Judge slams attorney in gay husband case
Publish date: 04 November 2019
Issue Number: 848
Diary: IBA Legalbrief Africa
Category: South Africa
A R9m damages suit by a Cape Town woman whose six-year marriage fell apart when her husband told her he was gay was struck off the roll and her attorney ordered to forfeit his fees and pay her husband's costs. The woman's application to the Western Cape High Court (Cape Town) asked for R5m for emotional pain and psychological trauma, and R4m for loss of income and 'financial prejudice', reports TimesLIVE. In his judgment, Judge Mark Sher said: 'The basis for the damages claim and the extraordinary sums which are sought ... is that the (husband) is alleged to have "misrepresented" to her, prior to their marriage, that he was a heterosexual male who wished to marry her so that they could have children in a heterosexual, monogamous marriage.' The woman's claims were made in a rule 43 application. Sher said attorney Fareed Moosa had thrown everything but 'the proverbial kitchen sink' into a 368-page application which was supposed to be a summary. Sher described Moosa's approach as an 'irregular step and an abuse of process', and said the application must not be re-enrolled unless it was done in accordance with rule 43.
The judge said the 'wide-ranging and egregious abuse of process' had already produced bills from Moosa totalling more than R206 000, 'which no doubt explains the extraordinary amount of R400 000 which was claimed (from the husband) as a contribution to (the wife's) costs'. Said Sher: 'The first part of (the wife's) affidavit is largely devoted to narrating, in the finest and most intimate detail, how (the husband) came to reveal that he was homosexual. It goes on to set out in further explicit detail the contents of highly private and personal communications. Publication of this material could be said to constitute an unjustified breach of (the husband's) right to privacy, if not that of (the wife) herself.' According to the TimesLIVE report, Sher said another part of the affidavit prepared by Moosa 'in flagrant breach' of rule 43 attempted to cast doubt on (the husband's) defences in the divorce proceedings. Sher also criticised a detailed estimate of legal costs Moosa prepared for the wife's divorce case, totalling at least R946 000. 'By any standard this seems to be an excessive amount ... notwithstanding the parties' societal standing, (the husband's) alleged means and the scale of the litigation thus far,' he said. Moosa, who is head of the department of mercantile and labour law at the University of the Western Cape, said he would be applying for leave to appeal against Sher's entire judgment.