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[2019] ZAWCHC 74
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H.V (born V) v C.V (6384/2019) [2019] ZAWCHC 74 (21 June 2019)
SAFLII
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Certain
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Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 6384/2019
Before:
The Hon. Mr Justice Binns-Ward
Date
of hearing: 19 June 2019
Judgment:
21 June 2019
In
the matter between:
H
V (born
V)
Applicant
and
C
V
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
This
matter is an application in terms of Uniform Rule 43 for interim
relief pending the determination of proceedings in the principal
case
concerning the dissolution of the parties’ marriage and the
matters consequential thereto. The parties are married
in
community of property and therefore, until the bonds of marriage
between them are dissolved, their financial obligations fall
to be
met out of a notional common pot.
[2]
The
parties are currently separated. The applicant, who is the
wife, has moved from what used to be the common home in KwaZulu-Natal
(‘KZN’) to the Western Cape. The parties’
minor daughter, who is six years old, has moved to this jurisdiction
together with her mother. The respondent remains resident in
KZN, where he is employed.
[3]
The
respondent issued summons for a divorce out of the regional
magistrate’s court in Glencoe on a date prior to the issue
out
of this court of a summons by the applicant for the same primary
relief. However, the summons issued out by the applicant
has
been served on the respondent, whilst service of the summons issued
earlier at the respondent’s instance has not been
effected.
The respondent in his opposing papers pleaded that this court lacked
jurisdiction to entertain this interlocutory
application by reason
his summons having been issued first in the other court’s area
of jurisdiction.
[4]
Notwithstanding
the position on the papers, the respondent’s counsel’s
conceded at the hearing that this court did have
jurisdiction to hear
the rule 43 application. Well-made as that concession might
have been, it was, of course, not determinative
of the question.
It remained for the court itself in the given circumstances to be
satisfied that it was competent to decide
the application. Both
courts do indeed have the jurisdiction to entertain an action for the
dissolution of the parties’
marriage, but it would in general,
for reasons of comity and practicality if nothing else, be outside
the remit of the one court
to entertain interlocutory proceedings in
an action already pending before the other. Ordinarily, an
action would be regarded
as pending before a court from the moment
when the process of that court in terms of which the action has been
commenced has been
served on the defendant. On that approach,
the divorce is pending in this court, and not before the court in
KZN.
[5]
Counsel,
however, quite properly, drew my attention to the provisions of
s 1(2)
of the
Divorce Act 70 of 1979
, which at first blush might
be read to have the opposite effect.
Section 1(2)
provides:
For the purposes
of this Act a divorce action shall be deemed to be instituted on the
date on which the summons is issued or the
notice of motion is filed
or the notice is delivered in terms of the rules of court, as the
case may be.
[1]
Counsel
were not able to refer me to any decided case in which the import of
s 1(2)
of the
Divorce Act had
been considered or determined, and
in the limited time available to me in the context of managing the
Third Division roll I have
also not been able to find any.
[6]
There
are two striking features about the provision. The first is
that it is a deeming provision and the second is that the
object of
the deeming function is to serve ‘
the
purposes of
th
[e]
Act
’.
A deeming provision generally has the effect of causing something to
be treated as if it were something that it is
actually not.
Actual joinder, and the attendant commencement of the action, occurs
only upon service of the initiating summons.
I have been unable
to identify any purpose of the Act that would be served by treating
the date of
issue
of an unserved summons as determinative of the question before which
court the action is pending when
service
of a summons issued later in another court of competent jurisdiction
had been effected. Put otherwise, it does not serve
any purpose
of the Act to treat the court before which the action is not actually
pending as if it were the court in which the
action was effectively
commenced.
[7]
What
then are the purposes to which the deeming effect of
s 1(2)
might sensibly pertain? In my view, the deeming provision is
germane in respect of a number of issues arising for determination
under the Act, in which the effect of the decision is time-related in
terms of the Act. I do not pretend to have undertaken
an
exhaustive consideration, but examples that leap out on a cursory
examination of the statute’s provisions are the time-related
presumption bearing on proof of the irretrievable breakdown of a
marriage relationship provided in
s 4(2)(a)
, and the calculation
of the two-year period of detention in respect of mentally ill
spouses for purposes of
s 5(1)
of the Act and the six-month
period of continuous unconsciousness in
s 5(2)
in respect of
defendant spouses who are suffering from a physical disorder.
Those periods fall to be calculated from the
deemed date of the
institution of the divorce action irrespective of the court in which
that action became pending.
[8]
In the
circumstances, I am satisfied that this court is the court seized of
the divorce action, and that the deeming provision in
s 1(2)
does not detract from that fact. The
rule 43
proceedings were
therefore properly brought in this court.
[9]
By the
time the matter was argued, the applicant was willing to accept much
of what the respondent had tendered in his opposing
affidavit.
The only issues remaining in dispute concerned (i) the claim
that the respondent pay to the applicant a certain
amount in respect
of the minor child’s schooling expenses, (ii) whether it
was necessary, if the respondent’s
contact with the minor child
were to be exercised outside the Western Cape (as will probably be
the case), that a ‘once off’
assessment be undertaken by
a social worker with ‘child psychological expertise’ to
determine whether that would be
in the child’s best interest,
(iii) whether the respondent should pay a contribution towards
the applicant’s costs
in the divorce action, and (iv) the
costs of the
rule 43
application.
[10]
As to
the first of the aforementioned issues, it is not in contention that
state afforded education would not be adequate having
regard to the
parents’ means. There is no suggestion that the child is
being excluded from a state school on account
of non-payment of
fees. The child’s school enjoys a claim against the
community estate in respect unpaid fees at the
time of the divorce,
and there is no reason why the parties’ liability
inter
se
for the settlement of that claim cannot be determined in the
principal proceedings. I do consider, however, that it would
be
reasonable for the respondent, who has always been the principal
breadwinner in the marriage, to make a monthly payment to the
applicant that would assist the latter to pay incidental
schooling-related expenses that have to be met on an ongoing basis
over
and above school fees, such as for the child’s extramural
activities. I shall fix an amount of R1000 per month in this
regard, but provide that the first charge on that amount shall be
half the amount outstanding at any time in respect of the child’s
school fees.
[11]
Whilst
I readily appreciate that the minor child has been unsettled by her
parents’ separation and her removal from the environment
in KZN
with which she was familiar to new surroundings in the Western Cape,
nothing in the evidence leads me to believe that she
would be in any
way prejudiced by spending time with the respondent outside the
Western Cape; and, in particular, in KZN.
On the contrary, the
evidence suggests that the child’s wellbeing would be well
served if she were able to be reunited, even
if only for relatively
short periods with her paternal grandparents in KZN with whom she was
used to spending a material portion
of her waking hours while both
her parents went out to work. I have little doubt that her
sense of insecurity would be assuaged
by the restoration of some
contact with family members in KZN with whom she has been familiar as
significant caregivers.
Having regard to the parties’
apparent means I think it would be a luxurious indulgence in the
circumstances to have the
minor child subjected to an assessment of
the sort proposed by the applicant. I am certainly not
persuaded as to the reasonable
necessity therefor.
[12]
The
parties would be well advised to focus on the expeditious conclusion
of the pending divorce action. The evidence in the
rule 43
application does not identify any matters that should especially
complicate the achievement of that end. The joint estate
is a
relatively small one, and it is not evident that this is a case in
which forensic investigation or expert evidence of any
kind would be
required. The parties’ capital appears to be tied up in
the single immovable property owned by them in
KZN, which the
respondent has undertaken to maintain and pay the mortgage until the
divorce proceedings are determined. I
am not persuaded that a
contribution to costs is required to avoid the unfairness that can
arise in some cases in this type of
litigation between parties with a
notable disparity of available resources.
[13]
I
intend to stand the matter of liability for the costs of the
rule 43
proceedings over for determination by the trial court.
[14]
The
following order will issue:
1.
1.1
The
Applicant shall be the child’s primary care giver and the child
shall have her primary residence with the applicant;
1.2
The
Respondent shall be entitled, on reasonable notice to the Applicant,
to have contact with the minor child as follows:
1.2.1
Every
alternative weekend;
1.2.2
For up
to two weeks during the June/July school holiday;
1.2.3
For up
to two weeks during the December/January school holiday;
1.2.4
During
the entire April/October school holidays, to be rotated between the
parties, commencing with the respondent to have contact
in the
October 2019 holiday.
2.
That
Respondent shall contribute to the maintenance of the parties’
minor child, S, as follows
pendente
lite
:
2.1
by
paying to Applicant the sum of
R
3000.00
per
month towards the child’s maintenance on or before the first
day of the month following the granting of an order herein,
and
thereafter, on or before the first day of each succeeding month into
an account nominated by Applicant, without deduction or
set off;
2.2
by
retaining the child as dependant on his current medical aid, failing
which, a medical aid scheme with analogous benefits and
by paying the
premiums as well as any escalations thereon in respect of their cover
on the scheme;
2.3
by
payment to the Respondent of the sum of R1000 per month
pendent
lite
by way of a contribution towards the educational costs in respect of
the minor child; which shall be applied by the applicant firstly
in
reduction of half of the amount of any outstanding school fees, and
thereafter to any other schooling-related expenditure.
3.
That
Respondent shall contribute to the personal maintenance of Applicant
pendente
lite
as follows:
3.1
by
paying the Applicant the sum of R 2000.00 per month on or before the
first day of the month following the granting of this order,
and
thereafter, on or before the first day of each succeeding month into
an account nominated by Applicant, without deduction or
set off.
3.2
by
retaining the Applicant and her son, A (“A”,) as
dependants on his current medical aid, failing which, a medical
aid
scheme with analogous benefits and by paying the premiums as well as
any escalations thereon in respect of their cover on the
scheme.
3.3
by
retaining the Applicant and her son, A, on their current cellular
phone contracts.
4.
Respondent
shall continue to maintain the immovable property situated at […],
Kwazulu-Natal, and shall continue to make monthly
payments of the
following expenses in respect of the aforesaid immovable property
pendente
lite
:
4.1
the
monthly mortgage bond instalment;
4.2
the
rates and taxes in respect of the property;
4.3
the
monthly water and electricity charges in respect of the property;
5.
Respondent
shall be responsible for the payment of any/or all reasonable
expenses and/or costs involved in, and in relation to,
the
maintenance of the aforesaid immovable property
pendente
lite
.
6.
Save
as aforesaid, the further relief sought by the applicant in the
rule
43
application is refused.
7.
The
costs of the
rule 43
application shall stand over for determination
in the divorce proceedings.
A.G.
BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s
counsel: C. Tait
Applicant’s
attorneys: Visser & Partners
Bellvile
Respondent’s
counsel: A.J. van Aswegen
Respondent’s
attorneys: DBM Attorneys
Newcastle,
KwaZulu-Natal
Heyns
& Partners
Goodwood
[1]
The reason for the reference in
the provision to a notice of motion and a notice is because of the
wide definition of ‘
divorce
action
’ in
s 1(1)
so as to make it include applications that may be
instituted in anticipation of the actual commencement of a divorce
action in
the ordinary sense of the term, such as an application for
substituted service for example.