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[2018] ZAGPJHC 634
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N K v K M (2018/25403) [2018] ZAGPJHC 634; 2019 (3) SA 571 (GJ) (7 December 2018)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
2018/25403
In the
matter between:
K,
N
Applicant
and
M,
K
Responden
t
Summary:
Application for separation of issues
in terms of rule 33 (4) of the Rules. Applicant seeking determination
of the issue of decree
of divorce be separated from that of division
of joint estate in the divorce proceedings. Legal principles
governing separation
restated. Consequences to the application in
terms rule 43 of the Rules once separation is granted and decree of
divorce is made.
Can a rule 43 application sustain once decree of
divorce is granted.
JUDGMENT
MOLAHLEHI, J
:
Introduction
1.
This is an application in terms of which the
applicant seeks an order in terms of rule 33(4) of the Uniform Rules
of the High Court
(the Rules) for a separation of the issues in the
divorce proceedings between him and his wife filed under case number
2017/42930.
The relief sought is to have the issue of divorce
separated from that in which he seeks to have the respondent forfeit
the right
to share in the joint estate on divorce.
Common cause facts
2.
It
is common cause that both parties are in the main action seeking an
order to have their marriage dissolved. They are still living
together in the same matrimonial home, except that they are no longer
living as husband and wife for a period in excess of one
year. They
have accepted that their marriage, concluded on 21 March 2015 in
community of property, has irretrievably broken down.
There are no
children born of this marriage. The respondent has two children from
her previous marriage.
3.
The divorce proceedings were instituted by the
applicant during November 2017. In addition to seeking a decree of
divorce in the
main application the applicant prays for the
forfeiture of the benefit of the marriage and whether he should be
ordered to pay
maintenance for the respondent.
4.
From the papers it is apparent that the
respondent is opposing the applicant’s claim only to the extent
that he is seeking
forfeiture of the matrimonial benefits of the
marriage. She contends that the joint estate should be divided
equally between the
parties and also that she be granted spousal
maintenance or contribution towards her costs.
5.
The main issues between the parties as matters
stand now are:
a.
The applicant’s claim for forfeiture of
patrimonial benefits of the marriage.
b.
The respondent’s claim for the division of
the joint estate.
c.
The respondent’s claim for maintenance.
6.
The respondent has instituted proceedings in
terms of rule 43 of the Rules in terms of which she is claiming
maintenance pending
the finalisation of the divorce. The application
is opposed by the applicant.
The grounds for the
separation of issues
7.
The grounds for the separations of issues as set
out in the applicant’s founding affidavit are as follows:
“
14. As the Respondent and I are
[living] together as husband and wife, share no common interest and
the relationship between us
is extremely strained, I wish to get on
with my life and seek a decree of divorce.”
15. The trial in this matter has been
set down for hearing on 18 April 2019.
16. I submit that it is convenient
that the issues be separated as sought by me in the notice of motion
and that the matter be set
down for hearing on the unopposed roll for
a divorce, subject to the remaining issues being stayed and to be
determined at the
hearing of the trial.
17. The Respondent will not suffer any
prejudice if such separation be granted.”
15.
The above includes the contention that:
i.
the respondent is employable and has assets and means to be
self-supporting;
ii.
that he will continue to pay maintenance
pendente lite
as tendered in the Rule 43 application until the final determination
of the divorce action. The other reason for seeking separation
is
that the applicant wishes “to get on with his life.”
The legal principles
9.
As
stated earlier in this judgment this application is brought in terms
of rule 33 (4) of the Rules which provides as follows:
“
(4) If, in any pending action,
it appears to the court
mero motu
that there is a question of
law or fact which may conveniently be decided either before any
evidence is led or separately from
any other question, the court may
make an order directing the disposal of such question in such manner
as it may deem fit and may
order that all further proceedings be
stayed until such question has been disposed of, and the court shall
on the application of
any party make such order unless it appears
that the questions cannot conveniently be decided separately.”
10.
The
principle of separation of issues envisaged in rule 33 (4) of the
Rules is a recognition that no purpose is served in keeping
parties
in divorce proceedings together in a dead marriage and thus
recognises the need to as soon as possible normalise the lives
of the
parties whose marriage has irretrievably broken down. In
CC
v CM,
[1]
where reference is made to
Levy
v Levy,
[2]
the
court in dealing with the need dictated to by public policy to
normalise the lives of parties in divorce proceedings, held that
it
goes against public policy “to have the parties “shackled
to a dead marriage.”
11.
Flemming
DJP in
Rauff
v Standard Bank Properties,
[3]
:
formulated the purpose of rule 33(4) as follows:
"The entitlement to seek
separation of issues was created in the Court Rules so that an
alleged
lacuna
in the plaintiff's case or an answer to a case
can be tested; or simply so that a factual issue can be determined
which can give
direction to the rest of the case and in particular to
obviate a parcel of evidence. The purpose is to determine the fact of
the
plaintiff's claim (or one of the claims) without the costs and
delays of a full trial."
12.
In
Denel
(Edms) Bpk v Vorster,
[4]
the Supreme Court of Appeal cautioned against the assumption that the
result would be achieved by separation of issues. Even though
at a
glance it may appear that the issues are discrete they may ultimately
be found to be inextricably linked. The court found
that the
expeditious disposal of litigation is best by ventilating all the
issues at one hearing.
13.
In matters such as the present the court will
quite often be faced with having to strike a balance between the
separation of issues-
proving an expeditious disposal of an aspect of
litigation and fairness to one of the parties. An important
consideration in this
regard is that expeditious disposal of issues
cannot outweigh the principle of fairness. The principle of fairness
requires the
balancing of the interest of both parties.
14.
In
Beckley
Anntonette v Beckley Darryley Bruce,
[5]
Tsoka J, in dealing with the provisions of rule 43 of the Rules,
where separation of issues had already been granted, cautioned
that
the courts should be slow to resort to the provisions of rule 33 (4)
where such separation is not competent and the question
of law and
fact sought cannot be conveniently decided.
15.
In
K
0 v M 0,
[6]
the court held that one should not lose sight of the possibility of
inconvenience and prejudice to a party should the litigation
be dealt
with on a piecemeal basis.
16.
In an
application for separation of issues in divorce proceedings the onus
is on the applicant to set out facts with sufficient
particularity to
assist the court in considering whether it is convenient to grant
separation of issues. Once the applicant has
shown a
prima
facie
case favouring separation of issues, the burden is on the respondent
to show that the granting of separation of issues would be
prejudicial on him or her and thus the balance of convenience does
not favour the granting of separation of issues. Failure to
discharge
this onus by the respondent will result in the court being obliged to
grant the separation.
[7]
)
17.
The use of
the word “convenience” in rule 33 (4) of the Rules was
held in
Tudoric
–Ghemo v Tudoric-Ghemo,
[8]
to include the notion of facility or ease including the concept of
appropriateness. In this respect the Supreme Court of Appeal
in
Molotlegi
v Momkwalase,
[9]
said:
"The notion of convenience is
much broader than the mere facility or ease or expedience. Such a
court should also take due
cognisance of whether separation if
appropriate and fair to all the parties. In addition the court
considering an application for
separation is also obliged, in the
interests of fairness, to consider the advantages and disadvantages
which might flow from such
separation. Where there is a likelihood
that such separation might cause the other party some prejudice, the
court may, in the
exercise of its discretion, refuse to order
separation. Crucially in deciding whether to grant the order or not
the court has a
discretion which must be exercised judiciously."
18.
The general
principle governing the approach to an application in terms of rule
33 (4) of the Rules is set out in
African
Bank v Soodhoo,
[10]
quoted and applied by Tsoka J in
De
Wet and Others v Memor (Pty) Ltd
[11]
as follows:
"... The Court has a discretion
to grant or refuse an application in terms of Rule 33(4). The
overriding consideration in such
applications is convenience, in a
wide sense, that is to say, the separation must not only be
convenient to the person applying
for such separation, but must also
be convenient to all the parties in the matter inclusive of the
court. The determination of
such an application requires of the court
to make a value judgment in weighing up the advantages and the
disadvantages in granting
such separation. If the advantages outweigh
the disadvantages, invariably, the court should grant the application
for separation.
The notion of appropriateness and fairness to the
parties also comes into the equation."
19.
The
court in
De
Wet
in
dealing with the general principles governing the approach to
separation of issues quoted with approval and applied what was
said
in
African
Bank v Soodhoo
[12]
where
the court in that case said:
“
The
general principle in law would appear to be that notwithstanding the
wide powers conferred on a court under rule 33(4) of the
Uniform
Rules of Court it is ordinarily desirable, in the interests of
expedition and finality of litigation, to have one hearing
only at
which all issues are canvassed so that the court, at the conclusion
of the case, may dispose of the entire matter. Minister
of
Agriculture v Tongaat Group Ltd
1976 (2) SA 357
(D) at 362G
- H, and Denel (Edms) Bpk v Vorster
2004
(4) SA 481
(SCA) ((2004)
25 ILJ 659) at 485B - C have reference. In some instances,
however, the interests of the parties and
the ends of justice are
better served by disposing of a particular issue or issues before
considering other issues which, depending
on the result of the issue
singled out, may fall away. (Minister of Agriculture (supra) at
362H.)”
20.
The general principles governing
separation of issues are set out in De Wet and are provided as
follows:
“
[6]
The general principles gleaned from the abovementioned cases may
briefly be summarised as follows. The Court has a discretion
to grant
or refuse an application in terms of Rule 33(4). The overriding
consideration in such applications is convenience, in
a wide sense,
that is to say, the separation must not only be convenient to the
person applying for such separation, but must also
be convenient to
all the parties in the matter inclusive of the court. The
determination of such an application requires of the
court to make a
value judgment in weighing up the advantages and the disadvantages in
granting such separation. If the advantages
outweigh the
disadvantages, invariably, the court should grant the application for
separation. The notion of appropriateness and
fairness to the parties
also comes into the equation.”
Evaluation and
analysis
21.
In my view this matter turns on whether the
applicant made his case in the founding affidavit. The founding
affidavit is five and
half pages and the replying affidavit eleven
and half. It is apparent from the reading of the applicant’s
papers that he
sought to make his case in reply.
22.
It is trite
that an applicant in motion proceedings has to make out his or her
case in the founding affidavit unless there are special
circumstances
why that has not been done
.
[13]
23.
It is clear from the reading of the founding
affidavit, that the applicant in seeking to have the issue of divorce
separated from
the other issues, failed to take into account the
principle of fairness and whether separation if granted would be
appropriate
and fair to the respondent. The only thing he tells the
court in the founding affidavit is that the respondent will not
suffer
prejudice. He does not deal with the personal circumstances of
the respondent in that affidavit.
24.
It is only in the replying affidavit that the
applicant deals with the issue of lack of prejudice on the part of
the respondent.
He does so by projecting a picture that the
respondent is irresponsible and that she is to blame for the
situation she finds herself
in and also that she is unwilling to find
work.
25.
It was also contended on behalf of the applicant
that account should be taken of the fact that the marriage was of a
short duration
and that the applicant has good prospects of success
in his claim for forfeiture of benefits once the marriage is
dissolved. This
issue is not dealt with in the founding affidavit
including the alleged health problems he has developed as a result of
the breakdown
of the marriage.
26.
The objective facts, to the contrary, depict the
respondent as a person who for all intents and purposes is destitute
and vulnerable.
This is in the context where she is given a personal
allowance of R3 000,00 from a joint estate which is controlled
by the
applicant who has not disclosed to her the assets and his
income from an investment portfolio which is alleged to be in the
region
of five billion. It is alleged that his monthly salary is in
the region of R112 000,00.
27.
The irresistible conclusion to draw from the
above is that the applicant has failed to make out a
prima
facie
case to separate the issue of divorce
from the other issues in the divorce proceedings. In the
circumstances it would neither be
fair nor appropriate to order
separation of the issues in this matter.
Rule 43 application
28.
The other issue that arose in this matter is
whether the pending rule 43 application will sustain once separation
of issues was
granted and the decree of divorce accordingly made. The
argument in this regard on the part of the respondent is that her
pending
rule 43 application will fall away because she would no
longer be a spouse of the applicant.
29.
For the purpose of this judgment the relevant
provisions of rule 43 reads as follows:
“
(1) This rule shall apply
whenever a spouse seeks relief from the court in respect of one or
more of the following matters:
(a) Maintenance
pendente lite
;
(b) a contribution towards the costs
of a pending matrimonial action”
30.
The respondent contends that the applicant would
still in law be able to pursue her rule 43 claim despite the decree
divorce. In
this respect Counsel for the applicant relied on the
cases of
CC v CM
and
KO (born H) v MO.
31.
The case of
CC v CM
is distinguishable from the present matter in that it dealt only with
the provisions of rule 33 (4) and not rule 43 of the Rules.
32.
In relation to
KO v MO
,
Counsel argued that the court should follow that dictum and not that
of
Beckley Antonoinette
.
It was submitted that the
Beckley Antonoinette
is not binding on this court because it is clearly wrong.
33.
In
KO
v MO,
[14]
Loots AJ held that:
“
[60] It cannot be the correct
position that, in a pending divorce action, following a granting of
the decree of divorce, the fact
that the parties are no longer
married, would disentitle a person who, until the decree of divorce
(which is one of the part of
the divorce action), was entitled to the
relief set out in Rule 43,
pendente lite,
would no longer be
entitled thereto due to the unnecessarily strict interpretation of
the with "spouse" for the purposes
of the Rule.
[61]. Accordingly, I find that,
pending the finalization of the divorce action, and extant order in
terms of Rule 43 survives a
decree of divorce to the extent the
issues of regulated thereby remain unresolved.
[62] The finding that an existing
order in terms of uniform Rule 43 does not lapse when the content of
a decree divorce in circumstances
where the remaining issues in the
divorce action remain pending in terms of uniform Rule 33 (4) follows
ineluctably."
34.
The court further held:
[64] Save for it being necessarily so
that only a spouse can apply for a decree of divorce, the remaining
relief contemplated by
the definition is not dependent on a party
being a spouse at the time the relief is sought; with the operative
weights in this
subsection (a) being open quotation
pendente lite
and in subsection [B] being "such action" and. Should the
legislature have wish to limit the relief claimable in a pending
divorce action to only spouses, the divorce act would have stipulated
so in temps, and would not have contended itself with the
manner in
which it defined a divorce action."
35.
In
Beckeley
the court dealt with a situation where the application in terms of
rule 43 was launched after decree of divorce was granted following
the separation of issues. Following the granting of the final decree
of divorce on 15 January 2015 the applicant launched a rule
43
application seeking interim spousal maintenance pending the final
determination of her monthly cash maintenance payable to her
until
death or remarriage and the right to be retained on her husband's
comprehensive medical aid.
36.
The court
found that the provisions of rule 43 of the Rules were not applicable
as at the time there was no pending divorce action
between the
parties as provided for in this said rule. The court further found
that the applicant did not have the right to claim
interim
maintenance where there was no matrimonial action or where none was
pending or was about to be instituted. In arriving
at that
conclusion, the court relied on the case of
Gunston
v Gunston,
[15]
where in dealing with the same issue the court held:
"The words… in paras, (b),
(c) and (d) do not appear in para (a), but there can be no doubt that
the whole subsection
concerns interim orders made in connection with
matrimonial action which is pending or about to be instituted.
"Matrimonial
actions" include actions for divorce,
restitution of conjugal rights, quality of marriage and judicial
separations…”.
37.
In considering the facts of the matter the court
held that there was no matrimonial action pending between the parties
or about
to be instituted and that being so, there was no existence
or contemplated a
lis
such as is referred to in rule 43 of the Rules.
38.
In
Beckeley
,
the court in dealing with the facts of that case found that there was
no matrimonial
lis
pending as the parties were granted a divorce on 19 August 2014 and
the application in terms of rule 43 application was launched
five
months after the divorce was granted.
39.
It is thus correct that once a decree of divorce
is granted the provisions of rule 43 of the Rules will find no
application. Accordingly
the decisions in
Gunston
and
Beckley
made by
the Gauteng division are correct and binding on this court as opposed
to
KO v MO
which is a
decision of the Western Cape division.
40.
In light of the above findings there would be no
basis in law for the respondent to institute a rule 43 application
once a decree
of divorce is granted following the separation of the
divorce from the other issues. In the premises, the applicant's
application
stands to fail because it would not be convenient for the
respondent if the issue of divorce was to be separated from the other
issues.
Order
41.
In the circumstances, the applicant's application
is dismissed with costs.
E Molahlehi
Judge of the High Court
Johannesburg.
Representation:
For the Applicant: Adv S
Georgiou
Instructed by:
Hirschowitz Flionis Attorneys
For the Respondent: Adv M
Feinstein
Instructed by Raymond
Joffe and Associates
Heard: 15 November 2018
Delivered: 7 December
2018
[1]
2014
(2) SA 430
(GJ) at 42.
[2]
1991
(3) SA 614 (A).
[3]
2002 (6) SA 693
(W) at 22.
[4]
2004 (4) SA 481 (SCA).
[5]
Unpublished judgment under case number 01098/2015. .
[6]
Unpublished judgment
accessed
at
www.saflii.org/za/cases/ZAWCHC/2017/136.pdf
[7]
Hotels,
Inns and Resorts SSA (Pty) Ltd v Underwriters at Lloyds and Others
1998 (4) SA 466 (C).
[8]
1997
(2) SA 246
(W).
[9]
2010
JDR 0360 (SCA) at 20.
[10]
2008
(6) SA 46 (D).
[11]
(2009/44153)
(2011) ZAGPJHC 188 (29 April 2011) at 6.
[12]
2008 (6) SA 46
(D) at 51B-D.
[13]
See
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
(Pty) Ltd and Another
1980 (1) SA 313
(D) at 315H-316A.
[14]
[15]
1976 (3) SA 179
[W] at 182A.