About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2021
>>
[2021] ZAECMHC 22
|
|
OG v ZG (2059/21) [2021] ZAECMHC 22 (10 June 2021)
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
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO. 2059/21
In the matter
between:
O[…]
G[…] (Born M[…])
Applicant
And
Z[…]
G[….]
Respondent
JUDGEMENT
RUSI AJ:
[1]
On 11 May 2021, the Applicant instituted divorce proceedings in this
court (“the
main action”) against the Respondent. In the
main action the Applicant seeks,
inter alia
, a decree of
divorce. It is common cause that the parties were married in
community of property on 02 October 2015 at Engcobo,
Eastern Cape.
[2]
The parties’ matrimonial home is in Ntlekiseni Administrative
Area, Zimbane
Location, Mthatha. However, both parties currently
reside Johannesburg since 2015, with the Applicant residing in
Randburg, while
the Respondent resides in Boksburg. The joint
matrimonial estate consists in immovable and movable assets.
There are three
minor children born out of the marriage, they reside
with the Applicant in Randburg.
[3]
On 24 May 2021, the Applicant caused a
letter to be written by her legal representatives, Zilwa
Attorneys,
to the Respondent’s legal representatives. A portion of the
said letter that is pertinent
in
casu
is to the following effect:
“
Our
instructions are also to bring to your attention that our client has
reliably learned that your client is in the process of
disposing,
alienating or encumbering the assets belonging to the joint estate
without our client’s consent. Our client is
of the view that
your client is doing all this purely to ensure that when the divorce
is finalized, there would be no assets left
for division of the joint
estate. We are therefore instructed to demand, as we hereby do, a
written undertaking to the effect that
your client will desist from
dissipating and disposing of the assets belonging to the joint
estate. Any asset that needs to be
disposed of should be discussed
with our client, through our office, and written consent has to be
obtained until the divorce process
has been finalized. Let us receive
the undertaking and response in connection to the above within 2 days
from the date of receipt
hereof, failing which our instructions are
to bring an urgent application for interdict against disposal of
assets”.
[4]
In response to the above quoted letter, and without giving the
undertaking sought by the
Applicant, the Respondent’s legal
representatives, Nkobi Attorneys, wrote to the Applicant’s
attorneys on the 26 May
2021, informing them,
inter alia
, that
this Court does not have jurisdiction to hear the divorce action
because both the Applicant and Respondent are domiciled
in
Johannesburg. They are also actively employed, and have property
situated in Johannesburg. Their minor children reside and attend
school in Johannesburg. The Respondent’s legal representatives
proposed in their response mentioned above, that the Applicant
withdraws the divorce action in this Court because in their view, the
Applicant instituted the main action in this Court purely
for her
convenience.
[5]
Aggrieved by the response given by the Respondent’s legal
representatives as set
out above, and in light of the fact that no
undertaking was given by the Respondent as the Applicant sought in
the letter dated
24 May 2021, the Applicant brought this application
on 01 June 2021.
[6]
The Applicant is represented by Mr Zilwa, and Mr Nkobi represents the
Respondent.
In this application, the Applicant seeks an order in the
following terms:
6.1
That the application be heard as a matter of urgency, and that the
non-compliance with the Rules
as to form and service be condoned.
6.2
That a
rule nisi
be issued, returnable on
22 June 2021, calling upon the respondent to show cause, if any, why
the following orders should not be
made final:
6.2.1
That the Respondents be interdicted, pending the outcome of the
divorce proceedings, from disposing of,
alienating, or encumbering
the following property, respectively:
(i)
Immovable property situated in 2075 Notsung Street, Mapleton,
Extension 12B
Boksburg.
(ii)
Immovable property situated in Unit 4 Baliza Complex, 1 Nature
Street, Sharonlea,
Randburg.
(iii)
A rural home situated in Ntlekiseni Administrative Area, Zimbane
Location Mthatha.
(iv)
A vacant erf situated in 1206 Rayton Extension 7, Culinan, Pretoria.
(vi)
Two commercial flats situated in Slovo Park Mthatha.
(vii)
BMW 730d model
(viii)
BMW X5 model
(ix)
BMW M6
(x)
BMW 2 series
(ix)
BMW 3 series
(x)
Ford Ranger
(xi)
Toyota Hilux
(xii)
Mobile Fridge
(xiii)
Trailer
(xiv)
Furniture
(xv)
Meat-cutter
6.3
That paragraph 6.2 above shall operate as interim relief pending the
finalization of this application.
6.4
That the Respondents pays the costs of this
application only in the event
of him opposing it.
[7]
It has not been made clear what the status of the main action is in
view of the aforementioned
correspondence between the parties
preceding the present application. The documents filed in support of
this application indicate
that the respondent raised or intends to
raise an objection to the summons issued in the main action. This is
gleaned from a letter
addressed to the Applicant’s Attorneys
dated 26 May 2021, wherein the following is written:
“
1.
The summons does not comply with rule 17(1)(b) which states that a
Defendant must be afforded 20 (not the 15 days afforded to
the
defendant by the plaintiff) days after giving his notice of intention
to defend, to deliver a plea (with or without a claim
in
reconvention), or an exception or an application to strike out.
2. Section 2(1) (a) of
the Divorce Act which provides that 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.
3.The parties in this
matter are both domiciled in Johannesburg as it appears in both the
Plaintiff’s summons and particulars
of claim. And there is
absolutely no advantage to any of them instituting the divorce action
in Mthatha High Court.
4. Kindly note that we
shall stay the filing and service of Defendant’s plea/ and or
exercising whatever right the Defendant
has in law pending your
response to the request made above.”
[8]
At the time of hearing this application, no indication was given by
either party whether
any of the intended defences or objection to the
summons were indeed raised and what their outcome was. I therefore
accept that
the main action is extant.
[9]
The Respondent opposes the application on the ground that, this Court
has no jurisdiction
to hear the matter, in that both parties are
residing, and domiciled in Johannesburg; and also that the Applicant
has not made
out a case for the urgent relief sought, in that she
relies on unsubstantiated hearsay evidence.
[10]
The Applicant contends that this Court’s jurisdiction to hear
this application arises from
the fact that the marriage between the
parties was celebrated and consummated in Engcobo, which is situated
in this court’s
area of jurisdiction. Further, contends the
Applicant, the parties’ matrimonial home being in Ntlekiseni
Administrative Area
Zimbane Location, Mthatha, she is domiciled in
this court’s jurisdiction. The Applicant further contends that
even though
she resides in Gauteng, she has never renounced her
domicile in Engcobo, or Ntlekiseni Administrative Area.
[11]
On the issue of urgency, it is alleged by applicant that based on the
reliable information as
she sets out in the letter dated 24 May 2021,
regarding the Respondent’s alleged disposal of assets belonging
to their joint
estate, she reasonably fears that if this court does
not grant her urgent relief, the joint estate will be depleted by the
Respondent,
to her prejudice and to the prejudice of the interests of
the minor children born out of the marriage. When the respondent
failed
to give the undertaking she sought by the letter dated 24 May
2021, contends the Applicant, she was left with no other alternative
appropriate remedy but to seek urgent interim relief.
[12]
The issue to be determined by this court is three pronged- whether
this court has jurisdiction
to hear this application; and whether the
applicant has made out a case for the hearing of the application as a
matter of urgency.
If the court finds in favour of the Applicant on
these first two issues, the issue to be determined by this court will
be whether
the case presented by the Applicant meets the requisites
for granting of an interim interdict.
[13]
The requisites for granting of interim interdict are trite- the
Applicant must show that she
has a clear right, or if not clear,
prima
facie
right which she seeks to protect by means of interim relief. In the
case of a prima facie right, the applicant must show that she
has a
well-grounded apprehension of irreparable harm to herself if the
interim relief sought is not granted, and she ultimately
succeeds in
establishing this right. The balance of convenience must favour the
granting of the interim relief. Lastly, the Applicant
must show that
there is no other alternative appropriate relief available to her.
(
Setlogelo
v Setlogelo)
[1]
.
[14]
This being an application for interim interdict pending finalization
of the main action, the issue
of this Court’s jurisdiction
falls within the purview of the Divorce Act 70 of 1979 (the
Divorce
Act). In
section 1
of the
Divorce Act, ‘divorce
action’
is defined as including,
inter
alia,
an action
pendete
lite
for an interdict
.
[15]
It is trite that this Court derives its jurisdiction from relevant
legislation and common law.
In light of the nature of these
proceedings, the starting point is
section 2(1)
of the
Divorce Act
which
provides that a court shall have jurisdiction in a divorce
action if the parties are or either of the parties is- (a) domiciled
in the area of jurisdiction of the court on the date on which the
action is instituted; or (b) ordinarily resident in the area
of
jurisdiction of the court on the said date and have or has been
ordinarily resident in the Republic for a period of not less
than one
year immediately prior to that date.
[16]
Pertinently,
section 4
of the
Divorce Act provides
that the
provisions of that Act shall not derogate from the jurisdiction which
a court has in terms of any other law or the common
law. In terms of
section 21(1) of the Superior Courts Act of 2013
[2]
(“the Act”), this Court has jurisdiction
over
all persons residing in or being in, and in relation to all causes
arising and all offences triable within its area of jurisdiction,
and
all other matters of which it may according to law take cognizance.
(Italics
provided).
[17]
In this regard, the court in
Cordiant
Trading CC v Daimler Chrysler Financial Services
[3]
,
stated thus (on the interpretation of the similarly worded section
19(1) of the Supreme Court Act 59 of 1959):
[10]
The limitation as to the territorial area of each High Court is
imposed by section 19(1) (a)
of the Supreme Court Act 59 of 1959 (the
Act). The section provides that such Court shall have jurisdiction
over persons residing
and causes arising within its area of
jurisdiction. For the present purposes, the jurisdiction of the
court
aquo
must be determined with regard the requirement of causes
arising. In the past, these words were construed to mean proceedings
over
which a High Court has jurisdiction under common law. In
Ewing
Mc Donald & Co Ltd v M Products Co
[1990] ZASCA 115
;
1991 (1) SA 252
(A),
Nienaber AJA said at 275 F-G: “The expression ‘causes
arising’ has been interpreted in the
Bisonboard
judgment
at p11 of the typescript copy “ . . . as signifying not ‘causes
of action arising’ but ‘legal proceedings
duly arising’,
that is to say, proceedings in which the Court has jurisdiction under
common law. Since a Court under the
common law would have had
jurisdiction over persons domiciled within its area of jurisdiction
(who would include, although not
confined to persons “residing
or being in”), “persons residing or being in” and
“causes arising”
are not antithetical concepts, the
former is merely an elaboration of the latter”.
[11]
Plainly, what is meant in the above interpretation is that ‘causes
arising’ does
not refer to causes of action but to all factors
giving rise to the jurisdiction under common law. Of cause such
factors do not
exclude a cause of action. It is by now well
established that, in appropriate cases, a court which has
jurisdiction over the area
within which a cause of action arose is
competent to decide a matter on that basis alone.
[18]
In an attempt to buttress her contention that this court has
jurisdiction to hear this application,
the Applicant alleges that “
in
as much she is resident and employed in Johannesburg since 2015, she
does not regard this as her permanent residence because
she could
leave this the place at any point, hence she considers her permanent
home to be in Ntlekiseni Administrative Area, Zimbane
Location
Mthatha”.
The Applicant maintains this contention even
though in similar vein, she states that she visits her marital home
in Ntlekiseni once
a year, in the month of December.
[19]
It is apposite to make reference on this score, to the case of
Ex
Parte Minister of Native Affairs
[4]
.
In that case, De Villiers CJ set out the following principles
regarding the determination of a person’s residence:
“
The
question whether a person resides at a particular place at any given
time depends on all the circumstances of the case read
in light of
general principles. A person cannot be said to reside at a place
which is temporarily being visited. Although a person
may have more
than one residence, a person can only reside in one place at any
given point in time. When it is said of an individual
that he resides
at a place, it is obviously meant that it is his home, his place of
abode, the place where he generally sleeps
after the work of the day
is done”
[20]
In light of the facts which have been made common cause by the
parties as set out above, and the above
cited authorities on the
subject of jurisdiction, the Applicant’s contention regarding
where she is residing and domiciled,
cannot be sustained. She cannot
be said to be resident in or being in this Court’s jurisdiction
for the purposes of the present
proceedings. Be that as it may, this
being an application for an interim interdict
pendete lite
,
this Court is enjoined to consider whether the facts giving rise to
the known requisites of an interdict exist in this Court’s
territorial jurisdiction, entitling this Court to hear this
application.
[21]
In
Zokufa
v Compuscan (Credit Bureau)
[5]
Alkema J, said the following regarding jurisdiction of the court in
interdict proceedings:
[62]
I therefore conclude that in interdict proceedings a court will have
jurisdiction if the requirements
for the grant of an interdict are
satisfied by the facts within the area of jurisdiction of that court.
I believe, with respect,
that this is the only test which should be
applied in deciding jurisdiction in interdict proceedings.
[63]
The next step is to establish the facts supporting the three
requirements for an interdict, and
then to establish whether or not
those facts originated or exists in the area of jurisdiction of this
court. This enquiry by necessary
implication entails an analysis of
the Applicant’s substantive legal rights.
[64]
The conventional common law grounds of jurisdiction are usually
categorized in claims sounding
in money, claims involving property,
et cetera. Therefore, in interdict proceedings, the substantive legal
right to the relief
sought will usually determine the grounds of
jurisdiction. For instance, if the interdict relates to immovable
property, to which
the applicant has shown a legal right, then
normally, the court in whose area of jurisdiction the land is
situated will have jurisdiction.
[22]
As a starting point, I must state that by virtue of the regime of the
Applicant and Respondent’s
marriage, the Applicant is
ex
lege
entitled to share in the joint estate upon dissolution of
the marriage. Two of the immovable properties belonging to the joint
estate are situated in this Court’s territorial jurisdiction.
However, in light of the principles set out above in
Cordiant
Trading
and
Zokufa,
this cannot be the end of the court’s
inquiry. The court must consider whether there are other facts which
support the rest
of the requisites for the granting of an interdict.
In so doing, the court must consider whether those other facts exist
or occurred
in its territorial jurisdiction. This will of necessity
involve a consideration of the merits of the application.
[23]
In casu
, what presents this Court with difficulty is the fact
that
ex facie
the notice of motion and the Applicant’s
founding affidavit, the interim interdict sought is in relation to
the immovable
and movable property belonging to the joint estate of
the parties which is situated in both this Court’s area of
jurisdiction,
and in the Johannesburg High Court’s
jurisdiction, respectively. The Applicant has not alleged with
specificity, which of
the assets enumerated, this application relates
to. The only averment that the applicant makes in her founding
affidavit dated
27 May 2021, regarding the assets belonging to the
joint estate, and why she is entitled to the relief sought is the
following:
[8]
I have been reliably informed that the Respondent is in the process
of disposing of
our assets. I believe such information because, not
so long ago, he requested copies of vehicles’ registration
papers because
he wanted to sell some of them,
but that was
before the divorce proceedings commenced.
It is
becoming clear to me that the sole reason for that action on his part
is to ensure that our estate value, at the finalization
of our
divorce, would be almost nil. (Emphasis added).
[9]
I should add that Respondent has now formed a new love relationship
with another woman
and they are residing together. There is a
reasonable belief on my part that the Respondent is having
underhanded motives regarding
our assets that would disadvantage me
and my kids.
[10]
After having learned about the Respondent’s intentions, I
instructed my attorneys of record
to address a letter to his
attorneys demanding an undertaking that he will desist from
alienating and/or disposing of our assets.
A copy of the letter is
attached herewith marked ‘
B’.
[11]
The response that was received from his attorneys simply raised
highly technical points that did not
address any material issue at
hand instead of giving an undertaking I sought from him. His letter
also makes a bizarre demand to
the effect that I should withdraw the
divorce proceedings and institute them in Johannesburg. A copy of the
letter is attached
herewith marked ‘
C’.
[12]
I was then left with no option but to come to the conclusion that he
is hell bent in disposing of
our assets hence he is refusing to give
me the undertaking.”
[24]
It was only in her replying affidavit that the Applicant alleged that
her application relates
to the two commercial flats situated in Slovo
Park, Mthatha. In regard to the two commercial flats, she further
alleged in her
replying affidavit that “
she has received
calls from some of the tenants occupying the commercial flats,
enquiring if the commercial flats are being sold
since they had
noticed people coming to view them”
. This allegation as it
stands, albeit raised in the replying affidavit in disregard of the
principles governing the purpose of
a replying affidavit, is devoid
of sufficient basis on which to determine whether indeed, there was a
reasonable basis for her
to entertain a reasonable apprehension of
injury to her rights to share in the joint estate.
[25]
No further details are given by the Applicant in her papers regarding
when, in relation to this
application this information came to her
attention, and who was present to give the persons allegedly viewing
the flats access
to the two flats. Nothing has been said by the
Applicant regarding who oversaw the alleged viewing of the commercial
flats,
and what was done, where, and when, by the persons who viewed
the commercial flats, and/or the Respondent, after the alleged
viewing.
[26]
The onus rests on the Applicant to prove in accordance with the
principles afore mentioned, that
this court has the competence to
hear the matter. The Applicant has not discharged this onus. The
Applicant has failed to show
that in respect of her proprietary
rights to the joint estate, the Respondent has engaged in dishonest
or mala fide conduct, and
that he intends to dispose of, at most, the
joint assets situated in this Courts territorial jurisdiction. It
must be added, that
the fact that the Respondent failed to give an
undertaking as was sought by the Applicant is neither here nor there,
and cannot,
without more, entitle the Applicant to interim relief.
[27]
The applicant has therefore failed to show that she has a
well-grounded apprehension of irreparable
harm to herself if the
interim relief sought is not granted, and that the balance of
convenience favours the granting of the interim
interdict. I do not
find it necessary therefore, to determine whether the Applicant has
made out a case for the hearing of this
application as a matter of
urgency.
[28]
On the issue of costs, I have considered the fact that the Applicant
unreasonably persisted with bringing
this application in this Court
despite facts as set out above, which militate against the course she
followed. I may add that Applicant
so persisted, in spite of the
Respondent’s reasonable attempts to settle the issue of
jurisdiction amicably. The Applicant’s
conduct is an abuse of
the process of court. A punitive cost order is justified in these
circumstances.
[29]
In the result, the following order is made:
1.
The
point
in
limine
raised by the Respondent, of lack of jurisdiction, is upheld.
2.
The
application is dismissed, with costs on an attorney and client scale.
_________________________
L. RUSI
JUDGE OF THE HIGH
COURT (ACTING)
Date
Heard: 01 June 2021
Date Delivered:
10 June 2021
Appearances:
H. Zilwa for the Applicant; Mr M.T Nkobi for
the Respondent
[1]
Setlogelo v Setlogelo
1914 AD
221
at 227
[2]
Superior Courts Act, 2013
(Act 10 of 2013)
[3]
Cordiant Trading CC v Daimler
Chrysler Financial Services
2005 (6) SA 205
SCA, at 211D
[4]
Ex parte Minister of Native
Affairs 1941 AD 53
[5]
Zokufa v Compuscan (Credit
Bureau)
[2011] All SA 203
(ECM)