CHATUKUTA J: The
2nd
respondent instituted proceedings for divorce and ancillary relief in
case No. HC1195/04 against the applicant.
The applicant
filed a counter-claim in which he cited the 1st
respondent as the 2nd
defendant in that matter. He claimed from the 1st
respondent adultery damages
alleging that the 1st
respondent was the man with whom the second respondent had committed
adultery.
During the
pre-trial conference, the court queried the propriety of joining the
1st
respondent in a counter-claim.
The applicant
now seeks, in terms of Order 13 Rule 87 of the High Court Rules, to
join the 1st
respondent to HC1195/04.
Mr Dondo,
for the applicant, submitted that it was proper and convenience to
join the 1st
respondent to the proceedings in Case. No. HC1195/04 for the
avoidance of multiplicity of actions. This would be cost saving.
Mr Dondo
submitted
that a counter-claim stands as summons and declaration. Therefore the
applicant was dominus
litis
in respect of the counter-claim.
He submitted
that such a joinder was consistent with Rule 276 of the High Court
rules which allows for the service of summons and any pleadings upon
a paramour who is cited in the summons and pleadings.
The applicant
further submitted that the 1st
respondent did not proceed by way of exception but made a request for
further particulars. He filed a plea and a counter-claim claiming
defamation damages. It was contended that this was an indication that
the 1st
respondent had not objected to being joined to the proceedings.
The Mr
Muchadeham,
for the 1st
respondent, submitted that the 1st
respondent had not been properly joined and it still was not proper
to join the him to HC1195/04 in a counter application.
He submitted
that the applicant did not institute proceedings in Case No HC1195/04
and therefore he could not be the dominus
litus
in that case.
The applicant
was attempting to clothe a wrong joinder with legality without having
withdrawn the claim against the 1st
respondent first.
It was further
submitted that the 1st
respondent did not have any interest in the divorce proceedings and
did not want to be part of proceedings. He would therefore be
inconvenienced by required sit in during the divorce proceedings.
The 1st
respondent submitted that he filed pleadings in the main out of a
abundance of caution.
The 1st respondent prayed for costs on a high scale against the
applicant.
It was
submitted that the propriety of joining the 1st
respondent in the action by the 2nd
respondent was first raised by the 1st respondent in his plea to the
main action. It was again raised by the court during the pre-trial
conference. The applicant still persisted with his application.
The main issue
for determination is therefore whether it is competent for the
applicant to join the 1st
respondent as a co-defendant by way of a counter-claim.
Order 13, Rule 87(2) permits the joinder of any person to any
proceedings. Rule 87(2)(b) provides:
“(2)
At any stage of the proceedings in any cause or matter the court may
on such terms as it thinks just and either of its own motion or on
application -
(a)
order any person who has been improperly or unnecessarily made a
party or who has for any reason ceased to be a proper or necessary
party, cease to be a party;
(b)
order any person who ought to have been joined as a party or whose
presence before the court is
necessary to ensure that all matters in dispute in the cause or
matter may be effectually and completely determined and adjudicated
upon, to be added as a party;”
(Own emphasis)
The joinder envisaged in Rule 87 is a joinder to the main claim.
In other words, the cause of action remains the same but there is an
addition of either the plaintiff or the defendant.
In this case, the joinder of a
co-defendant would be to “ensure
that all matters in dispute in the cause or matter may be effectually
and completely determined and adjudicated upon.”
The
applicant was emphatic that he did not seek an order to join the 1st
respondent to the main claim but as a co-defendant to the
counter-claim.
It
was difficult for this court to fathom how the 1st
respondent can be a co-defendant to either the main claim or the
counter-claim.
In relation to the
counter-claim, Rule 120 makes clear the effect of a counter-claim or
claim in reconvention. The Rule provides:
“(1)
The defendant in an action may set up by way of claim in reconvention
any right or claim he may have against the plaintiff, and such claim
in reconvention shall have the same effect as a cross-action, so as
to enable the court to pronounce a final judgment in the same action
both on the original claim and on the claim in reconvention.”
The effect of the counter-claim is that it becomes a cross-action,
where the plaintiff in the main matter becomes the defendant and the
defendant who has counter-claimed becomes the plaintiff.
The general principle on whether
or not the applicant can counter claim as he has done is set out in
Nathan and Barnett, Rules
and Practice in the Supreme Court of South Africa
1st
Ed. It is stated at p49 that:
“A
defendant cannot claim in reconvention against any other party ((e.g)
a defendant) than the plaintiff in the action.”
This is premised on the understanding that a reconventional claim is
dependent upon allegation which would defeat plaintiff's claim in
convention.
Therefore in order for the
applicant to be able to join the 1st
respondent as a co-defendant, the 1st
respondent must have a basis for defending the claim for divorce that
was brought by the 2nd
respondent.
The present matter is on all four
with the case of Soundprops
1160 cc and Another v Karlshavn Farm Partnership and Others 1996
(3) SA 1026 (N).
In that case, the applicants, as plaintiffs, had issued summons
against the first respondent, a partnership comprising 20 individuals
who included the second and third respondents, as defendants, for the
payment of moneys which had been advanced as loans to the
partnership. Only the second and third respondents and one other
partner of the first respondent defended the action. The second and
third respondents filed a joint plea and, together with their plea,
they had filed a document in which they claimed certain relief from
the remaining partners. The document cited the second and third
respondents as the first and second defendants and the remaining
partners as the third to twentieth defendants.
The court held that the claim in reconvention by the second and third
respondents was irregular because it was directed not against the
plaintiff, but by two defendants against their co-defendants. PAGE J
had this to say at p1031B-G:
“In
support of the application, counsel for the applicants has correctly
pointed out that the claim is not a claim in reconvention since it is
directed, not against a plaintiff, but by two defendants against
their co-defendants. The weight of authority was that it was not
competent for one defendant to join a co-defendant as a defendant in
a claim in reconvention; but this matter is now regulated by Rule 24,
which deals with claims in reconvention in general. Rule 24(2)
provides the following:
'If the defendant is entitled
to take action against any other person and the plaintiff, whether
jointly, jointly and severally, separately or in the alternative, he
may with the leave of the Court proceed in such action by way of a
claim in reconvention against the plaintiff and such other persons,
in such manner and on such terms as the Court may direct.'
It is apparent on a proper
reading of this Rule that it is limited to a claim in reconvention
against the plaintiff and the other person and cannot be invoked
where there is no claim in reconvention against the plaintiff. It
also requires the leave of the Court.
It seems clear that the only
means whereby the respondents could permissibly bring a claim against
their co-defendants in the action in the absence of any counterclaim
against the plaintiff would be by virtue of the provisions of Rule
13, which regulates third party procedure. Rule 13(1) provides the
following:
'Where
a party in any action claims -
(a) as against any other
person not a party to the action (in this Rule called "a third
party") that such party is entitled, in respect of any relief
claimed against him, to a contribution or indemnification from such
third party; or
(b) any question or issue in
the action is substantially the same as a question or issue which has
arisen or will arise between such party and the third party, and
should properly be determined not only as between any parties to the
action but also as between such parties and the third party or
between any of them; such party may issue a notice, hereinafter
referred to as a third party notice, as near as may be in accordance
with Form 7 of the First Schedule, which notice shall be served by
the sheriff.'”
Whilst the South African Rule permits a defendant to file a cross
application against the plaintiff and any other person, the
equivalent rule in our jurisdiction, Rule 120, cited above, does not
provide for a claim in reconvention on other person other than the
plaintiff.
Although Soundprops
1160 CC and Another v Karlshavn Farm Partnership and Others
dealt with the joinder of defendants who were already co-defendants,
the general principle enunciated in that case apply to the present
case and more particularly so where the applicant seeks to introduce
a third party.
The applicant filed a
counter-offer against the 2nd
respondent in relation to the claim raised for divorce and ancillary
relief against the applicant. The counter-claim which seeks to
introduce the 1st
respondent as a defendant cannot be considered as a counter-offer to
the 1st
respondent's on the grounds that the applicant does not seek any
relief against the 1st
respondent.
In any event, it should be noted
that the applicant's counter-claim for divorce on the basis of
adultery cannot be strictly termed a counter-claim in light of the
Matrimonial Causes Act [Chapter
5:13].
Prior to amendment of that Act in 1985, fault and misconduct were
relevant to the existence of grounds for divorce. Therefore it was
possible to counter-claim for divorce on the basis of a different
fault cited by the plaintiff in her or his claim for divorce.
The relevance of the fault factor
is adequately dealt with in Marimba
v Marimba 1999 (1) ZLR
87. At p91G-92C GILLESPIE J observed as follows:
“Certainly,
it is not relevant to the existence of grounds for divorce. Once
evidence establishes the irretrievable breakdown of the marriage,
then it is neither helpful nor proper to enquire further into whether
those grounds constitute misconduct by, or disclose the fault of,
either party unless the existence of misconduct is relevant to some
issue other than grounds for divorce.
For instance, the alleged
misconduct of one or other party might be advanced in support of the
proposition that that party is not fit to be a custodian of minors.
Reluctant as the courts are to delve into the general issue of
marital misconduct, they will not shrink from the task if it will
assist in determining the best interests of children.
The
related principle is more difficult to formulate when it is suggested
that the conduct of a party is such that it should have a bearing on
a property distribution order. Mindful of the move away from the
fault system of divorce, judges in this jurisdiction have set their
faces against any invitation to delve into the 'minutiae of ancient
domestic grievances':(Gibson J in Kassim
v Kassim
1989 (3) ZLR 234 (H) at 239C).
They
have declined to permit counsel 'to resurrect the old spectre of
guilt and innocence and drag the judge to hear their mutual
recriminations and go into their petty squabbles of days on end, as
he used to do in the old days': (Per
KORSAH JA in Ncube
v Ncube
1993 (1) ZLR 39 (S) at 41C).
And rightly so.
Nevertheless, the relevant
legislation specifically preserves the potential relevance of marital
misbehaviour to the question of a division of property. The court is
enjoined to –
'endeavour
as far as is reasonable and practicable and, having regard to their
conduct, is just to do so, to place the spouses... in the position
they would have been in had a normal marriage relationship continued
...' (Section 7(3)).”
The applicant also sought to justify the relief claimed by relying on
Rule 273.
Subrule (1) clearly relates to a
situation where the plaintiff, who is dominus
litus is making
allegations of adultery against the defendant and another person in
the summons and declaration.
Going back to the general
principle stated above, that a
defendant cannot claim in reconvention against any other party other
than the plaintiff in the action where it has not filed a claim
against the plaintiff. It is my view that the Rule 273 therefore
does to take the matter any further.
As submitted by the 1st
respondent, the applicant did not advance any meaningful authority in
support of his submissions.
It has been pronounced in a number of matrimonial cases that a claim
for divorce against a spouse where allegations of adultery are made
can be heard together with a claim for adultery damages against the
paramour.
In Baker
v Baker 1930 CPD 230
at 233, Gardiner J.P. held that it was proper for an action for
divorce against a wife and an action for adultery damages against a
co-defendant be heard at the same time.
In that case the plaintiff brought an action against his wife and
co-defendant in which he claimed against the wife a decree of divorce
and against the second defendant damages for his adultery with his
wife. The wife did not enter an appearance to defend and was
accordingly barred. The second defendant had entered an appearance to
defend. The plaintiff sought to have the matter heard against the
second defendant.
In Eorfino
v de Pretto (Eorfino
Intervening) 1959 (3) SA 787 (W) the court ruled in favour of hearing
a claim for divorce against one defendant and a claim for adultery
damages be heard at the same time.
In that case, the plaintiff sued for damages for adultery alleged to
have been committed by the defendant with the plaintiff's wife. In a
separate case, which was pending between plaintiff and his wife,
plaintiff claimed a divorce against his wife on the grounds of
adultery with the defendant in the present action, and the
defendant's wife counter-claimed for a divorce on the ground of the
husband's adultery with another woman and also on the ground of
constructive malicious desertion. Defendant's wife intervened in the
action against Pretto seeking a consolidation of the two cases.
What is apparent from these cases is the fact that it was the
plaintiff who brought the action against both the spouse and the
paramour.
In the Baker
case the spouse and
the paramour were the co-defendants in the one action. In the
Eorfino case
there were two separate actions initiated by the same plaintiff
against his spouse and the paramour.
As rightly submitted by Mr
Muchadehama, the 1st
respondent was misjoined to the main action in HC No.11961/06.
This was not a proper case for
the exercise of judicial discretion to condone or permit a misjoinder
of the 1st
respondent as sought by the applicant.
The application is accordingly dismissed with costs.
Chinamasa, Mudimu, Chinogwenya & Dondo,
applicant's legal practitioners
Messrs Mbidzo, Cuchadehama & Makoni,
1st
& 2nd
respondent's legal practitioners
