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[2016] ZAGPPHC 341
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Phiri v Phiri and Others (39223/2011) [2016] ZAGPPHC 341 (14 March 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 39223/2011
DATE:
14 MARCH 2016
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] The applicant
seeks leave to appeal to the Full Court of this Division against the
whole of judgment granted by this Court on
the 5 October 2015.
[2] The notice for
leave to appeal stated that the grounds for the application are that
this Court erred in one or more of the following
grounds:
(a) by granting the
said judgment against the applicant;
(b) by ordering the
applicant to pay the costs;
(c) in the
above-sfated premises, the applicant maintains that a different court
would have come to a different conclusion than
one arrived at by this
Court.
[3] The notice
further stated that the applicant will amend, or add or vary the
grounds / reasons for the application for leave
to appeal herein upon
receipt of the reasons of the judgment which has been already
requested in terms of Rule 49(1)©. This
notice for leave to
appeal was filed with the registrar of this Court on the 29 October
2015.
'4] It needs
mentioning that on the 5 October 2015 this Court dismissed the
applicant's application for rescission with costs and
indicated that
reasons will follow. These were furnished on the 15 January 2016. To
date there has been no amendment or amplification
of the grounds upon
which leave to appeal is sought. I shall in due course revert to this
issue.
[5] There were no
heads of argument filed by any of the parties. Counsel for the
applicant submitted that the court erred in the
following respects:
5.1 The applicant
had filed a notice of intention to defend on the 22 June 2011. This
notice to defend was defective in that it
erroneously provided an
incorrect case number "39223/14" instead of "39223 /
2011". The respondent's attorneys
of record were not supposed to
ignore the notice and proceed to set down the matter on unopposed
roll and obtain the default judgment.
The Court erred in finding that
the defendant was at liberty to ignore this defective notice of
intention to defend, regard being
had to the fact that the matter
related to marital status. In spite the defective notice of intention
to defend there was substantial
compliance with rule 19 of the
Uniform Court Rules. The defective notice to defend should have been
brought to the attention of
the Court when the first respondent
obtained the divorce order by default in the absence of the
applicant.
5.2 It was further
submitted that in the matter of Sheriff Pretoria-East v Flink and
another
2005 SA 492
(T) ALL SA at 507 the Court held that "...once
it is has been shown that the judgment was erroneously sought and
granted,
the discretion should be exercised in favour of the
applicant without further inquiry.The same would equally apply where
judgment
has been erroneously given at the very commencement of a
matter; say for instance where a defendant's properly served and
filed
notice of intention to defend was somehow ignored. 'In such
instance a proper exercise of the discretion will probably
indicate that the
procedure should simply be restored, and the defendant be allowed to
set up his defense by way of a plea to be
filed in due course and
without having to disclose for purposes of rescission. But it remains
discretion to be exercised with reference
to all the relevant
circumstances. Fairness, as well as pubic interest in the finality of
justice demands that."
[6] It was further
submitted on behalf the applicant that because there was substantial
compliance in filing a notice of intention
to defend, albeit its
defect, the respondent's attorneys were not supposed to ignore it. It
is submitted that this Court erred
in its finding that: "[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." It
was further contended that the respondent's
attorneys were duty bound
not to ignore the said notice and should have brought it to the
attention of the Court that there was
a defective notice of intention
to defend, thus allowing the Court to apply its mind on this aspect.
It is contended that another
court will find differently on this
aspect.
[7] On behalf of the
respondent it was submitted firstly that the applicant's notice of
leave to appeal, as it it stands is not
compliant with the rules. The
applicant is not at large to raise through submission over the bar,
any issue not raised in its notice
for leave to appeal, otherwise
that becomes an abuse of the Court process.
[8] Secondly, it was
submitted on behalf of the respondent that the final divorce was
granted on the 14 August 2011. This terminated
the marital status of
the parties but ordered division of the assets of the parties and
therefore there is no prejudice suffered
by the applicant. On the
contrary there would be great prejudice on the part of the respondent
because the application for rescission
was brought almost three years
later after the pronouncement of the divorce.
[9] An application
for leave to appeal is in terms of Rule 49 of the Uniform Court. Rule
49(l)(b) of the Uniform Court Rules provide
as follows: "When
leave to appeal is required... application for such leave shall be
made and the grounds thereof shall be
furnished..." The use of
the word "shall" denote that this sub rule is peremptory.
The applicant must set out the
grounds upon which he seeks to appeal.
In the matter of Sogono v Minister of Law Order
1996 (4) SA 384
(ECD)
the Court held at 3851—386A that: "... the grounds of
appeal required under Rule 49(l)(b) must ...be clearly and
succinctly
set out in clear and unambiguous terms so as to enable the Court and
the respondent to be fully and properly informed
of the case which
the applicant seeks to make out and which the respondent is to meet
in opposing the application for leave to
appeal. .. Rule 49(l)(b)must
also be regarded as being peremptory"
[10] in casu, the
grounds tabulated in paragraph [2] supra, can hardly qualify to be
grounds. In this regard the notice for leave
to appeal is fatally
defective and on this ground alone the application for leave to
appeal should be dismissed. It does not help
the applicant to marshal
grounds of appeal over the bar which have not been set out clearly
and succinctly in the notice of leave
to appeal, no matter how
meritorious these might be, which is not the case in my view,
otherwise, there is no need for the Rules;
vide Xayimpi v Chairman
Judge White Commission (formerly known as Browde Commission
[2006] 2
ALL SA 442
E at 446i-j.
[11] In the event I
am wrong, in the conclusion set out in the preceding paragraph, which
is not conceded, I am of the view that
in the exercise of my
discretion I must still dismiss the application for leave to appeal.
I hold the view that there is no reasonable
prospect of success of
the appeal. A court of appeal is loath to entertain an appeal which
is of academic consequences. In casu,
the parties have been
pronounced divorced for more than at least four years. The relevant
divorce decree severed the marital umbilical
cord of the parties.
There would be great prejudice to the first respondent were she to be
catapulted into a 'dead" marriage.
Besides, the order of divorce
pronounced that the assets of the parties from the marriage shall be
divided. There is no prejudice
suffered to the parties by this order
of division. There is no purpose in reviving the "dead
marriage".
[12] I further take
into account that there was an inordinate delay on the part of the
applicant in bringing the application for
rescission. In this regard
there is no reasonable prospect that another court will find
otherwise.
[13] Taking into
account all the aspects I have referred to herein above, 1 conclude
and so order that the application for leave
to appeal should and is
dismissed with costs.
N.M MAVUNDLA
JUDGE OF THE HIGH
COURT
HEARD ON THE :
10/03/2016
DATE OF JUDGMENT
: 14/03/2016
APPLICANT'S ADV :
ADV K. H. TSWAGO
INSTRUCTED BY:
TSWAGO INC ATTORNEYS
1ST RESPONDANT'S
ADV : MR L.E. SEKELE
INSTRUCTED BY :
SEKELE ATTORNEYS