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[2019] ZAGPJHC 18
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N.K v D.K (2016/06073) [2019] ZAGPJHC 18 (17 January 2019)
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REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2016/ 06073
17/1/2019
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
In
the matter between:
N
K (BORN
R)
APPLICANT
and
D
K
RESPONDENT
JUDGMENT
NKOSI
- THOMAS AJ
[1]
This is an application for the rescission of a judgment dated 20 July
2017 granting a decree of divorce (“the Court
Order”).
[2]
The parties herein were married to each other, out of community of
property, in terms of an ante-nuptial contract excluding
community of
property, profit and loss, on 22 June 1957.
[3]
The applicant alleges, at paragraph 3.5 of her founding affidavit,
that she instituted divorce proceedings on 4 March
2016 under case
number 43223/2015. Whilst settlement negotiations were still ongoing,
the applicant, who is a seventy-seven years
old housewife, was
shocked to receive the divorce order forming the subject of this
application.
[4]
The respondent (currently 82 years of age), on the other hand,
alleges that he instituted a divorce action prior thereto
and on 22
February 2016. After the Sheriff of this Court ‘s numerous
failed attempts at effecting personal service on the
applicant, he
was advised to enlist the services of Wits Law Clinic on how to
proceed in the face of the applicant’s obstructive
conduct on
receiving personal service of the combined summons.
[5]
The above culminated in an application for substituted service being
launched and, ultimately, granted by this Court.
[6]
The impugned divorce order was subsequently granted.
[7]
Simultaneously with the rescission of the Court Order, the applicant
seeks condonation for the late filing of the rescission
application.
She contends, in that regard, that she became aware of the Court
Order for the first time towards the end of September
2017. The
respondent denies this. He contends that he personally informed the
applicant of the Court Order on 17 August 2017 during
a formal court
appearance in the Roodepoort Magistrate Court.
[8] In order to
succeed, the applicant must show good/sufficient cause. This
generally entails that the applicant must:
[8.1] give a
reasonable (and obviously acceptable) explanation for the default;
[8.2] show that his
application is made bona fide; and
[8.3] show that on
the merits she has a
bona
fide
defence
which
prima
facie
carries
some prospect of success.
[1]
[9]
In regard to the reasonable explanation for the default, I have
already stated above the circumstances under which leave
to serve the
divorce summons by way of substituted service was sought and had. The
applicant makes imputations of fraud on the
part of the respondent
which resulted therein. I am enjoined to resolve this dispute on
respondent’s version. I, accordingly,
find that the applicant
has failed to put up a reasonable and acceptable explanation for her
default.
[10]
In regard to the existence or otherwise of a
bona fide
defence, the following are the material common cause facts:
[10.1] The parties
were married out of community of property without accrual system
during May 1957;
[10.2] The parties
have not been living as husband and wife since 1970 inasmuch as the
respondent moved out of the matrimonial
bedroom then; and
[10.3] The
respondent formally moved out of the common home in 1996 when the
parties’ youngest son completed his academic
career.
[11]
The applicant does not dispute that the marriage relationship between
herself and the respondent has broken down irretrievably.
Accordingly, the divorce order
simpliciter
is not challenged
on ground that it has been erroneously granted in her absence.
[12]
What is being challenged are the patrimonial consequences of the
marriage. By granting the decree of divorce in her absence,
so goes
the argument, the Court deprived the applicant of the opportunity to
seek a redistribution order in terms of section 7(3)
of the Divorce
Act in respect of which she carries a reasonable prospect of success.
[13]
It is plain that the applicant’s prospects of success in
respect of the divorce order are non-existent for the
reason stated
above.
[14]
In so far as the redistribution order sought, the applicant has not
shown, on these papers, that her prospects of success
in that regard
are reasonable. Firstly, the applicant merely makes the bald
allegation that she is entitled to such a redistribution
inasmuch as
she “
indirectly contributed to the growth and increase of
the Respondent’s estate
” without setting out the
primary facts from which this conclusion has been drawn. Secondly,
the applicant does not say what
the extent is of respondent’s
estate in respect of which a redistribution is claimed.
[15]
It has to be borne in mind that although the decree of divorce was
granted as recently as 20 June 2017, the parties ceased
living
together as husband and wife since 1970, forty-seven years ago, and
the respondent left the common home twenty-six years
ago, in 1996.
This is, thus, not a typical case of parties living together as
husband and wife and, in the course thereof, accumulating
assets or
making a contribution in that regard.
[2]
[16]
The
Appellate Division, as it then was, had the following to say as
regards characterisation of facts
[3]
:
“
Facts
are conveniently called primary when they are used as the basis for
inference as to the existence or non-existence of further
facts,
which may be called, in relation to primary facts, inferred or
secondary facts …”
[17]
In
Radebe
v Eastern Transvaal Development Board
[4]
the Court had the following to say in this regard:
“
If
I am incorrect, or inaccurate, in regarding the crucial allegation in
the answering affidavit as a conclusion of law, it is at
best for
appellant an inference, a ‘secondary fact’, with the
primary facts on which it depends omitted…
In the instant case it
is a legal result only that has been ‘pleaded’.
Respondent failed to deny these allegations in
a replying affidavit.
This is of no legal consequence since they do not amount to
statements of fact disclosing a defence to respondent’s
claim…”
[18] It follows,
from the above, that secondary facts do not constitute evidentiary
material capable of disclosing either
a cause of action or a defence.
[19]
In the result, it ineluctably follows that the applicant failed to
show a bona fide defence as regards the redistribution
relief, and as
such, the application for rescission falls properly to be dismissed.
I make no order as to costs.
L.G
NKOSI-THOMAS AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Heard:
1 August 2018
Judgment:
17 January 2019
For
the applicant:
Advocate Billings.
Instructed
by:
Cass Pieterse Attorneys
For
the Respondent: In Person.
[1]
De Wet
v Western Bank Ltd
1979
(2) SA 1031
(A) at 1042F–1043A;
Chetty
v Law Society, Transvaal
1985
(2) SA 756
(A)
at 764J–765D;
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) at 9D–F;
Naidoo
v Matlala NO
2012
(1) SA 143
(GNP)
at 152H–153A;
Government
of the Republic of Zimbabwe v Fick
2013
(5) SA 325
(CC) at 350D;
Scholtz
v Merryweather
2014
(6) SA 90
(WCC) at 93D–96C.
[2]
Badenhorst
v Badenhorst
2006 (2) SA 255
(SCA); Bezuidenhoudt v Bezuidenhoudt
2006 (2) SA 187
(SCA) at [ 19], [23] and [23].
[3]
Willcox
and others v Commissioner of Inland Revenue 1960 (4) SA 599
(A) at 602A.
[4]
Radebe
v Eastern Transvaal Development Board
1988
(2) SA 785
(A) at 793C–E.