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[2016] ZAECPEHC 28
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B.L.T v G.V.T (Tshiki J) [2016] ZAECPEHC 28 (23 June 2016)
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 3248/2014
Date
heard: 12
th
May 2016
Date
delivered: 23
rd
June 2016
In
the matter between:
B.
L. T.
Plaintiff
vs
G.
V. T.
Defendant
Mr Nepgen
- For
plaintiff/respondent in the
rescission application
Ms Veldsman
- For
defendant/applicant in the rescission application
JUDGMENT
TSHIKI
J:
[1] In the current
proceedings being the application for rescission of judgment of the
order in Rule 43 proceedings, the parties
herein will be referred to
as the plaintiff and the defendant respectively. For clarity
purposes, the plaintiff is B. L.
T. and the defendant is Gary Vaughn
T.n the husband of the plaintiff.
[2]
On the 26th September 2014 the plaintiff approached this
Court
for an application in terms of which she,
inter alia
, sought
the following relief:
[2.1]
for maintenance
pendente lite
in the amount of R22 750.00
per month;
[2.2]
a contribution towards her legal costs in an amount of R50 196.00.
[3]
The application was opposed by the defendant, as a result the
application was argued in the above honourable Court on
the 4
th
November 2014 and judgment was reserved.
[4]
Ms Veldsman
for the defendant approached her client’s
case by applying for rescission of judgment which judgment was
granted by the Court
on the 18
th
November 2014.
[4.1]
On the 18
th
November 2014 this Court issued an order in
favour of the plaintiff which incorporated the following terms:
[4.2]
defendant was ordered to contribute towards the plaintiff’s
costs in the sum of R10 000.00;
[4.3]
he was further ordered to contribute to the maintenance of the
plaintiff
pendente
lite
in
an amount of R8 000.00 per month with effect from the 1
st
December 2014 and thereafter on or before the third day of each
consecutive month.
[5]
The matter was again set down for argument for various issues, the
main issue being the variation of and/or payment of maintenance
pendente
lite
.
The defendant resorted to filing an application for rescission of
default judgment which was set down on several dates dating
from the
7
th
October 2015 until it was argued before me on the 12
th
May 2016 when judgment was reserved.
[6]
On the date of argument,
Ms
Veldsman
appeared for the defendant in the divorce matter as well as the
application for rescission of judgment.
Mr
Nepgen
represented the plaintiff. However, on the day of the argument
of rescission of judgment being the 12
th
May 2016 we were only able to argue the application for rescission of
judgment. When we left the Court room it was already
after
17h00, the Court having listened to argument which lasted for about
three hours.
[7]
In the current proceedings, the plaintiff is requesting that this
Court should set aside the whole order relating to the maintenance
for the plaintiff, alternatively only part of the order in the amount
of R5 000.00 relating to the maintenance that the plaintiff
is
supposed to pay to the defendant in terms of the Rule 43 order.
The Rule 43 order only became effective from the 1
st
December 2014.
[8]
According to the plaintiff in the affidavit she deposed to on the
22
nd
September 2014 she alleged that she sold her business known as Walmer
Gardens to one
Kirsty
Riley
and
Damian
in the amount of R75 000.00, the amount that was to be
paid to the seller was a sum of R5 000.00 per month.
She
also contended in the Rule 43 application that it was the only amount
at her disposal which was available to maintain herself
pending the
outcome of the divorce action. She also mentioned that she has
a bric-a-brac dressmaking business but at the
time of the deposing to
the Rule 43 application that business was not very lucrative.
She also listed her expenses.
Notwithstanding her contention
the Court ordered the plaintiff to pay R8 000.00 per month
effective from the 1
st
December 2015. Later and after their case was postponed in
February 2015 and in March 2015
Kirsty
Riley
contacted the respondent,
Mr
T.
,
and informed him that she did not buy the business for R75 000.00
but that she and her business partner bought the business
for
R150 000.00. She also informed the defendant that the
monthly payments of the business were R10 000.00 and
not
R5 000.00 per month as earlier alleged by her in the Rule 43
application proceedings.
[9]
Mrs
Riley
also informed the defendant that the plaintiff refuses to disclose
the full extent of the sale of the business to the defendant.
[10]
Mrs
Riley
also informed the Court that the reason he wanted to disclose the
full extent of the sale of the business to the defendant is that
the
plaintiff refused to disclose the purchase price of R150 000.00
to the defendant. According to
Mrs
Riley
the first agreement would be R75 000.00 payable in instalments
of R5 000.00 and the second agreement will also be an
agreement
for the sale of the business of R75 000.00 and was also payable
in instalments of R5 000.00.
Mrs
Riley
also informed the defendant in March 2015 that the R5 000.00
payable towards the R75 000.00 was paid into the plaintiff’s
bank account so as to get the legitimacy to the sale of the
plaintiff. However, they then decided that the remaining
R5 000.00
in terms of the second agreement would be paid in cash
to the plaintiff “without paper trail”.
[11]
The salient clauses of the agreement between the plaintiff and
Kirsty
Riley
are confirmed by plaintiff’s daughter in the
following terms as follows:
“
During or
about June/July 2014, my mother indicated that she wished to dispose
of the property, referring to Walmer Gardens.
She had an offer
on the table for R150 000.00 from the owner of Salt Restaurant
in Richmond Hill, Port Elizabeth.”
…
.
Paragraph 6
“
My business
partner, Damian van der Hogen, and I decided that we wished to
purchase the business and would match the offer of R150 000.00.
As we did not have the full purchase price upfront, we requested to
settle the purchase price in instalments of R10 000.00
per
month”.
Paragraph 7
“
My mother
accepted the offer but requested that we conclude two sale agreements
of R75 000.00 each, the one of which she would
produce during
the divorce proceedings and the other she would conceal. I was
specifically advised by my mother that she
intended concealing the
second deed of sale, as she did not want to share more than she
needed to with Gary T.n in terms of the
division of the joint
estate. In addition, my mother wanted to create the impression
that the purchase price was R75 000.00
payable at R5 000.00
per month thereby showing a lesser income than it was in reality.
…
.
However, when my mother moved to
Johannesburg, this became problematic and the agreement was that we
would pay R10 000.00 per
month into her banking account.
We were told by my mother that if it was ever a question why she was
now receiving R10 000.00
instead of R5 000.00 we had to say
that we were attempting to accelerate the payment of the purchase
price of R75 000.00.
…
The truth of the
matter is that we had paid R10 000.00 from August 2014 to
February 2015 and R5 000.00 for the month of
July 2014.
The total amount is thus R65 000.00. We still owe my
mother R85 000.00 payable at R10 000.00
per month.”
(See also pages 46-49 of the record).
[12]
The plaintiff annexed to the papers a copy of the agreement “BT2”
which is a copy of the agreement entered into
between the plaintiff
and Cork Wine (Pty) Ltd who was duly represented by plaintiff’s
daughter and her business partner,
known as
Damian
van der Hogen
.
The plaintiff, even at that stage was still adamant that her only
income at the time was R5 000.00 per month from the
sale of her
business. She maintained this as the truth, even on the date of
argument of the application. On the 22
nd
March 2015 the defendant was contacted by
Kirsty
Riley
who advised him that the plaintiff had in fact purchased the
plaintiff’s business at a purchase price of R150 000.00
and not R75 000.00 as it is indicated by the plaintiff in her
affidavit in the Rule 43 application. My close observation of
the two
agreements they appear to me to be identical. Their wording
shows clearly that they are agreements between the sole
entity and
between the same purchaser and the same seller. In other words,
their wording exhibits a conclusion that they
are agreements for
exactly the same price the only difference being that of the word
“second agreement” which is underlined.
Mrs
Riley
says that those contracts were concluded and her mother is in
possession of the other signed copy and she has both signed copies.
In other words, those two agreements bind her and
Van
der Hogen
to
purchase the business for R150 000.00. In my view, it
cannot be true that they were binding because if they were signed
you
would have two agreements for the identical thing which is a business
for the amount of R75 000.00.
[13]
Therefore, according to the defendant it is abundantly clear that the
plaintiff had intentionally misled this Court with regards
to her
financial position when the Rule 43 application was drafted, deposed
to and subsequently argued. According to the
defendant this
conduct constitutes fraud.
[14]
The plaintiff has now realised that she was supposed to proceed in
these proceedings by way of a Rule 30 notice and thereafter
request a
rescission of judgment in terms of the Rule 43 order in accordance
with the uniform rules of this Court or under common
law.
[15]
In response to the defendant’s argument,
Mr
Nepgen
for
the plaintiff decided to catch the bull by the horns. In doing
so, he correctly criticised the defendant’s delay
in its
application for rescission of judgment. The order that the
plaintiff sought to rescind by way of its application and
in terms of
the common law on the 12
th
May 2016 was granted on the 18
th
November 2014, more than two years after it was granted. This
was an order granted against the defendant for the maintenance
of
plaintiff
pendente
lite.
[16]
The order was in the amount of R8 000.00 against the defendant
and was granted in the following terms:
[16.1] The
defendant (applicant herein) shall pay the applicant (the plaintiff)
maintenance in the amount of R8 000.00
pendente lite
,
commencing from the 1
st
December 2014 and thereafter on or
before the third day of each successive month.
[16.2] The
defendant shall retain the plaintiff on his medical aid scheme
pendente lite
and is to bear all costs in respect thereof.
[16.3] The
defendant shall make a contribution towards the applicant’s
costs in the amount of R10 000.00.
[16.4]
The costs of the application are to be costs in the divorce action.
[17]
The general well established rule is that once a Court has duly
pronounced a final judgment or order, it has itself no authority
to
correct, alter or supplement it and in that case the final judgment
becomes
functus
officio
.
It follows, therefore, that the Rule 43 order itself is an
interlocutory order which has final definitive effect in the
pending
matrimonial proceedings, even though it might be interlocutory in the
wide sense. In other words, once that order
is made and the
decision is taken it is still
res
judicata.
The
inherent jurisdiction of the High Courts does not include the right
to interfere with the principle of finality of judgments,
other than
in the circumstances specifically provided for in the rules or the
common law (
De
Wet v Western Bank Ltd
1977
(4) SA 770T
at 780H-781A; see also
Swart
v Absa Bank Ltd
2009
(5) SA 219
(C) at 221B-D and 223A-B).
[18] In
Swadif
(Pty) Ltd v Dyke NO
1978 (1) SA 928
(AD) at 939 D-E
Trengove AJA has this to say about rescission of a judgment at common
law:
“
However, I
do not consider it necessary to enter upon a discussion of the
grounds upon which the rescission of a judgment may be
sought at
common law because, whatever the grounds may be, it is abundantly
clear that at common law any cause of action, which
is relied on as a
ground for setting aside a final judgment, must have existed at the
date of the final judgment. There must
be some causal
connection between the circumstances which give rise to the claim for
rescission and the judgment ...”
[19]
It follows from what has been stated above that the negligence of the
defendant will always be regarded as relevant and may,
depending on
the circumstances of the case that an applicant who was negligent and
the author of his or her problem will not succeed
with an application
to have the judgment set aside. (
Bakoven
Ltd v GT Howes (Pty) Ltd
1992
(2) SA 466
(ECD) at A-B).
[20]
What is important though is that the purpose of the rule is to
correct expeditiously an obviously wrong judgment or order (
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471E-F.) The Court will not hesitate to
dismiss the application for a variation of an order of Court if the
application
for variation has been brought to Court after the lapse
of a reasonable time (
Firstrand
National Bank of Southern Africa Ltd v Van Rensburg NO in re First
National Bank of Southern Africa Ltd v Jurgens
1994
(1) SA 677
(T) at 681B-G). It should also be noted that the
general well established rule is that once a Court has duly
pronounced the
final judgment order, it has itself no authority to
correct, alter or supplement such order which becomes
functus
officio
(
Firestone
SA (Pty) Ltd V Gentiruco AG
1977
(4) SA 298
(A) at 306F). In the present case, the application
for rescission of judgment was, although known for some time since
2014
was only argued on the 12
th
May 2016. In my view, there is no acceptable explanation for
defendant’s failure to apply for rescission of judgment
within
a reasonable time. When the application for rescission of
judgment was argued more than two years had lapsed and no
doubt the
parties’ circumstances would have changed and therefore, the
defendant’s application even for that reason
alone should not
have been entertained.
[21]
Rule 43 is designed to regulate the procedure to be followed in
applications for ancillary relief of an interim nature particularly
in matrimonial matters. The rational behind the rule is that
applications of the kind contemplated by the rules should be
dealt
with as inexpensively and expeditiously as possible. Prolixity
in averments and the unnecessary proliferation of papers
including
the affidavits should be avoided. Rule 43 deals only with
pending matrimonial disputes and has no application to
any
matrimonial dispute which has come to an end by a final
divorce.
[22]
In this case, the defendant seeks an order of this Court to rescind
or vary its own order which came as a result of alleged
fraud on the
part of the plaintiff in circumstances where the latter had
deliberately misrepresented facts to the Court in the
Rule 43
application. The application for condonation has to be brought
within a reasonable time and without undue delay.
In this case
the defendant’s case has been brought after a long time and
after an undue delay and was granted on the 18
th
November
2014 long after she had become aware of the existence of the
judgment. In order to succeed on a claim that a judgment
be set
aside on the grounds of fraud as
Mr Nepgen
has also submitted,
it is necessary for the applicant to allege and prove the
following:
[22.1] that the
successful litigant was a party to the fraud;
[22.2] that the
evidence was in fact incorrect;
[22.3] that it was
made fraudulently and with intent to mislead; and
[22.4] that it
diverged to such an extent from the true facts that the Court would,
if the true facts had been placed before
Court, have given a judgment
other than that which it was induced by the incorrect evidence to
give;
[22.5]
but for the fraud, the Court would not have granted the judgment.
[23]
It follows that on the probabilities the plaintiff’s version
must be accepted and therefore the defendant has failed
to prove on a
balance of probabilities that:
[23.1] the
plaintiff was a party to any crime;
[23.2] that the
evidence presented in the Rule 43 application was in fact incorrect;
[23.3] that the
evidence was given fraudulently or with intent to mislead;
[23.4]
that there was evidence which diverged to any extent from the true
facts so as to conclude that the true facts had
been placed before
Court, or have given judgment other than that which the Court was
induced by incorrect evidence.
[24]
In my view, the evidence placed before this court does not
conclusively satisfy this Court that the evidence adduced on behalf
of the plaintiff was tainted with fraud.
Ms
Veldsman
for the defendant during her argument tried to make a big case about
the various amounts of money for which the property in issue
was
purchased. The deponents in the affidavits have in fact
clarified the reason why there were different amounts of R150 000.00
as against R75 000.00. In my view, even if the defendant
holds the view that there are different amounts which indicate
the
various purchase prices, that does not conclusively prove that the
deponents in the various affidavits have told lies.
In any
event, the defendant has elected to proceed by way of argument and
not called
viva
voce
evidence
which would have given the parties an opportunity to cross-examine
the various witnesses. The proceedings on the
12
th
May 2016 took more than three hours yet the matter has been on the
roll for more than two years. On page 191 of the papers
it is
stated that originally the plaintiff wanted R150 000.00 which
she says in her own affidavit was the amount she wanted
for the
business. Apparently,
Mrs
Riley
agreed to put this in writing and she was subsequently advised she
could only afford R75 000.00 for the business and on those
terms
the contract was concluded. In my view, on the facts there is
no conclusive evidence that the plaintiff had committed
fraud in the
circumstances of this case.
[25]
In the result, I am of the view that the application should be
dismissed with costs.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the plaintiff/respondent
: Adv
Nepgen
Instructed
by
: De
Villiers & Partners
Port
Elizabeth
Ref:
Mr C de Villiers/ss
For
the defendant/applicant
:
Adv
Veldsman
Instructed
by
: Joyzel
L Obbes
Port
Elizabeth
Ref:
Jl Obbes/hr