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[2023] ZAECMKHC 51
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D.B v N.B (CA62/2022) [2023] ZAECMKHC 51 (22 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: CA62/2022
In
the matter between:
D[....]
B[....]1
Appellant
And
N[....]
B[....]2
Respondent
JUDGMENT
BESHE
J:
[1]
The appellant, who was the plaintiff in the court
a
quo
, sued the respondent out of the East London Magistrates Court
for the return of a motor vehicle (
rei vindicatio
). In
response thereto, the respondent raised a special plea of
lis
alibi pendens
which was upheld by the court
a quo
. This is
an appeal against that decision which is not opposed.
[2]
The following facts were common cause as would appear
from the pleadings:
The
parties have been married to each other out of community of property
but subject to the accrual system since 27 March 2010.
On 14 April
2010 appellant purchased the motor vehicle that was the subject of
the proceedings in the court
a quo
, a Ford Fiesta with
registration numbers and letters HNJ 932 EC.
Respondent
has been using the said motor vehicle since 2010.
During
2020, respondent instituted divorce proceedings against the appellant
which proceedings are still pending before the Regional
Court, East
London.
Respondent
took the motor vehicle with her upon moving out of the parties’
marital home.
The
motor vehicle is registered under appellant’s name.
[3]
Respondent, (as defendant) pleaded that the appellant
purchased the motor vehicle as a gift for her. This is denied
by the
appellant. Respondent also raised a special plea of
lis alibi
pendens
on the basis that the motor vehicle in question forms
part of the accrual of the estates of the parties that is still to be
determined
during the pending divorce action. In other words, the
extent of the accrual, if any, in respect of the parties’
estates
is still to be determined by the divorce court. The
Magistrate held that the respondent had met the requirements for a
successful
les alibi pendens
defence and effectively upheld
the special plea.
[4]
The appeal is premised on the ground that the court
a
quo
erred in effectively ruling that the ownership of the motor
vehicle in question is a matter that is serving before the divorce
court. Further, it being submitted that the cause of action in the
divorce action is entirely different from the dispute as to the
ownership of the vehicle concerned. Consequently, the requirements of
the special plea of
lis alibi pendens
were not met by the
respondent.
[5]
The Magistrate in the court
a quo
did not, in so
many words pronounce herself on whether the requirement that the
cause of action must be the same in both proceedings
has been met.
Nor did she express why she was of the view that all the requirements
for a
lis pendens
plea to be successful have been met,
including one relating to the same cause of action. The Magistrate
expressed the view that
the motor vehicle in question forms part of
the accrual system, and that the divorce court is better placed when
calculating the
accrual of the parties’ estates to determine
which party owns the vehicle. In doing so, that court will consider
the parties’
respective claims regarding ownership of the motor
vehicle.
[6]
It is trite that it is inappropriate for a dispute (
lis
)
between the parties to be litigated in two different courts. Put
differently, if there is pending litigation between the parties
in
respect of the same subject matter in one jurisdiction, the defendant
/ respondent may raise the plea of
lis pendens
in the other
jurisdiction where the matter is instituted, entitling him to a stay
of the latter proceedings.
[7]
For a plea of
lis alibi pendens
to be successful,
the following requirements must be met:
(i)
There must be pending litigation;
(ii)
between the same parties;
(iii)
based on the same cause of action;
(iv
in respect of the same subject matter.
[1]
It
is common cause that the pending divorce action is between the same
parties as in the proceedings under consideration.
[8]
Appellant asserts that the proceedings before the court
a quo
were not in connection with a divorce action but were concerned with
ownership of a motor vehicle and not the division of the parties’
estates. It may well be so, but the appellant in his heads of
argument seems to acknowledge that should the motor vehicle in
dispute
form part of the accrual system, the respondent will only
have a claim in respect thereof when the marriage between the parties
is dissolved. Appellant acknowledges that the motor vehicle forms
part of the assets that will be considered for purposes of
calculating
accrual, but that the divorce court will not likely
determine who the owner is and whether it should be returned to the
appellant.
[2]
This talks to the
requirement that the cause of action must be the same in both
actions. In
Hassan
and Another v Berrange N.O.
[3]
the
lis
pendens
plea was described as follows: “Fundamental to the plea of
lis
pendens
is the requirement that the same plaintiff has instituted action
against the defendant for the same thing arising out of the same
action.” In
Cook
and Others v Muller
,
[4]
it was stated that it is not necessary in order to raise the plea,
that the person raising it should have been the defendant in
the
other proceedings. In
Caesarstone
Sdot-Yam v World of Marble and Granite
,
[5]
the court warned against a strict application of three requirements
of the special plea as this would generate a negative response.
The
court went on to say:
[6]
“
[21]
On this basis the requirement of the same cause of action is
satisfied if the other proceedings involve the determination of
a
question that is necessary for the determination of the case in which
the plea is raised and substantially determinative of the
outcome of
that latter case.
Boshoff
was followed in a number of cases in
provincial courts, but was regarded as controversial because it was
thought to import in South
African law the English principles of
issue estopel. It is necessary to explore that controversy because
this court laid it to
rest in
Kommissaris van Binnelandse Inkomste
v Absa Bank Bpk
. There Botha JA held that
Boshoff
was
based on the principles of our law. He said that its ratio that the
strict requirements for a plea of res judicata of the same
cause of
action and that the same thing be claimed, must not be understood in
a literal sense and as immutable rules. There is
room for their
adaptation and extension based on the underlying requirement that the
same thing is in issue as well as the reason
for the existence of the
plea.”
[9]
In light of what was stated in the
Caesarstone
matter hereinabove, can it be said that the Magistrate
a quo
misdirected herself in making the finding she made in this regard,
namely that the requirements of a
lis pendens
plea have been
met?
[10]
It is also trite that the two actions need not be identical in form.
The requirement of “the same cause of action”
is
satisfied if the other case involves the determination of some point
of law which will be
res
judicata
in the action sought to be stayed or objected to.
[7]
[11]
A court has a discretion whether or not to order stay of proceedings
on the basis of the plea of
lis pendens
. The Magistrate in the
court
a quo
exercised her discretion in favour of the
respondent by upholding the special plea.
[12]
The court in
Loader
v Dursot Bros (Pty) Ltd
[8]
with respect to the discretion to stay proceedings or hear the matter
despite earlier pending proceedings had this to say:
“
It
is clear on the authorities that a plea of
lis alibi pendens
does
not have the effect of an absolute bar to the proceedings in which
the defence is raised. The Court intervenes to stay one
or other of
the proceedings, because it is
prima facie
vexatious to bring
two actions in respect of the same subject-matter. The Court has a
discretion which it will exercise in a proper
case, but it is not
bound to exercise it in every case in which a
lis alibi pendens
is proved to exist . . . .”
[13]
This leads to the question whether interference with the court
a
quo’s
exercise of discretion in this regard is warranted or justified. In
Trencon
Construction v Industrial Development Corporation
[9]
the Constitutional Court had this to say:
“
[87]
This
Court has, on many occasions, accepted and applied the principles
enunciated in
Knox
and
Media
Workers Association
. An appellate
court must heed the standard of interference applicable to either of
the discretions. In the instance of
a discretion in the loose
sense, an appellate court is equally capable of determining the
matter in the same manner as the court
of first instance and can
therefore substitute its own exercise of the discretion without first
having to find that the court of
first instance did not act
judicially. However, even where a discretion in the loose sense
is conferred on a lower court,
an appellate court’s power to
interfere may be curtailed by broader policy considerations.
Therefore, whenever an appellate
court interferes with a discretion
in the loose sense, it must be guarded.
[88]
When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere
unless it is satisfied that this discretion was not exercised—
‘
judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles.’
An
appellate court ought to be slow to substitute its own decision
solely because it does not agree with the permissible option
chosen
by the lower court.”
[14]
In my view, the issue of ownership of the motor vehicle will still be
a live one during the divorce proceedings, when the marriage
is
ultimately dissolved. This is in view of the fact that respondent
also claims ownership of the vehicle on the basis that it
was given
to her by the appellant as a gift. Should this be the case, the
provisions of
Section
5 (2)
of
the
Matrimonial
Property Act
[10]
apply, namely that: In the determination of the accrual of the estate
of a spouse a donation between spouses, other than a donation
mortis
causa
,
is not taken into account either as part of the estate of the donor
or a part of the estate of the donee.
[15]
In light of what has been said earlier in this judgment and the
authorities cited herein, I am unable to say that the Magistrate
in
the court
a quo
did not exercise the discretion vested in her
judicially or that it had been influenced by a misdirection.
[16]
Accordingly, the appeal is dismissed with costs.
N
G BESHE
JUDGE
OF THE HIGH COURT
Rugunanan
J
I
agree.
M
S RUGUNANAN
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Appellant: Adv:
Madukuda
Instructed
by: S
J SKOSANA ATTORNEYS
C/o MGANGATHO ATTORNEYS
7
Somerset Street
MAKHANDA
Ref:
Mr. Mgangatho
Tel.:
073 761 7751
For
the Respondent: No
Appearaces.
Instructed
by: NIEHAUS
McMAHON INC.
C/o YOKWANA ATTORNEYS
10
New Street
MAKHANDA
Ref:
Mr Yokwana
Tel.:
046 – 622 9928
Date
Heard: 3
March 2023
Date
Reserved: 3 March 2023
Date
Delivered: 22 March 2023
[1]
Keyter
v Van Der Meulen
2014 (5) SA 215
ECG at 217 paragraph [10].
[2]
Paragraph
43 of appellant’s heads of argument.
[3]
2012
(6) SA 329
SCA at paragraph 19 F.
[4]
1973
(2) SA 240
SCA at 245 E-F.
[5]
2013
(6) SA 499
SCA at 507 [19].
[6]
Caesarstone
supra
at paragraph [21].
[7]
Erasmus
Superior Court Practice 2
nd
Edition, Van Loggerenberg, Volume 2 D1-280.
[8]
1948
(3) SA 136
(T) at 138.
[9]
2015
(5) SA 245
at 269-70 paragraphs [87] and [88].
[10]
Act
88 of 1984.