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[2016] ZAFSHC 35
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B and Another v B, In re: B v B (3149/2013) [2016] ZAFSHC 35 (11 February 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3149/2013
In
the matter between:
W.
P. B.
1
st
APPLICANT
M.
O. CC
2
nd
APPLICANT
and
D.
L. B.
RESPONDENT
In
re
D.
L. B.
PLAINTIFF
and
W.
P. B.
DEFENDANT
CORAM:
NAIDOO, J
HEARD
ON:
29 OCTOBER 2015
DELIVERED
ON:
11 FEBRUARY 2016
[1]
This is a bitter matrimonial dispute arising from a final order of
divorce obtained by the respondent against the applicant,
on an
unopposed basis. Mr S Tsangarakis represented the applicant and Mr HJ
Benade represented the respondent in this court. There
are three
applications which ser
ve
before this court. They are:
(i)
The current application, bearing the abovementioned case number,
where the applicant seeks an order rescinding the final order
of
divorce and the ancillary orders related thereto;
(ii)
an application, bearing case number 4299/2015, which was
brought
on an urgent basis by the applicant, to prevent the
respondent
from making withdrawals from the bank account
of
one of their businesses, and
(iii)
an application against the applicant, bearing case number
4578/2015,
brought on an urgent basis by the respondent
and
a close corporation, which also formed part of the businesses that
the parties ran together. The relief sought was in essence
to prevent
the applicant from making further withdrawals from the bank account
of the close corporation and to initiate a forensic
investigation
into the business
affairs
of the parties. I will deal further with these applications in the
body of this judgment
[2]
The background in this matter is, briefly, that the applicant and
respondent were married to each other since 3 August 1996.
They have
two daughters, the older one being W., a twenty year old university
student at the date of the hearing of this matter,
and the other, M.,
who was15 years old at the date of this hearing. The parties
conducted three successful businesses together,
the applicant
attending to the operational side of such businesses while the
respondent attended to the bookkeeping and administration.
The living
expenses of the parties were paid by the businesses. From the papers,
it is clear that the parties have substantial
assets, and that they
and their children enjoyed a very high standard of living. However,
there was clearly trouble in paradise.
[3]
The respondent issued summons against the applicant in August
2013, in which she sought an order of divorce and other
relief,
including maintenance for herself and her two daughters, both of whom
were minors at that time. The summons was served
on the applicant on
30 August 2013, which he did not defend. The final order of divorce,
together with the other relief sought
by the respondent, was granted
on 3 October 2013. It appears that both parties continued to live in
the matrimonial home, a farm
in Douglas Valley, Free State. At the
beginning of 2015, the respondent became involved in a relationship
with another man. She
moved out of the matrimonial home with her
younger daughter in July 2015 and took up residence elsewhere. This
appears to have
escalated the acrimony and bitterness between the
parties, culminating in the three applications now before this court.
[4]
On 7 September 2015, the applicant brought the application for
rescission under case number 3149/2013. On 8 September 2015,
the
applicant launched the application mentioned under paragraph 1(ii)
above, and obtained an interim order, which I will deal
with later.
On 25 September 2015, the respondent brought the application
mentioned under paragraph 1(iii) and she too obtained
the interim
order that she sought. I will now deal with each of the applications
I have mentioned earlier.
Case
Number 4578/15
[5]
The respondent sought an order against the applicant and the close
corporation known as M. O. CC (M.), in essence interdicting
the
applicant and M. from making further withdrawals against the bank
account of a close corporation known as Free State Creative
Interiors
BK (the second applicant in this application), and one in which the
respondent is the sole member. The respondent further
sought an
interdicting the applicant and M. from debiting any further expenses
against the account of Free State Creative Interiors.
She also sought
orders against the applicant relating to other business activities
and an order that their (her and the applicant’s)
business
activities be subjected to a forensic audit.
[6]
The court hearing the matter on 25 September, granted an order in the
following terms:
“
1.
2.2 Die respondent verbied word
om enige verdere onttrekkings te
maak
uit die bankrekeninge van onderskeidelik die tweede applikant.
2.3
Dat respondent verbied word om enige verdere uitgawes te debiteer
teen die rekening van
tweede applikant.
2.
Paragrawe 2.2 tot 2.3 hierbo sal geld as tussentydse interdik met
onmiddelike regskrag en
werking en dat indien enige van die partye
sou weier en/of versuim om onmiddelik die rekenaarstelsels and
boekhouding aan die forensiese
ouditeurs te oorhandig, die Balju van
die Agbare Hof geregtig sal wees om daarop beslag te lê en dit
aan die forensiese oudituers
te oorhandig. (
The
reference to paragraphs 2.2 and 2.3 relates to the numbering of those
paragraphs in the Notice of Motion)
3.
Beide aansoeke 4299/2015 en 4578/2015 was saam geargumenteer”
The
court does not appear to have made any separate or specific order in
respect of case 4299/2015, even though it was argued. The
two counsel
who appeared before me did not elaborate on the content or extent of
the argument before the court granting the order
referred to above.
[7]
During the proceedings before me, I was advised that both parties
agreed, and requested, that the interim order mentioned above,
granted by the court on 25 September 2015, be made final. It was
accordingly made final.
Case
Number 3149/2013
[8]
As indicated above, the respondent obtained a final order of divorce,
together with other relief against the applicant on 3
October 2013
(the divorce order). The divorce order provided for the parental
rights and duties pertaining to the minor children,
maintenance for
the children and respondent, and for the division of the joint
estate. The part of the order that appears to be
the bone of
contention is that pertaining to maintenance. The applicant was
ordered to pay an amount of
Twenty
Five Thousand Rand (R25 000.00)
per month in respect of W. and
Twenty
Thousand Rand (R20 000.00)
per month in respect of M., such payments to commence on the first
day of the month following the date of the final order of divorce.
Thereafter payments were to be made on or before the first day of
each succeeding month. The applicant would also be responsible
for
the children’s reasonable, fair and necessary medical, dental
and ophthalmological costs. The applicant was furthermore
ordered to
pay maintenance in an amount of
Twenty
Five Thousand Rand (R25 000.00)
per month in respect of the respondent, on the same payments terms as
those relevant to the children. In addition, the applicant
was
ordered to pay the respondent’s reasonable, fair and necessary
medical costs. The maintenance orders were subject to
a yearly
increase of ten percent (10%). The court also ordered the division of
the joint estate. The order provided for costs to
be costs in the
action.
[9]
The respondent launched this application for rescission on 7
September 2015, in which he sought an order:
(i)
setting aside the divorce order,
(ii)
granting him leave to defend the divorce action, and
(iii)
costs in the event of opposition.
The
respondent opposed this application on the basis that the applicant
did not make out a case for the relief that he sought, and
included
in her opposing affidavit a great deal of detail and information in
support of her contention that she and the applicant
did not live as
man and wife before or after the divorce, that it was an unhappy
marriage and that she entered into a relationship
with another
person, after informing the applicant of her intention to do so. The
respondent’s Replying Affidavit served
largely to deny the
respondent’s allegations, and added to the already large amount
of information in the Opposing Affidavit.
[10]
Rule 27(1) of the Uniform Rules of Court provides:
“
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending or abridging any
time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as to it
seems
meet”
The
requirement of “good cause” to be shown is repeated in
sub-rule (3) which provides that “The court may, on
good cause
shown, condone any non-compliance with these rules”.
These
two sub-rules of Rule 27 provide the court with a wide discretion to
condone non-compliance with the Rules. It is clear, however,
that an
important safe guard is that good cause must be shown.
[11]
Rule 31, Rule 42(1) and the common law make provision for the
rescission of a judgment. Rule 31(2)(b) provides that “A
defendant may within twenty one days after he or she has knowledge of
such judgment apply to court on notice to the plaintiff to
set aside
such judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems meet”.
Rule 41
makes provision for the setting aside of a judgment which is
erroneously granted, where it contains an ambiguity, patent
error or
omission, or where it is obtained as a result of a mistake common to
the parties. Neither of these Rules is applicable
to the present
matter. The application must, therefore, be dealt with in terms of
the common law, which obliges the applicant to
have brought the
application for rescission within a reasonable time. As I indicated,
Rule 31(2)(b) stipulates a period of 21 days
within which an
application for rescission may be brought, and this, in my view, is a
good guide as to what may be considered a
reasonable time for a
rescission application in terms of the common law. The requirement to
show “good cause” must
similarly be complied with whether
the application for rescission is brought under Rule 31, Rule 42 or
the common law.
[12]
Both counsel referred to a number of cases in their Heads of
Argument, which state similar principles to those set out in
Smith
NO vs Brummer No.
1954 (3) SA 352
(OPD
), where compliance with
certain requirements was stipulated in order for a court to grant
removal of Bar. These bear mentioning
and are set out on p358A:
(a)
The
Applicant has given a reasonable explanation for his delay
(b)
The
application is bona fide and not made with the object of delaying the
opposite party’s claim.
(c)
There
has not been a reckless or intentional disregard of the Rules of
Court
(d)
The
Applicant’s action is clearly not ill-founded
(e)
Where
prejudice has been caused to the opposite party it must be capable of
being compensated for by an appropriate order as to
costs.
Exactly
the same considerations apply when a rescission of judgment is
sought. Mr Tsangarakis, in his Heads referred to
Silber
v Ozen Wholesalers (Pty) Ltd 1954(2) SA 345 (A)
,
where the court said at page 352 that “good cause”
includes, but is not limited to the existence of a substantial
defence.
[13]
The applicant in this matter knew about the divorce action on 30
August 2013, when the summons was served on him personally.
He
alleges that he did not defend the action because the respondent
assured him that he need not worry about it. Even if there
was an
attempt at reconciliation, it seems that such attempt was not very
successful, as the respondent proceeded to obtain a final
order of
divorce two months later. She brought such order to the applicant’s
notice, according to him, shortly after 3 October
2013. Although they
lived together in the same house, the papers clearly speak of discord
between them. Contrary to the allegations
by the applicant that the
parties shared a bed and conducted their lives in a normal family
relationship, the affidavit by the
domestic helper, Ms M. supports
the respondent’s denial that this was so, and her contention
that the parties lived in separate
bedrooms prior to August 2013.
[14]
The applicant alleges he was misled by the respondent into believing
that there was no need for him to defend the matter, and
that he
believed that they had reconciled their differences. The applicant is
an astute and successful businessman, who owns considerable
assets.
This speaks of a certain level of intelligence and sophistication
which belies the image that he attempts to portray of
himself as the
unsuspecting and trusting husband who was so gullible that he was
taken in by his wife’s wicked ways. He is
clearly also a person
with the resource of legal representatives at his disposal. If the
amounts claimed in respect of maintenance
were so much out of his
reach, it is difficult to believe that he would not have, at the very
least, sought an opinion with regard
to the possible consequences for
himself. I am constrained to accept that that he was not alive to the
fact that there were serious
problems in his marriage that
necessitated his taking action in respect of the summons and the
consequent final order of divorce.
The respondent took up a
relationship with another man in February 2015. This must surely have
been the clearest indication that
there was a complete and
irretrievable breakdown of the marriage relationship. I find that the
applicant’s version that the
parties continued to live together
as husband and wife until April 2015 is not credible. I, therefore,
do not accept the applicant’s
explanation for the delay in
bringing the rescission application within a reasonable time.
[15]
The applicant does not, in fact, take issue with the fact that the
marriage between him and the respondent has broken down
irretrievably. He also appears to agree that the joint estate should
be divided as provided for in law, and hence indicates his
acceptance
of the court order for the division of the joint estate. His only
issue therefore, is with the maintenance order. The
applicant
attempts to argue that it will be appropriate for this court to grant
a partial setting aside of the divorce order by
allowing the divorce
to remain intact but setting aside only the order in respect of
maintenance. This, in my view, is opportunistic
and an untenable
proposal. The applicant seeks not only to avert payment of the
substantial arrears that have accumulated in respect
of maintenance,
but clearly to disadvantage the respondent in that she will be
obliged to start at the proverbial square one in
respect of
maintenance. The applicant ought to, more appropriately, have
approached this court for a variation of the divorce order
with
regard to maintenance, alternatively the Maintenance Court for a
decrease in maintenance. In my view, the respondent has failed
to
show that he has a
bona
fide
defence to the action instituted by the respondent. Similarly, I find
that this application is ill-founded and lacks
bona
fides
,
and that the respondent has failed to make out a case for the relief
he seeks.
Case
Number 4299/2015
[16]
The applicant moved this application on an urgent basis. The second
applicant is M. O. CC. The applicant sought and obtained
an interim
order, calling on the respondent to show cause why an order in the
following terms (loosely translated) should
not be granted (for
the sake of clarity, I shall use the numbering employed in the Notice
of Motion):
2.1
The respondent is prohibited from making any further withdrawals
from the bank account of
the second applicant;
2.2
The respondent is ordered to hand over to the applicant, the computer
system and the entire accounting
system of the second applicant,
including all documentation relevant to the accounting system of the
second applicant;
2.3
The respondent to pay the costs of the application.
3.
An interim order, with immediate effect, is issued authorising and
directing the Sheriff of the
Court to take possession of the computer
system and accounting system of the second applicant, and to hold it
in safekeeping until
the finalisation of this application.
[17]
The applicant’s founding affidavit sets out in detail the
manner in which he and the respondent ran their business operations.
He confirmed that the respondent is the sole member of the close
corporation known as Free State Creative Interiors CC while he
is the
sole member of the second applicant, M. O. CC. He also confirmed that
the businesses were run by them jointly as one entity.
He attended to
the operational side of the business while the respondent took care
of the accounting and administrative side. When
the respondent moved
out of the matrimonial home in July 2015, she took with her the
entire computer and accounting systems of
both close corporations and
despite repeated requests, failed to return them to the applicant.
[18]
The applicant also included a great deal of information relating to
the withdrawal of funds by the respondent from certain
of the
business accounts, without his knowledge, and accuses the respondent
of fraud and theft. In my view, this information was
irrelevant to
the order he sought, and is not within the purview of the issues that
this court is tasked with adjudicating. Bearing
in mind that the
businesses were run jointly by the parties as one business, from
which all their living expenses were drawn, such
allegations and the
terminology employed in the founding affidavit are an illustration of
the bitterness and acrimony that exists
between the parties. The
applicant accused the respondent of polluting the papers with
unnecessary information in the rescission
application, but has
himself done just that in this application. It is unnecessary for
this court to deal with the allegations
of “theft” and
“fraud” or the manner in which the businesses were run.
[19]
The respondent for her part, answered the founding affidavit with an
equal amount of (often unnecessary) detail. When regard
is had to the
order sought, only two issues become relevant. The first is the
respondent’s access to the bank accounts of
the second
applicant (M. O. CC) and the second issue is the return of the
computer and accounting systems relevant to the second
applicant. The
respondent alleged that her signing powers in respect of the second
applicant’s bank accounts were cancelled
and that a separate or
new bank account appears to have been opened. The respondent does not
dispute this. The first order prayed
would effectively have been
addressed by the cancellation of the respondent’s signing
powers and/or the opening of another
bank account. She no longer has
access to the second applicant’s bank accounts and is therefore
unable to make withdrawals
against such bank accounts.
[20]
With regard to the return of the computer and accounting systems, the
respondent admits that she took these with her when she
moved out of
the matrimonial home. In view of her being replaced as the second
applicant’s bookkeeper, there is no need for
the respondent to
have these systems in her possession. In any event, the court order
granted under case number 4578/2015 specifically
makes provision for
the parties to submit their business records for forensic audit and
such records as are in her possession would
have to be surrendered.
My view is, therefore, that the interim order granted in respect of
the return of the second applicant’s
computer and accounting
systems should be made final. With regard to the issue of costs, the
usual practice is that costs follow
the result. Although the
applicant is partially successful in this application, the conduct of
the parties in this application,
namely in unduly burdening the
papers with unnecessary and unsavoury information, with the clear
intention of discrediting each
other, persuades me that a costs order
indicating the displeasure of this court is called for.
ORDER
[21]
In the circumstances, I make the following orders:
In
respect of Case Number 3149/2013:
21.1.
The application for rescission of the divorce order is dismissed with
costs.
In
respect of Case Number 4299/2015:
21.2
The rule nisi in respect of paragraph 2.1 of the Notice of Motion is
discharged;
21.3
Paragraphs 2.2 and 3 of the Notice of Motion are confirmed
21.4
Each party is to pay his/her/its own costs
____________
S.
NAIDOO, J
On
behalf of Applicant: Mr
Tsangarakis
Instructed
by:
Honey Attorneys
Honey
Chambers
Northridge
Mall
Kenneth
Kaunda Road
BLOEMFONTEIN
(Ref:
RJ Britz)
On
behalf of Defendant : Mr HJ Benade
Instructed
by:
Goodrick & Franklin
95A
Aliwal Street
BLOEMFONTEIN
(Ref:
R Coetzee/ndp/B530)