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[2017] ZAGPPHC 100
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T.M v G.M (3584/2013) [2017] ZAGPPHC 100 (10 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
10/02/2017
CASE
NO: 3584/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
T
M
APPLICANT
and
G
M
RESPONDENT
JUDGMENT
MAKHOBA
AJ
INTRODUCTION
[1]
This matter came before me as an application for a rescission of
judgement granted by
Hiemstra AJ
on the 19th June 2013 between
the applicant and the respondent. The decree of divorce was coupled
with orders that:
a)
Both parties retain parental responsibilities and rights with regard
to care and residence of the minor children.
b)
Primary care residence of the minor children awarded to the
respondent.
c)
Applicant awarded right to reasonable contact in respect of the minor
children.
d)
Respondent to pay R500.00 per month per child.
e)
Respondent to keep the Mazda motor vehicle with the registration
number W[...]GP.
BACKGROUND
[2]
The parties were married in community of property on the 29th August
2008 at Moretele and two minor children were born out of
this
marriage namely R M born on [...] August1998 he is currently 19 years
old and O M born on [...] April 2005 and she is currently
12 years
old.
[3]
Application for the late condonation in filling this application was
not opposed by respondent. Thus therefore the court grants
the
application for condonation.
[4]
on the 15th January 2014 the applicant discovered that she was
divorced to the respondent she then on her own made inquiries
about
the divorce order she was not aware about such an order. She found
out that the return of service of the summons as well
as the dies
induciae were forged and confirmed by the sheriff who filed an
affidavit confirming this. The affidavit of the sheriff
is not in
dispute by the respondent.
[5]
In this matter it is common cause that the marriage between applicant
and the respondent has irretrievable broken down. Applicant
left the
common home on the 9th June 2013 and left the children in the care of
the respondent. It is not in dispute that the return
of service and
the
dies induciae
were
forged.
[6]
In addressing the court counsel for the respondent asked the court
not to rescind the divorce order as well as the order to
divide the
estate. In support of this request, counsel relied on unreported
decision of my sister
Mngqibisa
Thusi, J
in the
matter between
M: Rand
M: N case no 52110/2007
delivered
on the 2ih May 2011. In this matter
Mngqibisa
Thusi J
did not
rescind the divorce order since the marriage had irretrievable broken
down, however some of the orders of the court
aqou
were set aside.
[7]
In this matter before me, I am satisfied that the divorce order
granted by my brother HIEMSTRA AJ was obtained by fraudulent
means.
[8]
This application can only be entertained in terms of Rule 42(1) (a)
of the Rules of the court or in terms of the common law.
Rule 42(1)
(a) provides for the rescission of a final order of judgement granted
in the absence of a party who has an interest
in it.
In
Grant v Plumbers (pty) LTD
1949 (2) SA 40
(O)
the
court held that applicant must give a reasonable explanation of his
default and the application must be
bona
fide.
Thirdly the
applicant must show that he has a
bona
fide
defence to
plaintiffs claim.
[9]
I am of the view that the application by the applicant is
bona
fide;
applicant gave
a reasonable explanation for her default.
[10]
However both the applicant and the respondent agrees that the
marriage between them has irretrievably broken down and a decree
of
divorce should not be set aside.
[11]
The court is therefore of the view that it is not necessary to set
aside the whole order made by the court on the 19th June
2013.
Accordingly
the following order is made:
1.
Paragraph one (1) of the order granted on the 19 June 2013 remains
the same in other words it is not set aside.
2.
The orders in paragraphs 2-7 are set aside
3.
The applicant is directed to take the necessary steps to set the
matter down by no later than 30th March 2017
4.
The office of the registrar is directed to give preference to this
matter in setting it down on an appropriate date.
5.
Respondent to pay the costs of this application
_________________________
MAKHOBAD
(ACTING
JUDGE OF THE HIGH COURT)