Retired judge’s wife doesn’t need consent to seek protection order, maintenance

The wife of a retired Eastern Cape high court judge does not need the permission of the judge president of the province to apply for a protection order against alleged abuse by her estranged husband, or for maintenance for herself and their minor children.

In an unusual but important judgment interpreting provisions of the Superior Courts Act, which prescribes how legal action must be instituted against a judge, Judge-President Selby Mbenenge has found that section 47(1) did not apply to retired judges.

The section prohibits any civil legal action — including the issuing of summons, launching of motion proceedings, or the serving of a subpoena in a civil matter — being instituted against “any” judge of a superior court, without the permission of the head of the court.

Mbenenge held that though the section did not distinguish between a judge on active duty and one who is retired, a contextual reading of the law to discern its purpose indicated that the section applies only to a judge on active duty.

He said the Superior Courts Act was intended for the proper governance and functioning of the courts.

It was clear that retired judges “do not feature in the running of the courts”.

Instead, the section requiring consent before litigating against a judge was intended to protect sitting judges against interruption of the courts’ functioning through applications that were improper and without merit.

He said the retired judge’s wife “does not need my consent in order to sue” her husband.

The hearing became necessary after the wife applied in the East London magistrate’s court for an interim protection order against her husband under the Domestic Violence Act.

The wife has alleged various incidents of physical assault, as well as emotional and psychological abuse, dating back to 2012, when her husband was still on the bench.

In one incident, he allegedly assaulted his wife so seriously that she had to receive medical treatment.

In 2017, she tried to lay a criminal charge of assault at a police station but the incident was not officially recorded.

She has also claimed her husband is not properly maintaining her and their children.

The domestic violence order was provisionally granted in October 2019 but was discharged on the return date of December 12, when the magistrate was alerted to the provisions of section 47(1).

The magistrate found that permission had not been sought from Mbenenge before the woman sued her husband.

The retired judge has lodged an application in the East London magistrate’s court for the annulment of their marriage, which his wife has opposed.

The wife alleged this development was followed by “various acts of intensified domestic violence” including threats of unlawful eviction from the matrimonial home, and refusing to maintain her and their two minor children.

The retired judge claimed their marriage was characterised by upheavals from the start, that his wife was irrational towards him, aggressive and extremely sensitive, on one occasion breaking a toilet seat while engaged in an altercation with him, and on another assaulting their son.

He believed she did not value his life but was interested only in benefiting from his estate after he dies.

“She is now creating all this mess about me because she probably did not expect that I would be tired of her abuse and take her out of the marriage,” he said in responding court papers, explaining his decision to have their marriage annulled.

Mbenenge found that, given that they were still married, the woman was entitled to seek maintenance even for herself, and it was hard to fathom how the retired judge could refer to his wife’s application to court as “a frivolous claim for her maintenance”.

In any case, given that the retired judge had already instituted legal action against his wife, there would have been no reason for her to apply for consent to institute a counter-suit against her husband.

During the proceedings, the JP dismissed an application by the retired judge that Mbenenge recuse himself on the basis that he had stated in correspondence “an arguable case” existed.

Mbenenge ordered that his ruling be brought to the attention of the chief magistrate of the cluster which includes East London’s magistrate court, so that the applications by the spouse may be dealt with on an expedited basis.

He said the ruling should not be interpreted as suggesting that once a judge retired from active service, that they lost the status of judge.

The retired judge claimed their marriage was characterised by upheavals from the start, that his wife was irrational towards him, aggressive and extremely sensitive