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[2021] ZALMPPHC 35
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M.F.P v N.P (514/2021) [2021] ZALMPPHC 35 (22 July 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 514/2021
In
the matter between:
M[...]
F[...] P[...]
APPLICANT
And
N[...]
P[...]
RESPONDENT
JUDGEMENT
KGANYAGO J
[1]
During February 2021 the applicant instituted a Rule 43 application
on urgent basis in which she
applied for maintenance
pendent lite.
The matter came before my sister Naude AJ on 23
rd
February
2021. The respondent was opposing the applicant’s application.
On that date the respondent raised two points
in limine
, that
of lack of urgency and
lis alibi pendens.
The parties agreed
to dispose the two points
in limine
before going into the
merits of the application.
[2]
After the parties have submitted their arguments, Naude AJ ruled that
the matter was urgent, and
enrolled it to be heard on urgent basis.
From the transcribed record, in her judgment in relation to urgency,
she held that the
court has dealt with the points
in limine
of
urgency and
lis pendens
, and in the process of arguing those
points
in limine
counsel for both parties have touched on the
merits, but it would not be in the interest of the parties or the
minor children to
adjudicate the matter on the merits without having
considered the full financial disclosure as completed under oath on
the full
financial disclosure form. Naude AJ made orders that both
parties file a full financial disclosure form under oath on or before
13h00 on 26
th
February 2021; both parties to file
additional or supplementary heads of argument on or before13h00 on
2
nd
March 2021; and judgment in respect of the point
in
limine
of
lis pendens
and merits was reserved.
[3]
After the order was made counsel for the respondent seeked clarity
for the subsequent filing of
necessary documents, and before he could
finish what he wanted to say, Naude AJ intervened and said the
following:
“
No,
what the court’s intention was that the case has been made on
the papers, both parties argued in respect of the merits
therefore
the court wants a full financial disclosure form this matter is
urgent. Then based on the full financial disclosure form,
and the
papers before record both parties to make out their argument in the
heads of argument. That is why the court ordered that
a full
disclosure form be filed by Friday, and the heads of argument only
Tuesday thereafter.”
[4]
Both parties have filed supplementary affidavits and supplementary
heads of argument. Judgment
of the Rule 43 application was delivered
on 7
th
April 2021 which was on both point
in limine
of
lis pendens
and merits of the application. Naude AJ
dismissed the respondent’s point
in limine
of
lis
pendens
and held that the applicant had partially succeeded with
her claim on merits and made several orders in favour of the
applicant.
The respondent did not comply with the court order of the
7
th
April 2021.
[5]
The applicant has instituted contempt of court
application on urgent basis against the respondent
for his failure to
comply with the order of the 7
th
April 2021. The applicant
is further seeking that the applicant be ordered to comply with the
order of 7
th
April 2021 within seven days, failing which a
warrant of arrest be issued committing the respondent to imprisonment
for contempt
of court for a period of sixty days.
[6]
The respondent is opposing the applicant’s contempt of court
application. The respondent
in his opposing answering affidavit has
raised points
in limine
that the applicant’s application
is not urgent and that the order of the 7
th
April 2021 is
unenforceable, vague and ambiguous. The respondent has also filed a
conditional counter application submitting that
there has been
various material change in circumstances, which the applicant failed
to disclose during the urgent Rule 43 proceedings
which renders
majority of the orders granted unenforceable. The respondent in his
conditional counter application is seeking that
the order of 7
th
April 2021 be stayed pending an application in the Maintenance Court
where the issue of maintenance will be completely adjudicated.
The respondent has further submitted that the order of 7
th
April 2021 was granted on merits without the merits being argued. The
respondent further submitted that the judgment of the 7
th
April 2021 came as a surprise as on 23
rd
February 2021
they argued only the points
in limine.
The respondent has also
submitted that he does not have a medical aid, and did not have one
at the time of the Rule 43 application.
[7]
The applicant’s counsel before this court conceded that the
merits of the Rule 43 application
were never argued. However, counsel
for the applicant submitted that the proper route which the
respondent should have followed
was to bring an application in terms
of Rule 43(6). It is the applicant’s contention that the order
of the 7
th
April
2021 should be obeyed despite its defect and relied on the case of
S
v S and Another
[1]
.
[8] I will
first determine whether the applicant’s application is urgent.
Urgent applications are regulated by
Rule 6(12) of the Uniform Rules
of Court (Rules). In terms of Rule 6(12)(b), an applicant who brings
an application on urgent basis
must set forth explicitly the
circumstances which is averred render the matter urgent and the
reasons why the applicant claims
that the applicant could not be
afforded substantial redress at a hearing in due course.
[9]
This is a contempt of court application which also involves the
interest of minor children. It
is trite that applications which
involves minor children and contempt of court applications are by
nature urgent. The applicant
has attached an email from PEPPS School
which is a school wherein the parties have enrolled one of their
minor child. In that email
the school is threatening to deregister
the parties’ minor child from school as they were three months
in arrears with payment
of the minor child’s school fees.
Should the minor child be deregistered it will be detrimental to her
future educational
progress. This matter therefore concerns a
potential serious violation the minor child’s right to
education. That on its
own render the matter to be urgent. (See
Moko
v Acting Principal of Malusi Secondary School and Others
[2]
.
The
matter is accordingly enrolled as urgent.
[10]
Turning to the second point
in limine
which the respondent
alleges that the order of the 7
th
April 2021 is
unenforceable, vague and ambiguous. On 23
rd
February 2021,
the parties argued two points
in limine
, that of lack urgency
and
lis pendens
. After the two points
in limine
were
argued, the presiding Judge made a ruling only in relation to urgency
which she found the applicant’s application to
be urgent and
enrolled it as such. She reserved judgment in respect of the point
in
limine
of
lis pendens
and merits of the application
despite the merits not been argued. She went further to give
directives of submitting further supplementary
heads of argument
without informing the parties that they must adequately cover merits
in their heads of arguments as she was dispensing
with the hearing of
their oral submissions.
[11]
During the analysis of the arguments presented to her in relation to
the two points
in limine
, the presiding Judge stated that
during the arguments of the two points
in limine
, counsel for
both parties have touched on the merits of the case, but that it was
not in the interest of the matter, the parties
or children to
adjudicate on the merits of the matter without having considered the
full financial disclosure as completed under
oath on the full
financial disclosure form. By stating that the merits were touched,
the presiding Judge was implying that the
merits of the matter have
not been fully ventilated. The financial disclosure form on its own
will not adequately address the merits
of both parties’
versions. The transcribed record also shows that at some stage
counsel for the applicant during her argument,
was venturing into the
merits of the application, and the presiding Judge reminded her that
they are dealing with urgency and not
merits. However, after judgment
on urgency was delivered, when counsel for the respondent seeked
clarity as to filing of further
documents, the presiding Judge
interjected him and told him that the intention of the court was that
the case has been made on
papers, and that both parties have argued
the merits. The presiding Judge made this ruling despite having
prevented counsel for
the applicant to argue the merits, and also
despite having observed in her analysis of the two points
in
limine
that the merits were only touched.
[12]
Counsel for the applicant has conceded that the merits of the Rule 43
application were not argued.
It is clear from the transcribed record
that the parties did not agree that the filing of the disclosure form
and further supplementary
heads of argument and supplementary
affidavits were sufficient for the Court to dispose the matter, and
that they were dispensing
with arguing the merits of the matter
further. The Court on its own decided to dispose the matter in the
manner in which it did
without first obtaining the consent of the
parties. This was the parties matter, and their consent was necessary
if the Court was
to deviate from the normal way of disposing matters.
The presiding Judge in her judgment should have stopped were she
dismissed
the point
in limine
of
lis pendens,
as when
she made a ruling on urgency she has clearly stated that the issues
that were argued were the two points
in limine
whilst merits
were only touched. Basically the judgment that was reserved was that
of the point
in limine
of
lis pendens
and not merits as
the merits were not argued.
[13]
In
Knoop
and Another NNO v Gupta (Tayob Intervening)
[3]
at
para 28 Wallis JA said:
“
Section
34 of the Constitution guarantees a ‘fair hearing’ before
a court. In De Beer, Yacoob J said: ‘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.’
Where an issue
is not raised in the pleadings or affidavits in a case, and the order
granted is one on which neither party has
been heard, there is a
breach of a constitutional right.”
[14]
In the case at hand the presiding Judge has given an order on the
merits of the case without giving
both parties an opportunity to be
heard, or the parties agreeing that the matter be disposed on papers
without oral submissions.
The order granted on merits is also
problematic. Firstly, judgment was electronically delivered on 7
th
April 2021 but requires the respondent to make payment of the first
instalment of contribution towards the applicant’s legal
costs
on 1
st
April 2021. The respondent was already in contempt
on the day he receives the order. Whether this was a typing error it
will be
for Judge who granted the order to know. Secondly the
respondent has stated in his answering affidavit that at the time the
Rule
43 application was heard he did not have a medical aid. However,
part of the order is that the respondent retains the applicant
and
minor children on his medical aid. Had the matter being properly
ventilated, this issue would have been clarified.
[15]
Counsel for applicant has argued that the proper route which the
respondent should have followed, is
the remedy provided for in Rule
43(6). However, Rule 43(6) is a remedy in which a court may vary its
own decision in the event
of a material change occurring in the
circumstances of either party or child, or contribution towards costs
proving inadequate.
The order of the 7
th
April 2021 goes
beyond changed circumstances as there is a breach of a constitutional
right to a fair hearing since neither party
has been heard before the
order on merits was granted.
[16]
It trite that an order of court of law stand until set aside by a
court of competent authority. Until
set aside, the court order must
be obeyed, despite whatever reservation one might have. Counsel for
applicant submitted that despite
the defects in the order of the 7
th
April 2021, it should be enforced and relied on the case of
S v S
above in which the Constitutional Court dismissed the appeal
despite the Rule 43 order having some defects. However,
S v S
is distinguishable from the case at hand in that in
S v S
the
parties have argued the matter on the merits and the appellant had an
avenue to bring a Rule 43(6) application in order to
rectify the
defect in the order, and that avenue was pointed to him in the first
High Court judgment.
[17]
The order of the 7
th
April 2021 if it is allowed stand in
its present format will cause grave injustice to the respondent as
certain orders are unenforceable
and the orders as a whole on merits
were granted without affording the respondent an opportunity to be
heard. In
S v S
at paragraph 58 Nicholls AJ said:
“
There
may be exceptional cases where there is need to remedy a patently
unjust and erroneous order and no changed circumstances
exist,
however expansively interpreted. In those instances, where strict
adherence to the rules is at variance with the interest
of justice, a
court may exercise its inherent power in terms of section 173 of the
Constitution to regulate its own process in
the interest of justice.”
[18]
In the case at hand Rule 43(6) avenue will not adequately address the
respondent’s problems,
and that will result in a grave
injustice to the respondent. The proper route which the respondent
should have followed was bring
an application to declare part of the
order of the 7
th
April 2021 a nullity as there was a
breach of a constitutional right to a fair hearing. The respondent in
his provisional counterclaim
did not seek an order declaring part of
the order of 7
th
April 2021 a nullity, and should I grant
that order I will be granting an order that goes beyond what the
respondent had sought.
However, if the order of the 7
th
April 2021 is allowed to stand in its present format, as I have
already pointed out above, will cause grave injustice to the
respondent.
This court is empowered to exercise its inherent powers
in terms of section 173 of the Constitution and regulate its own
process
in the interest of justice. The proper remedy under the
circumstances is to stay the proceedings pending the respondent
bringing
an application to declare the order of the 7
th
April 2021 in relation to merits of the Rule 43 application a
nullity.
[19]
In the result I make the following order
19.1
Non-compliance with the Rules is condoned and the matter is heard as
one of urgency.
19.2
The order of the 7
th
April 2021 is stayed pending
an application to be brought by the respondent to declare the order
of the 7
th
April 2021 in relation to
merits to be a nullity.
19.3
The respondent to bring that application within ten days of this
order failing which the applicant will be entitled to re-enrol
this
matter on the same papers and supplement where necessary.
19.4
No order as to costs
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
Ms MC de Klerk
Instructed
by
:
DDKK Attorneys Inc
Counsel
for the respondent
:
Adv R Ferreira
Instructed
by
:
HLM Mamabolo Attorneys
Date
heard
:
15
th
July 2021
Date
delivered
:
22
nd
July
2021
[1]
2019
(6) SA 1 (CC)
[2]
2021
(3) SA 323 (CC)
[3]
2021
(3) SA 135
(SCA)