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[2013] ZAFSHC 131
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J J v K J and Another (5035/2012) [2013] ZAFSHC 131 (11 July 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
CASE NO: 5035/2012
In
the matter between:
J
J
..........................................................................................
Applicant
and
K
J
................................................................................
1
st
Respondent
SUID-AFRIKAANSE
POLISIE PENSIOENFONDS
...............
2
nd
Respondent
________________________________________________________
HEARD ON:
25 APRIL
2013
________________________________________________________
JUDGMENT BY:
MHLAMBI, AJ
________________________________________________________
DELIVERED ON:
11
JULY 2013
________________________________________________________
INTRODUCTION
[1] This is an application for the rescission of the
divorce order granted by this Court in the absence of the Applicant
on 14 February
2013 under case number 5035/2012.
[2] The Applicant seeks leave to be granted to defend
the divorce action, specifically the rights to primary care and
residence
which were permanently awarded to the First Respondent.
[3] The Application is opposed by First Respondent.
[4]
THE VERSIONS OF THE PARTIES
THE APPLICANT
Service of the summons initiating the divorce
proceedings was effected upon the Applicant by the Sheriff at
Ladybrand on 19
December 2012 whereafter he handed it to Ms Madel
van Rensburg, an attorney at Ladybrand expressing his
dissatisfaction with
the relief sought and instructed her to defend
the action. She informed him that the Court was in recess and that
the appearance
to defend the action would be proceeded with during
January 2013. He left her a copy of the summons and another he
handed over
to his brother, an advocate,whom the attorney indicated
would assist her with the preparation of the papers for filing in
the
High Court.
On 18 February 2013, he was informed by a friend that
the divorce was finalised. He immediately communicated with Ms
vanRensburg
who advised him that she would communicate with Mr Leon
Marè, First Respondent’s Ladybrand attorney, to
ascertain
what the true position was as she did not know what the
developments were.
Having received no feedback from her on 19 February
2013, he directly approached the said Mr Mar who was known to him,
and discovered
that no Notice of Intention to Defend was filed. He
received a copy of the divorce order the following day from the
said Mr
Marè.He consulted and was advised by his present
attorney of record on 22 February 2013 to apply for the rescission
of the order and the application was drafted on the same day.
He admits that the marriage between the parties has
irretrievably broken down but denies the grounds upon which the
First Respondent
relies.
He was at the outset dissatisfied with the relief
sought in the summons and it was his desire to defend the action.
He would
in due course instruct his attorneys to file a Plea and
Counterclaim setting out the grounds for the irretrievable
breakdown
of the marriage.
He was disgruntled that the rights and
responsibilities relating to the primary care of the two minor
children were awarded
to the First Respondent. He was satisfied
that both children were in his care and that it was in the interest
of both children
that their primary care be awarded to him.
The minor child, R C, lived with the Applicant’s
mother at Bloemfontein since March 2012 as per arrangement. He took
care
of his needs.
In July 2012, the First Respondent left the common
home and since October 2012, she stayed permanently with oneAttie
Venter
who has two protection orders against him for family
violence. Since July 2012 the minor child, A, was in his care until
the
decree of divorce was granted. Both children prefer to stay
with him.
[5]
FIRST RESPONDENT
Save for argumentative material in her opposing
affidavit, First Respondent denies that the Applicant has a
bona
fide
defence as both parties admit that the marriage has
irretrievably broken down.
The applicant was suspended for two years during which
period she took care of the household. She frequently sought
financial
assistance from her parents to take care of household
needs as the applicant was unable to.
There was no communication between the parties, the
Applicant showing no concern for the family and withholding
information
about what went on in his life. There was a criminal
charge against the Applicant for which he was suspended for two
years
from the South African Police Service. Currently there is a
pending criminal charge against him according to the information at
her disposal.
She admitted that she left the common home but that it
was at therequest of the Applicant who informed her that for the
past
fourteen years, he had a love affair with another woman. He
had rejected all requests to find help to save the marriage.
She admitted that R C, the minor child, stayed withher
in-laws and attended school atFichardtpark, Bloemfontein, but
denied
that the Applicant took care of his needs. Her in-laws are
elderly people and cannot take care of C’s daily needs. It
would be better if he were to stay in a school boarding house.
She contributed financially to C’s needs even
though shehas, to date, never received any maintenance from the
Applicant
despite the Court Order.
Applicant refused to allow her to take A along when he
told her to leave thecommon home. Since the date of her leaving the
common
home, A would be left in the afternoons with the
housekeeper, a situation which was unsafe and unsuitable for a
daughter of
her age. The Applicant could not be home in the
afternoons by virtue of the nature of his work.
The relationship with her children is good and A is
happy to be with her. C prefers to be with her but is influenced by
the
Applicant.
The Applicant sought neither the assistance of the
Family Advocate nor a social worker to investigate and obtain a
report in
regard to the welfare of the minor children.
She denied that she lived in unsatisfactory
circumstances. She moved in with Mr Venterduring February 2013. He
raises a nine
year old boy and possesses his own house and motor
vehicle and also helps with the minor children whenever he can.
There were judgments against the Applicant for the
Ladybrand HighSchool, Ladybrand Primary School and the Ladybrand
Animal Clinic.
The Sheriff used to serve Court processes on a
number of occasions at their house.
[6]
THE ISSUES
Whether a reasonable explanation for the default was
given.
Whether the explanation is
bona fide.
Whether the applicant has a
bona fide
defence
to Plaintiff’s claim.
[7]
CONTENTIONS BY THE PARTIES
APPLICANT
Mrs Murray contended as follows:
The Applicant was not in wilful default. Even though
the Ladybrand attorney denies having been instructed to defend the
matter
she admits having told him of the
dies non
period and
that it was not necessary to react immediately to the summons. The
dies non
period is only applicable to exchange of pleadings
other than appearances to defend.
The said attorney did not inform him when the
dies
non
period would expire and when the follow-up consultation
would take place.
The applicant, not being legally trained, would not
have known the periods within which he should enter Appearance to
defend
if someone did not enlighten him.
There are no allegations that the Applicant received a
Notice of Set Down nor that he had knowledge of the date when the
divorce
would be heard.
Even though the Applicant admits on his own version
that he knew of the case against him, there is no evidence that he
deliberately
failed to do anything about the matter and it is clear
that the finalisation of the divorce proceeded without his
knowledge
and in his absence on 14 February 2013.
Applicant was and still is of the intention to defend
the action, file a Plea and Counterclaim with a view to, inter
alia, opposing
the award of primary residence of the two minor
children to the First Respondent in Court.
His seriousness in this regard is supported by his
application to the
Family Advocate on 8 April 2013 as well as the first
application for the rescission of the divorce order filed on 22
February 2013,
two days after 20 February 2013 when he first laid his
eyes on the divorce order.
The Applicant solicited the services of another
attorney immediately for applying for the rescission of the order.
The application
was therefore launched within the first twenty
court days after knowledge of the order.
The Applicant has a prima facie defence: There is a
clear dispute between the parties over the custody of the minor
children.
The children are teenagers and have reached such an age
that the Court can take into account their preferences as to
custody.
It is also essential that the Family Advocate should
investigate the circumstances and assist the Court with a
recommendation.
The Court, having a wide direction, should subject the
true dispute between the parties to a thorough investigation and
all
relevant facts be placed before the Court as the primary
concern is the rights of the minor children, before a final
decision
is made.
If the allegations concerning the children are
investigated by both the Family Advocate and the Court, and are
found to be true,
this would constitute a good defence which would
radically alter the stipulations of the divorce order.
[8]
THE FIRST RESPONDENT
8.1 The Applicant never gave instructions to Ms Van
Rensburg to defend theaction.
The allegations in the Applicant’s replying
affidavit that he informed Ms Van Rensburg of his dissatisfaction
with the
care and custody of the minor children and the claim
against his pension fund are unfounded.
The duty to make an appointment with the attorney was
on the Applicant, and the failure to do so was a deliberate
decision on
his part, alternatively the result of gross negligence.
The Applicant’s explanation for his default is
insufficient.
Even though the Applicant was not legally trained, he
should have appreciated the relief sought by the First Respondent.
Logically
he should have given clear and unambiguous instructions
to Ms Van Rensburg to defend the action and his failure to do so
can
be viewed as “wilfull default”.
Service of the summons implies that the Sheriff made
it clear to him what the date of the hearing of the action would be
in
the event of failure on his part to enter appearance to defend
and what the contents of the summons were.
Furthermore, Ms Van Rensburg advised him to consult
with her should he wish to take the matter further.
The failure by applicant to take such steps indicates
that he failed to give a reasonable explanation for his default.
The Applicant failed to take the Court into his
confidence that he had earlier made a similar application for the
rescission
of the order.
The present application dated 18 March 2013 is outside
the 20 day period as prescribed by the Uniform Rules of Court.
The previous application which was filed within the
twenty day period, was irrelevant as the Court Rules stipulate that
the
application must be before the Court within twenty days for the
Court to decide whether the order should be set aside. Failure
to
furnish reasons for the late filing of the application and the
withdrawal of the previous application is fatal and the application
should fail on this ground. No application for condonation was
filed.
No supporting affidavits were filed to confirm
Applicant’s unsubstantiated allegations that the minor
children did not
want to live with the First Respondent and that
she lived under unsatisfactory conditions.
As at the time of the filing of the Notice of Motion,
the Applicant had not enlisted the services of either the Family
Advocate
or a social worker but only did so on 8 April 2013 as
stated in his replying affidavit. These steps should have been
taken
as early as 22 February 2013.
Applicant did not make out a
bona fide
defence
in his affidavit in relation to the specific relief sought by the
First Respondent. The only relief he is not satisfied
with, is the
custody and other rights relating to the minor children. The
allegations he made in this regard were mere information
regarding
their accommodation in the past.
Consequently the Applicant has not made out a bona
fide defence.
[9]
EVALUATION
9.1 The application was never heard on the date of
hearing but postponed byagreement to 28 March 2013. However, it was
withdrawn
on 19 March 2013. The present application, bearing the
court date stamp of 19 March 2013, wasserved on First Respondent on
18 March
2013 to be heard on 11 April 2013.
9.2 Mr Olivier, on behalf of the FirstRespondent submits
that the present applicationdated 18 March 2013, isclearly outside
the
twenty day period as provided for in Rule 31 (5) (d) of
theUniform Rules of Court. The timeous filing of the earlier
application
which was withdrawn does not assist the applicant. The
intention of the Rules must bethat the application must be filed
within
twenty days. Besides, no explanationwas given for both the
withdrawal of the application and the late filing of thepresent
application.
For these reasons, the application must be dismissed
withcosts. In this regard he relied on
Government of the Islamic
Republic ofIran v Berends
1998 (4) SA 107
(NMH).
9.3 In counter-argument, Mrs Murray, on behalf of the
Applicant, stated that thegrounds in both applications were the same;
that
the present application wasserved on 18 March 2013 and there was
no need for an application forcondonation. Moreover, the First
Respondent was not prejudiced. Thewithdrawal of the first application
is irrelevant for purposes of this application.
9.4 In government of the
Islamic Republic of
Iran,
supra
C-F, it was held that theunderlying purpose
of Rule 31 (2) (b) of the High Court Rules was to ensurethat an
application made thereunder
wasbrought to Court without
delay.Obedience to the subrule was achieved when a defendant launched
hisapplication by means of having
it filed with the Registrar and
served on theplaintiff within the period of twenty days of his
becoming aware of the defaultjudgment.
To construe the expression
‘apply to Court’ as meaning that anapplicant had to
ensure that the application was set
down on the Court roll forhearing
and/or was actually brought before the Court within the twenty day
periodwould be decidedly harsh,
unjust, unreasonable, and glaringly
absurd, as theapplicant clearly had no power over a ‘set down’
and/or hearing before
theCourt. In any event, the phrase ‘apply
to Court’ was ambiguous. I subscribe tothis view and find that
an application
for condonation in this matter isunwarranted.
9.5
Rule 31 (2) (b) reads as follows:
“
A defendant may within
twenty days after he or she has knowledge of suchjudgment, apply to
court upon notice to the plaintiff to
set aside such judgmentand the
court may, upon good cause shown, set aside the default judgment
onsuch terms as to it seems meet”.
9.6 In
Grant v Plumbers (Pty) Ltd
1949 (2)
SA 470
(o) at 476-7, the requirementsfor a application for rescission
under thissubrule were stated as follows:
“
(a)He (i.e. the 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 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 the trial, would entitle him to 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.”
9.7
“
While wilful default
may not be an absolute or independent ground forrefusal of a
rescission application, a display or deliberate
default in
preventingjudgment being entered would sorely co-exist with
sufficient cause.”
Harris v Absa Bank Ltd t/a Volkskas
2006
(4) SA 527
(T) at 529 E-F. The truetest is whether the default is a
deliberate one:
Neumann (PVT) LTD v Marks
1960 (Z) SA
170 (SR).
Maujean t/a Sudio Video Agencies v Standard Bank of
SALtd
1994 (3) SA 801
(C).
9.8 The onus is therefore on the Respondent to prove
that the Applicant knew ofthe action, deliberately defaulted and
displayed
a certain mental attitudetowards the consequences of the
default:
Mahomed Abdulla v Chochan
1933NPD 334. An
analysis of attorney Madel Janse van Rensburg’s affidavit,an
annexure to the opposing affidavit marked “A”
on page 22,
indicates more than a cursory conversation of thecircumstances
surrounding the divorce summons. This is demonstrated
by thefact that
she communicated with attorney Marè to obtain the divorce
order. Inan e-mail to the Applicant’s brother
dated 21 February
2013, marked annexureMJVRI, She states in paragraph 4
“
As Johan onder die indruk was
datek wel verdediging aangeteken het,het ek en hy mekaar duidelik
verkeerd verstaan en ek bied my
verskoning aanvir die mate waarin die
misverstand voor my deur gel
ekan
word. Ek wasegter baie verontwaardig toe ek vanoggend julle sms
kommunikasie sienen lees dat hy beweer dat die hele storie
my skuld
was en dat ek hom
“
gedrop”
het, ………..
Ek is enige tyd beskikbaar om ‘n verklaring tot
dien effekte afte lê indien u ditbenodig vir u voorgenome
tersydestelling”.
9.9 It is therefore clear to me that the applicant never
sat on his laurels onreceiving the divorce summons and that
throughout
his intention anddesire was that this matter should
proceed on a defended basis.
9.10 Mr Olivier submits further that according to Ms Van
Rensburg’s affidavit, the Applicant never clearly showed
hisdissatisfaction
with the relief sought in the summons, save for a
few mistakestherein and that he never instructed her to defend the
action. This
statementdoes not seem correct.
9.11 In paragraph 2 of “MJVRI”, attached to
the opposing affidavit on page 27, she says
“
Soos ek danook op daardiedag
van hom verstaan het was sy groot probleem die onderhoud wat
geeisword, en ek het hom meegedeel dathy
na afloop van die egskeiding
enige tyddie plaaslike hof kan nader om die onderhoudsaangeleentheid
teherondersoek, en dathy dit
in persoon kan doen of iemand plaasliks
kangebruikwat dan baie goedkoper sal wees.”
9.12 In terms of paragraphs 3 and 4 of the Order the
monthly payment to the First Respondent and the two minor children is
R2000.00
(two thousand rands) each. Mrs Murray,
in
oral argument,
submitted that paragraph 4 of the
orderregarding the maintenance payable to the First Respondent,did
not indicate adate when such
payment would terminate. This on its own
is a justiciable pointin issue. I agree with this view.
9.13
“
It has always been
the hallmark of what lawyers call a
bona
fide
defence (which has to be
established before rescission is granted), that defendant honestly
intends to pursue before a Court a set
of facts which if true, will
constitute a defence
”
:
Saphula v Nedcor Bank Ltd
1999 (2) SA 76
(W).The object of rescinding a judgment is “
to restore a
chance to air a real dispute”
:
Lazarus v Nedcor Bank
Ltd; Lazarus v ABSA Bank
1999 (2) SA 782
(W).
9.14 Mrs Murray argues strongly that the order be
rescinded
in toto
so that the matter can be fully ventilated in
open Court for the benefit of the minor children. To counter this
argument Mr Olivier
raised the point that to do so would be
tantamount to remarrying the parties as both parties agree that the
marriage has irretrievably
broken down.
9.15 Once the irretrievable breakdown of the marriage
has been established, the Court has no discretion to withhold the
decree of
divorce.
Schwartz v Schwartz
1984 (4) 467
(A),
Levy v Levy
[1991] ZASCA 81
;
1991 (3) SA 614.
9.16 However, the circumstances in this case are, in my
view, of such a nature that a full ventilation of the issues is
warranted
and that an order to that effect should be made. The two
minor children are 15 and half and 13 and half years old. Mrs Murray
brought
the Court’s attention to the fact that the daughter was
born on 16 November 1999. No objection was raised by Mr Olivier. One
of the disputes between the parties is the choice the children may
have taken as to the preferred parent. The Court must be satisfied
that this expression of preference is a genuine and accurate
reflection of their feelings towards the relationship of their
parents:
Meyer v Gerber
1999 (3) SA 650
(OPA) at 655
A-J.
[10]
FINDINGS AND CONCLUSION
I am satisfied that the Applicant has:
Given a reasonable explanation of his default.
His application is
bona fide
and not made with
the intention to delay First Respondent’s claim.
He has a
bona fide
defence to First Respondent’s
claim.
The relief sought by the applicant satisfies the legal
requirements for an application for rescission and justify such an
order.
[11]
COSTS
Even though in applications of this nature the Applicant
should bear the costs, I am of the view that costs should be costs in
the
cause.
[12]
ORDER
The application succeeds. Costs shall be costs in the
cause.
______________
J.J. MHLAMBI, AJ
On behalf of applicant: Adv H. Murray
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of first respondent: Adv J.L. Olivier
Instructed by:
E G Cooper MajiedtInc
BLOEMFONTEIN