Cornelis L Hoevers v Rachel F Hoevers (nee Alphonse) SCA MA 07/2024 AND SCA 14/2023 [2024] (Consolidated) (Arising in DC 90/2022) (3 May 2024) (SCA MA 07/2024 AND SCA 14/2023 [2024] (Consolidated) (Arising in DC 90/2022) (3 May 2024)) [2024] SCCA 16 (3 May 2024)

 

ANDRE, JA

 

            INTRODUCTION

1. Marriage is probably one of the oldest social institutions and norms among people of various cultures around the world. In its purest form, it can be fulfilling and rewarding. Parties to it often share a home, hopes and dreams achieved and attained with love and support from each other. Sometimes, children are born out of the union and this adds to the joys that spouses experience in their marriage. Despite this, marriage can also be a frustrating institution when faced with certain behaviours and changes that necessitate the need to sever ties. And because marriage in itself is a contract which parties have contracted to with intention to create legal relations, the courts are petitioned to assist with severing those ties and put an end to the legal relations previously created. Courts are therefore tasked with the duty to determine a contract in an area of one’s life that is deeply personal, complex and private. The courts must nevertheless determine a divorce with the highest regard to the law, taking cognisance of the effect such a determination may have on the (fundamental) rights of parties, and wider public policy imperatives.
2. The present appeal concerns a divorce petition filed by the Appellant (Petitioner in the court a quo), on the ground that the marriage has broken down irretrievably because the Respondent has behaved in a way that he could not be reasonably expected to continue living with her. The parties have been married since 1996 and have known each other for over 30 years.
3. The Appellant petitioned the court for a divorce, particularising the behaviour of the Respondent to include threat of violence on multiple occasions, damage to property, throwing of fuel and flowerpots onto him, and spreading of dog faeces in his car. He stated that as a result of this behaviour, he has had to leave the matrimonial home. The Respondent for her part stated that the Appellant/Petitioner provoked her on many occasions causing her to respond with some force on one particular day. She admitted to the damage and behaviour alleged by the Appellant but maintained that it was because she was provoked by the Appellant when he brought his mistress to Seychelles, entertaining said mistress in the company’s car and living with the said mistress in an apartment paid for by the company.
4. The learned trial Judge found that the Respondent had not behaved in a manner that would warrant the petition for divorce made in terms of Article 230 (1) (b) the Civil Code Act of 2020 to succeed. With this, divorce petition was dismissed. Dissatisfied with this decision, the Appellant appeals the decision of the learned trial Judge by advancing five grounds of appeal, which read as follows:
   1. 1. 1. The learned judge erred in law and on the facts in determining that the Respondent’s behaviour was not unreasonable, despite the Respondent admitting to the various behaviours.
         2. The learned judge erred in law and on the facts in determining that the extent of the Respondent’s behaviour was not unreasonable if it was as a result of the provocation of bringing a lover within the Respondent’s sight.
         3. The learned judge erred in law and on the facts by determining that when the behaviour was on one day it would not meet the threshold of the Matrimonial Causes Act.
         4. The learned judge erred in law and on the facts in determining that a reasonable minded person would not look at the Respondent’s behaviour as unreasonable.
         5. The learned judge erred in law and on the facts in determining that in all circumstances of the case, and that there is no reasonable possibility of reconciliation that the petition ought to be dismissed resulting in the parties remaining married.
5. Learned counsel for the Appellant did not file the heads of arguments within the stipulated time frame of one month from the date of service of the record as provided by Rule 24 (1) (a) of the Court of Appeal Rules. However, the counsel has applied to this Court in terms of Rule 26 to condone the non-compliance and supported such an application with an affidavit by the Appellant, Mr Cornelis Leonardus.

CONDONING LATE FILING OF HEADS OF ARGUMENTS

6. The Appellant avers that a copy of the records were served on his attorney on 13 October 2023 and the appeal had been scheduled to be heard in the December 2023 session. However, when the provisional list of matters to be heard in December 2023 was circulated, his appeal was determined to have been moved to the April 2024 session. The Appellant avers that although the filing was delayed, it was effected 30 days prior to the roll call. The Appellant admits that the filing was inordinate but adds that counsel for the Respondent would have sufficient time to respond to the appeal and therefore causing no prejudice to the Respondent’s case. It is further averred that the affidavit supporting the application was also belated on account of the Court being closed due to gas leaks. The Appellant also avers that he has prospects of success in view of serious and pertinent determinations on the law.
7. Learned counsel for the Respondent has not objected to the application.
8. The legal maxim interest reipublicae ut sit finis litium is certainly one that comes to mind as the rationale of Rule 24 (1) (a) and (i) of the Court of Appeal Rules. There must be finality in litigation and therefore it can be reasonably assumed that after a specified period of time, a suit is no longer live or has been abandoned because a party has not done what the rules require.^[1] However, and as the Rules provide, non-compliance can be condoned in terms of Rule 26 of the Court of Appeal Rules which states:

The times fixed within these Rules may, on good cause shown by notice of motion supported by affidavit, be extended by the President or the Court.

9. In essence, there must be good cause shown and it is from that which the Court exercises its discretion. Good cause must be clearly set out by the Appellant in the affidavit supporting the Rule 26 Application.
10. To condone the late filing of heads is a matter of Court’s discretion, the same of which must be exercised judiciously within reasonable and just parameters (see Chang Sing Chung v Kim Koon and Ors (SCA MA 38 of 2023) [2023] SCCA 48 (25 August 2023) at paragraph [25]). It is especially important for this Court as the apex court and an appeal of last resort for parties who have an inalienable constitutionally protected right to be heard, to exercise this discretion judiciously. Additionally, this Court must avoid a mechanical and arbitrary application of the Rules that may have an undesirable effect of denying parties their rights and also give the appearance to the right thinking members of society that the court is abdicating its role.
11. However, there must be a balancing act between the imperative of finality of litigation and an opportunity to be heard, both of which are important aspects to the administration of justice and statutory duty of this Court to hear appeals. It will be helpful to look at the practice in other apex courts and draw lessons on how those courts have approached their discretion to condone late filing of heads of arguments in particular.
12. Counsel of the Appellant during oral hearing of the motion referred this Court to the South African case of Registrar of Deeds Cape Town v Khoi Khoi Zan and Others (LCC100/2019) [2023] ZALCC 12 (20 April 2023) where the Land Claims Court of South Africa remarked that good cause requires the Court to consider degree of lateness, explanation given and prospects of success.
13. In my view, the point of departure must be the rationale of condoning non-compliance with Rules. The Supreme Court of Mauritius in Quesnel and Ors v Dorelle and Ors [1867 MR 61] held that:

It would really be a misfortune in this country, if the law stood thus, that for a formal and technical omission of pure procedure, parties could lose forever and without remedy, real and substantial rights; that such is not the law, we hasten to say.

14. The essence of the above quoted paragraph is that procedural justice cannot override substantive justice that the parties can be afforded. This is, arguably, the rationale of permitting condonation applications to be made, heard and excusing the said non-compliance. However, to take this as the absolute makes Rules of Court futile and threatens the effective administration of justice. In this Court’s judgment of Cedric Petit v Marguita Bonte SCA Civil Appeal No. 11 of 2003 (delivered on the 20 May 2005), it was held that:

It is important to note that Rules of Court are made in order to be complied with. Without complying with and should the Court allow that to happen, then it is both sending wrong signals and establishing precedent, which may eventually lead to flouting and abuse of the whole court process. That should not be allowed to happen. This Court had an opportunity, recently, to re-emphasise this point (see Central Stores vs Minister William Herminie and Another, judgment dated 25 February 2005; Harry Berlouis and Francis Gill, SCA No. 13 of 2003)

15. In addition to the above, I observe with interest how other apex courts or final courts of appeal take the position that Rules of Court must be strictly adhered to.
16. The Supreme Court of Zimbabwe (final court of appeal in Zimbabwe) in FBC Bank Limited v Chiwanza SC 31/17 held that ‘rules of court must be followed in order to ensure proper and good administration of justice’. This was stated on the reliance of S v McNab 1986 (2) ZLR 280 (S) where Dumbuthsena CJ (as he was then) remarked that: ‘I have dealt at length on this point because it is my opinion that laxity on the part of the court in dealing with non-observance of the rules will encourage some legal practitioners to disregard the rules of court to the detriment of the good administration of justice.’ 
17. The Supreme Court of eSwatini (apex in the Kingdom of eSwatini) in Simon Musa Matsebula v Swaziland Building Society Civil Appeal No. 11 of 1998 stated the following which I note with approval:

It is with regret that I record that practitioners in the Kingdom only too frequently flagrantly disregard the Rules. Their failure to comply with the Rules conscientiously has become almost the Rule rather than the exception.  They appear to fail to appreciate that the Rules have been deliberately formulated to facilitate the delivery of speedy and efficient justice.  The disregard of the Rules of Court and of good practice have so often and so clearly been disapproved of by this Court that non-compliance of a serious kind will henceforth procedural orders being made – such as striking matters off the roll – or in appropriate orders for costs, including orders for costs de bonis propriis.  As was pointed out in Salojee vs The Minister of Community Development 1965 92) SA 135 at 141, “there is a limit beyond which a litigant cannot escape the results of his Attorney’s lack of diligence”.  Accordingly matters may well be struck from the roll where there is a flagrant disregard of the Rules even though this may be due exclusively to the negligence of the legal practitioner concerned.  It follows therefore that if clients engage the services of practitioners who fail to observe the required standards associated with the sound practice of the law, they may find themselves non-suited.  At the same time the practitioners concerned may be subjected to orders prohibiting them from recovering costs from the clients and having to disburse these themselves.

18. Notwithstanding the above strict approach to time frames in court Rules, these apex courts have established clear test on condonation or determinants of ‘good cause’. The Supreme Court of Zimbabwe in Bonneyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd and Anor SC 58/18 remarked that:

Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non- compliance with the Rules and good and sufficient cause is established by considering cumulatively, the extent of the delay, the explanation for that delay, and the strength of the applicant’s case on appeal, or the prospects of its success.

19. Similarly, Supreme Court of eSwatini has four considerations taken into account when determining a condonation for late filing of heads of arguments. In the case of Johannes Hlatshwayo vs Swaziland Development and Savings Bank Case No. 21/06 the Court held that:

…the whole purpose behind Rule 17 of the Rules of this Court on condonation is to enable the Court to gauge such factors as (1) the degree of delay involved in the matter, (2) the adequacy of the reasons given for the delay, (3) the prospects of success on Appeal and (4) the Respondent’s interest in the finality of the matter.

20. The Constitutional Court of South Africa (apex court in that jurisdiction) also established a test on condoning late filing in Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) and such a test is based on ‘interest of justice’ and ‘reasonable prospects of success’.^[2] The court went further to state that:

The interests of justice must be determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s explanation for the delay or defect.

21. In Van Wyk v Unitas Hospital and Others 2008(4) BCLR 442 (CC), the Constitutional Court of South Africa once again affirmed the test on condonation to include those referred to in Brummer v Gorfil Brothers Investments (Pty) Ltd and Others supra. The Court further held that:

A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice.

22. In Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A) Homles JA held that:

[I]n deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, an in essence it is a matter of fairness to both sides.  Among the facts usually relevant are degree of lateness, the explanation thereof, the prospects of success and the importance of the case.  Ordinarily these facts are inter-related: they are not individually decisive, for that would be a piece-meal approach in compatible with a true discretion, save of cause that if there are no prospects of success there would be no point in granting condonation.  Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should a flexible discretion.  What is needed is an objective conspectus of all the facts.  Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong.  Or the importance of the issue and strong prospects of success which are not strong.  Or the importance of the issue and strong prospects of success may tend to compensate for a long delay.  And the respondents interest in finality must not be overlooked.  I would add that discursiveness should be discouraged in canvassing the prospects of success in the affidavit.

23. The above South African authorities therefore consider the inquiry into the ‘interest of justice’ factor relevant to condoning non-compliance with Rules of Court to be determined by five factors which are: (i) the relief sought by the party; (ii) the length of the delay; (iii) cause of such delays, (iv) the effect on the administration of justice, (v) prejudice and reasonableness of the explanation given for the delay. These factors are inter-related and are often weighed against one another as the Supreme Court of Appeal of South Africa held in United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A). I reproduce the relevant paragraph below which I note with approval:

“[I]t is well settled that, in considering application for condonation, the court has a discretion, to be exercised judicially upon a consideration of all the facts, and that in essence it is a question of fairness to both sides.  In this enquiry, relevant considerations may include the degree of non-compliance with the rules, the explanation thereof, the prospects of success on appeal, the importance of the case, the respondent’s interest in the finality of the judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice.  The list is not exhaustive.  These factors are not individually decisive but are interrelated and must be weighed one against the other, thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong”. (emphasis added)

24. In consideration of the above persuasive authorities, Rule 26 of the Seychelles Court of Appeal Rules can therefore be summarised as requiring the following from this Court in its consideration of condoning late filing of heads of arguments. The Court can condone late filing of heads where there is good cause shown. To determine good cause this Court must be guided by five factors, namely: (i) degree of delay, (ii) the explanation advanced for such lateness, (iii) the prospects of success, (iv) the importance of the case from a jurisprudential point of view, and (v) prejudice suffered by the Respondent.
25. Firstly, the degree of delay is an important factor to consider as this goes to the heart of respect of the Court Rules by its officers, namely the attorneys-at-law with right of audience before this Court. Degree of delay also shows how the attorneys themselves respect their client’s right to be heard. Flagrant disregard of the Rules can never be tolerated. For example, counsel cannot file heads of arguments a few days before roll call or the hearing and exacerbate their non-compliance by also not filing for an application to condone such non-compliance (as noted with disapproval by the court in Chang Sing Chung v Kim Koon and Ors supra). That would be a clear demonstration of flagrant disregard of the Rules which is simply unacceptable.
26. In the present case, the degree of delay is significant in that it is over 30 days delay. Counsel for the Appellant implored the Court to differentiate this present case to that of Chang Sing Chung v Kim Koon and Ors. This is because heads of argument in the present case were filed 35 days before the hearing, while in Chang Sing Chung v Kim Koon and Ors the party was allowed to file heads out of time but still failed to do so within the time frame given by the Court. I would accept this differentiation, but hasten to weigh it against the prejudice that may have been suffered by the Respondent in the paragraphs to follow.
27. Secondly, good cause is determined by the explanation advanced to explain the delay. Such explanation must be intelligible as much as it is reasonable. The Appellant averred that his appeal was moved to the April 2024 session instead of the initially scheduled December 2023 session. This barely offers any reasonable explanation for the delay because the filing of heads is not incumbent on when the appeal is set to be heard, but instead when the record is received as provided by Rule 24 of the Court of Appeal Rules.
28. The third factor that would show good cause and must be considered by the Court is prospects of success. It would be especially important for the affidavit to set out these prospects by providing the relevant legal issues for determination. In the present case, the affidavit in support of the application does canvas this point, however briefly. During the hearing, counsel for the Appellant did not explain in detail the prospects of success averred in the affidavit. She did however submit that it would be in the ‘interest of justice’ to condone late filing and allow the appeal to proceed.^[3]
29. The fourth factor which the Court must consider in exercise of its discretion is the importance of the case in terms of the possibility of having some or significant jurisprudential value once determined. This is, arguably, where there are also prospects of success. Jurisprudential value may also be present where the Court can see, prima facie the pleadings, that there is a necessity to correct or clarify the position of the law and thus, not limited to the Appellant’s prospects of success. The affidavit in support of the present application also fails to state this clearly except that there are ‘serious points of law to be adjudicated on’. Counsel for the Appellant submitted that the present appeal is not a negligible case but is one which stands to potentially have significant effects in the lower Courts for future divorce cases. I would agree with learned counsel in this regard. On the perusal of the grounds of appeal alone, it is clear to me that there is a necessity to clarify the position of the law on divorce. The present case also brings about intriguing legal points in the area, in so far as it challenges the mechanical application of the law to certain circumstances.
30. Finally, prejudice to the Respondent is an important consideration when determining good cause. Can it be said that the Respondent suffers any prejudice if this Court condones the non-compliance by the Appellant? Counsel for the Respondent did not object to the application by the Appellant. Suffice it to say, that if the party likely prejudiced does not object, a court should not necessarily find that prejudice for that party and ipso facto, descent into the arena.
31. After a consideration of these five factors, I find that the application to condone late filing of heads of arguments rests on the fact that there is significant jurisprudential value in the matter once determined and this outweighs the other factors that are not necessarily in favour of the Appellant. Further, the condoning of late filing of heads of arguments is also acceptable to the Respondent who suffers the most prejudice. This, certainly, outweighs any inordinate delays which this Court would ordinarily not tolerate especially when it is unaccompanied by a reasonable explanation and clear analysis of prospects of success.
32. Based on the above, the late filing of heads of arguments is permitted on the basis that the case has potential to develop and advance jurisprudence in the law on divorce of this jurisdiction. Further, the Respondent does not object to condoning the late filing. In so permitting, it means the case is not deemed withdrawn and can be heard on its merits.
33. Counsels are nevertheless expected to respect Court Rules and be diligent in their work before this Court.
34. I now proceed to determine the merits of the case.

MERITS OF THE APPEAL

            GROUNDS 1,2,3 AND 4

35. Grounds 1 through to 4 are grounds which can be treated together as they are concerned with the behaviour by the Respondent and whether the court a quo was correct to have concluded that the Appellant can be reasonably expected to live with the Respondent.
36. The Appellant in his petition stated that the Respondent threatened him with violence on multiple occasions, damaged his desktop computer and with a crow bar damaged the rear windscreen of his vehicle. This vehicle belongs to the company which both he and the Respondent own but is his allocated vehicle for use. He also added that the Respondent threw fuel and a flowerpot at him, and also spread dog faeces in the interior parts of his vehicle. He added that as a result of this behaviour, he felt distress and had to leave the matrimonial home. In his testimony before the learned trial judge, he also testified to the same facts.
37. The Respondent in her reply to the divorce petition admitted to these acts, and placed emphasis on provocation as the catalyst to her behaviour. She also added that in retaliation, the Appellant placed dog faeces in the house, on the sofa and the bed. She added that the Appellant pushed her onto the sofa and broke her phone. In addition to this, the Respondent in her reply admitted that she smashed the rear windscreen of the car the Appellant.
38. The learned Judge made the following findings in respect of the test used to assess reasonable behaviour:

[59]      …Amongst the English case law authorities cited by learned Counsel for the Petitioner, is the case of Livingstone Stallard v Livingstone Stallard [1974] FAM47.  In opposing the grant of divorce on the ground pleaded by the Petitioner, learned Counsel for the Respondent cites the case of Owens vs Owens [2018] UKSC 41.

[60]      The case of Livingstone Stallard (Supra) instructs me, that to determine what constitutes unreasonable behaviour, that is behaviour that makes it unreasonable to expect the Petitioner to live with the Respondent, the Court has to apply a subjective and objective test.  The Court formulated the test by asking itself this question;

“would any right-thinking person come to the conclusion that this Respondent has behaved in such a way that this Petitioner cannot reasonably be expected to live with him or her taking into account the whole of the circumstances, and the characters and personalities of the parties?”

[61]      In other words, subjective in the sense that what the Petitioner finds unreasonable, it also needs to be something a reasonable minded person would find unreasonable, because as the presiding Judge determining the issue, I have to be satisfied, that the behaviour complained of is unreasonable.

39. Faced with the admission by the Respondent that she did perpetrate all acts alleged by the Petitioner, namely placing dog faeces in the Appellants car, throwing a flowerpot at the Appellant, smashing the rear window of the Appellant’s car and vandalising the computer of the Appellant, the learned Judge made the following findings:

[70]      … Although the incident of the 21st December 2021 comprises of few events, it is clear that it was a reaction in anger provoked by the Petitioner.  Thus looking at the whole circumstances of this case, I am of the view, that a reasonable minded person would not look at the Respondent’s behaviour as unreasonable given that she was provoked into behaving the way she did when the Petitioner, who is married to her brought his girlfriend/lover to her sight.

40. Before this Court, the Appellant puts emphasis on how the response by the Respondent that she was ‘provoked’ cannot stand. It is also submitted that in accepting that provocation justifies the behaviour of the Respondent, the learned trial judge sets a precedent that such behaviours are reasonable. Further, the Appellant draws this Court’s attention to the fact that both parties had other partners, and the Respondent admitted in her testimony that she did so to make the Appellant jealous. It is submitted that in face of such an admission, the trial judge’s Ruling allows for reckless and unreasonable behaviour within a marriage under the unfounded pretence of provocation upon having sight of another’s lover.
41. The Appellant further submits that the trial judge was wrong to have made a finding that there was no evidence of the Respondent’s unreasonable behaviour before the day of the incident the Appellant relied on as grounds for divorce. It is submitted that the Appellant had in fact highlighted that he and the Respondent has separated before and he moved out. The Appellant had also testified during trial that there were lots of arguments and it just became difficult to remain in the marriage. It is further submitted that the previous arguments stopped because the Appellant removed himself from the situation and not because a resolution had been found. Further to this, it is submitted that the Appellant in his testimony has highlighted that the incident had not occurred on one day, but over a three-day period where in subsequent days after 21 December 2021, the Respondent broke the window of the car and on another day, the computer at the office was vandalised. The Appellant submits that Article 230 does not require for a time frame in which unreasonable behaviour is to occur, or that unreasonable behaviour must be prolonged or sustained over a period of time. Instead, the law only requires that a petitioner for divorce shows that unreasonable behaviour has occurred.
42. The Appellant referred this Court to the authority of O’Niell v O’Niell [1975] 1 WLR 1118 1121 where Cairns LJ stated that ‘The words ‘reasonably be expected’ prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.’ By use of this authority, the Appellant submits that he could not be expected to continue his life with the Respondent after having lived the horrendous events of that week.
43. The Respondent submitted that the pleadings and allegations are related to a one day incident where the parties acted tit for tat. It was further submitted that it was not reasonable for the Appellant to have brought his lover to the business premises to entertain her in the business car, ‘gallivanting’ while not attending to the business at a busy period, leaving the Respondent to attend to the business. It is further submitted that by both the reasonable and subjective standard, these were provocation explaining the Respondent’s reaction and cannot be construed as unreasonable behaviour in the context of ‘irretrievable breakdown of marriage.’
44. During the hearing, counsel for the Respondent maintained that the Petition and the evidence as presented before the court a quo do not entitle the Appellant to a decree nisi of divorce.  Counsel referred the court to the paragraph 6 of the Petition where it listed out the Respondent’s behaviour as “The Respondent has threatened the Petitioner with violence on multiple occasions”. It was further submitted that although pleaded, this was not substantiated by evidence.  Counsel for the Respondent also submitted that the rest of the listed behaviours were all incidents of one day, namely the 21st of December 2021.
45. Further to the above, counsel for the Respondent submitted that the parties own and run a tourism establishment, which was in a busy period and the Respondent was working hard while the Petitioner, instead of doing his share, was gallivanting with his girlfriend, causing extreme annoyance to the Respondent, which provoked a reaction on her part.^[4]
46. Counsel for the Respondent submitted that when the behaviour of the Respondent is viewed in context, the particulars as set out in the Petition projected the Respondent in a bad light, yet these incidents had been taken out of context.  When they are viewed in context, the Respondent is not such a bad person as the Respondent wants to project.  It was submitted that the Respondent was perfectly entitled to defend the Petition, where particulars given were not accurate when viewed in the context.  It was further submitted that the Respondent had to defend her honour.^[5]
47. In concurrence with what the learned trial Judge held at paragraph [72] of the impugned judgment, counsel for the Respondent placed emphasis that if the marriage has broken down because of the Respondent’s extra marital relationship, he cannot bring his case under Article 231(1) (b) to say that the behaviour of this wife is such that he cannot reasonably be expected to live with her. Counsel added that this is contrary to the French expression of “les bonnes humeurs”. Finally, it was submitted that the Petition ought to have been brought in terms of Article 230 (1) (e) which requires 5 years separation.

 

 

 

COURT’S CONSIDERATION ON GROUNDS 1, 2,3 AND 4

 

48. I will start off the analysis by taking note of the relevant law in which the Appellants petition for divorce was grounded in, namely Article 230 (1) (b) of the Civil Code Act of 2020, and it reads:

230.(1) A party to a marriage may petition for divorce on the ground that the marriage has irretrievably broken down because –

(b) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent

49. From the above, it is clear that there are two important elements that a court should concern itself with – behaviour of the Respondent and whether a Petitioner can be expected to live with the Respondent in light of such behaviour.
50. I also take note of the authority in Karunakaran v Karunakaran DV 37/21, which was affirmed by this Court as correct in Karunakaran v Karunakaran (SCA 16 of 2022) [2023] SCCA 47 (25 August 2023). In Karunakaran v Karunakaran, the learned Chief Justice relied on a plethora of English cases and stated that:

55. What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent's conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?

51. The learned Chief Justice also stated that:

59. This Petitioner has his own share of faults and other negative attributes which I find proven by the Respondent. However here the question is not the unreasonable behaviour of the Petitioner or whether he is of good or bad character. The question is having regard to the alleged behaviour of the Respondent during the marriage can the Petitioner be reasonably expected to live with this Respondent. This, the Respondent has failed to address. To the court, instead of showing that on a balance of probabilities the Petitioner should not be believed the Respondent position was that it was the Petitioner who was unreasonable and not her, something that goes on to show that the marriage has indeed irretrievably broken down.

52. From the above, I can ascertain that when viewing the behaviour of the Respondent, a court must be cognisant of what has been proved to have happened and the cumulative effect the same on a Petitioner for divorce. The learned Chief Justice also highlights an important point in the above cited extract of his judgment. He held, which I note with approval, that a Petitioner for divorce can have his or her faults and negative attributes which can be proven in proceedings. However, such attributes or behaviours are immaterial because what is relevant is the Respondents behaviour during the marriage and whether the Petitioner can be reasonably expected to live with the Respondent in light of such behaviours.
53. In addition to the above, I would wish to point that courts must at all times ensure when to not be stuck in the past or in those times when certain behaviours were acceptable and therefore reasonable for a Petitioner for divorce to be expected to continue living the Respondent. The use of jurisprudence from the past must be done cautiously in order to not create an absurdity. This was observed by the majority of the Court in Owens v Owens [2018] UKSC 41 stating that:

In Ash v Ash [1972] Fam 135 Bagnall J suggested at p 140: “that a violent petitioner can reasonably be expected to live with a violent respondent; a petitioner who is addicted to drink can reasonably be expected to live with a respondent similarly addicted; … and if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other.”

The judge’s suggestion now seems almost comical. In the two specific examples quoted, surely each spouse would nowadays be entitled to a decree against the other...

54. In the present case, what has been proved to have occurred is a series of violent acts by the Respondent towards the Appellant and his property and also against the Respondent and her property, namely her car.^[6] Courts of law abhor these acts and such acts constitute prima facie cases of criminal conduct. At the same time, these acts are acts of domestic violence^[7] that must always be treated with the abhorrence it requires. I therefore respectfully disagree with counsel for the Respondent when he states that the context of infidelity justifies violence. To hold otherwise means whatever a spouse does in a marriage that is not palatable to the other  (e.g. misusing funds shared between the spouses, a poorly cooked meal, a poorly manicured garden, procuring low quality building material for the matrimonial home, among a plethora of things an individual can claim is not acceptable), justifies violence.
55. Nevertheless, the determining behaviour for purposes of Article 230 (1) (b) of the Civil Code are those which the Appellant alleged in his petition and admitted to by the Respondent. During the hearing, counsel for the Appellant placed emphasis on that when the learned trial Judge accepted the defence of provocation, it was tantamount to the Court sanctioning this type of behaviour. She added that from the impugned judgment and its implications, it is unclear when the Court be satisfied that the violence between the parties is unacceptable and therefore granting of divorce is warranted. Counsel hypothetically questioned whether to satisfy the court that a divorcee is warranted, it means the violence ought to reach the point where there is murder or grievous bodily harm.^[8]
56. I agree with the counsel for the Appellant and add that violence is the type of act that, even if perpetrated/threatened on one occasion, it is one too many times and remains a concerning occurrence that cannot be excused in any manner or form. The reason that the Respondent advanced that she was provoked does not absolve her from being a perpetrator of violence which everyone must be protected from. It is immaterial that the reason to resort to violence was because of infidelity. Therefore, the behaviour of the Respondent is not just behaviour which a petitioner can plead in terms of Article 230 (1) (b), but it is also unreasonable conduct or behaviour as the Appellant refers to it in his submissions. This is important to highlight for the discussion on the second limb of Article 230 (1) (b) in the paragraphs to follow.
57. I wish to highlight a remark by the learned trial Judge at paragraph [72] which reads:

[72]      On a final note, it is my considered view, that this is a clear case where a spouse who is in an extra marital relationship, in order to force a divorce because he wants to end the marriage, provoked, incited and stirred up a negative behavioural reaction from the other spouse, and then rely on the same behaviour, which in this case is a one-off incident, to seek for a divorce on the ground that the marriage has irretrievably broken down because of the unreasonable behaviour of the other spouse.

58. In taking this approach, the learned Judge was perhaps in line with the jurisprudence of Stevens v Stevens [1979] 1 WLR 885 where the petition for divorce was dismissed because the cause of the breakdown to the marriage had been due to the petitioner’s own behaviour, among other things. However, as I have highlighted earlier, jurisprudence from the past must be used with caution otherwise it may result in creating an absurdity. At this juncture, it is essential to highlight what the learned Chief Justice remarked in Karunakaran v Karunakan, that a petitioner can have faults and negative attributes which can be proven in proceedings however this is immaterial because it is the Respondent’s behaviour during the marriage that is under consideration and whether the Petitioner can be reasonably expected to live with the Respondent in spite of such behaviours.
59. As the Appellant has submitted, the law does not provide a time frame in which behaviour ought to occur before it can be accepted as enough to persuade a court grant a divorce. In this case, the frequency of the pleaded and proven behaviour is especially immaterial when it involves violence. Therefore, I respectfully disagree the finding of the learned trial Judge that ‘the Petitioner has failed to establish that the Respondent’s behaviour based on this one-off incident has caused him to conclude that the marriage between him and the Respondent has irretrievably broken down’. This position is erroneous and raises serious public policy concerns where violence is apparent between parties.
60. As a matter of public policy, courts of law cannot hold that parties to a marriage must endure any form of violence (or other forms of verbal and emotional abuse) or threats of it for a prolonged period to simply meet the threshold of what is reasonable in Article 230 (1) (b). To do so would be tantamount to the courts of Seychelles permitting such behaviour as submitted by counsel for the Appellant. Certainly, courts of law cannot turn a blind eye to a violation of one’s dignity and bodily integrity in order to be satisfied that a Petitioner cannot be reasonably expected to continue living with the Respondent.  To hold or maintain that there must be endurance of violence or other forms of abuse for a prolonged period, unnecessarily puts the lives of parties to a marriage at risk because a court cannot simply ascertain that it will not occur again, or how far the violence will go if parties remain together.
61. In the present case for example, the Appellant had testified in the court a quo that the Respondent threw a flower pot among other acts of violence on 21 December 2021. What strikes me is the allegation of the attempted use of fuel from a jerrycan in the proximity where the two were fighting presumably as a tool by the Respondent in the fight. Should a court refuse to take cognisance of these behaviours because it was a ‘one-off incident’ and return a petitioner back to a union where further violence could erupt? Certainly not.
62. In my view, where violence has occurred, no party to a marriage can be reasonably expected to endure the same and continue living with the Respondent. There is also nothing rational about violence or a threat of it, even if ‘contextualised’ as counsel for the Respondent submitted, that a party to a marriage can be reasonably expected to live with the Respondent who has acted violently or threatened to do so. Violence can be a single occurrence, which is one too many times. I am inclined to agree with the Appellant that the ramifications of holding that violence by the Respondent is not unreasonable is erroneous. In addition to this, holding that the violence is not unreasonable sets bad precedent when weighed against public policy imperatives. These public policy imperatives are deduced from laws such as the Criminal Code and the Domestic Violence Act which expressly criminalise behaviours that were proven against the Respondent.
63. In the circumstances, the learned judge faced with proven allegations of violence and the behaviour which the Appellant relied on for divorce, erroneously concluded that the Appellant could be reasonably expected to continue living with the Respondent.
64. Grounds 1 to 4 therefore succeed.

 

GROUND 5

65. The essence of ground 5 is that since the learned trial Judge had determined that there was no reasonable prospects of reconciliation, he ought to have granted the divorce. In the impugned judgment, the learned Judge stated that:

[71]      I am reminded, that the law mandatorily prevents the Court from granting a divorce unless it is satisfied that;

(a)        an attempt has been made to reconcile the Petitioner and the Respondent

(b)        after enquiring into the evidence presented by the parties to the proceedings, there is no reasonable possibility of reconciliation between the parties, and

(c)        the marriage has irretrievably broken down…”

No evidence has been adduced before this Court of the parties having attempted reconciliation after the incident of the 21st December 2021, understandably so, because the Petitioner is in an extra marital affair which he has admitted.  It appears however, that there is no reasonable possibility of reconciliation between the parties.

66. It is submitted by the Appellant that taking into account the circumstances of the case, and what the learned trial judge himself admitted, there was no possibility of reconciliation and an order for divorce ought to have been granted. The Appellant referred this Court to his own testimony in the court a quo, where he stated that he had given his best to the marriage over the years but the parties grew apart more and more and that there was no love whatsoever.
67. Perhaps most interesting, the Appellant has appealed that the courts must move with times and take into account that socially, divorce rates are significantly higher and marriages are down. The Appellant has implored this Court to take a holistic approach in determining marriages where one party no longer wishes to remain in the union for good cause. It is submitted that given the violent nature of the behaviour and threats, it is not healthy, reasonable to force persons to remain in a state of marriage. It is further submitted that despite entering into a marriage willingly, there must be provision for its determination where one party refuses consent in divorce out of spite. This court was referred to the Respondent’s evidence that she did not get married to get a divorce. The Appellant submits that the declaration ‘till death do us part’ is not part of the law yet it proves make it difficult for contracts of marriage to end especially when juxtaposed against how easy it is to determine lengthier contracts of multinationals.
68. Notwithstanding the above, the Appellant returns to place emphasis on the requirements under law to grant dissolution of a marriage, namely the Respondent has behaved in such a way that the Appellant cannot be reasonably expected to live with the Respondent, an attempt has been made to reconcile, after inquiring into the evidence presented by both parties there is no reasonable possibility for reconciliation and the marriage has irretrievably broken down. It is submitted that the requirements have been met and the divorce should be granted.
69. The Respondent for her part submits that she had forgiven the Appellant and was willing to attempt reconciliation. She added that per the practice direction issued under the old law, there must be an attempt at reconciliation before the Petition is filed.
70. During the hearing, counsels for the Appellant and Respondent submitted on the interpretation of the law.
71. Counsel for  the Appellant submitted as follows:

My Lord, my Ladies, in relation to this case before us today I stand before you and advocate for the evolution in jurisprudence, particularly in this realm of divorce. Our current legal framework often fails to recognize the gravity of situations where reconciliation is simply not feasible.  It is imperative that we address this inadequacy to uphold the principles of justice, freedom and the sanctity of marriage. In countless instances individuals find themselves trapped in marriages, characterized by irreconcilable differences, emotional neglect or even abuse. Yet due to restricted interpretations of the law they are forced to endure these intolerable circumstances indefinitely.  This not only undermines the wellbeing and autonomy of those involved, but also contradicts the very essence of justice.  It is fundamentally unjust to compel someone to remain in a loveless or abusive marriage, solely because a Judge deems the behaviour exhibited by their spouse as not bad enough.  The idea that one suffering must meet a certain threshold to warrant legal intervention is inherently flawed and fails to account for the myriad ways in which emotional and physiological harm can manifest.  Moreover, forcing individuals to stay in unions perpetrate a cycle of suffering and denies them the opportunity to pursue life free from oppression and despair.

Marriage is meant to be a union founded on mutual love, respect and support, not coercion or fear.  As guidance of the law it is your duty to ensure that our legal system reflects the evolving needs and values of society.  We must recognize that the institution of marriage should never be used as a tool of oppression or control. Instead, it should serve as a beacon of love, quality and mutual respect.  The Respondent implores you, esteemed justices, to reconsider our approach to divorce law and embrace a more compassionate and just framework.  One that acknowledges the reality of a wreckable marriage from this Court and prioritizes the wellbeing and autonomy of all individuals involved, by doing so reaffirming commitment to justice, freedom and again the sanctity of marriage.^[9]

 

72. Counsel for the Respondent submitted as follows:

My learned friend has raised the point about seeking interpretations that would make it easy for a divorce to be granted.  May I digress slightly to say that when we were revising our Civil Code, which we did over several years, we had public meetings, several places on Mahe, Praslin and La Digue, where the public views were taken into account.  We made certain changes in the Civil Code, like, rights of illegitimate children, concubinage, inheritance for the concubine and so on.  Divorce was also discussed.  So, the only change made to the divorce here, is that we included paragraph (e) in Article 230(1).  So, if divorce is to be carried here, this is a matter for the legislature to change the Rules.  I know in England they speak of the English society.  One can make changes to the divorce laws easier.  But we have to look at things in our society.  We had public meetings, so this is the law we came up with.

73. In response to the above, counsel for the Appellant submitted that:

My learned friend makes reference to the amendments in the law.  It took several years, I do not know who would have been present. Changes in the law are quite boring to the average laymen, so, I do not know if masses came out in droves and agreed with Mr. Shah and the other drafters of the Legislation to say, you know what, we do not want divorces to be easy.  If he does not love me, if he does not live with me, I want the Court to prevent him from going and the Legislations to prevent him or her from going, “fer li esper 5-an”, make him wait 5 years.  I do not understand how the process was, if the public at large agreed that 5 years would be the amount of time one must wait, not 1, not 2, not 3, not 10.  So, I believe to a certain extent we must thank Mr. Shah for where we are today and his colleagues.  And, in terms of the comment Mr. Shah made about other jurisdictions made in England trying to make divorce easier.  My Lady, my humble submission is, I do not understand why it must be hard.

74. Indeed, it is concerning that a party to a marriage can simply refuse to grant consent to a divorce and the court can accept the same on account of a mechanical application of the relevant articles in the Civil Code. At the same time, it is concerning that to be created, a marriage requires consent of both parties through the exercise of free will and personal autonomy - yet when that same free will and personal autonomy is used to sever the ties that were entered into voluntarily, the law appears to stifle and diminish the same. So – do people inherently have free will and personal autonomy to enter marriages, but this ceases to exist when it is time to seek a divorce? I think not.
75. Since marriage requires two consenting parties to be created, the fact that one of the parties is no longer willing to remain in the union should be enough to grant the divorce. By approaching the courts of law to seek a divorce, the person is demonstrating clearly that to them, there is an irretrievable breakdown in the marriage. There are no compelling reasons to make divorce an arduous task for those who are already faced with personal difficulties that have led to the very same proceedings of divorce.
76. Commonwealth countries such as Australia have always recognised only one ground to divorce, and that is the marriage has broken down irretrievably.^[10] The court will not however grant the divorce if it is satisfied that the there is a reasonable likelihood of cohabitation being resumed.^[11] Similarly, South Africa (as a mixed jurisdiction and commonwealth country like Seychelles) takes a no-fault approach to divorce and recognises only two grounds namely, irretrievable break-down of the marriage and the mental illness or the continuous unconsciousness of the other spouse.^[12] Even then, the Court still has to be satisfied that ‘the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.’^[13]
77. Other commonwealth countries and mixed jurisdictions comparable in some way to Seychelles have progressed or are in some process to progress from fault-based divorce and non-fault-based divorces with wide powers of courts. Two examples to cite in this regard are United Kingdom and Namibia.
78. The commonwealth country of United Kingdom, which influenced the law on matrimonial causes in Seychelles,^[14] has moved from fault-based divorce to non-fault based divorce proceedings with inception of Divorce, Dissolution and Separation Act of 2020. Therein, the ground for divorce is now limited to one, and that is the marriage has irretrievably broken down. This change is not only in non-fault-based in nature, but goes further to limit the previously wide powers of the Court to make inquiries into the evidence led and determine such evidence for purposes of granting a divorce. Before the 2020 amendments, the court had a say in so far as it the Petitioner had to satisfy the court of at least of the facts listed in Section 1 (2) (a) – (e) of the Matrimonial Causes Act 1973 (before the 2020 amendments). The court also had to be satisfied that the marriage had broken down as the previous Section 1 (4) of the Matrimonial Causes Act provided. However, the 2020 amendments now require the court to accept the statement (made by the applicant to a divorce) to be conclusive evidence that the marriage has broken down irretrievably, and grant the divorce thereafter. 
79. Namibia has also taken a similar approach through its Divorce Bill.^[15]  The sole ground for divorce is a statement that there is an irretrievable breakdown of the marriage and such a statement is conclusive evidence to that the marriage has irretrievably broken down.^[16] The Bill is particularly striking because not only does it provide for one ground, but goes further to abolish all other grounds that existed in common law as well as statue law.^[17] Therefore, courts in Namibia need not take those grounds into account or make further inquiries into whether the marriage has indeed irretrievably broken down.
80. Certainly, the new approaches of United Kingdom and Namibia are progressive. These approaches align with the reality that marriage is a complex social and legal contract that only the parties to it, in exercise of their individual personal autonomy and free will, know when they wished to contract into it and also when it is time to depart from it for reasons best and intimately known only to them. As such, it is not for third parties including the courts to be satisfied that the marriage has irretrievably broken down, but instead take the statement as conclusive evidence and grant the divorce. As the counsel for the Appellant has put it to us, ‘Why must it be difficult to get a divorce?’ I cannot think of any compelling reason why it must be difficult to get an order for divorce.
81. However, until the legislature changes the law to be more progressive as those in comparable jurisdictions I have earlier referenced, the courts’ hands are limited by statute as counsel for the Respondent has submitted. What I can implore the courts of this jurisdiction to do is perform its statutory duty and apply the law as it currently stands. However, such application must be less mechanical and bear in mind the complexities of marriage as a social and legal contract. It is also imperative that in the application of the law as it currently stands, the courts of this jurisdiction do so with the highest respect of an individual’s personal autonomy and freewill, and certainly guarding against rulings that offend public policy imperatives against (domestic) violence among other things.

COURTS CONSIDERATION OF GROUND 5

82. Article 231 (1) of the Civil Code provides:

231.(1) The court shall not grant a divorce unless it is satisfied that—

(a) an attempt has been made to reconcile the petitioner and the respondent, and

(b) after inquiring into the evidence presented by the parties to the proceedings, there is no reasonable possibility of reconciliation between the parties, and

(c) the marriage has irretrievably broken down.

83. Other than making a finding on article 230 (1) (b) of the Civil Code, a Court has to be stratified of those things listed in the above cited provision. I observe that the learned Judge did inquire into the evidence presented by the parties to the proceedings and this why he made a finding that there is no reasonable possibility of reconciliation. He did not however, test the case before him against the imperatives of paragraphs (a) and (c), which is a conjunctive list and therefore the Court must be satisfied of all those things listed therein.
84. Having gone through the evidence adduced in the court a quo, I note that the Appellant in his evidence stated that he had left the matrimonial home for about two months and was renting in Brilliant. He also testified that he and the Respondent decided to get back together and try and make it work, however such efforts were futile.^[18] His testimony on this was not challenged in cross examination neither was it a part of the evidence of the Respondent to refute its claims.
85. The question that arises is that since the petition particularised the behaviour of the Respondent as those violent acts on a particular days, can the Appellant rely on reconciliation attempted before such particularised acts and the same suffices for reconciliation as contemplated by Article 231 (1) (a)?
86. Things that act as push factors to severing ties between spouses are seldom a one off thing or event. But, it can also be a one off event that catalyses the proceedings. Counsel for the Appellant referred this Court to the words of the learned Chief Justice in Karunakaran v Karunakaran (supra) where he remarked that “the Petitioner … allude[s] to the most painful and maximum amount of past negative matrimonial events in order to … meet the legal test for Divorce.” Counsel for the Appellant submits that it is therefore only natural for a person petitioning for divorce to plead those behaviours likely to be more compelling for the court to grant a divorce and this too does not mean that there were no other events which would have occurred.^[19]
87. In the present case, both parties admitted to having problems in their marriage. The Appellant for his part stated in evidence in the court a quo that he did leave at some point and came back to, supposedly, attempt salvaging the marriage. I consider that the violence was a catalyst but in no way the only reason, from the evidence, that the marriage got to the point of divorce proceedings. Since the nature of the relationship before the alleged behaviour was part of the evidence, the trial court ought to have taken it into account to determine those inquires needed in Article 231 (1) (a). It must also be borne in mind that there is a risk of creating an absurdity in the application of the law if courts are to insist on an attempt to reconciliation where a party has been in a violent situation. From the evidence, the Appellant did testify that the violent period between him and the Respondent was quite scary.^[20] I observed with concern that the Appellant testified that:

…she said will find where she is and somebody is going to – don’t want to say this, but I felt for the safety of either myself or my girlfriend at the time, even after that also because it went on verbally so I decided to send her back to her own country. For me, it confirmed that I do not want to continue this relationship.^[21]

88. Clearly, these are threats of violence and it is unreasonable to insist on endurance of the mental anguish that comes with it in an effort to satisfy a court than an attempt at reconciliation after particularised behaviour of violence. To insist that attempt of reconciliation must be after the time of the particularised behaviour in this particular case creates an absurdity. The marriage must be looked as a whole, and previous attempts at reconciliation suffices to satisfy the court that an attempt has been made. Therefore, since there was an attempt to reconcile as the evidence of the Appellant showed, the condition in Article 231 (1) (a) would be satisfied.
89. In respect of the inquiry in paragraph (c) this too was never determined by the trial court. The term ‘irretrievably broken down’ was defined in part by the learned Chief Justice in Karunakaran v Karunakaran when he stated that ‘to this court, instead of showing that on a balance of probabilities the Petitioner should not be believed the Respondent’s position was that it was the Petitioner who was unreasonable and not her, something that goes on to show that the marriage has indeed irretrievably broken down.’ This Court in its judgment of Karunakaran v Karunakaran (SCA 16 of 2022) [2023] SCCA 47 (25 August 2023) also observed that there was nothing in evidence that proved the relationship between the parties had improved. Therefore, where there is no evidence that the behaviour or relationship improved at any one time, it can be stated that the said marriage had irretrievably broken down.
90. Suffice it to say that having gone through the testimonies of the parties, it is clear that the marriage had irretrievably broken down. There was nothing in the reply to the Petition or evidence by the Respondent that the marriage had good qualities expected in a marriage such as love, loyalty and kindness among other things. Instead, the Respondent in her reply stated that Appellant pushed her onto the sofa and broke her phone. Looking at this reply and the evidence of the nature of the marriage, it was marred with violence in both the immediate as pleaded in the Petition, and also in its history. For example, in the evidence of the Respondent she stated that the Appellant was violent with her.^[22] There were also extramarital affairs which is evidence of a dysfunctional relationship.
91. Another aspect which showed that the marriage had irretrievably broken down is that in testimony evidence, the Respondent was asked whether the only reason the Appellant came back to her was that if he did not, his employment would be terminated.^[23] To this, she replied in the affirmative and added that it is the law that the Appellant should be at work and qualify to be paid unless he is on sick leave.^[24] When asked if employment was the only reason the Appellant had gone back to the Respondent, she testified that she is not sure but supposes the Appellant wanted his salary and he needed to comply with the rules like all other employees.^[25] If the only reason that a person would come back to a marriage was because of the threat of loss of provision for sustenance, it is clear that the marriage had irretrievably broken down.
92. Ground 5 therefore succeeds.

DECISION

93. Having found merits in all 5 grounds of appeal, I make the following orders as prayed for by the Appellant:

1. The decision of the Supreme Court is set aside.
2. The marriage between the Appellant and the Respondent has irretrievably broken down.
3. A dissolution of the marriage is hereby granted.
4. Costs are awarded in favour of the Appellant as prayed.

 

 

__________________

S. Andre, JA

 

 

I concur                                                                       ___________________

                                                                                    J. De Silva JA

 

 

Signed, dated, and delivered at Ile du Port on 3 May 2024

 

 

 

 

 

 

 

 

 

 

 

 

______________________________________________________________________________

Neutral Citation: Cornelis L Hoevers v Rachel F Hoevers (nee Alphonse) SCA 07/2024 and SCA 14/2023

Before:                   Robinson, Andre, De Silva JJA

Summary:             The Seychelles Court of Appeal Rules 2005— The Court of Appeal of Seychelles Rules 2023 — Application by way of notice of motion for leave to file skeleton heads of argument out of time — whether "good cause" is shown

Heard:                   18 April 2024

Delivered:              3 May 2024

 

(i)        The application stands dismissed.

(ii)       The appeal case SCA14/2023 is deemed abandoned and accordingly struck out.

(iii)      I make no order as to costs.

 

ROBINSON, JA

94. This is an application by way of notice of motion on behalf of the Appellant for leave to file the Appellant's skeleton heads of argument outside the statutory time period. The notice of motion is supported by evidence in the form of an affidavit sworn to by the Appellant on the same date.
95. The case SCA14/2023 is an appeal against the decision of the trial Court in the case DV90/2022, delivered on 11 May 2023. The trial Court dismissed the Appellant's petition for divorce, concluding that it could not succeed on the grounds pleaded. The Appellant has challenged the decision of the trial Court on five grounds of appeal in a notice of appeal filed on 22 June 2023. The grounds of appeal are as follows —

"2.1.    The learned Judge erred in law and on the facts in determining that the Respondent's behaviour was not unreasonable, despite the Respondent admitting to the various behaviours.

2.2       The learned Judge erred in law and on the facts in determining that the extent of the Respondentʹs behaviour was not unreasonable if it was as a result of the provocation of bringing a lover within the Respondent's sight.

2.3       The learned Judge erred in law and on the facts by determining that when the behaviour was on only on one day it would not meet the threshold of the Matrimonial Causes Act.

2.4       The learned Judge erred in law and on the facts in determining that a reasonable minded person would not look at the Respondent's behaviour as unreasonable.

2.5       The learned Judge erred in law and on the facts in determining that in all circumstances of the case, and that there is no reasonable possibility of reconciliation that the petition ought to be dismissed resulting in the parties remaining married."

96. The question at issue is whether the Appellant has breached the Seychelles Court of Appeal Rules, 2005, as amended (hereinafter referred to as the "The Rules 2005") by filing his skeleton heads of argument out of time.
97. Rule 24 (2) (a), (i) and (k) of The Rules 2005 stipulates —

"(a)      The appellant shall lodge with the Registrar five copies of the appellant's main heads of argument within one month from the date of service of the record. Two copies of such main heads of argument shall be served on each respondent.

(i)        Where at the date fixed for hearing of the appeal the appellant has not lodged heads of argument in terms of this Rule, the appeal shall be deemed to be abandoned and shall accordingly be struck out unless the Court otherwise directs on good cause shown.

(k)        Nothing in this Rule shall be deemed to limit the discretion of the Court to hear an appeal or application notwithstanding that heads of argument have not been filed."

98. According to rule 24 (2) (a) of The Rules 2005, once the record of appeal is served on the parties, the Appellant has one month to file the Appellant's skeleton heads of argument.
99. Rule 11 (1) (a) of The Rules 2005 permits the President of the Court of Appeal or the Court to condone delays when the parties apply to the Court of Appeal on good cause shown.
100. As it is understood, on 20 September 2023, the record of appeal was served on Counsel for the Appellant and on 17 October 2023 on Counsel for the Respondent. On 25 September 2023, Counsel for the Appellant was informed by way of notice that the appeal case SCA14/2023 had been cause listed for hearing at the December 2023 Court session. However, on 17 October 2023, the Assistant Registrar informed the Appellant by way of notice that the said appeal case, which had been previously listed for hearing at the December 2023 Court session, would now be heard at the April 2024 Court session. On 19 December 2023, Counsel for the Appellant received a "Court Notice" from the Court of Appeal Registry, prepared by the Assistant Registrar, stating that the list of cases attached to the same "Court Notice" would be heard from 15 April to 3 May 2024. The Appellant filed his skeleton heads of argument on 13 March 2024.
101. The reasons put forward by the Appellant for me to exercise discretion to allow him to file his skeleton heads of argument outside the statutory delay were as follows —

"4.       That I aver that on or around the 17^th October 2023, a copy of the records was served to my attorney's office as my appeal was due to be heard in the December 2023 sitting.

5.         That I aver that subsequently to service, the provisional list of cases circulated to lawyers had my appeal struck out. I am advised and verily believe the same to be true that the Court of Appeal contacted my attorney to inform her that the appeal would no longer be heard in that sitting, and instead would be scheduled for the sitting of the April session.

6.         That I aver that my case was subsequently listed for the April 2024 and during this period, the Respondent and I were attempting to resolve the matter amicably, which proved to be unsuccessful.

7.         That I aver that as this appeal session drew closer and no agreement was reached, I instructed my attorney to proceed with the appeal.

8.         That the skeleton heads of argument for the appeal was filed with the Court of Appeal registry on 14^th March, 2024 to be duly served on the Respondent, or her attorney, Kieran Shah.

9.         That I aver that despite the delay in filing the skeleton heads of argument, it has been filed 30 days prior to roll call. The filing of the skeleton heads of argument is not inordinate, and the counsel of the Respondent would have sufficient time to respond to the appeal, and thus, no undue prejudice will be caused by it.

10.       That I aver that as of the date of the filing of this affidavit, I am informed and verily believe the same to be true that the attorney has not received the Skeleton Heads of Respondent. Therefore no prejudice or substantial prejudice would be caused to the Respondent as a result of the said delay.

[…].

12.       That if the application is refused I will suffer irreparable hardship as my appeal will not be heard and disposed of.

13.       That I am advised and verily believe the same to be true that I have a real prospect of being successful in my appeal in view of the serious and pertinent points of law to be adjudicated upon.

14.       On the basis of the matters aforesaid, it is just, equitable and fair that I will be granted leave to file my skeleton heads of arguments and for the appeal to be heard by this Honourable Court.

15.       I, therefore, apply for leave of this Honourable Court to file and/or accept the filing of my skeleton heads of argument so that my appeal can be heard by this Honourable Court as cause-listed.

16.       The above statements are true and correct. "

102. In deciding whether to exercise my discretion under The Rules 2005, I must be satisfied that the Appellant has provided good cause in accordance with The Rules 2005. It is noted that rule 24 (2) (i) of The Court of Appeal of Seychelles Rules 2023 requires an appellant to show good cause where the appellant has not lodged skeleton heads of argument in terms of the same rule.
103. The Court's approach in deciding whether to allow skeleton heads of argument to be filed out of time can be found in a number of authorities of the Seychelles' Court . In the case of Auguste v Singh Construction (SCA 52/2020) (16 December 2022), the Court of Appeal reiterated that breaches of the Rules 2005 pertaining to time limits should not be condoned unless there are "some materials on which the Court can exercise its discretion". Twomey JA, delivering the judgment of the Court in Auguste remarked —

"In Aglae v Attorney General (2011) SLR 44, the Court of Appeal ruled an appeal abandoned for breach of procedural time limits. The Court relied on the case of Ratnam v Cumarasamy and Another [1964] 3 All ER 933 for the proposition that:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some materials on which the Court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right of extension of time which would defeat the purpose of the rules which provide a timetable for the conduct of litigation.

There is now settled jurisprudence on this point – most recently in the cases of Commissioner of Police & Anor v Antonio Sullivan & Ors (SCA 26 of 2015) [2018] SCCA 2 (10 May 2018) and Laurette & Ors v Savy & Ors (SCA 13 of 2019) [2019] SCCA 36 (21 October 2019).

We cannot overemphasise the importance of rules of procedure. There is an apparent necessity for courts to adopt a tough stance on time limits. Parties are entitled to certainty and clarity in court proceedings and the taxpayer to a system that is as cost-effective as possible.

For all these reasons, we cannot condone the breaches of the rules and deem the present appeal abandoned".

104. I am also guided by the authority of Chang Sing Chung v Kim Koon and Ors SCA MA 38 of 2023 (25 August 2023), in which the Court of Appeal reiterated that: "rules of court are made to be complied with by parties and that judicial discretion must consider not only what is fair but must also be guided by the rules and principles of law." See also the authority of Mountain View Investment Pty Ltd v Pomeroy (SCA 4 of 2022) (25 August 2023) on the point at issue.
105. Based on either The Rules 2005 or The Court of Appeal of Seychelles Rules 2023, it is clear that the Appellant has delayed in filing his skeleton heads of argument. 
106. I find that the removal of the appeal case from the list of cases to be heard at the December Court session does not constitute material on which I could exercise my discretion in favour of the Appellant. Based on rule 24 (2) (a) of The Rules 2005, I hold the view that regardless of whether the appeal case was removed from the list of cases to be heard at the December Court session, the Appellant still had to file his skeleton heads of argument within the time period specified in The Rules 2005. 
107. I consider the other reasons put forward by the Appellant for me to exercise discretion to allow him to file his skeleton heads of argument outside the statutory delay.
108. With respect to the averment of the Appellant that he "will suffer irreparable hardship as [his] appeal will not be heard and disposed of", suffice it to state that there is no evidence to substantiate such an allegation. In Islands Development Company Limited v EME Management Services Limited SCA31/2009 (delivered on 11 December 2009), Fernando JA, as he was then, stated the following: ″…[m]aking broad statements in an affidavit without substantiating them, in a case which has to be decided purely based on the averments contained in the affidavit, does not espouse the cause of the party relying on such affidavit″. On the authority of Islands Development Company Limited, I find that the Appellant did not substantiate this allegation.
109. The Appellant has also averred in his affidavit evidence that he has "a real prospect of being successful in [his] appeal in view of the serious and pertinent points of law to be adjudicated upon".
110. I observe that the affidavit evidence of the Appellant did not indicate the serious issues of jurisprudential value on which the Appellant relied. Nevertheless, to understand the basis on which the Appellant was challenging the decision of the trial Court, I examined the grounds of appeal.
111. Regrettably, in my view, the grounds of appeal 2.1 to 2.5 were mostly vague or general in terms.
112. It appears that the main ground of challenge was that the trial Court erred in determining that "when the behaviour was on only on one day it would not meet the threshold of the Matrimonial Causes Act." (at ground 2.3 of the grounds of appeal). As mentioned earlier, the Appellant did not provide the basis for challenging this finding of the trial Court.
113. It is observed that grounds 2.1 and 2.5 also did not provide the basis on which the Appellant was challenging the trial Court's finding that the Respondent's behaviour was "not unreasonable".
114. I hold the view that if there were serious issues of law of jurisprudential value to be adjudicated upon by the Court of Appeal, it was incumbent on the Appellant to raise them in his notice of appeal and provide the basis on which he is objecting.
115. I also hold the view that the argument presented by the Appellant that he had serious issues of jurisprudential value that required adjudication by the Court of Appeal, cannot be used as the basis to condone the delay in submitting the skeleton heads of argument in accordance with The Rules 2005. In fact, in this case, the Appellant filed his skeleton heads of argument on 13 March 2024, after the appeal record was filed on his Counsel of record on 17 October 2023. The reason given for the delay was that the parties were purportedly attempting to resolve the matter during this period, inter alia.
116. In his affidavit evidence, the Appellant also advanced the ground that "my case was subsequently listed for April 2024, and during this period, the Respondent and I were attempting to resolve the matter amicably, which proved to be unsuccessful." The Applicant did not provide any explanation regarding the alleged attempt to settle the appeal case. In my view, the fact that the parties were trying to resolve the matter does not constitute material on which I could exercise my discretion in favour of the Appellant.
117. In Ratnam, the only material before the Court of Appeal was the affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged and that his reason for this delay was that he hoped for a compromise. The Court of Appeal of "Malaya" took the view that this did not constitute material on which they could exercise their discretion. The Judicial Committee of the Privy Council found it impossible to say that the discretion of the Court of Appeal of "Malaya" was exercised on any wrong principle.
118. For the reasons stated above, I conclude that good cause has not been shown for the exercise of my discretion. I note that the majority judgment in this case indicates that the Appellant had an unqualified right to an extension of time, which clearly defeats the purpose of the rules. I have mentioned above that the grounds of appeal in the notice of appeal were vague and general in terms.
119. Further, based on the facts and circumstances of this case and my finding that the Appellant has not shown good cause, I find that this is not a fit case for me to exercise my discretion under rule 24 (2) (k) to hear the appeal.

ORDERS

120. For the reasons stated above, the application stands dismissed.
121.  The appeal case SCA14/2023 is deemed abandoned and accordingly struck out.
122. I make no order as to costs.

 

 

_______________

Robinson, JA

 

 

Signed, dated, and delivered at Ile du Port on 3 May 2024