Spartan Caselaw

KAE v WNE [2023] ZAGPJHC 1488

FAMILY – Maintenance – Accommodation

Respondent paying for child’s maintenance – Contending that applicant does not have need because she is staying comfortably with her parents – Submissions are unsustainable and opportunistic – It is his legal duty to accommodate her – That housing is not reflected as an expense, it does not follow that she has no need – She has need as any person, inextricably linked to constitutional guarantee of right to dignity – Respondent shall pay the applicant R15,000 per month for her accommodation – R300,000 to be paid towards her legal costs – Uniform Rule 43.

Facts: The parties were married in 2010 and separated in 2017, a year after their minor child was born. The applicant is a biokineticst in private practise and the respondent is an engineer and a businessman. In 2017, when their relationship broke down, due to the respondent’s extra marital relationship, the applicant left the martial home and lived with her parents. The respondent continues to live in the marital home. During their marriage, the parties were both avid adventure seekers and enjoyed a comfortable lifestyle, when they travelled to several international destinations and climbed mountains together.

Application: The applicant seeks an order for interim maintenance and a contribution toward her costs in terms of Uniform Rule 43. The maintenance, access and contact in respect of the minor child has been agreed upon and a parenting plan agreed to in March 2023 is to be made an order of this court. The child is now 7 years old and the respondent pays R23,000 per month in respect of her maintenance.

Discussion: It was submitted for the respondent that the applicant has not demonstrated any need. She claims cost for her accommodation six years later. She has lived comfortably with her parents and must continue to do so. The respondent only pays for her medical aid. Counsel submitted that the applicant is being strategic and wanting to ensure that she secures an award for her maintenance at divorce. The applicant has only the information the respondent furnished to support his opposition, which is incomplete, and the applicant contends that it will be necessary for her to employ the services of a forensic investigator to track money flows from the various businesses he operates. For example, the respondent transfers R70,000 per month into a business entity, but derives no benefit from it.

Findings: The respondent’s submissions that the applicant has thus far been living comfortably with her parents and should continue to do so, is unsustainable and opportunistic. It is his legal duty to accommodate her. It is noteworthy that he continues to live in the matrimonial home whilst she was forced to leave, because she felt disrespected due to his infidelity. She needed accommodation and looked to her parents, who out of their love for her and their grandchild accommodated her. That this housing is not reflected as an expense, it does not follow that she has no need. She has a need as any person which is inextricably linked to her constitutional guarantee of a right to dignity. On a conspectus of the evidence is it is clear that the respondent has access to capital, he simply does not prioritise his basic and fundamental duty toward his spouse. He can afford to pay her accommodation costs.

Order: Directions are given for contact with the child. The respondent shall pay the applicant R15,000 per month for her accommodation. The respondent shall contribute an amount of R300,000 towards the legal costs of the applicant, payable in three instalments, to commence within two weeks of the order. The costs of this application shall be in the action.

MAHOMED AJ

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Nedbank v Mashaba [2024] 23-034575 (GJ)

CIVIL PROCEDURE – Default judgment – By registrar – Where credit agreement involved

Instalment agreements concluded with bank for financing of motor vehicles – Registrar can grant default judgments or otherwise deal with applications for default judgment as provided for in Uniform Rule 31(5)(b) in those NCA matters where High Court has jurisdiction – Attorneys are first to approach the registrar for default judgment – Should the applicant for default judgment seek to approach open court directly, without first placing the matter before the registrar in terms of Rule 31(5), it must have good reason to do so, supported where necessary by the appropriate facts.

Applications: The applicant in each of the actions seeks default judgment on instalment agreements concluded between it and the respondents for the financing of motor vehicles. The instalment agreements fall within the ambit of the National Credit Act 34 of 2005 (NCA). The applicant as credit provider either seeks cancellation of the particular instalment agreement and the return of the motor vehicle that had been financed under the agreement or, where the term of the instalment agreement has already expired, payment of the outstanding balance by the consumer. The applicant has enrolled these matters for default judgment in the unopposed motion court. Although each of the claims fall within the jurisdiction of the magistrates’ courts, the High Court has concurrent jurisdiction.

The issue: Whether the registrar may grant default judgment in terms of Rule 31(5) where the proceedings fall within the ambit of the debt enforcement procedures prescribed in the NCA. Section 130 provides for the circumstances in which a credit provider can approach the court to enforce a credit agreement. As section 130(3) requires that the “the court” be so satisfied, the issue that arises is whether the registrar can fulfil the role of “the court” and determine the matter and grant default judgment, or whether an open court is required to do so.

Discussion: The court considers the various judgments on this issue and in particular Nedbank v Mollentze [2022] ZAMPMHC 5 and the minority judgments of Jafta J in Nkata v FirstRand Bank [2016] ZACC 12 and University of Stellenbosch v Minister of Justice [2016] ZACC 32. As there is no binding precedent in this Division on the issue (as the decisions of single judges of this Division are conflicting, as the full court decision in Mollentze although highly persuasive is not binding and as the statements by Jafta J in his minority judgments in Nkata and University of Stellenbosch are obiter), the court is required to determine the issue. Mollentze is persuasive, particularly in its pragmatism. The court’s reservation with the decision was that if section 130 of the NCA did require judicial oversight, numerous decisions have held in relation to other instances that it was for the court to exercise judicial oversight, and that someone else, such as the registrar, could not do so.

Findings: The registrar can in terms of Rule 31(5) grant default judgments, or otherwise deal with applications for default judgment as provided for in Rule 31(5)(b), in those NCA matters where the High Court has jurisdiction. The attorneys are first to approach the registrar for default judgment, not because the court does not have jurisdiction or competence to hear applications for default judgment, but because of the described division of labour between open court and the registrar. Should the applicant for default judgment seek to approach open court directly, without first placing the matter before the registrar in terms of Rule 31(5), it must have good reason to do so, supported where necessary by the appropriate facts. Should the registrar require a matter to be heard in open court in terms of Rule 31(5)(b)(iv), it should give sufficient reasons.

Order: The matters are removed from the roll, with no order as to costs, to enable the applicant to approach the registrar in terms of Rule 31(5)(a).

GILBERT AJ

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Mazibuko v Minister of Home Affairs [2024] 14238-21 (GP)

IMMIGRATION – Home Affairs – ID blocking – Where person suspected of being an illegal immigrant

Marker placed against an ID that blocks the number – Blocking of an ID during investigative phase inherently limits individual’s constitutional rights – Such blocking in absence of fair administrative process constitutes unjust and irregular administrative action and infringes the constitutionally entrenched right to procedurally fair administrative action – Promotion of Administrative Justice Act 3 of 2000.

Facts: Ms Mazibuko is an adult citizen of the Kingdom of Swaziland. She is a permanent resident of South Africa. She holds a Swaziland passport and a South African identity document. Her troubles with the Department of Home Affairs (DHA) started in 2012 when she received a notification from her bank that money had been fraudulently deducted from her account. She was informed that it appeared that someone had accessed her personal details to impersonate her. South Africa faces many migration-related challenges, including the increased prevalence of irregular migration and identity theft. To address this dilemma, the DHA resorted to a practice, referred to as ID blocking, to block any suspiciously processed identity number before or while investigating whether a person registered in the national population register is a South African citizen or permanent resident.

Application: A review application of the DHA’s practice of placing a marker against the identity number (ID) of a person registered in the national population register as a South African citizen or permanent resident, which automatically results in the marked ID being blocked, without advising the affected party of it despite all of its prejudicial consequences. It is not disputed that the impugned conduct of the DHA amounts to administrative action and that the Promotion of Administrative Justice Act 3 of 2000 (PAJA) applies. The litigation concerns the legality of the respondents’ practice of blocking South African identity numbers prior to the correct investigation and procedural steps being followed.

Discussion: When a person against whose ID a marker has been placed approaches any office of the DHA, a bank, SASSA office, or any other institution that requires an ID, they will be denied the service they seek, and be informed that their ID is blocked. The blocking of IDs prevents individuals from engaging with the world in any way that requires that person to use their ID. These individuals cannot obtain passports to travel, and they can’t vote, access healthcare or education systems, or open bank accounts. During the litigation, and relatively close to the trial date, the respondents conceded that blocking IDs without a fair and just administrative process is inconsistent with the Constitution. This concession was preceded by the unblocking of approximately 1,8 million IDs. The main substantive question that remains is whether there is any legal justification for ID blocking at all.

Findings: The blocking of an ID during the investigative phase of any inquiry relating to the legitimate issue of an ID inherently limits an individual’s constitutional rights. It should be authorised by a law of general application. As such, placing markers against IDs that inevitably resulted in the blocking of the IDs in the absence of a fair administrative process preceding the placing of such marker against an ID constitutes unjust and irregular administrative action and infringes the constitutionally entrenched right to procedurally fair administrative action. Such conduct stands to be reviewed. in blocking IDs in the manner that it did, the DHA ignored the jurisprudential value of ubuntu. The violation of constitutionally enshrined rights by the respondents, the prejudice caused, particularly to minor children when there is ample law on the rights of children, and the respondents’ lackadaisical approach to investigate and resolve the underlying issues in any manner other than randomly blocking IDs, justify the granting of a punitive costs order against the respondents.

Order: It is declared that the placing of markers by the DHA against identity numbers resulting in the blocking of identity numbers: (1) in the absence of fair administrative process preceding the placing of such markers against the affected identity numbers, and/or (2) before any final decision is taken relating to the affected individual’s status as a South African citizen or permanent resident, in the absence of any empowering legislation having been promulgated, constitutes unjust and irregular administrative action that is inconsistent with the Constitution and therefore invalid.

VAN DER SCHYFF J

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Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law

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