Schlesinger v Schlesinger

• Jurisdiction: South Africa
• Judge: Le Roux J
• Judgment Date: 19 December 1978
• Citation: 1979 (4) SA 342 (W)
• Court: Witwatersrand Local Division

Le Roux J:

On 21 March 1978 an order was obtained ex parte by Mrs Rita B Rose Schlesinger (the respondent in the present proceedings) from F S STEYN J, sitting in the Witwatersrand Local Division, to the following effect:

"1.

That leave be and is hereby granted to the applicant to sue John Samuel Schlesinger by edictal citation for:

(a)

an order for judicial separation, alternatively,

(b)

C an order for the restitution of conjugal rights and, failing compliance therewith, a decree of divorce, alternatively,

(c)

a decree of divorce,

(d)

division of the joint estate,

(e)

costs of suit,

(f)

D alternative relief.

2.

That the citation and edict and all subsequent process be served on John Samuel Schlesinger personally.

3.

That in the event of service of the citation being effected in Switzerland, such citation be served by a Swiss legal practitioner.

4.

E That John Samuel Schlesinger give notice of his intention to defend such action within one month after date of such service."

No notice of the application was given to Mr Schlesinger's Johannesburg attorneys, Messrs Edward Nathan & Friedland Inc, who first learnt of the application and the relief granted pursuant thereto the next day from reports in the daily newspapers. On the same day, viz 22 March 1978, Mr F Schlesinger's attorneys applied as a matter of urgency to the same judge for an order to stay the uplifting of the above order pending an application to set aside the leave to sue by edict. The grounds on which Mr Schlesinger (to whom I shall henceforth refer as the applicant) based his application, were, firstly, that a firm undertaking had been given by G the respondent's Johannesburg attorneys to give notice to his attorneys of any application to sue by edictal citation, which appeared sufficiently from correspondence between the two firms, and, secondly, that the respondent had failed to disclose material facts to the Court in her application and had used a confidential memorandum prepared by applicant's H attorney on the South African law of marital property rights for the benefit of respondent's American attorney with a view to a settlement of the whole dispute, for an entirely different purpose, viz as an admission that the applicant was still domiciled in South Africa.

The urgent application was opposed by the respondent mainly on the ground that, although the undertaking to give notice had been given by her attorneys, counsel had advised her that it was not necessary to give notice and that in any event the applicant had no right to intervene in the application for leave to sue by edictal citation or to oppose an application of this nature.

Le Roux J

On 23 March 1978 the parties reached an agreement on the urgent application and the following order was then made by agreement:

"(1)

That the order A granted by this Court on 21 March 1978 stand but be not issued;

(2)

that Mr John Schlesinger's application to set aside the order granted to Mrs R Schlesinger be postponed sine die;

(3)

that Mr Schlesinger be entitled to supplement affidavits filed on his behalf by not later than 2 May 1978; Mrs R Schlesinger be B entitled to reply to such affidavits within six weeks of the filing thereof; thereafter Mr J Schlesinger be entitled to reply thereto within three weeks of such filing;

(4)

that the costs of the proceedings to date be reserved for determination by the Court hearing Mr J Schlesinger's application;

(5)

that either party after the filing of Mr J Schlesinger's replying C affidavits be entitled to set the matter down for hearing on notice to the other side, should either party not file his or her affidavit timeously as provided in para 3 hereof, the other party be entitled to set the matter down for hearing."

D Thereafter the present proceedings were initiated by the applicant for the following relief:

"(a)

Granting the intervener leave to intervene in the ex parte application of Rita Rose Schlesinger (case 78/3476).

(b)

Recalling or alternatively setting aside the order granted but not issued in the said case 78/3476 by His Lordship, Mr Justice F S STEYN on 21 March 1978.

(c)

E Granting the abovenamed intervener leave in terms of Rule 6 (4) (b) to oppose the aforesaid application 78/3476.

(d)

Dismissing the said application 78/3476 with costs on the scale applicable between an attorney and his client.

(e)

Directing the applicant in case 78/3476 to pay the costs of the F intervening applicant's application herein on the scale applicable as between an attorney and his client.

(f)

Granting the intervening applicant such other or alternate relief as it deems fit."

In support of this relief, the applicant contended that his wife had been less than frank with the Court when she approached it ex parte for leave G to sue him by edict, and that she deliberately withheld material facts and information in her application which would or, at least, might have influenced the Court in arriving at a decision to grant her relief. If this contention were accepted, it would, of course, be sufficient to warrant a dismissal or setting aside of the order complained of. The H applicant also submits, even if he fails on the first ground, that he is entitled to relief (should leave be granted to him to opp ose the merits of the application) on the grounds of lis alibi pendens, or alternatively, failure to prove that he is domiciled in South Africa.

The respondent strenuously opposes the relief sought by the applicant. Not only does she deny any material non-disclosure of facts, but also the applicant's right to intervene and oppose her application for leave to sue by edictal citation. She furthermore contends that her husband has not acquired Swiss or any other domicile, that she has made out a prima

Le Roux J

facie case and that the onus is on the applicant to show the acquisition of a new domicile. As the facts are in dispute from which an inference of A domicile could be drawn, the only practical method of solving this question would be to allow the trial to proceed and to hear evidence on this limited issue instead of referring the application for evidence which is in any event incompetent because there is no right to oppose in law.

Before the merits are dealt with it will accordingly be necessary to decide the preliminary points:

(a)

B whether the applicant has a right to be heard at a ll either on the question of non-disclosure or on the merits; and

(b)

whether the undisputed facts show a culpable and material lack of frankness in bringing the application for leave to sue by edict, which should be visited with the penalty of dismissal or setting aside of the relief thus obtained.

C In regard to the first preliminary point, it is true that applications for leave to sue by edict are habitually brought ex parte, ie they are addressed to the Registrar of the particular Division only and no notice need be given to the opposite party even though his (or her) rights or interests may be severely affected thereby (see Herbstein and Van Winsen D Civil Practice of the Superior Courts in South Africa 2nd ed at 58, 224). This, however, is a far cry from saying that where an undertaking, amounting to an agreement, has been given by one party to inform the other, should he decide to bring an application to sue by edictal citation, the party giving the undertaking has no obligation to honour his agreement and may proceed ex parte without disclosing this fact and E without giving notice. Mr Oshry, for the respondent, submitted that this is in fact the legal position in which the respondent found herself after certain correspondence had been exchanged between the attorneys on the very subject of an application for leave to sue by edict, and that, evenif F an agreement to give notice could be inferred from these letters, his client would not be bound thereby.

The correspondence consists of three letters, and as they played an important role in counsel's arguments they must be set out here in some detail. The first was addressed by applicant's attorneys to respondent's attorneys on 10 February 1978 and reads as follows:

"Dear Sirs,

G Schlesinger v Schlesinger

We refer to our recent discussions over the telephone with yourMr Barlow and the meeting of Mr H Schwarz and our Mr V G Mansellwith Mr Barlow at your offices yesterday relating to the action which your client intends instituting against our client in South Africa for matrimonial relief.

H It was suggested by you that we should accept service on behalf of our client of your client's summons in order to avoid the necessity of an application by your client for leave to sue by edictal citation. We are not authorised to accept such service and in any event are of the opinion that in a matrimonial action service in the manner suggested by you would not be proper service. Personal service may be effected on our client at 2nd Floor, 18 Rue Senebier, Geneva, Switzerland.

We confirm that your client has been advised that the parties are not domiciled in South Africa. If, nevertheless, your client intends making application for leave to sue by edictal citation, please give us notice of the application and furnish us with a copy of the application documents.

Yours faithfully,

Edward Nathan & Friedland...