About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 212
|
|
L.W.M v J.R.D (1252/2022) [2022] ZAFSHC 212 (24 August 2022)
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
,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 1252/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
M[....]2,
W[....]
L[....]2
Applicant
and
D[....],
R[....]
J[....]2
Respondent
HEARD
ON
:
11
AUGUST
2022
CORAM:
AFRICA
AJ
DELIVERED
ON:
This
judgment was handed down electronically
by circulation to the
parties' legal representatives by email. The date and time for
hand-down is deemed to have been at 11h00
on 24 August 2022.
POINT
IN
LIMINE:
RULING
INTRODUCTION
[1]
This is an application in terms of Rule
43, for an order
pendente file
in
the following terms:
1.
The respondent to pay the applicant an
amount of R9000.00 (nine thousand rand) per month in respect of each
of the following children:
M[....], J[....] and L[....], payable on
the 27
th
day of the month in which this order is
granted and every succeeding month thereafter, to ensure that the
funds are cleared in the
applicant's South African bank account by
the 1
st
of each and every month;
2.
The respondent to make payment of the
school fees and all other related expenses, including but not limited
to
text
books, stationery and exam fees for the following children: M[....],
J[....] and L[....], directly to the private school at
which the
children are currently attending;
3.
In the event of the divorce not being
finalised by the time any of the minor children complete their
secondary education, the respondent
is to
pay fees for
the child/ren to
undertake tertiary education direct to
the educational institution;
4.
Payment of each of the children's
medical aid directly to the service provider, until the children
become self-supporting.
5.
Payment of all medical expenses incurred
on behalf of the minor children not covered by medical aid, until
they become self-supporting.
6.
The respondent shall pay the applicant's
medical aid directly to the service provider and make payment of all
medical expenses incurred
on behalf of the applicant not covered by
medical aid.
7.
The respondent is to pay the applicant
the sum of R20 000.00 (twenty thousand rand) per month in her South
African bank account.
8.
The respondent is to pay the applicant
the sum of P25, 308 (being R32, 900) in respect of relocation costs.
9.
The respondent is ordered to make an
initial contribution towards legal costs in the amount of R150 000,00
(one hundred and fifty
thousand rand) payable directly to the
applicant's attorneys trust account.
10.
The respondent be ordered to pay the
costs of this application, alternatively the costs to be costs in the
cause.
11.
Further and /or alternative relief.
[2]
It is common cause that the parties were
married to each other on the 6
th
of May 2000, in Krugersdorp, Gauteng, which marriage still subsists.
The parties relocated to Francistown, Botswana in 2001 and
later moved
to S[....]
P[....], Botswana, where the
respondent is still residing at present.
[3]
It is common cause that the three
children born of the marriage resides with the applicant and that the
respondent has always provided
for the children and applicant.
[4]
The respondent in opposing this
application, raises the
Point in
Limine,
requesting this court to
struck the matter from the roll for noncompliance with
a court order or stay the proceedings
(being
/is pendens),
pending
the
final
decision
of
the
action
between
the
parties under case number NLHGB-000182-22,
in the
High
Court in the Republic of Botswana, Gaborone.
[5]
The respondent further submits that the
aforementioned
litigation
is still pending in Botswana between the parties and has progressed
to the point where the applicant has entered an appearance
to defend
and filed a plea. The Botswana court ordered the parties to prepare a
pre-trial minute. A case management meeting was
held on the 28
th
of July 2022 and a court date for hearing has been set for September
2022.
[6]
The respondent submits that the
aforementioned proceedings are based on the same cause of action and
is in respect of the same subject
matter.
[7]
It is common cause that while the
applicant and minor children still resided in Francistown, Botswana,
the applicant approached
the High Court in Botswana
with an application for
interim
maintenance
and
the payment of legal costs,
which
order was granted on the 12th of
November 2020.
A copy
of
the
said
order is
attached
marked
"A".
However,
as was submitted, the Lephalale Regional Court matter with case
number LP/LEP/RC/99/2019, which served as the jurisdictional
factor
for the interim maintenance order in Botswana, was withdrawn on the
3
rd
of March 2022.
[8]
It is argued that the applicant was not
disallowed to proceed with a divorce action in this court and the
applicant is therefore
entitled to approach this court with an
application in terms of Rule 43.
[9]
In rebuttal hereof it was argued by the
respondent that, where there are similar actions pending in two
different divisions, this
court should accept that the second
proceedings will be presumed vexatious resulting in the abuse of the
process of court.
[10]
It is evident from Annexure "01" that on the 24
th
of march 2022, under case number 1252/2022, the applicant obtained an
order from this honourable court, granting her, as plaintiff,
leave
to institute proceedings by way of edictal citation and amongst
others directing that the summons be served on the respondent
personally
in Botswana by way of the following:
1.
Via email at his known address: being
[….]
2.
Via
email
to
his
Botswana
Attorney,
Rita
Keevil,
address:
[….]
3.
Personally,
on the Respondent
by the
sheriff
of the court in S[....] P[....], Botswana.
[11]
Respondent argues that until now, the
applicant has not properly
instituted
the action, as there has not been compliance with the order dated
24
March 2022,
in that the applicant
has failed to serve the summons on the respondent,
personally
by the sheriff.
[12]
On the
21
st
of March 2022,
the respondent obtained an order under case
number MLHGB-000182/22,
to institute
proceedings by
way of edictal citation directing that
the summons be served on the applicant:
1.
Personally
at J[....]Avenue, [….]
H[....],
L[....], Bloemfontein, South Africa;
2.
In
the event that the respondent is unable to effect personal
service
as set out above, then service shall be
effect
by email on the applicant to
[
....
]
by an attorney in South Africa who is duly admitted to practice;
[13]
On 1
st
of April 2022 at 12:07
,
the divorce summons under case number MLHGB-000182/22 was served on
the applicant by Peter Dominic Yazbek as per Annexure "03".
[14]
At paragraph 3-4 of the service
affidavit, Peter Yazbek states that
"The
deputy Sheriff attended
to
the defendant's
property
on
numerous
occasions and she
did
not
answer
her
telephone
to assist
in
locating her
.
Hence we were instructed to serve by
the
alternative means as set out in the Botswana High Court of 21
st
March 2022.
I
have 1
st
day
of April 2022 at approximately 12h07 hours.
served
a copy of the writ of Summons for Divorce,
together with the plaintiffs declaration, Power of Attorney and Draft
Order by email to the defendant's address being
W[....]m.M[....]2@gmail.com
in terms of the Botswana High Court."
[15]
Also
on
the
5
th
of
April 2022,
the summons issued by
the respondent in Botswana, was served
on the applicant
personally
by the sheriff of Bloemfontein West, as evident from Annexure "04".
[16]
According
to the respondent
both
instances of service on the
applicant
happened before the summons was served on his niece and
before
the
summons
has
been
served
on
him, personally
[1]
as per the
court order, which at the present
stage,
still
has not been complied with.
[17]
It is not in dispute that the summons so
issued by the applicant was served on the respondent on the
1
st
of April 2022 at 12h49 via email.
The respondent contends that the applicant in not complying with the
court, has not properly instituted the action.
[18]
This reasoning is supported by this
court. The issue of a summons is the initiation process of an action
and has certain specific
consequences, one of which is that it must
be served. The methods of service are prescribed in
the Rules or in the present matter it
was prescribed in the court order obtained on the 24
th
of March 2022.
[19]
This court is unable to
mero
moto
condone that because the
respondent acquired knowledge of the summons, by way of email and
via
service on his niece, or the fact
that he entered an appearance to defend, that the applicant is
automatically absolved or relieved
from her obligation to comply with
the court order, which specified the manner of service.
[20]
It is trite that Rule 43 proceedings are
invoked whenever a spouse desires relief in
respect of
one of more of
the enumerated instances in it. It
applies exclusively to pending matrimonial disputes that are pending
or instituted. Rule 43(1)(b)
in particular refers to contribution
towards costs of a
"pending
matrimonial
action".
Likewise, in the present application such an order is sought for the
respondent
to
make
an
initial contribution towards legal
costs
on
the
amount of R150 000,00 payable directly to the applicant's attorneys
trust
account,
which
order
can
only
be
granted
where
there
is a pending matrimonial action.
[21]
It is the considered view of this court,
that the summons in the present case was not properly served on the
respondent. The logic
behind this reasoning is the inherent danger of
a litigant obtaining interim relief in any of the listed
jurisdictional matters
in Rule 43 and taking no steps towards its
conclusion or may have no
bona fide
intention to even commence divorce
action.
[22]
It is my considered view that the
instance where a summons is issued
and
"properly"
served
later,
cannot avail
an applicant
seeking relief. On this ground alone the
application falls to be dismissed.
[22]
I make an order in the following terms.
[1.1]
The
Point in Limine
is upheld;
[1.2]
The application is dismissed with costs.
AFRICA,
AJ
Appearances
:
COUNSEL
FOR
THE
APPLICANT:
Ad.
Eis
Instructed
by: Fox
& Barratt Attorneys
COUNSEL
FOR THE RESPONDENT: Adv.
Reinders
Instructed
by: Phatshoane
Henney Inc
[1]
Section 17
Divorce Act 70 of 1979
: Service of process, notices,
etc.(1)(a) Service of any process through which an action claiming a
divorce is instituted shall
be effected by the sheriff at the
request of the plaintiff or the applicant, on the defendant or the
respondent personally