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[2011] ZAGPPHC 155
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R.M v M.M (52110/2007) [2011] ZAGPPHC 155 (27 May 2011)
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NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
Case No.: 52110/2007
DATE:27/05/2011
In
the matter between:
M:
R
...............................................................................................................................
Applicant
and
M:
M
.........................................................................................................................
Respondent
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The applicant is seeking the rescission of the divorce decree plus
ancillary relief granted on 21 May 2010 by default, alternatively,
the varying of the orders granted.
[2]
On 21 May 2010 Judge Webster granted a decree of divorce in favour of
the respondent in the absence of the applicant. The decree
was
coupled with orders that the applicant forfeits the benefits of the
marriage in community of property, that the applicant should
vacate
the common home by 30
th
June 2010; and that applicant be
granted custody of the minor child subject to the respondent being
allowed access to the minor
child.
[3]
The applicant and the respondent were married for approximately four
years. The marriage was in community of property. In May
2007 the
respondent instituted divorce proceedings, culminating inn the order
granted on 21 May 2010.
[4]
The divorce hearing, in which the applicant had also instituted a
counterclaim was scheduled for hearing on 20 May 2010. In
her
counterclaim the applicant was seeking a forfeiture of the benefits
of the marriage in community of property However, during
the hearing
the applicant and her legal representatives had problems, leading to
the legal representatives (counsel and the instructing
attorney)
withdrawing as counsel and applicant's attorney of record. The judge
allowed the matter to stand down until after lunch
to enable the
applicant to secure legal representation. After lunch the applicant
was not in court leading to the matter being
stood down until the
following morning. On 21 May 2010 the applicant made no appearance.
However, a medical certificate from the
applicant was handed to the
judge who then proceeded with the trial in the absence of the
applicant and/or her legal representative.
The court proceeded to
grant a divorce decree together with ancillary orders by default.
[5]
This application can only be entertained in terms of Rule 42(l)(a) of
the Rules of Court or in terms of the common law. Rule
42(l)(a)
provides for the rescision of a final order or judgment granted in
the absence of a party who has an interest in it. The
applicant is
not required to show good cause. Under the common law an applicant
for rescission of an order or a judgment the applicant
also needs to
establish good cause which is a reasonable and acceptable explanation
for the default and that on the merits, he
has a bona fide defence
which, prima facie, carries some prospect of success. Grant v
Plumbers (Pty) Ltd
1949 (2) SA 470
(O).
[6]
It is common cause that:
6.1 on 20 May 2011 there
was a fall-out between the applicant and her counsel leading to the
withdrawal of counsel;
6.2
the applicant did not return to court after the matter stood down to
allow her to seek alternative legal representation;
6.3
on 21 May 2010, when the matter resumed the applicant was not in
court;
6.4
a medical certificate from Dr Janina Maydell was handed to the court.
The medical certificate indicates that the applicant had
attended the
offices of Dr Maydell and had been diagnosed with severe migraine.
6.5
the applicant was informed via sms message that the trial action
would be proceeding at l0h00 on 21 May 2010.
[7]
It was submitted on behalf of the applicant that the order was
erroneously granted in her absence in that the court was aware
that
she could not attend court as a result of the migraine she was
suffering from. Further that the applicant had done everything
within
her powers to notify the court of her inability to attend court and
was therefore not in wilful default. With regard to
the applicant's
absence from court on the afternoon of the 20
th
May she
gives an explanation in her founding papers that after her legal
representatives had withdrawn, she was traumatised, ending
in her
seeking medical attention. That she did go to a doctor is not in
dispute.
[8]
The respondent submitted that this application by the applicant is an
attempt to further delay the finalisation of the divorce
proceedings
in view of the fact that summons was issued sometime during 2007.
[9]
What the respondent fails to appreciate is that these proceedings are
highly contested particularly in view that both parties
had
originally sought forfeiture of benefits orders against each other.
There is a need for evidence to be led. What is not in
dispute is
that both parties are in agreement that their marriage has
irretrievably broken down and a decree of divorce should
be granted.
[10]
Taking into consideration the facts and the circumstances of the
case, I am of the view that the applicant is entitled with
regard to
the respondents parayer that she forfeit the benefits of the marriage
in community of property. Like any other citizen
she is entitled to
have her dispute resolved in public. Judgment depriving her, rightly
or wrongly, of her rights should not have
been taken in her absence,
particularly as she was sick and unable to come to court and had
taken steps to inform the court of
her inability to be in court. A
postponement coupled with a cost order would have been fair. Further,
the fact that her legal representative
had withdrawn during the trial
mitigates towards good cause being shown.
[11]
In the premises, I am of the view that the order and ancillary relief
granted on the 21 May 2010 in the absence of the applicant
was
erroneously granted. However, in view of the fact that the parties
are in agreement that their marriage should be dissolved,
I do not
think it is necessary to rescind that part of the order. Secondly, I
am also of the view that, in the light of the alternative
prayer in
the applicant's notice of motion, the orders relating to that the
parties' parental rights and responsibilities; rights
of contact and
access and the primary residence of the minor child (paragraphs 8-10
of the order) should remain as they are.
[12]
Accordingly the following order is made:
1.
That the order granted on 21 May 2010 is in part set aside save for
the orders in paragraphs 1 and 8-10 of the order.
2.
That the applicant is directed to take the necessary steps to set the
matter down by no later than the 30 June 2011.
3.
That the office of the Registrar is directed to give prefenrence to
this matter in setting it down on an appropriate date.
NP
MNGQIBISA-THUSI
Judge
of the North Gauteng High Court