About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2017
>>
[2017] ZALMPPHC 38
|
|
R.O v M.O (5834/2017) [2017] ZALMPPHC 38 (14 November 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 5834/2017
Not
reportable
Not
of interest to other judges
Revised.
14/11/2017
In
the matter between:
R
O
APPLICANT
and
M
O
RESPONDENT
JUDGMENT
Summary:
Civil
procedure – Rule 43(1) uniform rules – whether applicant
under Rule 43 entitled to obtain relief for any matrimonial
cause
where no divorce action instituted – purpose of – prior
pending divorce action essential before launching Rule
43 application
– issuing of Summons after does not avail applicant –
principle the rule applies when spouse desires
relief on exclusive
matrimonial causes pending or instituted.
Held - When applicant
launched Rule 43(1) application – no
lis
pending –
application ill-conceived – falls to be dismissed with costs.
M
G PHATUDI J:
[1]
This application gives rise to somewhat peculiar novel issues in this
Division pertaining to an application of Rule 43
of the Uniform
Rules of Court. (“the rules”).
[2]
The Applicant seeks relief
pendente
lite
for
inter-alia
primary care and residence of the two minor children born of the
marriage between the parties, and that both parties to retain
parental responsibilities as well as rights in terms of Sections
18,19 and 20 of the Children’s Act
[1]
,
reasonable right of contact and access by the Respondent to the said
two minor children, maintenance of an amount of R3 000-00
per
child per month, payable by the Respondent, an amount of R2 700-00
maintenance per month towards the applicant pending
dissolution of
their marriage, and also R10 000-00 towards applicant’s
costs contribution, and auxiliary relief.
[3] The application is
resisted by the Respondent. In doing so, the Respondent raised a
point in limine
contending that there is no
lis
pending
between the parties in the form of divorce proceedings, and
consequently, the applicant has no legal standing to have initiated
Rule 43 proceedings against him.
[4]
The facts in this application, as already indicated raise a vexed
legal issue which upon a review of legal literature and authorities
on the subject, project divergent legal views and somewhat conflicted
positions in various divisions in our civil law. This conflict
of
authorities therefore creates uncertainty in law, and requires, in my
view, guidance at least in a pragmatic and uniform standard.
[5]
In the present case, the following factual issues are common cause:-
5.1.
The parties were married to each other by civil rites in Polokwane on
17 November 2012, which marriage subsits.
5.2.
Out of this wedlock, two minor children were born, both of which
presently reside with the Applicant.
5.3.
It is not in contestation that the parties’ marriage is in
turbulence, and has broken-down beyond reasonable prospects
of
restoration of a normal harmonious marriage relationship between
them, as a result of which the Applicant on 30 June 2017, deserted
the parties common home with a settled intention to institute a
divorce, action against the Respondent.
5.4. No divorce action
has, however, yet been instituted by the applicant when she launched
the present application in this court
on 18 August 2017. She cites as
reason for her non-action, lack of financial means to commence suit
for a divorce and no support
or financial support by the Respondent
both for herself and the two minor children.
[6]
It is the launching by the applicant of the current Rule 43
application in the circumstances that aggrieved the Respondent
contending that there is no divorce action pending between them to
entitle her to have proceeded in this way.
[7]
The primary issue for consideration is whether a party is entitled to
seek any matrimonial relief against another in circumstances
where no
prior divorce action has been instituted by the applicant before
launching Rule 43 application.
[8] This question calls
for closer analysis for what Rule 43 provides for, and when and
who may invoke the section. This is
how it is couched:-
Rule
43(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,
(c).
interim custody of any child,
(d).
interim access to any child
[9] The purpose of this
rule primarily is to provide a mechanism which is simplified and
well-oiled to enable a litigant to obtain
a speedy interim relief as
provided for even at common law in matrimonial causes. It concerns
itself essentially on procedure than
to disturb substantive law.
[10]. The procedure is
invoked whenever a spouse desires relief in respect of one or more of
the enumerated instances in it. It
applies exclusively to matrimonial
issues that are
pending or instituted.
(own
emphasis)
[11]
The application is available to a “spouse” and he/she who
claims or alleges to be a spouse even though the claim
or allegation
is disputed by the other partner. The notion “spouse”
according to “The concise oxford Dictionary”
8
th
Edition 1990, is defined as “husband or wife”. It may in
modern context be extended to cover a partner in same-sex
marriages
or same-sex civil partnership concluded under the
Civil Union Act,
2006
[2]
.
[12]
In other words a spouse has to demonstrate in its founding papers
that it is a party entitled to bring the application in terms
of the
rule. In addition, a litigant spouse must show that the relief sought
is in nature a matrimonial cause, and that such cause
must be pending
or imminent.
[13] In this instance,
the applicant, on its papers, stated unequivocally that “the
action has not yet commenced, as I do
not have the financial means to
institute such action…”. The application as already
shown, has been launched on 18
August 2017 and the applicant having
left the parties’ common home on 30 June 2017.
Nothing
in the founding affidavit has been proferred in the form of evidence
as to why after effluxion of roughly 1 month and three
weeks that
divorce summons has not been issued, even though not yet
served, to demonstrate that a
lis
has been initiated
alternatively, that it is about to be instituted.
[14]
As already shown elsewhere in this judgment, (Para:4) the existing
authorities present somewhat conflated view points on the
matter
particularly in some High Court Divisions in our judiciary. I shall
in summation refer briefly to some of those decisions
and the
divergent approach adopted.
[15]
In the case of
Moolman
v Moolman
[3]
,
Seriti
J, as he then was, had occasion to deal with a similar application
brought under
Rule 43
in which the Respondent on 07 September 2007
issued summons in the then North Gauteng Local Division of the High
Court (Pretoria)
seeking a decree of divorce. The legal question
before Seriti J was whether
Rule 43
may be invoked before issuing of
summons. After reviewing the authorities at issue, the Learned Judge
concluded at Paragraph II
that:-
[11]
“
From
the above authorities, it is clear to me that an action can only pend
once at least summons has been issued. Prior to the issuing
of
summons there can be no talk of a pending action. The intention of
the parties, prior to the issuing of summons is irrelevant
…pending
matrimonial action cannot include a proposed matrimonial action….
The
proper reading of
Rule 43
and the purpose thereof supports the view
that there must be a pending action between the parties prior to the
launching of the
Rule 43
and the pending action in my view means at
least a divorce summons must be issued.”[Para 13]
[16]
Again in AD v ZD
[4]
, Tolmay J
most recently also had occasion to decide on a similar legal issue as
in the Moolman’s case, S
upra
.
Tolmay J after reviewing the authorities on the point held at
paragraph II that:-
[11]
“
The
court in Moolman concluded that the fact that the summons was later
issued could not assist the applicant. This is in my view
the correct
approach, an action can only be pending if summons was issued and
served. In the absence of a summons the dispute between
the parties
can at the very best be a matrimonial dispute, which is a far cry
from actual divorce action and pending litigation.”
[17]
Although the Western Cape Division court in LS v GAS
[5]
where Davis J seems to agree with the principle established by the
Moolman’s case, the Learned Judge appeared to have
obviated
possible unprotection of the minor children by proceeding to hear the
matter, in its discretion, but most importantly,
upholding the
court’s inherent power and duty as upper guardian of the all
minor children. Davis J stated at page 13 when
evaluating
Rule 43
that:-
“
If
Rule 43
was not to apply, save for pending litigation, i.e. a divorce
action, the High Court would certainly remain clothed with
jurisdiction
in respect of minor children. It is the upper guardian
of children and it is therefore their interests that are protected by
the
inherent jurisdiction of the court.”
To
that extent, it follows that the Western Cape High Court adopted a
different approach contrary to the Gauteng Division’s
View.
[18] The inherent danger
of a litigant obtaining interim relief in any of the listed
jurisdictional matters in
Rule 43
and just like in instances where a
party obtaining a Rule nisi in any application, and takes no further
steps towards its logical
conclusion, cannot be over emphasised. In
some instances a party could for whatever ill-conceived motive with
no settled
bona fide
intention to commence divorce action,
obtain provisional relief without finalizing the matrimonial cause
initiated. The rule could
also be open to abuse by a capricious
litigant. The rule is therefore designed as a mechanism for a spouse
who seeks relief
pendent lite
in respect of one or more of the
listed matters therein. The issuing of a divorce summons is thus a
prerequisite.
Rule 43
I can re-affirm clearly refers only to pending
matrimonial causes.
[19]
I may state that although no divorce action is proven to be pending,
one of the listed claims is one involving the minor children
whose
rights are guaranteed under
Section 28(2)
[6]
of the Republic of South Africa Constitution Act, 1996. Section 28(2)
of the constitution protects the rights of children and guarantees
the best interests of the minor children. This application is aimed
at that protection. Be that as it may, our rules of court are
useful
guide as to how best to bring applications of this nature to court.
Rule 43(1) is no exception. It has to be strictly adhered
to by
applicants seeking relief thereunder. The applicant was at all
material times assisted by its attorneys Corrie Nel &
Company
when it launched the present application. The position would be
somewhat different if the applicant was legally unrepresented
even
though the adage ignorance of the law (
ignorantia
iuris non excusat
)
would still be applicable.
[20]
The approach adopted in
Bienestein
v Bienenstein
[7]
where
De Villiers AJ stated when dealing with Rule 43(1)(b) at 451D-E
that:-
“
That
has been interpreted to mean not only after summons is issued, but
also in respect of a proposed matrimonial action”
was clearly
incorrect. This is particularly so that the Learned Acting Judge as
he then was, provided no living authority for the
proposition.
[21]
Similarly, the reasoning by Hatting J in Van Tonder v Van Tonder
[8]
,
at p532 that:-
“
Dit
is, op die stukke voor my, duidelik dat applikante se ernstige
voorneme is om met die egskeidingsgeding voort te gaan,
vandaar
die uitreiking van die dagvaarding. Die blote feit dat dit nog nie op
respondent betek is, nie kan nie haar voornemens
ongedaan maak nie.”
This
reasoning should with respect, not be followed. It does not
accurately capture the true purport of Rule 43(1) as I entertain
no
doubt that when the rule was initially interpreted, the old
authorities had in mind of proceedings which had commenced by way
of
service of summons, and not where action is merely contemplated. The
fact that summons for a divorce was issued and served later
cannot
avail an applicant seeking relief. Rule 43(1)(b) in particular refers
to a “contribution towards the costs of a “
pending
matrimonial action
”
[22] On a conspectus of
the facts in this case and the law on the subject,
I
am of the view that the application was ill-conceived and falls to be
dismissed with costs, for the reasons set out below:-
22.1.
The applicant itself in the notice of motion asked specifically for
costs of the application.
22.2.
On more than one occasion, the Respondent’s attorneys made
every effort, both in writing and telephonically, urging
the
applicant not to proceed with its application under Rule 43, but to
no avail. One of the pleas made was for it to withdraw
the intended
application in a letter dated 20.09.2017, a day before this matter
was heard. Again, this eleventh hour appeal was
ignored.
22.3.
In its response, the applicant’s attorneys in an e-mail
dispatched on 20.09.2017, was resolute to proceed with the matter
against the Respondent.
22.4.
The matter was eventually argued as set down on 21.09.2017. The
Respondent had to prepare and appear in court to resist the
application.
22.5.
I, in the premises, see no sound reason why I should not dispense
with the limitations found in Rule 43(7) of the rules of
court. The
costs ought to follow the application.
In
consequence, I make an Order as follows:-
(a). The application is
dismissed with costs.
_________________________
M.G
PHATUDI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
Representations
1.
Attorneys for Applicant
:
Mr. C.
J. Nel
C/o Corrie Nel & Co
Polokwane
2.
Attorneys for Respondent
:
Mr.
J.P. Morton
C/o Thomas Grobler Attorneys
Polokwane
3.
Date
heard
: 21
September 2017
4.
Date
delivered
: 14
November 2017
[1]
Act 38 of
2005
[2]
Act
17 of 2006
[3]
[Case no:
36397/2007]
[2007] ZAGPHC, 15.11.2007
, marked “Reportable”.
[4]
Case
no:23031/2017 Gauteng Division, Pretoria – delivered
29.06.2017
[5]
Case
no.2258/2016, delivered on 26.08.2016(WCD)
[6]
Act 106 of
1996
[7]
1965(4)
449[TPD]
[8]
2000(1) SA
529(0)