About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 101
|
|
P v P (A201/2013) [2014] ZAFSHC 101 (19 June 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
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE HIGH COURT, BLOEMFONTEIN)
CASE
NO.: A201/2013
Date
heard: 16-04-2014
Date
delivered: 19-06-2014
In the matter
between:
N[...] W[...]
P[...]
...................................................................................................................................
Appellant
And
M[...] H[...]
P[...]
.................................................................................................................................
Respondent
CORAM: WILLIAMS J
et MBHELE AJ:
JUDGMENT
WILLIAMS J:
1. This is an appeal
which lies against the refusal of the Regional Court, Bloemfontein,
to grant an order of forfeiture of the
benefits in a divorce action.
Preliminary to the appeal there is an application for condonation for
the late prosecution of the
appeal and the late filing of the-record.
2.
Judgment was delivered in the court a
quo
on
7 September 2012. The appeal was noted on 26 October 2012. In terms
of Uniform Rule of Court 50(4) an applicant shall within
40 days of
noting the appeal apply to the registrar in writing for the
assignment of a date for the hearing of the appeal. The
appeal shall
then be deemed to have been duly prosecuted in terms of Rule
50(4)(c). Simultaneous with the lodging of the application
for the
date for the hearing of the appeal, the applicant shall in terms of
Rule 50(7)(a) lodge with the registrar two copies of
the record.
3. The appellant who
is an attorney by profession, attended to the prosecution of the
appeal personally and only applied for a date
for the hearing of the
appeal and filed the record on 19 September 2013, almost one year
after the noting of the appeal. An appeal
which is not prosecuted
within 60 days of the noting of such an appeal is deemed in terms of
Rule 50(1) to have lapsed.
4. The appellant
blames the delay in prosecuting the appeal on problems encountered in
obtaining the transcribed record and his
attempts thereafter at
correcting the record. The affidavits of the appellant and his
candidate attorney in support of the application
for condonation set
out the course of events as follows:
4.1 On 31 October
2012 and on the instruction of the appellant, the candidate attorney
personally attended on the offices of Krino
Transcribers to request a
copy of the transcribed record of the proceedings. He was informed
that it still needed to be transcribed.
4.2 On 15 February
2013, three and a half months later, after being informed that the
record was ready, the candidate attorney discovered
that only the
judgment had been transcribed. He again requested the whole record of
the proceedings.
4.3 On 4 March 2013,
the candidate attorney was informed by an employee of the
transcribers that the record was available, but again
only received
the judgment.
4.4
After several (undetailed) further visits to the transcribers the
candidate attorney was told to speak to
“
Suzette”
from
the magistrates court who informed him subsequently that the
transcribed record would only be handed over upon payment of R1000,
00 security for the costs of appeal.
4.5 Security was
given on 13 March 2013 whereafter, despite personally attending on
the offices of the trancribers on several (undetailed)
occasions
thereafter, the candidate attorney only received the transcribed
record on 12 June 2013.
4.6 The appellant,
who was an acting Judge in the Free State High Court at the time,
only received the record on his return to his
attorney’s
practice on 1 July 2013.
4.7 From 1 July 2013
the appellant attempted to have the record corrected until he was
advised by counsel to lodge the record as
is, which he then did on 19
September 2013.
5.
The account in paragraph 4 above is the extent of the explanation for
what can only be termed as a flagrant breach of the rules
relating to
the noting and prosecuting of appeals. No explanation is given of any
attempts made to obtain the record from the transcribers
within the
60 days allowed for the prosecution of appeals, other than the
initial request for the transcription. One can therefore
safely
assume that absolutely no effort was made during this time to obtain
the record. In
Unitrans
Fuel and Chemical (Pty) Ltd v Dove-Co Carriers CC 2010(5) SA
340(GSJ),
a
matter in which delays in the prosecution of an appeal were also
attributed to transcribers, the following was stated at 344 F-G
thereof;
“
[28]
Applicants for condonation in our High Courts must take note of two
fundamentally important issues which arise from this judgment,
i.e.:
[28.1]The entire
period of the delay has to be explained thoroughly and the longer the
period of delay, does not detract from this
fact; and
[28.2]if
the reason for the delay is the non-cooperation by the contracted
transcribers, then substantial delays such as the one
herein will not
constitute a sufficient reason/explanation for the delay, without
proof of attempts to compel the transcribers
to provide the
transcripts.
”
6. The appellant, as
an experienced attorney, could furthermore not have been unaware of
the fact that security for the costs of
the appeal had to be paid.
Magistrates Court Rule 51(4) specifically provides that:
“
An
appeal shall be noted by the delivery of notice, and, unless the
court of appeal shall otherwise order, by giving security for
the
respondent’s costs of appeal to the amount of R1000:
The
noting of an appeal is not complete until both the delivery of the
notice of appeal and giving of security have occurred. See
O’Sullivan
v Mantel 1981(1) SA 664(W) at 668 B-C.
Therefor,
even in noting the appeal properly there was an inordinate and
unexplained delay of about six months.
7.
The delay of a further three months after eventually receiving the
record is also woefully inadequately explained. There is no
reason
why the appellant could not have attended to his appeal while he was
an acting judge. The explanation of attempting to correct
the record
is vague and does not account for the two and a half months wasted
during this process. Condonation for non-compliance
with the Rules is
not a mere formality. In
Uitenhage
Transitional Local Council v South African Revenue Service 2004(1) SA
292 (SCA)
the
following is stated at 297 l-J thereof:
“
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court.Condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.
”
8.
Moreover in his application for condonation the appellant failed to
deal at all with the prospects of success on appeal, which
is an
important consideration in deciding whether, even though the
explanation for the delay is inadequate, the prospects of success
are
such that it would be in the interests of justice to grant
condonation. We have however, as is the practice, heard argument
on
the merits and it is therefore appropriate to deal with it
notwithstanding the attitude expressed in
LTA
Construction Ltd v Minister of Public Works and Land Affairs
1994(1)
SA 153 (AD)
at
157E, where the following is stated:
“
In
cases of flagrant breaches of the Rules, especially where there is no
acceptable explanation, the indulgence of condonation may
be refused
whatever the merits of the appeal are
;
and this applies
even where the blame lies solely with the attorney. ”
9.
The respondent, who was the plaintiff in the court
a
quo,
instituted
action against the appellant for a decree of divorce on the grounds
of an irretrievable breakdown of the marriage. She
claimed
inter
alia
a
division of the joint estate. The appellant defended the action,
admitted that the marriage had broken down irretrievably and
in his
counterclaim, apart from claiming a divorce, claimed
inter
alia
an
order for forfeiture of the benefits of the marriage in community of
property. After hearing the evidence of both parties, the
court
a
quo
at
the end of the trial granted an order of divorce and the division of
the joint estate. The appeal is directed solely at the court
a
quo’s
refusal
to grant a forfeiture order.
10. The parties were
married in community of property on 5 December 1991. Three children
were born of the marriage of whom two had
already at the time of the
divorce obtained majority.
11. At the time of
the marriage the appellant was a candidate attorney who after being
admitted practised as an attorney throughout
the marriage. The
respondent completed matric and during the early stages of the
marriage obtained a certificate in home nursing.
It does not appear
as if she had ever been employed as a home nurse though. The only
noteworthy employment she had during the course
of the marriage was
for six months, when she was employed by Spoornet to destroy old
files. Her evidence was that she from time
to time cleaned houses to
earn some money and from the proceeds started an informal small loan
business. This business appears
to have been started after the
parties separated.
12. Both parties
conducted extra-marital affairs during the marriage. The respondent’s
evidence was also that the appellant
physically abused her during the
course of the marriage and at times chased her out of the common
home. The final straw was during
January 2010 when the appellant
kicked her out of the house at night while she was only wearing her
night clothes. The parties
had been separated ever since.
13. The appellant
based his claim for forfeiture on the conduct of the respondent i.e.
that she conducted an extra-marital affair
and left the common home
for long periods without reason, and more specifically the fact that
she refused to take up employment
as a result of which she failed to
contribute towards the building of the joint estate.
14. The appellant’s
claim for forfeiture was not directed at a specific benefit but was a
general claim for forfeiture of
the benefits of the marriage in
community of property. The only assets the appellant referred to in
his evidence were a house in
Pahameng which was purchased for R30
000,00 and a used Kia motor vehicle of which the purchase price in
2006 was about R120 000,00.
The house mentioned was bought as an
investment to which the appellant contributed R10 000,00 and his
mother R20 000,00. According
to the appellant his mother did not want
the property registered in her name since she already owned two RDP
houses. The result
was that the property was registered in the names
of the parties by virtue of them being married in community of
property and not
because of any financial contribution by the
respondent.
15.
The appellant who conducted his own case in the court
a
quo,
emphasised
very strongly during his evidence that the most important factor
underlying his claim for forfeiture was the fact that
the respondent
had made no meaningful contribution to the joint estate. He obviously
had regard solely to financial contributions
and ignored the
substantial contribution made by the respondent over 20 years of
marriage in terms of raising children and housekeeping.
16. Section 9(1) of
the Divorce Act 70 of 1979 (the Act) provides as follows
“
When
a decree of divorce is granted on the ground of the irretrievable
break-down of a marriage the court may make an order that
the
patrimonial benefits of the marriage be forfeited by one party in
favour of the other, either wholly or in part, if the court,
having
regard to the duration of the marriage, the circumstances which gave
rise to the break-down thereof and any substantial
misconduct on the
part of either of the parties, is satisfied that, if the order for
forfeiture is not made, the one party will
in relation to the other
be unduly benefited. ’’
17.
In
Wijker v Wijker
1993(4) SA 720(AD)
it
was stated that it is obvious from the wording of s9(1) that the
first step in determining whether or not there should be a forfeiture
is determine whether or not the party against whom the order is
sought will in fact be benefited.' Once that is established the
second step is to determine whether or not that party will in
relation to the other be unduly benefited if an order of forfeiture
is not made. Then only do the factors such as the duration of the
marriage, circumstances leading to the break-down and substantial
misconduct come into play.
18.
The court a
quo,
having
regard to the approach set out in the
Wijker
matter,
found that the appellant’s counterclaim and evidence failed to
establish the specific benefits of the marriage in
community of
property and that it was therefore not necessary to proceed to the
second step of determining whether or not the respondent
would be
unduly benefited. As a result the court a
quo
did
not consider the evidence of the alleged misconduct of the
respondent. In my view the court a
quo
cannot
be faulted in this regard. See also
Engelbrecht
v Engelbrecht 1989(1) SA 597 (CPA) at 601H.
19. The appellant
who bears the onus to prove the nature and extent of the benefits
failed to place evidence of the value of the
immovable property at
the time of the divorce before court, which could of course also be
subject to a claim by his mother thereto.
He has likewise failed to
place evidence of the value of the vehicle at the time of the divorce
before court. The appellant therefor,
has failed to overcome the
first hurdle of proving a benefit to the respondent and cannot
succeed with a claim for forfeiture of
the benefits..
20.
Mr Williams who appeared for the appellant in the appeal, urged us to
consider granting absolution on the appellant’s
counterclaim
for forfeiture instead of dismissing the claim, as was the effect of
the order in
MG v
RG 2012(2) SA 461 (KZP),
in
order to allow the appellant the opportunity to place the necessary
evidence before court. I am of the view however that there
can be no
justification for such an approach
in
casu.
The
MG v RG
matter
related to an unopposed divorce and issues of prejudice towards the
respondent did not arise.
In
casu
the
divorce action was instituted during May 2011, some three years ago.
The finalisation of the issues between the parties has
already been
unreasonably delayed through the dilatory conduct of the appellant in
the prosecution of the appeal. It has become
imperative that this
matter be finalised.
21.
I am of the view in any event that even if the appellant had placed
sufficient evidence before the court a
quo
to
prove a benefit, he had failed to show that the respondent would be
unduly
benefited
should an order for forfeiture not be granted. The parties had been
married for 20 years. The evidence relating to the
misconduct of the
respondent, in that she on several occasions left the common home for
long periods of time and had conducted
an adulterous relationship is
countered by the evidence of the respondent that the appellant
physically abused her, which caused
her tojeave the common home on a
few occasions and her evidence that he also had extra-marital
affairs. The finger of blame for
the breakdown of the marriage can
therefore not be pointed at one particular party on the evidence
recorded. The respondent’s
alleged reluctance to work can also
not be considered as substantial misconduct as envisaged by s(9)(1)
of the Act. See
Matyila
v Matyila 1987(3) SA 230 (WLD) at 236 I.
22. In my view the
appeal cannot succeed. The application for condonation should
therefore be refused.
The following
order is made:
The application
for condonation is refused with costs.
C C WILLIAMS
JUDGE
I concur
N M MBHELE
ACTING JUDGE
For Appellant: Adv.
A Williams
P[...] & Partners
For Respondent: Adv.
W.A. Van Aswegen
Mcintyre & Van
Der Post