Hawkes v Hawkes and Another (713/02 , ECJ244/2002) [2006] ZAECHC 31; 2007 (2) SA 100 (SE) (6 July 2006)

Hawkes v Hawkes and Another (713/02 , ECJ244/2002) [2006] ZAECHC 31; 2007 (2) SA 100 (SE) (6 July 2006)

The court held that the first respondent was not bound by the undertaking given by her counsel, as it was made without her mandate and contrary to her instructions to oppose the interim relief. The counsel's actions deprived her of the opportunity to consult and decide upon a course of action, amounting to a failure of justice. The mere recording of the undertaking did not give it the force of a court order. However, the applicant and the court were led to believe that the undertaking had been given, and the first respondent's attempt to transfer the property before adjudication of the application was opportunistic and prejudicial to the applicant's rights. The balance of convenience...

Citation
[2006] ZAECHC 31
Parties
Applicant: Glen Andrew Hawkes; Respondent: Andrea Jane Hawkes; Respondent: Registrar of Deeds, King William's Town
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
6 July 2006
Case Number
EL 244/2002
Procedural Posture
Urgent Application / Reasons for Judgment Following Grant of Interim Interdict
Outcome
Interim interdict granted restraining the first respondent from transferring the property pending determination of the East London application. Costs awarded against the first respondent on a party and party scale.
Judges
Leach
Legal Topics
Interim Interdict, Mandate of Counsel, Divorce Proceedings, Accrual System, Alienation of Property
Civil Procedure Family and Children Interim Interdict Mandate of Counsel Divorce Proceedings Accrual System Alienation of Property

Case Brief

Summary, issues, holding and outcome

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Parties

Glen Andrew Hawkes

Applicant

Andrea Jane Hawkes

Respondent

Registrar of Deeds, King William's Town

Respondent

Procedural Posture

Urgent Application / Reasons for Judgment Following Grant of Interim Interdict

Legal Issues

  1. 1 Whether the first respondent is bound by an undertaking given by her counsel without her mandate not to transfer immovable property pending divorce proceedings.
  2. 2 Whether the applicant is entitled to an interim interdict restraining the first respondent from transferring the property until the pending application is determined.
  3. 3 Whether costs should be awarded on a punitive scale.

Ratio Decidendi

The court held that the first respondent was not bound by the undertaking given by her counsel, as it was made without her mandate and contrary to her instructions to oppose the interim relief. The counsel's actions deprived her of the opportunity to consult and decide upon a course of action, amounting to a failure of justice. The mere recording of the undertaking did not give it the force of a court order. However, the applicant and the court were led to believe that the undertaking had been given, and the first respondent's attempt to transfer the property before adjudication of the application was opportunistic and prejudicial to the applicant's rights. The balance of convenience...

Court Disposition

Interim interdict granted restraining the first respondent from transferring the property pending determination of the East London application. Costs awarded against the first respondent on a party and party scale.

Orders

  • The first respondent is interdicted and restrained from alienating, encumbering, or transferring the immovable property pending finalisation of the application in the East London court.
  • The first respondent is ordered to pay the costs of the application on a party and party scale.