About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 170
|
|
M v M (5710/2010) [2014] ZAFSHC 170 (5 September 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : 5710/2010
DATE:
05 SEPTEMBER 2014
In matter
between:
SISINYANE ABIGAIL
MAJAPHAGE
.......................................
Applicant
And
GABOKGANENWE
KLAAS MAJAPHAGE
.........................
Respondent
HEARD ON: 04
SEPTEMBER 2014
JUDGMENT BY:
MOTLOUNG, AJ
DELIVERED ON: 05
SEPTEMBER 2014
Introduction
[1] This is an
application for rescission of the divorce order that was granted by
this court on the 23 December 2010 in the absence
of the applicant.
[2] On the 23
December 2010 the court granted a divorce order in the following
terms, following upon the applicant not entering
appearance to defend
the action:
2.1 That the bonds
of marriage subsisting between plaintiff [responden] and defendant
[applicant] be and are hereby dissolved.
2.2 That care and
custody of a minor child born of the marriage ….is awarded to
the plaintiff….subject to the defendant’s
right to
reasonable contact and access……..
2.3 That the
benefits of the marriage in community of property is forfeiture
(quoted without amendation).
[3] The applicant
subsequently launched an application for the rescission of all orders
of the court, together with ancillary relief,
and also incorporated
an application for condonation regarding the late filing of the said
rescission application. In her notice
of motion and the founding
affidavit, respectively, the applicant phrased her prayer in respect
of the divorce order in the following
terms:
“2. That
judgment which was granted in this honourable court on the 23rd of
December 2010 under case number 5710/2010 be rescinded”
(prayer
2 of the notice of motion), [and]
6. This is an
application to rescind the oreder that was granted by the honourable
Justice CB Cillie in the above honourable court
under the above case
number on the 23rd December 2010” (para 6 of the founding
affidavit).
[4] The respondent
is opposing both applications for rescission and for condonation.
Facts briefly
[5] The applicant
and the respondent were married to each other in community of
property on the 20 April 2005 and one minor child
by the name of
Kabo, a boy aged approximately nine years at the time of divorce
(December 2010) was born between them. The respondent
caused the
divorce summons to be issued against the applicant in November 2010.
In his particulars of claim, the respondent alleged
that the marriage
relationship had broken down irretrievably and that there were no
reasonable prospects of reconciliation between
them. He then stated
his groundsfor the divorce, custody of the minor child and an order
for forfeiture of benefits arising from
the marriage. The summons was
duly served on the applicant but no notice of intention to defend the
action was filed and the matter
was subsequently heard as a judgment
by default in the absence of the respondent (who had not entered
appearance to defend).
Having heard the
matter, the court went on to grant the orders mentioned above –
which included an order for custody of the
minor child in favour of
the respondent, and an order for forfeiture of benefits arising from
the marriage against the applicant.
It is particularly these two
latter orders that are essentially the centre of this litigation, as
will appear later in this judgment.
[6] The applicant
approaches this court for an order rescinding, in the main, the
orders for custody and forfeiture. The heads of
argument filed on
behalf of the applicant state the following at para 2.5:
“Argument will
be presented on behalf of applicant to the effect that applicant is
entitled to rescission of judgment but
not to prayer 1 but only
prayers 2 and 3 of the divorce order, which will enable the applicant
to oppose prayers 2 and 3 of the
main action under case number
5710/2010”.
The trajectory of
this litigation
[10] The following
facts are either common cause or not seriously disputed: The
applicant launched this applicaction for rescission
of judgment on
the 15 February 2011 through the Legal Aid offices called the
Bloemfontein Justice Centre, which was served on the
respondent on
the 18 February 2011. The respondent filed an answering affidavit on
the 21 April 2011, after which the applicant
filed her replying
affidavit on the 1 November 2011.
The facts as regards
what transpired thereafter between November 2011 and the set-down of
this matter on the 23 July 2014 for the
4 September 2014 are very
sketchy and virtually unknown, save for the fact that the court file
shows that the applicant applied
for a report by the Family Advocate
in December 2012 and that there was previously a notice of removal of
the matter from the roll
of the 15 August 2013, after it had been set
down per notice of set-down filed on the 24 July 2013.
Some of the
applicable legal principles
[11] The application
is being brought in terms of Rule 31 of the rules of this court.
Subrule 31(2)(b) states that:
“A defendant
may within twenty days after he or she has knowledge of such judgment
apply to court upon 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” (my
emphasis).
[12] In discussing
the phrase “the court may upon good cause shown”, Erasmus
in Superior Court Practice (Service 38,
2012) at B1-201, and with
reference to Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at
476-477 which he states was cited with approval in a number of other
decisions in the other divisions mentioned by him (including
the SCA
in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 9F, states the following:
“The
requirements for an application under the subrule have been stated to
be as follows:
(a) He (i.e
applicant) must give a reasonable explanation of his default. If it
appears that his default was wilful or that it was
due to gross
negligence the court should not come to his assistance.
(b) His application
must be bona fide and not made with the intention of merely delaying
plaintiff’s claim.
(c) He must show
that he has a bona fide defence to the plaintiff’s claim. It is
sufficient if he makes out a prima facie
defence in the sense of
setting out averments which, if established at trial, would entitle
himto the relief asked for. He need
not deal fully with the merits of
the case and produce evidence that the probabilities are actually in
his favour” (my emphasis).
[13] Erasmus also
states at B1-203 with reference to Galp v Tansley NO
1966 (4) SA 555
(C) that:
“In Silber v
Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) the Appellate Division
held that “good cause” includes, but is not limited to,
the existence of a substantial defence.
It has been held that the
requirement of “good cause” cannot be held to be
satisfied unless there is evidence not only
of the existence of a
substantial defence, but in addition, of the bona fide presently held
desire on the part of the applicant
for relief actually to raise the
defence concerned in the event of the judgment being rescinded”.
Erasmus goes on to
state further at B1-204, with reference also to PLJ Van Rensburg en
Vennote v Den Dulk
1971 (1) SA 112
(W), that:
“The
requirement that the applicant for rescission must show the existence
of a substantial defence does, however, not mean
that he or she must
show a probability of success: it suffices if he or she shows a prima
facie case, or the existence of an issue
which is fit for trial”.
Erasmus further
states at B1-204, with reference to other decided cases, that:
“The applicant
need not deal fully with the merits of the case, but the grounds of
defence must be set forth with sufficient
detail to enable the court
to conclude that there is a bona fide defence, and that the
application is not made merely for the purpose
of harassing the
respondent. Where the applicant has provided a poor explanation for
default, a good defence may compensate. In
circumstances where the
strength of the defence on the nerits becomes crucial, the applicant
must furnish sufficient information
to satisfy the court that he or
she has a good defence. The court has a wide discretion in evaluating
“good cause”in
order to ensure that justice is done. For
this reason the courts have refrained from attempting to frame an
exhaustive definition
of what would constitute sufficient cause to
justify the grant of an indulgence for any attempt to do so would
hamper the exercise
of the discretion” (my emphasis).
[14] In RGS
Properties (Pty) Ltd v Ethekwini Municipality
2010 (6) SA 572
(KZD)
at 575G-576C, the court stated the following:
“I may add to
this principle that judgment by default is inherently contrary to the
provisions of s 34 of the Constitution.
The section provides
that everyone has the right to have any dispute that can be resolved
by the application of the law decided
in a fair public hearing before
a court, or, where appropriate, another independent and impartial
tribunal or forum. Therefore,
in my view, in weighing up facts for
decision, the court must on the one hand balance the need of an
individual who is entitled
to have access to access to court, and to
have his or her dispute resolved in a fair public hearing, against
those facts which
led to to the default judgment being granted in the
first instance. In its deliberation the court will no doubt be
mindful, especially
when assessing the requirement of reasonable
cause being shown, that while among others this requirement
incorporates showing the
existence of a bona fide defence, the court
is not seized with the duty to evaluate the merits of such defence.
The fact that the
court may be in doubt about the prospects of the
defence to be advanced, is not a good reason why the application
should not be
granted. That said however, the nature of the defence
advanced must not be such that it prima facie amounts to nothing more
than
a delaying tactic on the part of the applicant” (my
emphasis).
Facts that are
relevant to the enquiry
[15] Having due
regard to the authorities referred to above, and a myriad of other
authorities not specifically referred to in this
judgment, the
following facts are relevant to this matter and are either common
cause or not seriously disputed: The judgment by
default was granted
two days prior to the Christmas day (23 December 2010) and it came to
the knowledge of the applicant on the
same day. By the 15 February
2011, the applicant had taken steps, through the Legal Aid offices,
to prepare this application for
rescission, and the application was
served on the respondent by the 18 February 2011 (within three days
of preparation). The respondent
filed his notice to oppose the
application and subsequently filed his answering affidavit on the 21
April 2011, after which the
applicant filed her replying affidavit on
the 1 November 2011. On the 12 December 2012 the applicant
requisitioned a report by
the Family Advocate pertaining to the minor
child, and the Family Advocate submitted such a report to the
applicant on the 26 June
2013, whereafter the matter was placed on
the roll for hearing on the 15 August 2013 per notice of set-down
filed on the 23 July
2013. On the 14 August 2013 (the eve of the
scheduled date of hearing), the matter was removed from the roll by
notice to the respondent.
The said notice of removal stated, amongst
others, that the matter is “removed from the roll as per
agreement between the
parties”. The matter was finally set down
for hearing on the 4 September 2014 (approximately a year after its
previous removal
per agreement between the parties) per notice of set
down filed on the 23 July 2014.
[16] Mrs Ooosthuizen
from the Legal Aid Board, Bloemfontein Justice Centre, appeared for
the applicant and Mr Hadebe, an attorney
in private practice,
appeared for the respondent. It is worth noting, in my view, that
whereas Mr Hadebe represented the respondent
at all material times
(from the beginning of the divorce proceedings up to today), Mrs
Oosthuizen is the third attorney from the
Legal Aid to represent the
applicant in this matter.
Mrs Oosthuizen
indicated during argument that she did not prepare the heads of
argument in the matter and that she did not bear
intimate knowledge
of the history of the matter apart from what she could glean from the
file and that two other attorneys from
the Legal Aid (her centre)
previouslt dealt with the matter. This information was not challenged
during argument, and I thus accept
it as correct.
Submissions on
behalf of the parties
[17] Mrs Oosthuzen
conceded that if the dies non did not suspended the running of the
dies, the applicant’s application was
most probably launched
out of time, but submitted that even if the court was to find that
the applicant was remiss in respect of
prosecuting the application,
in that it was filed out of time and there is no reasonable
explanation for the delay in prosecuting
it subsequent to its
launching, the court should exercise its discretion in favour of the
applicant as she even referred the matter
to the Family Advocate to
show that she is serious about defending it, and she has stated facts
upon which she relied as constituting
the bona fide defence with
respect to the custody and forfeiture issues. She submitted that on
the merits the applicant was not
in wilful default as regards failure
to note an appearance to defend and that she has made out a case for
a bona fide defence as
as she would have shown at trial that it would
have been in the best interests of the minor child to have its
custody awarded to
the her, as the respondent was seldom at home as
he worked in Kuruman and often away on business, during which period
she stayed
with the child in Welkom and took care of the child, who
consequently became emotionally attached to her. She also submitted
that
the applicant would have led evidence to show that she also
contributed to the upkeep of the common home, looked after the minor
child on her own and transported the child to and from school every
day, and made certain financial sacrifices to the benefit of
the
common household, without which the joint estate would not have grown
to what it was. She concluded by submitting that the
respondent
would be unduly benefited by an order for forfeiture against her, and
in converse, the respondent would unduly benefitted.
She also
indicated that she did not draft the applicant’s heads of
argument, and expressed doubt as to whether it was legally
feasible
for the court to rescind only the orders regarding custody and
forfeiture, without necessarily also rescinding the divorce
order.
She asked the court to grant the relief sought by the applicant.
[18] On the other
hand, Mr Hadebe submitted that the dies non only apply to the filing
of a notice of intention to defend and not
to the application for
rescission. He lamented the applicant’s delay in failing to
launch her application on time –
and more especially the
inexplicable delay in prosecuting the matter to finality since
launching the application in February 2011.
He implored the court to
find that there was no reasonable explanation for the said delays,
notwithstanding that there was an application
for condonation, which
was hopelessly inadequate, in his view.
He even alluded to
the fact that the respondent has been remarried in April 2014 and
that a rescission order would have far-reaching
and complicating
results for the respondent, who was perfectly entitled in law to get
remarried, being armed with the judgment
by default. He submitted
that the applicant had also failed to show that she has a bona fide
defence. He also submitted that the
applicant should have used the
variation application option offered in terms of Rule 42, which the
applicant elected not to use,
and concluded by asking the court to
dismiss both applications – for condonation and rescission.
Application of the
legal principles to the facts of this case
[19] I start off by
listing those facts that I consider very pertinent to the
adjudication of the matter, which are the following:
19.1. Whilst Mr
Hadebe is correct in his submission that the dies non only apply to
the notice to defend, the delay in launching
the application herein
was not inordinate. It was a delay enmeshed in the end of the year
Christmas and New Year holidays and the
concomitant beginning of the
new year, when most entities are still closed for the holidays, and I
am of the view that I can take
judicial notice of the fact that most
entities only engage in earnest business from around the middle of
January in the new year.
The applicant states that she approached the
Legai Aid on the 5 January 2011 and was informed there that her
intention to challenge
the orders of December 2010 would be attended
to.
Whether her
allegation in this respect is sufficiently founded in her founding
affidavit or not – in respect of which I find
it unnecessary to
make a finding – and thus refrain from doing so, as I am of the
view that nothing turns on this point in
the light of my other
reasons for my judgment – is irrelevant. The fact of the matter
is that the extent of the delay is
not the one to raise eyebrows,
especially if one bears in mind that the true issues at stake here
are status matters – very
important matters – regarding
both the applicant and the minor child.
19.2. The applicant
has demonstrated a genuine, bona fide intention on her part to
contest her rights regarding the custody of the
minor child and her
patrimonial rights stemming from being married to the respondent in
community of property, in a marriage that
lasted approximately five
years. Within a reasonable space of time (whether technically out of
time or not with regard to the prescribed
time frames) she approached
the Legal Aid Board for assistance in asserting her rights.
19.3. Even if it
could be argued that the Legal Aid was her attorney of choice, I am
of the view that the principle that has previously
been stated in
some previous decisions that a litigant must stand or fall by the
conduct of his or her attorney, must be applied
with caution as
regards an attorney from Legal Aid, as, unlike in a case where one
instructs a private attorney at one’s
own expense, one has no
choice of a specific or particular attorney when it comes to the
allocation of an attorney to a matter
by the Legal Aid.
The facts of this
case, where the applicant’s matter has travelled through the
hands of three different attorneys from the
same institution without
any explanation therefore, bears acute testimony to this fact –
that, strictly speaking, one’s
choice of an attorney in respect
of Legal Aid is more of an illusion or perception than reality. Since
the applicant’s application
was handled at all material times
by the Legal Aid office, I will, in the particular circumstances of
this case, be less stringent
in holding the attorneys’ defaults
against the applicant. In my view, the applicant was entitled to
expect the Legal Aid
to prosecute her application to finality,
although some level of blame can legitimately be placed at her door
too, for failing
to spur it on. We must not lose sight of the fact
that, by definition, people who approach the Legal Aid for legal
assistance and
whose applications for assistance are approved (like
in the case of the applicant) are indigent members of the community –
who approach the Legal Aid more out of need (and sometimes out of
desperation) than as a matter of pure choice.
19.4. The respondent
became aware from the very early stages of the post-divorce era (from
February 2011) that the applicant sought
to assert her rights by
seeking a rescission of the divorce order, and by the time he
remarried in April 2014 he was fully aware,
especially as a
practising attorney, that the dispute and the litigation between the
parties was live. Amongst others, he should
have known, and I find
that he did know, that even if the applicant delayed (in his view) in
the prosecution of the matter, he
was not remediless – he could
himself set the matter down for hearing,
in order to attain
finality in the matter and also get certainty as regards his future
(whether in respect of marital status or
rights to custody of the
minor child or the patrimonial consequences following on the
divorce). Therefore, the respondent’s
claim of prejudice
9actual or potential) from a erscission order is not a legitimate
foul cry. He is also partly the author of
his misfortune.
19.5. The applicant
also approached the office of the Family Advocate for an assessment
that would possibly assist her in asserting
her custody rights. It
suffices for purposes of this judgment to mention that the
recommendation made by the Family Advocate’s
report is that “No
recommendation can be made as the respondent refused to cooperate
with the family advocate’s office”.
The significance of
this conclusion by the Family Advocate also lies in the fact that it
shows that around the time of its compilation,
in June 2013, before
the respondent could remarry, he was acutely aware that the applicant
was steadfast in her course to assert
her rights through whatever
legal means or channels possible.
19.6. As regards the
custody and access to the minor child, the divorce order awards the
custody to the respondent, and in relation
to access simply provides
at paragraph 2 that:
“…reasonable
contact and access with the child two weekends per month, lomg and
short school holidays is shared equally”.
On the other hand,
the Family Advocate expresses, amongst others, the opinion (in his
report) that the respondent’s non-cooperation
impacts
negatively on the best interests of the child, and it is in the
child’s best interests to have unrestricted contact
with the
applicant, and it is necessary that the best interests of the child
be investigated as there are allegations of abuse
in the form of
neglect of the child. Therefore, on the facts of this case it cannot
be said that the applicant’s case is
a hopeless one if the
matter was to go on trial. In my view, there exists a triable issue
in this matter in that the applicant’’s
allegations
regarding custody and forfeiture, if proven in a subsequent trial,
would constitute a prima facie triable issues.
19.7. The
applicant’s conduct cannot be termed as one merely meant to
delay the matter or harass the respondent. Preliminarily
in my view,
and without deciding the issues now, which is not for this court to
do at this stage, it seems to offend my sense of
simple justice
between man and man (or man and woman) that the applicant who bore
the respondent a child now aged approximately
14 years, who
(applicant) spent a period of marriage to the respondent of
approximately 5 years, and in circumstances where the
parties had
accumulated an immovable property and 3 motor vehicles (as mentioned
in the respondent’s particulars of claim),
should simply be
made to walk away empty handed from the divorce – without any
share of the joint estate and without the
custody of the child,
in circumstances
where the best interests of the child were not seriously explored by
the court.
19.8. I am also
aware of an authority (decided case which in the limited time at my
disposal I could not readily locate) which is
in support of the
proposition that a default judgment in its essence is a matter where
the merits of the unopposed matter are irrelevant
as the court that
grants it is entitled to grant an unopposed litigant the relief he or
she seeks, as long as the court is satisfied
that the other side was
duly served with notice of such litigation, and presumably (where no
notice to defend is filed) elected
not to oppose the granting of the
relief sought. Obviously, this is subject to the high court being the
uppermost guardian of children,
meaning that even in unopposed
divorce proceedings, the court will endeavour to ensure that the
minimum best interests of the child
are jealously guarded. I use the
word “minimum” within this context as the court would
obviously be poorer in terms
of its capacity to ascertain the best
interests of the child without the benefit of inputs or ventilation
from both parents and
/ or the child itself.
[20] I am of the
view that the kind of issues at stake in this matter are of such
great importance (with ingredients of the constitutionally
entrenched
right to housing, as the applicant stands to lose the common home,
and likely to affect the status of each part involved)
not only to
the future of the parties, but also the minor child that it would be
inappropriate,
especially in the
particular circumstances of this matter, to have them finally
adjudicated on the basis of some procedural advantage
– and
without a proper and fair ventilation of the issues on the
substantive merits.
[21] There is no
question that the parties agree on the irretrievable breakdown of the
marriage, and thus there is no need, especially
bearing in mind the
potential prejudice to the respondent’s new spouse (by
effectively setting aside the new marriage if
the rescission of the
divorce order is granted), to interfere with the prayer regarding
divorce.
[22] Section 8(1) of
the Divorce Act specifically and expressly empowers the court to
grant a rescission order, at any time, as
regards the custody and
access of a child. It provides the following:
“A maintenance
order or an order in regard to the custody or guardianship of, or
access to, a child, made in terms of this
Act, may at any time be
rescinded or varied …”(my emphasis).
I am thus satisfied
that the applicant has made out a case for rescission of the orders
as per paragraphs 2 and 3 only. I also find
that the delay in
launching the application for rescission must be condoned, not only
because of the fact that there was no wilful
default on the part of
the applicant, but also because I find that she has demonstrated a
prima facie triable issue, which shows
that she might be successful
on trial.
I also find, in
passing, that Rule 42 would not be applicable as a remedy (by way of
a variation application) as the jurisdictional
facts applicable to
the said rule are absent on the facts of this case, and thus the
suggestion by Mr Hadebe offers cold comfort
to the applicant.
Consequently, the application for rescission must also succeed. As
regards the doubt expressed by Ms Oosthuizen
as to whether a court
may rescind certain parts of a divorce order without necessarily
rescinding the divorce orde, I refer again
to the provisions of
section 8(1) of the Divorce Act and the the example of the unreported
decision of M v M (52110/2007) [2011]
ZAGPPHC 155 (27 May 2011),
where the court granted a rescission order that left the divorce
itself intact.
[23] As regards the
costs, a party that applies for rescission is ordinarily seeking an
indulgence from the court and must, as a
rule, be saddled with the
costs of the application. However, this is not a hard and fast rule,
the court has a discretion whether
to follow it or not, obviously
judiciously and not capriciously, after a due consideration of all
the relevant factors. From the
material before me and submissions
made by on behalf of both parties, I am of the view that bearing the
heavily skewed financial
capacities of the parties – skewed
glaringly in favour of the respondent, and the concession made by the
respondent’s
counsel that he would not seriously ask for a
costs order against the applicant, no order need be made as regards
costs of the
application.
[24] Consequently, I
hereby make the following order:
24.1. The order
granted on the 23 December 2010 is in part set aside, save for the
order in paragraph 1 thereof (regarding the order
for a decree of
divorce).
24.2. The applicant
is granted leave to defend the action under case number 5710/2010.
MOTLOUNG, AJ
On behalf of the
applicant: Mrs MA Ooosthuizen
Instructed
by: Bloemfontein Justice Centre
On behalf of the
respondent: Mr T Hadebe
Instructed
by: T Hadebe Attorneys
Bloemfontein