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[2017] ZAGPPHC 27
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A.O v M.O (73754/14) [2017] ZAGPPHC 27 (3 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 73754/14
DATE:
3 February 2017
Reportable:
No
Of
interest to other judges No
Revised.
A
O Applicant
v
M
O Respondent
JUDGMENT
MABUSE
J:
[1]
This is an application for a rescission of an order of divorce that
was granted by default against the applicant on 8 December
2014. In
addition, the applicant seeks an order that he be authorised to serve
his plea in the same matter which resulted in the
order he seeks to
rescind on the respondent or still to file a counterclaim against the
respondent.
[2]
The applicant describes himself as an adult male with permanent
residential address at […] Windmill, lntala Street, Mooikloof
Ridge, Pretoria. He is a volunteer in the United Nations as a COE
Inspector and based in the Democratic Republic of Congo ("DRC").
He describes the respondent as his spouse and also as the plaintiff
in the main action, of the same residential address as his.
[3]
The applicant seeks a rescission of the divorce order that was
granted by Makhubela AJ on 8 December 2014 on the following grounds
that:
3.1 the respondent
undertook to withdraw the divorce action after she had agreed to a
reconciliation but failed to do so;
3.2 the two firms of
attorneys he had engaged to handle the divorce action against him
while he was in the Democratic Republic of
the Congo failed to carry
out his mandate;
3.3 at the time he
contracted his marriage to the respondent he was still married to
another woman in Algeria. He contends on this
basis that the marriage
with the respondent could be declared
void abinitio
and that
he would have raised this factor as a defence.
[4]
The applicant and the respondent were married to each other in
community of property on 11 July 2011. The said marriage ceremony
took place through the offices of the Department of Home Affairs in
Pretoria. Proof of this marriage by way of a marriage certificate
was
submitted to Court on 8 December 2014. There is therefore no dispute
about this marriage. Three minor children were born of
the said
marriage.
[5]
On 8 October 2014 the applicant was discharged from a local hospital.
On his discharge the respondent went to fetch him. The
respondent
took him home whereupon his arrival he was served by the sheriff with
a copy of the divorce summons. He testified that
after a copy of the
summons was served upon him he and the respondent discussed the
effects of the divorce and agreed to become
reconciled. According to
him, the respondent undertook that she would not proceed with the
divorce action but would instead proceed
to her attorneys in order to
instruct them to withdraw the divorce action. Subsequent thereto, he
returned to the DRC and awaited
documentation from the respondent to
the effect that the divorce action had been withdrawn. When he
realised that no such documents
were forthcoming he contacted his
attorneys of record whilst he was still in the DRC and notified them
of the pending divorce action
and requested them to assist. By reason
of the fact that it was during December 2014 he heard nothing from
the attorneys but then
had to approach another set of attorneys Hack
Stupel & Ross, for assistance. The initial attorneys that he had
instructed and
who seemingly delayed in reporting to him what they
had done had entered appearance. When he realised that he got no
response from
them he continued to instruct Shapiro & Ledwaba
Inc. to attend to the matter. Later he received feedback from both
attorneys
who informed him what they had done. He then instructed
Shapiro & Ledwaba to withdraw from the matter as he had already
instructed
Hack Stupel & Ross to represent him. During January
2015 he received emails from Messrs Shapiro and Ledwaba in which he
was
informed that the respondents had proceeded to obtain an order of
divorce against him on 8 December 2014. He gave those emails and
a
copy of the order of divorce to the attorneys whom he instructed to
proceed to have the order set aside. He waited to hear from
such
attorneys. He did not hear anything from them.
[6]
The respondent does not dispute the fact that the applicant left the
Republic of South Africa to return to the DRC on or about
31 October
2014. She claims, however, that after she had been granted the decree
of divorce she sent the applicant a text message
informing him that
the divorce action was finalised. On that basis the respondent claims
that the applicant was well aware and
was duly informed that the
divorce action was finalised when he arrived back in South Africa on
23 December 2014.
[7]
The respondent denied vehemently that she ever undertook to instruct
her attorneys to withdraw the divorce action. She claimed
that there
would have been no basis for her whatsoever to do so. She denied
vehemently that she and the applicant discussed the
effects of a
divorce. Pertinently she denied that she and the applicant became
reconciled and furthermore that she ever promised
the applicant that
she would provide him with any documentation as proof that she had
withdrawn her action.
[8]
With regards to the merits the applicant slated that he would have
raised the following points as a defence to the divorce action
against him. Firstly, that the respondent formed an adulterous affair
whilst he was based in the DRC and as a consequence of which
the she
sought to obtain the divorce. The respondent did not deny that she
did form a relationship with someone else but contended
that any
relationship that she would have formed with another person was not
the immediate cause of the deterioration of the marriage
relationship
between her and the applicant. Secondly, that although the parties
contracted a marriage in community of property
as indicated above the
applicant states that he was also married in his country of origin in
Algeria and he was not divorced in
Algeria prior to his marriage with
the respondent. The marriage to the respondent could on that basis
alone be declared
void abinitio,
so he contended further. The
respondent, however, does not deny that the applicant was previously
married. She claims that she did
not know that he was married but the
applicant avers that he had fully disclosed his status prior to the
marriage to her. The purpose
of rescission of the order of 8 December
2014 would, according to him, to enable him to challenge the orders
of forfeiture and
maintenance issued against him. On the basis of the
afore going the applicant stated that he has a
bona fide
defence
against the claims of the respondent in the divorce action and that
the order of divorce be set aside so that these disputes
may be
ventilated properly.
[9]
On the other hand the respondent opposed the relief sought and
claimed that there was absolutely no basis for the order to be
set
aside and that the matter should be regarded as finalised. She
claimed that if the applicant was married when he married her,
that
due to her not having known the true status, the Court would in any
event decree that the combined property should be shared
equally
between them and that the Court would order forfeiture if this was to
the advantage of the innocent party. She stated furthermore
that the
position between the parties may conceivably constitute a putative
marriage.
[10]
The bedrock of the applicant's case was simply that at the time he
and the respondent got married to each other on 11 July
2011 he was
still married to another woman in Algeria and that the said marriage
was still in subsistence. He claimed that on that
basis that his
marriage to the respondent was null and
void abinitio.
In
addition he claimed that he had discussed that issue of the marriage
with another woman in Algeria with her and that she knew
about it and
that she got into their marriage with the full knowledge that he was
married to another woman.
[11]
The
onus
to satisfy the Court that he was married to another
woman in Algeria is on the applicant. No duty lies on the respondent
to prove
the negative. The applicant can discharge the
onus
that
lies on him by producing to the Court a copy of the marriage
certificate. The existence of any valid marriage must, in terms
of
the law, be proved to the satisfaction of the Court. This proof must
be by way of the best evidence available. This means that
an
authenticated copy of the marriage certificate must be produced. See
Wittekind v Wittekend 1948(1} SA 826 where the Court stated
that:
''ln
an action for divorce on the ground of adultery the plaintiff stated
that he had been married to the defendant in Germany,
that he did not
have the marriage certificate, that he had been married by a
magistrate and in a Synagogue and that his brother
had been present
at the ceremony. His brother gave evidence of having been present at
the marriage. Held,
postponing the action sine die, that
plaintiff should produce either a marriage certificate or proof that
one was not obtainable.
"
In
Wittekind v Wittekind the Court quoted with approval the following
passage for Anderson v. Anderson
(1942, W.L.D. 86):
"It
is a well-established practice in our Courts to require documentary
evidence of the marriage where this is possible. In
the case of
Davidson v. Davidson
(1902, T.H. 105)
, Mr Justice Wessels said at
page 106: 'The best evidence must always be given to prove a marriage
in these cases. A copy of the
marriage certificate had been handed in
here, and I do not know who the person is who certified it Certified
copies like these
should be properly legalised. I do not suppose that
a person who has not been married would apply for divorce; but it has
been
laid down long before I was born that in all divorce
proceedings, the marriages must be property proved, and that rule
must be
followed.
'
In the case of Warren v. Warren
(1909, T.H.
304)
, Mr. Justice Mason said the Court required all marriages to be
proved by documentary evidence, where such evidence could be
produced.”
In
Warren v Warren the Court had stated as follows:
"The
Court requires all marriages to be proved by documentary evidence
where such evidence can be produced. I do not propose
to relax this
rule."
Furthermore
there must be proof
aliunde
that the parties mentioned in the
certificate and the parties before the Court are the same parties.
[12]
A foreign marriage certificate must be authenticated in terms of Rule
63 of the Uniform Rules of Court. A certificate produced
in Algeria
would qualify as a foreign marriage certificate. Where a party is
unable to produce such a marriage certificate or where
it is not
practical for such a party to obtain a copy of the marriage
certificate, such a marriage may be proved in other ways,
for
instance by evidence of witnesses who attended the marriage ceremony
or by evidence of cohabitation and repute which creates
a rebuttable
presumption that there was a valid marriage. The applicant does not
rely on any of the grounds set out above.
[13]
Other than making an allegation that he was married to another woman
in Algeria, the applicant does not produce any proof of
such
marriage. There is a paucity of essential details in his evidence. He
has not disclosed the date of such marriage nor the
full details of
the woman in Algeria he claims he was married to. He has not
explained why he married the respondent when he knew
that he was
already married to another woman, nor did he explain why he lied to
the officials of the Department of Home Affairs.
He has admitted that
he committed fraud. In the circumstances he has failed to discharge
the onus that lies on him that he was
married.
[14]
The respondent has raised a point
in limine
in terms of which
she claims that the applicant's application constitutes a gross abuse
of the processes of the Court and that it
be dismissed with a
punitive costs order. The respondent claimed that the applicant has
failed to set out any grounds in support
of his claim that the final
order obtained on 8 December 2014 should be set aside. A judgment
could only be set aside if the applicant
shows good or sufficient
cause for such rescission. In this regard see Grant v Plumbers (Pty)
Ltd 1949(2) SA 470 at 476 to 477
and Silber v Ozen Wholesalers (Pty)
Ltd SA 349 A at 352H-353A. The requirements for an application for
rescission in terms of the
Uniform Rules of Court are stated as
follows:
"1. The applicant
must give a reasonable explanation for his default,·
2.
His
application must be bona fide and not made with the intention of
merely delaying the plaintiff's claim;
3.
He
must show that he has a bona fide defence to the plaintiff's claim.
It is sufficient if
he makes an outright prima facie defence
in the sense of setting out averments which, if established at a
trial court, would entitle
him to the relief asked for. He needs to
deal fully with the merits of the case and produce evidence that the
probabilities are
actually in his favour.”
[15]
The applicant has failed to comply with the basic requirements to
show a
bona fide
defence. See Standard Bank of South Africa
Ltd v EL Naddaf and Another 1999(4) SA 779 W at 784. On his own
version he could not
have entered into a marriage with the respondent
well knowing that he was not lawfully entitled to do so and then
later claim that
this offence that he has committed should serve as
an excuse and as a defence to nullify his second marriage. He was
therefore
not
bona fide
in his actions and therefore has no
bona fide
defence.
[16]
It is clear that the applicant brought his application for rescission
of the order of 8 December 2014 under common law. In
terms of common
law, an application for rescission of a default judgment is limited
to circumstances which are not covered by the
provisions of Rule
31(2)(B) or Rule 42 of the Uniform Rules of Court. An application for
rescission of the default judgment under
common law may only be
granted where an applicant has satisfied the court that sufficient
cause exists. This means that in order
to succeed with the
application, on the grounds of common law, the applicant must:
(i) have reasonable
explanation for a failure to defend the respondent's divorce action,
in other words, for his default;
(ii) secondly, he must
show that the application for rescission is made
bona fide;
and
(iii) he must show that
he has a
bona fide
defence, which
prima facie
has some
prospects of success.
[17]
The applicant admits that he committed fraud inasmuch as he was
married at the time of his marriage to the respondent and that
he was
not divorced from his first wife. Accordingly, the order of 14
December 2014 may be set aside on the grounds of fraud.
[18]
A REASONABLE EXPLANATION FOR THE DEFAULT
The
applicant contends that he was not in default because after he had
been served with a copy of the divorce action he had an intense
discussion with the respondent about the effects of a divorce after
which they became reconciled. He contended furthermore that
following
such reconciliation she undertook that she would approach her
attorneys, inform them that she and him had become reconciled
and
accordingly instruct them to withdraw the divorce action. Over and
above she had promised that as proof of the withdrawal of
the action
she would send him some documents. He waited for such documents. When
nothing was forthcoming he became suspicious and
sought legal
assistance, first with Shapiro and Ledwaba Inc and when he got no joy
in dealing with them, from Hack Stupel and Ross.
The Respondent
disputed the rest of the applicant's evidence as set out above. The
applicant did not dispute the following averments
made by her; that
while he was still in the country they spoke only when it was
necessary. It is highly unlikely that people who
had become
reconciled would speak very little to each other. The second averment
that he failed to comment on and which must be
accepted as admitted
is the allegation by her that she reminded him literally on a daily
basis of the number of days left for him
to indicate whether or not
he would defend the divorce action. Again left unchallenged, this
averment is totally inconsistent with
the circumstances in which
parties have become reconciled. It would be unusual that after the
parties had reconciled, as claimed
by him, she would persist with the
divorce action even to the extent of advising him, like she did on 20
October 2014, of the days
within which to defend the divorce action.
The inference is inevitable that there could not have been any
reconciliation if there
was at the same time a persistence to proceed
with the divorce action. This is a clear case of actions speaking
louder than words.
[19]
The applicant failed, whilst he was still in the country, to take the
respondent to the attorneys where she would have instructed
them to
withdraw the divorce action, if they had reconciled. He proffers no
explanation while he did not follow this important
step. It is
therefore clear that the applicant left for the Democratic Republic
of Congo with the full knowledge that the respondent
was proceeding
with the divorce action. He deliberately failed to take the necessary
steps to defend the respondent's divorce action.
In the circumstances
this Court finds that he has failed to furnish a reasonable
explanation for his default. The applicant has
therefore failed to
satisfy the requirements set out in Grant v Plumber supra of giving a
reasonable explanation for his default.
[20]
The applicant must show that the application was made
bona fide.
It should not be made with the intention to delay the plaintiffs
action. The appellant states that:
"The
respondent formed an adulterous affair while I have been based in the
DRC and as a consequence of that adulterous affair
she has sought to
obtain a divorce. I accordingly wish to file documents to the
divorce. We are married in community of properly
and I am also
married in my country of origin being Algeria."
The
following are the problems with this evidence. No further details of
such an adulterous relationship have been furnished. In
his replying
affidavit the applicant testified that:
''lt
was during the same period around December 2014 that I realised
that the respondent was involved with an Algerian man in an affair
and this was amongst things that made me engage attorneys to seek
some assistance.
"
It
was not his evidence in his founding affidavit that he intended using
such a relationship as a ground for the divorce. It only
emerged in
the replying affidavit.
[21]
If rescission of this order is granted, the applicant would seek a
divorce still. Why then seek a divorce order when he already
has one?
For this reason, the application for rescission is not made
bona
fide.
[22]
The applicant must show that he has a
bona fide
defence which
prima facie
had some prospects of success. The applicant
failed to meet this requirement. He has not disclosed any defence
against the respondent's
claim for divorce. The so-called intimate
relationship between the respondent and another man was only
discovered after the divorce.
He would not have raised it as a
defence. It would also not have served the purpose. The applicant has
not proven the existence
of any valid marriage between him and
another woman in Algeria. Accordingly there is no merit in the
argument that his marriage
to the respondent could be declared
void
ab initio.
On the facts before me the application cannot succeed.
[23]
In an effort to sort out other aspects of the divorce, the parties
handed the Court a consent paper and applied that It be
made an order
of the Court alongside an order this Court may make with regard to
the application.
In
the result I make the following order:
1. The application for
rescission of the order of Court granted on 8 December 2014 is hereby
dismissed.
2. By consent between the
parties the terms of the amended draft order marked "XPS"
and attached hereto are hereby made
an order of Court.
___________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicant:
Adv. Ml Haskins (SC)
Instructed
by:
Shapiro
&
Ledwaba Inc.
Counsel
for the first respondent:
Adv. R Ferreira
Instructed
by:
Bronwyn May Inc.
Date
Heard:
7 June 2016
Date
of Judgment:
3 February 2017
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 73751/2014
In
the matter between:
ABDERRAHMANE
OUANECHE
Applicant
and
MONIQUE
OUANECHE
Respondent
DRAFT
ORDER
An
order is made as follows:
1. The Applicant's
application for rescission is dismissed.
2. It is declared that
the order of the Honourable Madam Justice Makhubele AJ under the
above case number is amended and varied
only in the following
respects:
2.1.
Ad paragraph 4 of the order:
2.1.1. The Applicant
shall be responsible to pay the maintenance in this paragraph, in
respect of the minor children, to the Respondent,
until the amount as
set out in this paragraph of the order is amended by a competent
forum, also in respect of retrospective effect.
2.1.2. The Applicant
shall have the right to immediately approach the Maintenance Court
and apply for a variation of the maintenance
order in terms of the
Maintenance Act, without having to prove a change in circumstances.
2.2.
Ad paragraph 5 of the order:
2.2.1. The paragraph 5 of
the order is set aside.
2.3.
Ad paragraph 6 of the order:
2.3.1. The immovable
property known as Stand […] Mooikloof Ridge, Extension 12,
situated at nr. […] Windmill lntala
Street, Mooikloof Ridge,
Pretoria ("the immovable property"), is to be sold to the
highest offer with a reserve price
of R900 000.00 within six months
from date hereof.
2.3.2. The nett proceeds
from the sale of the immovable property shall be divided equally
between the parties subject to the following:
2.3.2.1.
The Applicant's share of the following expenses from 8 December 2014
to date of transfer is to be deducted from his half
share of the nett
proceeds of the sale of the immovable property and paid to the
Respondent if and in the event of the Respondent
having paid same on
his behalf:
(a) Rates and
taxes;
(b) Levies; and
(c) Electricity.
2.3.3. In the event of
the any of the parties failing to sign the deed of sale or transfer
documents within 48 hours after being
requested so by the
transferring attorney or the other party, the Sheriff of the district
where the property is situated is hereby
authorised to sign in such
party's place and stead.
3. Each party is to pay
its own costs
BY ORDER
THE
REGISTRAR