Neal v Neal

• Jurisdiction: South Africa
• Judge: Henochsberg J
• Judgment Date: 24 December 1958
• Citation: 1959 (1) SA 828 (N)
• Hearing Date: 22 December 1958
• Court: Natal Provincial Division

Neal v Neal
1959 (1) SA 828 (N)

1959 (1) SA p828

Citation	1959 (1) SA 828 (N)
Court	Natal Provincial Division
Judge	Henochsberg J
Heard	December 22, 1958
Judgment	December 24, 1958

Flynote : Sleutelwoorde

Court — Power of — Relaxing compliance with provisions of Rules of Court — Inherent jurisdiction to grant relief — When exercised — Practice — In forma pauperis — Application by peregrinus — When entitled to bring proceedings against an incola. G

Headnote : Kopnota

The Supreme Court possesses inherent jurisdiction to grant relief where insistence upon exact compliance with the Rules of Court would result in substantial injustice to one of the parties. Such jurisdiction includes a power to grant relief where the Rules of Court make no provision therefor. Thus the Court may, in suitable cases, in the exercise of its inherent jurisdiction and its discretion, grant a peregrinus similar relief to that provided for in the Rules relative to actions by and against poor persons.

H The applicant, now domiciled in Scotland, who had on the divorce between herself and the respondent retained the custody of the children of the marriage, now applied for leave to sue in forma pauperis the respondent, who was still domiciled in Natal, for maintenance of the children.

Held, as there would be no substantial injustice in so far as the respondent was concerned, that leave should be granted.

Case Information

Return day of a rule nisi for leave to sue in forma pauperis. The facts appear from the reasons for judgment.

1959 (1) SA p829

D. D. Will, for the applicant: Although applicant is the ex-wife and is a peregrinus, she is really only the nominal applicant on behalf of her minor children. The children, although living permanently with applicant, are themselves domiciled in Natal where respondent, their A father, is domiciled. Watson's case, 1917 W.L.D. 151; Crow v Cuthbert, 1948 (1) P.H. 1320; Martine v Large, 1952 (4) SA 31. This Court therefore is upper guardian of the children. This court also has jurisdiction, as the Court which granted divorce, to determine ancillary matters such as maintenance. Hahlo p. 421; Martine v Large, supra. In any event the Natal Courts will follow the Transvaal decision in Gendre's case, 1914 W.L.D. 108, and not the Cape decisions collected B in Slocock's case, 1927 CPD 388, in holding that a peregrinus is not barred from taking proceedings in forma pauperis. This Court left the question open in Kavouklis' case, 1943 NPD 190. The true position is that leave to sue in forma pauperis is an indulgence which the Court will less easily grant in the case of a peregrinus.

R. C. C. Feetham, for the respondent: The applicant is a peregrinus. She is both domiciled and resident outside the Union. A person who is resident outside the Union will not be allowed the privilege of suing in forma pauperis. Ex parte Kuttenkeuler, 1911 CPD 8; Slocock v Plenderleith, 1927 CPD 338; Becker v Eastern Province Guardian Co., D 1923 E.D.L. 502. These authorities show that the Rules and practice of our Courts regarding the granting of leave to sue in forma pauperis were not intended to apply to applicants who are resident abroad because of the practical difficulties which would arise in such applications, one of which is that the Court would have no control over such applicants. E Slocock's case gives the added reason that it is the practice of our Courts to insist that a peregrinus should give security for costs when he sues an incola. The practical difficulties referred to would arise under Order X Rules 2, 3, 4 and 17 of our own Rules. The question now in issue was raised but not decided in Kavouklis v Bulgaris, 1943 NPD 190 at p. 192. The only case which differs from the abovementioned cases F is Gendre & Cavallera v Pagel, 1914 W.L.D. 108, which was decided without reference to Kuttenkeuler's case or the practical difficulties mentioned in that case. The reasoning in the Cape and Eastern Districts cases is to be preferred and, it is submitted should be followed. Even if the Court has a discretion to grant this application apart from the G Rules, the reasons why the Rules were not intended to cover a case such as this are also reasons why the Court should not exercise such a discretion in favour of the applicant. C

Cur adv vult.

Postea (December 24th).

Judgment

H Henochsberg, J.:

On the 25th October, 1955, this Court granted respondent a provisional decree of divorce against applicant. No order was made as to the custody of the two minor children of the marriage, a boy and a girl, now aged 11 and 9 respectively. The decree became final on the 26th January, 1956.

1959 (1) SA p830

Henochsberg J

At the time of their marriage on the 7th March, 1945, the parties were domiciled in the United Kingdom. Respondent came to South Africa in 1949 where he set up a home for his wife and children and applicant followed A him some eight months later. Applicant is now domiciled in Scotland and the two children reside with her, but respondent is still resident in Pietermaritzburg and has retained the South African domicile that he had acquired before the divorce.

Applicant now desires to sue respondent in forma pauperis for maintenance for the two children. In her affidavit to which she deposed at Hawich, Scotland, she alleges that with the respondent's agreement, B on the order of the divorce, she took custody and still has custody of the two children, but that respondent has refused to provide for their maintenance. She further avers that, excepting household goods, etc., she is not possessed of property worth £25 and will not within a C reasonable time be able to provide such sum from her earnings. She is employed as a clerk and her income is £6 4s. per week and 8s. a week by way of Government family allowance for the daughter. Her application is supported by an affidavit by a mill manager who has known applicant all her...