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[2016] ZAGPJHC 31
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D v D (A3079/15) [2016] ZAGPJHC 31 (12 February 2016)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A3079/15
DATE: 12 FEBRUARY 2016
In the matter between:-
[D……….], [M……….]
(born
[B………])
...............................................................................
Appellant
And
[D………..], [A……..]
[M………]
.........................................................................................
Respondent
Appeal – Rescission of
default judgment – Judgment divisible into distinct elements -
Partial rescission of proprietary
aspects of divorce judgment from
divorce order - Court can rescind proprietary aspects of judgment
without unravelling divorce
decree and costs order, if divisible and
distinct from each other.
JUDGMENT
CORAM:
WEPENER J AND CRUTCHFIELD AJ
[1]
This appeal is against
the whole of the judgment of the Regional court for the Regional
Division of Gauteng, held at Randburg, (‘the
regional court’),
in which that court dismissed the rescission application (‘the
rescission application’), with
costs under case number GPRANRC
234/2012.
[2]
The appellant in this
court was the applicant in the rescission application and the
defendant in the divorce proceedings issued
in the regional court.
[3]
The respondent appeared
in person at the appeal hearing.
[4]
The purpose of the
rescission application was to set aside the regional court’s
order granted in the parties’ divorce
proceedings, in the
absence of the appellant.
[5]
The respondent,
qua
plaintiff, issued divorce proceedings on 15 March 2012 in the
regional court. The appellant opposed the proceedings, and filed
a
plea and counterclaim (‘the divorce proceedings’).
[6]
It was common cause in
the divorce proceedings that the parties were married to each other
on 14 December 1974 in community of property.
There were no children
relevant to the divorce proceedings. The parties had not lived
together as husband and wife since 14 December
2009, and both parties
sought an order of divorce. This much was made clear by the
respondent in person at the appeal hearing.
[7]
The respondent claimed
a decree of divorce, division of the joint estate, or, that each
party retain the property already in their
possession as their sole
property respectively.
[8]
The appellant filed a
plea incorporating various special pleas, a plea to the merits and a
counterclaim for a divorce, division
of the joint estate, forfeiture
by the respondent of the patrimonial benefits of the marriage in
their entirety and costs.
[9]
For reasons which will
be canvassed more fully hereunder, the appellant was absent from
court on the day of the divorce trial. The
regional court, having
heard the respondent’s
viva
voce
evidence,
granted a decree of divorce, (‘the divorce decree’),
ordered an equal division of the joint estate, and made
no order as
to costs (‘the divorce proceedings judgment’).
[10]
O
n
23 February 2014, the appellant issued the rescission application
claiming rescission of the divorce proceedings judgment and
costs
only in the event of opposition.
[11]
The respondent opposed
the rescission application and a full set of affidavits was filed by
the parties. It is unnecessary to refer
to the technicalities which
arose from the appellant’s affidavits in the rescission
application.
[12]
On 2 June 2015,
the regional court, having heard both parties’ legal
representatives, dismissed the rescission application
with costs.
(‘the rescission judgment’). As stated afore, it is
this rescission judgment that is the source of
this appeal.
[13]
Thereafter, the
appellant served her notice of appeal.
[14]
Section 36(a) of
the Magistrates’ Courts Act, 32 of 1944 (‘the Act’),
permits a magistrate’s court to rescind
a judgment granted in
the absence of a litigant. The procedural requirements are governed
by subrules 49(1) to (6) of the magistrates’
courts rules.
[15]
As referred to by the
regional court:
“
...
Rule 49(1) provides that a court may rescind or vary a default
judgment on such terms as it may deem fit upon good cause shown;
or
if it is satisfied that there is good reason to do so.
The
term “good cause” in the context of the rescission of
judgments is generally accepted to mean that the applicant
must
provide a reasonable explanation for his default; must show that he
has a bona fide defence; and that the application is made
bona
fide
.
[1]
”
[16]
A court has a wide
discretion in evaluating ‘good cause’, the intention
being to ensure that justice is done.
[2]
[17]
Hence, the appellant,
in order to found success in the rescission application, was obliged
to:
17.1
Explain fully and in a
manner that allowed the court to truly understand the reasons for her
non-appearance. The explanation should
not appear wilful or due to
gross negligence.
17.2
Be
bona
fide
and not merely
intent on delaying the respondent’s claim; and
17.3
Demonstrate a
bona
fide
defence to the
respondent’s claim. A
prima
facie
defence, or a
triable issue such that if the facts alleged were proven at trial the
appellant would be entitled to the relief sought,
will suffice.
[3]
The court must look to the pleadings only and not to the evidence.
[18]
The respondent did not
furnish any evidence that served to contradict or undermine the facts
alleged by the appellant, that:
18.1
She planned, booked and
paid in respect of her travel arrangements, (which overlapped with
the trial date), in advance of her attorney
receiving notice of the
trial date.
18.2
The travel costs were
non-refundable.
18.3
The appellant confirmed
her travel plans on 9 March 2014. The date of her intended departure
from Or Tambo International was 29
April 2014.
18.4
The appellant would be
absent from the Republic on the allocated date of the trial, 13 June
2014.
18.5
The appellant
instructed her attorney of record (‘the attorney’), to
take whatever steps were necessary pursuant to
her envisaged absence
on the trial date, which her attorney undertook to do, and did do,
although an error occurred in the process
thereof.
18.6
The correspondent
attorney (‘the correspondent’), who attended court on the
trial date, although tasked to procure the
necessary postponement,
mistakenly appeared in the incorrect court.
18.7
Accordingly, the
correspondent was not able to locate the trial on behalf of the
appellant, and assumed, (incorrectly), that the
trial had not been
set down for that day.
18.8
Furthermore, the
correspondent received confirmation from the clerk of the court
(albeit the incorrect court), that a notice of
set down had not been
filed in the matter and it was not enrolled for that day.
18.9
It was only
subsequently, on 23 June 2014, that the appellant became aware of the
divorce proceedings judgment, when her rental
agent communicated that
the respondent sought access to an immovable property comprising part
of the joint estate in order to sell
it.
[19]
In the final analysis,
the reason why the divorce proceedings judgment was taken in the
appellant’s absence was because the
appellant’s attorney
failed to advise the correspondent that the matter was set down in
the regional court.
[20]
It speaks for itself
that a simple mistake occurred. This cannot found a reason to refuse
the rescission of the divorce proceedings
judgment.
[21]
It is not for this
court to speculate as to whether or not the postponement application
by the correspondent would have succeeded.
This court is tasked only
with assessing whether or not a reasonable explanation of the
appellant’s default, (which does
not appear to be wilful or due
to gross negligence), is established by the appellant.
[22]
Wilfulness or
recklessness cannot be ascribed to the appellant, her attorney or the
correspondent.
[23]
Nor can the applicant
be described as anything other than
bona
fide
. No evidence
was proffered as to any intent on the appellant’s part to delay
finalisation of the divorce proceedings.
[24]
To the contrary, the
evidence was to the effect that the appellant took the necessary
steps to prosecute her defence and counterclaim
in the divorce
proceedings. Furthermore, the appellant attended upon and instructed
her attorney to procure a postponement of the
date of the divorce
trial, due to her anticipated absence on the day. Hence, this court
cannot find that the appellant was not
bona
fide
in the sense
envisaged by the Rule.
[25]
As to the existence of
a valid and bona fide defence to the respondent’s claim in the
divorce proceedings, the appellant’s
plea and counterclaim
contain sufficient averments set out in an adequate manner. A valid
and bona fide defence and a triable counterclaim,
clearly exist.
[26]
The necessary
facta
probanda
of the
appellant’s counterclaim for a forfeiture by the respondent of
the patrimonial benefits of the marriage in community
of property,
(in terms of
section 9
of the
Divorce Act no 70 of 1979
), are
adequately pleaded. The fact that the appellant may choose to bring
certain amendments to the plea or counterclaim, does
not serve to
make the defence any less valid for the purposes hereof.
[27]
Accordingly, it
is appropriate for this court to set aside the rescission judgment,
as we intend to do hereunder.
[28]
As to the effect of
setting aside the rescission judgment, it would automatically result
in the rescission of the divorce proceedings
judgment, and the
parties returning to a state of matrimony, in the eyes of the law.
Moreover, the automatic consequences attendant
upon a marriage in
community of property would operate with immediate effect.
[29]
This is in
circumstances where the divorce proceedings judgment was granted on
13 June 2014, and, the parties have been divorced,
at this stage, for
approximately eighteen (18) months. It would be inappropriate and
would serve to complicate the parties’
lives unnecessarily and
across multiple aspects thereof, were a court to countenance such
circumstances.
[30]
To set aside the
divorce
per se
between the parties, and return them to a state of matrimony pursuant
to an automatic consequence of the legal process, and, not
as a
result of a personal choice purposely made by each of them, would be
to undermine, even deny, their respective rights of dignity,
including their right to privacy.
[31]
Given that both parties
claim a decree of divorce in the divorce proceedings, that there are
no minor children relevant to those
proceedings, and no claim by the
appellant for spousal maintenance, it would serve the interests of
justice to craft an order that
permits, in effect, the prevailing
divorced status of the parties to continue, whilst simultaneously
affording the appellant the
opportunity to which she is entitled, to
prosecute her claim aforementioned, and we intend to make such an
order.
[4]
[32]
To grant an order to
the contrary would result in the parties’ patrimonial affairs
being automatically subject to the legal
consequences of a community
of property marriage. This would be untenable given the parties
existing divorced status.
[33]
The question of whether
a judgment can be rescinded in part was considered by Fischer AJ, in
this court, in
Conekt
Business Group (Pty) Ltd v Navigator Computer Consultants CC.
[5]
[34]
In that matter, the
court dealt with the wording of
rule 31(2)(b)
of the rules of the
High Court, which provide in similar terms to
rule 49(1)
of the
magistrates’ court rules, that the High Court is empowered upon
good cause being shown, to ‘set aside the default
judgment on
such terms as to it seems meet.’
[6]
[35]
Fisher AJ considered
the ‘differing lines of cases on the question’ ‘as
to whether (a) judgment can be rescinded
in part.’
[7]
[36]
In so doing, Fischer AJ
declined to follow the ‘line of cases which holds that the rule
does not, on a literal reading thereof,
permit of a setting aside of
part of the default judgment’, and preferred instead to follow
Flemming DJP, who, in dealing
with the equivalent provision in the
Magistrates’ Court, ‘declined to follow the line of cases
which precluded a partial
rescission.’
[37]
Fischer AJ quoted
Flemming DJP who stated in this regard:
‘
I
find myself in disagreement with the reasoning in the Zealand case
and subscribe to the opposite interpretation of the Supreme
Court
Rule. That also implies that although there is only one
judgment even when plaintiff succeeded on five contracts, a
defendant
need not be given rescission on five causes of action if he has a
defence only on one contract.’ (In this case
there are distinct
causes of action for capital, for mora interest, and for agreed
costs). As is by now predictable I conclude
that similar
wording in the Magistrates Court Act bears a similar meaning.
[26]
Flemming DJP further entrenched this finding in Revelas and Another v
Tobias in which he stated the following:
“
Insofar
as the question arises whether the Court in deciding on rescission of
orders is bound to an all or nothing approach, I mention
two
aspects. Firstly, Court Rule 31(2)(b), in authorising an order
rescinding a default judgment ‘on such terms as
to it seems
meet’, to my mind authorises qualified or conditional orders.
That sets the tone for rescinding the order
striking out a defence,
especially if one assesses the matter in the context of a Court’s
inherent jurisdiction to govern
matters in the interests of effective
administration of justice. (Both the striking out of the
defence and the eventual judgment
ordering defendants to pay an
amount were default judgments.) Secondly, I have expressed
views (which I still hold) in the
matter of Silky Touch International
(Pty) Ltd and Another v Small Business Development Corporation
Ltd [1997] 3 B All SA
439 (W).”
[27]
In
Silky Touch
Flemming DJP cited with approval the approach taken in two Namibian
cases: Maia v Total Namibia (Pty) Ltd and SOS Kinderdorf
International v Effie Lentin Architects.
[28]
The reasoning adopted in the SOS Kinderdorf case is indeed
instructive in interpreting the rule. Levy J stated as follows in
this regard:
“
The
Rules of Court constitute the procedural machinery of the Court and
they are intended to expedite the business of the Courts.
Consequently they will be interpreted and applied in a spirit which
will facilitate the work of the Courts and enable litigants
to
resolve their differences in as speedy and inexpensive a manner as
possible...
There
is no reason why this pattern should be deviated from where a
plaintiff has already obtained a default judgment in respect
of more
than one but separate claims, and the defendant shows a defence to
some of plaintiff’s claims, or to a part of the
claim, which is
divisible from the whole. For example, where a plaintiff is
granted default judgment in respect of the payment
of a sum of money
as well as delivery of certain goods, and the defendant can show a
bona fide defence to one or the other, there
is no reason why the
plaintiff should not be entitled to judgment in respect of the claim
which defendant cannot defend.
The essential question is
whether the claim or claims in respect whereof default judgment has
been given is divisible.”
[29]
In relation to an argument raised to the effect that the words ‘on
such terms as to it seems meet’, refer only
to matters
ancillary to the default judgment, such as costs or periods of time
within which to file subsequent pleadings, Levy
J held as follows:
“
I
fail to see any reason for limiting the meaning of these words and
the Judge’s discretion. In the interpretation of
statutes
words receive their ordinary grammatical meaning. Ebrahim v Minister
of the Interior
1977 (1) SA 665
(A); Volschenk v Volschenk
1946 TPD
486
at 487. In Kavasis’ case the learned Judge failed to
consider these words.
In
De Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A) the Court
considered the common law in regard to the Court’s powers in
the setting aside of default judgments generally,
and the headnote of
that case reads, inter alia:
‘
Under
the common law, the Courts of Holland were, generally speaking,
empowered to rescind judgments obtained on default of appearance,
on
sufficient cause shown. This power was entrusted to the
discretion of the Courts. This discretion extended beyond,
and
was not limited to, the grounds provided in Rules of Court 31 and
42(1) ...’
“
In
the absence of an express or clear statement to the contrary, a Court
will not assume that its powers are curtailed. Minister
of Law
and Order and Others v Hurley and Another
1986 (3) SA 568
(A) at
584A. Those words therefore must be interpreted to mean that a
Court is not in any way limited in setting aside a
part of a default
judgment.”
[30]
Levy J furthermore embarked on an examination of judgments of the
Zimbabwean Appellate Division and an English decision where
similar
provisions to Rule 31(2)(b) were interpreted on the basis that a
partial rescission was competent.
[31]
He thus concluded as follows:
“
Consequently,
where a defendant has a defence of, say prescription, in respect of
part of a claim for goods sold and delivered but
not in respect of
the balance, it is permissible to set aside the default judgment for
that part which can be defended. The plaintiff,
however, would be
entitled to judgment in respect of that part of the claim for which
there is no defence.”
[32]
In all the circumstances I am in respectful agreement with Flemming
DJP that a Court is empowered in terms of Rule 31(2)(b)
to rescind
part of a judgment.
[33]
The aforementioned pronouncements of Flemming DJP and Levy J,
notwithstanding their wide interpretation of the rule, appear
to
accept that, for a partial rescission to occur, the judgment should
be capable of being divided into discrete parts so that
the part in
respect of which there is a possible defence can be discerned. Thus,
if a defence is made out which is not capable
of quantification in
this way or which cannot be dealt with on the basis that it can be
related in some manner to a distinct part
of the judgment, it would
appear that a partial rescission would not be permissible. This would
be the case even if it were apparent
that there was no defence to the
entire claim. The rationale behind this is probably the
impracticability of such an approach
in circumstances where there is
no delineation in relation to how the partial defence would relate to
the claim. What then of a
situation where a defence of this nature is
established to what appears to be a proportionately small part of the
judgment? It
is likely that, in such a case, a court would have
resort to the relatively wide powers afforded by Rule 31(2)(b) to
impose such
“such terms as to it seem meet” so as to
achieve a situation where the respective rights of the parties were,
in some
manner, accommodated.’
[38]
In the present matter,
this court is faced with three distinct components to the divorce
proceedings judgment.
[39]
It is not appropriate
to rescind the decree of divorce, (a court cannot
unravel
the consequences of a divorce), whilst it is desirable and possible,
given Fischer AJ’s findings afore, to set aside the
regional
court’s order for the division of the joint estate, apart from
the remaining provisions of the divorce proceedings
judgment.
[40]
There is no reason to
interfere with the regional court’s provision for no order in
respect of the costs of the divorce proceedings.
[41]
Thus, of the three
components of the divorce proceedings judgment, only one, (that in
respect of the division of the joint estate),
stands to be rescinded.
It is distinct and easily divisible from the remaining two and
renders the divorce proceedings judgment
suitable to an order of
partial rescission.
[42]
As regards
the issue of the patrimonial consequences of the parties’
divorce, this court cannot, and, should not deal with
those issues,
and hence they will be referred back to the regional court.
[43]
It follows upon the
fact that the divorce decree was granted on 13 June 2014, that the
effective date in respect of which the patrimonial
consequences of
the parties’ divorce are to be determined, is 13 June 2014.
[44]
The following order is
granted:
44.1
The appeal is upheld
with costs;
44.2
The judgment and the
order of the Regional Court for the Regional Division of Gauteng held
at Randburg under case number GPRANRC
234/2012 dated 2 June 2015, is
set aside and, replaced with an order in the following terms:
44.2.1
The rescission
application succeeds in respect of the decree of divorce, (being
paragraph 2 of the divorce proceedings judgment
only), granted by the
Regional Court for the Regional Division of Gauteng held at Randburg
under case number GPRANRC 234/2012;
44.2.2
The costs of the
rescission application in the regional court under case number
GPRANRC 234/2012 are for the account of the respondent.
W
L WEPENER
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
A
A CRUTCHFIELD
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
[1]
Eugene Phillips T/A Southern Cross Optical v SA
Vision
Care (Pty) Ltd
2000] 1 All SA 368
(C) at 368- 369
[2]
Erasmus
Superior
Court Practice
, Second Edition, Van
Loggerenberg, Vol 2 at D1-365 – D1-366
[3]
Are
nd v Astra Furnishers (Pty) Ltd
1974 (1) SA
298
(C)
at 303 and 304
[4]
MR v MM case no 52110/2007 dated 27 May 2011 NGHC
[5]
Conekt Business Group (Pty) Ltd v Navigator
Computer Consultants CC 2015 (4) SA 103 (GJ)
[6]
Rule 32(1)(b) Uniform rules of court
[7]
Conekt Business Group (Pty) Ltd supra [22] to
[33]