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[2008] ZAWCHC 324
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S-W v S-W (14211/2008) [2008] ZAWCHC 324 (1 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO.14211/2008
In the matter between:
H
S- W
Applicant
and
H S-W
JUDGMENT: 1 DECEMBER
2008
NDITA: J
INTRODUCTION:
[1] The Applicant in this
matter instituted divorce proceedings against the Respondent under
case number 1694/2008 in this Honourable
Court.
[2] The Respondent filed
a special plea in terms of which the Respondent denies that this
Honourable Court has jurisdiction to entertain
the divorce action on
the basis that both plaintiff, the defendant as well as the minor
child born of the marriage are resident
and/ or domiciled in Namibia
and have so been resident and/or domiciled at all material times.
[3] The divorce
proceedings are pending. On 23 October 2008 the applicant instituted
Rule 43 proceedings wherein she seeks
pendente
lite,
maintenance
for herself and the minor child as well as contribution towards her
legal costs in the main action.
[4] In support of her
application the Applicant states in her founding affidavit that this
court has jurisdiction to adjudicate
on this matter as the applicant
is ordinarily resident within the jurisdiction of this court and has
been ordinarily resident in
South Africa for a period exceeding one
year prior to the institution of the divorce proceedings.
[5] In his opposing
affidavit, the Respondent raised a point
in
limine
in
which he challenges the jurisdiction of this court on the basis that:
1. The Applicant,
Respondent as well as the minor child are resident and /or domiciled
in Namibia and have been resident and/or
domiciled at all material
times.
The Applicant had every
intention of returning to Namibia once she had completed her studies
in Cape Town, and
The Namibian court is
the only competent and appropriate court with the jurisdiction to
decide both the main action and the matters
ancillary thereto,
including Rule 43.
[6] For these reasons the
Respondent postponed dealing with the merits of the Rule 43
application until the issue of jurisdiction
has been adjudicated
upon.
THE ISSUE:
[7] The issue to be
decided is whether this court either on the basis of domicile or
ordinary residence, has of the jurisdiction
to adjudicate on the Rule
43 application.
THE
LAW:
[8] Section 2 of the
Divorce Act governs the question of jurisdiction in divorce
proceedings and provides as follows:
"(1) A court
shall have jurisdiction in a divorce action if the parties are or
either of the parties is—
(a)
domiciled
in the area of jurisdiction of the court on the date on which the
action is instituted; or
(b)
ordinarily
resident in the area of jurisdiction of the court on the said date
and have or has been ordinarily resident in the Republic
for a period
of not less than one year immediately prior to that date.
(2) A court which
has jurisdiction in terms of subsection (1) shall also have
jurisdiction in respect of a claim in reconvention
or a
counter-application in the divorce action concerned.
(3) A court which
has jurisdiction in terms of this section in a case where the parties
are or either of the parties is not domiciled
in the Republic shall
determine any issue in accordance with the law which would have been
had the parties been domiciled in the
area of jurisdiction of the
court concerned on the date on which the divorce action was
instituted."
[9] It is clear from the
above that either domicile or ordinary residence confers jurisdiction
to adjudicate in divorce proceedings.
Either of the two
jurisdictional facts must be present prior to the court adjudicating
on the matter.
[10] In this matter it is
common cause that the parties are domiciled in Namibia. For this
reason I propose not to deal with the
question of domicile in this
matter.
[11] This matter turns on
the determination of whether the plaintiff was ordinarily resident in
the area of this court's jurisdiction
or ordinarily resident in the
Republic of South Africa at the time of the institution of the
divorce proceedings or not.
[12] The Divorce Act does
not define the meaning of ordinary residence. The question of the
meaning of ordinary residence has been
subject of much judicial
debate. In the absence of any statutory definition, the meaning of
the phrase must be found in the exhaustive
judicial interpretation
thereof.
[13] As early as 1917
the court in
Robinson
v commission of Taxes
laid
down the following guidelines in the interpretation of the word
residence;
"There are
however certain considerations which may afford a guide to its
interpretation. In the first place, it is not synonymous
with
domicile. Nor is it necessarily permanent. Nor is it exclusive. But
on the other hand a mere passer-by or casual visitor is
not a
resident, although in a sense he may be said to reside during the
period of his visit. Perhaps the best general description
of what is
imported by residence is that it means a man's home or one of his
homes for the time being; though exactly what period
or what
circumstances constitute home is a point on which it is impossible to
lay down any clearly defined rule. Clearly physical
presence for a
prolonged period would constitute residence. And conversely if
physical presence is entirely wanting even though
an establishment is
maintained for a man's family, residence would as a rule be
negatived: Turnbull v Solicitor of Inland Revenue
(42 Scot. L.R. 15).
Again the maintenance of an establishment coupled with intermittent
or occasional dwelling is sufficient to
constitute residence; see
Inland Revenue v Cadwallader (ibid. 117), where a man who took a
shooting box for three years and lived
there two months in each year
was held to be resident. Attorney-General v Coote (18 RR 692) was a
somewhat similar case. There
the defendant leased a house in London
indefinitely and lived there a few months in every year, and it was
considered that he was
resident.
It appears
therefore that if a man sets up an establishment in a country and
lives there at intervals he is resident in that country;
however many
similar residences he may have elsewhere. And the result is the same
whether the establishment is for a defined period
or whether the
intention expressed or to be implied from the circumstances is to
prolong the arrangement for a period exceeding
the limit (whatever
that may be) of casual visitation. If the case is one of physical
presence without an establishment a similar
test must be applied.
When the intention is to prolong the presence beyond the possible
limits of a casual visit, and that intention
is not abandoned, it
seems to me that that intention would constitute residence, the
intention of course being gleaned from all
the circumstances of the
case."
[14]
In
Ex Parte Minister of Native Affairs
1941
AD 53
Centlivres JA, in dealing with the proper meaning of the word
"residence" in a certain statute, held as follows:
"There have
been a number of decisions under these statutes and certain general
principles have been laid down in construing
the word 'resides'.
Firstly it has been decided that the question to be considered is not
one of domicile but of residence and
that a defendant may have his
domicile at one place and his residence for the time being at another
place. See Langerman v. Alport
(1911, C.P.D. at p. 379) and Chapman
v. D'Alton (1914, E.D.L at p. 276). These decisions seem to me to be
sound. For instance a
citizen of the United States, while still
domiciled there, may for the purposes of his business reside in South
Africa, although
he intends to return to the United States as soon as
he retires from business.
Secondly it is
clear on the authorities that a person can have more than one
residence and should in that case be sued before the
magistrate of
the place where he is residing at the time when the summons is
served. See Norman v. Davis (9 N.L.R. at p. 220),
Ngadi v. Temba (22
S.C. at p. 576), Becker v. Forster (1913, C.P.D. at p. 968) and
Maritz v. Erasmus (1914, C.P.D. at p. 122).
The case of Ngadi v.
Temba (supra) is instructive. That was a case in which the plaintiff
claimed from the defendant his (plaintiff's)
wife or eight head of
cattle, being the number of cattle handed over by plaintiff to
defendant as payment for the wife. It appeared
that the defendant was
a constable at Sterkstroom where he lived with one wife. He had
another wife who lived at his kraal in the
district of Idutywa, where
he paid hut tax for the wife. He used to visit Idutywa. It was held
that the defendant resided at Sterkstroom
and not at Idutywa.
Thirdly it is
inherent in the decision of Solomon v. Wolff
(15. S.C. 152)
that a
person cannot be said to reside at a place which he is temporarily
visiting. In such a case it seems to me that such a person
resides at
his home which he has temporarily left, or as Wessels, J., put it in
Cowie v. Pretoria Municipality (1911, T.P.D. at
p. 632) 'in ordinary
language a person is said to live in a place, even though he may be
temporarily absent on certain occasions
and for certain short
periods.'
2.
Apart
from the above general principles which have been enunciated by the
Courts, the Courts have studiously refrained from attempting
the
impossible task of giving a precise or exhaustive definition of the
word 'resides'. For as Searle, J., correctly said in Hogsett
v. Buys
(1913, C.P.D. at p. 205):-
'lt has never been
laid down what degree of permanence is required in residence; but at
all events it ought to be shown that the
person sought to be brought
within the jurisdiction had some interest in the place where he was
served, in the sense that there
was some good reason for regarding it
as his place of ordinary habitation at the date of service.'
To put the matter
in another way, the question whether a person resides at a particular
place at any given time depends upon all
the circumstances of the
case read in the light of the general principles referred to above."
(At 58-60.)
[15] In Tick v Broude
and another
1973 (1) SA 462
(T) at 469F-G it was said that residence
is a concept which conveys "some sense of stability or
something of a settled nature".
A presence which is merely
fleeting or transient would not satisfy the requirement for
residence; some greater degree of permanence
is necessary.
[16] The principles
enunciated above have recently been followed in
Mayne
v Main
2001 (3) All SA 157
A.
In
this matter, the Respondent had business interests in several
countries including South Africa. His activities in South Africa
increased after 1994, and sometime after that, his presence in the
country increased as a result of his business interests and
a
romantic relationship which he developed here.
[17] In spite of the
fact that he was spending significant periods of time with his
romantic partner in the country, and the fact
that he had set up an
office in the country, the Respondent declared that he had no
intention of making South Africa his home.
He also denied that he
was residing in the country when the summons was served on him. He
alleged that he was at the time residing
in his London flat.
However, that was not borne out by the evidence. The Court rejected
the allegation that Respondent's visits
to South Africa were of a
temporary nature. Having regarded to an all the facts and
circumstances, the inference drawn was that
the Respondent was
residing in South Africa when the summons was served on him. The
court expressed the view that one needs to
adopt a common-sense and
realistic approach when deciding whether, having regard to all the
relevant circumstances, a person
can be said to be residing at a
particular place.
[18] Applying the
principles enunciated above to the facts of the present matter most
of which are common cause, the Applicant,
being born and bred in
South Africa, is a former citizen of this country. She married the
Respondent, a Namibian citizen in September
1987. As appears from
the endorsement in her passport, she retained her right to residence
in the Republic of South Africa. During
October 2005, the Applicant
attended rehabilitation at Stepping Stones in Kommetjie, Western
Cape and thereafter returned to
Namibia in March 2006. In May 2006
she returned to Stepping Stones until November 2006. She then
returned to Namibia for a month.
In December 2006 she returned to
Cape Town by that time she had formed an intention to remaining in
Cape Town or its surrounds,
permanently. In line with her intention
she intention she enrolled for a masters degree at the University of
Cape Town in 2007
and when she finished her course work in 2008 she
applied for over 30 positions in Cape Town and the greater Cape Town
area.
When she was unsuccessful she as a last resort made
applications to Windhoek as the Respondent had ceased paying
maintenance
for her. She has fixed property in Wynberg, within the
area of jurisdiction of the area of jurisdiction of this court.
During
April 2008 she was offered a contract position at the Legal
Assistance Centre in Namibia. In terms of that contract she was
employed
until November 2008. She was willing to take up that
position as she was desperately financially and also taking up that
position
would enable her to reside with her minor son for the
duration of that school year. She rented out her flat in Wynberg
until
April 2009. She signed a lease in respect of accommodation in
Windhoek until October 2008 and arranged for her son to stay with
her. The contract position that she was offered fell through, and
she was duly informed about this when she arrived in Windhoek.
When
she could not find any alternative employment in Windhoek, she
resolved to enrol for pupilage with the Society of Advocates
in
Namibia starting from June 2008 until she wrote her examination in
October 2008lt has been argued on behalf of the Respondent
that the
applicant had no intention of remaining in South Africa but has
through her actions shown every intention to return
to Namibia.
Further that her mere residence of passage cannot found jurisdiction
for divorce and that such residence has to be
bona fide.
[19] I find myself in
disagreement with this argument. The applicant, apart from the fact
that she had retained her residence
status in the country, she owns
immovable property in Wynberg wherein she resided until such time
she accepted a contract position
in Windhoek. As required by the
Divorce Act, she resided in Cape Town for more than a year prior to
the institution of the divorce
proceedings. Contrary to the
Respondent's argument that the Applicant has demonstrated every
intention to return to Namibia,
the most probable inference that can
be drawn from the Applicant's actions was that her desperate
circumstances compelled her
to accept employment in Namibia. In my
view the objective facts inexorably lead to a different conclusion.
This is not the type
of case where, as stated in
Tick
v Broude
and
another
1973 (1) SA 462
(T) at 471D-E, one "is left with a
definite feeling or view that there is no element of stability in
the residence or that
he is liable to move from the Republic without
notice".
[20] A further argument
by the counsel for the Respondent is that even though on the face of
it the Applicant complies with section
2 of the Divorce Act
regarding residence, she fails to comply with the principles of
private international law which require
that the residence is "bona
fide..."
[21] On a proper reading
of the international authorities, "bona fide residence"
means no more than residence resorted
to for the mere purpose of
getting divorce in a convenient country. See
Indyka
v Indyka
1967 (2) All ER 689(HL)
, Welsby v Welsby
[1970] 2 All ER
467
The
actual decision in
Indyka
v Indyka
was
that a divorce could be recognised by our courts if the petitioner
had a real and substantial connection with the country
whose court
granted the divorce. But in
Welsby
v Welsby (supra),
substantial
period of actual residence and the fact that such residence appeared
to be more or less permanent was sufficient to
found jurisdiction.
In that matter the parties were married in 1957 and lived together
in England until 1964. The wife then went
to America, and, when she
had been living in Washington, District of Columbia for about two
and a half years, she was granted
a decree of divorce in the court
of the District of Columbia on the jurisdictional ground that she
had been resident there for
more than one year. In his judgment,
Cairns J. said
"I
am satisfied that in this case the wife had made her home in the
United States. She could not, of course, during her marriage
acquire
a domicil there because the English rules relating to domicil do not
enable a wife during her marriage to have a domicil
separate from
that of her husband. But she was clearly something much more than a
mere sojourner there. This is not in any sense
the case of a person
who has gone to a country, where divorce is easy, for the purpose of
obtaining a divorce."
[22]
In
line with our South African courts, the international courts draw a
distinction between a person who makes his home in a country
and a
person who is a mere sojourner there. What is clear from the court's
decisions is that it has never been a requirement
that there must be
an intention not to leave the place of residence or ordinary
residence.
[23] In
Macrae
v Macrae,
[1949]
2 All ER 34
where
the question was whether a husband was ordinarily resident in
Scotland so as to oust the jurisdiction of justices to entertain
a
summons for maintenance of his wife, Somervell LJ said at page 37
"Ordinary
residence is a thing which can be changed in a day. A man is
ordinarily resident in one place up till a particular
day. He then
cuts the connection he has with that place—in this case he
left his wife; in another case he might have disposed
of his
house—and makes arrangements to have his home somewhere else.
Where
there are indications that the place to which he moves is the place
which he intends to make his home for, at any rate,
an indefinite
period, as from that date he is ordinarily resident at that place."
[24] Having regard to
all the circumstances the most probable inference to be drawn is
that the Applicant made Cape Town his home
and as such Cape Town was
the Applicant's place of ordinary residence" on 30 January 2008
and, accordingly, she was residing
there as envisaged by section 2(1
)(b) of the
Divorce Act 70 of 1979
. The mere fact that she was ready
to take up employment in Namibia after so many unsuccessful attempts
of getting employment
in Cape Town does not mean that she no longer
has the intention of making Cape Town her home. It follows that this
court has
jurisdiction to entertain the appellant's action. In the
result the point in limine cannot succeed.
[25] In his replying
affidavit the Respondent did not deal with the merits of the
Rule 43
application but simply dealt extensively with the jurisdictional
point raised in limine and has now sought leave to deal with
the
merits.
[26] In view of the fact
that the Respondent should have known or anticipated that in the
event of him not succeeding on the jurisdictional
point raised in
limine, this court would deal with the merits of the application. He
chose not to deal with the merits and must
have known that this
would delay dealing with the application and as such caused
unreasonable hardship to the applicant. I am
of the view that the
hearing of this application should not be delayed further.
[27] In the result the
following order is made:
1. The point
in
limine
is
dismissed with costs.
2. The
Respondent is granted leave to file his response to the merits of
the
Rule 43
application no later than 8 December 2008.
3. This matter is
postponed until 10 December 2008 at 10h00 for hearing.
NDITA,
J