V v V (5881/17) [2017] ZAGPPHC 324 (6 July 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

6/7/2017

CASE NUMBER: 5881/17

DATE: 6 July 2017

Not reportable

Not of interest to other judges

Revised.

A V Applicant

v

W V Respondent

JUDGMENT

MABUSE J:

[1] This matter came before me on 15 March 2017 as an urgent application in which the applicant had sought the following order against the respondent:

"1. Dispensing of the forms and service, and where necessary, abridging and curtailing the time periods provided for in the roles of Court and hearing this matter as one of urgency in terms of Rule 6(12)(a);

2. That pending the final determination of the Respondent's special plea in the main divorce action, the Respondent be interdicted from proceeding with the divorce proceedings set down for 16 March 2017, or any other date, in Dubai United Arab Emirates,·

3. Cost of the Application on attorney and client scale.

4. Further and/or alternative relief. "

[2] After listening to the parties' counsel's argument I granted an order incorporating the following terms:

“1. It is declared that this Court has jurisdiction to adjudicate upon the divorce action pending in this Court under the above case number;

2. the respondent is hereby interdicted from proceeding with a divorce action in Dubai; United Arab Emirates;

3. the respondent is ordered to pay the costs of this application;

4. reasons to follow. "

These are therefore the reasons for the order that the Court granted on the said date.

[3] The crisp question herein was whether or not this Court has jurisdiction to entertain the divorce action that the applicant had initiated in this Court. The applicant contended, and it was also so argued by her counsel, that this Court does have jurisdiction. On the other hand the respondent contended that this Court does not have jurisdiction for reasons that he has set out in the answering

affidavit.

[4] I now turn to establishing the reasons for the parties' diverse contentions.

THE DIVORCE ACTION

[5] On 27 January 2017 the applicant, A V, instituted a divorce action against the respondent, W V out of this Court. For purposes of brevity I will refer to the parties herein as "A" and "W respectively". In the combined summons by which A initiated the said divorce action she had made the following allegations:

"1.

The plaintiff is A V, an adult female (Identity Number …) currently temporarily resident at […], Dubai, with chosen domicilium at […], Pretoria, Gauteng 0181.

2.

The defendant is W V, an adult male pilot, (Identity Number …) currently temporarily resident at […], Dubai, with chosen domicilium at Pretoria, Gauteng Province and with chosen address at […], Pretoria, Gauteng.

3.

3. 1. The above Honourable Court has jurisdiction to hear this matter, inter alia, by virtue of the fact:

3.1.1. the plaintiff and the defendant agreed to the jurisdiction of the above Honourable Court,

3.1.2. the plaintiff will be obliged to return to Pretoria, South Africa, after the divorce, alternatively pending finalisation of the divorce action, as she cannot stay in Dubai,

3.1.3. the plaintiff regards Pretoria to be her place of domicile;

3.1.4. the provisions of the Divorce Act, Act 70 of 1979, read together with the Domicile Act 3 of 1992has bearing."

[6] A was obliged to make and prove the allegations set out in paragraphs 1, 2, and 3 of her particulars of claim in order satisfy this Court that it has jurisdiction to hear her divorce action..

[7] To the aforesaid allegation W had put up the following special plea:

"THE DEFENDANT'S SPECIAL PLEA

1.1 The defendant specifically pleads that this Honourable Court has no jurisdiction to entertain the divorce action instituted by the plaintiff against the defendant

1.2 The defendant was not and is not domiciled in the area of jurisdiction of this Court on the date on which the action was instituted.

1.3 The defendant was not and is not ordinary resident in the area of jurisdiction of the Court and on the date of issuing the summons and has not been ordinary resident in the Republic for a period of not less than one year, immediately prior to that date.

1.4 The plaintiff and the defendant have not been domiciled in the area of jurisdiction of the above Honourable Court for approximately eight years and the plaintiff and the defendant are resident at the address reflected in paragraphs 1and 2 of the particulars of claim and has the defendant been resident there since 1 August 2013 and the plaintiff since 1 October 2013 and will the defendant continue to reside at the said address until completion of his present employment at the end of September 2021 when he turns 60years of age.

2.1 The above Honourable Court does not have jurisdiction in terms of section 2 of the Divorce Act 70 of 1979 read together with the Domicile Act 3 of 1992.

2.2 By virtue of the plea in paragraph 2.1supra the parties cannot impose jurisdiction on this Court by agreement

2.3 The domicilium of the plaintiff as set out in paragraph 1of her particulars of claim is the address of her brother and she does not reside there.

Wherefore the defendant prays that the plaintiffs action be dismissed with costs.

Suffice to point out that simultaneously with this special plea of lack of jurisdiction W delivered his main plea. Proceedings regarding both the special plea and the main plea will be heard on the same date. If the special plea succeeds, the main action will, on that ground alone, be dismissed. If the special plea fails, the parties will then proceed to deal with the main action.

THE APPLICATION FOR AN INTERDICT

[8] Notwithstanding firstly the fact that A had instituted a divorce action out of this Court and notwithstanding furthermore the fact that W's own initial edictal citation application came before this Court, W, with the full knowledge of the divorce action instituted against him by A subsequently initiated divorce proceedings against A out of Dubai Court. At the time this application was heard this Court was informed that W's divorce proceedings in Dubai were scheduled to be heard on 16 March 2017 after they were registered in the Dubai Court on 27 February 2017.

[9] It is contended by A that:

9.1. the Dubai Court will not take into account the fact that at the time W initiated his divorce action, if it be a divorce action, against her in Dubai there was already pending in this Court a divorce action that A had initiated against him;

9.2. the divorce law that the Court in Dubai will apply to W's said divorce action will be highly prejudicial to her as a woman by reason of the fact that she will not be able to claim spousal maintenance for a period in excess of three months after the order of the divorce action in Dubai;

9.3. the law that applies in Dubai, a wholly Muslim country, is Sharia law in terms of which there is no equality between man and woman and in particular in terms of which a woman's rights are subordinate to a man's rights.

[10] A tried to persuade W not to proceed with the action in Dubai but in vain. It is for that reason that she felt impelled to bring this application.

THE IMPORTANCE OF DOMICILE

[11] In South Africa the private legal status of a person is determined by the law of the country or place in which such a person is domiciled. This is known as the lex domicilii. The lex domicilii is of paramount importance in a variety of other contexts. As an example a South African Court has jurisdiction to grant an order of divorce provided one party or both parties to a marriage are domiciled within the area of jurisdiction of such a Court on the date of the institution of the divorce proceedings. Again the question whether a person who is domiciled in South Africa is a major or whether he may marry has to be decided in terms of the South African law even if such a person is of a different nationality. Quite evidently a person's domicile plays a major role in determining his or her capacities. It is of paramount importance to point out that it is not necessary that a party that institutes divorce proceedings should be physically present within the area of jurisdiction of a particular Court when he or she institutes such divorce proceedings. It is however crucial that he or she be domiciled in that country.

[12] Section 6 of the Domicile Act 3 of 1992 which amended section 2 of the Divorce Act, now provides that:

"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. "

A divorce action is deemed to be instituted on the date on which the combined summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of Court. In this country, a married woman is capable of acquiring and losing South African domicile as though she was an unmarried person. Section 1(1) of the Domicile Act provides that:

''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 ... shall be competent to acquire a domicile of choice regardless of such a person 's sex or marital status."

Furthermore no woman loses or acquires South African citizenship by reason merely of the marriage she has concluded.

[13] What is then this domicile? According to Wilie's Principles of South African Law 9th Edition by Francois Du Bois at page 152:

''Every person has what is called "a domicile ''. That is a legal home or a home for legal purposes. No person can at any time be without a domicile. "

See in this regard Smith v Smith 1970(1) SA 146 (R) at page 147G where the court stated that:

"It has been frequently laid down that no person can be without a domicile because the law will attribute a domicile to him."

Domicile is the place where, for legal purposes, a person is by law presumed present to be present at all times. As domicile constitutes a status determining factor, it becomes as clear as crystal that everyone must have a domicile at all material times. Equally no person can have more than one domicile at the same time. Therefore generally speaking a person is domiciled in a place that is considered to be his or her permanent home. See in this regard Gunn v Gunn 191O TPD 423 at 427;Webber v Webber 1915 A D 239 at 242 and Eilon v Eilon 1965 (1) SA 703 A at 721. Domicile is not necessarily the same as the place of actual residence or a place where one eats, drinks and sleeps. In his book Conflict Of Laws, Private International Law, Seventh Edition, R H Graveson, quotes with approval the following definition of "domicile" by Lord Cranworth in Whicker v Hume [1858] EngR 991; (1858) 7 H.L.C. 124 160:

""By domicile" we mean home, the permanent home: and if you do not have a permanent home, I am afraid that no illustration drawn from foreign writers or from foreign languages will very much help you to it."

A place can therefore not be one's permanent home if the purpose of one's presence at such place is for work, no matter how long it is. Graveson himself had the following to write at page 185 that:

" ... domicile is a conception of law which, though founded on circumstances of fact, gives to those circumstances an interpretation frequently different from that which a layman would give to them. It is a conception of law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law to have because of his dependence on some other person. The American Law Institute has provided a useful definition of domicile as ''the place, generally the home, which the law assigns a person for certain legal purposes."

[14] It is quite clear that the applicant is a South African and that more importantly she was born in South Africa. Accordingly South Africa is her 'domicile of origin'. A 'domicile of origin' is attributed to every person at birth by the operation of the law but such domicile does not depend on the place where a person is born but on the domicile of the appropriate parent at the time of birth. See in this regard Smith supra at page 1470. 'Domicile of origin' is therefore acquired automatically at birth. The 'domicile of origin' persists until it is replaced by a new domicile, a 'domicile of choice'. This 'domicile of choice' is acquired by a person having the legal capacity who, on his or her own free volition, establishes his or her presence in that particular country on his or her choice. I am guided by the following description by Lord Westbury in Udny v Udny (1869),LR. 1 Sc. &C Div. 441:

'Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the intention of continuing to reside there for an unlimited time....... It must be a residence not for limited period or particular purpose, but general and indefinite in its future contemplation. "

A person can choose where he wants to be domiciled. In order to acquire a domicile of choice, such a person must firstly, have taken up residence at the place concerned and secondly, must have formed the intention to reside permanently at that place. The respondent

contends that the applicant is not domiciled in South Africa but in the United Arab Emirates. The duty lies on him to prove the

allegations that he makes. It is the respondent who bears such an onus in this case. In order to discharge the onus of proving such a change of domicile the respondent must prove that the applicant has abandoned her former domicile animo ad factum or that the applicant lost her South African domicile when she left South Africa with the intention never to return to it. The applicant's ''state of mind or animus manendi must at least amount to an unconditional intention to reside in Dubai for an indefinite period though an absolute intention to reside there is not essential''. See Smith v Smith at page 151C-D.

[15] In support of his contention that the applicant is not domiciled in South Africa the respondent relied on the following paragraphs in his answering affidavit. He stated as follows in paragraph 2:

''2.2 I emphatically deny that the Applicant intends returning to South Africa and in this regard, and for ease of reference, I quote numbered paragraph 5 of ANNEXURE 'F' to the Applicant's founding affidavit, namely:

''5. In this regard I wish to refer you to certain letters written by your offices to this office, namely:

4.1 [sic] Your letter, dated 18 October 2016, where in numbered paragraph 5 there of you state the following:

'5. Ons kliënt het ons meegedeel dat dit nooit haar of die partye se intensie was om ooit weer na Suid-Afrika terug te keer om hier te woon, nadat hulle die land verlaat het nege jaar gelede as gevolg van ''n gewapende roof aanval nie. Ons klient se sy is vreesbevange om hierheen terug te keer en dat s yonder dwang moet terugkeer omdat daar moontlik geen ander opsie vir haar is in die situasie nie. '

4.2 [sic] On 21 October 2016 and in numbered paragraph 4 of your letter, you state the following:

'4. Ons betwyfel boonop dat die partye jurisdiksie in Suid­ Afrika op hede het aangesien die partye al nege jaar in die buiteland woon en nooit die bedoeling gehad het om terug te keer en dit hulle permanente woning te maak nie.'"

This paragraph constituted the only ground on the basis on which the respondent contended that the applicant was not domiciled within the jurisdiction of this Court. No other ground was put forward.

[16] In response, while she does did not dispute that her attorneys wrote such a letter to the respondent's attorneys, the applicant contended that the said letter had no bearing on the matter because she was returning to South Africa in any event. In other words she was in fact saying “yes it is true that my attorneys wrote such a letter to your attorneys but I am returning home." Certainly this was not an appropriate response. Contrary to what the respondent contends I was guided by the following paragraph which was cited with approval by the court in Eilon's case"

"The reference to Voet is 5. 1.98, translated in Gane, Selective Voet Vo/.2p. 115 as follows,· 7t is certain that domicil,·is

not established by the mere intention of design of the head of the household, nor by mere formal declaration without or deed,·nor

by the mere getting ready of a house in some country,· nor by the mere residence without the purpose to stay there permanently

(neque sola habitatione, sine proposlto illic perpetuo morandi)''.

[17] In Re Fuld (No. 3) (1968) page 679 at page 682 to 683 Scarman J stated as follows:

'Domicile cases require for their decision a detailed analysis and assessment of facts arising within that most subjective of all fields of legal enquiry - a man's mind. Each case takes its tone from the individual propositus whose intentions are being analysed,· Anglophobia, mental Inertia, extravagant habits, vacillation of will - to take four instances at a random - have been factors of great weight in the judicial assessment and determination of four leading cases. Naturally enough is so subjective a field different judicial minds concerned with different factual situations have chosen different languages to describe the law. For the law is not an abstraction,· it leaves only in Ifs application, and its concepts derive colour and shape from the facts of the particular case in which they are studied, and to which they are applied. Thus the relationship of law and fact is a two-way one: each affects the other. "

In Eilon's case the Court cited with approval the following passage from Cheshire Private International Law 5th Edition at page 164:

"A hundred years ago an intention to reside indefinitely in a place was regarded as an intention to reside there permanently, notwithstanding that it was contingent upon an uncertain event. Nowadays, an Intention of indefinite residence is not equivalent to an intention of permanent residence, if It is contingent upon an uncertain event Thus the English conception of domicil correspondence neither with what the ordinary man understands by his permanent home nor with the Continental criterion of habitual residence. This change of attitude lays the law open to criticism in several respects.”

At page 165 he continued as follows :

"Judges, however conscious that a literal application of this estigmatic doctrine must frequently run counter to the needs of justice and common sense .... have occasionally shown a welcome readiness to Interpret a man's Intention in a manner rather less strict.”

Now several questions need to be answered in order to determine whether or not the parties in this matter, in particular the applicant, have their domicile in United Arab Emirates:

17.1 Where were the parties domiciled before they went to live in Dubai? The answer to this question is simple. The parties were domiciled in the Republic of South Africa.

17.2 The next question is where did the parties reside as a fact? The parties resided in Pretoria.

17.3 The third question is what were their intentions when they went to stay in Dubai? The intention of the applicant, obviously, was to go and live with the respondent because they were married to each other and because the husband, that is the respondent, was employed there. The intention of the respondent in going to live in Dubai was not to go and live there permanently but was to go and work there. This is borne out by the fact that neither of them has a permanent residence permit in Dubai. We are told that the respondent only had a visa that enabled him to work there.

17.4 What steps did the parties take to make Dubai their permanent place of residence? The answer in respect of this question is "nothing". There is no evidence that the respondent produced in support of this aspect. Neither of the parties did anything to show that they wanted to live permanently in Dubai.

17.5 Have the parties acquired any 'domicile of choice' in Dubai? The answer is simply "no".

17.6 Has either of the parties abandoned their 'domicile of origin'? The answer to this question is also simply "no". No evidence has been placed by the respondent before this Court that both of them had abandoned their South African domicile.

17.7 Does the fact that they have been living in Dubai for eight to nine years mean that they have acquired a 'domicile of choice' in Dubai? The answer is "no". A South African football player who is in England for the purposes of playing football does not thereby become domiciled in England even if he plays football there for ten years. .What is of paramount importance is not that a person resides in a particular country but what the purpose of his residence there is. Such a person's residence in that

particular foreign country must be dependent upon the occurrence of a contingency, like it is the case in respect of the parties in this matter.

17.8 What facts can be relied on to enable the Court to determine the certainty that both of them have acquired 'domicile of choice'? Such facts are non-existent.

[18] There is evidence by the applicant that they were in Dubai on a working visa of the respondent. More importantly neither of them has a permanent residency in Dubai. Secondly, in the event of the respondent losing his work, he would obviously have to return to South Africa, his 'domicile of origin'. He testified that he was employed there until he reaches 60 years of age when he would be returning to South Africa. Thirdly, in paragraph 4 of the respondent's attorney's letter dated 20 February 2017 it is stated as follows:

''It is correct, however, that they have not obtained another domicile of choice and are still domiciled within South Africa for the purposes of their citizenship but neither reside in South Africa and have resided in South Africa at least for the past eight years. "

[19] The feet of clay in the respondents contention was the fact that while he disputed the jurisdiction of this Court on the basis that neither he nor the applicant was domiciled within its limits, he failed to state where both of them were domiciled. According to this contention neither of them is domiciled in South Africa or within the limits of this Court and at the same time neither of them is domiciled in Dubai. Every person must at all times possess a domicile. The respondent's claim is actually based on their residence in Dubai. The other weakness in the respondent's argument is to think that jurisdiction in divorce matters can only be exercised only over residents.

[20] In the result this Court was satisfied that the respondent had failed to discharge the burden that lay on him to prove a change of domicile by the applicant.

[21] On the evidence before me I was unable to come to the conclusion that both the applicant and the respondent ever formed a fixed and settled purpose of abandoning their South African domicile and setting finally in the United Arab Emirates or in particular in Dubai. I am satisfied that up to this very moment or up to the moment this Court heard the application both parties had the expectation or hope of coming back to South Africa. In my view the facts spoke stronger than the words contained in the letter that the applicant's attorney wrote to the respondents.

____________________

P M. MABUSE

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the applicant: Adv. R Ferreira

Instructed by: Ziegler Vermaak Attorneys

Counsel for the respondent: Adv. D Smith (SC)

Instructed by: Ehlers Fakude Inc.

Date Heard: 14 March 2017

Date of Judgment: 6 July 2017