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[2013] ZAGPPHC 399
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Zwane v Zwane (3307/04) [2013] ZAGPPHC 399 (14 November 2013)
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IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: 3307/04
DATE:14 NOVEMBER 2013
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
J…… M…….
Z….
.....................................................................................
APPLICANT
I/
M…… M……
Z….
...............................................................................
RESPONDENT
JUDGMENT
MABUSE
J:
1.
This is an
application firstly, for rescission of a judgment which was granted
by this Court on 10 March 2005 in the absence of
the applicant and
secondly, for condonation for the late filing of the aforementioned
application This
application is brought by the
applicant, an adult female, who at the time of launching this
application in 2008 resided at House
No. 348 Leboneng, Themba,
against the respondent who at the time was employed by Telkom as a
technician. The aforementioned judgment
was granted in the absence of
the applicant after service of a copy of the summons on her had taken
place by way of edictal citation
after it had been applied for and
granted by the Court on 9 November 2004. Following the said order
service of a copy of the summons
upon the defendant took place by way
of application in the Silverton Newspaper.
2.
In the said
judgment the Court granted the following orders:
“
(1) THAT the bonds of marriage subsisting between the
plaintiff and the defendant be and are hereby dissolved.
(2)
Defendant to forfeit all the benefits arising from the marriage.”
3.
The purpose
of this application is firstly, to seek that the status of
dissolution of the marriage bonds between the applicant and
the
respondent remain unchanged, secondly, that the division of the joint
estate of the applicant and the respondent be done in
equal shares.
4.
The applicant
and the respondent were married to each other in community of
property on 10 August 1993. During 1997 they had marital
problems and
the applicant, as a result of such problems, left the common home and
moved back to her parental home in Leboneng.
On three occasions the
applicant instituted divorce actions against the defendant, firstly,
on 17 March 2005 in the North- Eastern
Divorce Court under Case no.
1800/05 and, secondly, on 24 July 2006 still in the North-Eastern
Divorce Court under Case no. 50222/06
and thirdly and lastly, on 21
February 2008 in the Central Divorce Court under Case no. 2360/08.
She was, however, unsuccessful
in her attempts to serve the summons
for the divorce action on the respondent during March 2005 and July
2006 by reason of the
fact that she was unable to locate the
respondent's whereabouts. It was only during the applicant’s
last attempt in 2008
and more specifically on 19 July 2008 that she
became aware of the fact that a decree of divorce at the instance of
the respondent
had already been granted in her absence and without
her knowledge or any notice to her. The source of her knowledge was a
special
plea that the respondent, then as the defendant in the same
matter, had delivered on her. In the said plea the respondent had
contended
that the marriage bonds between them had already been
dissolved by this Court and furthermore that Court had ordered that
she should
forfeit the benefits arising from the said marriage wholly
in favour of the respondent
5.
The
respondent contended that he himself attempted proper service of a
copy of the divorce summons on the applicant by means of
accompanying
the sheriff to the applicant’s place of residence at the time
but the sheriff was unable to serve it by reason
of the fact that the
applicant had refused to accept service of a copy of the summons.
According to a copy of the return of service
that constitutes part of
this papers on 9 February 2004 at 11 h 13 the sheriff could not serve
a copy of the combined summons on
the applicant, then the defendant,
because she refused to accept service the document and furthermore
failed to go and collect
it from the sheriff’s office after she
promised him that she would come and collect it at from his office.
In her founding
affidavit the applicant admitted that indeed she
refused to accept service of a copy of the respondent’s divorce
summons
on her. Her reason for refusing to accept service of the
summons was that she was completely unaware of the fact that the
person
who had accompanied the respondent was the sheriff of this
Court and that his intention was to serve the papers as he completely
failed to identify himself to her. Instead the person just told her
that they had to sell the immovable property and that for that
purpose she needed to sign some documents whereupon she refused. On
this basis the applicant contended that she was not in wilful
default
as she was unaware that the respondent had instituted a divorce
action against her.
6.With regard to the requirements of a bona fide defence
the applicant contended that she and the respondent were married to
each
other in community of property. The respondent quite simply
failed to lay a substantial basis warranting forfeiture of her half
share of the joint estate before this Court other than that the
applicant vacated the home. The applicant had no intention of
forfeiting her half share of the joint estate. She went as far as to
enter the common home to try and seize some of the assets.
In his
summons the respondent contended that the applicant did not
contribute anything to the communal home. However it is apparent
from
annexure “G" attached to this application that the
applicant bought a substantial amount of movable goods which
are
still in the possession of the respondent. The applicant contended
that the respondent was partly to blame for the breakdown
of their
marriage On the other hand the respondent contended that the
applicant was aware of the divorce action and that she decided
to
adopt a supine attitude towards it
7.Counsel for the applicant submitted that although this
application was brought in terms of the provisions of Rule 42(1) read
with
Rule 31(2) (b) this Court could use its discretion and consider
it on the common law grounds In order to succeed with an application
for rescission of a default judgment on the basis of common law the
applicant must show sufficient cause. In terms of common law
the
applicant must:
1)
give a reasonable explanation of his default;
2)
show that his application is made bona fide, and;
3)
furthermore
show that on the merits he has a bona fide defence which prima facie
creates some prospects of success.
It must be noted, however, that a Court should entertain
some measure of discretion which it may exercise after proper
consideration
of all the relevant factors or the circumstances. In
terms of common law a judgment by default can be set aside only on
the following
grounds:
1)
fraud;
2)
justus error,
8.
It is not the
applicant’s case that the judgment that the respondent obtained
was so fraudulently obtained nor was her case
the, in granting the
judgement the court erred and that the error was just. On the grounds
of common law the application must fail.
9.
According to the founding
affidavit the applicant brought this application for rescission in
terms of Rules 31(2)(b) and 42(1) of
the Rules of this Court. It
needs to be mentioned that the applicant must stand or fall by her
application. It never was the case
that in seeking a rescission of
judgment she placed any reliance on the common law grounds. In the
premises I will deal with this
matter only on the basis as set out in
the founding affidavit, that this application is brought in terms of
Rules 31 (2)(b) and
Rule 42(1) of the Rules of this Court
10.
Rule 31 (2)(b) provides that:
“
A defendant may within 20 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 met.
”
There is no doubt that the judgment granted on 10 March
2005 by this Court was granted in the absence of the applicant and
that
for that reason it is a default judgment. In terms of Rule 31
(2)(b) the application to rescind the said judgment should have been
brought within 20 days after the applicant had become aware of it.
The applicant became aware of the judgment on 19 July 2008 after
the
respondent had delivered a special plea in case no 2360/08 of the
Central Divorce Court. Despite the fact that she became aware
on 19
July 2008 that the respondent had obtained a decree of divorce, the
applicant only signed her founding affidavit on 4 October
2008, even
though a notice of motion was dated 13 August 2008.
11.
The
applicant therefore launched her application out of time. In the
result she was compelled to launch an application for condonation
in
which she had to furnish reasons why she did not launch her
application for rescission within 20 days of 19 July 2008. The
applicant has done so. Under a small heading “
AD
CONDONATION
” she has furnished reasons
why she only signed the founding affidavit on 4 October 2008. She
stated that on 8 August 2008,
her attorneys told her that the papers
were ready to be signed by her. Her employers refused to grant her
leave to attend to the
offices of the attorneys in order to sign the
documents as she had just been recently employed and was still on
probation. For
that reason her attorneys, who did not work over
weekends, made special arrangements with her to sign the papers on
Saturday 4
October 2008.
12.
It is not
clear why the applicant did not, as she did for 4 October 2008
arrange with her attorneys to sign the papers on a Saturday.
No
explanation is furnished in this regard nor is it explained why she
did not send someone to go and collect the papers from her
attorneys
so that she could sign them and sent them back with the same person.
It is not her case that she had nobody to ask in
order to do this
errand. In my view, the applicant did not do enough to make sure that
the papers were signed so that her attorneys
could launch the
application. She did not attribute any fault on her attorneys. A
party must show more desire to attend to her
urgent matters than just
rely on the fact that she was unable, due to work pressure, to attend
to her matters. In my view, the
applicant merely adopted a supine
attitude to her matters.
13.
After she
signed her affidavit on 4 October 2008, a copy of the application was
served on the respondent on 23 October 2008. In
the notice of motion,
the respondent was required within 5 days after service of a copy of
the application for rescission, to notify
the applicant of his
intention to oppose the application and, having given the applicant
notice of his intention to oppose, to
file an opposing affidavit
within 15 days thereof.
14.
The
respondent’s attorneys duly delivered their notice to oppose on
31 October 2008. They only delivered the respondent’s
opposing
affidavit on 8 April 2010. The applicant does not explain in her
founding affidavit what happened between 31 August 2008
and 8 April
2010. She explained this in a supplementary affidavit dated 11
January 2003. She attributed the delay in attending
to a matter to
her attorneys or candidate attorneys.
15.
According to
her testimony, one Khunoana, who had been handling her matter, left
the Law Clinic either at the end of the year 2010
or the beginning
2011 The applicant is clearly unable to remember the precise date, an
indication that she was not checking on
progress of the matter with
her attorneys After the departure of the said Khunoana, her file
exchanged hands between two other
candidate attorneys who also have
left the Law Clinic. This is a bald statement. No attempt was made to
obtain their verifying
affidavits. No explanation has been furnished
why such affidavits could not be obtained. Their names have not been
mentioned. Certainly
the file would have assisted her to establish
the names of the candidate attorneys who handled the file.
16.
She then
approached a Aphane of the Law Clinic for assistance. The dates on
which she approached the said Aphane who promised to
locate the file
have not been furnished. The applicant has not furnished any
explanation as to the date on which Aphane located
her file and date
or dates on which she consulted with him. At the beginning of 2012
she lost her cell phone as a consequence of
which Aphane could not
get hold of her. Again she had gotten new employment which needed her
at all times. No verifying affidavit
by Aphane has been filed. There
is no explanation why the applicant has not filed such affidavit.
There is also no explanation
as to why the matter did not proceed
immediately after 8 April 2010. In the words of the
Court
in McCallum and Another vs Beacon Sweets and Chocholates (Pty) Ltd
2004JDR 0116(N)
at page 5, the applicant had
adopted an unsatisfactorily supine approach to the plight in which
she found herself by simply giving
the attorneys instructions and not
taking any steps to ensure that they were carried out. The fact that
she did nothing to promote
progress in the matter is borne out by the
fact that her attorneys did not even know her whereabouts. In his
heads of argument
Mr Motloba referred me
to the
authority of
First National Bank of Southern
Africa Ltd v. Van Rensburg NO And Others: In Re First National Bank
of Southern Africa Ltd v. Jurgens
And Others 1994(4) SA 677 (TPD) at
681E-F
. In this authority the appellant had
brought anapplication to rescind a default judgment three years after
it had been granted.
In refusing to grant the order the court stated
that:
“
It is in the interests of justice that there should be
relative certainty and finality as soon as possible concerning the
scope
and effect of orders of Court. Persons affected by such orders
should be entitled to know within after thereof that the last word
has been spoken on the subject”
See also
Firestone South
Africa (Pty) Ltd v. Genticuro AG
1977 (4) SA 298
(A) at 306H.
In my view, by reason of the
inordinate lapse
of time and
furthermore
by reason of the applicant's laxity to make sure
that the
matter
was attended to properly,
this application must fail.
17.
Although in
her notice of motion the applicant seeks “an order rescinding
the judgment granted against the applicant on 10
March 2005', it is
as clear as crystal that the target of the applicant’s
application for rescission is not so much the order
that dissolves
their marriage as it is the order that
“
defendant
to forfeit all the benefits arising from marriage. This constitute
the primary reason why the applicant launched this
application It was
argued on behalf of the applicant that it was not legally possible
for her to apply for a variation of the said
order.
18.
In her
founding affidavit, the applicant stated that her attorney of record
sent a letter to the respondent’s attorney requesting
a
division of the joint estate in equal shares between her and the
respondent. She continued furthermore to state that the attorney
has
not received any response from the respondent’s attorneys. In
his answering affidavit, the respondent stated that the
applicant,
without any agreement between the parties and without further having
so authorised by the Court, removed the parties'
furniture in 2004.
The applicant has not disputed this fact.
19.
The order
that the respondent seeks is inconsequential and. in my view,
academic. The practical effect of an order of forfeiture
of the
benefits arising from the marriage where a party such as the
respondent in the present matter has not proved a benefit has
been
fully set out m the authority of
Smith v Smith
1937 WLD 126
at pages 127 to 128
In this
authority the Court stated as follows:
“
What a defendant forfeit is not his share of the common
property but only the pecuniary benefits that he would otherwise have
derived
from the marriage. It is not uncommon to refer to division
and forfeiture as alternative remedies upon the plaintiff. On this
view
forfeiture means that each party keeps what he or she brought
into the marriage. An alternative division of an order of forfeiture
is that it is really an order for division of estate plus an order
that the defendant is not to share in any excess that the plaintiff
may have contributed over the contributions of the defendant”
The history of the principle enunciated this principle
in supra can be traced back to
Celliers v
Celliers
1904 WLD 926
at page 928
where the
Court states that:
“There
can be no question that
the usual order which is made m these cases is that the guilty party
shall forfeit all the benefits which
may have accrued to him or her
by virtue of community of property, whether those benefits have
accrued by virtue of marriage in
community of property or antenuptuai
contract or by virtue of a gift, which may have been made by one
party to the other."
In the same authority Curlewis J stated as follows at
page 936:
“I
therefore come to the
conclusion that the abundance of authority is that, whatever may have
been the Roman Law on the subject, and
however far that law may have
been adopted in earlier times, it has certainly fallen into disuse;
and if we consider the practice
in South Africa it is very dear that
except for this decision in the case of Mulder v Mulder decided by
the majority of the late
High Court, the practice in South Africa has
not been to declare forfeiture of a share of the community but only
to declare forfeiture
of any benefits which the guilty spouse may
have derived from the marriage."
For these reasons the application for rescission of the
judgment granted by this Court on 10 March 2005 is hereby dismissed.
P .M.
MABUSE JUDGE OF
THE HIGH COURT
Appearances:
Counsel for the applicant: Adv. RG Bowles
Instructed by: UP Law Clinic
Hammanskraal
Counsel for the respondents: Adv. BW Motloba
Instructed by: Motloba A
ttorneys
Date Heard: 11 No vember
2013
Date
of Judgment: 14 No vember 2013