About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 70
|
|
B.A.M v A.M (21530/2009) [2014] ZAGPPHC 70 (28 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 21530/2009
DATE:
28 FEBRUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
M[…],
B[…]
A[…]
[…]
……………………………………………………………………
Applicant
And
M[…],
A[…]
………………………………………………………………………….....
Respondent
JUDGMENT
MAKGOKA. J:
[1]
This
is an application in terms of rule 43(6) of the uniform rules of
court 9 (the uniform rules). On 4 March 2011, this court,
in terms of
rule 43, ordered the respondent to pay maintenance in respect of the
applicant, in the amount of R6000 per month, pending
the finalisation
of a divorce action between the parties.
[2]
On
28 November 2012 the divorce action was finalised, and a decree of
divorce was granted, together with ancillary orders concerning
the
division of the parties’ joint estate. The parties could,
however, not reach agreement on the applicant’s entitlement
to
maintenance, post the divorce. As a result, the court (Molefe AJ)
made made an order extending the rule 43 order referred to
in para
[1] above, beyond the divorce action. The relevant part of the order
reads:
‘2.2 The issue of the defendant’s
entitlement to maintenance and the calculation thereof, if
applicable, was postponed
sine die;
2.3 The applicant was to deliver a rule 43(6)
application within three calendar months of the granting of order,
provided that:
2.3.1
Should
the defendant not deliver such application within the stipulated
period, the current Rule 43 order would lapse;
2.3.2
by
postponing the issue of maintenance, the plaintiff, despite the fact
that he will continue making payments to the defendant in
respect of
the current rule 43 order, does not conceive that the defendant.’
[3]
It
is
common cause that the rule 43(6)
application was not brought within three calendar months of the
granting of the order, but served
only on 6 March 2013. The
respondent did not file an answering affidavit, but has instead,
filed
two notices in terms of
rule
6(5)(d)(iii)
of
the uniform rules, which
provides:
‘(d) Any person opposing the grant of an
order sought in the notice of motion shall ...
if he
intends to raise any question of law only, he shall deliver notice
of his intention to do so within the time stated in the
proceedings
sub-paragraph setting forth such question’.
[4]
The first of the notices was delivered
on 18 March 2013, in which the respondent gave his intention to
argue a preliminary point
and the dismissal of the application on
the basis that the applicant’s entitlement to maintenance had
lapsed in terms of
me court order as the rule 43(6) had not been
served within the time stipulated in the court order of 28 November
2012.
[5]
On
9 May 2013, the respondent delivered another notice in terms of rule
6(5) which reads:
“
The
affidavit deposed to by the applicant in support of the rule 43(6)
application does not comply with the requirements of a sworn
affidavit in terms of the Commissioners of Oath’s Act, Act 16
of 1963, in that:
1.
The
purported affidavit was not deposed to by the applicant; and
2.
The
purported affidavit was not commissioned in front of a Commissioner
of Oaths; and
3.
The
last page of the purported affidavit has been tampered with, and is
merely an altered duplication of a previous affidavit deposed
to by
the applicant. A copy of the previous affidavit is attached hereto as
annexure ‘A’.
[6]
On
5 April 2013 the respondent set the rule 46(3) application down for
10 May 2013, on which occasion the matter was postponed sine
die. On
1 October 2013, the respondent again set the matter down for hearing
on 8 November 2013. This is how the matter came before
me.
[7]
In
his heads of argument, counsel for the respondent argued, with
reference to the point raised in the second notice in terms of
rule
6(5), that the contention (that the applicant could not have deposed
to the founding affidavit) is supported by an expert
report by a
handwriting expert, who had concluded that it is impossible that the
appoint could have deposed to the said affidavit.
The contention
therefore is that in view of the findings of the handwriting expert,
there was no proper affidavit before the court
and the respondent was
entitled to a dismissal of the application.
[8]
This
point can summarily be disposed of on two simple bases. First, and
primarily, the question whether the founding affidavit was
signed by
the applicant or not, or whether such affidavit was properly
commissioned or not, is not ‘a question of law’
as
envisaged in rule 6(5)(d). It is a factual one on which evidence has
to led to prove it. It can therefore not be raised under
the guise of
that sub-rule. Second, the expert report which the respondent relies
on, is not before court. The respondent elected
not to file an
answering affidavit. Had he done so, it would have been competent for
him to attach that report, together with an
affidavit by the expert
confirming its correctness.
[9]
Rule
6(5)(d)(iii) envisages that a point raised in terms thereof, would be
determined without reference to evidence extraneous to
the founding
affidavit. The alleged fraudulent signing of the founding affidavit
does not appear ex facie the affidavit itself,
which is the only
document before court. I therefore agree with Mr Cohen, counsel for
the applicant, that the respondent’s
reliance on rule
6(5)(d)(iii) is incompetent.
[10]
Mr
Cohen further submitted that it is unnecessary for the court to
determine either the rule 43(6) application or the rule 6(5)(d)
application. Ex lege, the rule 43(6) application has lapsed because
the underlying order made in terms of rule 43 has lapsed by|
virtue
of the court order. The court order made provision, ex lege, for the
lapsing of|the rule 43. The issue, argued counsel,
was therefore
extant prior to when the rule 6^5)(d)(iii) notice was raised. Counsel
submitted that it was unnecessary for the respondent
to set the
matter down, which, counsel submitted, amounted to brutum fulmen, as
there was nothing for the court to determine. He
contended that the
respondent should, in the circumstances, be liable for the costs of
the application.
[11]I
agree in part with these submissions, in particular that in essence,
the only remaining issue is costs. The applicant has not enrolled
the
matter within the time frame allowed in the court order, and once the
date passed without such enrolment, the order lapsed.
I agree with Mr
Cohen's submission in this regard. Where I part ways with counsel, is
where he submits, in essence, that the service
of the application
after the due date, has no effect and amounted to a brutum fulmen. I
do not agree.
[12]
The
very fact of the service of the application, even out of the
stipulated time period, demonstrated the applicant’s intention
to proceed with it. It is to be borne in mind that the lapsing of the
order is not necessarily fatal. It can be revived on proper
application to that effect. To my mind, the situation is analogous to
the process of prosecuting an appeal in terms of rule 49(6)(b)
of the
uniform rules, in terms of which a superior court to which an appeal
is made may, on application and upon good cause shown,
reinstate an
appeal or cross-appeal which has lapsed.
[13]
To
sum up, once the application was served, albeit out of time, the
respondent was entitled to assume that the applicant intended
to
proceed with it, somehow. If it was not the intention of the
applicant to proceed with the application, why serve it in the
first
place? If the intention not to proceed with the application was
formed after it was served, the applicant could simply have
given
notice of her withdrawal of the application. Ordinarily, she would
have had to tender the wasted costs in that event. She
did not, and
as a result, the application is effectively pending. But it cannot
remain pending in perpetuity. There has to be finality.
[14]
It
is not in the interest of justice that a matter is left to hang
indeterminate. Its finality is important, not only to the parties
themselves, but for the administration of
justice.
By way of illustration, at a practical level, how is the registrar of
this court supposed to deal with the file? Does he
keep it ‘alive’
in the system or store it to the archives? There has to be an
authoritative pronouncement on the issue,
and it is only this court
that can do so.
[15]
I therefore conclude that in the circumstances, the respondent
properly exercise his right provided in rule 6(5)(f) of the uniform
rules of court, in terms of which
he
is entitled to apply for the
enrolment of the matter, in the event the applicant fails to do so
within a stated period. The applicant
has to pay the costs.
[16] In the result the order that I make is the
following:
1.
The
applicant’s rule 43(6) order made on 4 March 2011 by this court
has lapsed, in terms of paragraph 3 of the order of this
court issued
on 28 November 2012;
2.
The
applicant is ordered to pay the costs occasioned by her service of
her rul^ 43(6) application.
TM MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 8 NOVEMBER 2013
JUDGMENT DELIVERED: 28 FEBRUARY 2014
FOR
THE APPLICANT: ADV SS COHEN
INSTRUCTED
BY : LOUIS WEINSTEIN ATTORNEYS,
JOHANNESBURG,
and
SAVAGE JOOSTE & ADAMS INC.,
PRETORIA.
FOR THE RESPONDENT:ADV A VILJOEN
INSTRUCTED BY: LINDIE LOMBAARD INC.,
JOHANNESBURG,
SURITA
MARAIS ATTORNEYS, PRETORIA.