Maliba v R (5/11) [2011] SZSC 9 (31 May 2011);

 

 

IN THE SUPREME COURT OF SWAZILAND

 

Held at Mbabane             Civil Appeal Case No.37/2010

 

In the matter between:

 

MVUSELELO FAKUDZE                                  Appellant

 

And

 

MILLICENT NOMALUNGELO FAKUDZE

(nee NGWEKAZI)                                             Respondent

 

CORAM:                          FOXCROFT J.A.

                                        EBRAHIM        J.A.

                                        TWUM J.A.

 

For the appellant    :       Mr. L. Howe

For the respondent :      Mr. B.W. Magagula

 

JUDGMENT

 

FOXCROFT J.A.:

 

 

 

[1]    The respondent in this appeal brought an application in terms of Rule 43(1) of the High Court Rules on 4 March 2008 for maintenance pendente lite from the appellant, alleging only that she was married to the appellant by Swazi Law and Custom on 3 February 2002 and that the marriage still subsisted.  No allegation of any pending lis (action) against the appellant was made in her supporting affidavit but paragraph 1 of the Notice in terms of Rule 43(1) refers to maintenance “pending finalisation of the main action”.

 

[2]    What the application really amounted to was one for maintenance for the minor children of the parties in the sum of E5000 per month in total, and E1500 per month for herself.  Such a claim would normally have been brought in the maintenance courts.  In essence, the respondent’s complaint was that the appellant, after taking a second wife in accordance with Swazi Law and Custom in 2007, neglected the respondent and “our child”.  She was taken back to her parental home and appellant thereafter failed to establish a home for her and “our two children”, and had failed to maintain them adequately.  She averred that the appellant’s irregular monthly contributions of E1000 per child were insufficient.

 

[3]    The appellant’s sworn response was that the respondent had failed to disclose in her founding affidavit whether there was any pending matrimonial action between the parties before any court, and that for that reason alone, the matter was improperly before the High Court and should be dismissed.  The appellant stated further that in any event the marriage to the respondent was dissolved in accordance with Swazi Law and Custom during January 2007.  In regard to maintenance of his children, the appellant listed the support provided by him, amounting to E9979.33 per month, which was roughly double the amount of E5000 per month being claimed for the children by the respondent. 

 

[4]    The application came before Mabuza, J. and it was common cause on appeal that no evidence was led at the hearing.  In her judgment dated 6 August 2010 the learned Judge correctly described the application as one seeking “maintenance for the couple’s two minor children and for herself”.

 

[5]    In paragraph [12] of the judgment, Mabuza, J. refers to the failure to disclose the nature of any pending action in the respondent’s supporting affidavit and goes on as follows:-

 

“That may be true but Mr. Magagula has directed my attention to Civil Case No. 3312/07 (High Court) wherein a summons was issued on the 13^th September 2007 by the Applicant against the Respondent.  In it the Applicant seeks an order declaring that the marriage between her and the Respondent still subsists plus costs”.

 

 

The learned Judge a quo took the view that the cause of action in the summons “relates to a pending matrimonial matter as envisaged by Rule 43(1)”.

 

[6]    There is no doubt that the summons does exist and that there was a plea thereto by the appellant in which he denied the existence of the marriage.  These pleadings are contained in the Record of Pleadings (Volume II) before this Court.  It does not appear whether these pleadings were placed before the Judge a quo, who made no mention of the Plea.  In any event, Mr. Howe, for the appellant did not contest the validity of the summons or plea before us.  Nor did he suggest that this action was not the “main action” referred to as pending in the Notice in terms of Rule 43(1).

 

[7]    Rule 43(1) applications normally occur in situations where an admitted marriage has broken down and where an action for divorce is pending.  The parties have usually parted and interim maintenance is required, particularly for children, until final maintenance orders are made on divorce.  It is highly unusual for an alleged wife to make use of the Rule 43 procedure to secure maintenance when she does not seek a divorce.  That is the usual lis which the Rule contemplates.  The  pleadings in Case No. 3312/07 where a declaration “that the marriage between the plaintiff and the defendant still subsists” is sought, and the existence of the marriage is denied by the plaintiff, concern the status  of the parents far more than the interests of the children.  Even if the marriage is at an end, the children are still entitled to maintenance from their father.  He does not dispute that he is their father and in fact in his sworn affidavit in reply avers that;

 

“the two minor children I have with the Applicant are more than adequately maintained by me.  I have no legal duty to maintain the Applicant as the marriage between her and me was duly terminated in accordance with Swazi Law and Custom”.

 

 

[8]    In the action for a declaration, the respondent would obviously contest the last sentence of this quotation, so it is fair to say that the “main action” could be regarded as a pending matrimonial matter between husband and wife.

 

[9]    While it may certainly be said that the respondent brought her application for maintenance under the wrong rule for the children, she was on stronger ground as far as her own position was concerned.  It has been held in South Africa that the purpose of interim relief for maintenance pending an action between spouses is well known to the common law.  The purpose of such relief is to regulate the disputes between the parties until the court finally determines all the issues between them.

 

“One of these issues might well be whether they contracted a valid marriage, or, if they had, whether it still subsists…”

Zaphiriou v. Zaphiriou, 1967 (1) S.A. 342 (W.L.D.) at 344 D-F per Trollip, J.

 

 

This decision also drew attention to a similar approach in the English common law prior to the Act of 1857 where the court was endowed with a discretion to grant alimony and costs pendente lite in a suit in which the validity or nullity of the marriage was in issue.  In Foden v. Foden, 1894 P.D. 307 (AC) Lord Herschell, L.C. referred to the settled practice of the Ecclesiastical Courts of England in all cases of this kind i.e. where marriage had taken place but where its continued subsistence was in issue.

 

[10]  There is however merit in Mr. Magagula’s submission that this Court, as upper guardian of minor children, should be loath to non-suit a mother seeking maintenance for her minor children because of faulty procedure.  The matter was before the Court a quo and should have been properly and expeditiously dealt with there.  We were informed by Mr. Magagula, without dispute from Mr. Howe, that a certain amount of informal questioning of the parties, presumably through their attorneys, took place in Court.  This questioning is not on record and can play no part in this appeal.  It does not appear from the judgment that the learned Judge a quo had any regard to the appellant’s sworn reply detailing monthly maintenance payments in respect of cash payments for the children, school fees, clothing and medical aid amounting to E9979.33 per month.

 

[11]  Unfortunately the respective merits of the opposing parties were not properly considered.  The application was simply granted with costs leaving unclear whether the award of E5000 per month in respect of the children was the total sum to be paid by their father, or was in addition to the sum of roughly E10000 already being paid by him.  The former construction would make no sense since it would cut the children’s maintenance in half. 

 

[12]  Mr. Magagula urged us, in the course of a spirited argument, to “clarify” the order of the Court a quo by ruling that the order meant that the sum awarded to the children was intended to be additional to that already paid by their father.  We cannot clarify an ambiguity which is the result of the fact that the award made was not reached after a proper determination of the appropriate amount. 

 

[13]  Faced with this difficulty, and the need for a “just and expeditious decision” [Rule 43(6)] to be reached, counsel for the parties before us agreed that the matter should be referred back to the High Court for an urgent proper determination of the amounts of interim maintenance to be paid to the respondent in her personal capacity pending final determination of her action against the appellant, and the amount to be paid as maintenance by the appellant for the minor children of the parties pending the final determination of their mother’s action against their father.  If she succeeds in showing that the marriage subsists, she will obviously continue to receive maintenance from the appellant on behalf of the children.  If she fails, the maintenance situation for the children can be determined for the future by the Court hearing the action.

 

[14]  Counsel for the appellant also conveyed his client’s agreement to pay, in addition to his present ±E10 000 monthly payment, a further sum in respect of the children of the parties of E1000 in total per month for three months.  This is the period which the High Court will be given to finalise the Rule 43 application.

 

[15]  Accordingly,

 

(i)     the appeal succeeds to the extent that the order of the Court a quo is set aside, and the Rule 43 application is referred back to the Judge a quo, or whichever other Judge may be required to hear it, for the proper determination of interim maintenance for the respondent personally, and the minor children of the parties;

 

1. the Court a quo is to finalise this application as a matter of urgency, and in any event, no later than the 31^st August, 2011;

 

1. seven days notice to the parties of this summary hearing shall be given by the Registrar of the High Court;

 

1. pending the determination of this application, the appellant is to pay for the months of June, July and August 2011 to the respondent, the sum of E1000.00 per month, in addition to the present monthly payments which he makes, for the interim maintenance of the two minor children of the parties;

 

(v)    costs of this appeal will stand over for later determination by the Court finally determining the action brought under Civil Case No.3312/07.

 

________________

        J.G. FOXCROFT

        JUSTICE OF APPEAL

        I agree

 

                                                ­­­­­­­­        ________________

                                                        A.M. EBRAHIM

                                                        JUSTICE OF APPEAL

 

        I agree

 

 

                                                        ­__________________

                                                        DR. S. TWUM

                                                        JUSTICE OF APPEAL

 

 

       

DELIVERED IN OPEN COURT AT MBABANE ON 31^ST MAY 2011.