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[2021] ZAGPJHC 457
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O v O (A3001/2020) [2021] ZAGPJHC 457 (30 August 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: A3001/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
30
August 2021
In the matter between:
D.S.O
Appellant
And
E.N.O
Respondent
JUDGMENT
FISHER J:
Introduction
[1]
This
is an appeal against the refusal of an application for rescission of
part of a divorce order handed down in the Kliptown Magistrate’s
Court. Although the appellant casts the application as one to
vary the order the application, is on its terms, squarely one
of
rescission. The part of the order which is sought to be rescinded is
the order which reads as follows:
‘
The
defendant is to forfeit the patrimonial benefits arising from
the marriage in community of property in favour of the Plaintiff,
including the Immovable property situated at [....] D[....] Street,
Klipspruit West and the movable assets therein.’
Procedural
history
[2]
The
respondent issued summons against the appellant on 27 October 2017.
The summons was served on the appellant on 5 February 2018,
personally. The appellant was aware of the divorce proceedings but
never filed an appearance to defend. The matter was set down
for
hearing on 26 June 2018. The respondent attended Court in person and
testified under oath. The divorce was granted, inclusive
of the
forfeiture order as claimed.
[3]
The
appellant sought ‘variation’ of the divorce order by
application filed by the appellant on 12 December 2018. The
Notice of
Motion does not state how the order should be varied but, from the
founding affidavit, it is clear that the appellant
is dissatisfied
only with the forfeiture order and seeks its rescission.
[4]
The
rescission application was dismissed by Regional Magistrate Zakwe.
Material
facts
[5]
The
parties were married in community of property on 07 February 1978.
They separated during 1982. At the time of their separation
they were
living together in the property. Appellant has not lived in the
property since she left the matrimonial home in 1982.
They have
children in common who are all now adults – the youngest being
32 years of age. One of the children, L[....] is,
depending on the
version, completely blind or partially blind. She continues to live
in the property.
[6]
The
property was acquired in 1978 by means of what the respondent calls a
‘Rent to Buy contract’ entered into with the
City of
Johannesburg.
[7]
The
respondent alleges that he paid all the instalments on the property
up until it was, at his instance, registered in the name
of the
parties in 2006. The respondent states that the only reason why the
appellant’s name appears on the title deed, is
because they
were officially married in community of property at the time of
registration and that this was thus unavoidable.
[8]
The
appellant does not dispute that the instalment payments were made by
the respondent. She alleges however that she has spent
monies on
improvements to the house totalling an amount of approximately
R20 000 in respect of doors, tiles, and burglar bars.
[9]
Both
parties have long moved on with their separate lives. They have
established new families with other people. The appellant has
had
four children with another man. The parties do not state how many
children they have in common. The appellant says that the
children
were abducted and taken to Swaziland by the respondent when they were
young. The respondent alleges that the appellant
abandoned him and
the children in 1982 when their youngest child was not yet a year old
and that he had no choice but to take them
to be cared for by his
mother in Swaziland. These disputes have been overtaken by the
passage of time in that the children are,
as I have said, adults.
[10]
What is not in
dispute is that the parties are not on good terms. Both speak of an
enmity between them which has spanned at least
the decades that
they have lived apart. They have, it seems, weaponised the
protections afforded by the domestic violence
courts in that each has
applied for protection orders against the other over the years. They
each allege violence and abusive conduct
against the other. It seems
that their daughter L[....] has also become embroiled in these
applications and she has herself brought
proceedings against the
respondent. It seems that the parties have had constant
interaction because their daughter resides
in the property. The
appellant says that she attends at the house every day to tend to her
daughter.
[11]
It is against this
background that the facts which are pertinent to the decision of the
Magistrate must be examined. In essence,
the version of the appellant
is that she did not defend the proceedings because she and respondent
had agreed orally that he would
not proceed with the divorce action.
He then proceeded to take the order unopposed. In essence, the
appellant accuses the respondent
of fraud.
The
appeal
[12]
This is not a
matter where there is any error in procedure. Rather, it is a case
based on what is alleged to be a failure to disclose
to the Court
that there was an oral agreement between the parties that the divorce
would not be proceeded with.
[13]
in
Lodhi
2 Properties Investments CC and Another v Bondev Development (Pty)
Ltd
[1]
Streicher JA held as follows
[2]
:
Similarly, in a case
where a plaintiff is procedurally entitled to judgment in the absence
of the defendant the judgment, if granted,
cannot be said to have
been granted erroneously in the light of a subsequently disclosed
defence. A court which granted judgement
by default like the
judgments we are presently concerned with, does not grant the
judgment on the basis that the defendant does
not have a defence: it
grants the judgment on the basis that the defendant has been notified
of the plaintiff’s claim as
required by the Rules, that the
defendant, not having given notice of an intention to defend, is not
defending the matter and that
the plaintiff is in terms of the Rules
entitled to the order sought.’
[14]
In terms of Magistrates Court rule
49(1), in order to succeed in a rescission or variation of
an order
the applicant must show ‘good cause’.
[15]
In the Magistrates Court the position
under the old rule 49(7) was that a judgment could not
be rescinded
if the defendant was in wilful default. This rule was repealed and
thus the wilful or negligent or blameless
nature of the
defendant's default became just one of the various considerations
which a court will take into account in the exercise
of its
discretion to determine whether or not good cause is shown.
[16]
The general
approach of the courts to applications for rescission was restated
thus by Smalberger J, (as he then was) in the case
of
HDS
Construction (Pty) Ltd v Wait
[3]
:
'In
Grant
v Plumbers (Pty) Ltd
1949
(2) SA 470
(O)
Brink J, in dealing with a similar provision, held (at 476) that in
order to show good cause an applicant should comply with
the
following requirements:
(a)
He
must give a reasonable explanation of his default;
(b)
his
application must be made
bona fide
;
(c)
he
must show that he has a
bona fide
defence to the
plaintiff's claim.’
[17]
Divorce actions
being what they are, the proprietorial aspects of the marriage are
often fraught with disputed facts and conflicting
views. This
position is worsened when a fault based approach comes into play, as
is the case with forfeiture claims. In my
view, prima facie, a
defence to contest the forfeiture order should, in this case, be
assumed in favour of the appellant.
Although, I must state that
the prospects of success in establishing a defence seem weak in the
circumstances of this case –
which are somewhat unusual.
[18]
This appeal thus
turns on whether the Magistrate erred in rejecting the explanation of
the appellant’s default and finding
against her bona fides in
relation to the bringing of the application.
[19]
A further
procedural point was taken to the effect that the Magistrate did not
allow for oral argument to proceed but decided the
matter on the
heads filed.
I
move to deal with these points in turn.
The
Magistrate’s rejection of the appellant’s version.
[20]
The Magistrate to
my mind gave careful consideration to the facts of the matter and the
manner in which the appellant dealt with
her case as to her default.
His view was that the probabilities were against the agreement not to
persist with the divorce. He
questioned why the respondent would not
proceed where he had gone to the trouble and expense of instituting
divorce proceedings.
He furthermore considered that the relationship
of the parties was acrimonious and hardly based on trust or goodwill.
He thus said
that it was unlikely that the agreement relied on had
been concluded.
[21]
Apart from there
being no feasible explanation as to the motivations of the appellant
in deciding not to proceed with the divorce
there is also scant
particularity as to the circumstances surrounding the conclusion of
the agreement. Many questions arise. Where
was it concluded? On what
date was it concluded? Who was present? Was it concluded
telephonically or in person. These vital particulars
which may
have gone some way to establishing a semblance of bona fides, were
simply not provided
[22]
This lack of detail
taken with the unusual relationship between the parties and the fact
that serious allegations of fraud are made,
suggests a lack of bona
fides.
[23]
To my mind the
Magistrate cannot be faulted in his weighing up of the matter and the
way in which he exercised his discretion in
deciding that the
explanation for the default was neither reasonable nor reasonably
made out.
The
failure to hear argument
[24]
The record of the
proceedings shows that the following occurred as to the arguing of
the matter. The matter was argued fully by
the attorneys for the
respective parties. At the end of her argument the respondent’s
attorney sought to hand up heads of
argument. The appellant’s
attorney Mr Mia then complained that he had been ‘hit below the
belt’ by the respondent’s
attorney handing up heads. He
said he had not been given a copy and objected to the court receiving
the heads. Obviously, this
was not a proper approach. A party may
file heads without notice to the other side.
[25]
The Magistrate
nonetheless gave Mr Mia the opportunity to file heads as well.
[26]
There was no basis
to suggest, as the appellant’s counsel seems to, that after the
filing of heads Mr Mia should have been
given a further opportunity
to address the Court on the heads. There was no such obligation on
the part of the Magistrate and what
is more, no further opportunity
was sought by Mr Mia.
[27]
In the
circumstances I find that Mr Mia was given more than a fair
opportunity to advance the case of the appellant and the point
raised
is without substance.
Order
[28]
I thus make the
following order:
The
appeal is dismissed with costs.
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur,
MTHIMKULU
AJ
HIGH
COURT ACTING JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing:
20 July 2021.
Judgment
Delivered:
30 August 2021.
APPEARANCES:
For
the Appellant
:
Adv B. Hechter.
Instructed
by
:
A.K Mia Incorporated.
For
the Respondent
:
Adv D Maritz.
Instructed
by
:
Soweto Law Clinic.
[1]
2007 (6) SA 87 (SCA).
[2]
Ibid
at para 27.
[3]
1979
(2) SA 298
(E)
at 300F-301C in the following terms: