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[2021] ZAKZDHC 43
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Naidoo v Duki and Another (D5741/2019) [2021] ZAKZDHC 43 (14 December 2021)
THE
HIGH COURT OF SOUTH AFRICA
KWAZULU–NATAL
LOCAL DIVISION, DURBAN
D5741/2019
In
the matter between:
GONASEN
SOOBRAMANY
NAIDOO APPLICANT
and
DESIREE
DUKI FIRST
RESPONDENT
BASIL
KING, REGIONAL COURT MAGISTRATE,
PORT
SHEPSTONE SECOND
RESPONDENT
JUDGMENT
Chetty
J:
[1] The
applicant sought an order on 4 November 2019 directing the first
respondent, his estranged wife, to show
cause why the order granted
by second respondent (‘the magistrate’) on 30 April 2019
in the context of divorce proceedings,
should not be reviewed and set
aside. The order granted by the magistrate was in the following
terms:
‘
The
plaintiff/respondent’s claim as set out in his Particulars of
Claim dated 7 November 2017 is hereby dismissed.
Plaintiff/Respondent’s
defence to the Plaintiff’s/Applicant’s counter claim as
contained in the Respondent’s/Plaintiff’s
Plea to the
Applicant’s/Defendant’s Claim in Reconvention dated 7
June 2018 is hereby struck out.
Defendant/Applicant is
granted leave to set the action down for hearing and lead evidence to
seek judgment in her favour and as
sought in her claim in
Reconvention (as may be amended) without further notice to the
Plaintiff or Respondent.
As far as costs are
concerned the Court orders Respondent in this application, that is
Plaintiff to bear the costs of the applications.’
[2] The
applicant and the first respondent are currently married to each
other, out of community of property and
without accrual, but are in
the process of getting divorced. There is one minor child born of the
marriage. The first respondent
defended the divorce action and
brought a counterclaim. I am given to understand that the issues of
divorce and that of co-parenting
responsibilities are not issues in
dispute. The aspects which are in dispute between the parties is that
of rehabilitative maintenance
for the first respondent, in which she
claims an amount of R28 805 per month for a period of five years,
with an annual escalation
of 10 per cent per annum. In addition, she
claims maintenance for the minor child at the rate of R 14 581 per
month, with an escalation
of 10 per cent per annum, as well as an
order directing the applicant to be responsible for the child’s
educational and reasonable
medical expenses. In respect of the
proprietary consequences of the marriage, the first respondent seeks
a declaration that a universal
partnership exists in respect of the
businesses known as Imvusa Trading, Imvusa Trucking and Inymeko
Trading. Arising from such
declaration, the first respondent seeks an
order that the applicant is directed to pay over to her 50 per cent
of the value of
the businesses referred to above.
[3] The
divorce action has proceeded in the Regional Court, Port Shepstone.
In preparation for the trial, the first
respondent delivered
pre-trial notices in terms of Uniform rule 23 and s 7 of the
Matrimonial Property Act 88 of 1984 (‘the
MPA’),
respectively, in which the first respondent sought various details in
relation to the bank accounts of the applicant’s
businesses, as
well as a statement of the assets currently held by these businesses.
The applicant’s attorney’s failed
to comply with these
notices, resulting in the first respondent’s attorneys bringing
applications to compel the production
of such documents to enable the
first respondent to prepare for trial which was set down on 6-8 March
2019.
[4] The
applications to compel were both dated 12 February 2019 and set down
for hearing on 4 March 2019. It is
not disputed that on 4 March 2019
the applicant’s attorney consented to an order in terms of the
applications, in other words,
that the applicant would deliver his
responses to the first respondent’s notices within ten days of
the order. A further
term of the consent order was that in the event
of the applicant failing to furnish the information contemplated in
the notices,
the first respondent would be entitled to apply for an
order dismissing the applicant’s claim and striking out his
defence
to the first respondent’s counterclaim, ‘and for
such further order as the Court may deem fit’.
[5]
It
is not in dispute that the applicant was served with copies of the
consent order
taken on 4
March 2019. Despite indulgences being granted to the applicant’s
attorneys
to file the
necessary documents, there was no compliance with the terms of the
consent order. On 30 April 2019 the first respondent
brought an
application to dismiss
the
applicant’s claim and strike out the applicant’s defence
to her counterclaim. The applicant’s attorney was
present in
court on the day (30 April 2019) and sought to apply for a
postponement in which he submitted that the court had no
jurisdiction
to entertain the claim for a universal partnership.
[1]
The applicant’s attorney further
submitted
that after consultation with counsel, it was concluded that the
applicant had
incorrectly
(or inadvertently) consented to the order on 4 March 2019 and
accordingly
an
adjournment was being sought in order to apply for the consent order
to be set aside.
[6] The
magistrate, after hearing submissions from the representatives of
both parties, was alert to the discretion
he had as to whether to
grant the applicant the adjournment, where costs had been tended. The
magistrate also considered whether
the adjournment being sought was
nothing more than a tactical manoeuvre for the applicant to obtain an
advantage over the first
respondent, ultimately to her prejudice.
After considering the circumstances, the magistrate was of the view
that even the awarding
of an adverse costs order against the
applicant would not assist the first respondent in bringing the
matter to finality, particularly
where a pre-trial conference had
been held as far back as August 2018 when the claim by the first
respondent to the existence of
a universal partnership was known.
Despite the passage of time, the applicant took no steps to challenge
the first respondent’s
claim in so far as the magistrates’
court’s jurisdiction was concerned, and went further to consent
to an order to
comply with the applications to compel. The magistrate
was furthermore of the view that the applicant’s conduct
indicated
a tendency to ignore the sanctity of court orders, leading
the applicant to apply for the adjournment on 30 April 2019. The
court
consequently refused the adjournment, dismissed the applicant’s
action for a divorce, struck out his defence to the first
respondent’s counterclaim, and granted the first respondent
leave to set her counterclaim down for adjudication, without
notice
to the applicant, and to lead evidence to obtain judgment in terms
thereof.
[7] In
light of the second respondent’s ruling, the applicant
instituted the present review application contending
that the effect
of the order is that the counterclaim will proceed to be finalised
without the applicant’s participation
in the eventual outcome,
and that orders pursuant to the first respondent’s claim to
maintenance and parental responsibilities
will similarly be made
without his input.
[8]
Mr
Morgan
,
who appeared on behalf of the applicant, submitted that once the
magistrates’ court makes a ruling on the first respondent’s
claim for maintenance for herself and the minor child, these orders
must be complied with. Failure to comply therewith by the applicant
could result in contempt proceedings being brought by the first
respondent. Similarly, it was submitted that if an order were to
be
made granting the first respondent a half share in the applicant’s
business, this would be ‘disastrous’
for the
running of the applicant’s business, especially on issues of
liquidity and dealing
with
creditors of the businesses. Mr
Morgan
further
submitted that if a maintenance order were to be granted (with or
without amendments, which the applicant would not
be
entitled
to
oppose)
the
applicant
would
be
obliged
to
pay
significant
sums
on
a monthly
basis to the first respondent. If the magistrate were to grant an
order in respect
of the
universal partnership, this would have a direct bearing on the
applicant’s financial ability to comply with such orders.
Although it was contended that the magistrate lacked the necessary
jurisdiction to hear the issue of the universal partnership
in the
form of the declaratory relief sought, Mr
Morgan
did not
persist with
this
argument with any conviction before me. In any event, s 29(1B)(
a
)
of the
Magistrates’
Courts Act 32 of 1944
refers to the jurisdiction of the court to
‘decide upon
any
question
arising’
from ‘suits relating to . . . divorce between persons’.
[2]
I am satisfied that there is a sufficiently close nexus between the
primary dispute (the divorce) and the ancillary relief (universal
partnership) for the court a quo to have jurisdiction over both
issues, despite the value of the assets in the universal partnership
exceeding the monetary jurisdiction of the regional court.
[9] The
first respondent opposed the review application and filed a detailed
answering affidavit in which she contends
that the applicant’s
conduct in the matter is indicative of his intention to delay the
resolution of the divorce proceedings,
and to drag the matter out for
as long as he can. It was submitted by Ms
Sponnek
on behalf of
the first respondent that no irregularity took place in the
proceedings in the court a quo in as much as the applicant’s
attorney was present on the day and brought an application for an
adjournment. The matter was then argued as an opposed application
after which the magistrate refused the adjournment and gave his
ruling dismissing the application and striking out the applicant’s
defence to the counterclaim. It was contended that the decision of
the magistrate was fair in the circumstances and that the application
for a review is misplaced as it is based on the applicant’s
fears and speculation as to the possible outcome of proceedings
which
are yet to take place. For this reason, the crux of the first
respondent’s opposition to this application is that this
court
must determine whether review proceedings are appropriate in the case
of incomplete proceedings in the court a quo.
[10] Ms
Sponnek
further submitted that the matrimonial regime of the
parties did not
per se
bar the magistrates’ court from
issuing a declaratory order of the nature sought by the first
respondent in as much as where
the spouses carried on a
bona
fide
business (
societas universorum quae ex quaestu
veniunt
) and the essential elements to create a partnership
agreement are present, a partnership exists. See
Mühlmann v
Mühlmann
1984 (3) SA 102
(A) where the court found
that a universal partnership existed between parties who were married
to each other out of community
of property.
[11]
Essentially
the applicant contends that the order granted by the magistrate has
the effect of locking him out from further participation
in the
proceedings, that his right
to a fair
trial has been infringed, and is prejudicial to him. If the
proceedings are allowed to continue to their finalisation,
he states
that he will suffer a ‘grave injustice’.
Counsel for
the applicant submitted that the order by the second respondent
constitutes a reviewable irregularity in terms of
s 22(1)
of the
Superior Courts Act 10 of 2013
, presumably on the basis that it is a
‘gross irregularity’ in terms of subsection
(
c
).
[3]
In this regard it was emphasised that the applicant will not be
permitted to lead any evidence at the ensuing determination of
the
first respondent’s counterclaim, equating to a rejection of
competent evidence from the applicant. Counsel for the applicant
contends that the first respondent would have
carte
blanche
in
respect of the
extent of
her counterclaim before the court a quo, as she would be free to
amend
her
claim,
without notice to the applicant. This brings sharply into focus the
applicant’s rights to a fair trial in terms of
s 33 of the
Constitution. In
De
Beer NO v North Central
Local
Council and South Central Local Council and Others
2001
(11) BCLR 1109
(CC)
para
11
,
the
Constitutional Court said the following about a fair hearing:
‘
A
fair hearing before a court as a prerequisite to an order being made
against anyone is fundamental to a just and credible legal
order.
Courts in our country are obliged to ensure that the proceedings
before them are always fair. Since procedures that would
render the
hearing unfair are inconsistent with the Constitution courts must
interpret legislation and rules
of
court, where it is reasonably possible to do so, in a way that would
render the proceedings
fair.’
[12] During
the course of argument I enquired from Mr
Morgan
what
irregularity took place in the course of the proceedings before the
court a quo. I accept for the purposes of this application
that the
order granted by the second respondent was far-reaching and
prejudicial to the rights of the applicant in so far as advancing
his
claim, and defending the counterclaim brought by the first
respondent. The high watermark of Mr
Morgan
’s argument
was that the review application was brought in order to avert what he
termed ‘a grave injustice’,
in that if the matter were to
proceed effectively unopposed, at the conclusion thereof a liquidator
would be appointed to take
charge of the affairs of the various
businesses of which the applicant is supposedly the sole owner.
Several courts have considered
the meaning of the term ‘gross
irregularity’ in the context of review proceedings. In
Ellis
v Morgan
1909 TS 576
Ellis v Dessai
1909 TPD 576
the court
stated the following at 581:
‘
. . . an
irregularity in proceedings does not mean an incorrect judgment; it
refers not to the result, but to the methods of a trial,
such as, for
example, some high-handed or mistaken action which has prevented the
aggrieved party from having his case fully and
fairly determined. The
magistrate ought not, of course, to have made a garnishee order
against the divisional paymaster when it
is clear that the railway
department was the only person indebted to the white labourers; but
though his conclusion of the law
was wrong his procedure was
regular.’ (emphasis added)
[13] In
Goldfields Investment Ltd. and Another v City Council of
Johannesburg and Another
1938 TPD 551
at 560-561 the court
elaborated on the circumstances in which a gross irregularity can be
said to have occurred:
‘
The law, as stated
in
Ellis v Morgan
(
supra
) has been accepted in
subsequent cases, and the passage which has been quoted from that
case shows that it is not merely high-handed
or arbitrary conduct
which is described as a gross irregularity; behaviour which is
perfectly well- intentioned and
bona fide
, though mistaken,
may come under that description. The crucial question is whether it
prevented a fair trial of the issues. If
it did prevent a fair trial
of the issues then it will amount to a gross irregularity. Many
patent irregularities have this effect.
And if from the magistrate's
reasons it appears that his mind was not in a state to enable him to
try the case fairly this will
amount to a latent gross irregularity.
If, on the other hand, he merely comes to a wrong decision owing to
his having made a mistake
on a point of law in relation to the
merits, this does not amount to gross irregularity. In matters
relating to the merits the
magistrate may err by taking a wrong one
of several possible views, or he may err by mistaking or
misunderstanding the point in
issue. In the latter case it may be
said that he is in a sense failing to address his mind to the true
point to be decided and
therefore failing to afford the parties a
fair trial. But that is not necessarily the case. Where the point
relates only to the
merits of the case, it would be straining the
language to describe it as a gross irregularity or a denial of a fair
trial. One
would say that the magistrate has decided the case fairly
but has gone wrong on the law. But if the mistake leads to the
Court's
not merely missing or misunderstanding a point of law on the
merits but to its misconceiving the whole nature of the inquiry, or
of its duties in connection therewith, then it is in accordance with
the ordinary use of language to say that the losing party
has not had
a fair trial. I agree that in the present case the facts fall within
this latter class of case, and that the magistrate,
owing to the
erroneous view which he held as to his functions, really never dealt
with the matter before him in the manner which
was contemplated by
the section. That being so, there was a gross irregularity, and the
proceedings should be set aside.’
(emphasis added)
[14] Counsel
for the applicant submitted that the prejudice to the applicant’s
business interests would commence
‘the moment a liquidator is
appointed’. I understood this to mean that the prejudice would
commence as soon as the
judgment of the court a quo was handed down
granting the first respondent the relief in terms of her
counterclaim. It may well
be that creditors of the applicant’s
business may assume the worst if an order is granted in favour of the
first respondent
in terms of the declaratory order, and if a
liquidator is appointed to take charge of the assets of the
partnership.
[15] However,
the point advanced by Ms
Sponnek
is that the submissions of
the applicant as to the grave injustice that would result is based
entirely on speculation that the magistrate
presiding over the matter
would grant relief to the first respondent precisely in the form for
which she has prayed. This fails
to take into account that the
magistrate is obliged to consider the evidence, bearing in mind that
the first respondent carries
the onus to prove her case for
rehabilitative maintenance, as well as maintenance for her minor
child, together with the further
relief sought in the counterclaim.
One cannot accept that the magistrate presiding over the counterclaim
would simply grant the
relief sought, albeit on an unopposed basis,
without even applying his or her mind to the matter.
[16] A
fundamental difficulty standing in the way of the relief sought by
the applicant is that our courts do not
condone piecemeal litigation
until the matter is finalised. In
Ferreira and Another v
Magistrate, Mr Koopman NO and Another
(2448/2018) [2020] ZAECGHC
102 (8 September 2020) paras 15-16, the court held the following:
‘
[15] .
. . generally a High Court will be reluctant to review incomplete
proceedings in a Magistrate’s Court.
[16]
This
is so unless the review Applicant can show grave injustice would
otherwise result, or whether justice would not be attained
by any
other means.’
[17]
In
PM v Road Accident Fund
[2019] 3 All SA 409
(SCA) paras 21-22,
the court stated the following in regard to uncompleted proceedings
in a magistrates’ court being the
subject matter of review
applications:
‘
[21] . . . The
authorities are clear that it is only in very rare circumstances that
a court will review a decision, or allow an
appeal before the
proceedings have been terminated. As Howie P stated in
S v Western
Areas Ltd
:
“
Long experience
has taught that in general it is in the interests of justice that an
appeal await the completion of a case whether
civil or criminal.
Resort to a higher Court during proceedings can result in delay,
fragmentation of the process, determination
of issues based on an
inadequate record and the expenditure of time and effort on issues
which may not have arisen had the process
been left to run its
ordinary course.”
[22] Even where there is
a power of review, as is the case with uncompleted proceedings in a
magistrates’ court, there is
long-standing authority that such
proceedings will not ordinarily be reviewed by the High Court until
they have run their full
course, at which stage an appeal or review
may be brought. In
Ismail and others v Additional Magistrate,
Wynberg and another
, applying the decision in
Wahlhaus
,
the following was stated: “[I]t is not every failure of justice
which would amount to a gross irregularity justifying interference
before conviction . . . [W]here the error relied upon is no more than
a wrong decision, the practical effect of allowing an interlocutory
remedial procedure would be to bring the . . . decision under appeal
at a stage when no appeal lies.”’
[18] In
the final analysis, while the applicant may have good grounds to
contend that the decision of the second
respondent not to grant him
an adjournment was wrong in law, and that the further relief of
effectively excluding him from contesting
the first respondent’s
counterclaim infringes on his rights to a fair trial, he is not
without remedy.
Section 18(1)
of the
Superior Courts Act 10 of 2013
provides for suspension of the decision pending appeal and states
that ‘unless the court under exceptional circumstances
orders
otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an
appeal, is
suspended pending the decision of the application or appeal.’
It follows therefore that any perceived prejudice
that would follow
from the decision arising from the determination of the first
respondent’s counterclaim can be immediately
halted by the
noting of an appeal against the outcome of the counterclaim as well
as the decision of the second respondent not
to grant the adjournment
on 30 April 2019. As stated earlier, I have been unable to find any
irregularity in the procedure followed
by the second respondent in
arriving at the decision on 30 April 2019. While the applicant (and
this court) may have misgivings
about the correctness of that
decision and the further relief granted, that in itself does not lay
the foundation for a review.
[19] In
the result, the application for the review must fail. Ordinarily
costs would follow the result. However,
in this case I consider that
each party should bear their own costs. I say so because the grounds
on which the applicant has come
unstuck lies in a legal assessment of
whether he ought to have proceeded by way of appeal or review. The
application was generated
by the rather far-reaching order of the
second respondent, which on the face of it, infringes the applicant’s
right to a
fair trial. There is no doubt that this is an issue which
is appealable, but that option can only be considered at the
conclusion
of the final outcome of the counterclaim. I consider an
award that each party bear their own costs to be fair in the
circumstances.
[20] I
make the following order:
a. The
application is dismissed.
b. Each
party is to pay their own costs.
Chetty
J
Appearances
For
the applicant: Mr
S Mogran
Instructed
by: Barry
Botha & Breytenbach inc
Email:
nolan@bbbinc.co.za
c/o: Govender
Pather & Pillay 31 Parry Road, Durban
Ref: Ronica
For
the Respondent: Ms M A Sponneck
Instructed
by: Calitz
Crockart & Associates Inc
Address: 19
Village Road, Kloof
Tel: 031
202 3100
Email:
calcro@calitzcrockart.co.za
Ref: LB/RAC/02D015001
Date
of Judgment reserved: 22
October 2021
Date
of delivery: 14
December 2021
[1]
Section 29(1B)
of the
Magistrates’ Courts Act 32 of 1944
provides the following:
‘
(1B)
(a)
A court for a regional division, in respect of causes of
action, shall, subject to
section 28
(1A), have jurisdiction to hear
and determine suits relating to the nullity of a marriage or a civil
union and relating to divorce
between persons and
to decide upon
any question arising therefrom
, and to hear any matter and grant
any order provided for in terms of the Recognition of Customary
Marriages Act, 1998 (Act 120
of 1998).
(b)
A court for a regional division hearing a matter referred to in
paragraph
(a)
shall have the same jurisdiction as any High
Court in relation to such a matter.’ (my emphasis)
[2]
Emphasis added.
[3]
Section
22(1)
of
the
Superior
Courts
Act
10
of
2013
states
that
‘the
grounds
upon
which
the
proceedings
of any Magistrates’ Court may be brought under review before a
court of a Division are:
(a) absence
of jurisdiction on the part of the court;
(b) interest
in the cause, bias, malice or corruption on the part of the
presiding officer;
(c) gross
irregularity in the proceedings; and
(d) the
admission of inadmissible or incompetent evidence or the rejection
of admissible or competent evidence.’