H.S.W v H.S.W (1694/08) [2009] ZAWCHC 159 (14 September 2009)

H.S.W v H.S.W (1694/08) [2009] ZAWCHC 159 (14 September 2009)

The court found that, although the plaintiff resided in Cape Town for more than a year prior to instituting divorce proceedings, the evidence did not establish that she regarded Cape Town as her permanent home or had the requisite intention to be ordinarily resident there for the required period. Plaintiff's correspondence and conduct indicated uncertainty and a plan to return to Namibia, undermining her claim of ordinary residence in Cape Town. The statutory requirements for jurisdiction under the Divorce Act were not met, and thus the court lacked jurisdiction to entertain the divorce action.

Citation
[2009] ZAWCHC 159
Parties
Plaintiff: H S-W; Defendant: H S W
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 September 2009
Case Number
1694/08
Procedural Posture
Civil Action / Special Plea on Jurisdiction in Divorce Action
Outcome
Special plea upheld; action dismissed for lack of jurisdiction.
Judges
Davis
Legal Topics
Divorce Jurisdiction, Ordinary Residence, Forum Non Conveniens
Family and Children Civil Procedure Divorce Jurisdiction Ordinary Residence Forum Non Conveniens

Case Brief

Summary, issues, holding and outcome

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Parties

H S-W

Plaintiff

H S W

Defendant

Procedural Posture

Civil Action / Special Plea on Jurisdiction in Divorce Action

Legal Issues

  1. 1 Whether the plaintiff was ordinarily resident within the jurisdiction of the Western Cape High Court at the time of instituting divorce proceedings.
  2. 2 Whether the requirements of section 2 of the Divorce Act 70 of 1979, as amended by the Domicile Act 3 of 1992, were met for jurisdiction.
  3. 3 Whether the forum is appropriate or convenient for the dispute.

Ratio Decidendi

The court found that, although the plaintiff resided in Cape Town for more than a year prior to instituting divorce proceedings, the evidence did not establish that she regarded Cape Town as her permanent home or had the requisite intention to be ordinarily resident there for the required period. Plaintiff's correspondence and conduct indicated uncertainty and a plan to return to Namibia, undermining her claim of ordinary residence in Cape Town. The statutory requirements for jurisdiction under the Divorce Act were not met, and thus the court lacked jurisdiction to entertain the divorce action.

Court Disposition

Special plea upheld; action dismissed for lack of jurisdiction.

Orders

  • The action is dismissed together with costs.