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[2016] ZAGPPHC 1012
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Ramoroka v Ramoroka (39049/2013) [2016] ZAGPPHC 1012 (14 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 39049/2013
DATE
OF HEARING: 10 OCTOBER 2016
DATE
OF JUDGMENT: 14 OCTOBER 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
NOSABELO
RAMOROKA
Applicant
and
KARABO
RAMOROKA
Respondent
CORAM:
Avvakoumides AJ
JUDGMENT
AVVAKOUMIDES,
AJ
INTRODUCTION
[1]This
is an application for the rescission of a judgment taken by default
against the applicant (defendant in the main action).
The cause of
action, on the face of the particulars of claim, appears to be based
on an oral agreement allegedly concluded
between the parties in
terms of which the respondent transferred the sum of R1 000 000.00 to
the applicant in order for her to
invest on behalf of the respondent.
[2]The
cause of action is not formulated properly in the particulars of
claim and in fact, no cause of action appears to have been
made out
in such particulars, save and except that the applicant is alleged to
have refused to pay back the investment amount plus
interest accrued
thereon. What perturbs me about this application and the allegations
contained in the papers is that the bulk
of the monies allegedly
invested, belong to a minor child, who is the child of the
respondent.
[3]
The minor child was not joined to the proceedings or in any
representative capacity. There is no curator appointed. The monies
originate from the proceeds of a life policy. I have four main
concerns with the litigation. The first is that the applicant does
not appear to be a registered Financial Services Provider and
secondly that the interests of the minor child are not protected.
Thirdly, there is mention of two wills made by applicant's late
husband who was also the father of the respondent. Lastly the draft
order appears suspicious to me. There is no indication whether the
order was granted by a court or the registrar. The wording thereof
is
odd and in my view, something is amiss.
THE
DELAY IN BRINGING THE APPLICATION
[4]
There was a long delay in bringing the application. The
applicant does however set out reasons for the delay and, given
the
prevailing circumstances, I am satisfied that the delay was
justified. It is in any event, in my view, it is in the interests
of
justice that the issues be ventilated in a court in due course, given
my concerns.
BONA
FIDE DEFENCE
[5]
The applicant's version is that she was appointed as the guardian of
the minor child and thus the monies intended for the child
must be
protected by her. The respondent's version is the direct opposite.
Moreover, the respondent is the natural mother of the
minor child
and, in the absence of any exclusionary reason the respondent remains
the natural guardian of the child.
[6]
The applicant alleges that the respondent cannot be trusted with the
monies and arrangements will have to be made
to safeguard
the monies of the child. The default judgment was applied for,
allegedly because the applicant (defendant) had failed
to file a
plea. There is no indication who had filed an appearance to defend
the action on behalf of the applicant. I am
accordingly
satisfied that the applicant has set out sufficient reasons for the
judgment to be rescinded, given the prevailing
circumstances.
PREVIOUS
RESERVED COSTS
[7]
The applicant has previously applied on an urgent basis for an order
staying the execution steps pending the rescission application.
Both
counsel requested me to order that the costs of that application to
be costs in the cause. I have no difficulty with such
request.
ORDER
[8]
In the premises I make the following order:
[8.1]
the default judgment is hereby rescinded.
[8.2]the
costs of this application shall be costs in the cause.
[8.3]
The reserved costs in respect of the urgent application on 18 June
2014 shall be costs in the cause.
_________________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
14 OCTOBER 2016
Representation
for Applicant:
Counsel:
H. C. Van Zyl
Instructed
by: Wianca Fourie
Representation
for the Respondent:
Counsel:
V. M. Magwane
Instructed
by: Mapulana Maponya Inc.