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[2016] ZAGPPHC 8
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Phiri v Phiri and Another (39223/2011) [2016] ZAGPPHC 8 (15 January 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
15/01/2016
CASE NUMBER 39223/2011
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In the matter between:
ACHESON
PHIRI APPLICANT
And
MMONE VIOLET
PHIRI 1ST
RESPONDENT
THE DIRECTOR
GENERAL 2ND
RESPONDENT
DEPARTMENT OF HOME
AFFAIRS
JUDGMENT
MAVUNDLA. J,
[1] On the 5 October 2015
this Court dismissed the applicant's application for rescission with
costs, to be taxed on opposed basis
including costs of counsel on
party and party scale. The reasons for this order are set herein
below.
[2] The application for
rescission was in respect of a divorce order granted by Van Der Byl
AJ on the 14 October 2011. The application
for recession was sought
in terms of Rule 42(1) of the Uniform Curt rules, which provides as
follow:
"The Court may, in
addition to any other powers it may have,
mero motu
or upon
application of any party affected, rescind or vary:
An order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby."
[3] This Court was not
satisfied,
inter alia,
that the order sought to be rescinded
was erroneously sought or erroneously granted, as it will become more
lucid herein below.
[4] The Court has a wide
discretion to grant or refuse the relief sought under rule 42(1). In
this regard the court will have regard
to the explanation proffered
by the applicant why the order was granted in his absence, the
fairness to both parties and the need
to have finality to the
litigation between the parties, vide
Sheriff
Pretoria-East v Flink and another ALL SA September (1)
2005 SA
492.
[5]
In casu,
the
summons was served personally on the applicant on the 15 July 2011.
It would seem that the applicant served and filed a notice
of
intention to defend on the 22 June 2011. However, on the 8 August
2011 the applicant set the matter down for hearing on the
unopposed
roll on the 14 June 2011, on which day a divorce order was granted in
the absence of the applicant.
[6] The notice of
intention to defend provided the following case number:
"39223/4" which
is not the correct case number reflected in the pleadings herein
above. Therefore, the notice of intention
to defend was defective. By
virtue of the incorrect case number, the notice of intention to
defend certainly could not have found
its way to the correct file.
[7] Where a litigant
files a defective notice of intention to defend, the other party is
not obliged to draw the defect to his opponent
but will be within his
right to merely ignore such defective notice of intention to defend,
which would seem to have been the case
in casu.
[8] In the absence of a
notice of intention to defend in the court file, it cannot be said
that the court erroneously granted the
order of divorce on the 14
August 2011. Neither can it be said that the first respondent
erroneously sought the order granted.In
the circumstances, in my
view, the order granted was not erroneously sought nor erroneously
granted.
[9] Shortly after the
divorce decree was granted, the first respondent's attorneys remitted
a copy of the divorce decree to Legal
Nexus per letter dated the 22
November 2011. In response per letter dated 29 November 2011, Lexus
Nexus placed on record that they
held instructions to bring an
application for rescission. Indeed this fact is confirmed by the
applicant himself in his affidavit
in support of the application for
rescission stating that at all relevant times he thought that Legal
Nexus were attending to the
application for rescission application.
It can therefore be safely accepted that as far back as in November
2011the applicant was
aware of the divorce decree.
[10] According to the
applicant in June 2014 he became aware of the fact that Nexus Lexus
did not bring the application for rescission.
The applicant brought
the application for rescission on the 26 November 2014. The reason
for the delay between June 2014 and November
2014 was due to lack of
funds. However, there is no explanation proffered for the delay
between November 2011and June 2014.
[11] In my view, there
was an inordinate delay of at least three years in bring the
application for rescission, which delay is not
explained. The
applicant merely contented himself in instructing Legal Nexus to
bring the application for rescission, without bothering
himself to
make a follow up to inquire of the progress by Legal Nexus in
executing his instructions. In certain circumstances,
the Court will
condone any remissness of an applicant's attorney.
Jn
casu,
the
remissness is not only on the part of Legal Nexus, but also on the
part of the applicant in failing to take appropriate steps
to
ensure
.
that his instructions are promptly and properly
executed.
[1]
[12] It is trite that a
litigant, such as the first respondent
in
casu,
is
entitled to have finality to litigation. The matter relates to
marital status, which was terminated four years ago. It is, in
my
view, in the interest of justice that finality of the litigation
in
casu
be
reached without further delay.
[2]
I deem it not necessary to traverse all the other aspects raised by
the applicant.
[13] Having regard to the
above facts, and the authorities in matters of this
,
nature, in the exercise of my discretion,
[3]
I decline to exercise it in favour of the applicant but conclude that
there was an inordinate delay
[4]
coupled with remissness on the part of the applicant.
[14] It is for the
aforesaid reasons that on the 5 October 2015 this Curt granted the
following order:
That, the application for
rescission is dismissed with costs, which shall be taxed on opposed
basis including costs of counsel on
ordinary party and party scale.
____________________________
JUDGE OF THE HIGH COURT
HEARD ON THE: 05/10/15
DATE OF JUDGMENT:
15/01/2016
APPLICANT'S ATT: TSWAGO
INC. ATTORNEYS
APPICANT' S ADV: MR. K.
H. TSWAGO
T RESPONDANT'S ATT :.
SEKELE ATTORNEYS
DEFENDANT'S ADV: ADV. W.
N. MOTHIBE
[1]
Vide Chetty v Law Society, Transvaal 1985 (2) SA 756 (A).
[2]
Vide eThekwini Municipality v lngonyama Trust 2014 (3) (SA) 240 (CC)
paragraphs [24] et [28].
[3]
Vide Van Wyk v Unitas Hospital (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477A-B. Imme/man v Loubser
1974 (3) SA 816
at 8248-C.
[4]
Vide Melone v Santam Insurance Co. Ltd
1962 (4) SA 531
(AD).