Court name
High Court of eSwatini

Khumalo v Khumalo () [2000] SZHC 53 (28 April 2000);

Law report citations
Media neutral citation
[2000] SZHC 53
Coram
Masuku, J









IN
THE HIGH COURT OF SWAZILAND


CASE
NO.978/99


In
the matter between:


SIMANGELE
KHUMALO APPLICANT


VS


ABEDNEGO
KHUMALO RESPONDENT


CORAM: MASUKU
J


FOR
APPLICANT: MR. Z.W. MAGAGULA


FOR
RESPONDENT: MR S.C. SIMELANE


RULING
ON QUESTION OF JURISDICTION


28/04/2000


The
above-named Applicant instituted matrimonial proceedings before the
Manzini Magistrate's Court for relief which is not disclosed as a
copy of the combined summons has not been annexed to the Founding
Affidavit, notwithstanding an indication that this would be done.


The
Applicant proceeded to launch an application before this Court in
terms of Rule 43 in which the following relief is prayed for pendente
lite:-


(a) Payment
of (sic) sum of E800.00 (eight hundred Emalangeni) per month from the
Respondent towards the children's maintenance;


(b) Payment
of the sum of E500.00 (five hundred Emalangeni) in cash per month
towards the Applicant's medical expenses;


(c) Payment
of the sum of E500.00 (five hundred Emalangeni) per month in respect
of legal costs.


2


No
order for the payment of the costs of the application was embodied.
The Respondent filed an Answering Affidavit in which he contended
that the Applicant had failed to comply with the provisions of Rule
43 of the High Court Rules in that she failed to deliver a sworn
statement in the nature of a declaration and further failed to serve
the same as required by the said Rule. I do not intend to traverse
the merits or demerits of these and other contentions raised by the
Respondent in his Founding Affidavit as the purpose of this ruling is
to decide whether this Court has jurisdiction to hear and determine
this matter.


The
Court, mero motu raised the question whether it could, in view of the
fact that the main action is pending before the Manzini Magistrate's,
proceed to determine the Rule 43 application notwithstanding.


In
support of her contention that this Court has jurisdiction to hear
and grant the prayers above, the Applicant stated that the Court's
jurisdiction stems from the provisions of Rule 43 of the High Court
Rules. Rules of Court can never be the basis for the Court's
jurisdiction. Rule 43 only stipulates the procedure that must be
followed where a party seeks the relief set out in Rule 43(1)(a) to
(d). In point of fact, this Court has jurisdiction to hear and
determine these matters by virtue of its exercise of powers set out
in Section 104(1) of the 1968 Constitution. The question for
determination is whether it can do so notwithstanding that the
pending action was instituted at the Magistrate's Court.


In
the case of LEVDIWE KUNENE V BHEKI KUNENE CASE NO.2390/99, I held
that this Court can only entertain pendente lite applications in
respect of matrimonial causes instituted in the Magistrate's Courts
if there are some considerations of urgency attendant to the matter.
It must be pointed out however that in that case, the parties agreed
that the Magistrate's Court had jurisdiction to entertain the
pendente lite proceedings and the only enquiry then being confined to
whether the allegations relating to urgency had been traversed in the
Applicant's Founding Affidavit.


In
his argument, Mr. Magagula submitted that only this Court can
entertain applications in the nature of Rule 43 applications because
Magistrate Courts do not,


3


either
in terms of the Act establishing those Court or in their Rules
provide for such jurisdiction or the procedure. The Court was
referred by Mr. Magagula to the case of DUBE V DUBE 1982-86 SLR 165,
at 166E, where Nathan C.J. stated as follows:-


"The
result on this aspect of this case is, as I have indicated, that an
application for a contribution towards costs and maintenance pendente
lite may validly be made in the High Court under Rule 43 even where
the main action will be taking place in the Magistrate s Court. And
this will be the future practice. I think, however, that it would be
advisable to amend the Magistrate's Courts Act so as to enable the
application to be brought in the Magistrate's Court."


Earlier
in the judgment, Nathan C.J. rejected an argument to the effect that
Rule 2 of the High Court Rules refers to "court" as the
High Court, thus leading to the inference that the High Court could
only order a contribution towards costs in an action that is being or
is going to be instituted before it. The learned Judge opined that
there is nothing that prevents this Court, in the exercise of its
inherent jurisdiction from making an order in a case to be heard by
the Magistrate.


I
hold the judgments of Nathan C.J. in this and other matters in very
high esteem. Notwithstanding that some of them were decided more than
twenty (20) years ago, they still constitute a very useful insight
into many issues and are sound precedents to be followed. I
regrettably have to take a different position from that which he
espoused in the Dube case. In my view, the provisions of Section 15©
of the Magistrate's Court Act No.66 of 1938 (hereinafter called "the
Act") were not brought to the attention of the learned Judge and
as such the said judgment was made per incuriam. Had it not been so,
I entertain no doubt that he would have arrived at the same
conclusion to that which I have.


Section
15© of the Act reads as follows:-


"Saving
any other jurisdiction assigned to any courts by this Act, or by any
other law, the persons in respect of which the court shall have
jurisdiction shall be -© any persons whatever, in respect of any
proceedings incidental to any action or proceeding instituted in the
court by such person himself. "


In
my view, there is no dispute regarding whether the Manzini
Magistrate's Court had jurisdiction over the parties herein. It can
also not be disputed that the proceedings


4


instituted
before this Court are incidental to an action instituted by the
Applicant against the Respondent herein before the Magistrate's
Court. For that reason, I come to the view that notwithstanding its
inherent jurisdiction, the High Court is precluded, save in very
exceptional circumstances, which must be clearly set out in relevant
papers from entertaining pendente lite applications in respect of
matters pending or to be instituted before the Magistrate's Courts.


Mr.
Magagula's argument that the word "incidental" occurring in
Section 15© refers to costs and other matters in respect of which
relief is sought in the main proceedings is fallacious. I say so
because Section 15© refers to "proceeding incidental to any
action or proceeding", which means it refers to new proceedings
instituted and which are ancillary to an action or other proceedings
already instituted. This sub-section clearly contemplates the moving
of a proceeding different from the action or proceeding already
instituted.


I
must also point out that this Court's inherent jurisdiction should
only be resorted to in those cases where there is no specific law
directly applicable to a situation. This is done to give credence to
the maxim "ubi ius ibi redium" i.e. where there is a right
there is a remedy. In this connection, I find it opposite to cite the
following cases with approval. The first case is EX PARTE MILLSITE
INVESTMENT CO. (PTY) LTD 1965(2) SA582 at 585 F - H where Vieyra J
stated as follows:


"Jurisdiction
of the Supreme Court is laid down in Section 19 of Act 59 of 1959 in
terms similar to those to be found in the statute setting up the
various pre-Union courts. It is clear from the decided cases that
those statutes confer on the Supreme Court the same kind of
jurisdiction and powers as were enjoyed by the Courts of Netherlands.
So that, apart from powers specifically conferred by statutory
enactments and subject to any specific deprivations of power by the
same source, a Supreme Court can entertain any claim and give any
order which at common law it would be entitled to entertain or give.
It is to that reservoir of power that reference is made where in
various judgments Courts have spoken of inherent power of the Supreme
Court: The inherent power claimed is not merely one derived from the
need to make this Court's order effective and to control its own
procedure, but also to hold the scales of justice where no specific
law provides directly for a given situation." (my own emphasis)


Similar
sentiments are expressed in the case of MOCH V NEDTRAVEL (PTY) LTD
t/a AMERICAN EXPRESS TRAVEL SERVICE 1996(3) SA1 (AD) at 7 D

-
E


5


(per
Hefer J). In this case, I am of the view that no need arises for
resort to this Court's inherent power since in my view, the
Magistrate's Courts have jurisdiction to entertain such applications
as conferred by Section 15© of the Act. Had it been the
legislature's specific intention to preclude the Magistrate's Court
from exercising jurisdiction in respect of such matters, then
Parliament would have stated so in specific language under Section 29
of the Act, which deals with matters in respect of which Magistrate's
Courts shall have no jurisdiction.


Mr.
Magagula's last contention was that the cases cited in the Kunene
case (supra), including GREEN V GREEN 1987(3) SA131; VAN DER SANDT V
VAN DER SANDT 1947(1) SA259 are distinguishable because they refer to
Divisions of the then Supreme Courts of South Africa. That may be so
but the principle enunciated, which is applicable in our case is that
one cannot institute a matrimonial action in one Division and then
move a Rule 43 application in another Division. If it is so in
respect of Courts of the same Division, it is worse if the Courts are
not of the same standing as is the case in this matter.


This
point does not assist the Respondent.


In
the circumstances, I am of the view that this Court, notwithstanding
its inherent jurisdiction is precluded, in the absence of very
special circumstances from entertaining a proceeding incidental to
actions pending or to be instituted before Magistrate's Court because
Magistrate's Courts can themselves deal with such applications in
terms of the provisions of Section 15© of the Act. The


Applicant
chose her forum and she must stick to it.


The
application is accordingly dismissed with costs.


T.S.
MASUKU


JUDGE