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[2021] ZAKZDHC 47
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Naidoo v Duki and Another (D5741/2019) [2021] ZAKZDHC 47 (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.’