OB v LS (20540/2018)  ZAWCHC 43 (9 March 2021)
This was an appeal with leave of the court a quo against its order dismissing the appellant’s unopposed divorce action on the ground that the jurisdictional requirements contained in s 2(1) of the Divorce Act 70 of 1979 (“the Divorce Act”) had not been met. There was no opposition to the appeal.
The relevant background facts were as follows. On 6 December 2017 at Cape Town the parties, both foreign nationals, entered into a civil union in terms of the Civil Union Act 17 of 2006, in which they married out of community of property by antenuptial contract with the incorporation of the accrual system.
On 18 October 2018 they concluded a settlement agreement in anticipation of a divorce. The appellant’s summons was issued on 7 November 2018. She alleged in her particulars of claim that she was domiciled within this court’s area of jurisdiction and was also ‘currently residing’ on a farm in the Caledon area. The respondent was alleged to be residing in Namibia. It was furthermore alleged that the marriage had broken down irretrievably and that the parties ceased living together on ‘the estimated date’ of 15 December 2017. The settlement agreement (‘Consent Paper’) was annexed to the particulars of claim, and the appellant sought a decree of divorce incorporating its terms.
On 22 January 2019 an ex parte order was granted authorising the appellant to serve the summons via the sheriff on the respondent personally in Namibia. This duly happened and the matter was afterwards enrolled on an unopposed basis in the motion court for hearing on 10 April 2019.
The appellant testified that she relocated back to Moscow, Russia (her country of origin) sometime around the end of December 2018. In response to a question by her counsel she confirmed that she was ‘permanently resident’ in Caledon from April 2018 until December 2018, and conducted her freelance accounting business remotely from there for her clients in Russia.
The appellant was given the opportunity to give further evidence after the court a quo indicated that it was not satisfied, based on that testimony, that it had the necessary jurisdiction. The appellant then mentioned that she and the respondent came to South Africa with the intention of marrying here, since same-sex marriages are not recognised in either Namibia or Russia.
She testified furthermore that prior to the marriage, the parties travelled to various places in South Africa: ‘We were looking for a place where we want [to] maybe live’. In Caledon they met a certain Mr Kleyn who had what she described as a beautiful farm: ‘So we became friends and he suggested to us [that] before we find our own property to live, to live at his place…’. An agreement was then reached in terms of which the parties would reside on the farm: ‘We choose Caledon and decide to stay there’. From what can be gleaned from the evidence, the parties were residing in Caledon and intended to remain there indefinitely at the time of their marriage.
It was a few weeks after the marriage, towards the end of December 2017, that they travelled to Germany on honeymoon for 10 days. The appellant testified that whilst on honeymoon she realised the marriage had been a mistake. Even though she no longer wished to continue with the marriage she nevertheless planned to continue living in Caledon.
She travelled on to Moscow to make the required arrangements with her clients, and came back to Caledon during April 2018. It bears mention that the appellant signed the Consent Paper in Moscow on 8 October 2018 and the court a quo stated in its judgment that the founding affidavit in the edictal citation application was also signed by her in Moscow on 27 November 2018. Her evidence in this regard was limited to ‘I was for two weeks in Moscow in November, and I was moving’, and that she also travelled to Russia during the period April to December 2018 for business purposes.
Although not completely clear from the record given the appellant’s testimony in English (her mother tongue being Russian), it would seem on the probabilities that in stating ‘I was moving’ she was referring to her move to South Africa, since in response to a question by the court a quo whether her entire life was still in Moscow she replied: ‘No, my entire life was in Caledon’. She explained that over that period she was also looking to buy property in the Caledon area in which to live.
It appears that after the appellant’s visit to Russia in November 2018 matters with her clients did not work out as planned, since some insisted on personal contact which was impossible given the geographical distance. The appellant’s evidence was that it was at the end of December 2018 she came to realise that she would have to move back to Russia permanently.
Counsel for the appellant, without dealing with domicile, then addressed the court a quo on the issue of residence, and more in particular the meaning of ‘ordinarily resident’ as it appears in s 2(1) of the Divorce Act, which provides as follows:
‘2. Jurisdiction. – (1) A court shall have jurisdiction in a divorce action if the parties are or either of the parties is---
(a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
(b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.’
In its judgment the court a quo dealt thoroughly with the issue of jurisdiction, but concentrated on the meaning of ‘ordinarily resident’ in light of the submissions made by counsel at the hearing. The learned Judge concluded that the period of the appellant’s ‘sojourn’ in Caledon was insufficient to meet the ordinary resident requirement in s 2(1)(b). He correctly stated that during the hearing the appellant’s counsel, by implication, abandoned any reliance on s 2(1)(a) above.
The failure to rely on s 2(1)(a) persisted in the application for leave to appeal, the notice of appeal and the appellant’s heads of argument filed prior to the appeal. The approach taken was that at the time the divorce action was instituted neither of the parties were domiciled or resident in this court’s area of jurisdiction, seemingly in terms of s 2(1) of the Divorce Act. Seemingly since the grounds of appeal were that the court a quo erred in failing to find it had jurisdiction under the common law, alternatively developing the common law to provide a basis for jurisdiction in the particular circumstances of this matter.
An invitation was extended to the Appeal Court to develop the common law so as to permit spouses in the position of the parties to divorce in South Africa where the countries in which they are domiciled or ordinarily resident at the time of institution of divorce proceedings do not recognise same-sex marriages.
It was however incumbent upon the Appeal Court to nevertheless raise the issue of domicile, in terms of s 2(1)(a), with the appellant’s counsel during the appeal. As the Constitutional Court remarked in Quartermark Investments (Pty) Ltd v Mkhwanazi and Another :
‘[20 In considering the role of the court, it is appropriate to have regard to the well-known dictum of Curlewis JA in R v Hepworth to the effect that a criminal trial is not a game and a judge’s position is not merely that of an umpire to ensure that the rules of the game are observed by both sides. The learned judge added that a ‘judge is an administrator of justice’ who has to see that justice is done. While these remarks were made in the context of a criminal trial they are equally applicable in civil proceedings and in my view, accord with the principle of legality. The essential function of an appeal court is to determine whether the court below came to a correct conclusion. For this reason the raising of a new point of law on appeal is not precluded, provided the point is covered by the pleadings and its consideration on appeal involves no unfairness to the party against whom it is directed. In fact, in such a situation the appeal court is bound to deal with it as to ignore it may ‘amount to the confirmation by it of a decision clearly wrong’, and not performing its essential function. This in turn would infringe upon the principle of legality…’
Domicile in terms of s 2(1)(a) was raised because what the appellant’s counsel overlooked, and thus failed to draw to the court a quo’s attention, is that s 1(2) of the Divorce Act contains the following deeming provision:
‘For the purposes of this Act a divorce action shall be deemed to be instituted on the date on which the summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of court, as the case may be.’ [emphasis supplied]
Accordingly, the question is whether or not the evidence before the court a quo was adequate to warrant the conclusion that the appellant was domiciled in its area of jurisdiction on 7 November 2018, the date when summons was issued by the registrar, and not the date when it was later served on the respondent in Namibia after the appellant returned permanently to Russia. (In its judgment the court a quo stated that the summons was served on the respondent on 31 April 2019 and that the action therefore commenced on 4 April 2019. The Appeal Court accepted that what the Judge probably meant was that the summons was served on 30 April 2019 and the action thus commenced on that date).
The appellant’s counsel was afforded the opportunity to provide the Court of Appeal with a supplementary note, in which the invitation to develop the common law was abandoned, and the court was instead requested to decide the appeal solely on the basis that the court a quo erred in failing to find the appellant was in fact domiciled within its area of jurisdiction when the summons was issued in terms of s 1(2) as read with s 2(1)(a) of the Divorce Act. Written submissions were also provided in support thereof.
Since its amendment by GN R472 of 12 July 2017, uniform rule 49(4) mirrors the wording of sub-rules 7(3)(a) and (b) of the Supreme Court of Appeal rules. They read as follows:
‘Every notice of appeal and cross-appeal shall state –
(a) what part of the judgment or order is appealed against; and
(b) the particular respect in which the variation of the judgment or order is sought.’
In Leeuw v First National Bank Limited the Supreme Court of Appeal set out the position as follows:
‘In this court it is not required that grounds of appeal be stated in the notice of appeal. The nature of the proceedings is such that this court is entitled to make findings in relation to “any matter flowing fairly from the record”. The parties in their written and oral arguments have dealt with all the issues relevant to the appeal and the appellant has not pointed to anything that has been overlooked…’
Accordingly, in addition to the authority of Quartermark Investments, the Court of Appeal were not precluded from dealing with the appeal on the new ground advanced.
There is a dearth of authority on the deeming provision in s 1(2) of the Divorce Act. In H V v C V the respondent had already issued summons for a divorce in KwaZulu-Natal when one was issued at the instance of the applicant out of this court. The applicant’s summons was served on the respondent before his was served on her.
The applicant thereafter launched a rule 43 application in this court and the respondent objected to its jurisdiction on the basis of s 1(2). Although his counsel conceded in argument that this court had jurisdiction, Binns-Ward J considered the import of s 1(2) as follows:
‘Counsel, however, quite properly, drew my attention to the provisions of s 1(2) of the Divorce Act 70 of 1979, which at first blush might be read to have the opposite effect… Counsel were not able to refer me to any decided case in which the import of s 1(2) of the Divorce Act had been considered or determined, and in the limited time available to me in the context of managing the Third Division roll I have also not been able to find any.
There are two striking features about the provision. The first is that it is a deeming provision and the second is that the object of the deeming function is to serve “the purposes of th[e] Act”. A deeming provision generally has the effect of causing something to be treated as if it were something that it is actually not. Actual joinder, and the attendant commencement of the action, occurs only upon service of the initiating summons. The Appeal Judge had been unable to identify any purpose of the Act that would be served by treating the date of issue of an unserved summons as determinative of the question before which court the action is pending when service of a summons issued later in another court of competent jurisdiction had been effected. Put otherwise, it does not serve any purpose of the Act to treat the court before which the action is not actually pending as if it were the court in which the action was effectively commenced.
There is however another reason for the deeming provision in s 1(2), and this was explained by the authors of The Law of Divorce and Dissolution of Life Partnerships in South Africa (editor Heaton) at 507-508:
‘Action proceedings are generally regarded as having been instituted when they are served on the Defendant. An exception operates in respect of divorce proceedings. Section 1(2) of the Divorce Act provides that for the purposes of the Act, a divorce action is deemed to be instituted on the day on which the summons is issued, or the notice of motion is filed, or the notice delivered in terms of the rules of court. This section can be very important, particularly in respect of jurisdictional disputes. It can sometimes be very tricky to effect service of proceedings instituted, and parties frequently attempt to forum shop to secure the most favourable result. Although it is not a failsafe means of securing jurisdiction in respect of a matter, the institution of proceedings will at the very least secure the litigant the opportunity of litigating in his or her chosen jurisdiction.’ [emphasis supplied]
In his further written submissions counsel for the appellant submitted that whilst at first blush it may seem that H V v C V renders s 1(2) ‘redundant’, this was not the case; the learned Judge’s findings were clearly directed at those instances where a spouse causes a divorce summons to be issued but thereafter takes no steps to have it served, but although the other spouse’s summons is issued thereafter (in another court of competent jurisdiction), he or she does ensure that service is effected. In such circumstances, he submitted, s (1(2) would have no bearing on the matter since the deeming provision would serve no purpose, and the parties should not be required to proceed with an action in a court where the matter is not actually pending.
The Appeal court did not agree with this submission. Binns-Ward J expressly stated that he had been unable to identify any purpose of the Divorce Act that would be served by treating the date of issue of an unserved summons as determinative of jurisdiction, where service of such a summons issued later in another court of competent jurisdiction had been effected.
As previously stated, the purpose which Court of Appeal identified (as submitted by Heaton et al) was to afford a spouse the opportunity of litigating in his or her chosen area of (competent) jurisdiction. There may of course be other purposes, including those mentioned by the learned Judge, but they have no bearing on jurisdiction.
That being said, the Court of Appeal remarked that it may well be necessary in an appropriate case to give consideration to whether there should be a “reading in” of a proviso in s 1(2) to the effect that a later issued summons, subsequently served, shall be determinative of jurisdiction in divorce actions if the spouse who first caused summons to be issued subsequently fails to take steps to effect service either wilfully or negligently. This would however no doubt require input from the Government Minister(s) concerned as well as other interested parties, with their attendant joinder(s).
Returning to the instant matter, the court a quo found that the appellant gave no evidence regarding her domicile. It also referred to her testimony that the parties wished to establish whether they liked South Africa for purposes of relocating here permanently. As the learned Judge put it: ‘It was more a trial run before finally deciding to establish a domicile of choice in this country’.
While the latter may have been the factual position when the parties first arrived in South Africa, the Court of Appeal's understanding of the appellant’s evidence was that an agreement had already been concluded with Mr Kleyn prior to the marriage that the parties would reside on his farm because they had chosen Caledon as the place where they would live.
This was consistent with the appellant’s testimony that after the parties separated in December 2017 she took the necessary steps to inform her Russian clients of her intention to do so, in fact returned on her own to this court’s jurisdiction for some nine months, and considered buying property here, before circumstances caused her to realise at the end of December 2018 that she had no choice but to return to Russia. There was also her evidence that her trips to Russia during the period April to December 2018 were not because she still considered it to be her home (or domicile).
All of these facts, cumulatively, lended support for the averment in her particulars of claim that at the time the action was instituted on 7 November 2018 she was domiciled within this court’s area of jurisdiction.
 Section 1 of the Domicile Act 3 of 1992 (“the Domicile Act”) provides as follows:
‘1. Domicile of choice. ---(1) Every person who is of or over the age of 18 years, and every person under the age of 18 years who by law has the status of a major, excluding any person who does not have the mental capacity to make a rational choice, shall be competent to acquire a domicile of choice, regardless of such a person’s sex or marital status.
(2) A domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.’
There was no suggestion that at any stage the appellant was in South Africa unlawfully. In Chinatex Oriental Trading Co v Erskine the court dealt with the acquisition of a domicile of choice for purposes of the Domicile Act as follows:
‘…A domicile of choice can thus be acquired by sufficing two elements:
(i) physical presence (an objective fact) and
(ii) an intention to remain indefinitely (a subjective test).
A person’s physical presence requires more than a visit or a sojourn to the country. Accordingly the longer the person is settled at a particular place, the greater the likelihood of a court regarding him as resident there for the purposes of domicile. (Johnson v Johnson 1931 AD 391 at 411.) The second element, animus manendi, does not require an intention to remain permanently. The person must display a state of mind which is consistent with the intention of remaining indefinitely, which intention need not be irrevocable in order to show that a domicile of choice has been acquired. (Pollak (1933) 50 SALJ at 465; Ley v Ley’s Executors and Others 1951 (3) SA 186 (A); Eilon v Eilon 1965 (1) SA 703 (A) at 721A.) Furthermore a continuing emotional attachment to one’s country of origin is insufficient to negative a domicile of choice. (Eilon v Eilon (supra)at 705A).)’ [emphasis supplied]
In the absence of an adverse credibility finding against the appellant by the court a quo, the Court of Appeal was bound to accept her version. As submitted by C F Forsyth Private International Law (5ed) at 141 the most apt description of an intention to reside in a particular place for an indefinite period is ‘until and unless something, the happening of which is uncertain, occurs to induce the person to leave…’.
In LAWSA: Conflict of Laws (2ed 2(2)) at para 301 the author, relying on the opinion expressed in para 3.44 of the South African Law Commission Working Paper 20 on the issue of domicile of choice, states:
‘Whilst the strength of an intention to settle in a country may be easy enough to gauge… and thus satisfy the test of intention, the just resolution of hard cases will require a more flexible approach for determining the acquisition of a domicile of choice than can be provided by the test of intention which serves legal certainty alone.’
Having regard to the evidence before the court a quo the Court of Appeal was persuaded that, although the facts in this matter may constituted a “hard case” on domicile, a flexible approach is called for, and that to lean on legal certainty alone would militate against the interests of justice. It would follow, on this reasoning, that the appellant established on a balance of probabilities that at the time of institution of the divorce proceedings she was domiciled within this court’s area of jurisdiction, and the court a quo thus had the requisite jurisdiction to grant the decree of divorce.
The following order was made:
1. The appeal succeeds.
2. The order of the court a quo is set aside and substituted with the following:
‘A decree of divorce is granted incorporating the terms of the parties’ Consent Paper’.
3. No order is made as to costs.
Bertus Preller is a Family Law and Divorce Law Attorney at Maurice Phillips Wisenberg in Cape Town.