZAECPEHC 55
|

|

Whitfield v Whitfield (02/2021) [2021] ZAECPEHC 55 (26 October 2021)

IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 02/2021
In
the matter between:
JENNIFER
ANNE WHITFIELD (born CARTER)
Applicant
and
IAN
LINDSEY WHITFIELD
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
GQAMANA
J:
[1]
For the convenience, the parties shall be referred to as cited in the
main divorce action.
The parties are married to each other, out of
community of property with the inclusion of the accrual system.
Two children
were born of such marriage relationship.  Both of
them are not self-supporting and are financially dependent on the
parties.
The plaintiff, Mrs Whitfield, instituted the divorce
proceedings against her husband, the defendant.  Such action is
opposed
and still pending.
[2]
Subsequent to filing of his plea, the defendant launched an
interlocutory application for
the joinder of their adult dependent
children, as the second and third defendants in the divorce action.
Both the adult dependent
children deposed to affidavits in support of
the aforesaid relief and intimated that they wish to institute
maintenance claims against
the plaintiff.
[1]
The parties’ children reside with the defendant, the elder one is
enrolled for a Master’s degree at Nelson Mandela University
and the
youngest is studying to complete his matric. Moreover, it is common
cause that both are financially dependent on their parents.
[3]
It was the defendant’s contention in the joinder application that,
neither of the parents
have
locus standi
to champion their children’s claims for maintenance and that, both
children have a direct and substantial interest in the divorce
proceedings between the parties.  Given these contentions, it
was argued by the defendant that it would be most convenient and
cost-effective for the maintenance claims of their children be heard
together in the same action.  The plaintiff unsuccessfully
opposed the joinder application.
[4]
Disenchanted with the
ex tempore
judgment and order issued by this court granting the joinder
application, the plaintiff filed an application for a leave to
appeal.
The grounds for appeal are set out in detail in the
application for leave to appeal, but in a nutshell,  the
plaintiff contends
that the court erred in finding that it was
appropriate for the adult dependent children to be joined as parties
in the main divorce
action.  Argument was advanced at the
hearing of this application that, this matter is of considerable
importance because proper
consideration has not been given as to who
has the
locus standi
to bring application for maintenance on behalf of the dependent
children in circumstances as the present one.  In advancing
his
argument,
Mr Dyke SC
,
plaintiff’s counsel, argued that both the
Divorce Act 70 of 1979
and the
Children’s Act 38 of 2005
are silent on whether the parent
or the child has the
locus standi
to pursue a claim for maintenance where the children are not yet
self-supporting and are fully financially dependent on their parents.
[5]
Furthermore,
Mr
Dyke SC
,
with great enthusiasm criticised this court for relying in the
judgment in
Butcher
v Butcher
,
[2]
in finding that the parents have no
locus
standi
to institute maintenance claims on behalf of adult dependent
children.  In my
ex
tempore
judgment, I said the following:
“
In
Butcher v Butcher
…., although the matter was decided in the context of a
Rule 43
application, however the court held that even though a divorce court
is empowered in terms of
section 6
of the
Divorce Act to
make
maintenance orders, for adult dependent children, but the same
section is silent as to whether any of the parents as a party
to a
divorce proceedings have the
locus
standi
to claim maintenance on behalf
of the dependent adult children.  However, it concluded that the
applicant in that case lacked
the necessary
locus
standi
to claim on behalf of the adult
children and only the children themselves that have the standing to
pursue such claim against the
parents.
I then concluded
that:
“
Aligning
myself with the principles postulated in
Butcher
v Butcher
,
Smit
v Smit
1980 (3) SA 1010
(O) at 1018C,
Sikatele v Sikatele
1996 (1) All SA 445
(Tk) and
Zeelie v
Zeelie
case no: 903/2019 unreported
judgment of this Division (dated 9 March 2021), neither of the
parties could champion their claims and
only the children themselves
have the
locus standi
to pursue such claims against the parties.”
[6]
Mr Dyke SC
,
now seeks to persuade me that, because of the uncertainty on whether
adult dependent children have to be joined as of necessity
in every
divorce action, there are therefore compelling reasons of policy and
administration of justice as provided for in s 17(1)(a)(ii)
of the
Superior Court Act 10 of 2013 for the appeal to be heard as it
affects all divorces where there are adult dependent children.
Mr Dyke SC
,
however conceded that in the present matter, the children have a
direct and substantial interest as envisaged in Rule 10 of the
Uniform Rules of Court.
[7]
In terms of section 17(1)(a) leave to appeal should only be granted
if there are reasonable
prospects of success or if there are some
compelling reasons why the appeal should be heard.  In
Ntshokovu
v S
,
[3]
it was held that the test is now more stringent.
[8]
The plaintiff although she raised interesting points in an attempt to
persuade me to grant
leave to appeal, but those points are academic.
This is so because it was conceded on her behalf that their children
have a
direct and substantial interest.  Furthermore, the
children also deposed to affidavits indicating that they intend to
institute
maintenance claims and that it would be convenient and
cost-effective for them to do so in same action between their
parents.
Given the unique facts herein, the argument whether
dependent adult children must be joined as of necessity, is not a
compelling
reason for the appeal to be heard, as provided for in
section 17(1)(a)(ii).  The children themselves want to be joined
as parties
in order to pursue their claims for maintenance.
They have a direct and substantial interest in the matter and as
indicated
above, they have deposed to affidavits in support of the
relief that the defendant sought in the joinder application.
[9]
For these reasons, the application for leave to appeal must fail and
accordingly the following
order is issued:
1.
The application for leave to appeal is refused.
2.
The plaintiff is ordered to pay the costs.
N GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel for the
Appellant
:
Adv
B Dyke SC
Instructed
by
:           Moya
Rossouw Inc.
Port
Elizabeth
Counsel for the
Respondent
:
Adv
L Gagiano
Instructed
by
:
Badenhuizen Inc.
Port
Elizabeth
Date
heard
:
13 October 2021
Date
judgment delivered
:           26
October 2021
[1]
Joinder
: p 8, para 14.
[2]
2009
(2) SA 421
(C).
[3]
Unreported,
SCA case no. 157/2015
[2016] ZASCA 112
dated 7 September 2016.