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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION (MAIN SEAT)

CASE NO:  549 / 2020

In the matter between:

J B                                                                                                                           Applicant

and

M B                                                                                                                      Respondent

 

JUDGMENT

 

Coram: Brauckmann AJ:

[1] Maintenance pendente lite is intended to be interim and temporary and cannot be determined with the same degree of precision as would be possible in a trial where detailed evidence is adduced[1]. This Court has, broadly speaking, inherent jurisdiction at common law in all matters except where such jurisdiction is excluded by statute and, in the absence of any jurisdictional limitations, subject to the doctrine of effectiveness[2].

[2] Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum[3]. In Mukaddam v Pioneer Foods (Pty) Ltd Mukaddam v Pioneer Foods (Pty) Ltd[4]  Jafta J, writing for the majority, stated:

“[28] ... Our Constitution guarantees everyone the right of access to courts which are independent of other arms of government. But the guarantee in s 34 of the Constitution does not include the choice of procedure or forum in which access to courts is to be exercised. This omission is in line with the recognition that courts have an inherent power to protect and regulate their own process in terms of s 173 of the Constitution, to which I shall turn in a moment. ...

[31] However, a litigant who wishes to exercise the right of access to courts is required to follow certain defined procedures to enable the court to adjudicate a dispute. In the main these procedures are contained in the rules of each court. The Uniform Rules regulate form and process of the high courts. The Supreme Court of Appeal and this court have their own rules. These rules confer procedural rights on litigants and also help in creating certainty in procedures to be followed if relief of a particular kind is sought.

[32] It is important that the rules of courts are used as tools to facilitate access to courts rather than hindering it. Hence rules are made for courts and not that the courts are established for rules. Therefore, the primary function of the rules of courts is the attainment of justice. But sometimes circumstances arise which are not provided for in the rules. The proper course in those circumstances is to approach the court itself for guidance. After all, in terms of s 173 each superior court is the master of its process. ...

[42] ... The language of the section suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the facts of a particular case to require a procedure different from the one normally followed. When this happens it is the court in which the case is instituted that decides whether a specific procedure should be permitted.’[Emphasis added]

[3] Rule 43 of the High Court Rules provides a comparatively inexpensive and speedy remedy when maintenance pendente lite and/or a contribution towards the costs of a pending matrimonial action pendente lite are sought by one of the parties. The provisions of this rule must be observed strictly.

[4] Applicants in rule 43 applications are almost invariably women who, as in most countries, occupy the lowest economic rung and are generally in a less favourable financial position than their husbands are. Black women in South Africa historically have been doubly oppressed by both their race and gender. The inferior economic position of women is a stark reality. The gender imbalance in homes and society in general remains a challenge both for society at large, and for our courts. This is particularly apparent in applications for maintenance where systemic failures to enforce maintenance orders have negatively impacted the rule of law. It is women who are primarily left to nurture their children and shoulder the related financial burden. To alleviate this burden our courts must ensure that the existing legal framework, to protect the most vulnerable groups in society, operates effectively[5]. As noted by Mokgoro J in Bannatyne v Bannatyne (Commission for Gender Equality as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111; [2002] ZACC 31) para

[5] In terms of section 8 of the Constitution[6] the judiciary is bound by the Bill of Rights[7]. Courts are empowered to ensure that constitutional rights are enforced. They are thus obliged to grant 'appropriate relief' to those whose rights have been infringed or threatened[8]. In Fose v Minister of Safety and Security[9]  Ackermann J said:

'. . . I have no doubt that this Court has a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched in it. In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated. The courts have a particular responsibility in this regard and are obliged to ''forge new tools'' and shape innovative remedies, if needs be, to achieve this goal.'[Emphasis added]

[6] Maintenance may be claimed where a claimant has the need for maintenance, and the defendant is in a position to pay the claimed maintenance or a part thereof[10]. In Botha v Botha[11], in the context of rule 43 applications, SATCHWELL J stated that the court was referred to a number of judgments which support the approach that the needy spouse is entitled to maintenance from the financially able spouse solely on the basis that she could not herself maintain the standard of living established during the marriage.

[6] Rule 43 of the uniform Rules of The High Court states as follows:

“Interim relief in matrimonial matters

(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:

(a) Maintenance pendente lite;

(b) A contribution towards the costs of a matrimonial action, pending or about to be instituted;

(c) Interim care of any child;

(d) Interim contact with any child.

(2) (a) An applicant applying for any relief referred to in subrule (1) shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent corresponding with Form 17 of the First Schedule.”{Emphasis added]

[8] Hahlo[12] mentions, with reference to Mostert v Mostert[13] and Taute v Taute[14], that:

“As long as a husband maintains his wife and children adequately the mere apprehension that he might no longer do so in future is not a sufficient ground for granting an order for maintenance pendent lite”

[9] In the unopposed application applicant alleges that there is a dispute between the parties involving the quantum of maintenance to be paid to the respondent for the two children and herself, pendene lite. The Applicant wishes for this dispute to be adjudicated in the Rule 43 application he brought, in order to, as stated by applicant’s counsel, Adv Keijser, to “clarify such issue”. The dispute about the quantum of maintenance apparently resulted from a “repudiation” of a settlement agreement entered into between the parties during December 2019. The court is concerned about the fact that the settlement agreement refers to the “Regional Court for the Regional Division of Mpumalanga, held at Eerstehoek”. Further, in the settlement agreement’s introduction, the parties agreed:

“e) That upon receipt of an unopposed trial date the Plaintiff shall approach the above Honourable Court for a decree of divorce, incorporating the settlement agreement.”

Although the Applicant tenders the amount, he seeks for this Court to adjudicate the pending issue between the parties by way of considering same and ruling thereon pending the finalisation of the divorce action. As will become apparent later in this judgment, I am of the view that it is not the applicant’s intention.

[10] Two concerns immediately appears from the applicant’s application and the averments in the papers referred to above, namely; firstly, whether this court has any jurisdiction in the matter where, according to the annexures (Annexure D) to applicant’s own founding affidavit, the applicant is waiting for a date on the unopposed trial roll in the regional court; and secondly, whether the settlement agreement was cancelled through the respondent’s alleged repudiation, and acceptance thereof by the applicant. The normal law of contract regulates the settlement agreement, its terms and enforcement thereof.

[11] Clause 8 of the settlement agreement attached to the founding affidavit as annexure D contains the standard ‘non-variance clause’:

“This is the full and final agreement between the parties and settles all disputes between them in respect of the divorce action under the aforementioned case number. No amendment of this agreement shall have any force or effect unless it is done in writing and signed by both parties.”

It is my view that the applicant did not take the court into his confidence and failed to disclose why, when and how the respondent allegedly repudiated the settlement agreement.

[12] Rule 43 applications, like any other motion court applications, require the applicant to make out her or his case in the founding papers. Cilliers Loots & Nel Herbstein & Van Winsen remind us that:

“the founding affidavit must set out a cause of action” and that “if it does not, the respondent is entitled to ask the court to dismiss the application on the grounds that it discloses no basis on which the relief can be granted”[15].

Thus, an applicant must stand or fall by the allegations made in the founding affidavit and the facts set out in it.[16] Applicants must therefore stand or fall by their founding affidavit.[17] That is so, even where an application is unopposed like in casu.

[13] Although, as stated in J v J[18]:

“When a court sits as upper guardian in a custody matter it has extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitation of the evidence presented or contentions advanced by the respective parties. Furthermore, the interests of minors should not be 'held to ransom for the sake of legal niceties' and the best interests of the child should not be mechanically sacrificed on the altar of jurisdictional formalism." [Emphasis added.]

The court may not simply close its eyes to the requirement of our law in terms whereof applicants for relief must make out a case (disclose a cause of action) sufficient to sustain the required relief in his or her papers (be it affidavits in applications or pleadings in actions). Counsel for applicant implored the court to use its inherent jurisdiction, and powers as given to it in section 173 of the constitution to come to the assistance of the applicant, and according to her, the minor children, as the court is seized with a matter in which it is deciding issues which are of paramount importance: the best interests of the child.

[14] The language of section 173 suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the facts of a particular case to require a procedure different from the one normally followed. When this happens it is the court in which the case is instituted that decides whether a specific procedure should be permitted.[19] In this matter the applicant calls upon the court to exercise its inherent jurisdiction to overcome procedural deficiencies in his case. The court cannot, where an applicant fails to make out his case in his papers, use a “magic wand” in the form of section 173 of the constitution to come to his or her assistance. He remains bound to what was pleaded and in that regard Rule 43 (2) (a) of the Uniform Rules is clear:

“(2) (a) An applicant applying for any relief referred to in subrule

(1) shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent corresponding with Form 17 of the First Schedule.”[Emphasis added]

[15] In the Constitutional Court in South African Broadcasting Corp Ltd v National Director of Public Prosecutions[20] it was held that section 173 of the constitution:

‘[35] ... This is an important provision which recognises both the power of Courts to protect and regulate their own process as well as their power to develop the common law. It is the former power that is of relevance in this case. It must be understood in the context of s 165, which provides that the judicial authority is vested in courts, that they are independent, and must apply the law impartially and without fear, favour or prejudice.

[36] Courts, therefore, must be independent and impartial. The power recognised in s 173 is a key tool for Courts to ensure their own independence and impartiality. It recognises that Courts have the inherent power to regulate and protect their own process. A primary purpose for the exercise of that power must be to ensure that proceedings before Courts are fair. It is therefore fitting that the only qualification on the exercise of that power contained in s 173 is that Courts in exercising this power must take into account the interests of justice.”

However, Moseneke DCJ added:

“In my view it must be added that the power conferred on the High Courts, Supreme Court of Appeal and this Court in s 173 is not an unbounded additional instrument to limit or deny vested or entrenched rights. The power in s 173 vests in the judiciary the authority to uphold, to protect and to fulfil the judicial function of administering justice in a regular, orderly and effective manner. Said otherwise, it is the authority to prevent any possible abuse of process and to allow a Court to act effectively within its jurisdiction. However, the inherent power to regulate and control process and to preserve what is in the interests of justice does not translate into judicial authority to impinge on a right that has otherwise vested or has been conferred by the Constitution.”[21][Emphasis added].'

[16] In Mukaddam v Pioneer Foods (Pty) Ltd and Others,[22]Jafta J in dealing with s 173 of the Constitution stated:

“The language of the section suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the facts of a particular case to require a procedure different from the one normally followed. When this happens it is the court in which the case is instituted that decides whether a specific procedure should be permitted.’[Emphasis added]

[15] The court may not use its inherent jurisdiction to the Court does not have an inherent power to create substantive law. The distinction between substantive law and procedural law has been analysed in detail in a number of cases.

‘The dividing line between substantive and adjectival law is not always an easy one to draw (cf Minister of the Interior and Another v Harris and Others 1952 (4) SA 769 (A) at 781C - H; Botes v Van Deventer 1966 (3) SA 182 (A) at 198H; Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 (PC) at 836B; Salmond Jurisprudence 11th ed at 503 - 4; Paton Jurisprudence 4th ed para 127). Salmond (op cit at 504) states that: "Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained."[23] [Emphasis added]

[16] Turning to applicant’s case, he approached the court to make an offer of maintenance to the respondent an order of court, and applicant requests this Court to order a contact structure vis-à-vis the children in his favour whilst the court decide the dispute abut the quantum of maintenance he has to pay to the respondent and children. While the court may make the orders sought, it is not clear whether it may make such orders where no dispute is evident from the papers. The applicant wants the court to rely on his ipse dixit with respect to the alleged dispute about the quantum of the maintenance. I have indicated earlier that the settlement agreement annexed to the founding affidavit prima facie disposes of all disputes between the parties. In order to cancel the agreement, even if respondent repudiates the agreement, it has to be in writing. Even if I am wrong on that score, the applicant could easily have provided more particular about the alleged “repudiation” by respondent.

[17] When the parties impose restrictions on their own power of subsequent variation or cancellation of their contract, with the laudable object of achieving certainty and avoiding disputes about whether a variation or cancellation has been agreed, they will incorporate in their contract a non-variation clause. Typically, a non-variation clause provides that no subsequent agreement between the parties on a specified topic (for instance subletting, cancellation, additional work in a building contract) shall be valid unless it is in writing, or that no variation of any of the terms of the contract (including the non-variation clause itself) shall be valid unless it is in writing, and signed by the parties. Since a non-variation clause curtails common-law freedom to contract, it must be restrictively interpreted. A non-variation clause will effectively prevent waiver in the general sense of an informal agreement to vary or cancel the contract but it will not prevent one party waiving a provision of the contract that is entirely for its benefit or waiving the right to pursue its remedy for a breach that has already occurred. The reason is that waiver in this sense does not amount to a variation of the contract but is either a pactum de non petendo that can stand alongside it or a unilateral act that does not require the consent of the other party. The parties may also waive a non-variation clause by simply not relying on it even when litigation ensues. Unlike illegality, the existence of such a clause is not a point that could be raised by the court mero motu.[24]

[18] The “care and contact” arrangements between applicant and respondent is not in dispute at all. The only reason proffered by the applicant for approaching this court to have the order made is that it is in the best interest of the children. The structure of applicant’s contact with the children have been in place since the parties separated in July 2019. There is no indication that the respondent refuses the current arrangement with respect to the contact by the applicant with his children. Taking into account the statement by Hahlo[25], I fail to comprehend why the applicant approached the court for an order in respect of this aspect at all. The Court was referred to various judgments by counsel wherein this aspect of the divorce was not in dispute, but the courts made the order as sought[26]. There is a difference between the cases referred to and the current matter, and therefore it is no authority for the statement by Adv Keijser. In the cases there were disputed claims for, amongst other maintenance. The orders in respect of the children were almost made as an aside. Counsel for applicant states that he seeks to confirm the care and contact arrangements simultaneously with the maintenance issue, in order to prevent a piecemeal adjudication of issues in the pending divorce action. I am firmly of the view that in the event I find that applicant was not entitled to approach court with respect to the alleged maintenance dispute; the relief with respect to the children should also follow.

[19] Applicant, in his founding affidavit, states that since August 2019, the respondent and he, through their attorneys and amongst themselves, tried to settle the issues in the divorce proceedings, without success. The applicant states that respondent persisted in making unreasonable demands in respect of the maintenance of the children. The applicant states that the only dispute that cannot be settled is the quantum of the maintenance. According to the bank statements that applicant attached to his affidavit, he has been paying R 9000.00 per month to the respondent. It does not seem as if he has ever stopped paying the maintenance, or that he intends to cease with the payments.

[20] In paragraph 5.10 of his affidavit he states:

“This application is mainly as a result of the inability of the Respondent and I to reach an agreement about the maintenance for the children. Neither of the parties can afford to litigate but I have no alternative in bringing this application to have the maintenance aspect adjudicated. The Respondent instituted proceedings against me in the maintenance court, which was postponed to early February 2020, and I would rather have all issues dealt with in the divorce court as opposed to the divorce court and the maintenance court” [Emphasis added]

[21] On applicant’s evidence, with the exception of the quantum of the maintenance in respect of the children, there are no outstanding issues that can delay the divorce from being finalised as per the settlement agreement which in the court’s opinion have not been cancelled, alternatively, the applicant failed to prove to the court that it is not binding anymore. The attorneys acting for the parties should have resorted to mediation in this matter long ago. According to applicant the continuous exchange of correspondence between the attorneys about the maintenance amounts to wasteful expenditure. The matter can easily be set down on the roll, and the divorce be finalised. The maintenance aspect may then, in terms of a court order be referred to a maintenance court that is not only much more reasonable in relation to fees, but also geared to handle maintenance enquiries. This court is simply not the forum to try that aspect. The maintenance court is also situated in Ermelo, Mpumalanga, where both parties reside. In terms of the Maintenance Act[27] the maintenance officer must assist the parties to settle the matter if possible.

[22] Adv Keijser submitted that the wording of Rule 43 provides for “seeking relief” that includes having an issue for maintenance adjudicated, and that it is not limited to a “claim for maintenance”. Such an interpretation, so she submits, would be too limited in light of the equality that parties ought to have in divorce proceedings. The applicant, being liable for maintenance, has a right to have the maintenance aspect adjudicated and “seeks relief” from the Court. It is submitted that the applicant is entitled to approach the Court by means of a Rule 43 application to adjudicate a pending dispute between the parties, despite the fact that the applicant is the party who should pay the maintenance. This would prevent the parties from having to continuously pay legal costs to their respective attorneys for attempting to solve the issue by way of correspondence.

[23] Any a party may, approach the court, on the same procedure, to vary its decision in the event of a material change occurring in the circumstances of either party or a child[28]. In casu it is not what is happening. There is no order by this court in favour of the respondent, and the court cannot vary its own order. The applicant laments about his financial position, which is set out in the founding affidavit, and annexures. This application is in nature an endeavour by the applicant to “force” the respondent’s hand to reach a settlement with respect to the maintenance. I am of the view that the applicant is abusing the process. That much appears from the applicant’s affidavit. He has been paying R 9000.00 per month in respect of the children, and now wishes to reduce the maintenance payments to R 7000.00 per month. As reason he states that he is in financial dire straits. It is not clear from the papers whether that was his position prior to the conclusion of the binding settlement agreement, when he borrowed money from banks to fund his fishing trips as part of the national team, or went on a spending spree to purchase furniture and appliances.

[24] The applicant’s paucity about the alleged repudiation of the settlement agreement is in my view one of the unsurmountable hurdles in the way for this court to come to the applicant’s assistance. I am of the view that the particulars provided are insufficient for this court to find that the agreement is not binding on the parties.  Even if I am wrong in finding accordingly, the only outstanding issue in the whole divorce action, according to his founding affidavit, is the children’s maintenance. The maintenance court has apparently already been approached to settle the alleged dispute. The court, sitting as motion court in rule 43 applications is not a “divorce court” that applicant wants to adjudicate his maintenance dispute.

[25] Much has been said about the applicant’s right to equality and to have disputes adjudicated by a court of law. I accept that a husband in divorce proceedings may approach a court for relief. The court is alive to the fact that many households in the country are wholly supported by women as the only breadwinner. It is not the court’s view that men may not approach the court for relief in terms of Rule 43. It is the cause of action that determines whether the court may hear, or will hear and adjudicate a matter. The primary function of the rules of courts is the attainment of justice. But sometimes circumstances arise which are not provided for in the rules. The proper course in those circumstances is to approach the court itself for guidance. After all, in terms of s 173 each superior court is the master of its process. The court may only hear matters if there is a real dispute to adjudicate. In casu, and for the reasons as stated there is no dispute between the parties.

[26] As referred to earlier, this court is also concerned about the fact that it appears as if the divorce action is also pending before the regional court. If that is a fact, and as long as the action in that court remains alive, this court is not, unless there are special circumstances, readily prepared to come to the assistance of the applicant. In SW v SW it was held that a litigant who is a party to a divorce action pending before a magistrate’s court for a regional division cannot invoke the jurisdiction of the High Court to secure relief in terms of this rule. The High Court could, however, exercise its inherent common-law jurisdiction to act in appropriate circumstances in the interests of minor children to make an order, notwithstanding such proceedings. To invoke such inherent jurisdiction the applicant must establish (a) that considerations of urgency justify the intervention; and (b) that intervention is necessary to protect the best interests of the minor. It is not a jurisdiction that will be lightly exercised by the High Court[29]. Those requirements were not met in this application.

[27] The minor children’s best interest are well catered for by both parties. Applicant pays the maintenance as agreed and has access to the children as agreed. There does not seem to exist a dispute needing to be adjudicated in order to grant relief. The only relief that is in fact sought by the applicant is to “enlist” the court’s assistance to force the respondent to settle the main action. That the court cannot do, and it is not the purpose of the rule. There is no ambiguity in the rule, and therefore the court’s inherent jurisdiction does not enter the fray.

[28] The application was not opposed by the respondent. I am therefore not going to enquire into the costs. And will make no order as to costs.

[29] I make the following order:

[29.1] the application is dismissed. 

                                                                       

 ______________________________

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

(HANDED DOWN PER EMAIL DUE TO COVID 19; JUDGMENT DEEMED TO BE HANDED DOWN ON 08 JUNE 2020)

 

REPRESENTATIVE FOR THE APPELLANT: ADV L KEIJSER

INSTRUCTED BY: CHARL LOCHNER ATTORNEYS litigation@charllochner.co.za

 

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