Shishaba v Shishaba

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Du Plessis AJ
• Judgment Date: 19 September 2023
• Citation: 2023 JDR 3605 (GJ)
• Docket Number: 20/27078
• Court: Gauteng Local Division, Johannesburg

Du Plessis AJ:

[1]

This is an action for divorce involving two minor children, where, throughout the acrimonious run-up to the trial and thereafter, the Defendant elected to represent himself while the Plaintiff was duly represented. Before I can set out what each party claims, I must say something about the litigation history of this case.

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The litigation process

[2]

As a self-represented litigant, the Defendant has issued 12 applications against the Plaintiff. Most of the matters were either struck off the roll, or the Defendant did not take the matter further once the Plaintiff filed answering affidavits. They are also not interlocutory applications. The purpose of launching these applications, the Defendant states, is to open the Plaintiff’s eyes. [1] As for the rest of the matters, the Plaintiff does not need to respond as they are irrelevant.

[3]

The legal processes and filing notices, affidavits and other documents may be a maze for parties seeking to represent themselves in action proceedings. There is a delicate dance between adhering strictly to the rules of the court, to ensure that the process runs smoothly and allowing some leniency towards a self-representing litigant who may not have a bird’s eye view of how the law as a system operates or know about the intricate details of the law and legal processes, to ensure that both parties are genuinely heard. In this case, this dance was challenging at times.

[4]

Most court officers – from judges to advocates and attorneys, are sympathetic to bona fide self-represented litigants who litigate because they cannot afford legal representation and often do not pass the means test to qualify for free legal advice. The Defendant’s attitude to this, as evident from his e-mail of 24 February 2023, is telling. He does not claim that he cannot afford or find legal representation, but he makes it clear that he will elect when and if he appoints a legal practitioner to represent him.

[5]

On the first day of the hearing, the Defendant instructed an attorney to represent him in the matter. I heard arguments on his request to postpone the matter and refused such postponement for the reasons set out below. However, I gave the Defendant my hard copy of the CaseLines file. I adjourned the court till the next day so that his

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attorney could prepare for that matter, and perhaps even see if the parties cannot reach a settlement agreement.

[6]

The next day, when the court convened, the attorney was nowhere to be found. We were informed that he was on his way. The court waited for the attorney, making it clear that there was also an obligation towards the Plaintiff to ensure finality in the matter and not postpone it again for her to incur more costs. When his attorney failed to arrive an hour later, the case proceeded. I asked the Defendant to state clearly what he claims. He placed everything in dispute, including the divorce itself, and stated that he wants:

i.

Residence of the children be awarded to him;

ii.

Maintenance for him in the amount of R26 000 pm;

iii.

The Plaintiff pay maintenance for both children;

iv.

Contact be awarded to the Plaintiff;

v.

50% of the Plaintiff’s pension benefits.

[7]

He agreed that a liquidator be appointed to divide the balance of the joint estate.

[8]

After this, the attorney appeared, stating that the Police impounded his car, which is why he was late. [2] Given the history of this case, I allowed the departure from certain formalities, as I deemed the right to legal representation to be of utmost importance.

[9]

After both parties gave evidence and were cross-examined, the court reserved judgment and requested the parties to send Heads of Argument by 7 August 2023. The Plaintiff duly followed the court’s directive. The attorney for the Defendant did not submit Heads of Argument or a draft order. The Defendant submitted various

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documents (that he named “The Winner”) and a draft order. The draft order stated the following:

Having read the documents, having heard evidence, and having considered the matter:

It is ordered that:

1.

A decree of divorce is not granted.

2.

The parties will remain married, and the matter is referred to mediation where a third party trained in divorce will assist the disputing parties.

3.

A decision may not come forth from this court as

3.1

There has been a violation of the constitution.

3.1

Failure to comply with procedural requirements within the Court. Court Process, Procedure and rules have fallen short.

[10]

The Plaintiff set out what she claims in her heads of argument. She seeks:

i.

Residence of the minor children to be awarded to her;

ii.

That the Defendant pay maintenance of R2 500pm per child;

iii.

That the Defendant pay 50% of all items listed as the minor children’s requirements as set out in the amended particulars of claim;

iv.

That in terms of s 9(1) of the Divorce Act the Defendant forfeits his right to his share of the pension interest of the Transnet Retirement Fund of which the Plaintiff is a member;

v.

That the pension fund of which the Defendant is a member be directed to pay 50% of the pension interest in that fund to the Plaintiff;

vi.

That the Defendant pays the costs of the divorce action as he had ample opportunity to settle the matter amicably on various occasions, including during March 2023 and on 24 July 2023, when the Plaintiff proposed a settlement agreement, which the Defendant did not respond to as indicated by his legal representative that a response would be submitted by 15:30 on 24 July 2023.

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[11]

The Plaintiff clarified that she does not wish to continue the marriage. Thus, the issues for this court to determine are:

i.

To whom the residence of the two children will be awarded;

ii.

The contact which should be awarded to the party with whom the children do not reside;

iii.

Maintenance payable by the party with whom the minor children do not reside;

iv.

Whether the Defendant should forfeit his right to claim any part of the pension interest in Transnet Retirement Fund of which the Plaintiff is a member;

v.

The division of the properties and the joint estate;

vi.

Which party should pay the costs of the divorce action.

[12]

These issues will be addressed after I have dealt with why I dismissed the application for postponement.

Notice of removal (postponement)

[13]

The Defendant filed a notice “for the matter to be removed from the roll” on 20 July 2023, four days before the trial date. This is because “[i]n the interest of justice, equality, and access to courts; [t]he respondent has not yet found the use of counsel to represent him at trial dated for 24 July 2023”. He wants counsel “with the same fire power” as the counsel of the Plaintiff, due to what he described as various prejudices and lack of equality experienced so far, including during the Rule 43 application instituted by the Plaintiff (there was no financial disclosure from the respondent and the judge thus made a ruling on hearsay evidence); that the interlocutory motion to compel the respondent to sign pre-trial minutes does not reflect what was discussed, and an unopposed application that was successful even if the matter was opposed.

[14]

During all these applications, the Defendant felt that the judges were more lenient to their “Colleagues/equals/advocates/friends”. The Defendant did not deem the matter

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trial-ready, as there are no practice notes, he did not yet discover the issues in dispute, and various cases before the court relating to the matter must still be finalised.

[15]

Moreover, in this notice, which he also sent to various people in the judiciary, Department of Justice and Constitutional Development and the Presidency, he deems the use of CaseLines unconstitutional seen in the light of access to the courts and equality in the courts. He states that because he was only added late to this file on CaseLines, this infringes on his right to a fair trial.

[16]

He raises various other concerns about CaseLines and access to justice, including the question of whether a self-represented litigant will have adequate knowledge to manoeuvre around CaseLines, whether non-English users are accommodated and the problem of access for people who cannot adequately use a computer (due to age and computer literacy). He raises human rights concerns about access to court, equality in courts and the costs of proceedings where a litigant represents themselves.

[17]

The Plaintiff’s attorney filed an affidavit opposing the application for postponement, asking it to be dismissed. He made the following submissions:

i.

The Defendant is highly educated, holding a master’s degree in engineering management, tutoring students in mathematics, being employed as an engineer in various capacities, and created an app for child maintenance planning explaining parents’ duty to pay maintenance referring to the Children’s Act with regard to parents’ parental responsibilities, amongst other things.

ii.

He personally served a notice of intention to defend on 7 December 2020 and has always been representing himself. He prepared his own papers and appeared in person in an urgent application, a Rule 43 application, and interlocutory applications.

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iii.

He was informed in a letter from the Plaintiff’s attorneys on 8 December 2021 to obtain the services of an attorney to assist in a roundtable meeting.

iv.

When Plaintiff’s attorneys tried to settle the matter amicably on 20 February 2023, the Defendant replied that he will forward the settlement proposal to his attorneys and reply on 24 March 2023. The Plaintiff’s attorneys requested that his attorneys place themselves on record, to...