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[2021] ZAGPPHC 408
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N.M v T.M (Born S) (Leave to Appeal) (10393/2017) [2021] ZAGPPHC 408 (17 May 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 10393/2017
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED. YES
21 June 2021
In
the matter between:
N
M[…]
Applicant
and
T
M[…]
(Born S[…])
Respondent
JUDGMENT
- LEAVE TO APPEAL
CONRADIE AJ
Heard on: 17 MAY 2021
INTRODUCTION
[1]. On
14 February 2020, this Court handed down judgment, dismissing with
costs the Applicant’s application
for a partial rescission of a
judgment granted by default on 20 November 2018 by Molefe J. The
Applicant applied in terms of Rule
42, alternatively the common law,
basing his application thereon that the judgment was erroneously
granted in his absence.
[2].
While the Applicant required that the decree of divorce remain an
order of court, he applied to have certain
clauses of the settlement
agreement (which agreement was incorporated as an order of court)
rescinded and set aside.
[3].
The Applicant brought an application for leave to appeal the said
decision. Messrs SE Kanyoka Attorneys,
on behalf of the Applicant,
filed and uploaded electronically Heads of Argument drafted by Adv I
Mureriwa. On 18 May 2021, at the
hearing of the application, Court
was informed that the legal team for the Applicant had withdrawn.
[4].
The Applicant was “represented” at the hearing by a Mr
Toto, who by his own admission is not
an admitted legal practitioner
in South Africa. Mr Toto relied on a Special Power of Attorney which
was granted to him by the Applicant
on 17 May 2021 at Harare,
Zimbabwe. It would seem from the Power of Attorney that it does not
comply with Rule 63 of the Supreme
Court Rules.
[5].
Mr. Toto was clearly not properly prepared for the hearing – he
admitted to not having read the Heads
of Argument of the Applicant
referred to above and did not even read the judgment of this court.
[6].
For all intent and purposes, I have thus disregarded the submissions
made by Mr. Toto at the hearing. Nevertheless,
in the interest of
justice and of the minor children, I considered the submissions made
in the heads drafted by Adv Mureriwa.
THE
BACKGROUND
[7]. The
parties were married to each other on 4 November 2000 in Harare,
Zimbabwe. Two minor children (N[…]
and L[…]) were born
from the marriage. N[…] attained majority on 7 August 2019. In
anticipation of their intended
divorce, the parties entered into a
settlement agreement on 30 January 2017.
[8]. A
summons was issued by the Respondent on 14 February 2017 and served
on the Applicant on 17 March 2017.
[9].
From an endorsement, dated 3 May 2017, on the first page of the
settlement agreement, it appears that the
Office of the Family
Advocate did not initially approve the settlement agreement.
[10]. A
family counsellor from the Office of the Family Advocate subsequently
conducted interviews with the parties
and the minor children on 7
February 2018 and in her report and recommendations of 18 October
2018, approved and endorsed the terms
of the settlement agreement as
far as it relates to the minor children.
[11].
The Applicant alleges that the said settlement agreement was, shortly
after the interviews with the
Family Advocate, revoked / cancelled by
him unilaterally on 26 February 2018 through a letter of his
erstwhile attorneys to the
Respondent’s erstwhile attorneys.
[12].
The Applicant further alleges that, while he served a notice of
intention to defend on the Respondent’s
erstwhile attorneys on
19 July 2018, he was not aware that the matter was on the unopposed
court roll of 26 November 2018.
[13]. The
decree of divorce, incorporating the settlement agreement, was
granted by default on 26 November 2018.
[14].
In his rescission application, the Applicant did not seek to set
aside the decree of divorce, nor did he
ask for the settlement
agreement to be set aside in its entirety. The only clauses of the
settlement agreement which the Applicant
sought to set aside were, in
summary:
- relating to
the maintenance of the minor children
- relating to
contributions to household expenses while the children are not yet
self supportive.
THE
APPLICATION FOR LEAVE TO APPEAL
[15].
The grounds upon which the Applicant relies in his application for
leave to appeal can
be summarised as follows:
-
The endorsement by the Family Advocate had no bearing on the
rescission application.
-
The unilateral cancellation of a bilateral agreement brought the
agreement to an end and left
the aggrieved party with other remedies.
-
A notice of intention to defend was filed before the divorce action
was enrolled for hearing
on an unopposed basis. The Applicant further
alleges that the court order was obtained fraudulently in his absence
by the Respondent
and her erstwhile counsel. He denies that a copy of
the settlement agreement was sent to his attorneys with the notice of
set down.
-
The court order can and should be partially rescinded and the Court
ought to have removed/rescinded
the contested clauses.
-
The Court abdicated its order by finding that the Applicant ought to
have approached the maintenance
court if he believed that there was a
change in circumstances.
THE
PURPORTED CANCELLATION OF THE SETTLEMENT AGREEMENT
[16] It is
significant to note that the Applicant attended and participated in
an interview with the Family Advocate on 7
February 2018 but did not
mention the so-called “changed circumstances” or indicate
his intention to cancel the settlement
agreement, which would have
been the subject of the interview, a couple of weeks later. If he had
done so, it would have been recorded
in the report of the Family
Advocate.
[17] There is
further no indication that the Applicant did not abide and comply
with the balance of terms of the settlement
agreement – this
demonstrates that the Applicant recognised the existence of the
agreement. The only aspects of the settlement
agreement which the
Applicant seeks to rescind are of a financial nature.
[18]. The court thus
confirms its finding that the bilateral settlement agreement has
remained enforceable and of effect.
THE
NOTICE OF INTENTION TO DEFEND AND THE NOTICE OF SET DOWN
[19] The
Applicant did not manage to discharge his onus to prove that the
notice of intention to defend was filed and
even if so, could not
disprove that he had knowledge of the hearing.
[20] The mere
fact that he continued to comply with the balance of the terms of the
settlement agreement, is an indication
that he must have anticipated
that the matter would be decided on an unopposed basis at some stage.
[21] The Applicant
has also not been able to show that he was prejudiced by the fact
that the order was given in his absence,
nor has he demonstrated a
bona fide defence.
THE
APPLICATION FOR PARTIAL RESCINDING OF THE COURT ORDER
[22] The Applicant
did not give any good reasons why he did not apply to court to have
the settlement agreement set aside
in its entirety. He simply argues
that “
there is a need for the court to explore the changes
in the circumstances which are pivotal to the
issues of
custody and maintenance…”
Amongst the
so-called “changed circumstances” which the Applicant
contends should be reason to partially rescind the
order is that an
amount of money which the Applicant was obliged to pay to the
Respondent, had already been paid.
[23] Such
payment is more proof of the Applicant regarded himself bound to the
remaining terms of the settlement agreement
and the payment of the
amount certainly does not nullify the agreement.
[24] The other
“changed circumstances” which the Applicant refers to in
his founding affidavit, occurred after
the granting of the order
which the Applicant sought to rescind, and would therefore not have
any bearing on his application.
[25] In finding
that the Applicant ought to have approached the maintenance court if
he believed that there was a change in
circumstances, this court
certainly did not abdicate its order but instead indicated the remedy
which the Applicant should have
pursued in the event of changed
circumstances.
[26] The Court remains of
the view and finds that the Applicant’s application for the
partial rescission was simply aimed
at unburdening him of his
financial responsibilities towards the minor children while leaving
the rest of the settlement agreement
which, on the face of it suits
him, unchanged.
[27] The Court can
find no compelling reasons or any grounds on which another court will
come to a different conclusion than
this court.
ORDER
Having
read the papers and heard argument, the following order is made:
1. The
application is dismissed with costs.
T CONRADIE
ACTING JUDGE OF THE HIGH
COURT
FOR THE
APPLICANT:
Unrepresented
FOR THE FIRST
RESPONDENT:
ADV F BEZUIDENHOUT
INSTRUCTED
BY:
MARSTON & TALJAARD ATTORNEYS