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[2019] ZAFSHC 101
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N v N (223/2017) [2019] ZAFSHC 101 (28 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 223/2017
In
the matter between:
M[….]
N[….]
Plaintiff
and
C[….] G[….]
N[….]
Defendant
CORAM:
MEINTJES, AJ
HEARD
ON:
20 JUNE 2019
JUDGMENT
BY:
MEINTJES, AJ
DELIVERED
ON:
28 JUNE 2019
[1]
This is an application by applicant as originally applied for, an
order that:
1)
the respondent be ordered to pay, within 3 days of this order, the
amount of R5000.00 into the trust
account of applicant’s
attorneys, as stated, and
2)
the applicant is given leave, in the event that the respondent fails
to comply with this order
as prayed, to approach the Court on the
same papers, supplemented if necessary, for an order declaring the
respondent in contempt
of a Court Order, dated 28 June 2018, and that
the respondent be imprisoned for such period as this Court considers
appropriate,
and
3)
costs, on attorney and client scale.
[2]
The respondent opposes the application.
[3]
It seems that the following are common cause facts in this matter:
3.1
That the marriage between the parties was dissolved by this Court on
28 June 2018, by way of a Decree of Divorce
and that the Deed of
Settlement between the parties was made an Order of Court.
3.2
This Court Order, amongst other stipulations, stipulating that the
respondent must pay certain amounts (as
stipulated) to the applicant,
for some periods as stipulated.
3.3 The
respondent was in default of a payment owing in respect of February
2019, which payment included the payment
of R5000.00, which is the
object of the relief claimed in prayer 1 of the Notice of Motion.
3.4
Payment of R5000.00 was subsequently made by the respondent on 25
March 2019, after service of this application.
On 11 April 2019
applicant’s attorney, via correspondence (attached) with
respondent’s attorney, indicated that in
spite of the payment,
applicant is not prepared to withdraw the application, unless the
respondent pays the costs of applicant
for the application on an
attorney and client scale. The respondent, not prepared to
fulfil this, then filed a Notice of
Intention to Oppose on 12 April
2019.
[4]
Notwithstanding this payment, and the fact that applicant did not
amend the Notice of Motion to also
cover apparently new
non-compliance in respect of obligations in terms of the Court Order,
which is not part of this application,
applicant still seeks an order
for contempt of court.
[5]
Instead, she has only filed a supplementary affidavit on 12 June
2019, stating therein the respondent’s
apparent subsequent
non-compliance again of the said Court Order in respect of
obligations which became due at the beginning of
June 2019 and which
are not part of this application.
Very illuminative is the
fact that applicant failed to disclose in this supplementary
affidavit that the said amount of R5000.00
was indeed already been
paid. A fact only disclosed by the papers and Counsel’s
arguments.
[6]
An applicant must in his /her Notice of Motion set out the relief
claimed (See Erasmus-Superior Court
Practice, B1-42 A).
Applicant chose certain
relief in the Notice of Motion and is accordingly bound thereto.
A Notice of Motion may be
amended, but only in compliance with the rules relating to amendment.
In Devonia Shipping Limited v MV
Luis (Yeoman Shipping Co Ltd)
1994(2) SA 363(C) at 369 F-I it was said:
“…
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 purposes of justice in
the same position as they were when the
Notice of Motion which it
sought to amend was filed
”
.
Here was no amendment.
The relief sought by applicant, set out in prayers 1 and 2 of the
Notice of Motion. Prayer 2, dependent
upon respondent’s
non-compliance with the order which the Court might make in terms of
prayer 1.
Prayer 1, indeed as
contended by Counsel for respondent, unambiguous. Applicant claims an
order compelling respondent to pay an
amount of R5000.00 into a
certain account within 3 days of the date of an order being granted.
Prayer 2 stating that in the
event that the respondent fails to
comply with the order in terms of prayer 1, only then the applicant
would be entitled to approach
the Court on the same papers, or to be
supplemented if necessary, for an order that the respondent be found
in contempt of the
Court Order, dated 28 June 2018.
[7]
Respondent effected payment of the amount of R5000.00 prior to the
hearing of this application.
For the purposes of this
application, there seems to be no disobedience of the Court Order
dated 28 June 2018 and the applicant
therefor not entitled to the
relief sought in prayer 2, merely based on a supplementary affidavit,
mentioning non-compliance of
the Court Order dated 28 June 2018, and
which non-compliance only occurred as recently as June 2019,
postdating the application.
[8]
The only outstanding issue then remains costs.
Applicant’s
attorney submitted that applicant is entitled to costs of this
application on a scale as between attorney and
client. The
applicant was unsuccessful in this application, the manner in which
the application was proceeded and dealt with,
highly undesirable and
not according to the rules. Applicant accordingly not entitled
to such costs. She was however
entitled to her costs on a party
and party basis when the amount of R5000.00 was paid before the
application was heard.
[9]
The following order is hereby made:
9.1 The
applicant’s application is dismissed.
9.2 The
respondent is to pay the costs of the application on an unopposed
basis until 11 April 2019.
9.3 The
applicant is to pay the costs of the opposition of the application
beyond 11 April 2019.
S.G.MEINTJES, AJ
On
behalf of plaintiff :
Mr R.G.Green
Instructed
by
:
Green Attorneys
BLOEMFONTEIN
On
behalf of defendant : Adv.M.C.Louw
Instructed
by
:
Azar Attorneys
BLOEMFONTEIN