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[2024] ZAECELLC 18
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A.T (born M) v S.C.T and Another (EL766/2024) [2024] ZAECELLC 18 (10 May 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case
No:EL766/2024
In the
matter between:
A[...]
T[...]
Applicant
(BORN
M[...])
And
S[...]
C[...] T[...]
1
st
Respondent
OLD
MUTUAL SUPERFUND PENSION FUND
2
nd
Respondent
(REGISTRATION
NUMBER:[…])
JUDGMENT
Zono
AJ
Introduction
[1]
The applicant approached this court on urgent basis on 03
rd
May 2024. The enrolment of this matter for hearing on urgent basis
was a sequel to a directive dated 30
th
April 2024. The
directions for urgent matter issued by the learned Judge are as
follows:
“
1.
The matter may be enrolled on the basis of urgency.
2.
The first respondent must be served per sheriff. The second
respondent can be served
per email.
3.
The matter may be heard on Friday, 3
rd
May
2024 at 09:30.”
[2]
In breach of the directions given by the learned Judge, papers were
not served by
the sheriff. They were not even served upon the first
respondent, but on the attorneys who were at the time not
representing the
first respondent. It appears that the application
papers were served upon the attorneys on behalf of the first
respondent per email
on 02
nd
May 2024 at about 10:54. No
papers were left in the court file. Application papers were only
brought back into the court file after
09:30 am on 03
rd
May 2024, which was the scheduled time for hearing of the matter. No
reasonable explanation was given by the applicant about the
conduct
of only bringing the papers back into court file after the scheduled
time for hearing, and also a conduct of putting the
court under such
inconvenience of not timeously preparing for the hearing of the
matter. The applicant’s representatives
even suggested that
they may be heard even without having read the papers. That
submission was curious. For the sake of innocent
litigants, the
matter was rescheduled to be heard at 11:30 am on 03
rd
May
2024. This demonstrates the tardy manner in which this application
was handled by the applicant.
[3]
The applicant seeks relief in her notice of motion that is couched in
the following
terms:
“
1.
That the forms and service provided for in the Rules are dispensed
with and that the matter is disposed of as one
of urgency at the time
and place set out herein, in terms of Rule 6(12) of the Uniform Rules
of court.
2.
That Rule Nisi be hereby issued, calling upon the respondents or any
interested party to show cause, if any
on 21
st
May 2024
(the return date) or so soon thereafter as the matter may be heard as
to why the following order should not be made final:
2.1 The first
respondent is interdicted and prevented from accessing or utilizing
or dealing with the applicant’s 50%
share of the pension fund
of the first respondent, pending the finalization of the litigation
instituted at Makhanda High Court,
under case Number
CA 67/2024.
2.2 The second
respondent is directed to safeguard, preserve and or ensure the
applicant’s 50% share of the pension
interests, pending the
finalization of the litigation instituted at Makhanda High Court
under Case Number
CA67/2024.
3.
That 2.1 and 2.2 shall operate as an interim interdict with immediate
effect,
pending the finalization of this matter.
4.
That the applicant is granted leave to serve all papers, notices, or
process
in those proceedings via email to the second respondent.
5.
Costs of suit.
6.
Any further and/or alternative remedy that may be granted, as may be
necessary”.
[4]
The first respondent vehemently opposes the matter. He has done so by
delivering his
notice of opposition and answering affidavit. The
first respondent, besides his opposition on merits, raises a point in
limine
relating to urgency of the matter.
Urgency
[5]
The starting point under this topic should be the provisions of Rule
6(12)(b) of the
Uniform Rules of Court, wording of which is as
follows:
“
(
b)
In every affidavit filed in support of any application under
paragraph (a) of this subrule, the applicant must set forth
explicitly
the circumstances which is (sic) averred render (sic) the
matter urgent and the reasons why the applicant claims that applicant
could not be afforded substantial redress at a hearing in due
course.”
[6]
Appreciating that there are no paragraphs in the founding affidavit
in which circumstances
which render this matter urgent are set forth,
the Counsel for the applicant contended that, as this application is
an application
for an anti-dissipation order, it is urgent in nature.
In a long winded answer, the Counsel could not direct the attention
of the
court to any paragraph or part of the affidavit where the
circumstances which render this matter urgent are set out explicitly.
He further sought refuge to the annexures annexed to the founding
affidavit. Even those annexures could not assist.
[7]
The founding affidavit is devoid of an explicit averment which
contains reasons why
the applicant claims that she could not be
afforded substantial redress in due course. I next deal with the
nature of the provisions
and consequences of failure to comply
therewith.
[1]
[8]
There is legal authority for proposition that:
“
A
statutory requirement construed as peremptory needs exact compliance
for it to have the stipulated legal consequence, and any
purported
compliance falling short of that is a nullity.”
[2]
Non-compliance
with a peremptory provision results in nullity
[3]
.
The wording of the subrule demonstrates that the provisions are
peremptory. The use of the word “
Must”
in a
text usually demonstrates the peremptory nature of the provisions and
they need exact compliance. In the absence of the requisite
allegations the application cannot be heard as one of urgency.
[9]
There is another reason why this matter cannot be heard as matter of
urgency. There
is a court order dated 19
th
February 2022
annexed to the papers as annexure AT5. That court order was granted
by the Regional Court, East London. The second
respondent was
directed thereby to “
withhold 50% of the pension interest
due and payable to the first respondent by virtue of his resignation
from Old Mutual Superfund
Pension Fund administered by the second
respondent under member number B[...] pending finalization of the
divorce proceedings.”
[10]
Divorce proceedings were finalized on 19
th
April 2024. The
present proceedings were instituted on 30
th
April 2024,
approximately 11 days after the finalization of the divorce
proceedings in the Regional Court, East London. No explanation
was
made by the applicant for such a delay or failure to expeditiously
institute the present proceedings except for a mere justification
that on 26
th
April 2024 the applicant acted with speed to
institute the review application in Makhanda High Court seeking to
set aside the Judgment
granted on 19
th
April 2024. No
explanation was proffered as to why this application was not lauched
simultaneously with the review application
in Makhanda High Court.
[11]
It is well established that the applicant cannot create its own
urgency by simply waiting until
the normal rules can no longer be
applied.
[4]
There
are degrees of urgency and it is well established that applicants in
urgent applications must give proper consideration to
the degree of
urgency and tailor the notice of motion to that degree of urgency.
Plasket
AJ
(as
he then was)
[5]
held that:
“
[
37]
It is trite that applicants in urgent applications must give proper
consideration to the degree of urgency and tailor the notice
of
motion to that degree of urgency. It is also true that when courts
are enjoined by rule 6(12) to deal with urgent applications
in
accordance with procedures that follow the rules as far as possible,
this involves the exercise of a judicial discretion by
a court
‘concerning which deviations it will tolerate in a specific
case.
[38]
…… it is not every case in which the applicant may have
departed from the rules to an unwarranted extent that
the appropriate
remedy is the dismissal of the application. Each case depends on its
special facts and circumstances. This is implicitly
recognised by
Kroon J in the Caledon Street Restaurants CC case when he held –
looking at the issue from the other perspective,
as it were –
that the ‘approach should rather be that there are times where,
by way of non-suiting an applicant, the
point must clearly be made
that the rules should be obeyed and that the interest of the other
party and his lawyers should be accorded
proper respect, and the
matter must be looked at to consider whether the case is such a time
or not.”
[12]
It is well established that in pronouncing on the issue of urgency,
the court exercises a wide
discretion.
[6]
For
the exercise of that discretion the court require
sufficient facts, which in this case are lacking.
[13]
This matter was heard on an extremely urgent basis and on a day other
than the normal court day.
The respondent and his lawyer were
afforded only one day to prepare their opposing papers, in
circumstances where the matter was
not extremely urgent. Lack of
proper regard to degrees of urgency is an abuse of court process. If
I were to consider the issue
of urgency alone I would struck the
matter of the roll with costs. In the light of the fact that the
matter was fully argued before
me, I am inclined to dispose of the
matter in its entirety.
[14]
The applicant herein seeks an interdictory relief, which shall
operate as an interim interdict
pending final determination of the
review application instituted in Makhanda High Court under case
number
CA
67/2024.
The
applicant, somehow creates a confusion in paragraph 3 of her notice
of motion wherein she seeks that the interim interdict must
operate
pending finalization of this matter. This attest to the
tardiness and inept manner in which this matter has been
conducted,
regard being had to paragraph 2 above. While the lifespan of the
interim interdict sought remains unclear the nature
of the
proceedings is easily discernible. This is an application for an
interim interdict.
[16]
The requirements which the applicant for an interlocutory interdict
has to satisfy are the following:
[7]
“
(a)
Prima facie right;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and ultimate relief is eventually granted;
(c)
Balance of convenience in favour of the granting of the interim
relief; and
(d)
The absence any other satisfactory remedy.”
[17]
The applicant is of the view that she is entitled to 50% portion or
share of first respondents
pension benefits by virtue of their
marriage that was in community of property. In the Regional Court
part of the order that was
granted on the 19
th
April
2024 reads as follows:
“
(a)
A decree of divorce is granted.
(b)The
defendant shall forfeit all benefits arising out of a marriage in
community of property, in favour of the plaintiff in relation
to the
following property: -
(i)
Immovable property, a house situated at […] B[...] Crescent
Haven Hills, East London
(ii)
Pension interest of plaintiff held in the Old Mutual Superfund
Pension Fund with member number […]
(iii)Motor
vehicle- Volkswagen 2014 Polo TSI registration JLG[...]”
It
is this Regional Court Judgment that is subject of Review in Makhanda
High Court.
[18]
Two requirements were hotly debated in court during the hearing of
the matter. Whether or not
the applicant satisfied that the kind of
harm she will suffer is irreparable in the event that this interim
order is not granted;
and that there was no satisfactory remedy
available to the applicant was subject of debate. These two
requirements, evinced themselves
as elephant in applicant’s
room.
Irreparable
Harm
[19]
Irreparable harm or loss may be defined as the loss of property
(including incorporeal property
or money) in circumstances where its
recovery is impossible or improbable.
[8]
Irreparable
loss will occur when a person entitled to a particular thing is
forced to take merely its value, or is obliged
to expend money which
he cannot possibly recover.
[20]
The Counsel for the applicant was at pains to grapple with a
proposition that, if the respondents
decide to dissipate the money,
he still has the avenue available to her, which is an action for
recovery of 50% share from first
respondent’s estate or
property. We now know that, besides the pension interest or benefits
held with the second respondent,
the first respondent has an
immovable property situated at No. […] B[...] Crescent Haven
Hills, East London. We know from
the judgment of the Regional Court
that the first respondent has a motor vehicle bearing registration
letters and numbers JLG [...].
It stands to reason that any harm that
may occur, is not one that is irreparable. Applicant’s Counsel
did not contend that
it would be impossible or improbable to
institute proceedings for recovery of lost money, if it happens to be
dissipated.
[21]
It is not only the harm that must be established, but most
importantly, the irreparability of
the harm is always pivotal and
central to the enquiry. Not every harm entitles applicant to a
relief- the harm must be of such
a nature that it is irreparable.
Infact there is no case made out in the founding affidavit from which
it can be deduced that the
harm that may occur in the event that this
order is not granted is irreparable.
[22]
Diemont
JA
[9]
re-emphasized
the trite principle that an applicant must make out its case in the
founding affidavit. The learned Judge aptly
put his
point as follows:
“
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will
look to
determine what the complaint is. As was pointed out by Krause J in
Pountas’ Trustee v Lahanas
1924 WLD 67
at 68 and as has been
said in many other cases: ‘…….an applicant must
stand or fall by his petition and the
facts alleged therein and that,
although sometimes it is permissible to supplement the allegations
contained in the petition, still
the main foundation of the
application is the allegation of facts stated therein, because those
are the facts which the respondent
is called upon either to affirm or
deny.”
[10]
On this
ground alone this application cannot succeed. There is yet another
reason why this application cannot succeed.
No other
Satisfactory Remedy
[23]
The satisfactory remedy available to the applicant is discussed at
length in the preceding paragraphs
under irreparable harm. No
contention at all was made to assail this proposition. If the first
respondent dissipates the pension
benefits in question, it is
available to the applicant to institute proceedings for the recovery
of her share as demonstrated above.
[24]
The history of this litigation is that, Divorce proceedings between
the applicant and first respondent
were instituted in the Regional
Court. In the context of that litigation a court order was granted in
terms of which the second
respondent was directed to withhold the
same 50% of first respondent’s pension interest pending final
determination of the
divorce proceedings. Aggrieved by the judgement
of the Regional Court, the applicant instituted review proceedings in
Makhanda
High Court on 26
th
April 2024
[25]
A proposition was made to the applicant that the Regional Court has
proved itself to be able
to grant interdicts, and it has done so in
this case. It stood to reason that it could provide an alternative
satisfactory remedy.
Instead of approaching this court, the applicant
should have approached the Regional Court. Similarly, the applicant
should have
incorporated this application in the review application
as Part 1 or A thereof. That would have provided a satisfactory
remedy.
[26]
Applicant’s response to that was to the effect that, those two
courts do not provide other
satisfactory remedy but a similar remedy.
A remedy, so the argument went, is something different but with
similar effect. My understanding
of the argument is that the two
courts mentioned above provide only an alternative forum with a
similar remedy. The argument seems
to be quite persuasive. However,
it does not take away the fact that a claim for recovery of money in
the event of this order not
been granted and the money is used, it
provides the remedy envisaged in our law. On this score too this
application must fail.
[27]
This application is in the form of an anti-dissipation interdict. It
is normally stated that
the requirements that must be satisfied to
obtain an anti-dissipation interdict are the same as for any other
type of interdict.
[11]
However,
it has been held that this kind of interdict is ‘
sui
generis’
[12]
[28]
In
Knox D’Arcy
referred to above at 372 F Stegmann J
held that:
“
The
question which arises from
this approach is whether an applicant needs show particular state of
mind on the part of the respondent
i.e, that he is getting rid of the
funds, or is likely to do so, with the intention of defeating the
claims of the creditors. Having
regard to purpose of this type of
interdict, the answer must be, I consider, yes, except possibly in
exceptional cases.”
There is no
evidence that the first respondent is getting rid of the pension
benefit or is likely to do that with an intention to
defeat or
frustrate the creditors.
[29]
In the amalgam of this, the application cannot succeed. I see no
reason why costs should not
follow the result.
Order
[30]
In the result I make the following order.
30.1
The application is hereby dismissed
30.2 The applicant
is ordered to pay costs of the application.
A.S
ZONO
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Applicant: :
ADV.
SELLEM
Instructed
by
F.T
Dengana Attorneys
Applicant’s
attorneys
36
Chamberlain Road
Berea
East
London
Tel:
043
722
1739
E-mail:
ftdenganaattorneys@gmail.com
Counsel
for the 1
st
Respondent:
MR
GODONGWANA
Instructed
by :
GODONGWNA
AND PARTNERS INC
First
Respondent’s Attorneys
6
Steward Drive
2
nd
Floor
Berea
East
London
E-mail:loyisog@godongwana.co.za
2
nd
Respondent:
OLD
MUTUAL SUPERFUND PENSION FUND
E-mail:
superfundprincipalofficer@oldmutual.com
Date
heard :
03
rd
May 2024
Date
Delivered:
10
th
May 2024
[1]
Mangala
v Mnagala
1967
(2) SA 415 (E)
[2]
Shalala
v Klerksdorp Town Council and another
1969
(1) SA 582
(T) at 587 A-C
[3]
LAWSA,
Part 1, Vol
25, Page 399
; G.M Cockram: Interpretation of Statues,
3
rd
Edition,
Page 163
[4]
Ngquma
and another v State President; Damons No v State President; Jooste v
State President
19884)
SA 224 at 243 D-E;
Sokhani
Development and Consulting Engineers (Pty) Ltd v Alfred Nzo District
Municipality
(
1254/2024)
[2024] ZAECMKHC 44 (26 April 2024) Para 12
[5]
Nelson
Mandela Metropolitan Municipality and Others V Greyvenouw CC and
Others
2004
(2) SA 81
(SE) Para 37-38
[6]
Cornerstone
Logistics (Pty)Ltd v Zacpak Cape Town Depot (Pty) Ltd
2022
(1) ALL SA 13
SCA Para 30
[7]
Setlogelo
v Setlogelo
1914
AD 221at
227,
National
Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC) at 235 D-E
[8]
Erasmus:
Superior Court Practice, 2
nd
Edition,
Volume
2 Page D6-19
[9]
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A)at 635H-636A
[10]
Nkume
v Transunion Credit Bureaus (Pty) Ltd and another
2014
(1) SA 134
Para 7
[11]
Knox
D’Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996
(4) SA 348
(A) at 373
[12]
Herbstein
and Van Winsen: The Civil Practice of the High Courts of South
Africa, 5
th
Edition,
Volume
2 Page 1492