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[2019] ZAGPJHC 486
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S S v P H (2015/18402; 2014/42472) [2019] ZAGPJHC 486 (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