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[2019] ZAGPJHC 468
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S S v H P (2015/18402; 2014/42472) [2019] ZAGPJHC 468; [2019] 3 All SA 645 (GJ) (23 May 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NOS 2015/18402; 2014/42472
In
the matter between:
S
,
S
Applicant
and
H
,
P
Respondent
JUDGMENT
SNYCKERS
AJ:-
Rescission
– of Rule 43 order and order relating to parental rights –
inappropriateness instead of fresh application
– section 8(1)
of
Divorce Act 70 of 1979
applicable to
Rule 43
orders for
maintenance – conflicting authority in this regard
Rescission
– of order of division of property in joint estate as part of a
divorce decree – severability of such order
from decree of
divorce for purposes of rescission – such order severable and
capable of independent rescission
Proof
of foreign law without experts – application of presumption
that same as South African law – not when judicial
notice of
foreign law possible when readily ascertainable through Civil Code
invoked by party in affidavit and sections of statute
readily
available on internet with sufficient reliability and capable of
being considered by court in German
Divorce
- Proprietary consequence of marriage – rule that marital
property regime determined by law of domicile of husband
at time of
marriage –
quare
whether requires development to comport
with constitutional principle of equality
A.
INTRODUCTION
1.
The applicant as husband and the respondent as wife were married in
2008, in South Africa, and one child was born of the marriage.
The
child, a daughter, L, was born in 2009. A decree of divorce was
granted in this court on 12 May 2016. I shall refer to the
parties as
the father and the mother, and to the child as L.
2.
An order in terms of Rule 43, for maintenance in favour of the mother
and L, and for a contribution to costs
pendente lite,
was
handed down in this court on 6 August 2015.
3.
On 21 May 2015, an interim order was issued in this court, dealing
with the father’s contact rights with respect to L.
The context
of this application was a serious allegation of sexual abuse of L by
the father, having occurred in December 2014.
The allegation was
corroborated by the findings of the social worker Ms de Weerdt, who
had conducted interviews with L. Although
I understand that Ms de
Weerdt’s report is not necessarily decisive of this issue, it
struck me as
prima facie
sufficiently credible to have
rendered prudent interim protection such as issued in the interim
order of 21 May 2015. The main focus
of the 21 May 2015 interim order
was to have the question of the appropriateness of the father’s
access and parental rights
vis-à-vis L determined as
responsibly and conscientiously as possible, with the facilitation of
the Family Advocate and
Family Counsellor. For this purpose, the
father’s co-operation was of course important.
4.
The upshot was a final order issued on 10 June 2016, a month after
the divorce, in which essentially the father’s parental
rights
and responsibilities were suspended and he was interdicted from
contact with L.
5.
The divorce decree granted on 12 May 2016 was accompanied by
ancillary orders dividing the joint estate and extending the Rule
43
order pending the final determination of a series of prayers in the
particulars of claim relating to shared parental rights
and
responsibilities and maintenance of L and of the mother, the latter
for five years. These prayers were postponed
sine die.
6.
The mother was the plaintiff in the divorce action. She had sought
orders relating to shared parental rights and responsibilities.
These
are the prayers postponed in the decree. The particulars were issued
in November 2014, before the alleged incident of abuse.
The urgent
application that led to the final interdict and suspension of all
rights in June 2016 would, given the postponed and
still pending
prayers c-g in the divorce action, be revisited if and when these
prayers are set down for determination.
7.
The Rule 43 order, the divorce decree and the final interdict were
all granted by default – the father did not appear.
8.
This application is a combined rescission application brought by the
father to rescind the Rule 43 order (6 August 2015), the
divorce
decree and its ancillary orders (12 May 2016) and the final interdict
cutting off his parental rights and interdicting
him from contact
with L (10 June 2016). The application was launched in early March
2017.
9.
The father is resident in Switzerland. The mother launched a
counter-application for security for costs of this rescission
application
on the basis that the father was a
peregrinus
who
held no immovable property in South Africa. Security was ordered in
May 2018. This order spawned an interlocutory application
by the
mother to dismiss the rescission application when the security was
not forthcoming. The security was then produced. The
security
proceedings are partly the reason why this rescission application has
been on the roll for more than two years.
B.
THE RESCISSION APPLICATION AND ITS TARGETS
10.
The application is aimed at various court orders, the first more than
a year and a half prior to the launch of the application,
the second
and third some seven to eight months prior to its launch.
11.
There is no attempt in the father’s papers to separate out his
version in relation to each order and to explain precisely
why with
respect to each he failed to appear. The father’s version in
his founding papers is essentially that he had left
everything up to
attorney S to take care of, and attorney S had let him down. He also
invokes his own depression and treatment
in Switzerland and
difficulties communicating with his attorneys. Evidence corroborating
his medical predicament is noteworthy
for the extent to which it is
thin. One letter from a psychiatrist is produced to the effect that
this professional consulted the
father for depression. No details are
given of the date or dates of any sessions, treatment regimes, or the
extent to which this
affected the father’s ability to see to
his affairs.
12.
The father says he laid a complaint with the relevant Law Society
against attorney S, and produces the complaint and an acknowledgement
of receipt from the relevant Law Society. He tells of numerous emails
and telephone calls following up with his attorney. No documentary
evidence of this is produced as evidence in substantiation. We know
from his chronology that he consulted with attorney S about
the
interim urgent proceedings, and that the report from Ms de Weerdt was
discussed with him and there was a discussion about procuring
his own
report. Eventually attorney S withdrew for purposes of the urgent
application, and the father appointed his current attorneys
of
record. The father says he was unaware of the Rule 43 proceedings and
order, and unaware of the grant of the final interdict.
Although he
pleaded to the divorce action, he was not made aware of the trial
date.
13.
On 1 August 2016 the mother’s attorneys wrote to the father’s
new attorneys and advised them of the fact that a
decree of divorce
had been granted, and referred to defaults on the part of the father
in respect of his maintenance order.
14.
There was correspondence between the attorneys in which the father’s
attorneys sought documents and pleadings and these
were not
forthcoming. We are told that the reason for this was that
photocopying charges were not tendered, but these were also
not
demanded.
15.
Matters came to a head when the Swiss authorities provided copies of
the divorce decree, the Rule 43 order and the final interdict
to the
father on 11 October 2016, under cover of a letter in German. The
father, who is proficient in German, said this letter
first needed
translating before he could spring into action. This is credible in
relation to what the Swiss authorities might have
been telling him
about enforcement of the property and maintenance orders in
Switzerland, but not credible in relation to acting
upon the South
African court orders themselves, as their import was clear enough and
in English.
16.
There followed, according to the father, logistical difficulties in
consulting, a holiday season, and an aborted attempt to
get a draft
affidavit finalised, which led to the delay in the launch of the
application.
17.
The father’s basis for seeking rescission of all three orders
is the same: he did not know of them until 11 October 2016;
he
experienced logistical difficulties in acting expeditiously from that
date to 6 March 2017; he was depressed, and he had, until
he was
shocked by what the Swiss authorities revealed to him, left
everything up to attorney S to deal with, and thereafter to
his
current attorneys.
18.
For the first time in reply, the father adds another excuse for not
following up on his matters in South Africa. He says the
mother laid
a criminal complaint against him in relation to the alleged abuse of
L. He says that in May 2015, attorney S advised
him to remain outside
South Africa to avoid arrest, and that he was terrified of being
arrested. The allegation that attorney S
advised him to be a fugitive
from justice does not feature in the complaint to the Law Society
attached to the father’s papers.
19.
In response to the mother’s evidence of the father’s
travels around the world, including to sporting events such
as the
cricket World Cup in New Zealand, the father avers, in a manner that
tests credulity to the hilt, that these travels formed
part of his
therapy for his depression.
20.
The father states that the order in the decree of divorce separating
the joint estate was wrong in law, as the law of the marital
propriety regime was Swiss law, not South African law, and that at
Swiss law there would have been no joint estate to divide, because
the Swiss essentially operate a system similar to our accrual system
as the default in the absence of any contract regulating the
proprietary consequences of marriage. The father offers no
substantive basis for overturning the decree of divorce itself.
21.
The father offers no substantive grounds at all for overturning the
Rule 43 order or the final interdict. He relies exclusively
on the
contention that he was not afforded an opportunity of putting his
side of the story, without giving any indication whatsoever
of what
that story would be, save to deny the allegations of abuse.
22.
Although the application cites Rule 42, Mr
Chetty
, appearing
for the father, disavowed any case on Rule 42 before me and relied
exclusively on a common law rescission. There was
no suggestion of
procedural defects in relation to the procurement of any of the
orders in question.
C.
IS RESCISSION AN APPROPRIATE REMEDY FOR THE RULE 43 ORDER AND THE
INTERDICT?
23.
I consider first the appropriateness of the rescission remedy when it
comes to the Rule 43 order and the final interdict.
24.
The final interdict is an order dealing with the best interests of
the child. The father in fact invokes this as the main reason
the
court should come to his assistance. But this is a reason why
rescission is
prima facie
an inappropriate remedy, whatever
the rights and wrongs of the grant of the interdict in June 2016. If
there are good grounds for
the interdict to be discharged, for the
father to be granted parental rights, and for Ms de Weerdt’s
report to be questioned,
these would be available to the father to
advance in a new application to court. As for the Rule 43 order, if
the father believed
such an order should not continue, he could apply
for its variation or discharge. It is in any event by its nature an
interim order,
and it endures only until the postponed orders in the
divorce decree traversing the same ground are set down for
determination.
25.
It seems that rescission applications in relation to Rule 43 orders
have been entertained, and these orders therefore regarded
as
sufficiently final at least to be susceptible to rescission (see for
example
BT v GT
2016 JDR 1242 (ECP), Tshiki J). But it has
also been held on what appears to me the better authority in this
court (
Terblanche v Terblanche
1992 (1) SA 501
(W), not
following
Davids v Davids
1991 (4) SA 191
(W) in this regard),
that a Rule 43 maintenance order is a maintenance order granted in
terms of the Divorce Act 70 of 1979 (given
the definition in section
1 of “divorce action”), which would mean that such an
order is susceptible to variation and
discharge under
section 8(1)
of
the
Divorce Act. This
would therefore not require entry via
Rule
43(6)
, which requires changed circumstances to be proved
to allow
the summary and informal
Rule 43
process to be employed for a
variation
(my emphasis). Mr
Chetty
argued that rescission
of the
Rule 43
order was required, because without changed facts he
would not be able to assail the order under
Rule 43(6).
In my view,
this incorrectly regards the requirement of changed circumstances as
a basis for using
Rule 43
itself in varying a
Rule 43
order as
creating a general requirement of changed circumstances before a
court can revise or discharge a
Rule 43
order (see
Grauman v
Grauman
1984 (3) SA 477
(W) at 479).
26.
These are weighty reasons against entertaining the rescission of the
final interdict and the
Rule 43
order.
D.
NO SUBSTANTIVE CHALLENGE TO
RULE 43
AND INTERDICT ANYWAY
27.
Mr
Chetty
submitted that without a rescission, the father
would remain in default of arrears under the original order. That may
well be so.
28.
But it then becomes important to consider the complete absence of any
suggestion in the rescission application that the
Rule 43
order was
inappropriate on the merits. As with the order relating to his
parental rights, the father prefers raising hypothetical
opportunities of stating a case to actually putting forward at least
the bare bones of what the substance is for interfering with
the
orders. There is, accordingly, nothing put forward in the application
as to what would constitute the equivalent of a
bona fide
defence
in relation to the orders relating to maintenance and access or
parental rights. What does appear in the papers, instead,
is evidence
of the failure of the father to co-operate with the Family Advocate
in the inquiries subsequent to the interim order.
E.
RELIANCE ON THE ATTORNEY
29.
There is another serious difficulty in the application. It is often
difficult to decide where to draw the line between allowing
a
litigant to “hide behind his attorney’s default”
and unfairly visiting the defaults of the attorney on the
ignorant
litigant. Mr
Marais
, who appeared for the mother, urged me to
adopt the stern approach followed in
Salojee NNO v Minister of
Community Development
1965 (2) SA 135
(A) at 141B-E (which
related to condonation of non-compliance with court rules), and to
find fatally culpable the father’s
failure to follow up on his
South African matters after his attorney had on his version clearly
let him down on too many occasions.
I am mindful, however, of the
fact that the full court in
City of Tshwane Metropolitan
Municipality v Brooklyn Edge (Pty) Ltd & another
[2017] 1 All
SA 116
(GP) held reliance on
Salojee
as trumping some
prospects of success in the context of rescission to be a
“misdirection” (para 50).
30.
Yet the striking feature of the father’s version in relation to
his reliance on attorney S is that one is given no indication
at all
of what S was advising the father at various times in relation to the
status and progress of the matter and what was expected
to happen
next and when. There is a large degree of silence and an absence of
frankness on what exactly passed between attorney
S and the father on
what was expected in the proceedings, which fairly raises the
inference that the true facts in this regard
would not be favourable
or sympathetic to the father’s plight.
F.
PAPERS SUGGEST NO SERIOUS INTENTION TO PROSECUTE CASE ON
RULE 43
AND INTERDICT
31.
The weight of the papers is such as very strongly to suggest the
absence of any serious intention on the part of the father
to press
any true grounds, when given the opportunity, as to why the orders in
relation to maintenance and contact were in fact
wrong. It is this
element that lies at the heart of a
bona fide
rescission
application that is missing from the father’s application when
it comes to the
Rule 43
and the interdict orders. There is no sense
of a “
bona fide
presently held desire on the part of the
applicant for relief actually to defend the case in the event of the
judgment being rescinded”
(see
Mnandi Property Development
CC v Beimore Development CC
1999 (4) SA 462
(W) at 464 and
authorities cited there). Suffice it to say that a father who was
truly intent on proving to a court that he ought
to have contact with
his child for the child’s best interests would have acted very
differently in response to the orders
granted against him than the
father did in the instant case.
32.
The excuse of being a fugitive from justice comes close to clothing
the whole rescission application with the odour of
ex turpi causa
.
It can hardly be a factor used in favour of granting rescission.
33.
In all the circumstances, no sufficient cause has been shown to
render it just to rescind the
Rule 43
order or the final interdict
order.
G.
THE DIVORCE DECREE AND THE DIVISION ORDER
34.
In my view, the division order in the divorce decree stands on a
different footing.
35.
Unlike the case in relation to the interdict and the Rule 43 order,
the father puts up his substantive defence to the division
order: it
was wrong to have applied South African law to the proprietary
consequences of the marriage; Swiss law ought to have
been applied,
and had this been done, the Swiss version of the accrual system would
have applied, not the division of a joint estate
such as flows from a
marriage in community of property under South African law.
36.
In this regard, the matter takes a strange turn. The pleadings in the
divorce action did not form part of the papers, but were
provided to
me on request. The mother as plaintiff sought a division of the joint
estate and the father as defendant pleaded that
(a) the law of the
husband’s domicile at the time of the execution of the marriage
determined the marital property regime
(b) the father was domiciled
in Switzerland at the time of the marriage and (c) in terms of
Article 120B(1) of Part 2: Family Law
(Swiss Civil Code), Article 181
(A) of Part 2: Family Law (Swiss Civil Code) and Chapter 2 of Part 2:
Family Law (Swiss Civil Code),
in the absence of a contract the
statutory marital property regime of participation in acquired
property applies and the marital
property regime of participation in
acquired property comprises the property acquired during the marriage
and the individual property
of each spouse, making the marriage one
out of community of property with “community of acquests”
(I paraphrase the
pleaded case). In response, the mother denied that
the father was domiciled in Switzerland at the time of the marriage.
37.
In the rescission application, the father again asserts that Swiss
law was applicable. But he no longer bases this assertion
squarely or
very clearly and exclusively on the allegation that he was domiciled
in Switzerland at the date of marriage. Instead,
he invokes the fact
that the marriage was registered in Switzerland after being concluded
in South Africa, and that the father
is the defendant in the divorce
action and that he “is” (“am”) domiciled in
Switzerland, as the reasons
why Swiss law applies. Later in the
affidavit he invokes his Swiss permanent residency and citizenship as
the reasons why Swiss
law applies. He then embarks on what Mr
Marais
correctly submitted is an irrelevant foray into Swiss Private
International Law about which legal system applies when, before
referring
in a more paraphrased way than in the pleadings to the
marital property regime as applied in Switzerland, in the following
terms:
“
In terms of
Articles 196-200 of the Swiss Civil Code of 1907, as amended, if
there is no selection of a marital regime, the default
Swiss property
regime of “Shared Acquired Property” will apply. Under
that regime, the assets of each spouse owned
before the marriage is
not shared between them upon dissolution of the marriage. However,
the assets that either or both acquire
during the marriage is
required to be shared.”
38.
The allegations in the affidavit relating to domicile are vague
when it comes to the point in time for which the domicile is asserted
– they speak in the present tense and invoke other irrelevant
matters such as current citizenship and the registration of
the
marriage in Switzerland, not to mention the misguided invocation of
the principles of Swiss choice of law principles when a
South African
choice of law principle is at issue. These allegations do not seem to
be those of someone wishing simply and clearly
to assert and
substantiate that which was pleaded in the action, namely that he was
domiciled in Switzerland at the time of the
marriage.
39.
Yet the heavy preponderance of the allegations in the founding
affidavit that relate to domicile do strongly suggest a domicile
of
Switzerland at the time of marriage – especially the fact that
in paragraph 29 the father alleges that “
shortly after our
marriage in South Africa, the Respondent and I returned to my home in
Switzerland, which became our matrimonial
home and domicilium.”
40.
Mr
Marais
correctly pointed to the important distinction
between a current domicile of choice at the time of marriage and a
domicile of choice
acquired after the marriage, even if immediately
after the marriage, with reference to
Frankel’s Estate &
another v The Master
1950 (1) SA 220
(A). He submitted that the
references to present domicile at the time the affidavit was deposed
to did not necessarily translate
into evidence of what the domicile
was at the time of the marriage.
41.
This is true. But it is also true that
Frankel
is still the
law, despite cogent suggestions that a common law principle that
accords decisive weight to the husband’s domicile
appears to
conflict with the constitutional principle of equality (see for
example the LAWSA discussion of the principle espoused
in
Frankel
).
This means that, at the very least for the purposes of determining
the merits of the father’s
bona fide
defence to the
division order in a rescission application, if the papers reveal that
the father was probably domiciled in Switzerland
at the time of the
marriage, then it was incorrect to have applied South African law and
to have ordered a division of the joint
estate on that basis, without
developing the common law to alter the meaning of the
lex loci
domicilii
.
42.
The answering affidavit is also strange in this respect, as it does
not engage squarely with this issue either, and in fact
offers, in
passing, the strongest support for the father’s case with the
reference, undeniably in the context of the time
of the marriage, to
the father’s “primary residence in Switzerland”.
43.
Mr
Marais
submitted that it was up to the father to make out
his case clearly for the basis upon which he invoked Swiss law, and
the oblique
nature of his case in this regard means that the “case
to answer” was not one (as in the pleadings) of Swiss domicile
at the time of marriage, meaning one cannot fairly use the evidence
of his “home” at the time of marriage and his “primary
residence” at the time of marriage as establishing a case he
was not advancing in the affidavit.
44.
But the fact remains that the only evidence of the father’s
domicile at the time of the marriage in the papers overwhelmingly
establishes it as Swiss. Given the father’s invocation of his
Swiss domicile as at least one of the reasons for having Swiss
law
apply, one would have expected the mother, if there were a case to
support the denial in the pleadings that the father’s
domicile
was Swiss at the time of the marriage, to have at least said so in
the affidavit, and also to have offered some evidence
in support of
the denial if it were available. Instead, she offered evidence
supporting the father’s domicile being Swiss
at the time of the
marriage, and rendered it common cause that his “home”
and “primary residence” at the
time of the marriage was
Switzerland.
45.
I am of the view that no reasonably fair reading of the affidavits
can avoid the conclusion that, on the evidence they contain,
the
father was domiciled in Switzerland at the time of the marriage.
46.
This means that it seems that, subject to the possibility of
developing the common law to alter the rule in
Frankel
to have
it comply with the constitutional imperative of equality, the marital
property regime applicable was Swiss. This in turn
would mean, not
only that there is a
bona fide
defence with some prospects in
relation to the division order, but that the division order appears
on the face of it to be wrong,
given these common cause facts.
47.
Of course, this does depend on the further proposition that the Swiss
law is different from the South African in this regard.
48.
The affidavit sets out the position alleged to apply under Swiss law
in terms of the Civil Code. It refers to a system that
is essentially
similar in character to our accrual system, and therefore
significantly different from a pure community of property
regime.
49.
The answering affidavit took no issue with this statement of the
Swiss law at all. It merely denied that Swiss law applied.
It
appeared to do so on the mistaken premise that, as the marriage was
concluded in South Africa, and its subsequent registration
in
Switzerland was irrelevant, South African law applied.
50.
This leaves the statement as to Swiss law unchallenged.
51.
But Mr
Marais
states that the statement is inadmissible, as it
is not offered by an expert in Swiss law.
52.
Mr
Chetty
pointed out that there was no strike out application
or objection to the statement relating to the content of the relevant
Swiss
law, and the statement must be taken to stand.
53.
At issue is the principle that foreign law is a question of fact,
proved by experts, in the absence of evidence of which the
foreign
law is presumed to be the same as the South African law. But this is
subject to the important exception that a court can
take judicial
notice of foreign law to the extent that it is readily ascertainable
and certain. A good example of how far the Supreme
Court of Appeal
was willing to go to regard foreign law as readily ascertainable and
certain occurred in
Kwikspace Modular Buildings Ltd v Sabodala
Minig Co SARL and another
2010 (6) SA 477
(SCA). Here, a building
contract had a choice of law clause designating the law of the state
of Western Australia as the choice
of law for the contract. The
parties were content to apply the presumption that the law was the
same as South African law. The
Supreme Court of Appeal considered the
Australian law to be sufficiently ascertainable to allow for judicial
notice, despite the
fact that this required interpretation of the
import of a line of Australian precedent, which conflicted with
certain English authorities,
and a conclusion essentially on what the
Australian courts would have made of this.
54.
In the present case it is not necessary to be so bold. The father
invokes a marital property regime as being determined by the
Civil
Code. He tells us what the statute says, albeit paraphrased.
Prima
facie
verification of this proposition, that Swiss law applies a
kind of accrual system in the absence of contractual regulation to
the
contrary, should be relatively straightforward with reference to
the Code, or at least verification whether this appears to be so.
55.
The paraphrase quoted in the affidavit is a verbatim echo of a
passage in a publication available on the internet by one Jeremy
Marley in
International Family Law
, save that Marley refers to
Articles 196-220 and the affidavit refers to Articles 196-200. The
only other difference is that Marley
also provides the French term
for “Shared Acquired Property”, namely “participation
aux acquêts".
56.
I have considered an English translation of the Code freely available
on the web, but its wording was corrupted and its Article
numbering
appeared dubious. I then consulted two German versions of the Code
(
Zivilgesetzbuch
) available on the net, and confirmed their
Article numbers corresponded as to content. The more official one is
from a public governmental
site
Der Bundesrat; Das Portal der
Schweizer Regierung
.
57.
I am able to read the German and can verify to my satisfaction, with
reference to Articles 197 – 242, that a type of accrual
system
as described in the plea and paraphrased in the affidavit applies as
the default regime in the absence of any contractual
regulation to
the contrary. This sharing in the accrual is called
Errungenschaftsbeteiligung
.
58.
It may be that there are nuances to the application of this Code that
are not readily ascertainable by a mere consideration
of the statute
and that require elucidation by Swiss lawyers. But, at least for the
purposes of establishing a very strong case
on rescission for a
bona
fide
defence to the division order, the combination of the
uncontested averment in the affidavit as to the content of the
relevant Swiss
law and my own verification by reference to the cited
Code suffices to create a strong probability that the division order
ought
not to have been granted, again at least in the context of a
rescission.
59.
Is this enough to overcome the defects in the father’s attempts
to set up sufficient cause considered above?
60.
The case law tends in both directions on this. There are cases that
indicate that even a very strong defence cannot always compel
rescission, if the delay or explanation for default is so hopeless as
to render it unjust to upset the judgment merely because
it can be
shown to have been wrong. See for instance
Simpson v Beaton NO
2018 JDR 1252 (GJ) and the discussion in
Nkata v Firstrand
Bank Ltd
2014 (2) SA 412
(WCC); see also
Chetty v Law Society
Transvaal
1985 (2) SA 756
(A) at 768C:
“
This is not to
say that the stronger the prospects of success the more indulgently
will the Court regard the explanation of the
default. An
unsatisfactory and unacceptable explanation remains so, whatever the
prospects of success on the merits.”
61.
Against this there are cases that emphasise the extent to which
default is to be assessed as an index to the existence or absence
of
a true defence (
Mnandi Property Development CC v Beimore
Development CC
1999 (4) SA 462
(W)), or that focus on the extent
to which a strong defence can rescue a weak explanation:
“
unless, perhaps
the weak explanation is cancelled out by the defendant being able to
put up a bona fide defence which has not merely
some prospect, but a
good prospect of success” - Colyn v Tiger Food Industries Ltd
t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 9F.
62.
It has even been held that established wilful default does not
ipso
facto
preclude a finding of sufficient cause at common law to
rescind a judgment where the merits appear strong:
Harris v Absa
Bank Ltd t/a Volkskas
2006 (4) SA 527
(T), paras 8 and 9.
63.
Where does that leave the division order?
64.
In my view, the strong defence just manages to tip the scales in this
case. Unlike the situation with the Rule 43 and interdict
orders, the
father has not acted as obviously as someone with no real interest in
defending the matter at hand. The issue that
appears to present a
strong defence was an issue that he pleaded in the action. The
apathetic handling of the serious business
of the interim interdict
and the failure to co-operate with the Family Advocate that inhered
in the interdict scenario do not apply
to the division order. The
inappropriateness of seeking to rescind the order, instead of
approaching a court for a new order on
solid evidence, does not exist
in the case of the marital property regime. No steps appear to have
been taken that would render
overturning the division order
prejudicial in the same way as overturning the interdict. The father
can more readily be forgiven
for relying more heavily on his attorney
in relation to dealing with the property consequences of divorce than
in relation to dealing
with an order affecting his parental rights to
contact with his child.
65.
This means that there is sufficient cause in my view for rescinding
the division order in the divorce decree.
H.
SEVERABILITY
66.
An order dividing the joint estate in a marriage in community of
property tends to issue forth joined at the hip to the decree
of
divorce itself.
67.
Is the division order severable and capable of independent
rescission?
68.
No basis has been put forward for rescinding the decree of divorce
itself. There is no suggestion that there had not been irretrievable
breakdown and neither party wishes the marriage to be reinstated.
69.
I raised this issue with the parties and after some research on their
part was referred to some helpful cases where ancillary
property
orders (such as forfeitures) were separated from the question (and
ultimately decree) relating to irretrievable breakdown.
70.
Most in point was an article in the October 2018 edition of
De
Rebus
to which Mr
Chetty
referred me, namely “The
Rescission of Divorce Orders: A Note of Caution to the Courts”
by James D Lekhuleni. The author
refers to cases where ancillary
orders, such as the division order, were rescinded while leaving the
divorce decree itself in place,
especially where reinstatement of the
marriage would be highly undesirable – for example
M v M
(FB) 5710/2010 (15 September 2014) (Motlaung AJ) and
D v D
(GJ) A3079/15 (12 February 2016) (Wepener J and Crutchfield AJ).
71.
I take comfort in the precedent, especially from an appeal court of
this Division, for treating property orders in divorce decrees
as
severable from the divorce decrees themselves for the purposes of
rescission, as I regard it as appropriate, with sufficient
cause
existing, to rescind the division order but not the decree of
divorce.
I.
COSTS
72.
The father failed in two out of the three rescission applications and
most of the one remaining. But on the usual principles,
his success
in relation to the division order would carry costs of what was
brought and argued as one application.
73.
In the instant case, the conduct of the father, and especially his
reliance on his own fugitive status as a ground for his neglect
of
his South African litigation, is deserving of censure. Furthermore,
the decisive
bona fide
defence established in relation to the
division order was not squarely presented in the affidavit, but had
to be gleaned from the
common cause facts addressing a different
emphasis, combined with the law.
74.
It is also not a remote possibility that the father will once again
default in relation to the determination of the issue of
the
proprietary consequences of the divorce if this is set down and
becomes ready for trial. He now knows that property orders
may chase
him in Switzerland, so perhaps he might participate henceforth.
75.
In my view it would be appropriate to direct the costs of this
application to be costs in the divorce action, which still remains
pending and postponed in relation to prayers c-g of the particulars
of claim. The fact that the division order now falls away allows
that
issue to be tried together with the postponed issues (or to be
separated by way of Rule 33 (4) if thought convenient).
J.
ORDER
a. Paragraph 2 of the
order of this court granted on 12 May 2016 (coram Wright J) under
case number 2014/42472 is rescinded.
b. Save as set out above,
the application is dismissed.
c. The costs of the
application are directed to be in the cause of the postponed divorce
action 2014/42472.
__________________
F
SNYCKERS AJ
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
Date
of hearing
: 20
th
May 2019
Date
of judgment
: 23
rd
May 2019
For
Applicant
: Adv KJ Chetty
Instructed
by
: Pravda & Knowles, Durban
: Tel no:
(031)307-3982
For
Respondent
: Adv D Marais
Instructed
by
: Dippenaar-Nieuwoudt Specter, Johannesburg
: Tel no:
(011)775-5800