CASE LAW UPDATE

Facts: The applicant resides at Mqanduli in the Eastern Cape, is unemployed and indigent, and was unable to afford legal representation. The issue of costs and legal representation was referred to Christopher Consulting who in turn briefed Werner Boshoff. Werner Boshoff practise from Pretoria and they in turn appointed Ms Pienaar practising at Netteltons in Makhanda, Eastern Cape. Summons was issued against the MEC of Health, Eastern Cape. The applicant is the mother and guardian of a minor child, and claimed damages that presumably arose out of the negligent treatment of the child (this was not clear from the papers). The applicant was successful and was awarded a substantial capital sum and costs order.

Application: After receipt of the award by the court, the applicant, in terms of the order, submitted two bills of costs between party and party by Werner Boshoff, and the correspondents at the seat of the court, namely, Netteltons. The Taxing Mistress refused to allow two bills of costs and refused to sign an allocator, ruling that “no items” had been disallowed. This is an application for a review of the decision of the Taxing Mistress.

Discussion: The MEC (defendant) had submitted to the Taxing Mistress that the plaintiff should have instructed an attorney in a nearby town such as Mthatha, Queenstown or East London or an attorney at the seat of the court directly, instead of instructing an attorney in Pretoria, which had resulted in unnecessary duplication costs, which was not for the account of the defendant. The plaintiff invited the defendant to identify any unnecessary duplication of costs which would not been incurred, had the plaintiff appointed an attorney in Mthatha, Queenstown or East London. These costs were never identified as a result of the Taxing Mistress’s decision. It was contended that without the financing supplied by Christopher Consulting the applicant would not have been able to litigate and this would be detrimental to the minor child and her rights.

Findings: Uniform Rule 70(8) deals with remuneration where more than one attorney is engaged, and the decision as to whether a litigant is entitled to recover the cost of an out of town attorney, as well as those of an attorney engaged at the seat of the court, is one for the Taxing Mistress. The applicant resides at Mqanduli, which is 30 km away from Mthatha. The applicant chose to instruct an attorney in Pretoria, which is 1,004 km away from the applicant and 1,042 km from the seat of the court. There is no evidence before the court to find that applicant could not have found a competent firm in Mthatha, or Makhanda, that would have acted for her on a contingency basis. The instruction of a firm of attorneys in Pretoria was not “necessary”. The court is not persuaded that the Taxing Mistress erred in making the ruling that she did.

* See the case law discussion at paras [25]-[31].

Order: The application for review is dismissed. The applicant is ordered to pay the costs of the defendant on Scale A, in terms of Rule 69(7).

BRODY AJ

Facts: The second applicant (JRS) and the respondent (KDZ) were married to each other in a civil marriage in Cape Town, which marriage still subsists. The parties have two minor girls, LS (aged 5), and MS (aged 1). JRS has been exercising rights of custody as envisaged by article 3 of the Convention at the time the minor children were retained in South Africa. The minor children came with their parents to South Africa on a two-month holiday on the assumption that they would all return prior to LS returning to school. JRS had booked return flights for all of them, but the respondent refused to return the minor children to Germany. JRS had not consented to the children remaining in South Africa. JRS was born in Germany and the respondent in South Africa. Their first daughter LS was born in South Africa. The parties’ second daughter MS was born in Munich. She attained German citizenship and thereafter her birth was registered in South Africa, and she attained South African citizenship as well.

Application: This is an application in terms of article 12 of Chapter III of the Hague Convention on the Civil Aspects of International Child Abduction, incorporated in section 275 of the Children’s Act 38 of 2005. The applicants seek the return of the minor children to Munich in Germany. The primary issues are whether Germany is the minor children’s habitual residence immediately prior to the alleged retention; and whether the children would be exposed to grave risk or psychological harm or be placed in an intolerable situation as envisaged by article 13(b) of the Convention, should they be returned.

Discussion: JRS’s case was that immediately before their departure to South Africa, the minor children were habitually resident at Munich, Germany, where they are all registered. The property is a-three bedroomed house. It is leased and the lease is unrestricted as it is commonplace in Munich to lease a property for very long. LS’s school and friends live nearby. This according to JRS is confirmed by the fact that while in Germany he had assisted the respondent to convert her South African driver’s licence to a German driver’s licence. He also enlisted the respondent and the children on his German medical aid scheme. The German government contributes R5,000 per month per child towards medical aid to assist in raising the children. His family resides 45 minutes away from their apartment and they can offer support with the children if needed. At the time that the parties departed with the minor children for South Africa, JRS and the respondent shared parental responsibilities and rights, custody and residence of the minors as well as the responsibility and rights to make decisions in respect of the minor children. JRS exercised those rights and responsibilities in respect of the minor children together with the respondent. JRS did not consent to the children remaining in South Africa beyond the date to which the respondent and the children’s return flight tickets were moved to at the request of the respondent.

Findings: The respondent, by virtue of her failing to return the minor children to Germany and remaining in South Africa together with the minor children, unlawfully retained the minor children in South Africa. In so doing, the respondent breached JRS’s rights of custody exercised together with the respondent immediately prior to the respondent retaining the minor children in South Africa. JRS would have exercised his rights of custody absent the respondent’s retention of the minor children in South Africa. The respondent's retention of the minor children in South Africa absent JRS's consent thereto violated the latter's rights to shared custody of the minor with the respondent and is unlawful. All the jurisdictional facts required to invoke the obligatory provisions of article 12 are present. There is no explanation furnished why returning the children to Germany will not be permitted by our Constitution. There is no real or grave risk that the minor children, upon their return to Germany will be exposed to harm or risk to the level that might be termed grave. The respondent has not discharged the burden of proof resting upon her to demonstrate the existence of the Article 13(b) defence. The minor children's best interests and the general purposes of the Convention will both be met by an order that they be returned to Germany, their place of habitual residence.

Order: The minor children, LS and MS are to be returned forthwith to the jurisdiction of Germany, Munich in accordance with the provisions of article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.

MAHALELO J

Facts: The applicant and the fifth respondent (TJM) are the plaintiff and defendant to a divorce action. The parties were married to each other out of community of property, subject to the accrual system, which marriage still subsists. In the divorce action the applicant (plaintiff) claims that TJM (defendant) be ordered to pay to the applicant an amount equal to half of the difference between the accrual in the estate of the parties determined in accordance with the provisions of chapter 1 of the Matrimonial Property Act 88 of 1984. The fourth respondent company (Boerdery) owns the farm, which in turn is owned by the trust. TJM is a director of Boerdery and is furthermore a trustee of the trust. TJM is a trustee of the trust, which owns the company of which TJM is a director and which trust in turn owns the company. The farm properties were sold or transferred to the company during or about 2019. The trust was established during the course of the marriage between the applicant and TJM.

Application: The applicant seeks the joinder of the respondents as the defendants to the divorce action. The applicant seeks the joinder of the respondents in their capacities as trustees of the trust. The applicant contends that the trust and the company have a substantial interest in the divorce proceedings in that she claims that there will be a substantial accrual in the estate of TJM, which de facto assets are owned by the company, of which TJM is a director and which shares in the company are owned by the trust, represented by the respondents and of which TJM is both a trustee and a beneficiary.

Discussion: The applicant alleges that TJM pleads poverty. TJM denies that he owns any assets, which could be taken into consideration for the determination of the value of his estate for the purposes of calculating the accrual. The applicant contends that prima facie there is a likelihood that TJM is hiding behind the veil of the company and/or the trust and hence hides the true value of his estate for the purposes of calculating the accrual in the divorce action. TJM allegedly has expenses of R30,000 per month. However, when one considers TJM’s bank statements there is no record of such expenses being paid by TJM. Further, despite only earning R6,000 per month and his expenses being R30,000 per month, TJM personally owns cattle to the value of R538,594, which has allegedly been sold and which funds have allegedly been lent to his father. The applicant contends that there is no explanation as to where such funds were obtained and as such, it is argued that TJM has access to financial means beyond that which he discloses. The applicant argues that regardless of where the company and trust obtained the assets, it is apparent that during the marriage, the company became and is the owner of the farm properties. TJM’s father is no longer the owner of any of the property sold and/or transferred to the company and, save for being a beneficiary of the trust, is not involved in the running of the trust, nor any involvement in the running of the company.

Findings: Although the applicant has not yet commenced with amending her particulars of claim and the fact that the applicant has not annexed such proposed amendment, it is evident that she intends to request the court to pierce the trust and corporate veil. It is evident from the founding affidavit that the applicant seeks to join the trust and the company in the divorce proceedings with the intention to obtain an order that the assets of the trust and/or company (or portion thereof) be regarded as assets of the respondents’ estate and ought to be considered for purposes of calculating the accrual. The relief the applicant intends to obtain will substantially and prejudicially affect the trust and/or the company and the joinder is necessary.

Order: The first, second, third and fourth respondents are joined as the second, third, fourth and fifth defendants to the divorce action.

VAN NIEUWENHUIZEN AJ

Facts: The appellant is a homeowners’ association which is a community scheme as defined in the Community Schemes Ombud Service Act 9 of 2011. In September 2021, Ms Brandt became owner of a unit in Bella Rosa. At the time, the property was vacant, with no construction ever having been undertaken by the previous owner. From October 2021 the appellant imposed a building penalty against her, on the basis that no building construction had commenced on the property within the period prescribed in the appellant’s constitution. She did not receive the monthly statements until December 2021, apparently due to an email address error, by which time three months’ worth of building penalties were reflected in her monthly statement, together with interest. Almost immediately, she addressed emails to the appellant challenging the imposition of the building penalty.

Application: The parties were unable to resolve the dispute and Ms Brandt referred a complaint to the CSOS. The order granted by the adjudicator was that the fines against Ms Brandt are invalid. The appellant was ordered to remove the fines from her levy statement within 14 days of the order. The appellant seeks review and an appeal against the decision of the adjudicator.

Discussion: The appellant contended that the adjudicator failed to have regard to the fact that the appellant’s constitution is a contract between the appellant and the first respondent in terms of which the latter agreed to be bound. By focusing on the procedure followed by the appellant, the adjudicator effectively amended the constitution, instead of simply applying its provisions. The adjudicator accepted that Ms Brandt was bound by the provisions. The adjudicator held that the appellant failed to follow a fair procedure before imposing the penalties against her because it failed to issue a notice in writing and to afford her an opportunity to remedy the breach or to make submissions in writing if she disputed the breach.

Findings: A successor in title might seek to extend the prescribed timeframes, because they would only obtain transfer of the property after sale from the original buyer. This the constitution recognized by including a provision allowing for possible agreement to extend the timeframes. Even if the penalties themselves are not inherited or accrued from the previous owner, the computation of the prescribed period involves both tenures. Ms Brandt’s conduct of seeking to engage the appellant was within the contemplation of the constitutional provision which contemplates submissions, such as the ones she made, for consideration by the appellant. Regrettably, her pleas fell on deaf ears. The appellant had effectively determined a penalty for a breach of its constitutional provisions, without ever having afforded Ms Brandt an opportunity to remedy it.

* See paras [6]-[36] on the points raised in the review.

Order: The review and the appeal are dismissed, with no order as to costs.

MANGCU-LOCKWOOD J (SALDANHA J concurring)