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[2022] ZAFSHC 129
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T.A.M v M.F.M (1275/2021) [2022] ZAFSHC 129 (12 May 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 1275/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
12
May 2022
T[....]
A[....] M[....]
Applicant
and
M[....]2
F[....] M[....]
Respondent
HEARD
ON:
21 APRIL 2022
CORAM:
AFRICA AJ
DELIVERED
ON
: This judgment was
handed down electronically by circulation to the parties' legal
representatives by email. The date and
time for hand-down is deemed
to be have been at 11h00 on 12 May 2022.
JUDGMENT
INTRODUCTION
[1]
This is an opposed application for the rescission of a divorce order,
granted on 20 May 2021, by default, in favour of the respondent.
[2]
In support of the application for rescission of judgment, the
applicant,
under oath deposed to and filed his founding affidavit,
with the respondent, filing her opposing affidavit on 24 February
2022.
The replying affidavit was filed on 10 March 2022. It is common
cause that the divorce summons, was personally served on the
Applicant
on 14 April 2021.
BACKGROUND
[3]
It is common cause that the parties, were married in community of
property
on 04 December 2012, and no children was born of the
marriage. The applicant is employed within the South African Polices
Services
for the past 29 years and the respondent was unemployed at
the time when the summons was issued. The marriage appeared to be
marred
with acrimony, prompting the respondent to institute divorce
proceedings and even to leave the common home. After the summons was
so received by the applicant, the parties agreed to make another
attempt, at salvaging the marriage.
[4]
On 7 May 2021, the respondent moved back into the communal home in an
effort to work through their problems, which included marriage
counselling, at some stage. Be that as it may, it appears that there
was an agreement between the parties, that the divorce proceedings,
at that juncture, will be kept in abeyance.
[5]
Consequently, it would appear that the applicant, as a result of
these
reconciliation attempts, did not take any further steps to
defend the matter. Applicant submits that he had no reason to believe
that the respondent would proceed with the divorce action, behind his
back. Despite their best efforts, the animosity between the
parties
continued and on 17 May 2021, respondent told her attorney to proceed
with the divorce action, because according to her,
the applicant told
her to do so. On 19 May 2021, she moved out of the communal home,
having taken only some of her belongings.
The decree of divorce, was
subsequently granted on 20 May 2021. In opposing the rescission
application, respondent submit that
the applicant is in wilful
default, firstly, because he knew that their reconciliation attempts
have failed; secondly, because
the applicant told her to proceed with
the divorce and lastly, because the applicant was indifferent about
the consequences of
his failure to take any further steps to defend
this matter.
[6]
It is common cause that the parties still shared the communal home at
the time that the decree of divorce was granted and that the
respondent only left the common home, during June 2021. So too, is
it
common cause, that the applicant was only informed on Sunday, 20 June
2021, of the decree of divorce, by the respondent. In
response
hereto, the applicant "laughed it off' whereupon the respondent
invited him to her home, in order for her to show
him an actual copy
of the decree of divorce. It is common cause that the applicant did
not receive any notice that the unopposed
divorce action would
proceed on 20 May 2021.
[7]
Applicant submits that he would have defended the divorce action, had
he known about the respondent's intentions because: (a) they were
only married for 17 months; (b) respondent is claiming division
of
the joint estate, which includes half of his pension fund, (c)
respondent is claiming spousal maintenance in the amount of R5000
per
month, which applicant allege, he is unable to afford. The applicant
approached his attorneys on the 30
th
of June 2021 to obtain advice with regard to the rescission of the
divorce order. On 1 July 2021, a letter was addressed to the
respondent's attorney explaining that the applicant did not receive
notice of the divorce and wish to rescind same. This was followed
by
a series of correspondence between the respective legal
representatives, which appears to have died a natural death after 22
July 2021.
[8]
The applicant brings this application for rescission, in terms the
common
law and submit that there was no
ma/a
fides
in bringing this application
in January 2022, nearly 7 months after he obtained knowledge, of the
default order. The applicant avers
in his replying affidavit, that he
was awaiting the valuation of the property to enable him to show this
court the value of the
estate and why it will be fair and just for
the respondent to forfeit the benefits of the marriage in community
of property, under
these circumstances. The applicant further avers
that the respondent has misled him in believing that she will
withdraw the summons
which she never did and then went behind his
back to obtain this divorce order, without notice and in his absence.
[9]
The Respondent raised two points
in
Limine
in that:
1.
In Casu,
the
applicant has been ordered to pay maintenance in the amount of
R5000.00 per month, but to date being aware of the said court
order,
have failed to make a single payment to respondent. In the premise,
the Respondent requests this court not to hear this
application,
until the defect is cured, by paying the aforementioned amount due.
2.
The late filing of the application; at
common law, should have been brought within a "reasonable time".
THE
APPLICIBLE LEGAL PRINCIPLES
[10]
"In
terms of the common law, the court has the power to rescind a
judgment obtained on default of appearance provided that
sufficient
cause for the rescission has been shown. The term 'sufficient cause'
defies precise or comprehensive definition, but
it is clear that in
principle and in the long-standing practice of our courts, two
essential elements are: (1) that the party seeking
relief must
present a reasonable explanation for the default, and (2) that on the
merits that party has a
bona
fide
defence,
which,
prima
facie,
carries
some prospect or probability of success"
[1]
(my emphasis)
Proof
of these requirements is taken as showing that there is sufficient
cause for an order to be rescinded. A failure to meet one
of them may
result in refusal of the request to rescind.
[2]
[11]
The
respondent in his heads of argument, draws this courts attention to
the fact that Rule 31(2)(b) of the Uniform Rules prescribes,
that a
rescission application must be issued within a
period
of 20 days
after
the applicant obtained knowledge of the default
judgment
and
in
Government
of
Islamic
Republic
of
Iran v Berends
[3]
it
was held that the underlying purpose of the aforementioned rule was
to ensure that a rescission application is brought without
any delay
and this is achieved once the application is filed with the registrar
or served on the respondent.
[12]
Conceding that the common law does not contain a similar provision,
counsel for the respondent
argues that logic will dictate that what
constitutes a reasonable period depends upon the facts of a
particular case, but as a
point of departure, seven months can never
be considered as reasonable, when 20 days, in terms of Rule 31(2)(b),
is used as a yardstick.
[13]
Indeed,
the legislature has deliberately carved out specific grounds for a
rescission, because the notion of rescinding court orders,
constitutes an affront to the general rule, that orders, are final.
This, it was emphasized
[4]
,
is
important because if orders of the court are too readily set aside,
the administration of justice would be compromised by chaos.
The
inherent jurisdiction of the High Court does not include the right to
interfere with the principle of finality of judgments,
other than in
circumstances specifically provided for in the Rules or at common
law.
[5]
The
courts should guard not to depart from the cardinal tenets. of the
Rule of Law and ill-fated applications for rescissions can
find no
panacea within the ambit of the Rules or at common law.
[14]
It
is argued
[6]
on behalf of the
respondent that seven months cannot be considered as reasonable
period, and therefor in the absence of an application
for condonation
being made out in the founding affidavit, fully setting out the time
delay, this application cannot succeed. In
rebuttal, counsel for the
applicant argues that at common law the requirement is a "reasonable
time" and it was therefore
not necessary for a condonation
application to explain the time delay. Further, that at common law,
the applicant was entitled
to explain the delay in his founding
affidavit and expound thereupon in the replying affidavit.
[15]
It is trite that a court will exercise its discretion on the merits
of each individual case,
the evidence presented and with such care as
may be appropriate in any particular case. This view has admirably
been summarised
by Jones J in
De Witts Auto Body Repairs (Pfy) Ltd
v Fedgen Insurance
Co
Ltd
1994 (4)
A 705 (E) at
711E:
"An
application for rescission is never simply an enquiry whether or not
to penalise a party for his failure to follow the
rules and
procedures laid down for civil proceedings in our courts. The
question is, rather, whether or not the explanation for
the default
and any accompanying conduct by the defaulter, be it wilful or
negligent or otherwise, gives rise to the probable inference
that
there is no bona fide defence and hence that the application for
rescission is not bona fide... The court should also do his
best to
advance the good administration of justice. In the present context
this involves weighing the need, on the one hand, to
uphold the
judgements of the courts which are properly taken in accordance with
accepted procedures and, on the other hand, the
need to prevent the
possible injustice of a judgement being executed where it should
never have been taken in the first place,
particularly where it is
taken in a party's absence without evidence and without his defence
having been raised or heard."
[16]
It will be a misdirection by this court on the facts, to consider the
question of the explanation
for the applicant's default, in a vacuum.
The proper approach to be adopted by this court, is by looking at the
total picture presented
by all the facts, and not consider the
explanation and the defence in a piecemeal.
[17]
In
the present matter, upon learning of the divorce order, the applicant
on 30 June 2021, approached his attorney to obtain advice.
Although
rule 42(1) does not specify a time-limit, it is a discretionary
remedy. Like all discretionary remedies, rescission under
rule 42(1)
must be sought within a reasonable period of time.
[7]
The
same applies to rescission at common law.
[8]
What
is reasonable will depend on the circumstances of the case
[9]
,
but
the 20-day period laid down in rule 31(2)(b) provides some guidance
as a starting point. The reason for a time limit is
that there
must be finality in litigation and that prejudice can be caused if
rescission is not promptly sought. There is therefore
no reason in
principle why a litigant should have more time when seeking
rescission under rule 42(1) or common law, than under
rule 31(2)(b).
It is for this reason that the time delay must be fully explained,
for the court to assess factually, whether the
application for
rescission was brought in a reasonable time.
[18]
The applicant in the present case has not satisfactorily explained
the lengthy delay in
seeking a rescission. The absence of a
satisfactory explanation appears, when one observes the glaring gaps
after the last correspondence
by applicant's attorney on 22 July 2021
and the filing of this application on 18 January 2022. Counsel for
the applicant correctly
argues that the applicant must stand or fall
by the factual averments contained in his founding affidavit.
This
complete silence in the founding affidavit, after referencing the
last correspondence dated 22 July 2021, cannot simply be
ignored,
even if this court has regard to the
dies
non
period, where many offices are
closed. Oddly, the founding affidavit extensively deals with why the
respondent will unduly benefit
if a forfeiture order is not sought,
but does not explain the delay, in why the rescission application was
not brought sooner.
[19]
Counsel
for the respondent further argued that even though the GEPF letter is
annexed to the founding affidavit, dated 30 November
2021, it still
does not explain how this letter impacted on the delay caused, in
bringing this application. At paragraph 5.1.2,
it reads "My
Pension Fund of 29 years at the South Africa Police Service, and I
attach hereto a printout of my Pension fund
value marked Annexure E"
This paragraph does not address the issue why this application was
not brought within a reasonable
time. Similarly at paragraph
5.1.1
[10]
;
it
simply states "My immovable property is situated at 17861
Hillside View, Bloemanda, Bloemfontein and I attach hereto the
market
value of the property marked Annexure D". This paragraph falls
under the heading "Our communal estate" It
is
therefore evident that this paragraph does not address the delay
caused, in obtaining such evaluation report.
[20]
Upon realising that the founding affidavit does not address the issue
of the delay caused
in obtaining the abovementioned documents (D, E),
an attempt is made to address this oversight in paragraph 5.1 of the
replying
affidavit, which reads "I confirm that I approached my
attorney of record on 30 June 2021 and there are no ma/a
fides
in the application only being issued
during January 2022...! awaited the valuation of the property to be
able to show this honourable
court the value of the estate ... "
(my emphasis)
This
averment, is not contained in the founding affidavit and this court
cannot consider the
bona fides
or ma/a
fides
of the
applicant, in the absence of detail. To my mind, not even this
attempt in the replying affidavit, addresses the questions
of when
the valuation report was requested; by whom was the report requested
and what was the nature of the delay in obtaining
such a report. The
explanation proffered in this regard, is simply inadequate.
Further,
At paragraph 5.6
[11]
,
it
reads " In so far as it will be necessary I hereby apply for
condonation for the late issuing of the application and submit
that
the is no prejudice to any party involved in this application"
(my emphasis) It is correctly argued that condonation
is not for the
mere asking, an Applicant must provide a full, detailed and accurate
account of the delay and their effects to enable
the court to
understand the reasons for the delay.
[21]
It is the view of this court that there is an interdependence of, on
the one hand, the
reasons advanced for the delay in bringing the
application and determining whether the application was brought
within a reasonable
time. The applicant was enjoined to explain at
the very least, the period of delay between 23 July to 30 November
2021. 'In the
absence of a full, detailed and accurate account of the
delay, this court finds that the rescission application was not
brought
within a reasonable time. Further, where the applicant
invoked this court's jurisdiction in terms of common law, condonation
is
still required as the rescission application, in the present
matter, was not brought within a reasonable time and the sketchy
reason
advanced appears to be so flimsy, in the absence of detail, so
as to be rejected as being improbable in the circumstances.
[22]
The explanation must be reasonable. In other words, plainly, the
explanation must be cogent
and not inherently improbable. In an
unreported decision of the full bench of this court in
Loretto
CC &
Another v Distillers
Corporation
Ltd [Case No.
A1090/07
(GNP)],
Ismail AJ (as he then was) at paragraph 11 held as follows: "The
explanation which a party seeking rescission sets out to
give, must
be "reasonable or satisfactory". The significance of this
is that not just any explanation would pass muster
to the test and
rescission would be given no matter how poor the explanation or
excuse for the default judgment having taken place."
[23]
It is common cause that the respondent did not give the applicant
notice of the date of
hearing of the divorce matter, bearing in mind
that the action was undefended before the court. It is further common
cause that
the parties agreed that the divorce action will be held in
abeyance, affording the parties an opportunity to salvage the
marriage.
Further, it is common cause that the summons was served on
14 April 2021, informing the applicant that he has 10 (ten) days to
file his notice of intention to defend. The respondent states that
the applicant arrived at her house on or about 5 May, informing
her
that he is desirous to save the marriage. The respondent informed him
that she was prepared to keep the divorce proceedings
in abeyance and
she moved back into the communal home. The applicant's 10 days to
file his notice of intention to defend would
have lapse around the
29
th
of April 2021. Again, there is a deafening silence as to the lapse of
the 10-day period to file his notice of intention to defend.
[24]
If the explanation is sufficiently adequate and is set out in a such
a manner that it is
clear to the court that the applicant has taken
it into his confidence, it seems to me that the court should be slow
to refuse
an applicant entirely the opportunity of having his defence
heard.
[25]
In
Duncan
tla
San
Sales
v Herbor Investments (Pty) Limitec/
[12]
it
was held "A litigant
who
asks
for
an
indulgence
should
act
with
reasonable
promptitude.
Other
neglectful acts in
the
history of the case are relevant to show his attitude and motives...
A
litigant who asks for an indulgence must be scrupulously
accurate
in his statement to the court" This court is mindful that "The
courts discretion in deciding whether sufficient
cause
has
been
established
must
not
be
unduly
restricted.
The
mental
element
of
default, whatever description it bears, should be one of several
elements which the court must weigh in determining whether sufficient
or good cause has been shown to exist. A court seized with an
application for rescission
of
judgment
should
not, in determining whether good or sufficient cause has been proven,
look at the adequacy or otherwise of the explanation
of the default
or failure in isolation.
[13]
[26]
In
the present matter, this court is left to mostly speculate, because
the applicant "must at least furnish an explanation
of his
default sufficiently full to enable the court to understand how it
really came about and to assess his conduct and motives"
[14]
[27]
In the present matter, the granting or refusal of condonation is a
matter of judicial discretion
and the applicant have not made out a
case for such an indulgence. In the matter of
Chetty
v Law Society, Transvaal 1985 (2) 756 (A) at
765A-C,
it was stated:
"There
is a further principle which is applied and that is: without a
reasonable and acceptable explanation for the delay,
the prospects of
success are immaterial and without prospects of success. no matter
how good the explanation for the delay, an
application for
condonation should be refused". (my emphasis)
[28]
In
the present matter, in the absence of a condonation application
[15]
,
the
court finds that this application was not brought within a reasonable
time, and that applicant has failed to set out sufficiently
full the
reasons apart from his lack of knowledge, why the rescission
application was only brought after a lapse of nearly 7 months.
[29]
For the reasons set out herein, I grant the following order:
[29.1]
The second point
in Iimine
is
upheld.
[29.2]
The application for rescission, is dismissed with costs.
AFRICA,
AJ
APPEARANCES:
COUNSEL
FOR THE APPLICANT:
Adv.
Els
Instructed
by: Honey
Attorneys
COUNSEL
FOR THE RESPONDENT:
Adv.
Coetzer
Instructed
by: OJ
Van Schalkwyk
[1]
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765A-E.
[2]
Government of the Republic of Zimbabwe v Fick
[2013] ZACC 22
;
2013
(5) SA 325
(CC);
2013 (10) BCLR 1103
(CC) at para 85.
[3]
1998 (4) SA 107
(NMH) at 120 C-F
[4]
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 and Others 2021 (11) BCLR 1263
(CC).
[5]
De Wet v Western Bank Ltd
1977 (4) SA 770
(T).
[6]
6Paragraph 10 and 11 of the heads of argument
[7]
(see First 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
(n at 681B-G).
[8]
(see Roopnarain v Kamalapathy & Another
1971 (3) SA 387
(D) at
391B-D).
[9]
(Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz &
Others
1996 (4) SA 411
(C) at 421F-H).
[10]
Of the founding affidavit
[11]
Replying affidavit
[12]
1974 (4) SA 214 (T).
[13]
See Harris v Absa LTD t/a Volkskas 2006 (4) SA 527 (T).
[14]
Silber v Ozen Wholesalers (Pty) Limited
[15]
In the founding affidavit