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[2010] ZAFSHC 4
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W v W (5852/2009) [2010] ZAFSHC 4 (28 January 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Application No.:
5852/2009
In the case between:
H F W
Applicant
and
E C W
Respondent
JUDGMENT:
LEKALE, AJ
_______________________________________________________
HEARD ON:
21 JANUARY 2010
_______________________________________________________
DELIVERED ON:
28
JANUARY 2010
_______________________________________________________
[1] This is an
application for payment of maintenance
pendente
lite
and contribution towards costs in terms of Rule 43 of the Uniform
Rules of Court (“the Rules”).
[2] The respondent
instituted divorce proceedings against the applicant under case
number 1667/2008 which action is still pending
before this court.
[3] Subsequent to the
aforegoing the applicant secured a Rule 43 order for payment of
maintenance pending litigation in the amount
of R900,00 per month as
well as contribution towards the costs of the action in the total
amount of R1 000,00 on the 26 June 2008.
[4] On the 26
th
November 2009 the applicant launched another Rule 43 application for
payment of maintenance
pendente
lite
in
the amount of R7 600,00 per month and contribution towards the costs
in the amount of R10 500,00.
[5] In opposing the
application the respondent,
inter
alia
,
raised two points
in
limine
to the effect that the applicant lacks
locus
standi in judicio
in so far as he and his doctors hold that he, at times, gets
delirious due to the medication he takes and that the application
amounts to an abuse of the court process in that it seeks to revisit
the original order instead of asking for variation of the
same on the
basis of material change to circumstances as contemplated by Rule
43(6) of the Rules.
[6] At the hearing of the
application on the 21 January 2010 Mr Greyling, counsel for the
respondent, argued for either the dismissal
of the application with
costs on the basis of either of the aforegoing preliminary points or
the postponement of the matter in
order to allow the applicant an
opportunity to furnish medical evidence proving that he is of sound
mind.
[7] On his part, Mr
Bruwer, attorney for the applicant, effectively contended that:
7.1 reference to lack of
legal capacity in the applicant’s papers relates to contractual
capacity with regard to a signed
Deed of Settlement in the divorce
action which the applicant intends to have rescinded;
7.2 he simply neglected
to mention Rule 43(6) in the application and that the application is,
in fact, a section 43(6) variation
application;
7.3 it the application is
dismissed it would be appropriate for an order for payment of costs
to be made;
7.4 if the court deems it
appropriate it may postpone the matter in order to allow the
applicant to change the heading of the application
by referring to
Rule 43(6).
[8] I have no difficulty
in dismissing the point challenging the applicant’s
locus
standi
as being bad both in law and on the facts on,
inter
alia
,
the basis that:
8.1 a proper reading of
the papers, inclusive of medical certificates attached to the
applicant’s supporting affidavit, does
not suggest any mental
disorder or unsound mind rendering him legally incapable to litigate
as at the date of the signing of the
said affidavit;
8.2 generally persons are
presumed sane until the contrary is proved and the onus of proving
the same lies on the party alleging
it. (See
ESTATE
REHNE v REHNE
1930 OPD 80
at 91 - 92 and
DE
VILLIERS v ESPACH
1958 (3) SA 91
(T) at 96A.)
8.3 there was, further,
nothing before me to suggest that, even if it is correct that he
sometimes gets delirium, he suffered from
the same at the material
time.
[9] Mr Bruwer effectively
invited the court to look at the substance of the application and not
its form in order to determine whether
or not it was a Rule 43(6)
application. On the other hand Mr Greyling contended that the sub –
rule in question should be
strictly applied and only applies where
there has been a material change in the circumstances of the
applicant party.
[10] A careful perusal of
the application shows that both its form and substance are consistent
with and supportive of a Rule 43(1)
application as opposed to a Rule
43(6) application insofar as:
10.1 no changed
circumstances are either averred or set out in the application as
correctly submitted for the respondent;
10.2 the most plausible
inference that may be drawn from the application as a whole,
inclusive of its form, is that it was meant
as a new and independent
Rule 43(1) application;
10.3 the circumstances
that Mr Bruwer relied on as having materially changed were,
inter
alia
,
that the applicant wishes to rescind the Deed of Settlement in
respect of the divorce action and, thus, required contribution
towards costs in order to launch such an application. This factor,
in my view, is irrelevant to a Rule 43 application insofar
as the
costs contemplated by the rule are those of a pending matrimonial
action and not any other action. Let alone the costs
of an
application of whatever nature. (Compare
MAAS
v MAAS
1993 (3) SA 885
(O) at 888J – 889B.)
[11] Mr Bruwer, further,
contended that the respondent was not in compliance with the original
maintenance order. Rule 43 proceedings
are, however, not designed
and intended to address non-compliance with orders. It, therefore,
does not serve the interests of
an aggrieved party to approach the
court in terms of Rule 43 for a parallel maintenance and/or costs
contribution order to be made
where the original order is being
frustrated or ignored. Other legal avenues designed to ensure
compliance with court orders have
to be pursued in such
circumstances.
[12] Mr Greyling
submitted that the applicant was guilty of abuse of the relevant
court process and asked for an order for payment
of costs. Mr Bruwer
had no qualms with any such order being made in the event of the
application being dismissed.
[13] Mr Greyling
contended that the applicant was,in effect, inviting the court to
revisit and review the original order. I am,
however, of the view
that what the applicant is, effectively, seeking to do is to secure
another order, which is generally the
same as the original order, on
generally the same grounds with the only difference being the amounts
prayed for. In other words,
the applicant desires to have another
maintenance and contribution order issued in the face of the existing
one with the result
that the two orders are to run and operate side
by side or concurrently.
[14] Such a result is, in
my view, neither legally permissible nor judicious. It is the
situation targetted, as not being in the
interest of finality and
public policy, by the
exceptio
res judicata
insofar as such a defence
“…
was introduced
with the endeavour of putting a limit to needless litigation and in
order to prevent the recapitulation of the same
thing in dispute in
diverse actions, with the concomitant deleterious effect of
conflicting and contradictory decisions”
(see
BAFOKENG
TRIBE v IMPALA PLATINUM LTD
1999 (3) SA 517
9(B) AT 566 D-E and
KOMMISSARIS
VAN BINNELANDSE INKOMSTE
v
ABSA BANK BPK
1995 (1) SA 653
(A))
[15] I am satisfied, as
was held in
GREENSPAN
v GREENSPAN
2001 (4) SA 330
(CPD) at 336B – C, that:
“…
if the [present]
application is not an abuse of the Court process, it is one which, at
the very least, is so unreasonable as not
to justify me exercising my
discretion in favour of the applicant.”
[16] In the light of the
aforegoing it is, in my view, not appropriate to postpone the
proceedings as such an exercise would be
an essay in futility. In
this regard it should be recalled that the onus of proving that a
party is not of sound mind is on the
one alleging the same while a
mere amendment of the Notice of the application to reflect that the
application is being brought
in terms of Rule 43 (6) would not change
its substance.
[17]
ORDER:
In
the result, the application is dismissed with costs.
_______________
L. J. LEKALE, AJ
On
behalf of applicant: Mnr M. Bruwer
Instructed
by
Hugo
& Bruwer Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv Greyling
Instructed
by:
Steenkamp,
De Villiers & Coetzee Inc.
BLOEMFONTEIN
/em