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[2020] ZAGPPHC 109
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T.H v L.A.H (10554/20) [2020] ZAGPPHC 109 (6 February 2020)
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HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED. YES
Case
no. 10554/20
6/4/2020
In
the matter between:
T.
H[….]
Applicant
and
L.
A.
H[….]
Respondent
JUDGMENT
RABIE J
1.
This
application was brought in terms of Rule 43 of the Uniform Rules of
Court and was set down in the urgent court. The applicant
claimed
relief
pendente lite
which relief related,
inter alia
,
to parental responsibilities and rights in respect of the minor child
and an unborn child of the parties, primary care and rights
of access
in respect of the children, maintenance in respect of
the
children and the applicant, a contribution towards the applicant's
costs of suit, certain other payments and costs of the application.
2.
No
opposing affidavit was filed on behalf of the respondent. On the day
of the hearing advocate de Leeuw appeared on behalf of the
respondent
to oppose the application. He indicated that he would argue the
matter on the applicant's papers.
3.
On behalf of the
respondent it was submitted,
in
limine
, that the
applicant was not entitled to approach the court in terms of Rule 43
as there was no pending matrimonial action between
the parties. It
was submitted that a divorce summons had not been issued.
4.
On behalf of the
applicant advocate Manganye could not dispute the fact that a divorce
summons had not yet been issued but submitted
that the divorce action
was about to be instituted. I was referred to the applicant's
affidavit where the applicant, in paragraph
24 thereof, stated that
on the 2 February 2020 the respondent told her that he "had
filed for divorce". Further, in paragraph
40 of her affidavit,
the applicant stated "The respondent has indicated his intention
to obtain a divorce and has in fact
indicated that he has filed same.
I am not yet in possession of same."
5.
Reference
may also be made to a supporting affidavit of attorney M. J. Malete,
who supported the applicant's claim for a contribution
towards costs.
In the last paragraph of this affidavit Me Molete stated,
inter
alia
, the following:
"I must indicate to the Court that I have not seen the alleged
divorce papers by the respondent…".
6.
It was common cause
between the parties at the hearing of this application that a divorce
summons had not been issued.
7.
On
behalf of the parties submissions were also made during the hearing
in respect of the claims by the applicant. In respect of
most of the
issues it does not appear that the parties are far apart and in
respect of some of the claims they were in fact
ad
idem
. I shall refer
to the point
in limine
first.
8.
In quite a number of
cases the court entertained an application in terms of Rule 43 where
a matrimonial action was not pending but
about to be instituted. The
matters of Bienenstein v Bienenstein 1965(4) SA 449 (T), Varkel v
Varkel 1967(4) SA 129 (C) may be
referred to in this
regard.
9.
I was, however, also
referred to the more recent judgments in Moolman v Moolman 2007 ZSGPH
273, dated 15 November 2007 by Seriti
J, and AD v ZD (unrepored) Case
Number 23031/2017 GDP dated 29 June 2017 by Tolmay J. In both of
these matters previous decisions
were discussed and in both matters
the court came to the conclusion that a pending matrimonial dispute
does not suffice and that
there must be a pending divorce action
before a litigant may resort to Rule 43 proceedings. Seriti J found
that a divorce summons
must at least have been issued while Tolmay J,
in her judgement, found that an action can only be pending if the
summons had been
issued and served.
10.
I have considered the
aforesaid to judgements, the cases referred to therein and the
principles applied. I respectfully agree with
those judgements
insofar as it was found that a pending action is a necessary
requirement before Rule
43 proceedings may be instituted. In
the present matter the summons had not yet been issued and I
consequently do not have to consider
whether service of the summons
would also be required.
11.
Consequently, the
respondent's point
in
limine
was well taken
and the applicant's application was thus prematurely instituted and
cannot succeed.
12.
I have considered
whether, in the light of this decision, certain orders may not be
made by this court as the upper Guardian of
all minors. In my view it
should not. The respondent has not pleaded over and his version of
the facts was not before this court.
Secondly, the issues on which
the parties agreed cannot be decided individually but only in
conjunction with a finding on all the
relevant issues.
13.
The correct view would be
to leave it to any of the parties to institute and serve a divorce
action and then to approach this court
again in terms of Rule 43,
even on an urgent basis if that is still necessary.
14.
As far as costs are
concerned I am of the view that costs should not follow the event. On
the evidence before me it appears that
the respondent had brought the
applicant under the impression that a divorce action had in fact been
instituted. This prompted
the applicant to launch the application in
terms of Rule 43. Furthermore, it has been the practice in our courts
for many years
to allow a Rule 43 application if the institution of
the divorce action is imminent. In light of the fact that there are
conflicting
decisions in this division and that the recent ones to
which I have referred, are clearly not yet well known and, as far as
I can
establish, not reported in the South African Law Reports, it
would in my view be fair and just to order that each
party pays his/her own costs of the application.
15.
In the result, the
following order is made:
1.
The application is
dismissed.
2.
Each party shall pay
his/her own costs of the application.
(signed by Rabie J)
C.P. RABIE
JUDGE OF THE HIGH COURT
6 April 2020