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(Reportable)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
RULE 43 CASE NUMBER: 6170/2023
DIVORCE CASE NUMBER: 3345/2022
EDICTAL CITATION: 7662/2022
In the matter between:
S.H-K Applicant
And
R.K Respondent
Date heard: 06 September 2023
Date judgment delivered: 06 May 2024
___________________________________________________________
JUDGMENT
___________________________________________________________
Wathen-Falken, AJ
1. This is a rule 43 Application in which the Applicant seeks maintenance
pendente lite, interim payment of her rental accommodation and a
contribution toward her legal costs.
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2. The application is opposed by the respondent who seeks a dismissal of
the application. The respondent raised four points in li mine which this
court directed to be argued before progressing to the merits of the
matter.
3. The points in limine raised :
3.1 That the applicant failed to comply with the mediation procedures of
Rule 41A;
3.2 That this matter is lis pendens and serving before the Singapore
Syriah Court;
3.3 That this court does not has the necessary jurisdiction to adjudicate
the matter based on the premise that both the applicant and
respondent is not domiciled in South Africa; and
3.4 That the applicants founding papers do not comply with the
provisions of rule 43 due to its prolixity.
Background to the Rule 43 application
4. The applicant was granted leave on 23 March 2022 to institute action
against the respondent by way of edictal citation in terms whereof she
sought a de cree of divorce and ancillary relief. It was directed that the
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service of the edictal citation together with the applicant’s intendit be
effected on the respondent personally at his re sidential address in
Singapore that it also be served on him via email by the applicant’s
attorney in Cape Town, South Africa.
5. The applicant averred that the Western Cape High Court had the
necessary jurisdiction to entertain the divorce proceedings because she
is domiciled within the court’s jurisdiction.
6. In support of this averment she detailed her position as follows:
She was born in Scotland in 1983 to parents who are both South African
citizens and who resided in Scotland temporarily due to her father’s
work obligations. She, together with her family emigrated to Cape Town
when she was 8 years old in 1991 and they considered it to be their
permanent home. She acquired a domicile of choice in South Africa.
7. Both applicant and respondent qualified as medical doctors in South
Africa.
8. In 2008 the applicant and respondent were married to each other by
Islamic law in Stellenbosch and in 2010 and at Worcester the marriage
was solemnized by civil law in community of property.
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9. The parties established a family trust which holds South African banking
account and owns 6 properties and other monetary assets cumula tively
valued around R10 million in the Western Cape.
10. The applicants confirmed that she holds a British and South African
passport.
11. In 2010 the respondent was offered an opportunity to work in Indonesia
for three months which was eventually extended and the applicant
joined her husband in Indonesia in 2011. The respondents work there
was considered to be temporary and the applicant did not intend to
relinquish her domicile of choice.
12. The applicant services a pension fund and life policies in South Africa.
The applicant does not own assets outside of South Africa save for her
personal items.
13. The applicant returned to Cape Town in 2012 to give birth to their son
where she enjoyed the support of her family. Both their parents reside
in the Western Cape.
She returned to Indonesia when their son was 7 weeks old.
14. In 2014, the respondent took up a medical position in Singapore and
they relocated there as a fa mily. The respondent operated ( and still
does so) on a Singapore employment pass (work visa) and the applicant
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and minor child was issued with a dependent passes which are valid for
2 to 3 years at a time.
15. The applicant has not been able to secure employment for herself in
Singapore since her work permits have been consistently denied. She
confirms that she worked in Indonesia, Hong Kong and Kazakhstan
periodically.
16. As recently as 2017, they purchased immovable property in Strand,
Western Cape which is bonded in their names jointly.
17. The marriage started breaking down between 2018 and 2019 at which
time the applicant was working in Kazakhstan.
18. The applicant confirms the advice of her attorneys in Singapore that
given that she and her husband are muslim, that their divorce must be
conducted in the Singapore Syriah Court. S he was further advised that
their assets in South Africa would not form part of those proceedings.
19. As at 22 March 2022, no divorce summons was issued out of the
Singapore Court or the Sy riah Court however it is not in dispute that
the respondent has instituted divorce proceedings in Singapore.
20. The applicant returned to South Africa in August 2021 to visit with
family and to obtain Covid 19 vaccinations.
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21. The applicant is presently unemployed and reliant on the respondent
for financial support. She and the minor child are in Singapore on
dependant passes which is linked to the respondents work visa. Once
the divorce is finalised she would not be entitled to the dependent
pass.
22. She maintains that South Africa is her domicile of choice and that she
considers Cape Town to be her permanent residence and that her
temporary residence in Singapore is purely as a result of the
respondent’s international employment which is in dispute.
23. It is common cause that the divorce proceedings are progressing in this
court and that special pleas were raised on similar premises ie .
Jurisdiction and lis pendens.
The points in limine considered
Lis pendens
24. The Respondent raised a special plea of lis pendens in the action
proceedings for divorce , still to be determined. It is raised again in
these proceedings based on the following submissions:
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24.1 That divorce proceedings are pending in Singapore at the Syriah
Court1;
24.2 That one of the disputes in those proceedings is a claim for
maintenance which predates these proceedings;
25. That an order in this court in these proceedings may lead to conflicting
orders relating to the same parties.
26. These submissions are made even though the Respondent acknowledges
and accepts that the proceedings in Singa pore has been successfully
stayed upon application by the Applicant.
27. It is common cause that the summons in this matter was served on the
Respondent on or about 13 April 2022 ie before the Respondent
commenced with divorce proceedings in Singapore which was served on
the Applicant on 28 April 2022.2
28. Mr Embden argues on behalf of the Applicant that there are no pending
maintenance proceedings or any similar (application for interim relief) in
the Syriah Court.
1 Case number SYC\1853\2021
2 Page 13 of the founding affidavit at paragraph 25 and page 94 of the answering affidavit at paragraph 33.
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29. He further argues that at ‘lis pendens’ is best raised and dealt with
during trial proceedings given the standard of proof required in its
determination.
30. I am persuaded that the trial court (divorce proceedings) would be best
suited to adjudicate the issue of ‘lis pendens’ within the current context.
It was raised and together with several other aspects pertaining to the
divorce action remains to be determined there.
31. At this stage it is established that the parties are engaged in divorce
proceedings before this court which entitles the Applicant in this m atter
to bring this application and the point of lis pendens stands to be
dismissed.
Lack of jurisdiction/ Domicile
32. This too is raised by the Respondent in the divorce proceedings and
remains as an issue for determination there. As it stands, the divorce
action before the Singapore courts has been stayed. The only ‘live’
divorce proceedings are p ending before this court. 3 The fact that leave
was granted to the applicant to institute divorce action by way of edictal
3 Divorce Case number 7662/2022
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citation could reasonably be construed as indicative that the court is
prima facie satisfied that it has jurisdiction over the matter.
33. Counsel for the Respondent, Ms Heese argues that the applicant has
grounded her allegation of jurisdiction exclusively on the basis of her
alleged domicile in South Africa under section 2(1) of the Divorce Act
and that the averment is relied on in these proceedings ; when the
factual matrix does not support the basis. She further argues that it
would naturally follow that if this court does not have the jurisdiction to
adjudicate the divorce action then it would not have be competent to
adjudicate the Rule 43 proceedings.
34. Similarly, to the point of lis pendens raised herein before, the issue of
jurisdiction stands to be determined by the trial court which is best
suited to ventilate it.
35. The question here is whether the challenge placed on jurisdict ion in the
divorce proceedings disqualifies this court from adjudicating Rule 43
application ( and any other preliminary appl ications in matrimonial
actions).
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36. In the matter of Glen v Glen 4 Beck J held that, for purposes of Rule 43,
the mere fact that jurisdiction in the divorce cation is disputed, does not
suffice to defeat the jurisdiction of the Court to entertain the Rule 43
application. In his judgement he further concluded that jurisdiction was
established by reason of a concession that “respondent, whatever his
domicile, is resident in Rhodesia and that his residence in this country is
of sufficient degree of permanence to found a basis for a judgment
sounding in money.”
37. The reasoning explored in the Glen (supra) judgment can certainly be
expounded in the present case particularly in light of the fact that it
predates the Divorce Act 70 of 1979 . It is not in dispute that the parties
own several immovable properties in the Western Cape and that they
operate a family trust within South Africa. This I would propose is a
compelling factor in the determination of this court’s jurisdiction over
the divorce proceedings and other subsidiary matters.
38. I venture to add that post the Covid 19 pandemic which caused a global
shift in thinking and approaches to work and what is considered
4 1971(3)SA 238(R)
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residence may require reconsideration insofar as it relates to the Divorce
Act.5
“A hundred years ago an intention to reside indefinitely in a place
was regarded as an intention to reside there permanently,
notwithstanding that it was contingent upon an uncertain event.
Nowadays an intention of indefinite residence is not equivalent to
an intention of permanent residence, if it is contingent upon an
uncertain event.”6
39. I however for purposes of this judgment confine myself to the
requirements for launching an application in terms of Rule 43.
40. The applicant founded her application as one in terms of Rule 43 given
that matrimonial proceedings are pending before this court.
41. In the matter of S.W v S.W and another 7 van Staden J considered the
issue of a court’s jurisdiction for matters pendente lite. He writes:
“A court is defined in the Rules to mean a court constituted in
terms of section 13 of the Supreme Court Act 59 of 1959.Although
the rules have not been amended the definition must be read to
refer to the equivalent section in the Superior Courts Act 10 of
5 In particular, section 2 of Act 70 of 1079
6 Cheshire Private International Law 5TH edition at page 164
7 (2875)/2015[ ZAECPEHC 70; 2015(6) SA300(ECP] reportable
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2013, namely section 14 , which is to all intents and purposes
identical in its terms to the erstwhile section 13, save that it
used/utilises the changed names of the courts and refers to the
High Court. A reading of Rule 43 in the light of the relevant
provisions of the Superior Courts Act, indicates that the procedure
provided by the rule may only be invoked before the court in which
the main lis in the divorce action is pending.”
42. In casu, this is the only court which the Applicant is entitled to approach
for the relief sought at this point in time. Along similar reasoning the
Massey8 case expresses the view that in appropriate circumstances a
court may exercise jurisdiction in preliminary matters though the main
action may be pending elsewhere.
43. I am of the considered view that this court is entitled to adjudicate on
the mer its of the Rule 43 application and the point stands to be
dismissed.
Non-compliance with Rule 41A
8 1969(2)SA 1999 (T)
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44. Mr Embden makes the point that the respondent’s averments in this
regard is without foundat ion for the following reasons ( which are not in
dispute).
45. The Rule 41A notice was delivered on 28 April 2022 in terms of which
the parties engaged one another; and
The Rule 43 appli cation had previously been postpo ned on two
occasions to allow parties to explore settlement (without success).
46. Both parties during argument alluded to the fact that they actively
attempted to settle the issues and that they would continue to do so.
47. The respondent therefor cannot rely on non -compliance with Rule 41A
and stands to be dismissed.
Non-Compliance with Rule 43 provisions
48. The Applicant is challenged on the prolixity of its papers. This particular
matter is not without complexity and essentially required a greater
amount of detail which is conceded by the respondent and it ought not
to disentitle the applicant to relief.
49. The condonation of the voluminous exchange I deem to be necessary in
the present matter.
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50. For all the reasons set out herein above the points in limine raised by the
respondent is dismissed.
The delay in the transmission of this judgment is regretted.
ORDER
1. All the points in limine are dismissed with costs.
2. The Rule 43 application is capable of adjudication before this Court.
R. Wathen-Falken
Acting Judge of the High Court
To:
1. Maurice Phillips Wisenberg
Attorneys for the Applicant
Per: Bertus Preller
20th Floor, 2 Long Street
CAPE TOWN
Tel. (021) 4197115
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Email: bertus@mpw.co.za
2. Moosa & Pearson
Attorney for the Respondent
Coniston Chambers
23 Coniston Road
Rondebosch
CAPE TOWN
Tel. (021) 686 6670
Email: fareed@moosalaw.com