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[2024] ZAGPPHC 365
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S.H v S.H (12415/22) [2024] ZAGPPHC 365 (17 April 2024)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA.
CASE
NO: 12415/22
In the matter between:
S[...]
H[....]
PLAINTIFF
And
S[...]
H[....]
DEFENDANT
JUDGMENT
MALATSI-TEFFO
AJ
INTRODUCTION
[1]
This is an uncontested divorce action in respect of a foreign
marriage concluded in Zimbabwe.
The defendants brought an
Application from the Bar which was declined by the Court. As a
result, the Court heard the matter on the
24
th
of November
2023 as uncontested.
[2]
The Court requested Plaintiff to file Heads, more peculiarly
addressing: the identity of the Parties, as the Marriage Certificate
copy handed up was feint and did not record the identity numbers of
the Parties.This case is twofold, firstly leave to pursue
Exception
by the Defendant and secondly the uncontested divorce action.
FACTUAL
BACKGROUND
Application to pursue
the strikeout.
[3]
On 4 September 2023, my brother Swanepoel J struck
out the defense application for exception, granting the plaintiff an
order to
approach the registrar of the court to seek a date for a
hearing on an unopposed roll. On the date of the hearing of the
divorce,
the defendant’s counsel appeared before me intending
to viva voce seek leave to pursue the Defendant’s Exception.
There
was no application filed on record for uplifting the struck-out
order. Incidentally,
the defendant had already filed the
notice of Withdrawal of Intention to Defend on
19
September 2022,
together with the signed settlement agreement
which they later wanted to withdraw.
[4] As the matter has
been dragging for quite some time, in the interest of justice I
suggested that the matter be stood down for
two days for the parties
to discuss and come to a consensus, and/or for the defendant to bring
proper papers for the lifting of
the bar and the variation of the
court order.
[5]
The matter resumed on 24 November 2023, and the defence had not
brought any paper whatsoever as directed by the court on the
previous
sitting and had refused as indicated by the plaintiff’s counsel
to discuss the settlement of the divorce matter.
I enquired from the
bench as to why they failed to come to court on the 4
th
of
September 2022, he said that he had inherited the matter from a
colleague however from his presentation it was clear that he
had been
dealing with the file for a reasonable time now. On the procedural
issue, considering that I have allowed him the opportunity
to rectify
the situation, he just could not explain, all he wanted was for the
court to get into the divorce proceedings which
was on another note
unopposed.
[5.1] Notably, the
defence counsel did not even place himself properly on record. The
court adjourned the matter again from 11:15
until 2:00 pm to give him
the last chance to sort his matter out. Upon resumption of court at
2:00 pm, counsel was not in court,
and we had to wait for him for
approximately 15 minutes and he did not have the decency to apologize
for keeping the court waiting.
They were not ready to proceed and
wanted the matter to be postponed.
[6]
Having listened to the counsel and having considered the papers, I
then declined an application and allowed the plaintiff to
proceed on
an unopposed basis.
The
divorce application
[7]
The court then proceeded to hear the matter and the Plaintiff led
evidence and prayed for relief in terms of the draft order
filed on
the case line seeking a decree of divorce as well as Redistribution
of the Patrimonial Consequence of the marriage in
accordance with the
Zimbabwean Matrimonial Causes Act.
[8]
Evidence led is such that on the 7th of May 1993 in Zimbabwe
(Chitungwiza), parties were married in terms of
the Zimbabwean Marriage Act, which marriage still subsists.
[9]
The plaintiff is domiciled in the Republic of South Africa,
Sunnyside, Pretoria, Gauteng, and has been so for a period exceeding
1 (one) year from the date of issuance of summons (1 March 2022).
[10]
The plaintiff is domiciled in the Republic of South Africa,
Sunnyside, Pretoria, Gauteng, and has been so for a period exceeding
1 (one) year from the date of issuance of summons (1 March 2022).
[11]
There are no minor children born in the marriage.
[12]
Before adjournment, I indicated that I needed to be satisfied on
whether a proper case. had been made out for relief sought,
with
special attention being given to the issue of Authenticity of the
Marriage between the parties and the
Identity of
the Parties.
[13]
Following the adjournment, the plaintiff’s counsel filed the
Identity Documents simultaneously
with
the heads of argument
[13.1] Plaintiff:
Full name – S[...] (née D[...]) H[...]; Zim Identity
Number: 6[...].
[13.2] Plaintiff SA
Identity Number: 7[...].
[13.3] Defendant:
Full name- S[...] H[....]; Zim Identity Number: 6[...].
[13.4] Defendant SA
Identity Number: 7[...].
[14]
To address the issue of Authenticity of the Marriage and the Identity
of the parties as raised, the plaintiff said they
took the following
steps;
They
engaged the office of the Zimbabwean Registrar of Marriages and
explained the aforesaid issues raised. The Registrar of Marriages
explained the procedures involved in proving legitimacy of A
Zimbabwean marriage in a foreign jurisdiction. The Registrar of
Marriages
in Zimbabwe explained that in the event of disputation, a
Zimbabwean Marriage was proved in a Foreign jurisdiction by adducing
an Authenticated certified copy accompanied by certified copies of
the parties’ Identity
[15]
Furthermore, Plaintiff then made certified copies of the
Authenticated Marriage Certificate as well as all the Zimbabwean
Identity documents as well as South African Identity documents to
attach them to the Authenticated certified copy of the Marriage
Certificate in dispute.
A copy of the
Certified Authenticated Certified Copy of the Marriage Certificate in
dispute as well as all Identity Documents of
the parties both
documents
for Zimbabwe and South Africa
have been
simultaneously filed with the head of
Argument.
[16]
The issues
to be considered are whether the defendant can lead
the viva voce evidence to pursue the exception without uplifting the
bar. And
whether a proper case had been made out for relief
sought, with special attention being given to the issue of the
authenticity
of the Marriage between the parties. And Identity
of the Parties
LEGAL
PRINCIPLE AND ANALYSIS
[17]
The Constitution of South Africa
[1]
provides that “an order or decision issued by a court binds all
persons to whom ……… it applies”.
[18]
The court held that
the
striking out of a defendant’s defence constitutes a bar to the
defendant tendering evidence which had or could have been
pleaded in
its plea. However, the defendant’s legal representatives are
still entitled to represent the defendant in the
matter, despite the
defendant’s defence being struck out
[2]
.
In this regard, the court may on good cause shown condone any
non-compliance with the rules
[3]
[19]
In this case, the defendant was absent from court,
The
striking-out order was necessary in this case to confine the
defendants who as it is clear from how they conducted the matter(his
legal representative in particular) have instituted proceedings as a
mere delay tactic
.
He was
thus precluded from pursuing the matter without bringing in a
substantive application. Defendants failed to bring a substantive
application, despite being allowed to do so.
[20]
The constitution commands, that orders and
decisions issued by the court bind all the persons to whom they
apply. It follows from
this that disobedience toward court orders or
decisions risks rendering our courts impotent and judicial authority
a mere mockery.
If the conduct of the defense was to be sanctioned by
this court, effectively the order granted on 4 September 2023 would
be rendered
nugatory and meaningless, and this would not be in the
interest of justice
.
[21]
The Divorce Act
[4]
provides in Section 2 (1)(a) that:
(1)
“
A court shall have jurisdiction in a divorce action if the
parties are or either of the parties is-Domiciled in the
area of jurisdiction of the court on the date on which the action
is instituted
[22]
Furthermore
,
the Divorce Act stipulates in terms of Section
4:
(1)
“
A court may grant a decree of divorce on
the ground of irretrievable breakdown of a marriage if it is
satisfied that the marriage
relationship between the parties to the
marriage has
reached such a state of disintegration
that there is no reasonable prospect of the restoration of a normal
marriage relationship
between them.”
[23] The plaintiff
resides in the Republic of South Africa, and has stayed in the
country for more than a year, thus in terms
of the Divorce Act this
court has jurisdiction
[24]
In terms of the Zimbabwean Marriage Act;
All the Zimbabwean
marriages are by default out of community of property upon
dissolution thereof by divorce, the Court is thus
empowered to make a
redistribution order as to the patrimonial consequences thereof in
terms of the Zimbabwean Matrimonial Causes
Act
[5]
.
[25]
Sections 7(1), and 7(4) of the Zimbabwean Matrimonial Causes Act
reads as follows:
"7(1)
Subject to the provisions of this section, in granting a decree of
divorce, judicial separation or nullity of marriage,
or at any time
thereafter, the Court may make an order with regard to: -
a).
the
division,
apportionment,
or
distribution
of
the
assets of
the
spouses
including
an
order
that
any
asset
be transferred from one spouse to
the other
...”
[26]
Counsel referred me to the Unreported Case of this Division to
R
vs R
[6]
,
a matter in which the Court dealt with and disposed of a marriage
concluded in a foreign jurisdiction, namely Zimbabwe in terms
of the
Zimbabwean marriage laws. Importantly, my brother
Justice
Davis dealt
with the applicable principles that are considered by the Court in
granting a redistribution order in light of the dissolution,
which
similar relief Plaintiff also seeks in this matter before me
CONCLUSION
[27]
The defendant has been precluded from pursuing the
matter without bringing in a substantive application. When he came to
court to
present his matter, he failed despite numerous requests to
assist the court by complying with the rules of substantive
compliance,
on that note his application failed.
[28]
I am satisfied that the parties were married in terms of the
Zimbabwean marriage and that the marriage still exists. Furthermore,
the marriage has irretrievably broken down and there are no prospects
of restoration.
ORDER
[29]
HAVING said that, I therefore make the following
order:
[29.1]
The bonds of marriage existing between the Plaintiff and the
Defendant are hereby dissolved.
[29.2]
In
terms
of
Section 7(1)
of
the
Matrimonial
Causes
Act
of Zimbabwe,
Act No: 33 of 1985 (as amended):
[
29.2.1]
The
Plaintiff
shall
retain
as
her
sole
property
in
a
full
and undivided share the following
immovable properties:
[
29.2.2].
The
property
known
as
or
with
description
to
wit
No:
[...]
S[...]
Road,
Hatfield,
Harare,
Republic
of
Zimbabwe.
[29.2.3]
.The property known as or with description to wit Unit 1[...] H[...],
No: 3[...] L[...] Street, Sunnyside, Pretoria, Gauteng
Province,
Republic of South Africa.
[29.2.4]
The Defendant shall retain as his sole property in a full and
undivided share the following immovable properties:
[29.2.5.]
The property known as or with description Erf 2[...] Haydon Park,
Bulawayo, Republic of
Zimbabwe.
[29.2.6]
The property known as or with description, a certain erf in
Domboshava, Republic of Zimbabwe of which full and further
particulars are to the Plaintiff unknown.
[29.2.7]
The property known as or with description stand No: 8[...] Section 4,
Suurman Location, Hammanskraal, Gauteng Province,
Republic of South
Africa
[29.2.8]
The Plaintiff shall retain as her sole property in a full and
undivided share, the movable property to wit:
[29.2.9]
All household movables and personal effects at No: 3[...] L[...]
Street, Sunnyside, Pretoria, Gauteng Province, Republic
of South
Africa as at the date of divorce.
[29.2.10]
All household movables and personal effects at No: [...] S[...] Road,
Hatfield, Harare, Republic of Zimbabwe as at the
date of divorce.
[29.2.11]
The motor vehicle with registration letter number X[...], a BMW E90.
[29.2,12]
The Plaintiff shall retain as her sole property in a full and
undivided share her pension funds contribution under GEPF
No: 9[...].
[29.2.13]
Defendant shall retain as his sole property in a full and undivided
share, the movable property to wit:
[29.2,14]
All household movables and personal effects at No: 8[...] Section 4,
Suurman Location, Hammanskraal, Gauteng Province,
Republic of South
Africa as at the date of divorce.
[29.2.19]
All household movables and personal effects at No Erf 2[...]
Haydon
Park, Bulawayo, Republic of Zimbabwe as of the date of divorce.
[29.2.20]
Each party shall pay any debt in his/her name as of the date of
divorce.
[3]
No order as to cost
MALATSI-TEFFO LM
ACTING JUDGE OF THE
HIGH COURT,
GAUTENG DIVISION,
PRETORIA.
Counsel
for the Plaintiff:
Adv.
T. Munotsiwa
073
958 54586
advtaum@gmail.com
Instructed
by:
Gwanangura
In
Counsel
for the Defenant :
Pillay
Thessigan INC.
012 751
6047
pretorialegal@gmail.com
Date
of hearing:
24
November 2023
Date
of judgment:
17
April 2024
[1]
S165(5)
[2]
Motala NO obo K W v Road Accident Fund (42353/2019) [2023] ZAGPJHC
1428 (15 November 2023)
[3]
Rule 27 of the Uniform Rules of court7
[4]
Act 70
of 1979.
[5]
No: 33
of 1985 (as amended) of Zimbabwe
[6]
Case
No: 37229/2015 GPTA