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[2016] ZAGPPHC 666
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Togo v Molabe and Another (29059/2014) [2016] ZAGPPHC 666 (26 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NO:29059/14
DATE:
26 JULY 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MATEPE
MILDRED TOGO
Applicant
and
PALADI
PIET MOLABE
First Respondent
ESKOM
PENSION PROVIDENT FUND
Second Respondent
JUDGMENT
WENTZEL
AJ:
1.
This is an application for rescission of a divorce action.
The applicant avers that the respondent proceeded to obtain a decree
of divorce and other ancillary relief concerning maintenance and the
division of the parties' assets on an unopposed basis full
knowing
that she intended to oppose the action and had e-mailed a notice of
intention to oppose to the respondent and filed same
at the Court.
The respondent avers that as service of the notice of intention to
oppose via e-mail is not proper service in
terms of the Rules of
Court, he was entitled to ignore it. He did not believe that he had
any duty to draw this fact to the attention
of the Court.
2.
It is significant that at the time that the respondent
instituted action for divorce, neither of the parties were
represented.
However, both were represented by counsel in the
current application for rescission. Counsel for the applicant made
the bold
assertionthat the notice of intention to oppose must have
been clandestinely removed from the Court file so that the
respondent
could obtain the relief sought by him on an unopposed
basis on the basis that had the notice of intention to oppose been
in the
Court file, the Order would not have been granted by default.
I do not believe that this follows axiomatically and experience in
these Courts reveals that it is not unusual for documents served at
the registrar's office not to find their way to the Court
file.
3.
What is clear, however, is that the judge granting the Order
believed that the matter was unopposed. I believe that had the
learned
judge been aware that the notice of intention to oppose had
been e-mailed to the respondent, albeit defective, the Order would
not have been granted on an unopposed basis. This is particularly so
where the parties were not represented.
4.
Moreover, the respondent was not entitled to simply ignore the
defectively served notice of intention to oppose and should properly
have brought an application to set it aside as an irregular
proceeding under Rule 30 or Rule 30 A before proceeding with the
matter on an unopposed basis. (
DR
Harms,
Civil
Practice in the Superior
Courts,
Service Issue
52,
October 2014,
B-196
).However, I accept that as a lay person the respondent
may well not have known this.
5.
But there were other defective procedures followed which
should also have caused the Court to refuse to grant a divorce by
default.
Although there is a notice of set down in the file, there
is no proof that it was served on the applicant. On the assumption
that a notice of intention to oppose was served, the applicant was
not entitled to proceed on an unopposed basis without first
having
served a notice of Bar and it must be accepted that had it been
served on the applicant, she would have attended to the
service of
her plea.
6.
The Order granted has severely curtailed the applicant's
rights to spousal maintenance and division of the joint estate to
which
she was entitled by virtue of their marriage in community of
property. In terms of the Order, there was only provision for
maintenance for the minor children and there was no provision for
spousal maintenance or division of the joint estate; instead
it was
simply ordered that each party will retain their own assets. The
applicant also avers that the order for maintenance for
the minor
children is hopelessly insufficient.
7.
It is trite that if spousal maintenance is not claimed at the
time of the divorce, it is forever forfeited and cannot be claimed
at a later stage, even in changed circumstances. The major assets of
the parties in dispute are the matrimonial home which is
registered
in the applicant's name and the pension benefits of each of the
parties. My sense is that it is the applicant's entitlement
to her
half share of the respondent's pension that is the major bone of
contention between the parties and that the respondent's
pension is
substantially more valuable than that of the applicant. The
respondent insists that the applicant's entitlement to
a share of
his pension is subject to his previous wife's rights pursuant to
their divorce which has not been finalized.
8.
Although I am not seized upon to resolve this impasse, I had
hoped to persuade the parties to negotiate a way forward as
untangling
the decree of divorce at this stage which would affect
their status is not desirable. It would also have disastrous
consequences
for the respondent who has since remarried. His new
wife, who would clearly have a substantial interest in the
proceedings, has
not been joined. Whilst the respondent's third
marriage would have been validly entered into as the decree of
divorce stands
until set aside (
Oudekraal Estates (Pty) Ltd
v
The
City
of
Cape Town and others
2010 (1) SA 333
SCA),
what
then of the validity of the marriage concluded before the
application for rescission was brought were an order to be granted
setting aside the decree of divorce? A party may not have two valid
civil marriages and the inevitable result would be to void
the
respondent's marriage to his new wife. This is a result which should
if possible be avoided and is relief that I would not
be empowered
to grant without the joinder of the respondent's current wife.
9.
Counsel for the applicant has referred me to an unreported
judgment of my learned sister, Mngqibisa-Thusi J in this Court in
the
matter
of
MvM
(52110/2007) [2011]
ZAGPPHC 155 (27 May 2011)
who took an imminently sensible
approach in leaving the status of the parties unchanged and only
rescinding the proprietary consequences
of the decree of divorce
accepting that the marriage between the parties had irretrievably
broken down and that they both wished
to remain divorced.
10.
In that matter the learned judge stated:
"
What the respondent fails to appreciate is that these
proceedings are highly contested particularly in view that
both parties
had originally sought forfeiture of
benefits orders against each other. There is
a
need
for evidence
to be
led.
What is not
in
dispute
is
that
both
parties are
in
agreement
that their
marriage has
irretrievably
broken down and a decree of divorce should be granted. Taking
into consideration the facts and the circumstances of the case, I
am
of the view that the applicant is entitled with regard to the
respondent's prayer that she forfeits the benefits of the marriage
in community of property. Like any other citizen she is entitled to
have her dispute resolved in public. Judgment depriving her,
rightly or wrongly, of her rights should not have been taken in her
absence, particularly as she was sick and unable to come to
court and
had taken steps to inform the court of her
inability to be in court.
A postponement coupled with a
cost order would have been
fair. Further, the fact
that her legal representative had withdrawn
during the
trial
mitigates towards
good
cause
being
shown.
In
the premises, I am of the view that the order and ancillary
relief granted on the 21 May 2010 in the absence of the
applicant
was erroneously granted. However, in view of
the fact that the parties are in agreement that their marriage should
be dissolved,
I do not think it is necessary to rescind that part of
the order. Secondly, I am also
of the view that, in
the light of the alternative prayer in the
applicant's
notice of motion, the orders relating to that the
parties'
parental rights and responsibilities; rights of contact and access
and the
primary residence of
the
minor child should remain as they
are".
11.
I warned the applicant that should I adopt such an approach in
this matter should I find that the requirements for rescission have
been met, this may have the result that she will continue to forfeit
her entitlement to spousal maintenance as this must be claimed
at
the time of the divorce. The applicant's counsel has assured me that
this has been explained to the applicant and that both
her and her
attorney's instructions are to consent to such relief should I be
inclined to grant rescission of the contended aspects
of the Order
granted but not interfere with the decree of divorce itself. The
applicant is herself permanently employed as a scheduler
at Eskom,
is the registered owner of immovable property and would in all
likelihood not be entitled to spousal maintenance.
12.
The applicant prepared a draft Order should I be inclined to
grant rescission of the proprietary aspects of the divorce Order
granted
tendering to keep paragraphs 1, 2, 3 and 4 intact.
13.
The
net effect of this will be that the Order regarding the provision for
maintenance for the minor children and that each party
retains their
own assets in paragraphs 5 and 6 be set aside.
14.
It was not disputed that the respondent has since the divorce
paid maintenance for the three minor children at R 500 per month per
child and has in fact also been paying for their schooling. However,
the applicant states that she believes this to still be
insufficient
and she is entitled to have this issue ventilated but must bear in
mind that she is also employed and would, herself,
too have an
obligation to contribute to the maintenance of the children. This is
an aspect that can be varied in the maintenance
Court.
15.
I might also mention that should I rescind this aspect of the
Order, the applicant, and axiomatically, the minor children, may be
prejudiced in the sense that there would, until the matter is
resolved, be no Order in place for maintenance for the children
although I have no cause to suspect that should the Order for
maintenance be rescinded, the respondent would cease to pay
maintenance
; on the contrary he has voluntarily increased his
obligations to pay maintenance over and above that Ordered by
additionally
paying for the children's schooling. I am thus satisfied
that the maintenance Order also be rescinded and that this issue
also
be ventilated in the action between the parties.
16.
That
brings me to the merits of the application for rescission. I have
already indicated that I believe that the divorce order
was
erroneously granted in the face of a clear intent by the applicant
to oppose the action and her assertion that she did indeed
file a
notice of intention to oppose at Court. There is authority that this
would entitle the applicant to relief under Rule 42
without having
to establish good cause (
Tshabalala and another
v Peer
1979 4 SA 27T
;
Topal and Others
v LS Group
Management Services
1988 1 SA 639
W).
17.
However, as there no clear evidence of this, as the notice of
intention to oppose did not make its way into the Court file, it is
necessary for me to consider whether a proper case for rescission
has been made out at common law and/or under Rule 31. Both
require
that the applicant establish good cause involving her establishing a
prima facie
defence and a reasonable explanation both for her
default in failing to file a plea and for her delay in bringing her
application
for rescission.
18.
As I have said that the applicant is entitled to division of
the joint estate by operation of law as she was married to the
respondent
in community of property, I am satisfied that she has
established a
prima facie
defence to the relief sought by the
respondent and in particular to that sought by him in paragraph 6 of
his particulars of claim
that each party retain their own assets.
19.
I am also satisfied that the applicant has provided a
reasonable explanation for her default in filing a plea and her
delay in
bringing this application. With regard to the former, there
is some considerable dispute of fact. The applicant states that after
serving his summons for divorce, the parties tried to reconcile
their marriage and she was led to believe by the respondent that
he
would withdraw his action for divorce. This is denied by the
respondent who says that after being ejected from the matrimonial
home by the applicant, he instituted action for divorce and made no
attempt to reconcile the marriage nor state that he would
withdraw
his action for divorce. Whilst I am reluctant to decide this issue
on the papers, I see little purpose in referring
this aspect to oral
evidence and am prepared to accept for these purposes that the
applicant believed that the respondent did
not intend to proceed
with the action and thus did not file a plea.
20.
The
applicant states that on 29 July 2014 she telephoned the Court to
determine if the matter had been withdrawn only to find out,
after
inspection of the file, that an Order for divorce had been granted
on the terms sought by the respondent. She noted that
there was an
unsigned notice of set down in the file that had not been served on
her. She also noted that her notice of intention
to oppose was also
not in the file, nor was there any notice of bar served.
21.
The applicant states that after attempting to sort the matter
out herself she ultimately obtained the services of an attorney who
she instructed to seek a variation of the Order. Having launched
that application on 18 August 2014,the applicant later received
advice that the appropriate method of challenging the Order was to
seek rescission thereof and accordingly withdrew her application
for
variation and launched the current application. I am satisfied with
that explanation and that there was an absence of willfulness
, that
the application is
bona
fide
made and is
not made with the intention to delay the respondent's action as
required in terms of Rule 31 (2) (b).
22.
Dealing then with the issue of costs, although I am mindful
that the applicant is seeking an indulgence in seeking to rescind
the
Order granted, I must also pay due regard to the fact that the
respondent did not draw the Court's attention to the fact that
the
respondent intended to oppose the matter and proceeded with the
matter on an unopposed basis. Had he done so it is unlikely
that the
Order would have been granted on an unopposed basis and thus there
would not have been any need for the bringing of
this application
for rescission. It is on this basis that I believe that the
applicant would, had the application been brought
expeditiously, have
been entitled to costs. On the other hand, I do believe that the
respondent reasonably opposed the application
which was brought
after he had already remarried. In the circumstances I believe that
justice would be served were each party
to pay their own costs.
There
is a last aspect with which I need to deal which was not addressed
in argument and that is the joinder of the second respondent
to the
proceedings and the prayer sought that it update its records to
reflect the rescission order. The application was served
on the
second respondent and it did not oppose the application. Although
it was not a party to the proceedings sought to be
rescinded, as
there is no Order for division of the assets of the joint estate,
the applicant's entitlement to a share in the
respondent's pension
would not have been endorsed in their records. However, until such
an Order for division of the joint estate
is made, there is no
basis upon which the applicant can insist that the second respondent
update its records. A similar endorsement
would have to be made in
the second respondent's records regarding her own pension. The
effect of the Order of rescission that
I propose to make is that
this is an issue which will remain pending by the Court and can be
addressed by the Court in resolving
the proprietary consequences of
the divorce between the parties.
24
.
In the circumstances I am satisfied that there are grounds
for rescission and grant an Order in the following terms:
24.1.
Condonation for the late filing of the application is granted.
24.2.
That the order granted on 20 June 2014 in the North Gauteng High
Court, Pretoria by the Honourable Mr Justice Delport AJ
under case
number 29059/2014 is in part set aside save for the orders in
paragraphs 1, 2, 3 and 4 thereof.
24.3.
That the Applicant is ordered to file a plea in the main action
within 15 days of the granting of this Order.
24.4.
I make no order as to costs.
Signed
and dated on this 29th day of June 2016.
For
the Applicants: VB Tshabalala Attoneys Tel no: 011 333 1977
For
the Respondents: Makinta Attorneys Tel no: 012 703 3815
S.M
WENTZEL
Acting
Judge of the High Court of South Africa Gauteng Division, Pretoria