About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2020
>>
[2020] ZAGPPHC 57
|
|
N.M v T.M (Born S) (10393/2017) [2020] ZAGPPHC 57 (14 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE
NO: 10393/2017
14/2/2020
In
the matter between:
N[….]
M[….]
Applicant
and
T[….]
M[….] (Born S[….])
Respondent
JUDGMENT
CONRADIE
AJ
Heard
on:13 November 2019
INTRODUCTION
[1].
The Applicant seeks a partial rescission of a judgment granted by
default on 20 November
2018 by Molefe J. The Applicant applies 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 requires that the decree of divorce remains an
order of court, he applies
to have certain clauses of the settlement
agreement (which agreement was incorporated as an order of court)
rescinded and set aside.
THE
FACTS
[3].
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.
[4].
In anticipation of their intended divorce, the parties entered into a
settlement agreement
on 30 January 2017.
[5].
A summons was issued by the Respondent on 14 February 2017 and served
on the Applicant
on 17 March 2017.
[6].
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.
[7].
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.
[8].
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.
[9].
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.
[10].
The decree of divorce, incorporating the settlement agreement, was
granted by default on 26 November
2018.
[11].
The Applicant does not seek to set aside the decree of divorce nor
does he ask for the settlement
agreement to be set aside in its
entirety. The only clauses of the settlement agreement which the
Applicant seeks to set aside
are, in summary, the following:
-
Clauses 7.1 and 7.2:
- relating to the maintenance of the minor children;
-
Clauses 8.3.1, 8.3.2
and 8.3.3: - relating to contributions to household expenses while
the children are not yet self-supportive;
-
Clause 11.1: -
relating to a loan owing by the Applicant to the Respondent.
THE
SUBMISSIONS OF THE PARTIES
[12]
The Applicant 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.
[13]
According to the Applicant his "personal legal advisor" Adv
T Toto, corresponded with
Messrs N S Nkala (the attorneys of the
Respondent at the time) regarding the set down of the matter on the
unopposed motion roll.
Adv Toto is not an admitted legal practitioner
in South Africa and could therefor not be regarded as the Applicant's
attorney of
record.
[14]
The Applicant further relies on his unilateral cancellation of the
settlement agreement. The
Respondent in turn argues that clause 15 of
the settlement agreement renders the agreement incapable of being
cancelled unless
the cancellation is reduced to writing and signed by
both the parties. She therefor denies that the settlement agreement
was lawfully
cancelled by the Applicant.
[15]
The Respondent denies that the Applicant was unaware of the hearing
of the matter on the unopposed
role of 20 November 2018. She relies
on communication between her attorneys, Messrs N S Nkala, directly
with the Applicant and
alleges that the notice of set down was indeed
sent to the Applicant.
FINDINGS
[16]
The Applicant makes much of the initial
non-endorsement of the settlement agreement by the Office of the
Family Advocate (the Family
Advocate).The well established
mandate of the Family Advocate is to deal with disputes between
parents or family members over
parental responsibilities and the
rights of the minor children. When considering a settlement agreement
in divorce proceedings,
the role of the Family Advocate is primarily
to consider and make recommendations regarding minor children which
relate to custody,
primary residence and contact. When approving a
settlement agreement, the Family Advocate is not required to consider
the financial
arrangements between parties.
[17]
The aspects of the settlement agreement
which the Applicant seeks to rescind are exclusively of a financial
nature. Whether the
Family Advocate had approved the settlement
agreement or not, such approval has no bearing on these financial
aspects.
[18]
It is clear from clause 15 of the
settlement agreement that it cannot be cancelled unilaterally. The
court thus finds that the settlement
agreement has remained
enforceable and of effect.
[19]
The Applicant does not give any reasons
why he does 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 .. ."
The
Applicant essentially requires of the court to, without any evidence
relating to the interests of the minor children, unburden
him of
financial responsibilities towards the minor children while leaving
the rest of the settlement agreement which, on the face
of it suits
him, unchanged.
[20]
While it is in dispute whether the
Applicant had knowledge of the hearing of the matter on 20 November
2018, it is important to
adjudicate whether the Applicant was indeed
prejudiced by the order of the court given in his absence and whether
he does not have
other recourse. The fact that the Applicant does not
apply for the court order to be set aside in its entirety, is of
significance.
While the Applicant alleges that he revoked / cancelled
the settlement agreement, the question then arises why he did not
then
apply to have the settlement agreement set aside in its
entirety.
[21]
The court accordingly finds that, while
the Applicant's knowledge of the hearing of the divorce is in
dispute, the Applicant has
not shown that he has a bona fide defence
in respect of those clauses of the settlement agreement which he
seeks to set aside.
In the opinion of the court the Applicant has
thus failed to show sufficient cause for the court to partially
rescind the order
of the court.
[22]
The Applicant has inappropriately used this application in terms of
Rule 42 alternatively the
common law, to selectively challenge some
of those clauses of the settlement agreement which place a financial
responsibility on
him. These matters should be addressed in a
maintenance court where both parties will be able to bring evidence
of "changed
circumstances" since entering into the
settlement agreement.
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:
ADV I MURERIWA
INSTRUCTED
BY:
S E KANYOKA ATTORNEYS
FOR
THE FIRST RESPONDENT:
ADV F BEZUIDENHOUT
INSTRUCTED
BY:
MARSTON & TALJAARD ATTORNEYS