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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA

 

CASE NUMBER: 8125/ 2021

REPORTABLE:NO

OF INTEREST TO OTHER JUDGES:NO

REVISED

DATE:09 JUNE 2021

 

 

In the matter between:

R M M[…]                                                                FIRST APPLICANT

 

and

 

M N K[..]                                                                   FIRST RESPONDENT

 D K K[…]                                                                 SECOND RESPONDENT

THE GOVERNMENT EMPLOYEES                         THIRD RESPONDENT

PENSION FUND

 

JUDGMENT

 

TLHAPI J

 

[1]     This is an application brought on urgency for an interim order interdicting the third respondent with immediate effect from paying out the Pension Fund interest to the first respondent until the finalization of this application. The application was launched on the 17 February 2021 and served on all the respondents on the same day. The respondents were further required to give notice of their opposition if any by 16h00 of the 17 February 2021 and, to deliver their answering papers by 16h00 on 18 February 2021, and that the applicant file her reply by 10:00 on 19 February 2021. This application was set down for hearing on 23 February 2021. The first and second respondent gave notice of their opposition and served their answering affidavits on 22 February 2021.

[2]     On 22 February 2021 the applicant filed an amended notice of motion and a supplementary affidavit. The application was for interim relief pending finalization of the divorce action under case number 69252/ 2014 and interdicting with immediate effect the first and second respondents from disposing their movable and immovable assets forming part of the joint estate of the “Second applicant and the applicant”. In the amended notice of motion the respondents were called upon to give notice of their opposition before the “17^th of February 2021 at 16:00” …. to deliver their answering affidavits by “16:00 on 18 February 2021” and the applicant to file her reply at “10:00 on the 19 of February 2021”. The second respondent filed an opposition to the amended notice of motion and a supplementary affidavit.

BACKGROUND

[3]     The applicant resided at […] extension […] S[…]. She and the second respondent had lived together since 2000 and one child was born in the relationship. The first and second respondent resided at […] Extension […] S[…]. The applicant contended that on 22 April 2007 a customary marriage was entered into which rendered the marriage as one in community of property in terms of the Recognition of Customary Marriages Act 120 of 1998 (“the RCMA”). During 2014 she instituted a divorce action, case number 69252/ 2014 against the second respondent and by September 2015 he had filed his plea. She had claimed for a division of the joint estate which she contended included 50% of the second respondent’s pension interest in the pension benefit held by the third respondent. A pre-trial conference was held on 9 December 2019 and she avers that the minute thereof could not be signed due to Covid 19 and it was only presented to the attorneys of the second respondent for signature on 17 November 2020 with an undertaking that the matter would be set down for trial.

[4]     On 21 January 2021 she was in shock when she was evicted from her residence by the first respondent, who was in possession of a letter from the sheriff and a decree of divorce which stated that the first and second respondent had been divorced during October 2020. The first respondent came to claim what was her share of the joint estate with the second respondent, which included the house in which the applicant was residing. The second respondent provided her with alternative accommodation and on 28 January 2021 a letter was written to the third respondent with a request to withhold payment of the pension interest. On 4 February 2021 she was informed that only a court order could stop any payment and that payment would be withheld for 7 days for her to obtain the court order.

[5]     The applicant contended that the application was urgent. The second respondent got married to the first respondent while she was still married to him and that the first respondent had submitted for processing by the third respondent the pension fund interest. She had fear that she might forfeit her 50% in the pension interest, which was going to be paid out. She described this application as an “ex parte” one and that she would suffer prejudice if the order was not granted,

[6]     In the supplementary founding affidavit which was presented with the amended notice of motion, she annexed documents which she stated she forgot to annex to her founding affidavit being, (i) proof of the lobola negotiations (ii) a funeral cover with Liberty Life which named her as a dependant (iii) the plea of the second respondent in the divorce proceedings served on 10 November 2014 which was proof that the customary marriage was entered into before the civil marriage with the first respondent. In this supplementary affidavit the applicant requests interim relief in that she had a well-grounded apprehension that she would suffer irreparable harm in that the first and second respondent will dispose of the assets that form part of the joint estate between herself and the second respondent. Further, that the balance of convenience favours her as the divorce action is still pending and that there is no other satisfactory remedy available to her if the assets of the joint estate  are disposed of.

[7]     The second respondent raised two points in limine (i) that the application lacked urgency (ii) that the applicant failed to meet the threshold of an anti -dissipation order. Further, that although he had contemplated a customary marriage with the applicant and had paid only R5000.00 of the R8000,00 requested as lobola, there had been no handing over and the customary marriage had not been registered as was required by section 3(1)(b) of the RMCA. He had communicated this to the applicant before she instituted divorce proceedings and had denied on these grounds that a customary marriage existed. He contended that the applicant despite being dominis litis had been lackadaisical in the divorce action. The applicant had also launched a Rule 43 application two years after the divorce had been instituted and the application according to his recollection had been struck from the roll. The first pre-trial was convened on 28 September 2016 and it took the applicant another two years to convene the second pretrial in December of 2019.

[8]     The second respondent contended that the applicant was aware of his marriage to the first respondent in September 2018 and having been informed by his family. The second pretrial in December 2019 was held in the presence of the first respondent and his child. His marriage to the first respondent irretrievably broke down and part of the settlement agreement was that the first respondent retain the house in which the applicant was resident. The second respondent contended that the matter was not urgent in that the applicant was made aware of the of the divorce and given an ultimatum by the third respondent on 4 February 2021 and she only launched the urgent application on 17 February 2021 two weeks after she had addressed a “without prejudice” letter of demand on 29 January 2021 to the third respondent.

[9]     It was further contended that the applicant had failed to prove and incorporate in the interim interdicts she sought the following (i) the fact that he was disposing of his assets and (ii) had a mala fide intention of defeating the claims of his creditors or the execution of a judgment against him; and the usual requirements for interim interdicts (i) that she had a prima facie right, (ii) a well grounded apprehension of irreparable harm if the interim relief was not granted (iii) a balance of convenience in favour of the granting of the interim relief (iv) the absence of any statutory remedy available to the applicant. Further, that division of his pension interest will be given effect to as a result of a court order and it cannot be said he acted mala  fide.

[10]   The second respondent opposed the amended notice of motion and the additional affidavit filed with it on 22 February 2021, for lack of compliance with the Rules of Court being 28 and 6 (5)(e). Further that the supplementary failed to show why the facts therein and, to which the applicant was privy to before the launch of the application were not mentioned in the founding affidavit.

[11]   The first respondent applied for condonation for not filing her answering affidavit within the times frames set by the applicant which period she contended was unreasonable. She was aware that the second respondent and the applicant had been in a relationship and that he had assured her that even though he had paid a part of the lobola he was not married to the applicant, so she denied that the marriage existed. When she got divorced from the second respondent she became entitled to 50% of the joint estate. The first respondent contended that if indeed the applicant was married to the second respondent in community of property then, the applicant had no authority to launch legal proceedings against her without the written consent of the second respondent in terms of section 7(3) of the RMCA read with section 17 of the Matrimonial Property Act 88 of 1984. Furthermore, that the applicant had failed to establish the requirements for an interdict.

The effectiveness of the Divorce Order of 5 October 2020

[12]   It is common cause that the first and second respondent’s marriage in community of property was dissolved by court order of 5 October 2020 which order incorporated a settlement agreement on the division of their joint estate. This order and the one purporting to evict the applicant have not been set aside. It is also common cause that the applicant in this application seeks to assert and preserve her rights which she contends she has as a result of her customary marriage to the second respondent. In a long line of cases it has been emphasised that such order stands until set aside. In Kotze v Kotze 1953 (2) SA 184 (C) Herbstein J said at 187 F:

“The matter is one of public policy which requires that there shall be obedience to orders of Court and that people should not be allowed to take the law into their own  hand”

In Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 229 B-D Froneman  J stated:

“An order of a court of law stands until set aside by a Court of competent jurisdiction. Until that is done the Court order must be obeyed even if it may be wrong. (Culverwell v Beira 1992 (4) SA 490 (W) at 494 A-C). A person may even be barred from approaching the Court until he or she has obeyed an order of Court that has not been properly set aside. (Hadkinson v Hadkinson [1952] 2 ALL ER 567 (CA); Byliefeldt v Redpath 1982 (1) SA 702 (A) at 714.”

[13]   It is my view that having regard to the above decisions and the fact that the assets of the joint estate which applicant wishes to assert a right to have been distributed, any order  in the interim or otherwise purporting to interfere with the order of the divorce and incorporated settlement agreement of 5 October 2020 would not be competent until the validity thereof is challenged and set aside by a competent court and possibly by way of review. In Gauteng Province Driving School Association and Others v Amaryllis Investments (Pty) Ltd and Others (Case 006/11) [2011] ZASCA 237 dated 1 December 2011, Ponnan JA stated at [19]:

“Respect for the authority of the courts is foundational to the rule of law. Civil contempt is not solely inter partes, but also an issue between the court and the party who has failed to comply with its order. It is as much about vindicating judicial authority as it is about vindicating individual rights.” (my underlining)

“

The significance is that the third respondent has an obligation to observe an order of court, therefore, by paying out the pension interest it would be observing a court order even if same has been wrongly obtained and such duty prevails until the order is set aside by a competent court. In my view the grant of an interdict like is sought in this application would be incompetent in that it does not amount to a setting aside of the order of divorce. This view however does not mean that other remedies are not available to the applicant.

The Notice of Motion initiating this application and the Amended Notice of Motion:

[14]        Before I deal with the two notices, the pension interest though not specifically mentioned in the Amended Notice of Motion is included in the joint estate of the first and second respondent. The question in this instance is which Notice of Motion should be considered by the court and should the applicant have sought leave of the court to amend her notice of motion and to file a supplementary affidavit? Before dealing with the prejudice caused to the first and second respondent by the irregular amended notice of motion, as contended by counsel for the second respondent in a supplementary affidavit, the second respondent objects as an irregular step to the filing of the amended notice of motion and accompanying supplementary affidavit. The second respondent did not file an application against the applicant in terms of Rule 30 and 30A for failing to comply with the Uniform Rules of Court. This could have been a futile exercise due to time constraints and in my view the respondents were prejudiced in that they too would have resorted to irregular steps in an attempt to oppose.

[15]      The court has a discretion to refuse or allow an amendment which should be raised timeously to allow for a proper ventilation of the issues and response, Tengwa v Metrorail 2002 (1) SA 739 at 745 -746. In this instance very short notice was given and the respondents would not have had time to properly comply with the rules. Further, the applicant must satisfy the court that the application is bona fide, ‘that it raises a triable issue and that sufficiently justifies the prejudice and costs to the other side.’

Rule 28 (1) provides:

“Any party desiring to amend a pleading or documents other than a sworn statement, filed in connection with any proceeding, shall notify all other parties of his intention to amend and shall furnish particulars of the amendment”

Rule 28 (2) provides:

“ The notice referred to in subrule (1) shall state that unless written objection to the proposed amendment is delivered within 10 days of delivery of the notice the amendments will be effected.”

[16]      An amendment to the notice of motion should comply with the rules. In Devonia Shipping Limited v MV Luis (Yeoman Shipping Co Ltd) 1994 (2) SA 363 (C) at 369 F-I it was stated:

“…..As in the case of the summons or a pleading in an action, (it) will always be allowed unless the application to amend is mala fide or unless the amendment would cause an injustice or prejudice to the other side which cannot be compensated by an order for costs, or in other words, unless the parties cannot be put back for the purpose of justice in the same position as they were when the Notice of Motion which  it sought to amend was filed.”

[17]      It is common cause that there was no compliance with Rule 28 (1) and worst still instead of following with a narration in terms of Rule 28 (2), the applicant failed to replace the narration and the dates made in the first Notice of Motion in terms of Rule 6 (5) (b) with that in Rule 28 (2). Further, no condonation was requested for non-compliance with this rule. The the said amendment was filed at extreme short notice. Although that first respondent did not file an objection her answering affidavit addresses issues arising in the first notice of motion and the founding affidavit. Having regard to her answering affidavit, the issues raised in the applicant’’s amended notice of motion and supplementary affidavit impact on what she became entitled to in terms of the divorce order and she would be prejudiced in as far as she was not given an opportunity to respond or file an objection.

[18]      In my view compliance by the applicant with Rule 28 (1) and (2) and with Rule 6(5)(b) and Rule 6 (e) was impossible due to time constraints which were of her own making. Rule 27 of the uniform rules allows the court to exercise a discretion to condone non-compliance where there is no agreement between the parties 'upon application and on good cause shown.” Since it is not possible to formulate exact rules the court is expected to exercise its discretion judicially; to have an objective conspectus of all the facts; must be fair to both sides; must consider prejudice to the other party, and the applicant must satisfy the court of her bona tides in bringing the urgent application. The court should also consider whether any indulgence given to the applicant can be compensated with a suitable costs order, or a postponement and costs, Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A). Together with all principles established condonation should be granted if it is in the interests of justice and if it is not, it should be refused, Brummer v Gorfil Brothers Investments Pty Ltd 2000 (2) SA837 (CC) at para 3.

[19]      In reply the applicant addresses the deficiencies in the first respondent’s application for condonation for the late filing of her answering affidavit when she failed to even apply for condonation as addressed above. While the applicant and the second respondent have issues of their own in an action not yet finalised, in my view, and having regard to the facts, it is the first respondent who stands to be prejudiced by being deprived of an opportunity to ventilate her defence in how a stay to the distribution of the “joint estate” which is a subject of a court order which has not been set aside is bound to affect her. The second notice of motion and supplementary affidavit should therefore not be accommodated or condoned in this application and should be dismissed. In any event the pension interest does form part of the community of property.

Urgency

[20]      The application was brought on extreme urgency and such is opposed by the first and second respondent on grounds that unreasonable periods were given for filing their opposition. It then becomes incumbent on the applicant to satisfy the requirements of the interim relief sought and to furnish the court with cogent reasons why she will not be afforded substantial redress in a hearing in due course. The applicant is also expected to observe the rules of court in setting down urgent applications and the trite principles as set out in Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture

Manufacturers [1977] 2 All SA 156 (W)

“Mere lip service to the requirements of Rule 6 (12)(b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down”

[21]      Counsel for the applicant contended that the application complies with the guidelines above and that there was no delay by the applicant in approaching the court as submitted on behalf of the first and second respondent. Any delay claimed he further contends cannot be the sole reason for refusing urgency; East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) ltd 2012 JOL 28244 (GSJ). It is contended further that interim relief is applied for pending the finalization of the divorce action and that the first and second respondents merely dealt with their defences in the main action.

[22]      In my view the applicant seeks interim relief as if finalization of the pending divorce  action is just around the corner. It is appropriate in determining urgency and the requirements the applicant has to satisfy for interim relief, to also have regard to a number of factors preceding this hearing which pertain to the main action. The applicant has failed in the founding affidavit to give any indication being dominus litis, when the main action is to be finalized; she has not satisfactorily explained why the matter has not been finalized having gone through two pre-trial meetings the first having occurred in 2016. She has not explained how Covid 19 prevented her from giving instructions to her attorneys to have the pre-trial minute of December 2019 concluded; she has not explained why she has to date not obtained a trial date so as to give indication to this court whether the interim relief is justified. In reply the applicant has not addressed the allegation that she was aware of the marriage between the first and second respondent, that the first respondent accompanied the second respondent to the December 2019 pre-trial, and why she despite such knowledge failed to secure her rights in the joint estate she had with the second respondent. The applicant has not addressed any effort in seeking to set aside the already existing court order which may have been wrongly sought, but which must be observed by all including this court; the applicant has not even anticipated initiating an action against the first and second respondent since the issue of her right to claim from the alleged joint estate, in the pending divorce action between herself and the second respondent has not been finalized.

[23]      It is these factors above and not only what came to her knowledge on 21 January 2021 that has relevance to urgency. The ultimatum by the third respondent would not have any impact in that the third respondent is obliged to obey an order of the court which directed payment to the first respondent. It would be in contempt if it acted outside that court order. It is for the above reasons that I find the application not to be urgent.

[24]      The applicant must satisfy the grounds for interdictory relief:

Prima Facie right: It is contended by counsel for the applicant that the right in the pension interest sought to be protected is the subject matter of pending main proceedings. I am inclined to agree with counsel for the second respondent that the right only accrues on the finalization of the dissolution of the marriage MWS v NSS (DIV 1292019 [2020] ZANHWC 36 (9 March 2020) para 27. In this matter there is an order in favour of the first respondent which cannot be wished away. The applicant must still deal with its setting aside.

Reasonable apprehension of irreparable harm: The issue of forfeiting the 50% of the pension  interest according to counsel for the first respondent is still recoverable and can be set off from the remainder of the joint estate. This is possible if or when judgement is given in favour of the applicant in the pending main action. In my view the existing order cannot be set aside or interred with unless set aside.

Alternative remedies: The pending main divorce action has not been finalized. In my view there is room for pursuing her claim against the second respondent in such proceeding by even amending her pleadings accordingly and by instituting action against the first respondent.

The Balance of convenience: In my view when considering the balance of convinience the court should have regard to the requirements dealt with above and ask what harm would be suffered by the applicant if the interdict is not granted, and what would the prejudice be to the respondents if the interim interdict is granted. Finally, whether the applicant would not be adequately compensated by a claim for damages. I am not saying that the applicant’s assertion that a customary marriage existed is invalid. I am not in a position to pronounce on the validity or not of the customary marriage and I deal with this below. For purposes of this application the balance of convenience for the reasons above does not favour the applicant.

Pending Divorce case 69252/2014 and the RCMA / The anti-dissipation interdict

[25]      The above matter is pending before another court, and it is not for this court to make any pronouncements regarding the validity or not of the alleged customary marriage, save to consider how the delay in having the matter finalized impacts on this application and this has been dealt with above.

[26]      It was contended by counsel for the second respondent that the applicant had failed to set out facts and to prove that the respondent was disposing of his assets and, by so doing was defeating the right of the applicant to claim from the estate of the second respondent. In my view this should be extended to the first respondent in that the applicant has also failed to establish the anti-dissipation threshold where she was concerned. I need not go any further in addressing this issue because I have already indicated that the amendment to the notice of motion and accompanying supplementary affidavit, which sought to interdict the first and second respondents from disposing of the movable and immovable assets were not allowed.

[27]      In the result the following order is granted:

1.    The application is not urgent and on the merits the application is dismissed with costs.

TLHAPI V  V

(JUDGE OF THE HIGH COURT)

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