Cole v Cole

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mantame J and Hofmeyr AJ
• Judgment Date: 14 August 2023
• Citation: 2023 JDR 3062 (WCC)
• Hearing Date: 04 August 2023
• Docket Number: A91/2023
• Court: Western Cape Division, Cape Town

Hofmeyr AJ:

1

This is an appeal from the Magistrates’ Court against the dismissal of the appellant’s special plea. The appellant was the plaintiff and the respondent was the defendant in the court below.

2

The parties are married out of community of property and are seeking a divorce. Their antenuptial contract provided that there would be no community of property between them, no community of profit or loss and that the accrual system would not apply to their marriage.

3

The appellant brought a claim in the Regional Magistrates’ Court Somerset West, Western Cape, in December 2018 for a decree of divorce, orders for retention of certain properties, and a claim for maintenance against the respondent.

4

The respondent agrees that the parties should be divorced. But he denies the grounds on which the appellant alleges that the relationship between them has broken down. He also denies that he should be ordered to pay maintenance and he advances two counterclaims against the appellant. The first is for an amount of R250,000 and the second is for an amount of R1,701,731.13.

5

The appellant raised a special plea to the second counterclaim of approximately R1.7 million. According to the appellant, the claim exceeds the monetary jurisdiction of the Regional Magistrates’ Court and so should be dismissed. The special plea was dismissed by the Magistrate. It is against the dismissal of her special plea that the plaintiff appeals to this court.

2023 JDR 3062 p3

Hofmeyr AJ

6

Although the appellant framed her special plea on the basis that it was about the monetary value of the claim, her true defence lay elsewhere.

7

In 2010, the Magistrates’ Court Act 32 of 1944 was amended to give Regional Magistrates’ Courts jurisdiction in divorces. When the legislature extended the Regional Magistrates’ Courts’ jurisdiction to determine divorce actions, it clothed the courts with the same jurisdiction as High Courts when they determine those matters.

8

After the amendment, section 29(1B) of the Magistrates’ Court Act read as follows:

“(a)

A court for a regional division, in respect of causes of action, shall,. subject to section 28 (1A), have jurisdiction to hear and determine suits relating to the nullity of a marriage or a civil union and relating to divorce between parties and to decide upon any question arising therefrom, and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998).

(b)

A court for a regional division hearing a matter referred to in paragraph (a) shall have the same jurisdiction as any High Court in relation to such a matter.”

9

This section makes it clear that, provided the matter before the Regional Court is a divorce or any question arising therefrom, the Regional Court will have the same jurisdiction as a High Court. In other words, provided the matter is a divorce or a question arising therefrom, the Regional Court’s jurisdiction is not limited by, for example, the monetary limits that usually apply in the Magistrates’ Courts. Provided the matter is a divorce or a matter sufficiently connected therewith, the usual monetary limits to the jurisdiction of the Magistrates’ Court do not apply.

2023 JDR 3062 p4

Hofmeyr AJ

10

The real issue in the appeal, therefore, is not that the counterclaim was for an amount of R1.7 million but, rather, whether that counterclaim qualifies as a question arising from the divorce.

11

To answer that question requires an analysis of the counterclaim.

The counterclaim

12

The counterclaim of R1.7 million is based on an agreement that the respondent alleges he entered into with the plaintiff in 2011. He pleads that the agreement provided that the appellant would be entrusted with the administration of his financial affairs and would attend to the administration thereof. In administering the defendant’s affairs, the plaintiff was required to collect rentals due to the respondent, pay bond instalments, pay property levies and pay municipal rates and taxes.

13

At points in the counterclaim, the...