M C v F D (5544/2017) [2020] ZAGPJHC 19 (30 January 2020)

M C v F D (5544/2017) [2020] ZAGPJHC 19 (30 January 2020)

The court found that the respondent's conduct throughout the divorce proceedings was characterized by repeated delays, obstruction, and failure to comply with procedural requirements. Her defence and counterclaim were struck out due to her failure to file opposing papers and her attempts to hold the proceedings to ransom through inappropriate recusal tactics. The Rule 43(6) order was deemed not appealable, making any request for reasons academic. The recusal application was found to be incompetent and redundant, as the judge had already certified the divorce action trial ready and was functus officio as case manager. The respondent's withdrawal of the recusal application, without...

Citation
[2020] ZAGPJHC 19
Parties
Applicant: C, A; Respondent: D, F
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 January 2020
Case Number
5544/2017
Procedural Posture
Family Law Application / Post Interlocutory Orders; Cost Determination After Withdrawal of Recusal Application
Outcome
The respondent's defence and counterclaim were struck out; the Rule 43(6) order was confirmed as not appealable; a punitive cost order was granted against the respondent for the recusal application.
Judges
L T Modiba
Legal Topics
Divorce Action, Primary Residence of Children, Rule 43 Variation, Recusal Application, Punitive Costs
Family and Children Civil Procedure Divorce Action Primary Residence of Children Rule 43 Variation Recusal Application Punitive Costs

Case Brief

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Parties

C, A

Applicant

D, F

Respondent

Procedural Posture

Family Law Application / Post Interlocutory Orders; Cost Determination After Withdrawal of Recusal Application

Legal Issues

  1. 1 Whether the respondent's defence and counterclaim should be struck out due to dilatory and obstructive conduct.
  2. 2 Whether the Rule 43(6) order is appealable.
  3. 3 Whether a punitive cost order is justified following the withdrawal of the recusal application.

Ratio Decidendi

The court found that the respondent's conduct throughout the divorce proceedings was characterized by repeated delays, obstruction, and failure to comply with procedural requirements. Her defence and counterclaim were struck out due to her failure to file opposing papers and her attempts to hold the proceedings to ransom through inappropriate recusal tactics. The Rule 43(6) order was deemed not appealable, making any request for reasons academic. The recusal application was found to be incompetent and redundant, as the judge had already certified the divorce action trial ready and was functus officio as case manager. The respondent's withdrawal of the recusal application, without...

Court Disposition

The respondent's defence and counterclaim were struck out; the Rule 43(6) order was confirmed as not appealable; a punitive cost order was granted against the respondent for the recusal application.

Orders

  • Ms D shall pay Mr C's costs of the recusal application on the attorney and client scale, including Advocate Bedeker's appearance fee for 14 January 2020.