SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: B1349/2023
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: YES
3. REVISED: YES
DATE: 17 February 2025
SIGNATURE OF JUDGE:
In the matter between:
I[...], V[...] APPLICANT
and
I[...], G[...] I[...] RESPONDENT
JUDGMENT
HAUPT AJ
2
[1] The Constitutional Court (CC) in Dawood, Shalabi and Thomas v Minister
of Home Affairs remarked that entering into a marriage is to enter a
relationship of public significance that serves an important social function as
a marriage gives ri se to legal and moral obligations, including the pa rties’
reciprocal duty to support one another.1 Consequently, t he very nature of
divorce proceedings are personal irrespective of whether it is considered
from a legal , moral or emotional perspective.
[2] A decree of divorce has a direct impact on the status of a person. A divorced
spouse or partner in a civil union is free to marry again, may retain his/her
married name or resume using a maiden surname or any other surname. A
divorce order also regulates t he matrimonial and patrimonial consequences
of a divorce in terms of Section 7 of the Divorce Act including the extension
of the reciprocal duty of support post - divorce.2
[3] The opposed application for recission of a divorce order that came before
me serves as a reminder of the duty of legal practitioners towards the court
to immediately inform the presiding judge when the opposing party wishes to
be heard during the proceedings even if the matter is unopposed . Judges
depend on ethical conduct by legal practi tioners which includes the duty to
make proper disclosure of relevant information . Legal practitioners must not
merely pay lip service to section 34 of the Constitution and underplay the
importance of protecting the right of access to justice , especially in
unopposed divorces .3
[4] The applicant applies for the rescission of the divorce order granted by me in
the Family Court on 9 September 2024 (September divorce order ). The
applicant is the defendant in the divorce action instituted by the respondent ,
her husband during March 2023. The applicant did not file a notice to
oppose and/or a plea and counterclaim in the divorce action.
1 2000 (3) SA 936 (CC) at paras 30 – 31 and 33
2 Act 70 of 1979
3 Constitution of the Republic of South Africa , Act 108 of 1996
3
[5] The applicant applies for rescission in terms of Rule 31(2)(b), alternatively,
the common law, and in the further alternative in terms of Rule 42(1)(a) in
that the judgment was erroneously granted .
[6] The respondent obtained a decree of divorce and division of the accrual on
an unopposed basis and in the absence of the applicant. The September
divorce order was granted without hearing oral evidence as the matter did
not involve minor children . In accord ance with the Consolidated P ractice
Directive 1/2024 for Court Operations in the Gauteng Division , the hearing of
unopposed divorces which do not involve the interests of minor children are
dealt with in paragraph 30 .5 of the Practice Directive as Category A
Divorces . The P ractice Directive provides that all matters that do not involve
minor children must be dealt with by adducing evi dence on affidavit and that
no party shall testify in person, save where the Judge orders otherwise .4
[7] Consequently , no oral evidence from t he respondent was heard when the
matter came before me on 9 September 2024 . In the respondent ’s evidence
affidavit deposed to on 2 September 2024 he confirmed that the applicant
did not defend the divorce action and that the summons was personally
served on her as well as the notice of set down. However, the affidavit
makes no mention of the fact that the app licant had torn up both documents
in front of the respondent. This was also not conveyed to the court when the
respondent’ s counsel , called the matter and moved for an order. 5
[8] After hearing submissions from counsel, a decree of divorce was granted
including the following order :
“2. Pending the calculation of the accrual, the following issues
are to be separated and postponed to be heard on 4
November 2024, before M adam Justice Haupt, AJ in the
Family Court .
4 Para 30.5.1 of the Consolidated Practice Directive
5 The respondent was represented by Mr Braga on 9 September 2024
4
2.1 Defendant be ordered to pay to the Plaintiff an
amount equal to 50% of the difference bet ween the
accruals of the respective estates of the parties
within 21 days from date of this order ; and
2.2 In the event of any payment not being made
timeously or in full, the Defendant shall pay interest
at more rate of interest on the arrears, compound ed
monthly on all areas, until the amount is paid full .
3. A copy of this order is to be served on the Defendant within
seven days from date of this order .”
[9] A copy of the September 2024 divorce order was served on the applicant on
17 September 2024 . On 24 October 2024 the applicant issued an application
for the rescission of the September divorce order , that she be order ed to file
her plea and counterclaim within 15 days from date of granting of the order
and that the respondent be order ed to pay the costs of the rescission
application only in the event of opposition .
[10] When the matter came before me on 4 November 202 4, I was informed of
the recission application . Ms Stroebel appeared on behalf of the applicant,
and Mr Braga on behalf of the respondent .
[11] As the September divorce order was granted by me and serious allegations
were made against the respondent ’s legal representatives I expedited the
hearing of the matter before me. The applicant alleged that the respondent’s
legal representative failed to inform the court that the applicant had informed
her husband prior to and on the morning of the court appearance that she
wants to obtain her own legal representative . It is further alleged that she
requested the respondent personally and via WhatsApp messages on
numerous occasions on 9 September in which court the matter was being
heard as she w anted to defend the action and he ignored her requests and
5
did not provide her with the relevant information .
FACTUAL MATRIX :
[12] The merits of the application and the relief sought including the punitive
costs order sought by the respondent , must be considered within the
chronology of the events leading up to the September divorce order being
granted and what happened thereafter .
[13] On the papers filed the following is common cause, or not seriously disputed
by the respondent .
[14] The parties were married on 14 March 2001 out of community of property
subject to the accrual system. It was the second marriage for both parties.
No children were born from the marriage. Both parties have major children
from their previous marriage s who w ere part of the ir family unit during the
marriage.
[15] The parties are co -owners of an immovable property that has been their
matrimonial home for the past 15 years. The applicant , who is 57 years old ,
has been unemployed for the past 16 years . The respondent is a 67 -year-old
businessman. The respondent financially supported the applicant for most
part of the marriage. According to the respondent the applicant refused to
obtain employment and contribute towards joint expenses. The applicant
denies this.
[16] The parties have been living in separate bedrooms for the past two years.
According to the respondent , he was exiled to another bedroom in the
matrimonial home after an argument.
[17] Although the couple had their ups and downs , they continued with the
marriage relationship even though they slept in different bedrooms. On the
respondent ’s version, the parties did things together like “roommates” and
6
not like a loving couple and they were only living together because they are
co-owners of the matrimonial home .
[18] The applicant denies this. Despite not sharing a bed, t he parties continued
living in the same house, going out for dinner and the respondent also
planned holidays and entertainment which they enjoyed as a couple . Both
parties continued to do things for the other as a spouse would do. For
example, the applicant would from time to time take the respondent to,
alternatively collect him after his golf game s and the respondent continued to
financially support he r and the family home. The respondent would also after
often buy gifts for the applicant.
[19] The respondent informed the applicant in 2018 and 2019 that he consulted
with attorneys regarding a divorce, but nothing further transpired from these
meetings and the parties continued with their lives as usual .
[20] According to the respondent , the applicant a dmitted during
August/September 2022, that she had a n extramarital affair for the past
seven years with their elderly neighbour . The applicant denies th is.
According to the respondent it was always his intention to separate from the
applicant and that he would inform her of the court date . The applicant
denies this .
[21] On 20 November 2022 the respondent’s attorney6 addressed a letter to the
applicant indicating that the respondent seeks a divorce and inviting her to a
roundtable discussion . Nothing further came of this letter . During November
2022 the applicant 's brother was also charged with a serious offence ,
leading to an extensive trial during which the applicant supported her brother
by attending the Regional C ourt hearing.
[22] The return of service confirms that w hen the divorce summons was served
on the applicant on 23 March 20 23, she refuse d to sign for the document
6 Manley Incorporated
7
and merely confirmed her identity. It is common cause that the applicant tore
up the summons in front of the respondent and threw it in the dustbin . She
did not read the document and could not believe that the respondent wanted
to leave her after all that they have been through . Thereafter the parties
again continued with their lives as usual.
[23] On 11 June 2023 the parties had a n open conversation regarding the ir
marriage. It is common cause that the applicant requested that they work on
themselves and the ir 22-year marriage and that they reassess the situation
at the end of 202 4. In addition, the applicant also in formed the respondent
that sh ould they n ot be able to successfully reconcile , she w anted the
opportunity to seek her own legal advice as s he wanted to oppose the
divorce action .
[24] On 16 June 2023, the applicant found an email dated 12 June 2023 in her
spam folder . The email was an email that the respondent received from his
attorneys on the morning of 12 June 2023, which he had forwarded to the
applicant . The email merely confirmed that the respondent ’s attorney was
removing the matter from the unopposed ro ll and that they would be applying
for a new date. The unopposed divorce was enrolled for 13 June 2023 and
the applicant was not informed of the date. The matter was removed on 13
June 2023 due to non -appearance .
[25] On 21 June 2023 the applicant forwarded the 12 June email to the
respondent's attorney .7 The email confirms the 11 June discussion between
the parties . In addition, the applicant made it clear that if the parties are not
successful to restore the ir relationship, she w ants the opportunity to seek
legal counsel . She also indicated that she had not seen any settlement
proposal let alone sign any agreement . The email is concluded with her hope
that the ir relationship will be rep aired as “… 22 years, 5 children and 6
grandchildren late r, we owe it to ourselves.” The respondent ’s attorney did
not respond to th e applicant’ s email .
7 Mr Andre Crauwkamp from Manley Incorporated
8
[26] The m atter was again enrolled o n the Family Court roll of 31 July 2023 . The
matter was again struck due to non -appearance . The applicant was not
notified of the court date. According to the respondent he instructed his
attorneys not to appear at court on the allocated dates in June and July
2023 .
[27] According to the respondent he and the applicant had a discussion around
the end of October 2023 as they were attempting to work things out in
respect of their relationship. However, this was short lived. According to the
respondent he informed the applicant that he was continuing with the divorce
process. The applicant denies this.
[28] The parties continued with th eir lives as usual and during April 2024, the
parties enjoyed a holiday in Thailand . The respondent arranged and
financed the holiday. During their vacation they enjoyed various activities
including dining out and couples’ massages . According to the respondent ,
the holiday was part of a business trip .
[29] Approximately two months later, the divorce was again enrolle d on the
Family Court roll for the week of 9 July 2024. The matter came before me . I
remove d the matter as no evidence affidavit in terms of the Practice
Directive or proof of service of the notice of set down was filed . Again, the
applicant did not receive notice of the 9 July court date . According to the
respondent the matter was set down unbeknownst to his attorney and was
removed from the roll.
[30] On 19 August 2024 the sheriff served the notice of set down for the hearing
on 9 September 2024 . It is common cause that the applicant again tore the
document up in front of the respondent and threw it in the dustbin without
familiarising her with the content thereof . According to the applicant she
thought it was a new summons . She made it clear to the respondent that if
he intends to pro ceed with a divorce, she should be afforded the opportunity
to obtain legal representation and to defend the matter despite according to
9
her, her emotional and mental state . She also demanded that they work on
their marriage.
[31] The respondent does not deny this, but states that he informed the applicant
on various occasions to obtain legal representation which she refuse d to do .
After this spat, life again return ed to normal, and the applicant dropped the
respondent off at a golf day on 5 Septe mber 2024 and fetched him
thereafter .
[32] On 2 September 2024 the respondent deposed to a 3-page evidence
affidavit to comply with the Consolidated Practice Directive . The respondent ,
in his capacity as the plaintiff , sought relief with reference to the summons.
Reference is further made to the summons and notice of set down being
served personally on the defendant . No mention is made that the defendant
tore up these documents in the presence of the plaintiff or that the parties
were continuously engaged in discussions relating to the restoration of the
marriage relationship.
[33] According to the applicant after the notice of set down was served they didn't
speak about the document that was served until the morning of 9 September
2024 . According to the respondent the applicant was aware of his intentions
to proceed with the divorce, ye t she sat back and did nothing . The applicant
denies this. The respondent also referred to numerous WhatsApp's
exchange d between the parties, but none of the WhatsApp's confirm that he
ever informed the applicant of the court date, or in which court the matter
would proceed even though , according to the respondent , his wife initially
believed that the matter was in court on 6 September 2024.
[34] The parties had heated arguments commencing the evening of Sunday, 8
September continuing to approximately 03:00 on the Monday morning . At
around 08:00 on 9 Septembe r, the respondent informed the applicant that he
is going to court to appear in the divorce proceedings . She reacted by
grabbing the keys of his motor vehicle to stop him. She also requested to
travel with him to court .
10
[35] At some stage the respondent stepped away to call his attorney, Mr
Crauwkamp. He informed the applicant that she could not travel with him as
he is collecting his attorney and they are travel ling together to court . The
applicant wanted to know in which court and at what time the matter was
going to be heard . She told the respondent that she wanted to be heard - in
other words that she wanted to have her say in court. The respondent
refuse d to inform her of the court’s location and stated words to the effect
that “They don't want to hear your story . This is not Judge Judy, they will
throw you out .”
[36] According to the respondent he did not refuse to inform the applicant of the
court’s location. According to him, he was not aware of the exact details of
where the hearing was to take place as he was travelling with his attorney .
He explained his reference to “Judge Judy ” as that the applicant 's behaviour
and threats to inform the court of his alleged infidelit ies during t heir marriage
must be seen within the context of the applicant ’s often erratic and emotive
behaviour . The respondent does not dispute that he informed the applicant
that she must make her own way to court . However , he did not inform her of
the time, nor w hich court (i.e. High or Regional Court) she had to appear in .
[37] From approximately 8 :19 to 13 :25 on 9 September 2024 no less than 16
voice calls/ notes and more than 40 WhatsApp messages were exchanged
between the parties . The trail of WhatsApp's and voice notes sent by the
applicant , is attached to the founding affida vit and is not disputed by the
respondent . In the multiple WhatsApp messages the applicant inter alia
informed the respondent that what he was doing is wrong, she begged him
to phone her, she informed him that he is denying her the opportunity to
legal representation, and again enquired which court she must be at and
reiterated that she has the right to be heard . Her WhatsApp at 09 :11 read: “I
am waiting for you to let me know where I must go … which court, I have the
right to be heard …”
[38] The respondent contacted her at 09 :13. They spoke for 4 minutes.
11
Thereafter the applicant attempted to telephonically contact the respondent
on 5 occasions from 09 :17 to 09 :21 including a WhatsApp requesting him to
call her at 09 :20. The respondent did not take her calls.
[39] In response to her WhatsApp at 09 :20 where in she requested that he calls
her, the respondent merely responded at 09 :21: “I have to do this for my self -
preservation .” From the trail of WhatsApp's and voice notes, it is evident that
the respondent replied to his wife’s WhatsApp messages at 09:02, 09:08 and
that at 09:13 the applicant again asked where she must go. He also sent
further WhatsApp's at 09:24 , six minutes before the court proceedings were
to commence at 9:30.
[40] At some stage a further WhatsApp was sent by the applicant which read :
“The least you can do is to be honest with the Magistrate and tell that have
been in total denial … I have seen absolutely no settlement agreement and
need this matter postponed …. Now it has become obvious you think
DIVORCE will give you freedom .”
[41] Despite the applicant ’s numerous requests, messages and calls the
respondent did not provide her with the details as to where and at what time
the matter would be heard even though by that time he knew in which court
the matter will be proceeding . Not only did the applicant clearly communicate
her intention to oppose the divorce and her desire to be present at court on
the morning of 9 September 2024 before the respondent left to collect his
attorneys, she also conveyed this intention in a WhatsApp on 5 September
2024:
“You start this process, there is now going back EVER. I will NOT
cohabitate with you …….. nor will I emotionally/psychologically cope
with staying in ANY form of contact with you. So please have the
decency to let me know if I should have some emergency legal
representation. Alternatively, I will appear in court without, and I will
be heard.”
12
[42] The court proceedings commenced at 9 :30. According to the respondent he
informed his legal representatives,8 prior to the commencement of the court
proceedings that his wife threatened that she would come to court and tell
the court how he had cheated on her . He was apparently advised that she is
entitled to come to court, but that the court is not interested in parties airing
their dirty laundry. The respondent’s attorneys filed short confirmatory
affidavits simply confirming the content of the answering affidavit in so far as
it relates to the m and no further detail or context is provided .
[43] At 11 :59 the respondent sent the applicant a voice note : “And yes I have
disclosed to the advocate, not in detail obviously, they don't want to hear
that, the court doesn't want to hear that . What you are doing is trying to seek
an opportunity to voice, or to be heard, they don't work like that, its very
clinical .”
[44] According to the respondent he could never conceive that the applicant
wanted to institute a counterclaim for spousal maintenance, even though the
applicant has not been gainfully employed for the past 16 years and the
respondent paid the family's expenses . I find the respondent’s version
unconvincing given the factual posit ion.
[45] The matter was called at 11 :05 and again at 12 :02. The transcript of the
proceedings is attached to the answering affidavit . The transcript reflects the
court’s difficulty with the relief sought for payment of the accrual without
sufficient evidence regarding whose estate has shown the larger accrual .
[46] After the proceedings the respondent went out for celebratory drink s and
returned to the matrimonial home much later that day in a “jolly” mood . He
informed the applicant that the divorce order was granted but that they must
still come to a settlement . According to the respondent he informed the
applicant that she w ill rec eive a copy of the order once it was available . The
order was subsequently served on the applicant on 17 September 2024.
8 Attorneys Mr David Manley and Andre Cr auwkamp and counsel, Mr Braga
13
[47] A few days after the granting of the divorce order the parties attended a
music show together with the applicant 's daughter . On Thursday, 12
September 2024, four days after the granting of the divorce , the applicant
received a WhatsApp from the respondent with photograph of a luxury red
sports car, and a further message stating “looking forward to our first date
tomorrow ” followed by a kissing emoji .
[48] According to the respondent he informed the applicant on 9 and 10
September 2024 that they should come to a settlement on the patrimonial
aspects of the ir marriage. On Tuesday, 10 September t he applicant
messaged the respondent at 14 :10: “ I will not sign any settlement
agreement …. We have 12 months to settle that . And only on that basis will I
cohabitate .” The respondent responded : “I think the settlement needs to be
sorted ASAP as then there is no accusation of manipulation .”
[49] The applicant then contacted the coun sel who assisted with her brother ’s
criminal matter and he advised her to approach an attorney . After contacting
her present attorney of record, they consulted on 30 September 2024 . The
applicant was not able to provide her attorney with copies of documents
relating to the divorce as she had torn them up .
[50] Prior to the applicant consulting with her attorney, the respondent provided
her with a document titled “Cohabitation Agreement ”. The agreement
provid es that as the parties still wish to continue living together for an
indefinite period , the respondent agrees to pay the direct monthly running
costs of the “common household ”, medical aid, the applicant 's vehicle
insurance,9 and her cell phone contract .
[51] The agreement further provides that the parties will contribute to the general
monthly overheads until any separation occurs . If the parties decide to
relocate together to another location the same conditions w ill apply . In
9 A Land Rover Evoque that he gifted to the applicant during 2017
14
addition if the parties are unab le to sta y in t he same household and wish to
live separately, the respondent is to pay rehabilitative maintenance to the
applicant which includes accommodation at a property either owned by the
respondent, alternatively rental to the maximum of R10,000 .00 a month, a
contribution to wards living costs of R2,500.00 per month and comprehensive
motor vehicle insurance for a period of 6 months from date of the separation .
[52] Clause 3 o f the agreement stipulates as follows : “Should the separation be
due to the influence of any third party, no rehabilitation will be paid .” The
agreement makes no reference to the September divorce order or to the
calculation or a division in accordance with the accrual system. It merely
provides in clause 5 for the division of the existing household contents to be
agreed upon by both parties one month after the separation .
[53] According to the respondent the cohabitation agreement merely establish es
some ground rules in the hope that they have a less acrimonious
“roommate ” situation . His proposal to contribute to certain expenses was
according to him done on a bona fide basis and to reach finality in the
matter . It was not an admission of any liability to pay maintenance to the
applicant and makes logical financial sense based upon his disposable
income available and in circumstances where the applicant refuses to seek
employment to assist financially .
[54] When the applicant enquired from the respondent how the cohabitation will
work in a WhatsApp, he merely responded that everything would be the
same as before. The respondent then provided an estimate of the value of
their respective estates . He recorded his net value assets as R12,749
000.00 and hers as R6,750,000.00 . The estimate refers to assets as at
September 2022, and provides full particulars of the applicant ’s assets,
including her vehicle, her undivided half share in the matrimonial home, the
value of an immovable property the applicant owns in Moreleta Park which
she received as part of a settlement in her divorce from her previous
husband , investments and cash . The respondent later informed the
applicant that she can add a further R1 million to his net asset value .
15
[55] The respondent does not dispute that he provided the asset value
estimation . His version in his answering affidavit is however not supported
by the particulars of claim and the evidence affidavit filed in support of the
relief he sought on 9 September 2024 . He failed to explain in the answering
affidavit how he was able to provide an estimat ion of the value of the
applicant ’s estate shortly after the divorce was granted when he pleaded in
paragraph 7.11 of his particulars of claim that he does not have full
particulars of the value of the applicant ’s estate. The relevant paragraphs in
the particulars of claim dated 7 March 2023 are as follows :
“7.8 The Plaintiff pleads that, for purposes of determining the
difference between the respective accruals of the parties
estates, the value of the Plaintiff's estate at the dissolution of
the marriage is deemed to be nil;
7.9 The D efendant's estate has accrued substantially during the
subsistence of the marriage ;
7.10 As a result, the Plaintiff is entitled to payment to the Plaintiff
of one half of the difference between the accruals of the
parties’ respective estates ;
7.11 The Plaintiff does not have the full particulars of the value of
the Defendant's estate and is entitled to obtain full
particulars of the value of the estate of the Defendant with
documentary proof thereof in terms of Section 7 of Act 88 of
1984 .” (Own emphasis added)
[56] According to the applicant she does not believe that the estimation provided
by the respondent is a true reflection of the parties’ current net value of their
respective estates . She seeks an opportunity to institute a counterclaim for
not only spousal maintenance but also for a division of the accrual and an
16
order that the trust established by the respondent , be regarded as his alter
ego for purposes of calculation of the accrual in his estate . The respondent
denies this.
[57] On 7 October 2024 the applicant ’s attorney directed a letter to the
respondent 's attorney, confirming that the applicant intends bringing an
application for rescission of the September divorce order and a condonation
application . Furthermore , a request is made for the urgent granting of access
to the electronic court filing system, and that the respondent agrees to the
recission of the divorce order and to reinstate all the previous payments
made by the respondent to the applicant . Apparently, the respondent
stopped the payments he had always made to the applicant after the
September order. The respondent was requested to reinstate these
payments until the matter is settled . The respondent ’s attorney responde d
that their instructions are not to consent to a recission . They undertook to
provide dates for a meeting between the parties as requested and access to
CaseLines.
[58] The respondent informed the applicant that he had a meeting with his
attorneys on 7 October 2024 . He tendered R500,000.00 in full and final
settlement to her . He informed her that they should consider a revised
cohabitation agreement that provides for R30,000.00 per month for a period
of 6 months in respect of spousal maintenance and that they must talk
before the end of that day as they were “running out of time ”. The
respondent denies that the offer that he made had any bearing on spousal
maintenance and the R5 00,000.00 payment was conditional on the applicant
transferring her 50% portion in the matrimonial property to him .
[59] On 9 and 11 October 2024, the applicant ’s attorney again requested to be
provided with access to the matter on CaseLines. Her attorney was provided
with access to the electronic court filing system on Friday , 11 October .
[60] On Monday , 14 October 2024 the applicant consulted with he r legal
representatives in respect of the recission application. During this period the
17
legal representatives also attempted to settle the matter.
[61] On Tuesday , 15 October 2024, the respondent forwarded emails to the
applicant regarding a vacation trip he p lanned for t hem to Dubai from 14 to
20 January 202 5. The respondent had already communicated with the travel
agent in this regard barely a month after the September divorce order was
granted .
[62] After the respondent became aware of the applicant ’s intention to institute
the recission application, he sent a WhatsApp on Wednesday 16 October
2024, which read : “Okay, so the gloves are off now, got the notification of
your intentions, s o cut your emotional crap and let the war begin .” The
respondent attempted to provide context to this WhatsApp in his answering
affidavit. The message was sent out of frustration as he believed that the
applicant is doing everything possible to drag out the finalisation of the
divorce .
[63] According to the applicant , the respondent is resorting to bullying tactics as
he wants to litigate her into submission and force her into a settlement . In
support of her vulnerable emotional and state for the past few years and her
perception and experienc e of the respondent ’s conduct, she provided a letter
from her treating therapist . The applicant’s therapist is a clinical
psychologist . The psychologist ’s correspondence dated 21 October 2024
indicates that the applicant suffers from anxiety and depression, partly
related to her dysfunctional home environment and that the applicant has
reported suffering from emotional, financial and sexual abuse during he r
marriage to the respondent over the past 23 years . The therapist further
goes on to state as follows :
”The home has reportedly been characterised by excessive alcohol
abuse and emotional manipulation . Mrs I__ has been trying to
survive a very difficult marriage and did not believe that Mr I ___ was
serious about getting a divorce .
She was in denial about the reality of he r current situation after years
18
of being bullied and manipulated . She now understands that a
dismissive attitude has serious consequences.
I request that she be given a second chance to respond to the
summons and address any harm that could come her way ….”
[64] The respondent denies that he bullied the applicant and according to him,
she verbally and physically abused him .
[65] On Thursday 24 October 2024 t he application for rescission was served.
ADDITIONAL ARGUMENTS RAISED IN OPPOSITION TO THE APPLICATION
FOR RECISSION:
[66] In his answering affidavit, the respondent seeks that the rescission
application be dismissed with an appropriate punitive costs order. The thrust
of his opposition is that he was procedurally entitled to the order as the
summon s and notice of set down w ere served personally on his wife. On the
voluminous papers filed by the respondent including a 86 -page affidavit,
with a further 50 pages of annexures, it was never his case that there was no
need to institute an application to rescind the decree of divorce and that the
applicant would irrespective of the divorce order already having been
granted, still be entitled to institute a spousal maintenance claim.
[67] However, at the hearing of the recission application on 15 November 2024 ,
Ms Vermaak -Hay SC appearing with Mr Braga on behalf the respondent,
handed up heads of argument wherein new grounds of opposition to the
rescission application w ere raised. The argument included that a Section
7(2) spousal maintenance claim in terms of t he Divorce Act survives the
granting of a decree of divorce and that the court can still grant a separation
of issues in the present circumstances. Consequently, the applicant is not
non-suited as she can still institute a claim for spousal maintenance and
division of the accrual .
[68] Ms Vermaak -Hay SC also handed up a draft order providing for the
19
dismissal of the application on a punitive Scale C including the costs of two
counsel, a separation of issues and that the applicant be granted leav e to file
a plea in opposition to the separated issues in terms of the September order
and her counterclaim within 10 days. In addition, the draft order provides that
pending the finalisation of the separated issues and the issues to be raised
by the appli cant in her counterclaim, she is entitled to utilise the provisions of
Rule 43 and will not be prejudiced by the fact that the decree of divorce was
already granted. Counsel , however , qualified the draft order by recording
that the respondent is in not adm itting that the applicant has a right to claim
any maintenance.
[69] The applicant’s counsel Ms Stroebel, objected to the respondent’s new line
of argument. She correctly in my view pointed out that in the answering
affidavit the basis for the opposition was that the applicant failed to
demonstrate good cause, as required by Rule 31(2)(b) and the common law.
This included that she was aware of the ongoing divorce proceedings due to
the service of the summons and notice of set down, that she was awarded
the opp ortunity to defend the matter but chose to do nothing and that her
intended claim for spousal maintenance was purely for purposes of delaying
the respondent’s claim.
[70] In similar vein, the answering affidavit also dealt with the reasons why the
respondent was of the view that the applicant had not made out a case in
terms of Rule 42(1)(a) as the applicant failed to demonstrate that the
respondent was not procedurally e ntitled to the order as the applicant had
received notice of the proceedings and he had also informed her on the
morning of 9 September that he is on his way to court to obtain a divorce
order.
[71] It is trite that legal arguments not specifically raised on t he papers in motion
proceedings may be advanced if they arise from the facts alleged .10 Ms
Stroebel argues that the legal argument which the respondent now attempts
10 Van Rensburg v Van Rensburg en Andere 1963 (1) SA 505 (A) at 509E – 510B; Heckroodt N.O.
v Gamiet 1995 (4) SA 244 (T) at 246A - C
20
to advance at the hearing does not arise from the facts as stated in his
answering affidavit. In addition, none of the subsequent correspondence
exchanged between the parties’ res pective attorneys indicate a change in
the argument or basis for opposition on behalf of the respondent.
[72] Although the argument of Ms Stroebel is legally sound , I deemed it in the
interests of justice and due to the novelty of the argument that in the present
circumstances where no plea and counterclaim was filed a Section 7(2)
claim in terms of the Divorce Act still survives a decree of divorce , to allow
the ne w argument raised . However, the parties were afforded the opportunity
to file supplementary heads of argument to address the new issues raised. 11
[73] The costs order that I intend to grant however reflects the court’s displeasure
in the way the respondent not only opposed the application for condonation
and rescission, but also in the manner that it has been done. In my view Ms
Stroebel raises a valid q uestion - if the court is to accept the respondent’s
argument that irrespective of whether the divorce is rescinded or not the
applicant will in any event, still be entitled to institute a claim for spousal
maintenance, why was the application for rescis sion so vehemently opposed
if the rescission would have no effect?
CONDONATION FOR THE LATE FILING OF THE RECISSION APPLICATION :
[74] Rule 31( 2)(b) provides that a defendant may apply within 20 days after
acquiring knowledge of a judgment granted in accordance with subrule (2)(a)
for the recission of such judgment and that the court may, on good cause
shown, set aside the default judgement on such terms as the court deems fit.
[75] The applicant i nstituted the recission application approximately 10 days after
her attorney received access to CaseLines and approximately a week after
the expiry of the 20 day period .
11 Supplementary heads were filed by the end of November 2024.
21
[76] I am satisfied with the explanation provided by the applicant for the late filing
of the application. The founding affidavit provides a full explanation for the
delay and the steps taken by the applicant and her attorney to not only
obtain access to the CaseLines profile but also the attemp ts to settle the
matter. T he application could not have been drafted without the applicant 's
legal representative having full access to the papers filed on CaseLines,
including the divorce summons. Consequently, I am satisfied that the
applicant has provided a sufficient explanatio n that allows the court to
understand the reason for the late filing and condonation is consequently
granted.
REQUIREMENTS FOR RECISSION IN TERMS OF RULE 31(2)(b),
ALTERNATIVELY THE COMMON LAW:
[77] The requirements for recission in accordance with the provisions of Rule
31(2)(b) and the common law overlap to some extent. Generally, where an
application does not fall within the confines of Rule 31 or 42, recission in
terms of the common law may apply when sufficient cause is shown.
[78] It is settled law that our courts generally expect that an applicant in a
recission application is to show good cause for the recission. This includes
not only showing an absence of willfulness but also by giving a reasonable
explanation for the default, showing that the application is made bona fide
and that the applicant has a bona fide defence to the plaintiff's claim, which
prima facie has some pr ospects of success.12 It is a trite principle that the
court has a wide discretion in evaluating what constitutes good cause in the
circumstances of the matter in order to ensure that justice is done between
the parties. The court may also consider the prejudice to the parties .
[79] I am satisfied, having regard to the common cause facts read together with
the facts that are not seriously disputed or disputed on a bona fide basis by
the respondent , that the applicant has shown a good cause, not only for the
12 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 476 – 477; Colyn v Tiger Food
Industries Ltd t/a Me adow Feed Mills (Cape) [2003] 2 All 113 (SCA) 27 at para 11
22
late filing of the condonation application but also for the rec ission in terms of
Rule 31 (2)(b) and in the alternative in terms of the common law . From the
chronology of events prior to the September divorce order the parties ’
relationship consisted of a pattern of fighting, threatening with divorce
proceedings and then making amends thereafter . The saying “Stop it I like
it” comes to mind when considering the relationship dynamic between the
parties .
[80] Section 4 of the Divorce Act provides that a court may grant a decree of
divorce on the ground of the irretrievable breakdown of the marriage if the
court is satisfied that the marriage has reached such a state of disintegration
that there is no reasonable prospect of the restora tion of the marriage
relationship .13 Subsection (3) further provides that if it appears to the court
that there is a reasonable possibility that the parties may reconcile through
counselling, reflection or treatment, the court may postpone the proceedings
in order that the parties may attempt a reconciliation.
[81] Although the respondent d id from time to time threaten with divorce
proceedings he never followed through until summons was served during
March 2023. Before and after the service of the summons the parties kept
on arguing and making up and continuing with the ir dysfunctional
relationship . The parties still enjoyed marital consortium , even though they
were living in separate bedrooms for approximately two years . Marital
consortium includes a whole gamut of relations which includes from caring
for each other, to eating and sleeping together and other personal interaction
that would characterise a “normal ” marital relationship .14 What is “normal”
for parties in their marital relationship depends on the facts – what is normal
for one marriage may not be normal for another .
[82] Whether the cessation of life together as husband and wife o r civil partners
in a civil union has occurred resulting in the irretrievable breakdown of a
13 Section 4(1).
14 Schäfer Family Law Service (Vol 1) Juta at D2 para (a)
23
marriage will depend on the facts of each case.15 The consortium between
parties may end even if parties remain under the same roof, but no longer
communicate and irrespective of whether they are still sexually intimate or
not.16
[83] In Naidoo v Naidoo the court granted decree of divorce despite the fact
that the parties continue d to cohabit and have sexual relations a few days
before the divorce hearing, a s the court was satisfied that on the other
evidence provided by the wife that the marriage had irretrievably broken
down .17 In the present matter I am not persuaded given the factual matrix
that the marriage relationship had irretrievably broken down.
[84] Although the parties ’ marriage did deteriorate and there were threats of a
divorce, such threats must be considered within the context of the arguments
between the parties and the relationship dynamic that existed . Despite these
arguments, the facts show that the consortium between parties continued .
The facts before this court supports the applicant’s version that the parties
had made amends during June 2023 and this is further supported by the fact
that the respondent took her on a holiday to Thailand in 2024. During this
holiday they enjoyed various activities as a couple, which is indicative of the
marital consortium still being in place at that time. In October 2024 the
respondent arranged for another holiday together to Dubai – why would the
respondent make such arrangement s if the consortium had ended ?
[85] Ms Vermaak -Hay SC argues that the fact that the parties have not shared a
bedroom or bed for the pa st two years is indicative of the irretrievable
breakdown of the marriage.18 I do not agree with this generalisation as it
15 When reference is made to husband and wife or spouses, the reference also refers to civil partners
in a civil union married in accordance with the Civil Union Act , 17 of 2006
16 Holland v Holland 1975 (3) SA 553 (A) where there had been no sexual intercours e for 14 years
but neither party wished to rely on the absence of marital privileges as a reason for the breakdown of
the marriage
17 Naidoo v Naidoo 1985 (1) SA 366 (T)
18 Section 4(2) (a) of the Divorce Act provides as follows :
“(2) Subject to the provisions of subsection (1), and without excluding any facts or
circumstances which may be indicative of the irretrievable break -down of a marriage,
the court may accept evidence -
24
ignores the unique dynamics within each mar ital relationship and that all the
evidence must be reconcilable with the consortium coming to an end
resulting in the irretrievable breakdown of the marriage.
[86] A marriage is more than just the sharing of a bed. The fact that the parties
lived in separate bedrooms cannot, in my view be the o verriding fact or. The
court needs to consider all the facts holistically . The fact that parties might
not be sharing a bedroom or bed, does not automatically mean that the
marital consortium has come to an end. There may be vario us reasons -
personal, physical and/or medical - for the parties deciding not to share a
bedroom or bed . In any event, the cohabitation agreement the respondent
provided to the applicant , indicates that the respondent still wanted the
consortium to continue post-divorce and is not reconcilable with a
relationship that has irretrievably broken down.
[87] Even if I am wrong on the issue of whether the marriage relationship had
irretrievably broken down or no t, the applicant has in any event met the
requirements for the recission of the September order.
[88] The applicant has provided a detailed and reasonable explanation for her
default including the circumstances surrounding the tearing up of the
summons and the notice of set down . She does not attempt to excuse her
emotive behaviour. She d oes however provide a reasonable explanation for
her behaviour within the unique relationship dynamic that existed between
her and the respondent and her emotional and mental state at the time .
[89] Irrespective of the summons and notice of set down being served on the
applicant, her intentions on the day of the hearing were clear . On 9
September 2024 the applicant made multiple attempts to enquir e about
where and when the hearing will take place . She made it clear that she
seek s a postponement to obtain legal advice as she wants to institute a
(a) that the parties have not lived together as husband a nd wife for a continuous
period of at least one year immediately prior to the date of the institution of
the divorce action;”
25
claim for spousal maintenance . The respondent not only read but also
responded to some of these messages before the court proceedings
commenced at 9 :30.
[90] The applicant has explained fully in a manner that allows this court to truly
understand the reasons for her non -appearance on 9 September 2024 and
that this was not willful or due to her gross negligence.
[91] In addition, the applicant h as provided sufficient detail rega rding t he
counterclaim she intends to institute if the divorce order is rescinded . Her
counterclaim is bona fide and not merely aimed at delaying the finalisation of
the matter. Having regard to the duration of the marriage , the parties’
standard of living, her age and that she has been unemployed for the past
16 years, there is a prima facie case for spousal maintenance in terms of
Section 7 (2) of the Divorce Act . The fact that the respondent p rovided her
with a cohabitation agreement a few days after the divorce order was
granted, prima facie indicates an acknowledgement of her need for financial
support and his ability to contribute thereto .
[92] The argument that the applicant indicated during the marriage that she has
no desire to be maintained by him or that she has waived her right to
maintenance, is not supported by the probabilities and the facts before me .
In any event, it is settled law that a spouse can only waive the right to claim
spousal maintenance on divorce and not before then .19
[93] The applicant also has a prima facie defen ce to the respondent ’s accrual
claim and a bona fide accrual claim against him. The respondent ’s
estimation of the value of the parties’ respective estates provided to the
applicant d uring October 2024 supports her version that his estate has
shown the larger accrual . In addition, she provided sufficient facts to indicate
to the court the triable i ssue s she wishes to raise in the divorce action.
Despite the voluminous answering affidavit, the respondent has not
19 ST v CT 2018 (5) SA 479 (SCA) at para 174 and 178
26
furnished sufficient evidence that serve to contradict or undermine the facts
as alleged by the applicant .
[94] The present circumstances and facts before the court support the argument
that is appropriate to rescind the whole of the order granted on 9 September
2024 . In my view the facts of this matter do not leave scope for a recission
of the judgement in part as argued by Ms Vermaak -Hay SC for the reasons
as more fully dealt with hereunder .
[95] I am satisfied that the applicant ’s application is made bona fide and that she
has a bona fide defence to the respondent 's claims which prima facie have
some prospect of success . I cannot find on the facts before me that the
recission application has been instituted for the purpose of delaying the
respondent ’s claim in the divorce action .
[96] I have also considered the prejudice to the parties. Ms Vermaak -Hay SC
argues that the parties are ad idem that the marriage relationship has broken
down irretrievably and consequently with reference to the judgment in CC v
CM, the respondent should be afforded the opportunity to go on with his life
and not be shackled to a dead marriage.20 The respondent contends that if
a recission is granted it will prevent him from moving on with his life. He will
be forced back into a “ loveless and frenzied marriage ”. He will be barred
from an opportunity to find new love and the possibility of entering a
meaningful marriage with someone else for the next five years if the matter
proceeds to trial. Unfortunately for the respondent t he facts do not support
his argument.
[97] The facts of the present matter are distinguishable from the facts in CC v CM
where the parties ha d been living separately since 20 03 and the husband
had an extra marital affair resulting in the birth of a child during 1999 . The
husband , his new partner and the minor child were residing together as a
family unit when he issued divo rce summons and subsequently requested a
20 CC v CM 2014 (2) SA 430 (GJ)
27
separation of issue s in accordance with the provisions of Rule 33(4) . The
husband sought a decree of divorce and that his wife’s section 7(2) and (3)
claims be postponed sine die . The court found that in those circumstances a
separation of issue was convenient , the advantages of separation
outweighed the disadvantages, and the separation was in the interest of the
court and the parties. The court also considered the section 28 rights of the
minor child enshrined in the Constitution when considering the separation
and prejudice .21
[98] In the present m atter the facts do not support the respondent’s argument
that he will be prejudice d if the decree of divorce is rescinded . On his own
version, he was involved in extramarital relationships with two individual s
during 20 13. The marriage relationship at that stage did not bar or hinder
him in pursuing other romantic liaisons . Furthermore, there is no indication in
the answering affidavit that the respondent has met a new romantic partner .
The facts speak to the co ntrary . If the divorce order is set aside, it will of be
no consequence for the respondent as he still wants to cohabitate with the
applicant , financially support and go on dates and holidays with her.
[99] On the other hand, if the September divorce order is not rescinded the
applicant will be non -suited in respect of spousal maintenance post -divorce
for the reasons more fully discussed hereunder . She will be severely
prejudiced as she will be denied her access to justice.
RESCISSION OF THE ORDER IN TERMS OF RULE 42(1)(a):
[100] Even if I am wrong in finding that the applicant meet s the requirements of
Rule 31(2)(b), I am satisfied that the applicant has also made out a case in
the alternative in terms of Rule 42(1)(a).
[101] Rule 42 (1)(a) states :
21 Supra at para 43 and 44
28
“The court may, in addition to any other powers it may have, mero
moto or upon application of any party affected, res cind or very:
(a) An order or judgement erroneously so ught or erroneously
granted in the absence of any party affected thereby .
[102] In Van Heerden v Bronkhorst the S upreme Court of Appeal (SCA) held:22
“Generally, a judgement is erroneously granted, if there existed at
the time of its issue, a fact of which the court was unaware, which
would have precluded the granting of the judgement and which
would have induced the court, if aware of it, not to grant the
judgement.”
[103] The first requirement that the applicant must satisfy is that she must be a
party affected by the judgement . Because of the personal nature of the
litigation being divorce proceedings, the applicant is directly affected by the
September order .
[104] The second requirement the applicant must satisfy is that the judgement
must have been granted in the absence of the party. The applicant also
meets this requirement
[105] The third requirement is that the j udgement must have been erroneously
sought or granted and I will deal with this requirement shortly . If the three
requirements are met, the applicant must also satisfy the court that the court
should exercise its discretion in favour of the granting of the re scission .
[106] Regarding the third requirement that the order was erroneously sought or
erroneously granted, it is trite that a judgement to which a party is
procedurally entitled cannot be said to have been erroneously granted in the
22 [2020] ZASCA 147 at para 10
29
absence of the affected party .23
[107] The CC in Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture , Corruption and Fraud in the Public
Sector, including Organs of State and Others , held that it was not enough
that a party was absent at the time that the order was granted. 24 An
applicant must also show that the order was erroneously sought or granted .
The CC held that an applicant seeking to demonstrate that an order was
erroneously sought or granted must : “… [s]how that the judgement against
which they seek rescission was erroneously granted because ‘there existed
at the time of its issue a fact of which the Judge was un aware , which would
have precluded the granting of the judgement and which would have induced
the Judge, if aware of it, not to grant the judgement ’”.25
[108] The requirements as set out in Zuma needs to be contextualised within the
present factual matrix . Although the respondent technically may have been
procedurally entitled to proceed on an unopposed basis to obtain the order,
he sought on 9 September 2024 , he conveniently withheld vital information
from the court hearing the unopposed divorce regarding notice to the
applicant . This includes that the applicant had torn up all the documents
served on her before familiarising herself with the content thereof and that
the applicant often behaved in an erratic and emotive way . Given the facts
before me I cannot agree with an argument which results in sacrific ing the
applicant’s constitutional right of access to justice on the altar of procedural
formalism.
[109] The respondent in his answering affidavit does not indicate that he informed
the applicant about the precise date, and which court the matter would be
heard despite her repeated requests . Furthermore, i t is not clear on the
papers before me to what extent the respondent shared with his legal
representatives the consortium the parties still enjoyed, what transpired
23 Freedom Stationary (Pty) Ltd v Hassa m 2019 (4) SA 459 (SCA) at para 25; Lodhi 2 Properties
Investments CC and Another v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA) at para 27
24 2021 (11) BCLR 1263 (CC) para 62 and the reference in f ootnote 30
25 Supra at para 62
30
when the summons and notice of s et down were served , and the subsequent
discussions and WhatsApp’s b etween the parties on 5 and 9 September
2024 . What is disconcerting is that the court was not informed of these facts
in the evidence affidavit filed or when the matter was called on 9 September
2024.
[110] It is not uncommon for parties to appear in the unopposed motion court on
the day of the hearing, even where a matter has become settled. Had this
court been aware on 9 September 2024 of the fact that the applicant clearly
communicated her desire to be present at court, that she wanted to address
the court and institute a counterclaim the order would not have been
granted.
[111] Furthermore, h ad this court had the benefit of the history between the
parties, and in particular the discussion s during June 2024, and that the
parties still enjoy ed marital consortium , I would not have been persuaded
that the marriage had broken down irretrievably without the prospects of a
reconciliation .
[112] I was referred to various judgments where the rescission of the divorce order
was refused in circumstances where the applicant knew about the date of
the hearing of the divorce matter and was not present and where in other
instances the court granted a partial recission.26 However the cases referred
to are markedly distinct from that which is before me as either a notic e to
oppose or pleadings have been exchanged and /or the one party was already
remarried when the application for recission was brought or the parties
agreed to a partial recission .
[113] The provisions of Rule 42 (1)(a) provide the court with a discretion to rescind
or vary an order if an applicant meets the other requirements . The court is
26 KN v GN (410192020) [2023] ZAGPJHC 179 (13 March 2023) ; Mofokeng v Mofokeng 2011 JDR
0639 (GNP) ; D v D A3079/15 (12 February 2016 Wepener J and Crutchfield A J) at para 56; TKG v
MN case number: 44477/2021 [2023] ZAGPJHC 418 at para 41; M v M (5710/2010) [2014] ZAFSHC
170 (5 September 2014); Togo v Molabe and Another (29059/2014) [2016] ZAGPPHC 666 (26 July
2016)
31
merely empowered with a discretion and is not compelled to grant a
rescission if all the jurisdictional requirements are met .27 As held by t he SCA
in Chetty the discretion to be exercise d by a court is “… influenced by
considerations of fairness and justice, having regard to all the facts and
circumstances of the particular .” 28
[114] When the order was granted on 9 September 2024 there existed facts of
which the court was unaware , which would have precluded the granting of
the order and which would have induced the court, if aware of it, not to grant
the order. I have already dealt with these facts and do not intend repeating
same.
[115] Consequently , I am satisfied that the applicant has also in the alternative
made out a case in terms of the provisions of Rule 42 (1)(a).
INSTITUTING A CLAIM FOR SPOUSAL MAINTENANCE POST -DIVORCE :
[116] One of the main arguments raised on behalf of the applicant in support of the
rescission of the September divorce order is that for her to institute a
maintenance claim the decree of divorce must be rescinded . If the divorce
order is not rescinded , she will be legally barred from instituting a claim for
spousal maintenance as the reciprocal duty of support sp ouses owe each is
intrinsically linked to the beginning and the end of a marriage.
[117] The applicant relies on the SCA judgement s in Schutte29 and Zwiegelaar .30
In Schutte and Zwiegelaar the SCA held that the reciprocal duty of support
during a marriage ceases upon the dissolution of such a marriage and that
the duty of support between spouses can only be extended post -divorce by a
court in terms of the provisions of Section 7 of the Divor ce Act at the
27 See Zuma supra at para 53
28 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 761D – E
29 1986 (1) SA 872 A
30 2001 (1) SA 1208 (SCA) at paras 12 and 14. In this matter the SCA was confronted with the
argument whether it was competent for the court granting the decree of divorce to also order a
lumpsum payment for ho usehold necessities in accordance with the provisions of Section 7(2) of the
Divorce Act. The SCA held that it was competent in terms of the provisions of the subsection.
32
dissolution of the marriage.
[118] It is firmly established in our l aw that the reciprocal duty of support arises
between spouses upon the marriage and comes to an end when the
marriage is either dissolved by way of death or a decree of divorce .
[119] The duty of support between spouses is further protected when a spouse
passes away without making provision for the other spouse in respect of
maintenance. The surviving spouse may institute a claim for spousal
maintenance against the estate of the deceased spouse in terms of the
Maintenance of Surviving Spouses Act .31 The Intestate Succession
Act32 and the Maintenance of Surviving Spouses Act provides remedies
to spouses whilst they are married. These remedies are not applicable when
the marriage has ended.
[120] A spouse is not entitled to spousal maintenance as of right post -divorce.
Consequently, if a spouse wants to extend the duty of support post - divorce
this can be achieved by either following the route in accordance with section
7(1) or (2) , of the Divorce Act .33
[121] Section 7(1) provides that the court granting the decree of divorce may, in
accordance with the written agreement between the parties make an order
regarding the division of the assets of the parties or the payment of
maintenance by the one party to the other. In the absence of such
agreement, section 7 (2) is applicable. Section 7(2) states :
“(2) In the absence of an order made in terms of subsection (1)
with regard to the payment of maintenance by the one party
to the other, the court may, having regard to the existing or
prospective means of each of the parties, that r espective
earning capacities, f inancial needs and obligations, the age
31 27 of 1990
32 81 of 1987
33 See the discussion in the dissenting judgment by Schippe rs AJ in DHB v CSB [2024] ZACC 9 at
para 96
33
of each of the parties, the duration of the marriage, the
standard of living of the parties prior to the divorce, the
conduct in so far as it may be relevant to the break -down of
the marriage, an order in terms of su bsection (3) and any
other factor which in the opinion of the court should be taken
into account, make an order which the court finds just in
respect of the payment of maintenance by the one party to
the other for any period until the death or remarriage o f the
party in his favour the order is given, whichever event may
first occur .”
[122] Ms Vermaak -Hay SC argues that upon a proper construction of Section 7 (2)
and the lack of the qualifying words “a court granting a decree of divorce ”
which is specifically included in subsections (1) and (3 ) whilst no such
qualifications is found in subsection (2), does not disallow or bar of the
institution of a spousal maintenance claim after the decree of divorce has
been granted . In support of this argument reference was again made to CC
v CM .34
[123] In my view the argument is flawed. In the present matter t he question before
this court is not whether the parties agree that the marriage has broken
down irretrievably and that the court consequently does not have a discretion
whether a decree of divorce should be granted or not as was the position in
CC v CM . The question before me is whether the applicant will be deprived
of her right to institute a claim for spousal maintenance in terms of Section
7(2) if the divorce order is not rescinded. In my view, the authorities are
clear. The applicant cannot institute a section 7(2) claim after the decree of
divorce has been granted. The authority in respect of a section 7(2) vests in
the court which grants the decree of divorce.
[124] In CC v C M the court did not consider the application for a separation of
issues with in the context of the findings of the SCA in Schutte and the
34 2014 (2) SA 430 (GJ) at 438 para 39
34
question of whether a section 7(2) claim survives the granting of the decree
of divorce where no such claim has been instituted . In addition, in the
present matter the applicant is not before the court as she has not filed a
plea and counterclaim, and the question arises whether it is legally
competent to institute a spousal maintenance claim post -divorce . The
position of the applicant in the present matter is factually and legally
markedly distinct from CC v CM .
[125] The authorities the respondent relies on in support of the argument that a
Section 7 (2) claim survives the granting of a divorce within the context of an
application for the rescission of the divorce order, all concern matters were
pleadings have been exchanged between the parties , and/or a party had not
institute d a section 7(2) claim , and/or agreed to the recission. 35 The
authorities referred to are factually and legally distinct from that which is
before me.
[126] The respondent’s argument ignores the context in which the SCA in Schutte
held that a spousal maintenance claim in terms of Section 7 of the Divorce
Act cannot be granted after the dissolution of the marriage . The SCA
distinguish ed between the provisions in Sections 7 and 8 of the Divorce Act
and its predecessor the 1953 Matrimonial Affairs Act .36 Section 10 (1)(a) of
the Matrimonial Affairs Act, provided that a court may only grant spousal
maintenance to the innocent spouse .37
[127] In Schutte the SCA further considered whether the legislator intended that
the court's authority to amend a court order in terms of Section 10 (1) of the
35 CC v CM supra; D v D A3079/15 (12 September 2016): Wepener J and Crutchfield AJ); Lekhuleni
JD: The recission of divorce order for purposes of claiming spousal maintenance ( De Rebus: 1 April
2021)
36 37 of 1953
37 Section 10(1): The court granting a divorce may, notwithstanding the dissolution of the marriage –
(a) make such order against the guilty spouse for the maintenance of the innocent spouse for any
period until the death or until the remarriage of the innocent spouse, whichever event may
first occur, as the court may deem just; or
(b) make any agreement between the spouses for the maintenance of one of them an order of
court,
and any court of competent jurisdiction may, on good cause shown (which may be a cause other than
the financial means of either of the respective spouses) rescind, suspend or vary any such order.”
35
Matrimonial Affairs Act and Section 8 (1) of the Divorce Act can, by way of
a contractual sti pulation be limited or do ne away with . 38
[128] Van Heerden, JA remarked that the wording of Section 10 (1) o f the
Matrimonial Affairs Act referred to the authority of the court “granting a
divorce ”. The wording of Section 10 (1) specifically referred to the “guilty
spouse ” and the “innocent spouse ” which can only be when the parties are
still married and consequently the section could only have a reference to the
court granting the divorce .39 The ambit of Section 7 (2) is much wider than
Section 10 (1)(a) of the Matrimonial Affairs Act as the latter only
empowered the court to make a maintenance order and in respect of the
innocent spouse .40 However, the important fact is that the powers provided
for in section 7 vests in the court which grants a decree of divorce and a
main tenance order cannot be granted after the dissolution of the marriage .41
[129] Schippers AJ in the dissenting CC judgment in DHB v CSB interpreted the
provisions of section 7 by considering the language of the provision , read in
the context and having regard to its purpose and remarked:
38 Section 8(1): 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 or, in the case of
a maintenance order or an order with regard to the access to a child, be suspended by a court if the
court finds that there is sufficient reason therefore: Provided that if an enquiry is instituted by the
Family Advocate in terms of section 4(1)(b) or (2)(b) of the Mediation in Certain Divorce Matters Act,
1987, such an order w ith regard to the custody or guardianship of, or access to, a child shall not be
rescinded or varied or, in the case of an order with regard to the access to a child, not be suspended
before the report and recommendation referred to in the said 4(1) have b een considered by the court.
39 1986 (1) SA 872 (A) at 881F - G
40 Supra at 881H – 882D
41 Supra at 882C – F. The matter is in Afrikaans and I translate the relevant portion as follows and add
my own emphasis: For present purposes, however, the important fact is that the powers provided for
in section 7 are vested in a Court "which grants a divorce decree". This phrase differs somewhat
stylistically from the one contained in section 10 of the 1953 Act and which was discussed above, but
substantively there is n o distinction. The Legislature must have been aware of the interpretation of the
Courts consistently attached to the latter phrase, and therefore must have intended that the
corresponding phrase in section 7 of the 197 9 Act would carry the same meaning.
It therefore follows that a maintenance order cannot be granted in terms of section 7 of the 197 9 Act
after the dissolution of a marriage . This consequence is of crucial importance because only a
maintenance order could b e revoked, amended or suspended according to section 8(1) of that Act. If
a maintenance order was not granted upon dissolution of the marriage, art 8(1) cannot be applied .
Specifically, a Court is not competent to amend an undertaking concerning the paymen t of
maintenance, in respect of which no order has been made."
36
“[85] On its plain language, section 7(1) makes it clear, firstly, that
the power to make a spousal maintenance order, or an order
regarding the division of assets, is ancillary to the court’s
power to grant a decree of divorce. The “written agreement”
envisage d in section 7(1) of the Divorce Act is therefore
confined to a settlement agreement when divorce is actually
pending or contemplated .
……………………………………………………………………..
[87] Thirdly, the purposes of section 7 are evident from the
provision itself. It is ai med at the fair and equitable
distribution of the economic consequences of the marriage
and its breakdown and to ensure that a party in need of
spousal maintenance post -divorce, is not left destitute.
These economic consequences and the means and needs
of the parties, are difficult, if not impossible, to predict in
advance. Instead, the full impact of the marriage and its
breakdown and the parties’ means and needs are things that
only become apparent over time, and are manifest at the
point of
divorce ………… …………………………………………………
……………….
[96] Parliament has decreed that post -divorce spousal
maintenance is obtained in one of two ways. First, through a
settlement agreement in a pending or imminent divorce ,
which may be approved or rejected by an order of court
contemplated in section 7(1). Second, in the absence of
such agreement, by an order of court under section 7(2). In
both instances, the divorce court must consider the factors in
section 7(2) in deciding what amount of spousal
maintenance is appropriate and just. Those factors guide
the court in exercising its discretion under section 7(1).”42
(Own e mphasis)
42 DHB v CSB [2024] ZACC 9 (22 May 2024) at para 83 – 88 and 96 to 96
37
[130] Consequently, the authorities do not support the argument of the
respondent. Furthermore, t o interpret subsection 7 (2) in any other manner
than that such claim must be instituted before a decree of divorce is granted
in my view would lead to an absurdity . This would mean that irrespective of
when a divorce is granted, a party can ex post facto and after the court has
put finality to all the claims resulting from the marital relationship, have a
second bite at the cherry and approach the court to revive the reciprocal duty
of support that ceases to exist the moment the marriage relationship is
dissolved .
[131] Schippers AJ further remarked at paragraph 106 and referencing Schutte43
in footnote 7 4 of the dissenting judgment, as follows: 44
“[106] The suggestion that the applicant is entitled to apply for an
order under section 7(2) of the Divorce Act is also illogical.
How can the applicant sensibly seek maintenance from the
respondent, when he is already contractually obliged to
provide her with s pousal maintenance? And the ouster of
the court’s power under section 8 of the Divorce Act to vary
a maintenance order is self -evident. The result? The
applicant is left without a remedy: an order under section 7
cannot be granted after dissolution of t he marriage. This, in
turn, may cast the burden of the applicant’s support onto the
state, which is manifestly unjust in a case where the
respondent has the means to provide spousal maintenance.”
(Own emphasis)
CONDUCT OF THE RESPONDENT’S LEGAL PRACTITIONERS :
[132] Counsel who appeared when the unopposed divorce was moved on 9
September 2024, remained involved as the junior counsel when the
43 Supra at 884A
44 2024 (5) SA 335 (CC) (22 May 2024) at para 106 and footnote reference omitted
38
opposing papers in rescission application was drafted and the matter argued
before me . In my view it is not appropriate that a coun sel against whom
allegations is made of potential inappropriate conduct, remains involved in
the matter, especially in preparing the affidavit on behalf of the client .
Counsel should never be in a position where counsel’s own interests as an
officer of the court and the duty towards the court on th e one hand may
conflict with his duty towards his client .
[133] It is unfortunate that much time was spent in the 86-page answering affidavit
to deal with how the marriage had declined since 2010, explaining the
respondent ’s extramarital affairs and providing his cont ext regarding the
alleged admittance by the applicant durin g August/September 2022 that s he
had been having an extramarital affair for 7 years with the ir elderly
neighbour . The applicant denies all these allegations except the fact that the
respondent had extramarital affairs during the ir marriage.
[134] It is unsatisfactory that the same attention to detail was not given to
answering the serious allegations made in the founding affidavit that the
respondent and/or his legal representative failed to disclose the applicant ’s
clear and unequivocal intention to attend the court proceedings on 9
September and that she wanted to obtain legal representation to oppose the
divorce action instituted by her then husband .
[135] Irrespective of the extent of what the respondent disclosed to his legal
representatives , counsel should have at the very least alerted the court on 9
September to the fact that his client had indicated to him that his wife wants
to come to court and then leave it to the court to decide how the process was
to enfold further.
[136] It was not for the respondent’ s legal representative s to decide whether the
applicant’s evidence w ill be relevant for the court or whether the court would
be interested in what the applicant had to say . When legal representatives
withhold information from the court, it negatively impacts on the trust
relationship between the Bench and legal representatives appearing before
39
it.
[137] Had the respondent ’s legal representative disclosed to this court on 9
September the information (however limited it may have been at that stage )
provided to them by their client this matter would probably n ot have
snowballed to the voluminous application that it has become, including the
raising of concerns such as whether the legal representatives should be
referred to the regulatory body because of their failure to inform the cou rt of
certain facts .
[138] In Ex parte Minister of Home Affairs and Another , the CC reaffirmed the
ethical and moral duty legal practitioners owe the public, and in particular
their clients and to the courts and they must uphold the rule of law, and act
diligently and professionally.45
[139] The granting of a decree of divorce has pro found legal, personal and
patrimonial consequences for a party. Consequently, it is of utmost
importance that legal practitioners remain vigilant and act with scrupulous
integrity to ensure that a procedurally fair and transparent process is
followed. Thi s can only be achieved when practitioners make full and frank
disclosure of all relevant facts even if such disclosure may negatively impact
on the relief their client is seeking on the day that the matter serves before
the court.
[140] The Deputy Judge Preside nt of the Gauteng Division, Johannesburg,
remarked on the dependence of judges on ethical conduct by legal
practitioners and the ethical duties of disclosure and non -disclosure as
follows:46
The primary duty of legal practitioners is to the court rather than to
45 2024(1) SA 58 (CC) at para 103 - 104
46 As referred to by Opperman J in Sheffryk v MEC for Police, Roads and Transport, Free State
Province [2022] JOL 53933 (FB) para 3, with reference to article by Sutherland DJP: The
Dependence of Judges on Ethical Conduct by Legal Practitione rs: The Ethical Duties of Disclosure
and Non-Disclosure ( South African Judicial Education Journal (2021) 4 (1) at p 47, ISSN: 2616 -
7999)
40
the client and thus legal practitioners are obliged to actively support
the efficacy of the court process. One aspect of this dependence is
illustrated in this article: the duty of legal practitioners to respect and
support the process of court by making proper disclosure a nd not
mislead the court. It is argued that the culture of contemporary
litigation must be more respectful of this interrelationship between
the judge and a legal practitioner to produce efficient and fair
litigation.
[141] Unopposed and settled divorces are us ually heard in the unopposed motion
court. In the Gauteng Division these matters are dealt with by the court
sitting as the Family Court in accordance with the Consolidated Practice
directive. It often happens that a party, with or without legal representa tion,
decides to appear in the unopposed motion court on the day of the hearing,
even where a matter has become settled and without a formal notice to
oppose.
[142] It is a well -established practice that the moment that a legal representative
appearing for the applicant/plaintiff moving the unopposed motion or divorce
becomes aware of the respondent/defendant’s presence at court or intention
to appear in court to immediately inform the Presiding Officer of this. It is
then for the court to decide on how to proc edurally further deal with the
unexpected appearance. This practice forms part of the unwritten rules of
conduct and trust which exists between the Bench and its officers of court to
ensure a fair and transparent legal process.
[143] Legal practitioners should always be mindful of Section 34 of the
Constitution which provides that everyone has the right to a fair public
hearing before a court or other impartial tribunal or forum to resolve any
disputes that can be decided by law. The ri ght to access to justice is a
fundamental to the rule of law, and a cornerstone in protecting our
Constitutional values.
41
[144] In addition, the Code of Conduct for all legal practitioners47 provides that
legal practitioners, candidate legal practitioners and juristic entities shall inter
alia:
“3.2 Uphold the Constitution of the Republic and the principles
and values enshrined in the Constitution, and without limiting
the generality of these principles and values, shall not, in the
course of his or her or its practice or business activity,
discriminate against any person on any grounds prohibited in
the Constitution;”
[145] The Code of Conduct further provides that although the interests of clients
are paramount, a legal practitioner’s conduct shall always be subject to their
duty to the court, the interests of justice, observance of the law and
maintaining the ethical standards prescribed by the code and any ethical
standards ge nerally recognised by the profession.48
[146] One would have thought that common sense and the interest of justice
dictates that the moment that a legal representative is aware that the
opposing party , in particular a party who is unrepresented , is at court or has
indicated the wish to appear at the hearing to address the court , that under
such circumstances the court must be informed immediately. The
respondent’s argument that there is no express written ethical rule in this
regard is misplaced . Not all the ethical rules and conduct that have
developed over time have been reduced to writing yet this does not detract
from its relevance and applicability.
[147] Was it not for the fact counsel is still a junior practitioner and that this court
would speculate regarding the precise nature of what transpired between the
respondent and his legal representatives including what he indeed shared
with them before and on 9 September 2024 , I would have referred the legal
representatives to their respective regulatory bod ies. T his judgement should
47 Made under the authority of Section 36(1) of the Legal Practice Act , 28 of 2024
48 Section 3 .3
42
heed as a cautionary tale to legal representatives in unopposed and settled
divorces to ensure they do not usurp the function of the court and take i t
upon themselves to decide whether an opposing party has the right to be
heard or not .
COSTS:
[148] Costs remain in the discretion of the court and in my view, a punitive costs
order is warranted in this matter . The applicant had initially in her notice of
motion sought costs only sought in the event of opposition .
[149] I agree with the argument raised by Ms Stro ebel that the way the respondent
opposed the application by the filing of a voluminous affidavit replete with
unnecessary repetition of allegations accompanied by voluminous
attachments of which the purpose was nothing more than to create
atmosphere and to litigate the applicant into submission . This constitutes an
abuse of process that warrants the censure of the court with an appropriate
costs order .
[150] In addition, I am disallowing the fees of the respondent ’s legal
representatives as the ir conduct in my view did not meet that of what is
expected of officers of this court . The fees of Ms Vermaak -Hay SC are not
affected by my order as senior counsel only became involved after the
application for recission was served.
ORDER:
[151] In the circumstances, I make the following order :
1. Condonation for the late filing of the application for rescission i s
granted .
2. The order granted on 9 September 2024 by Haupt AJ under case
number B1349/2023 is set aside .
43
3. The Applicant is order ed to file her plea and counterclaim within 15
days from the date of granting of th is order .
4. The Respondent is ordered to pay the costs of the application on an
attorney and client scale , such costs to be taxed on Scale C and to
include the appearance on 4 and 15 November 2024 , the filing of
heads of argument, including supplementary heads of argument and
the preparation of a authorit ies bundle .
5. The Respondent ’s legal representatives ( attorneys and junior
counsel ) are disallowed any fees associated with preparing the
matter for enrolment in accordance with the Practice Directive for
Unopposed Divorces for the roll of 9 September 2024 and the
consultations, drafting and filing of the answering affidavit in the
rescission applic ation, appearance on 9 September, 4 and 15
November 2024, and the preparation of heads of argument and
supplementary heads of argument and a bundle of authori ties.
5.1 Insofar as the Respondent ’s legal representatives have
received fees, in this regard, such fees are to be repaid .
5.2 The Respondent ’s attorney of record is to file and upload to
the CaseLines/Court Online profile an affidavit on/before 31
March 2025, confirming compliance by the attorney (s) and
coun sel, in respect of the repayment of the ir fees as ordered .
HAUPT AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
44
This Judgment was prepared and authored by the judge whose name is reflected
and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines system and by release to SAFLII. The date for hand down is deemed to
be 17 February 2025.
For the Applicant : Adv J Stroebel
Instructed by: Bernadine Follett Attorneys
For the Respondent : Adv I Vermaak -Hay (SC) with Adv E Braga
Instructed by: Manley Incorporated
Matter heard on: 15 November 2024
Date of judgment: 17 February 2025