K.D.N v G.M.N (41019/2020) [2023] ZAGPJHC 220 (13 March 2023)

80 Reportability

Family Law

Brief Summary

Rescission of Judgment — Application for rescission — Requirements under Rule 42(1)(a) — Applicant sought to rescind a default judgment granted in divorce proceedings, claiming lack of notice and reconciliation with the Respondent — Court found that the Applicant was aware of the proceedings and chose not to attend — No evidence of procedural irregularities or valid grounds for rescission established — Application dismissed as the judgment was not erroneously granted.

Comprehensive Summary

Summary of Judgment

Introduction

This was an application in the High Court of South Africa, Gauteng Division, Johannesburg, for the rescission of a default divorce order. The proceedings were brought by the Defendant in the divorce action (the Applicant in the rescission application) against the Plaintiff in the divorce action (the Respondent in the rescission application).

A decree of divorce was granted on 4 June 2021 in the Applicant’s absence. The divorce order also regulated aspects relating to the primary care of the minor children, maintenance of the children, and spousal maintenance.

The matter had a protracted procedural history. After the divorce order was granted, the Applicant launched a first rescission application on 31 August 2021, which was later withdrawn on 24 May 2022 with a tender of wasted costs on a party-and-party scale. Thereafter, on 19 August 2022, the Applicant instituted a second rescission application, again seeking to rescind and set aside the divorce order, uplift the bar, and be permitted to file a plea.

The general subject-matter of the dispute concerned whether the default divorce order was “erroneously sought or erroneously granted” in the Applicant’s absence for purposes of Uniform Rule 42(1)(a), and whether alleged defects in service, reconciliation, and choice-of-law contentions justified rescission.

Material Facts

Summons in the divorce action was issued on 30 November 2020 and was personally served on the Defendant on 14 December 2020. The Defendant entered an appearance to defend on 4 January 2021, represented at that stage by Menzi Vilakazi Attorneys.

A notice of bar in terms of Uniform Rule 26 was served on 1 March 2021, calling upon the Defendant’s attorneys to file a plea within five days. Menzi Vilakazi Attorneys withdrew as attorneys of record on 2 March 2021.

A notice of set down for the divorce hearing on 4 June 2021 was emailed to the Defendant on 10 May 2021 at an email address associated with him and provided via his former attorneys. The Defendant did not attend court on 4 June 2021, and the divorce order was granted by default.

The Defendant later alleged that he did not file a plea because he was under the impression that he and the Plaintiff were reconciling, and that he had instructed his attorneys accordingly to do nothing further. The court treated this as disputed on the papers, noting that the Plaintiff filed a lengthy opposing affidavit denying reconciliation.

The Defendant also asserted that he did not receive the notice of set down and that service was not effected in accordance with the Rules after he had been placed under bar. The court treated this as contradicted by the record, including the Defendant’s own prior statement in the first rescission application and an email dated 26 August 2021 indicating receipt of the notice of set down.

In the second rescission application, the Defendant advanced a further contention that the court erred by granting a decree of divorce without considering the lex causae, which he asserted to be the law of the Democratic Republic of Congo. The court rejected this contention on the basis that the parties lived and worked in South Africa and had property in South Africa, and that the applicable rule was that the law of the country of domicile at the time of divorce applied.

Legal Issues

The central legal question was whether the divorce order fell to be rescinded under Uniform Rule 42(1)(a) as an order erroneously sought or erroneously granted in the absence of the Applicant.

This required the court to determine whether, at the time the divorce order was granted, there existed a fact unknown to the court which would have precluded the granting of the judgment, and which would have induced the court, had it been aware of that fact, not to grant the order. The dispute therefore concerned the application of legal standards under Rule 42(1)(a) to the established facts, including questions relating to service, procedural regularity, and the characterisation of the Applicant’s absence as either involuntary or elected.

A further legal issue concerned whether there was merit to the Applicant’s choice-of-law submission, namely whether the court was said to have erred by not applying the alleged lex causae of the Democratic Republic of Congo rather than South African law.

Court’s Reasoning

The court approached the matter as an application under Uniform Rule 42(1)(a), emphasising that rescission under this rule is directed at orders erroneously granted. It stated the general principle that a judgment is erroneously granted if, at the time of its issue, there existed a fact unknown to the court that would have precluded the granting of the judgment and would have induced the court, if aware of it, not to grant judgment.

On the question of reconciliation and the Applicant’s asserted instruction to his former attorneys, the court considered the absence of supporting material. It reasoned that if the Applicant had indeed instructed his attorneys to withdraw because the parties were reconciling, it would be common practice for attorneys to place that reason on record. The court noted that this did not occur and that there was no affidavit from Menzi Vilakazi Attorneys confirming the Applicant’s version. This formed part of the court’s overall assessment of the Applicant’s explanation for not filing a plea and for his non-participation in the litigation process.

On service of the notice of set down, the court rejected the contention that the notice had not been properly served. It relied on Uniform Rule 4A(1)(c) (as quoted and applied in the judgment) to conclude that service of subsequent documents by electronic mail was permissible to an address provided. It held that the notice of set down had been correctly served by email at an address provided through the Applicant’s own legal representatives and not denied by him as being his address. The court also referred to the Applicant’s earlier statement in the first rescission application that he did not read the email due to work commitments, contrasted with an email of 26 August 2021 indicating receipt of the notice. The court considered the later change in the Applicant’s stance, and the absence of a confirmatory affidavit from Ms Steele (who was implicated in the explanation), as undermining the Applicant’s position.

The court further reasoned that Rule 42(1)(a) is not designed to protect litigants who were afforded procedurally regular process and who elected to be absent. In this regard, the court relied on a passage from the Constitutional Court in Zuma v Secretary of the Judicial Commission of Inquiry addressing the purpose of Rule 42(1)(a), namely to protect parties whose presence was precluded, not those who opted to be absent. Applying this principle, the court found no procedural irregularity attributable to the Respondent and concluded that the Applicant knowingly chose not to attend court despite being aware of the set-down date.

In evaluating the procedural history, the court took into account that the Applicant launched the first rescission application more than two months after the divorce was finalised, later withdrew it after heads of argument were filed, and then brought a fresh rescission application. The court characterised this sequence as delaying tactics that impeded execution of the judgment.

The court also considered that the Applicant did not set out what his defence would be if rescission were granted, and noted that he did not file a pro forma plea. It referred to a prior settlement proposal and the Respondent’s rejection thereof, including an allegation that the Applicant refused to disclose documentation relating to assets in the joint estate. The court further noted that there had not been an allegation by the Applicant that the marriage had not broken down.

On the lex causae contention, the court held that the argument lacked merit. It stated that the parties lived and were employed in South Africa and had property in South Africa, and that a known rule of common international law was that the law of the country in which the parties are domiciled at the time of divorce is applied. The court added that the consequences of the divorce had been postponed, and that this was the only remaining aspect to be dealt with without reversing what had already been granted.

On the totality of these considerations, the court held that the Applicant did not satisfy the requirements for rescission under Rule 42(1)(a), nor under the common law, and that the application fell to be dismissed.

Outcome and Relief

The court dismissed the rescission application. It ordered the Applicant to pay the Respondent’s taxed party-and-party costs.

The order, as recorded, stated that the application for rescission of the judgment “dated 4 January 2021” by Maier-Frawley J was dismissed, while the body of the judgment addressed rescission of the default divorce order granted on 4 June 2021.

Cases Cited

Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State [2021] ZACC 28

Legislation Cited

Uniform Rules of Court (South Africa)

Rules of Court Cited

Uniform Rule 42(1)(a)

Uniform Rule 26

Uniform Rule 4A(1)(c)

Held

The court held that the Applicant failed to establish that the default divorce order was erroneously sought or erroneously granted in his absence as contemplated by Uniform Rule 42(1)(a). The court found that service of the notice of set down by email was procedurally proper under Rule 4A, that the Applicant was aware of the hearing date and elected not to attend, and that Rule 42(1)(a) does not assist litigants who absent themselves by choice after procedurally regular process. The lex causae contention was rejected, and the rescission application was dismissed with a costs order against the Applicant on the taxed party-and-party scale.

LEGAL PRINCIPLES

Uniform Rule 42(1)(a) permits rescission or variation of an order erroneously sought or erroneously granted in the absence of a party affected. A judgment is treated as erroneously granted where, at the time it was issued, there existed a fact unknown to the court that would have precluded the granting of the judgment and would have induced the court, if aware, not to grant it.

The protective scope of Rule 42(1)(a) is directed at litigants whose presence was precluded, and not at litigants who received procedurally regular process but elected to be absent. Where the absence is a matter of choice rather than procedural exclusion, Rule 42(1)(a) does not provide a ground for rescission merely because the litigant later wishes to reopen the matter.

Service of subsequent documents and notices may be effected by electronic mail to an address provided by a party in the proceedings, in accordance with Uniform Rule 4A (as applied in the judgment). Where such service is properly effected and the party’s later denial is contradicted by contemporaneous communications or unsupported by confirmatory evidence, the court may reject the contention that the order was granted in procedural error.

In relation to the Applicant’s choice-of-law argument, the court applied the proposition that the law of the country where the parties are domiciled at the time of the divorce is applicable, and rejected the contention that the divorce decree was erroneously granted for failure to apply foreign law in circumstances where the parties lived and worked in South Africa and had property there.