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[2021] ZAECBHC 15
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Tembe v Tember (EL1207/2021) [2021] ZAECBHC 15 (17 September 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No: EL1207/2021
In
the matter between:
VUKILE
VIWE TEMBE
Applicant
And
ZINGISA
TEMBE
Respondent
JUDGMENT
BESHE
J:
[1]
Applicant approached this court on an urgent basis seeking suspension
of an order that was granted by
the East London Magistratesâ Court
on the 27 August 2021.
[2]
The said order can be aptly described as a
protection order following respondentâs application in terms
of
Section
4 (1) of the Domestic Violence Act
[1]
(DVA).
The order was granted in favour of the respondent against the
applicant. The order
inter
alia
precludes the applicant from entering number 18 Coral Meadows, Beacon
Bay, East London pending the division of the partyâs estate.
[3]
The following facts are common cause between the parties:
The parties were
married to each other out of community of property with the inclusion
of the accrual system on 6 January 2011. Two
minor children were born
of the marriage. The parties are joint owners of the property which
is the subject natter of the application.
The parties got divorced on
29 July 2020. They however continued living at the property as
family.
[4]
According to the applicant, from around December 2020 their
relationship got under strain and became
acrimonious. In a bid to
stop what applicant alleges was verbal and physical abuse by the
respondent, he sought a protection order
against her. He succeeded in
obtaining an interim protection order against her, which was
returnable on the 11 November 2021. On
3 August 2021 applicant caused
a letter to be addressed to the respondent demanding his share of the
movable assets in terms of the
deed of settlement as well as for
their immovable property to be sold. The respondent in turn
approached the Magistratesâ Court
for a protection order against
the applicant. An interim order was issued in her favour. Same was
confirmed on the 27 August 2021
(The impugned order). The applicant
has noted an appeal against the said order.
[5]
In addition to the suspension of the Magistrateâs order, the
applicant also seeks an order that the
respondent be interdicted and
restrained from denying him access to the property.
[6]
Not only is the application opposed by the respondent, in addition to
the opposition, respondent makes
a counter-application for an order
in the following terms:
That the order of
the Magistrate, East London sought to be appealed against be carried
into execution regardless of the pending appeal
and that the
protection order granted against the applicant (main application)
continues to operate.
[7]
Applicant complains that he has no place to stay. Further, that he
does not have means to arrange alternative
accommodation. He sleeps
in his car. He does not have access to his children. He does not have
access to his medication.
[8]
Section
18 (1) of the Superior Court Act
[2]
provides that unless the court, under exceptional circumstances
orders otherwise, the operation of and execution of a decision which
is the subject of an application for leave to appeal or appeal, is
suspended pending the decision of the appeal or application for
leave
to appeal.
Subsection
(5)
provides
that for the purposes of
Subsections
1
and
2
,
a decision becomes the subject of an application for leave to appeal
or of an appeal, as soon as an application for leave to appeal
is
lodged with the Registrar in terms of the
Rules
.
[9]
In this regard in
Section
78 of the
Magistratesâ
Court Act
[3]
provides that:
where
an appeal has been noted, the court may direct either that the
judgment shall be carried into execution or that the execution
thereof shall be suspended pending the decision upon the appeal. That
the direction may be made on such terms, as the court may determine
as to security for the due performance of any judgment which may be
given upon appeal
.
It is trite that at
common law generally, the execution of a judgment is automatically
suspended upon the noting of an appeal and
that judgment cannot be
carried out and no effect is to be given to it.
[10]
It is not clear why this application(s) was not made in
the Magistratesâ Court, in the court where the order sought
to be
appealed against was issued.
[4]
But as I indicated, strictly speaking, that application was not
necessary because at common law the process of an appeal has the
effect of suspending the order appealed against. It is also clear
from authorities referred to above that a decision becomes the
subject of an appeal upon an appeal being noted against that
decision. This therefore puts paid to the submission on behalf of the
respondent that because no security has been furnished by the
applicant there is no pending appeal to speak of.
[11]
Having said there was no need for an application for the suspension
of the Magistrateâs order, it is a feature
of this case that
applicant also seeks an interdict against the respondent â that she
be restrained from refusing him access into
the house they jointly
own. So, it will serve no purpose to remit the matter back to the
Magistratesâ Court. I have already alluded
to the reasons applicant
has proffered in support of this prayer.
[12]
This has been met not only by resistance by the respondent by also by
a counter-application that this court
should order that the order
sought to be appealed against should continue operate and be carried
into execution during the course
of the pending appeal.
[13]
The opposition and counter-application are essentially premised on
the ground that the acrimony between the parties
adversely affects
their minor children. This seriousness of the situation is also borne
out by the fact that there are two contending
protection orders.
Which is indicative of the constant quarrelling between the parties.
[14]
Respondent denies that he applicant does not have a place to stay,
that he sleeps in his car.
[15] It
was submitted on behalf of the respondent that the exceptional
circumstances warranting the order that the impugned
order should
continue to operate regardless of the appeal of the appeal is that:
The parties are
divorced, though they continued sharing the home they own jointly
after the dissolution of their marriage, are constantly
fighting.
Further, that happens in the presence of their children. The
Magistrateâs order has the effect of protecting both the
children
and the respondent from the applicant.
[16] It
appears to be common cause that the respondent gave instructions to
the childrenâs school that applicant should
be denied access to
them. In the said letter the school authorities are urged not to
allow anyone else to collect or have released
to them, the two
children other than the respondent. This, however, does not form part
of the impugned order. No basis has been laid
why the applicant
should not have access to his children / denied access to his
children. Surely this is not a decision respondent
can take
unilaterally, arbitrarily and without any due process. The deed of
settlement entered into between the parties to incorporation
into the
divorce decree, the parties agreed that the applicant will have
reasonable rights of access to the children.
[17]
No case is made in the papers of the applicant being of a danger to
the safety or well-being of children. The
suggestion made by
respondent is that having the applicant back in the house will
destroy their children when they witness â
a
quarrel between their divorced parents
â.
Respondent assets that because the marriage between the parties has
been dissolved, never to be resumed again, applicant no longer
has
their joint property as his
domicillium
address.
[5]
That seems to be the high water mark of her case.
[18] In
my view, no exceptional circumstances have been shown to exist why
the order of the Magistrate should continue
to operate pending the
appeal. No case has been made that the applicant poses any danger to
their children or to the respondent.
[19] In
the circumstances, in order to safeguard the respondent and the
children, I will order that the Magistrateâs
order be and is hereby
suspended only in so far as it relates to applicantâs access to the
property. The rest of the Magistrateâs
order is not suspended.
[20]
Accordingly, the following order will issue:
The following
parts of the order issued by the Magistrate, Eastern Cape on 27
August 2021 are to remain in force (are not suspended
pending the
appeal).
(a)
The applicant is not to threaten the
respondent (Mrs Tembe).
(b)
The applicant is not to insult the
respondent.
(c)
The applicant is not to share
respondentâs personal information.
(d)
The applicant is not to intimidate
the respondent.
(e)
The applicant is not to defame the
respondentâs character.
(f)
The operation of the remaining part
of the Magistrateâs order mentioned above is suspended on the
following terms:
The applicant is
to be allowed back into the property on condition that he uses the
secondary bedroom as well as the common bathroom.
The respondent will
use the main bedroom as well as the ensuite bathroom. Applicant is
not to enter the main bedroom and ensuite.
In respect of those parts
of the property that are shared by both parties, namely the kitchen
and the living area, the applicant
is not to enter those areas in the
presence of the respondent.
There
will be no order as to costs
.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For the Applicant
:
Adv: Maduma
Instructed
by
:
B A
MTYALALA ATTORNEYS
13B Malindi Office
Park
Corner Princess
Drive & Kingfisher Avenue
Bonza
Bay
Beacon Bay
EAST
LONDON
Ref: BAM/bam/CIV543
Tel.:
071 188 0556
For the
Respondent :
Mr. Tshiki
Instructed
by
:
TSHIKI
& SONS INCORPORATED
20
Oakleigh Road
Beacon
Bay
EAST
LONDON
Ref:
Mr Tshiki
Tel.:
076 118 8459
Date
Heard
:
16
September 2021
Date
Reserved
:
16
September 2021
Date
Delivered
:
17
September 2021
[1]
Act
116 of 1998.
[2]
Act
10 of 2013.
[3]
Act
30 of 1944.
[4]
See
Jones & Buckle: The Practice of the Magistrateâs Court in
South Africa 10
th
Edition Volume 1 Van Loggerenberg.
[5]
Paragraph
4 of the respondentâs answering affidavit.