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[2021] ZAGPPHC 395
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R.M.M v M.N.K and Others (8125/ 2021) [2021] ZAGPPHC 395 (9 June 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE
NUMBER: 8125/ 2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
09
JUNE 2021
In
the matter between:
R
M M[…]
FIRST APPLICANT
and
M
N
K[..]
FIRST RESPONDENT
D
K
K[…]
SECOND RESPONDENT
THE
GOVERNMENT EMPLOYEES
THIRD RESPONDENT
PENSION
FUND
JUDGMENT
TLHAPI
J
[1]
This is an application brought on urgency for an interim order
interdicting the third respondent with
immediate effect from paying
out the Pension Fund interest to the first respondent until the
finalization of this application.
The application was launched on the
17 February 2021 and served on all the respondents on the same day.
The respondents were further
required to give notice of their
opposition if any by 16h00 of the 17 February 2021 and, to deliver
their answering papers by 16h00
on 18 February 2021, and that the
applicant file her reply by 10:00 on 19 February 2021. This
application was set down for hearing
on 23 February 2021. The first
and second respondent gave notice of their opposition and served
their answering affidavits on 22
February 2021.
[2]
On 22 February 2021 the applicant filed an amended notice of motion
and a supplementary affidavit. The
application was for interim relief
pending finalization of the divorce action under case number 69252/
2014 and interdicting with
immediate effect the first and second
respondents from disposing their movable and immovable assets forming
part of the joint estate
of the “Second applicant and the
applicant”. In the amended notice of motion the respondents
were called upon to give
notice of their opposition before the “17
th
of February 2021 at 16:00” …. to deliver their answering
affidavits by “16:00 on 18 February 2021” and
the
applicant to file her reply at “10:00 on the 19 of February
2021”. The second respondent filed an opposition to
the amended
notice of motion and a supplementary affidavit.
BACKGROUND
[3]
The applicant resided at […] extension […] S[…].
She and the second respondent
had lived together since 2000 and one
child was born in the relationship. The first and second respondent
resided at […]
Extension […] S[…]. The applicant
contended that on 22 April 2007 a customary marriage was entered into
which rendered
the marriage as one in community of property in terms
of the Recognition of Customary Marriages Act 120 of 1998 (“the
RCMA”).
During 2014 she instituted a divorce action, case
number 69252/ 2014 against the second respondent and by September
2015 he had
filed his plea. She had claimed for a division of the
joint estate which she contended included 50% of the second
respondent’s
pension interest in the pension benefit held by
the third respondent. A pre-trial conference was held on 9 December
2019 and she
avers that the minute thereof could not be signed due to
Covid 19 and it was only presented to the attorneys of the second
respondent
for signature on 17 November 2020 with an undertaking that
the matter would be set down for trial.
[4]
On 21 January 2021 she was in shock when she was evicted from her
residence by the first respondent,
who was in possession of a letter
from the sheriff and a decree of divorce which stated that the first
and second respondent had
been divorced during October 2020. The
first respondent came to claim what was her share of the joint estate
with the second respondent,
which included the house in which the
applicant was residing. The second respondent provided her with
alternative accommodation
and on 28 January 2021 a letter was written
to the third respondent with a request to withhold payment of the
pension interest.
On 4 February 2021 she was informed that only a
court order could stop any payment and that payment would be withheld
for 7 days
for her to obtain the court order.
[5]
The applicant contended that the application was urgent. The second
respondent got married to the first
respondent while she was still
married to him and that the first respondent had submitted for
processing by the third respondent
the pension fund interest. She had
fear that she might forfeit her 50% in the pension interest, which
was going to be paid out.
She described this application as an “
ex
parte”
one and that she would suffer prejudice if the order
was not granted,
[6]
In the supplementary founding affidavit which was presented with the
amended notice of motion, she annexed
documents which she stated she
forgot to annex to her founding affidavit being, (i) proof of the
lobola negotiations (ii) a funeral
cover with Liberty Life which
named her as a dependant (iii) the plea of the second respondent in
the divorce proceedings served
on 10 November 2014 which was proof
that the customary marriage was entered into before the civil
marriage with the first respondent.
In this supplementary affidavit
the applicant requests interim relief in that she had a well-grounded
apprehension that she would
suffer irreparable harm in that the first
and second respondent will dispose of the assets that form part of
the joint estate between
herself and the second respondent. Further,
that the balance of convenience favours her as the divorce action is
still pending
and that there is no other satisfactory remedy
available to her if the assets of the joint estate are disposed
of.
[7]
The second respondent raised two points
in limine
(i) that the
application lacked urgency (ii) that the applicant failed to meet the
threshold of an anti -dissipation order. Further,
that although he
had contemplated a customary marriage with the applicant and had paid
only R5000.00 of the R8000,00 requested
as lobola, there had been no
handing over and the customary marriage had not been registered as
was required by section 3(1)(b)
of the RMCA. He had communicated this
to the applicant before she instituted divorce proceedings and had
denied on these grounds
that a customary marriage existed. He
contended that the applicant despite being
dominis litis
had
been lackadaisical in the divorce action. The applicant had also
launched a Rule 43 application two years after the divorce
had been
instituted and the application according to his recollection had been
struck from the roll. The first pre-trial was convened
on 28
September 2016 and it took the applicant another two years to convene
the second pretrial in December of 2019.
[8]
The second respondent contended that the applicant was aware of his
marriage to the first respondent
in September 2018 and having been
informed by his family. The second pretrial in December 2019 was held
in the presence of the
first respondent and his child. His marriage
to the first respondent irretrievably broke down and part of the
settlement agreement
was that the first respondent retain the house
in which the applicant was resident. The second respondent contended
that the matter
was not urgent in that the applicant was made aware
of the of the divorce and given an ultimatum by the third respondent
on 4 February
2021 and she only launched the urgent application on 17
February 2021 two weeks after she had addressed a “without
prejudice”
letter of demand on 29 January 2021 to the third
respondent.
[9]
It was further contended that the applicant had failed to prove and
incorporate in the interim interdicts
she sought the following (i)
the fact that he was disposing of his assets and (ii) had a
mala
fide
intention of defeating the claims of his creditors or the
execution of a judgment against him; and the usual requirements for
interim
interdicts (i) that she had a
prima facie
right, (ii)
a well grounded apprehension of irreparable harm if the interim
relief was not granted (iii) a balance of convenience
in favour of
the granting of the interim relief (iv) the absence of any statutory
remedy available to the applicant. Further, that
division of his
pension interest will be given effect to as a result of a court order
and it cannot be said he acted
mala
fide.
[10]
The second respondent opposed the amended notice of motion and the
additional
affidavit filed
with it on 22 February 2021, for lack of compliance with the Rules of
Court being 28 and 6 (5)(e). Further that
the supplementary failed to
show why the facts therein
and,
to which the applicant was privy to before the launch of the
application were not mentioned in the founding affidavit.
[11]
The first respondent applied for condonation for not filing her
answering affidavit within the times frames set
by the applicant
which period she contended was unreasonable. She was aware that the
second respondent and the applicant had been
in a relationship and
that he had assured her that even though he had paid a part of the
lobola he was not married to the applicant,
so she denied that the
marriage existed. When she got divorced from the second respondent
she became entitled to 50% of the joint
estate. The first respondent
contended that if indeed the applicant was married to the second
respondent in community of property
then, the applicant had no
authority to launch legal proceedings against her without the written
consent of the second respondent
in terms of section 7(3) of the RMCA
read with
section 17
of the
Matrimonial Property Act 88 of 1984
.
Furthermore, that the applicant had failed to establish the
requirements for an interdict.
The
effectiveness of the Divorce Order of 5 October 2020
[12]
It is common cause that the first and second respondent’s
marriage in community of property was dissolved
by court order of 5
October 2020 which order incorporated a settlement agreement on the
division of their joint estate. This order
and the one purporting to
evict the applicant have not been set aside. It is also common cause
that the applicant in this application
seeks to assert and preserve
her rights which she contends she has as a result of her customary
marriage to the second respondent.
In a long line of cases it has
been emphasised that such order stands until set aside. In Kotze v
Kotze
1953 (2) SA 184
(C) Herbstein J said at 187 F:
“
The
matter is one of public policy which requires that there shall be
obedience to orders of Court and that people should not be
allowed to
take the law into their own
hand”
In
Bezuidenhout v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
(E) at
229 B-D Froneman
J
stated:
“
An
order of a court of law stands until set aside by a Court of
competent jurisdiction.
Until
that is done the Court order must be obeyed even if it may be wrong.
(Culverwell v Beira
1992 (4) SA 490
(W) at 494 A-C). A person may
even be barred from approaching the Court until he or she has obeyed
an order of Court that has not
been
properly set aside. (Hadkinson v Hadkinson
[1952] 2 ALL ER 567
(CA);
Byliefeldt v Redpath
1982 (1) SA 702
(A) at 714.”
[13]
It is my view that having regard to the above decisions and the fact
that the assets of the joint estate which
applicant wishes to assert
a right to have been distributed, any order in the interim or
otherwise purporting to interfere
with the order of the divorce and
incorporated settlement agreement of 5 October 2020 would not be
competent until the validity
thereof is challenged and set aside by a
competent court and possibly by way of review. In Gauteng Province
Driving School Association
and Others v Amaryllis Investments (Pty)
Ltd and Others (Case 006/11)
[2011] ZASCA 237
dated 1 December 2011,
Ponnan JA stated at [19]:
“
Respect
for the authority of the courts is foundational to the rule of law.
Civil contempt is not solely
inter partes,
but
also an issue between the court and the party who has failed to
comply with its order
. It is as much about
vindicating judicial authority as it is about vindicating individual
rights.” (my underlining)
“
The
significance is that the third respondent has an obligation to
observe an order of court,
therefore,
by paying out the pension interest it would be observing a court
order even if same has been wrongly obtained and such
duty prevails
until the order is set aside by a competent court. In my view the
grant of an interdict like is sought in this application
would be
incompetent in that it does not amount to a setting aside of the
order of divorce. This view
however
does not mean that other remedies are not available to the applicant.
The
Notice of Motion initiating this application and the Amended Notice
of Motion:
[14]
Before I deal with the two notices, the pension interest though not
specifically
mentioned in the Amended Notice of Motion is included in
the joint estate of the first and second respondent. The question in
this
instance is which Notice of Motion should be considered by the
court and should the applicant have sought leave of the court to
amend her notice of motion and to file a supplementary affidavit?
Before dealing with the prejudice caused to the first and second
respondent by the irregular amended notice of motion, as contended by
counsel for the second respondent in a supplementary affidavit,
the
second respondent objects as an irregular step to the filing of the
amended notice of motion and accompanying supplementary
affidavit.
The second respondent did not file an application against the
applicant in terms of Rule 30 and 30A for failing to comply
with the
Uniform Rules of Court. This could have been a futile exercise due to
time constraints and in my view the respondents
were prejudiced in
that they too would have resorted to irregular steps in an attempt to
oppose.
[15]
The court has a discretion to refuse or allow an amendment which
should be raised timeously to
allow for a proper ventilation of the
issues and response, Tengwa v Metrorail
2002 (1) SA 739
at 745 -746.
In this instance very short notice was given and the respondents
would not have had time to properly comply with the
rules. Further,
the applicant must satisfy the court that the application is bona
fide, ‘that it raises a triable issue and
that sufficiently
justifies the prejudice and costs to the other side.’
Rule
28 (1) provides:
“
Any
party desiring to amend a pleading or documents other than a sworn
statement,
filed
in connection with any proceeding, shall notify
all other parties of his intention to
amend and
shall furnish particulars of the amendment”
Rule 28 (2) provides:
“
The notice referred to in
subrule (1) shall state that unless written objection to the
proposed amendment is delivered within 10 days of
delivery of the notice the amendments will be effected.”
[16]
An amendment to the notice of motion should comply with the rules. In
Devonia Shipping Limited
v MV Luis (Yeoman Shipping Co Ltd)
1994 (2)
SA 363
(C) at 369 F-I it was stated:
“…
..As
in the case of the summons or a pleading in an action, (it) will
always be allowed unless the application to amend is mala
fide or
unless the amendment would
cause
an injustice or prejudice to the other side which cannot be
compensated by an order for costs, or in other words, unless the
parties cannot be put back for the purpose of justice in the same
position as they were when the Notice of Motion which
it
sought to amend was filed.”
[17]
It is common cause that there was no compliance with Rule 28 (1) and
worst still instead of following
with a narration in terms of Rule 28
(2), the applicant failed to replace the
narration and the dates made in the first Notice
of Motion in terms of Rule 6 (5) (b) with that in Rule 28 (2).
Further, no condonation
was requested for non-compliance with this
rule. The
the said amendment
was filed at extreme short notice. Although that first respondent did
not file an objection her answering affidavit
addresses issues
arising in the first notice of motion and the founding affidavit.
Having regard to her answering affidavit, the
issues raised in the
applicant’’s amended notice of motion and supplementary
affidavit impact on what she became entitled
to in terms of the
divorce order and she would be prejudiced in as far as she
was not given an opportunity to respond or file
an objection.
[18]
In my view compliance by the applicant with Rule 28 (1) and (2) and
with Rule 6(5)(b)
and Rule 6
(e) was impossible due to time constraints which were of her own
making. Rule 27 of the uniform rules allows the court
to exercise a
discretion to condone non-compliance
where there
is no agreement between the parties 'upon application and on good
cause shown.” Since it is not possible to formulate
exact rules
the court is expected to exercise its discretion judicially; to have
an objective conspectus of all the facts; must
be fair to both sides;
must consider prejudice to the other party, and the applicant must
satisfy the court of her bona tides in
bringing the urgent
application. The court should also consider whether any
indulgence given to the applicant can be
compensated with a suitable costs order, or a postponement and costs,
Melane v Santam Insurance
Co. Ltd
1962 (4) SA 531
(A). Together with
all principles established condonation should be granted if it is in
the interests
of justice and
if it is not, it should be refused, Brummer v Gorfil Brothers
Investments Pty Ltd
2000 (2)
SA837 (CC) at para 3.
[19]
In reply the applicant addresses the deficiencies in the first
respondent’s application
for condonation for the late filing of
her answering affidavit when she failed to even apply for condonation
as addressed above.
While the applicant and the second respondent
have issues of their own in an action not yet finalised, in my view,
and having regard
to the facts, it is the first respondent who stands
to be prejudiced by being deprived of an opportunity to ventilate her
defence
in how a stay to the distribution of the “joint estate”
which is a subject of a court order which has not been set aside
is
bound to affect her. The second notice of motion and supplementary
affidavit should therefore not be accommodated or condoned
in this
application and should be dismissed. In any event the pension
interest does form part of the community of property.
Urgency
[20]
The application was brought on extreme urgency and such is opposed by
the first and second respondent
on grounds that unreasonable periods
were given for filing their opposition. It then becomes incumbent on
the applicant to satisfy
the requirements of the interim relief
sought and to furnish the court with cogent reasons why she will not
be afforded substantial
redress in a hearing in due course. The
applicant is also expected to observe the rules of court in setting
down urgent applications
and the trite principles as set out in Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another
(t/a
Makin’s Furniture
Manufacturers
[1977] 2 All SA 156
(W)
“
Mere
lip service to the requirements of Rule 6 (12)(b) will not do and an
applicant must make out a case in the founding affidavit
to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter
be set down”
[21]
Counsel for the applicant contended that the application complies
with the guidelines above and
that there was no delay by the
applicant in approaching the court as submitted on behalf of the
first and second respondent. Any
delay claimed he further contends
cannot be the sole reason for refusing urgency; East Rock Trading 7
(Pty) Ltd v Eagle Valley
Granite (Pty) ltd
2012 JOL 28244
(GSJ). It
is contended further that interim relief is applied for pending the
finalization of the divorce action and that the first
and second
respondents merely dealt with their defences in the main action.
[22]
In my view the applicant seeks interim relief as if finalization of
the pending divorce action
is just around the corner. It is
appropriate in determining urgency and the requirements the applicant
has to satisfy for interim
relief, to also have regard to a number of
factors preceding this hearing which pertain to the main action. The
applicant has failed
in the founding affidavit to give any indication
being
dominus litis,
when the main action is to be finalized;
she has not satisfactorily explained why the matter has not been
finalized having gone
through two pre-trial meetings the first having
occurred in 2016. She has not explained how Covid 19 prevented her
from giving
instructions to her attorneys to have the pre-trial
minute of December 2019 concluded; she has not explained why she has
to date
not obtained a trial date so as to give indication to this
court whether the interim relief is justified. In reply the applicant
has not addressed the allegation that she was aware of the marriage
between the first and second respondent, that the first respondent
accompanied the second respondent to the December 2019 pre-trial, and
why she despite such knowledge failed to secure her rights
in the
joint estate she had with the second respondent. The applicant has
not addressed any effort in seeking to set aside the
already existing
court order which may have been wrongly sought, but which must be
observed by all including this court; the applicant
has not even
anticipated initiating an action against the first and second
respondent since the issue of her right to claim from
the alleged
joint estate, in the pending divorce action between herself and the
second respondent has not been finalized.
[23]
It is these factors above and not only what came to her knowledge on
21 January 2021 that has
relevance to urgency. The ultimatum by the
third respondent would not have any impact in that the third
respondent is obliged to
obey an order of the court which directed
payment to the first respondent. It would be in contempt if it acted
outside that court
order. It is for the above reasons that I find the
application not to be urgent.
[24]
The applicant must satisfy the grounds for interdictory relief:
Prima
Facie right: It is contended by counsel for the applicant that the
right in the pension interest sought to be protected is
the subject
matter of pending main proceedings. I am inclined to agree with
counsel for the second respondent that the right only
accrues on the
finalization of the dissolution of the marriage MWS v NSS (DIV
1292019 [2020] ZANHWC 36
(9
March 2020) para 27. In this matter there is an order in favour of
the first respondent which cannot be wished away. The applicant
must
still deal with its setting aside.
Reasonable
apprehension of irreparable harm: The issue of forfeiting the 50% of
the pension
interest
according to counsel for the first respondent is still recoverable
and can be set off from the remainder of the joint estate.
This is
possible if or when judgement is given in favour of the applicant in
the pending main action. In my view the existing order
cannot be set
aside or interred with unless set aside.
Alternative
remedies: The pending main divorce action has not been finalized. In
my view there is room for pursuing her claim against
the second
respondent in such proceeding by
even
amending her pleadings accordingly and by instituting action against
the first respondent.
The
Balance of convenience: In my view when considering the balance of
convinience the court should have regard to the requirements
dealt
with above and ask what harm would be
suffered
by the applicant if the interdict is not granted, and what would the
prejudice be to the respondents if the interim interdict
is granted.
Finally, whether the applicant would not be adequately compensated by
a claim for damages. I am not saying that the
applicant’s
assertion that a customary marriage existed is invalid. I am not in a
position to pronounce on
the
validity or not of the customary marriage and I deal with this below.
For purposes of this application
the
balance of convenience for the reasons above does not favour the
applicant.
Pending
Divorce case 69252/2014 and the RCMA / The anti-dissipation
interdict
[25]
The above matter is pending before another court, and it is not for
this court to make any pronouncements
regarding the validity or not
of the alleged customary marriage, save to consider how the delay in
having the matter finalized
impacts on this application and this has
been dealt with above.
[26]
It was contended by counsel for the second respondent that the
applicant had failed to set out
facts and to prove that the
respondent was disposing of his assets and, by so doing was defeating
the right of the applicant to
claim from the estate of the second
respondent. In my view this should be extended to the first
respondent in that the applicant
has also failed to establish the
anti-dissipation threshold where she was concerned. I need not go any
further in addressing this
issue because I have already indicated
that the amendment to the notice of motion and accompanying
supplementary affidavit, which
sought to interdict the first and
second respondents from disposing of the movable and immovable assets
were not allowed.
[27]
In the result the following order is granted:
1. The application
is not urgent and on the merits the application is dismissed with
costs.
TLHAPI
V V
(JUDGE
OF THE HIGH COURT)