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[2020] ZAECGHC 117
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V.M v Z.M and Another (1421/2019) [2020] ZAECGHC 117 (13 September 2020)
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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
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO: 1421/2019
In the matter between:
V[…] M[…] APPLICANT
and
Z[….] M[…] 1ST RESPONDENT
ALEXANDER FORBES (PTY) LTD 2ND RESPONDENT
DATE HEARD: 27 AUGUST 2020
DATE DELIVERED: 13 SEPTEMBER 2020
JUDGMENT
MTSHABE AJ:
[1] The Applicant brought ex-parte, to wit, urgent application against the second respondent, a company duly registered in terms of the company laws of the Republic of South Africa, in which she sought and was granted a rule nisi calling upon the Respondents to show cause why the 2nd respondent should not be interdicted and restrained from carrying out 1st Respondent’s instructions to withdraw his claim (cash in his pension fund), pending a decree of divorce.
[2] On 14 May 2019, Stretch J granted an order which reads as follows:
“[1] that a Rule Nisi do hereby issue calling upon the 1st and 2nd respondents and any other interested person, to show cause, if any, to this Honourable Court on 18th June 2019 at 9h30, or so soon thereafter as the matter may be heard why the following terms should not be made a final order of court;
[1.1] that the 2nd respondent be interdicted and restrained from carrying out the 1st Respondent’s instructions to withdraw his claim (cash in his pension fund) pending a decree of divorce being granted in respect of the divorce action instituted between the Applicant and the 1st Respondent.
[1.2] that the rule nisi and any order be served on the respondents prior to the lapse of 5 days from the date of the order;
[1.3] that the 1st Respondent pays the costs of this application in the event of it being opposed.
[2] That paragraph 1 shall operate as an interim interdict pending the return date of the Rule Nisi”.
[3] The application is opposed by the 1st respondent and both answering and replying affidavit have been filed.
[4] The 1st respondent filed the answering affidavit on 23rd July 2019 but it bears that it was commissioned on or about 28th June 2019.
[5] The replying affidavit was filed almost year after the answering affidavit was delivered. It was filed on 11th August 2020.
[6] The Applicant made an application for condonation of the late filing of the replying affidavit. It was not opposed. I am not going to detain myself on this point. I shall make an order condoning the late filing of the replying affidavit.
[7] The return date of the rule nisi that was granted on 18th May 2019 was 18th June 2019. When I was preparing for the judgment in this matter, I had to call the legal representatives for both parties and asked them to provide me with the order that was granted on 18th June 2020. This would be order that would further extend the interim relief. The notes on the outside of the file reflect that the matter was removed from the roll on 18th June 2019. This to me suggests that the interim relief was not extended to any other date.
[8] A rule nisi in an order granted ex-parte as it happened in his particular case on 18th May 2019, directing a particular person or persons calling on them to appear in court on a certain fixed date to show cause why the rule nisi should not be made absolute. In this case the respondents were called upon to show cause on 18th June 2019 to show cause why the interim relief should not be made final.
[9] I must mention at this stage that in practice it has become a norm and a logical presumption that in the instance where the rule nisi is the subject matter or heart of the proceedings that the postponement of the rule nisi has an automatic of extending the life of the rule. This was supported in the case of Crundall Brothers (Pty) Ltd v Lazarus NO & Another 1991(3) SA 812, where, the court held that postponement of the rule nisi has an automatic effect of extending the life of the rule. This was held on the ground that the relief was provided by the rule nisi and consequently to hold that the rule had lapsed would render the postponement nugatory as there would be no rule to confirm on the postponed return date.
[10] I hold a view that a rule nisi is primarily an interim order of the court and it has no independent existence but is conditional upon confirmation or discharge by the court.
[11] In the case of MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd 2000(4) SA 746(SCA) it was held that the court has no authority to mero motu extend the life of a lapsed order, irrespective of whether or not the relief sought is depended on the existence of the rule nisi.
[12] To me it means that on the return date, when the matter is postponed and there is no order of court dealing with the life of the rule nisi, the rule then lapses and consequently the umbrella of protection afforded to the applicant by the rule falls away, leading to the discharge of the duty of compliance on the respondent or defendant post expiry of the rule.
[13] In the National Director of Public Prosecutions v Walsh & others (5201/07 {2008} ZAGHC 398 (19 November 2008)- SAFLII the court provided that a rule nisi order is an unusual indulgence to the Applicant, as it permits the Applicant to exceptionally condemn the unheard respondents in their absence. Such practice goes against the general grain of fairness in the judicial process and it is for this reason that orders of this nature should be strictly temporarily and for a fixed limited duration.
[14] Therefore it is my opinion that it is solely the duty of the Applicant when postponing a return day for a matter incorporating a rule nisi order to bring to the attention of the court the existence of the rule to enable the court to extend the rule to specific date and the date to which the matter stands postponed, otherwise the rule simple lapses.
[15] In the matter of Themba Wele v Economic Freedom Fighters and others (509/15) [2016] ZAECBHC 3 (23 February 2016)- SAFLII Mbenenge J, as he then was at para 28 states the following:
“In any event, on the authority of Fischer v Fischer 1965(4) SA 644(W) the rule nisi granted on 6 October 2015 not having been extended to a particular date lost its validity and lapsed on 20 October 2015, on which day matter was postponed “sine die”, without the rule nisi having been extended to a particular date, and not subsequently revived. It is a salutary practice for Counsel and attorneys appearing to postpone a matter wherein there is an order incorporating a rule nisi to bring to the attention of the court the existence of the rule nisi to enable the court to extend the rule nisi to a specific date –the date to which the matter stands postponed, otherwise the rule simply lapses in instance such as here, where the parties consented to an order postponing the matter sine die.”
[16] I have been favoured with the court order that was granted on 18th June 2019, it reads as follows:
“(1) That the matter be and is hereby postponed sine die.
(2) That a Rule Nisi be and is hereby extended accordingly.
(3) That the respondent pays costs occasioned by the postponement.”
[17] Before I deal with the merits of this matter, I need to address an issue, namely, whether a matter postponed sine die and the rule nisi extended accordingly without a specific date leave the interim order alive or not. Put differently has the rule lapsed or not.
[18] In the Fischer (supra) matter it was held that a rule nisi is an order of court to which a fixed period of validity has been assigned. Once that period of validity has expired the rule lapses. It is my opinion that if on the return day the rule nisi is not postponed to a date it lapses since a rule nisi cannot just hang in the air. A matter that is postponed sine die I am of the view that it has no particular date to which it is postponed to.
[19] When I realized that there was an order granted on 18th June 2019, postponing the matter sine die and extending the rule nisi accordingly, I requested Counsel for the parties to prepare Heads of Argument on the question which I have raised above. I am grateful to both for their assistance in this matter.
[20] As I have indicated above, I have requested the Counsel for the parties to prepare brief Heads of Argument and address the issue of postponing a rule nisi sine die and extending it accordingly.
[21] In the case of Fischer (supra) a Rule Nisi which was postponed by consent sine die without a written date, the court found that the rule has lapsed.
[22] I agree with the judgment in the matter of Wele (supra) where the Honourable Mr Justice Mbenenge JP quoting with authority the case of Fischer that a rule nisi that is postponed sine die without extending the rule nisi to a specific date, lapses and a Rule Nisi that is postponed sine die without a specific date extending the rule has the effect of discharging the rule that was granted.
[23] In the matter of Peer NO v Enlie & others (3454/14) [2016] ZAECMHC29(31 May 2016)-SAFLII a rule nisi was granted on 4th December 2014. On 29th January 2015 the rule nisi was postponed sine die and the Rule Nisi was granted on 4th December 2014 was extended until the finalization of the second application and the trial instituted by the first Respondent under Case No. 390/2013. The rule nisi in the that matter was discharged not because of the rule being postponed sine die but because the Applicants in that matter lacked the necessary locus standi. That case in my humble opinion distinguishable from this one. What is common in the case and the case before me is that both are postponed sine die and the rule was extended accordingly without a date.
[24] In the case of Mulaudzi v Old Mutual Life Assurance Company Ltd and others 2017(6) 90 (SCA) the court set aside and substituted the order of the court below with the following:
“The Rule Nisi issued on 28 August 2014 is hereby extended until discharged or confirmed.”
[25] In the matter of Limpopo Legal Solutions v Eskom, Case No. 1811/2016(available on SAFLII) the court in paragraph 5 stated the following:
“On 2nd August 2016 the Rule Nisi was extended to 10 October 2016. On 10 October 2016 the application was postponed sine die with costs being awarded against the applicant. The rule nisi was extended until the date it is confirmed or discharged.”
[26] In the Limpopo (supra) matter the Rule that was granted on 31st May 2016 was discharged. It was not discharged because it has lapsed.
[27] It is trite law that the rule nisi that is extended until the date it is confirmed or discharged does not amount to the lapsing of the rule. It remains alive.
[28] Having considered the authorities, I conclude that the rule nisi has not lapsed.
[29] Furthermore the parties agreed in this matter on 18th June 2019 that the matter should be postponed sine die and the Rule Nisi be and is hereby extended accordingly. The first respondent was ordered to pay the costs of the application. It is my opinion that the intention of the parties was to keep the rule nisi that was originally granted on 14th May 2019 until the matter is finalized.
[30] It is not surprising in this matter why the Applicant delayed filing the replying affidavit. The reason is not hard to find because she knew the matter was postponed sine die and therefore the funds could be frozen to a date which is unknown. This I must mention could not be in the best interests of the children, who needs are always in the present tense.
[31] This is an application for an anti-dissipation interdict against the 2nd respondent. The effect of the relief sought would prevent the 2nd respondent from paying any monies to the 1st respondent pending the outcome of the divorce proceedings.
[32] The Applicant has instituted the divorce proceedings against the 1st respondent. The divorce proceedings were instituted at East London Circuit Local Division under case number: EL669/1269/2015. From the papers it does not appear that the 1st respondent filed any Notice of Intention to defend divorce proceedings.
[33] The parties were married to one another out of community of property on 30th December 2010 in terms of antenuptial contract. The marriage still subsists. Marital difficulties, have, raised between the parties which forced the Applicant to issue summons in which she claims a decree of divorce and certain ancillary reliefs, including an order directing the defendant to pay school fees for the children at Merrifield Preparatory School.
[34] In the founding affidavit there is no explanation why the divorce has taken so long to be finalized by the Applicant as she is not only dominus litis, but the matter was never defended by the 2nd respondent.
[35] From the marriage between the parties, they were blessed with two minor children, namely, K[…] Z[…] M[…], a boy born on 21 December 2008 and O[…] N[…] M[…], a boy born on 10th December 2006. They are both minor children.
[36] The minor children have been residing with the Applicant since the parties broke off. I must also mention that the Applicant and the minor children are no longer in East London. The minor children are enrolled at Graeme College at Grahamstown which according to the papers is cheaper school than Merrifield in East London.
[37] The Applicant’s case is that the first respondent’s pension funds kept by the second respondent should be frozen or withheld pending the outcome of the divorce proceedings which were instituted in 2015.
[38] She moved the application on behalf of her minor children whom I have mentioned above. In paragraph 18 of her founding affidavit she states the following:
“Despite the forgoing, the first respondent, other than the payment of children’s school fees at Graeme College contributes nothing towards the maintenance of the minor children in question.”
[39] It is clear from the founding affidavit that the Applicant is the one who is maintaining the children. In paragraph 29 the Applicant states the following:
“My concern is that if the first respondent cashes in his pension fund, the proceeds of the same will be used to pay the debts, as he has indicated he intends doing so and will also, in light of the fact that is not employed be used to maintain himself. The concern is obviously that there will be nothing or very little left to maintain the minor children born of the marriage subsequent to the fist respondent paying his debts and maintain himself.”
[40] It is common cause that the first respondent lost his employment. It is also not in dispute that both parties love their children. It is in the best interest of the children that they must be maintained by both of them.
[41] The paragraphs in the answering affidavit are not number. This makes it difficult to make a meaningful reference to them. The first respondent’s case is that he wants to cash his pension fund for him to pay his debts. In his answering affidavit the respondent states the following:
“The contents of these paragraphs are noted, the contents herein confirm my submissions, that if I was able to pay for fees in a more expensive school why would I now be unable to pay for them in a cheaper school. The contents further reveal that we had agreed that I pay for school fees that she would take care of the remainder, which agreement I maintained. The Applicant has never raised that she was bearing a disproportional financial burden, I would as requested play my role as a father to my children, they have been at my medial aid, I would but the clothes as when requested.”
[42] He further states the following: “My financial position is not precarious, I resigned from work, I have R1 4000 000-00 in my pension, which I have saved for myself and children. I have made an intent of withdrawal of R990 000-00 to clear my debts and subsistence and would leave about R500 000-00 in preservation for my future children.”
[43] He further states that the withdrawal will be used by him as follows:
(i) R262 000-00 for the BMW account;
(ii) R37 000-00 for the payment of his cheque account which he owes;
(iii) R10 000-00 for his credit card which he owes;
(iv) Personal loan of R77 000-00;
(v) Revolving credit of R12 000-00;
(vi) Markhams clothing account for R7 000-00;
(vii) Woolworths account for R21 500-00;
(viii) African Bank for R11 000-00;
(ix) School fees for children and other needs for R40 000-00;
(x) Stipend for himself for 6 months whilst he is looking for employment.
[44] In the replying affidavit, it is not refuted by the Applicant that the 1st Respondent, intend to make his withdrawal for school fees for children and other needs in the amount of R40 000-00.
[45] As I have mentioned above, the application is, in the main for the maintenance of minor children. The application in my opinion is not for the benefit of the Applicant. I agree with the Applicant’s Counsel that the present application involves the consideration of the best interests of the minor children.
[46] Section 28 of the Constitution of the Republic of South Africa, 1996 provides as follows:
“(1) Every child has the right –
(a) to a name and nationality from birth;
(b) …
(c) to basic nutrition, shelter, basic health, care services and social services;
(d) …;
(e) …;
(f) …
(g) …
(h) …
(i) …
(2) A child’s best interests are of paramount importance in every matter concerning the child.”
[47] See also: The Children’s Act 38 of 2005, section 7 thereof, and dealing with the best interest of the child standard. Furthermore, section 9 of the Children’s Act provides that in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.
[48] Furthermore section 39 of the Constitution provides that when interpreting any legislation, and when developing the common law, customary law, every court, tribunal of forum promote the spirit, purport and objects of the Bill of Rights.
[49] It is common cause as I have indicated above that the parties were married out of community of property with application of the accrual system. It is also common cause that the Applicant instituted divorce proceedings against the first respondent on 23rd June 2015. Except for a notice in terms of rule 35, no further action was taken by the Applicant to bring the divorce action to finality. I mention this because the divorce proceedings are undefended. It is my opinion that Applicant for reasons unknown to her delayed the finalization of the divorce proceedings.
[50] In the founding affidavit the Applicant makes averments that the first respondent will not be able to pay maintenance towards the children if the anti-dissipation order is not granted. On the other hand the first respondent states categorically that if the funds are released he will pay his debt and also pay for the school fess of his children.
[51] I am unable to find that if the rule nisi is discharged the first respondent will get rid of the funds or that his intention is of defeating the claims for the creditors. I am also unable to find that the intention of the first respondent is not to pay school fees and to maintain his children.
[52] The Applicant would have to be successful in this application if it can be shown that the first responded acted mala fide. It is my opinion that the first respondent at all times is bona fide in his actions.
[53] It is trite law that to establish the requirements for the granting of an interim interdict, an applicant must establish;
(a) Prima facie right in the subject matter of the dispute;
(b) An apprehension o irreparable harm if the interim interdict is not granted and the final relief is granted in due course;
(c) The balance of convenience in his or her favour;
(d) The absence of a satisfactory alternative remedy. See: Erasmus Superior Court Practice, Cape Town, Juta and Company, 1994, E-9
[54] There are elements to be established to justify the granting of an anti-dissipation interdict, From the authorities that I will refer below, it appears to me that it is still necessary for an applicant to establish those well-known elements, although he or she may, in some instances be assisted by a presumption that operates in his or her favour.
[55] In Knox D’arcy Ltd and others v Jameson & others [1996] ZASCA 58; 1996 (4) SA 348 (AD)the court dealt with whether it was necessary for an applicant to establish that the respondent was, in fact, dissipating his or her assets, or was likely to, with the intention of defeating the applicant’s claim to those assets. Grosskopf JA held as follows regarding application of this kind as follows:
“The question which arises from this approach is whether an applicant need show a 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 creditors. Having regard to the purpose of this type of interdict, the answer must be, I consider, yes, except possibly in exceptional case. As I have said, the effect of the interdict is to prevent the respondent from freely dealing with his own property to which the applicant lays no claim. Justice may require this restriction in cases where the respondent is shown to be acting mala fide with the intention of preventing execution in respect of the applicant’s claim. However, there would not normally be any justification to compel the respondent to regulate his bona fide expedition so as to retain funds in his patrimony for the payment of claims (particularly disputed ones) against him. I am not, of course, at the moment dealing with special situations which might arise, for instance, by contract or under the law of insolvency.”
[56] The court in the Knox (supra) matter referred to the matter of Messina v South African Railways and Harbours 1929 AD 195 where the following was stated:
“In an application for an interim interdict pending action, the court has large discretion in granting or withholding an interdict. Where there is mere possibility, not a practical certainty, of interference or injury, as in the present case, the court will be reluctant to grant an interdict, especially if the party seeking the interdict will have other means of redress and will not suffer irreparable damage. The court is entitled to and must regard the possible consequences, both to the Applicant and to the respondent, which will ensue if an interdict is grant or withheld.”
[57] In Fedsure Life Assurance CO. LTD v Worldwide African Investment Holdings (Pty) Ltd and Others 2003 (3) SA 268(W) at paragraphs 27-28, Cloete J. held, after setting out the requirements for the granting of an interim interdict, that the test was less stringent in some cases:
“[27] There are two exceptions to the requirements set out in Eriksen. They occur in applications for interim relief pending vindicatory and ‘quasi-vindicatory’ actions. A vindicatory action has been categorized as one in which the Plaintiff claims delivery of specific property as owner or lawful possessor; and an action has been categorized as ‘quasi-vindicatory’ when delivery of specific property is claimed under some legal right to obtain possession... I do not wish to be detained by terminology. In all such cases it has been settled law in this Division for over half a century that:
“The court is entitled to ensure that the thing shall be preserved until the dispute is decided finally,”
[28] The two exceptions are the following:
“the applicant need not allege irreparable loss inasmuch as there is a presumption, which may be rebutted by the respondent, that the injury is irreparable…. nor need the applicant show what it has no other satisfactory remedy.”
[58] In Fey NO v Vander Westhuizen & others [2003] 2 ALLSA 79 (C) the court held that it was not necessary for the Applicant to establish an intention to dissipate because the matter involved a quasi-proprietary or quasi-vindicatory claim in which the applicant claims delivery of specific property under some legal right to possession. The court held that the case being under the law of Insolvency, is one in which the claim is quasi-vindicatory, an exceptional case, in which intention is not required to be shown by the Applicant.
[59] In the case of RS v MS 2014(2) SA 511 GSJ, the court stated the following:
“But, even if these jurisdictional requirements are present, then an applicant must still show a well-grounded apprehension of irreparable loss, should the interdict pendent lite not be granted. It is perhaps apposite to point out that, as of the draconian nature, invasiveness and conceivable in equitable consequences of such anti-dissipation relief, the courts have been reluctant to grant it, except in clearest of cases.”
[60] In the case RS (supra) the court stated the following;
“However, it is trite that even a contingent right to claim half of the accrual in the Estate of the other spouse could be protectable interdict pendete lite, but then an applicant for such relief must show:
(a) That the respondent has assets within the jurisdiction of the
court;
(b) That the respondent, prima facie has no bona fide defence
against the applicant’s alleged contingent rights;
(c) The respondent had intention to defeat the applicant’s claim
or to render it hollow by dissipating or secreting assets.”
[61] It is trite law that the applicant stands or fall by the founding affidavit. The Applicant has failed in my view, to establish that she will, indeed, suffer irreparable injury if the funds are released to the first respondent. She has failed to establish that the children will suffer irreparable harm if the funds are released to the first respondent. He has indicated he will pay the school fees for the children. Moreover, it has not been shown in the circumstances of this matter, that the first respondent is acting mala fide with the intention of evading his maintenance obligation.
[62] The court is an upper guardian of the minor children. That being the position it is important to ask a question, whether the interests of the children are best served when the funds are frozen pending the outcome of a divorce proceedings which date is not known by the any party.
[63] I believe the interests of the minor children can best be served when the funds are made available. Frozen funds, it is my opinion do not help the children at all. The minor children need to be supported by his father, not at the end of the divorce proceedings, but when funds are made available to their father. He must pay school fees, contribute towards the welfare of the children and such, he cannot do if the funds are kept by the second respondent.
[64] In my opinion, there is no evidence that the first respondent has intention to thwart the maintenance of his children. His conduct regarding the paying of school fees does not serve to create the impression that he is not willing to take care of his children.
[65] Having considered the whole case, I make the following order:
(a) The Applicant is condoned for the late filing of replying affidavit.
(b) The application is dismissed with costs.
(c) The rule nisi granted on 14th May 2019 is discharged.
(d) The applicant is ordered to pay the respondent’s costs on a party and party scale.
_____________________________
N.R. MTSHABE
ACTING JUDGE OF THE HIGH COURT EASTERN CAPE DIVISION
GRAHAMSTOWN
APPEARANCES FOR THE APPLICANT: ADV. S. STRETCH
INSTRUCTED BY: CLOETE & COMPANY
112 A HIGH STREET,
GRAHAMSTOWN
FOR THE RESPONDENTS: ADV. W.H.OLIVIER
INSTRUCTED BY: ZEPE ATTORNEYS
C/O YOKWANA ATTORNEYS
E.P.B.S BUILDING
87 HIGH STREET
GRAHAMSTOWN