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[2018] ZAGPPHC 538
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T.M.S.M v P.T.M (35304/2015) [2018] ZAGPPHC 538 (25 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 35304/2015
25/1/2018
(1)
NOT REPORTABLE
(2)
REVISED.
In
the matter between:
T
M S
M
PLAINTIFF
And
P
T
M
DEFENDANT
JUDGMENT
TLHAPI
J
[1]
The plaintiff instituted a divorce
action on 19 May 2015, which action is defended and the defendant
also filed a counter claim.
Initially three issues were identified by
the parties to be determined separately being : (a) jurisdiction, (b)
applicable law,
and (c) forfeiture. It was finally agreed at this
trial that there shall be a separation. In terms of Rule 33(4) of the
Rules of
Court and that the issue to be determined was whether the
plaintiff was domiciled within the area of jurisdiction of this court
as at the date of the institution of the action. The separation was
then ordered and the evidence that was led was that of the
plaintiff
and her witnesses and was confined to the issue to be determined.
[2]
The plaintiff issued summons on 19 May
2016 and these were served on the defendant on 29 May 2015 . The
defendant filed his special
plea and plea. In the special plea he
raised the issue of jurisdiction. During June 2015 the defendant
launched an application
in the High Court of Botswana being an
application to bring a divorce action on grounds of exceptional
hardship. This application
was struck out with costs on points
in
limine
raised by the plaintiff. The
plaintiff launched a Rule 43 application for maintenance
pendente
lite
during September 2015 which was
opposed and an order for interim maintenance was granted in the
amount of R10,000.00 per month.
BACKGROUND
[3]
The parties were married to each other
in Botswana on 10 April 2014 and according to the Laws of Botswana.
They proceeded to the
defendant· parental home in Swartruggens
on the 12 April 2014 for wedding celebrations and, thereafter the
plaintiff joined
the defendant at his residence [….] North
West Province. When she moved to Rustenburg she brought along all her
belongings,
her clothes,·TV set and catering equipment.
They lived together till 30 January 2015 when the
defendant travelled to Botswana to arrange for her mother and sister
to
travel to Rustenburg and she was returned to her parental home in
6ot&wana. Although plaintiff had promised to fetch her after
three days, he never did and he denied her permission to return to
his home.
[4]
She testified that after she separated from the defendant she used to
visit her sickly maternal
grandmother who lived in the outskirts of
Rustenburg. During February 2016 she decided to go and live at [….]
(Gauteng Province)
which was the home of one P H, whose brother was
married to her sister. She referred to P H as her brother. She was
invited to
live with him because at the time she was stressing over a
lot of issues. In addition, her mother who lived in Botswana was
gravely
ill. She had also decided to be based in South Africa where
she was lawfully entitled to be because of her marriage and she
wished
to develop her career, find employment and she had no
intention of returning to Botswana permanently.
[7]
Ms Ngubevela, the plaintiffs sister, who
lived in Francistown Botswana, was present at the wedding and wedding
celebrations of the
parties. She also accompanied her mother and the
defendant on 30 January 2015, to fetch the plaintiff from the marital
home in
Rustenburg. She testified that the plaintiff moved to
Pretoria in February 2015. The plaintiff lived in Pretoria to attend
to her
case and she used to travel to Botswana mostly to visit their
ailing mother. She confirmed that the plaintiff was not employed at
the time.
[8]
Professor Hadebe testified that the
plaintiff had been permanently living at his house in Eastwood
Pretoria since February 2015
and that she contributed an amount of
R3000.00 towards groceries. He testified that the plaintiff was not
employed while living
with him and that he introduced her to her
attorneys and assisted plaintiff with legal expenses. He conceded
that during her stay
she came for short periods. During cross
examination he was confronted with information by Home Affairs
disputing his evidence
that the plaintiff lived with him from
February 2015 and he did not concede.
THE
LAW
[9]
It Is trite that in a divorce addition
in addition to a decree of divorce being sought and other ancillary
relief, also may include
an application
pendante
lite.
In this instance was a Rule 43
application for interim maintenance, which order was granted. It does
seem to me that the issue of
jurisdiction though raised, was dealt
with in the application because no argument or judgment on this
aspect was addressed expect
that the order was granted. This
therefore does not mean that the issue raised relating to
jurisdiction in the main action was
resolved by the grant of the
interim relief, since the issue of jurisdiction was one to be
determined at trial.
[10]
In their heads of argument counsel for the parties have addressed the
issue of domicile as provided for in
Section 1 and section6(a) of the
Domicile Act 3 of 1992.
Section
1 of the Domicile Act dealing with domicile of choice requires:
(a)
legal capacity and the plaintiff
qualifies because of her majority;
(b)
lawful presence at a particular place of
choice; and
(c)
with the intention to settle there for
an indefinite period.
[11]
In this instance a court has
jurisdiction in a divorce action if it is satisfied that the
requirements in the Divorce Act read with
Section 6(a) of the
Domicile Act 3 of 1992 ('Domicile A ') have been complied with.
Section 2
of the
Divorce Act 70 of 1979
was substituted by section
6(a) of the Domicile Act which provides that :
"2(1)
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.''
[12]
It is common cause that the plaintiff is
a major and that her entry into the Republic South Africa was first
as result of her marriage
to the defendant. Testimony on how she
maintained presence in Rustenburg before her departure on 30 January
2015 is not relevant
because the divorce action was not instituted in
the area of jurisdiction the marital home. After her departure to
Botswana her
stay In South African was by way of a visitor's permit.
It was argued for the plaintiff that she regarded Pretoria as her
permanent
place of residence since February 2015 and that the
visitor's permit satisfied the requirement of lawful presence; and
that. coupled
with her intention to reside permanently in South
Africa in order to further her studies and exploring work
opportunities fulfilled
the requirements of a domicile of choice. It
was argued further that the Domicile Act did not stipulate a minimum
number of days
to fulfil the requirements of lawful presence in
claiming a domicile of choice.
[13]
It was submitted per the defendant that
the plaintiff by not relying on section 2 (1)(b) that she was
ordinarily resident in the
Republic for a period of not less than one
year immediately prior to the date of institution of the action,
accepted the fact that
she was not resident in the Republic at the
date of issue of the summons. It was submitted that the plaintiff
chose not to follow
the defendant's domicile in the North West
Province to institute action. It was contended that the parties could
either institute
action in the Republic of Botswana or in the North
West Province, depending on where domicile was found to be present.
[14]
The issue to determine is where the plaintiff was domiciled when the
action was instituted and it is not
in dispute that the plaintiff is
not relying on
section 2(1)(b)
of the
Divorce Act. This
is a complex
matter because after her marriage to the defendant in April 2014 it
became apparent that the marriage had broken down
on her return to
Botswana nine months later. At that time she had not acquired a
spousal permit or permanent residence in South
Africa, which would
mean that she would have retained her Botswana domicile until she had
acquired one in this country by virtue
of her marriage to the
defendant and the fact that she following him to Rustenburg and b
fulfilling all the other requirements
to establish domicile. This
aspect shall be revisited later. This state of affairs should not
have been an impediment to her instituting
divorce proceedings even
after she had returned to Botswana in January 2015. In my view It was
net necessary for har to seek residence
first in Pretoria in order to
institute divorce proceedings.
[15]
The question is whether on the facts
before the court the plaintiff has discharged the onus of proving on
a balance of probabilities
that she had acquired a domicile of choice
subsequent to the break-up, competent to establish jurisdiction of
this Court. Has she
established lawful physical presence In Pretoria
and an intention to remain there indefinitely or permanently. Counsel
for the
plaintiff argued that since there was no requirement for a
specific time or place of physical presence, the plaintiff had
satisfied
the requirements of the Domicile Act. Reference was made to
the application brought by the defendant in the Botswana Court which
,application was dismissed on the points
limine
raised one of which was that of the
lack of jurisdiction of the Botswana Courts. Counsel relied on the
facts in Green v Green
1987 (3) SA 131
(SE). The facts are in my view
distinguishable in that there the issue of domicile of the parties
was not dealt with. The Issue
to determine was whether ·a
Court of one Division had the competence to make preliminary interim
orders in connection with
litigation in the Court of another
Division.' It was therefore about the interpretation of section 2 and
the meaning of 'divorce
action' as defined in section 1, that such
meaning also included applications
pendente
lite.
[16]
The facts in Grindal v Grinda!
1987 (4)
SA 137
(C) are distinguishable. The issue related to the revival of
the applicant’s domicile of origin. The applicant sought leave
to sue by edictal citation in a South African court for a divorce and
who was at the launch of such application not present or
domiciled in
South Africa. The applicant was domiciled in South Africa prior to
her marriage to her husband who was domiciled in
Australia. They got
married in Cape Town and she emigrated to Australia to live with him.
After a few months they moved to England
where the marriage broke up
and where they had agreed to get divorced. It was decided that the
doctrine of revival was no longer
part of our law in view of section
3 of the Domicile Act which provided that 'no person shall lose his
domicile until he has acquired
another domicile whether by choice or
by operation of law.' It was determined that on the facts the
applicant was still domiciled
in Australia where she had emigrated to
and that her application was premature.
[17]
The plaintiff does not rely on the
domicile of the defendant in South Africa as at the time when the
action was instituted and further,
that in order to found
jurisdiction, that she was also ordinarily resident in the area of
jurisdiction of the court as provided
in
section 2(1)(b)
of the
Divorce Act. In
order to prove physical presence in South Africa, the
plaintiff, Ms N and P H were adamant in their testimony that the
plaintiff
was resident in Pretoria from February 2015. This is
Improbable because of the objective facts stated in the records from
the Department
of Home Affairs, which facts have not been disputed.
The records show that between the 21 March 2015 and the date on which
the
action was instituted the plaintiff had been in South Africa on a
visitors permit for not more than 12 days, and her stay in South
Africa is recorded as follows:
(a)
the plaintiff entered South Africa after
her departure on 30 January 2015, on 21 March 2015 and left for
Botswana on 2;3 March 2015;
(b)
On 7 April 2015 she travelled to
Mahikeng and returned to Botswana the following day 8 April 2015;
(c)
On 10 April 2015 she entered South
Africa and returned to Botswana on 13 April 2015;
(d)
On 25 April 2015 she entered South
Africa and returned to Botswana the same day;
(e)
On 4 May 2015 she entered South Africa
and returned to Botswana on 8 May 2015;
(f)
, On 14 May she entered South Africa and
returned to Botswana the following day;
(g)
On 16 May 2015 she entered South Africa
and returned to Botswana the same day;
(h)
On 25 June 2015 she entered South Africa
and returned to Botswana the following day;
[18]
It is correct that the Domicile Act does
not prescribe a period within which physical presence is satisfied,
and the plaintiff was
given lawful entry and stay in South Africa for
the few day before institution of the action, it Is my view that it
cannot be said
that a visitor's permit used In the above manner
satisfies the requirement of physical presence in order to acquire a
domicile
of choice. I am also of the view that the demeanour end
credibility of the witnesses was compromised when despite objective
evidence
there was insistence that the plaintiff was resident within
the jurisdiction of this court from February 2015. According to P H
the plaintiff had her own room 'and he assisted her financially when
the plaintiff could not afford her monthly contribution of
R3000.00
towards groceries. I find his evidence relating to the monthly
contribution not to be credible and was consequently improbable.
It
is probable that the plaintiff stayed with him during her brief stay
in South Africa which is evidenced by his admission that
he
introduced her to her local attorneys. She also testified that she
used to visit her gravely ill grandmother in Rustenburg.
It is not
clear therefore when these visits occurred during her brief visits
and the duration thereof.
[19]
I also find that the plaintiff failed to give a satisfactory
explanation regarding the use of nor bank card in
Botswana. The
activities on her bank account in Botswana are indication that there
was not a continued indefinite physical presence
in the area of
jurisdiction of this court. The plaintiff’s evidence that her
card was used by relatives in Botswana should
be rejected.
Furthermore, if there was intention to permanently regard Pretoria as
a domicile of choice for study or employment
purposes or even for
entitling the plaintiff to the jurisdiction on this court. such
intention to stay indefinitely or permanently
for the purposes
mentioned must be manifested by positive objective evidence and not
just the say so of witnesses. No institution
was identified for
advancing her studies, no document being an application for
admission, or application for study or work permit
for these purposes
was disclosed. I am therefore of the view that domicile of choice has
not been proved on a balance of probabilities
for the purpose of
entitling the plaintiff to institute action within the jurisdiction
of this court.
[20]
In the result the following order is given:]
1.
The plaintiff was not domiciled within the jurisdiction on this court
when the divorce action was
instituted.
2.
The action is dismissed with costs which include the costs of two
counsel.
TLHAPI
W
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON:
14
AUGUST 2017
JUDGMENT
RESERVED ON:
7
SEPTEMBER 2017
ATTORNEYS
FOR THR PLAINTIFF:
VAN
DER MERWE INC.
ATTORNEYS
FOR THE DEFENDANT:
ROOTH
& WESSELS ATT.