CASE LAW UPDATE

Facts: The applicant and the respondent are involved in protracted and acrimonious divorce proceedings. The parties were married in 2007 out of community of property with the application of the accrual system, and their divorce proceedings are pending before the court with no end in sight. The applicant and the respondent have two minor daughters, aged 16 and 12. In 2019, the respondent instituted divorce proceedings against the applicant. The issue in the divorce proceedings is the respondent's claim for personal maintenance, the respondent's accrual claim, and the maintenance in respect of the minor children. While the divorce proceedings are still underway and awaiting finalisation, the respective parties have instituted several interlocutory applications against each other. The applicant owned a house at Stonehurst, the parties’ erstwhile matrimonial home. The applicant's wife (the respondent) and their two minor children occupied the property. In terms of the Rule 43 order granted, the applicant was ordered to pay the monthly bond instalment in respect of this property.

Application: The applicant brought an application on an urgent basis in terms of Uniform Rule 43(6) to vary paragraph 4 of the Rule 43 order granted by the court a quo. According to paragraph 4 of the Rule 43 order, the applicant was ordered to pay the costs for the accommodation of both the respondent and her children at the Stonehurst property, which served as their matrimonial home.

Discussion: Without a court order varying the Rule 43 order granted, the applicant unilaterally sold the Stonehurst property occupied by his minor children and his wife. The applicant's attorney addressed a correspondence to the respondent's attorney advising her that the Stonehurst property occupied by her client had been sold and that the transfer of the property was due to take place. In that correspondence, the applicant advised the respondent that the applicant was prepared to pay the respondent R15,000 on registration of transfer towards the respondent's occupation elsewhere for a calendar year. The applicant is currently in arrears with his maintenance obligation for the sum of over R180,000. In addition to the cash component, the applicant was ordered to pay the accommodation costs for the applicant and the minor children by paying the monthly bond instalment for the Stonehurst property, their erstwhile matrimonial home. Concernedly, without making any concrete arrangements for the accommodation of the minor children and the respondent and despite the Rule 43 court order on the matrimonial property granted, the applicant unilaterally sold the property occupied by his children and the respondent. The property was sold notwithstanding that the court order required the respondent and the minor children to continue residing there. This application for variation was submitted shortly before the registration of the transfer was completed.

Findings: The respondent is currently unemployed and has no source of income. If the Rule 43(6) order is granted in the manner prayed for by the applicant, the respondent and the minor children would be left on the street without a roof over their heads. The applicant did not source an alternative accommodation for the respondent and the minor children. The applicant did nothing to ensure that he provided alternative accommodation for the respondent and the minor children. The applicant implored the court to vary the original order, which provided a secure, homely environment for the respondent and the children. The order sought by the applicant is at odds with the best interest of his children, especially considering that the respondent was unemployed and had no source of income. The respondent and the minor children are vulnerable, and the respondent would not immediately be able to obtain a lease in her name nor qualify for bridging finance to pay a rental deposit and related costs, which the applicant wanted her to pay, as she was unemployed. The children are vulnerable and incapable of supporting themselves. Granting an order with the potential to render both the respondent and the minor children homeless would constitute a failure in the court’s obligation as the upper guardian of minor children. Given these circumstances, it is critical to ensure that the order the court makes guaranteed prompt payments from the applicant, so that the minor children and the respondent are not left destituted and adversely affected.

Order: The applicant shall pay the respondent the sum of R16,000 for maintenance of the respondent and their minor children in respect of rental. The first payment of R16,000 (plus a deposit of R32,000) in respect of new rental premises for the respondent and the minor children shall be paid to the respondent on the following conditions: As soon as the applicant has paid all his arear maintenance to the respondent; and the respondent and the minor children shall vacate the matrimonial home into new rental premises once the applicant has complied with the orders above.

LEKHULENI J

Facts: In 1997, the plaintiff, Mrs TH married the defendant, Mr TH, out of community of property and without an accrual system. There are no children born out of the marriage. Mrs TH testified that in 2022 she left the common home as she could no longer take the abuse from Mr TH, who in her evidence was an abusive and racist person. She testified at length about her financial quandaries. She continuously made loans and sought assistance from her family members. She launched a Uniform Rule 43 application and this court awarded her alimony pendente lite of R17,500. As at the trial of the action she was continuing to receive the alimony, yet she continued to struggle financially. Because she was unable to manage her finances, she became blacklisted and had maxed all her various credit cards. The parties were married for 25 years and the plaintiff had been working for those 25 years.

Claim: Mrs TH and Mr TH agreed that a decree of divorce be granted by the court. The remaining issue to be tackled in this judgment is the claim by Mrs TH to have Mr TH ordered by this court to pay to her maintenance in the amount of R28,000 per month until her death and to retain her on a medical aid paid by him.

Discussion: Section 7(2) of the Divorce Act 70 of 1979 sets out various factors that a court may have regard to in order to make a just order of payment of maintenance to the other party. It must be so that the onus lies on the claimant to adduce evidence in support of the claim for spousal support. A person claiming maintenance must establish a need to be supported by the other spouse. The defendant contended that the plaintiff was always in employment and she never retired. She actually worked from home. She always paid for her personal needs and was in control of her finances, including her late mother’s pension monies. He is self-employed and he is involved in three interrelated businesses. He confirmed that the business is not doing well, it retrenched employees and his salary was reduced. Regard being had to the financial needs and obligations, those of the defendant, in the counter-balancing act, outweigh those of the plaintiff. The defendant is a chronic diabetic and has serious health conditions which put a serious financial strain and obligations on him.

Findings: The plaintiff worked for the duration of the marriage, she has no children of her own, and most importantly she is skilled in the area of sales and she is capable of using her skill optimally to support herself. The plaintiff on her own version was financially irresponsible and continued with this irresponsible path even after the Rule 43 order. She simply looked at the defendant as a wealthy person without any insight into the financial position of the defendant and his companies. Without any cogent evidence, she suggested that the defendant was hiding his earnings. On the contrary, she failed to disclose to the court her earnings for the period of six months. On the available evidence it cannot be found that equity demands a balancing exercise in favour of the plaintiff. When the evidence is considered objectively, both parties have existing and prospective means to deal with the consequences of the breakdown of the marriage. The court is unable to exercise its discretion in favour of ordering maintenance for her for life.

Order: The divorce is granted. The claim for spousal maintenance is dismissed. Each party to pay its own costs.

MOSHOANA J

Facts: An order was handed down which declared invalid a resolution of the City Council. Under that resolution, the City Council appointed Mr Brink to the post of City Manager of the City of Johannesburg Metropolitan Municipality. The order also declared another resolution invalid. The resolution reversed the City Council’s previous resolution to re-advertise the post of City Manager. The City Council took the resolution because it had reached the conclusion that a previous effort to recruit a City Manager had not produced an appointable candidate. The nett effect of the order was to reverse Mr Brink’s appointment. Realising this, the court declared that, notwithstanding the fact that Mr Brink had been unlawfully appointed, his official decisions and acts would not be rendered invalid merely because of the unlawfulness of his appointment. The order also suspended the declarations of invalidity for ten days in order to allow for the appointment of an Acting City Manager. This case is about what the City Council did to comply with that order. Instead of causing Mr Brink to vacate his office, and appointing an Acting City Manager, the City Council purported to comply with the order by passing another resolution. That resolution was adopted. Its effect was, in substance, to re-adopt the resolutions that the order had declared unlawful. In consequence, Mr Brink did not vacate his office. An Acting City Manager was not appointed, and things carried on more or less as if the order had never been given.

Application: The applicant, the DA, now impugns the lawfulness of that outcome and the process the City Council adopted to reach it. The DA seeks to review and set aside the resolution. The DA’s case is, first, that the outcome breached the terms of the order itself. The DA contends that the order created a vacancy in the office of the City Manager. That meant that Mr Brink had to leave his post, that an Acting City Manager had to be appointed, and that the permanent vacancy had to be readvertised, as was required by the City Council’s own resolution. Secondly, the DA contends that the manner in which the City Council went about readopting the resolutions the order had declared unlawful was itself procedurally flawed. It did not comply with the City Council’s own standing rules.

Discussion: The report laid before the City Council was mistaken. What the judgment identified was not just a technical defect in the procedure the Council adopted, but an inappropriate haste to adopt the resolutions in circumstances where lengthier consideration was necessary, using the ordinary notice periods and procedures provided for in the standing rules. The meaning of the order is clear. The City Council was sent back to the drawing board. Mr Brink’s appointment was reversed. The decision to readvertise the post of City Manager was revived. Mr Brink would have to vacate his permanent appointment as City Manager, and an Acting City Manager would have to be appointed to replace Mr Brink while the Council considered what to do next. It was, in other words, not open to the City Council to readopt the resolutions with the same haste that undercut their validity in the first place. One of the purposes of Rule 94(1) is to give councillors adequate notice of motions that have been proposed and submitted to the Secretary of Council. Rule 94(1) was binding on the City Council, and the admitted non-compliance with it is fatal to the validity of the resolution.

Findings: The City adopted and then acted under an erroneous construction of the order. The process the City adopted was sloppy and self-serving. To commit Ms Arnolds and Mr Gwamanda for contempt, the court must be satisfied that the only reasonable inference from the proven facts is that they wilfully and in bad faith sought to transgress what they knew to be the clear strictures of the order. The facts do not bear this out. The City, Ms Arnolds and Mr Gwamanda had clearly been advised that the consequences of the order were purely procedural, and that the order could be complied with by merely readopting the resolutions without engaging Rule 64. There is nothing to suggest that this advice was itself contrived to subvert the order. In addition, the advice, though clearly wrong, was not so poor as to constitute a bad faith effort to breach the terms of the order. Nor was it suggested that Mr Gwamanda or Ms Arnolds had the specialist legal knowledge necessary to second-guess this advice. The DA’s application to hold the City in contempt, and to commit Ms Arnolds and Mr Gwamanda to prison is refused, on the basis that they did not wilfully, and mala fide violate the terms of the order. The appropriate remedy at this stage of the proceedings is to declare the resolution invalid, and to allow the City Council to consider its position.

Order: The decisions of the Council are declared unconstitutional, unlawful and invalid, and are set aside. Mr Brink is directed to relinquish his permanent appointment as the City Manager within ten days of the date of the order, or as soon as an Acting City Manager is appointed, whichever occurs first.

WILSON J

Facts: Mr Nonxuba was admitted as an attorney in 2000 and commenced practicing as such with Mpambaniso Attorneys. In 2003, he started practicing for his own account, and he established Nonxuba Inc with himself as the sole director. He remains the only director of the firm. He specialises in personal injury and medical negligence cases in various provinces in South Africa, including the Western Cape. These cases overwhelmingly involve plaintiffs who are the parents/guardians of minor children who sustained birth injuries because of negligence on the part of medical personnel during the birth process, resulting in hypoxic ischaemic encephalopathy, foetal distress and, ultimately, cerebral palsy.

Application: The Legal Practice Council applies for the striking off of the name of Mr Nonxuba from the roll of attorneys of this court, and for the usual ancillary relief. The application had an unusual progression, in that it started off as an urgent application in 2021 and several applications were subsequently launched which included applications to intervene, joinder applications, a conditional application, and an application to interdict Mr Nonxuba. It was alleged that Mr Nonxuba had successfully prosecuted five medical negligence claims but had not complied with the court orders and did not pay over the monies due to the claimants via the trusts that he should have established on their behalf.

Discussion: During the course of the manifold applications, many thousands of pages were added to an ever-burgeoning record and at least 17 judges were involved in adjudicating the various procedural and substantive legal skirmishes. Despite the fact that the court orders in all five medical negligence claims were made during 2018 and 2019, Nonxuba, as of July 2021, had not established all the trusts, and where the trusts had been established, he failed to pay over the monies due to these trusts. A further complaint was received on behalf of the Eastern Cape Provincial Treasury which identified a further five trusts which Mr Nonxuba had failed to establish timeously or at all. The LPC submitted that the trust bank account statements indicate that Mr Nonxuba made unlawful transfers from trust to business. It is inconceivable that he was entitled to trust funds amounting to R348,845,000 which he transferred in perfectly round amounts on 759 occasions since January 2017. The LPC concluded, therefore, that Mr Nonxuba siphoned off an astonishingly large amount of money from his clients over an extended period.

Findings: Mr Nonxuba failed to comply with at least ten court orders requiring him to establish trusts and to pay over the funds held by him into these trusts.The remaining allegations relating to the misappropriation of trust funds and the fabrication of accounting records were met by a bare denial and a promise by Mr Nonxuba that the report from the accountant (Wapenaar) would exculpate him. The Wapenaar report, however, underscored the severity and extent of Mr Nonxuba’s transgressions. Mr Nonxuba has, through his deception of his clients, the LPC, and this court, shown himself not to be a fit and proper person to continue to be in practice. Theft of trust funds by practitioners does not only result in untold hardship for the victims, but it also brings the legal profession into disrepute. Those legal practitioners who violate the rules and ethics of the profession by failing to uphold the highest standards of honesty, reliability and integrity must suffer the consequences of their nefarious actions.

Order: The name of Zuko Mack Michael Nonxuba or Nonxuba Inc is struck off the roll of legal practitioners of this Honourable Court. See the further directions at para [82].

FRANCIS J (HENNEY J concurring)