Shika v Shika (5136/2021) [2021] ZAGPJHC 551 (3 September 2021)

Shika v Shika (5136/2021) [2021] ZAGPJHC 551 (3 September 2021)

The court found that the applicant had not made out a proper case for a replacement vehicle in her founding papers, as the mandament van spolie does not provide for substitution or damages in motion proceedings. The applicant may pursue damages in separate proceedings. Regarding contempt, although the respondent breached the order by depriving the applicant of access to amenities such as electricity, wi-fi, and household services, the evidence did not establish that his conduct was mala fide and willful to the degree required for contempt. The court granted ancillary relief to restore the applicant's access and prevent further breaches, reserved costs, and authorized the applicant to...

Citation
[2021] ZAGPJHC 551
Parties
Applicant: Shika, Londiwe (nee Mkomonde); Respondent: Shika, Lesibana Herbert
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 September 2021
Case Number
5136/2021
Procedural Posture
Urgent Application / Final Determination of Urgent Application
Outcome
Application partially granted: contempt relief refused, ancillary relief and authorization for damages proceedings granted, costs reserved.
Judges
EF Dippenaar
Legal Topics
Spoliation, Mandament Van Spolie, Contempt of Court, Matrimonial Home Access, Damages Claim
Family and Children Civil Procedure Spoliation Mandament Van Spolie Contempt of Court Matrimonial Home Access Damages Claim

Case Brief

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Parties

Shika, Londiwe (nee Mkomonde)

Applicant

Shika, Lesibana Herbert

Respondent

Procedural Posture

Urgent Application / Final Determination of Urgent Application

Legal Issues

  1. 1 Whether the applicant is entitled to a replacement vehicle as a consequence of spoliation by the respondent.
  2. 2 Whether the respondent is in contempt of the court order granted on 26 July 2021.
  3. 3 Whether the respondent breached the applicant's rights to unfettered access and enjoyment of the matrimonial home and its amenities.

Ratio Decidendi

The court found that the applicant had not made out a proper case for a replacement vehicle in her founding papers, as the mandament van spolie does not provide for substitution or damages in motion proceedings. The applicant may pursue damages in separate proceedings. Regarding contempt, although the respondent breached the order by depriving the applicant of access to amenities such as electricity, wi-fi, and household services, the evidence did not establish that his conduct was mala fide and willful to the degree required for contempt. The court granted ancillary relief to restore the applicant's access and prevent further breaches, reserved costs, and authorized the applicant to...

Court Disposition

Application partially granted: contempt relief refused, ancillary relief and authorization for damages proceedings granted, costs reserved.

Orders

  • The respondent is directed to immediately restore the applicant's undisturbed and unfettered access to the matrimonial home and its amenities, including electricity, wi-fi, and household services.
  • The respondent must instruct the nanny to perform all household work for the applicant.