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[2008] ZAWCHC 175
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Herman v Von Oppel (9109/2007) [2008] ZAWCHC 175 (17 April 2008)
JUDGMENT
IN
THE SUPREME COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
DATE
:
17
APRIL 2008
CASE
NUMBER
:
9109/2007
In
the matter between:
ANGELIKA
HERMAN
And
ULRICH
OTTO VON OPPEL
JUDGMENT
THRING,
J
:
The
parties in this matter were previously married to each other. On the
1
st
November, 2004 their marriage was dissolved by order of this Court.
There was a consent paper signed by both parties which was
made an
order of Court. Since then it would seem that they have been locked
in litigation against each other almost without respite.
The
present piece of litigation which, as I shall presently show, has
metamorphosed into what, in substance, amounts to several
discrete
pieces of litigation, first saw the light of day on the 9th July,
2007. At that stage it took the form of an application
brought by the
applicant as a matter of urgency against the respondent. The relief
sought in that application related exclusively
to certain consents
and other arrangements necessary in relation to the then proposed
permanent removal to Germany by the applicant
of the three minor
children born of the parties
1
marriage. By agreement between the parties, all the relief sought by
the applicant in that application was granted in this Court
nine days
later
r
on the 18
th
July, 2007 save for the applicant's prayer for costs, which was
ordered to stand over for later determination. Such determination
was
postponed for consideration on the semi-urgent roll on the 19
th
November,
2007. On what possibfe basis the question of costs could have been
regarded as semi-urgent escapes me. However, that was
the order
agreed upon by the parties, which they asked the Court to make, and
which the Court did make.
By
the 19
th
November, 2007 it would seem that the parties had found fresh matter
to quarrel about. This related to the computation of certain
interest
accrued on a capital payment of R750 000 which the applicant had
agreed to make to the respondent in their consent paper
signed
several years ago when they were divorced in November, 2004. On the
20
th
November,
2007, again by agreement between the parties, this new dispute about
interest was postponed for adjudication today, the
17
Eh
April, 2008. Again inexplicably, the matter was accorded priority by
being placed on the semi-urgent roll by agreement of the parties.
All questions of costs were again ordered to stand over for later
determination, presumably today. How either the dispute about
the
calculation of the interest payable or about the costs of the
proceedings could have been regarded as requiring semi-urgent
attention, again escapes me.
On
the 11
th
February, 2008 the goalposts were on the move again. On that day the
applicant delivered a supplementary notice of motion in which
yet
further fresh relief was sought by her. This consisted of a
condictio
mdebiti
pertaining
to an alleged overpayment of some R140 000 to the respondent by the
applicant as interest.
On
the 1
sl
April, 2008 the goalposts were shifted yet again. On that day the
applicant amended her supplementary notice of motion to claim,
in
addition, an order directing the respondent to pay the maintenance
for the children which had been ordered by the Court on the
4
lh
August, 2006 (R8 000 per month per child), not in South African Rand,
but in pounds sterling or in Euros, as the applicant and
the children
had been residing in Germany since last year. The applicant also
claimed in the amendment that, on the basis of her
calculations, the
respondent was in arrears with his maintenance payments to the extent
of some 2 900 Euros, and she claimed this
as well.
The
applicant's latest supporting affidavit is dated the 31
st
March,
2008. On the 10
th
April, 2008 the respondent deposed to a supplementary opposing
affidavit running to some 62 pages without annexures. By yesterday
morning, the 16
th
April,
2008 the applicant had not yet delivered any replying papers.
Yesterday morning an attempt was made by her attorneys to deliver
such papers. In view of their lateness I declined to accept same, and
they were handed in from the Bar this morning by the applicants'
counsel. I have not read them. In breach of the provisions of Court
Notice 10.1 no heads of argument have been delivered to date
by
either side.
The
first thing that is obvious to me is that the matter, such as it is,
is not ripe for hearing. Neither side, it seems to me,
can yet have
had an opportunity to consider properly and to digest the contents of
the voluminous flurry of paper which has been
generated in this
matter over the past two weeks or so, and to formulate considered
arguments for the benefit of the Court. This
is manifest from the
absence of heads of argument. Equally important is the fact that the
Court itself has been deprived of a proper
opportunity to read,
digest and consider the content of the mass of recent documentation
which has been delivered in this matter.
Such consideration is
essential to a proper understanding and ventilation of the issues and
an adequate evaluation of the arguments
to be advanced in Court on
behalf of the parties. That is one of the principal reasons for the
existence of the rules which govern
the periods within which
affidavits and other documents must be delivered. The parties, and
especially the applicant, have ridden
rough-shod over those rules and
treated them as if they did not exist. No doubt they were spurred on
to do so by the unfortunate
fact that this matter had, in my view,
completely unjustifiably, been allocated a place on the semi-urgent
roll.
Genuine
urgency can sometimes call for a departure from strict compliance
with the periods stipulated in the rules. In its absence
they must,
generally speaking, be observed.
Which
brings me to what I perceive to be the second obvious thing about
this case. It is no longer urgent in any way. AH the urgency
went out
of it on the 18
th
July, 2007 when the order relating to removal of the children to
Germany was made. The other disputes which have arisen since then
all
relate to purely commercial matters, in particular to the mere
payment of money. Even the applicant's claim for a
condictlo
indebfti
has
coupled with it a claim for interest thereon at the prescribed rate,
so that, if it succeeds, she will be adequately, and indeed
handsomely, indemnified by
mora
interest
against any pecuniary loss which might be caused by delay.
As
for the applicant's latest claim for a variation in the currency in
which the children's maintenance is to be paid and for allegedly
arrear maintenance, the respondent says in his latest affidavit that
he has at all times to date since the 1
st
September,
2007 complied fully with this Court's order as to maintenance by
paying to the applicant on or about the first day of
each month a sum
in Euros which is equivalent to the sum ordered in South African
Rand, together with bank charges thereon. His
allegations in this
regard are supported by copies of correspondence with his bank which
appear to be authentic. He denies that
he is in arrears with his
payments of maintenance for the children. And this denial, too, is
supported by the bank documentation.
I have no reason to disbelieve
these substantiated statements made by the respondent, as they are,
on oath. The mere fact that
the applicant has a claim for maintenance
which she avers is in arrears is insufficient basis, in my view, for
the importation
of an element of urgency in this matter.
The
absence of urgency is eloquently confirmed, to my mind, by the fact
that, although the applicant and the children have been
living in
Germany since the end of July, 2007, she has waited until the 1
si
April, 2008 to claim this relief.
What
has happened here is that the applicant, having initially launched an
application which was possibly correctly regarded as
urgent at the
time because it concerned the imminent removal overseas of the minor
children, has commandeered the label of semi-urgency
and quite
unjustifiably and without further ado simply attached it to all the
commercial disputes which have subsequently arisen
between the
parties after the possibly genuinely urgent aspect had been entirely
resofved and disposed of by the order of the 18
th
July, 2007.
It
would seem that she is being aided and abetted in this by the
respondent, who agreed to the orders of both the 18
Eh
July, 2007 and the 20
[h
November, 2007.
Such
conduct on the part of litigants is, to my mind, highly reprehensible
and constitutes nothing less than an abuse of the urgent
process of
this Court. Matters are to be dealt with as semi-urgent only if there
is at least some element of urgency in them. As
I have said, it seems
to me to be abundantly clear that there is no aspect of any dispute
presently existing between the parties
on the papers which can
properly be called either urgent or semi-urgent. After the order of
the 18
th
July, 2007 had been made this matter ought not at any stage to have
been allocated a place on the semi-urgent roll. By improperly
securing its position on the semi urgent roll the parties sought
to obtain and did obtain for themselves an unjustifiable
and unfair
advantage at the expense of other litigants whose matters were
genuinely urgent or semi-urgent, but who have been unable
to achieve
as speedy a hearing as their matters may have deserved This result is
highly regrettable.
For
the reasons which I have mentioned, this matter ought not to be on
the roll today. It is accordingly struck off the roll. It
is
expressly ordered that when and if the matter is re-enrolled in the
ordinary course the parties are to comply strictly with
the
requirements of Court Notice 101. As a mark of the Court's
displeasure at the manner of which the parties have abused its
process I order that neither of them shall at any time recover from
the other any costs incurred in this matter from the 19
th
July, 2007 until today, the 17
lh
April, 2008, both dates inclusive.
THRING, J