SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
CASE NO: 8030/2021
In the matter between:
S[...] L[...] Applicant
and
A[...] C[...] Respondent
And
In the matter between: CASE NO: 8030/2021
A[...] C[...] Applicant
and
S[...] L[...] Respondent
Neutral citation: L[...] v C[...] (Case no 8030/2021) [2025] ZAWCHC __ (4/12/25)
Coram: Davis, AJ
Heard: 22 October 2025
Delivered: 4 December 2025
Summary: Application for rescission of a default judgment – application for the
striking out of a defence and counterclaim in terms of Rule 35(7) of the
Uniform Rules of Court – applicable principles – striking out appropriate
where there is a high degree of contumacy and necessary to vindicate
the authority of the Court – ethical duties of legal practitioners in terms
of the LPC Code of Conduct – duty not to mislead the Court – duty not
to permit abuse of the process of Court
ORDER
1. The defendant’s application , for the re scission of the order granted by
Baartman, J on 17 October 2024 under case number 8030/2021 (‘the
rescission application’), is dismissed.
2. The plaintiff’s application, for the striking out of the defendant’s defence in the
divorce action under case number 8030 /2021 (‘the striking application’), is
granted.
3. The defendants defence in the divorce action under case number 8030/2021
is hereby struck out.
4. For the avoidance of doubt, it is recorded that the defendant’s counterclaim in
the divorce action under case number 8030/2021 stands, and the application
for the dismissal thereof is refused.
5. The defendant shall pay the plaintiff’s costs in the rescissio n application and
the striking application on the attorney and client scale.
JUDGMENT
DAVIS, AJ
INTRODUCTION
1. I am seized with two interrelated applications concerning the divorce action
brought by S[...] L[...] (‘the plaintiff’) against A[...] C[...] (‘the defendant’) under
case number 8030/2021 (‘the divorce action’).
2. First, there is an application brought by the plaintiff in terms of Rule 35(7) of
the Uniform Rules of Court (‘the Rules of Court ’), for the striking out of the
defendant’s defence and dismissal of his claim in reconvention in the divorce
action (‘the striking application’).
3. Second, there is an application brought by the defendant for the rescission of
the order granted by Baartman, J (as she then was) on 17 October 2024 , in
terms whereof the defendant was ordered to reply to the plaintiff’s notice in
terms of Rule 35(3) within ten days of service of the order (‘the rescission
application’).
4. As the defendant’s conduct in the litigation is directly relevant to the
determination of both applications, it is necessary to set out the tortuous
history of the matter in some detail.
THE LITIGATION HISTORY
The divorce action
5. The parties were married in 2009 in terms of Shariah Law. Two minor children
were born of the marriage, a boy of 13 and a girl of 10 (‘the minor children’).
6. The plaintiff issued summons in the divorce action on 12 May 2021 , at which
time she and the minor children were residing in Cape Town, while the
defendant resided in Sandton, Gauteng. They are still so resident.
7. In the divorce action, the plaintiff claims a decree of divorce, maintenance for
herself and the minor children, and an order in terms of s 7(3) of the Divorce
Act 70 of 1979 (‘the Divorce Act’) for the redistribution of assets to the value of
50 % of the defendant’s estate . She also seeks an order incorporating the
provisions of a parenting plan regulating the exercise of the parties’ parental
rights and obligations in respect of the minor children.
8. A notice of bar had to be delivered to prompt the defendant to file his plea in
the divorce action. The notice of bar was served on 25 July 2021 , whereafter
the defendant delivered his plea and claim in reconvention on 30 July 2021.
9. In his plea, the defendant admitte d that the parties had entered into a
marriage, but he denied that the union was a valid marriage in terms of
Shariah Law. In this regard he alleged that the plaintiff had deceived him with
regard to her age at the time of the marriage. Predicated on his denial of the
existence of a valid Muslim marriage, the defendant also denied that the
provisions of the Divorce Act applied to the union between the parties.
10. In his claim in reconvention, the defendant sought an order that the minor
children reside with him, and that the plaintiff’s contact with the children be
limited. He alleged that the plaintiff was emotionally unstable, that she was
alienating the minor children from him, that she display ed abusive and violent
behaviour in front of the children, and that she had uprooted the children from
a stable environment in Johannesburg and relocated them to Cape Town. He
claimed that he was better equipped “ emotionally and psychologically” to care
for the minor children. The defendant also sought an order for forfeiture of any
redistribution order awarded to the plaintiff.
11. In her plea to the defendant’s claim in reconvention , the plaintiff denied the
various allegations made by the defendant. She alleged that it had b een
necessary to leave the former matrimonial home as the defendant was
verbally and physically violent and abusive towards her an d the minor
children.
The Rule 43 Order
12. A Rule 43 order was granted on 31 May 2021 in terms whereof the defendant
was ordered to pay cash maintenance to the plaintiff , as well as payment of
rental, medical expenses and the children’s education costs. He was also
ordered to pay contribution to R200 000,00 towards the plaintiff’s legal costs
in the divorce action.
13. On 26 September 2024 , the plaintiff launched contempt proceedings by
virtue of the defendant’s failure to pay the cash maintenance ordered in the
Rule 43 order for a period of 3 months, a s well as additional payments due in
terms thereof (‘the first contempt app lication’). The defendant settled a
portion only of the outstanding cash maintenance shortly before the hearing
of the contempt application. On 25 October 2024, Nuku, J declared that the
defendant was in contempt of the Rule 43 order (‘the first contempt order’).
14. The defendant sought leave to appeal the first contempt order, which Nuku, J
refused on 13 March 2025. The defendant then petitioned the Supreme Court
of Appeal for leave to appeal, which was refused on 23 June 2025.
15. In the interim, t he plaintiff had on 20 December 2024 brought a further
application to declare the defendant in contempt of the Rule 43 order, as he
had failed to make payment of the rental for the plaintiff and minor children
from December 2022 to December 2024 (‘the second contempt application’).
On 17 January 2025, Van Zyl, AJ declared that the defendant was in
contempt of the Rule 43 order (‘the second contempt order’).
16. The defendant then applied for leave to appeal the second contempt order . A
decision in this regard is still awaited.
The application to compel discovery
17. On 25 January 2024 the plaintiff delivered a notice in terms of Rule 35(1)
calling upon the defendant to make discovery. The defendant delivered a
discovery affidavit on 31 January 2024.
18. The plaintiff delivered a notice in terms of Rule 35(3) on 4 June 2 024, calling
for discovery of additional documents said to be relevant to the plaintiff’s
claims in the divorce action.
19. The defendant’s response to the Rule 35(3) notice was due on 19 June 2024.
No response was forthcoming. The plaintiff’s attorney wrote to the defendant’s
attorney and afforded an extension to the defendant until 24 June 2024 to
deliver a response, failing which an application to compel would be brought.
The letter elicited no response.
20. As heralded, the plaintiff launched an application to compel the defendant to
respond to the Rule 35(3) notice, which application was set down on 5 July
2024 (‘the application to compel’).
21. On 28 June 2024, the defendant filed a notice of oppos ition in the application
to compel. Having signalled his intention to oppose , however, he failed to
deliver his answering affidavit on time. The plaintiff’s attorney sent two
reminder letters in this regard, but the letters were ignored.
22. The plaintiff then brought a chamber book application for an order compelling
the defendant to deliver his answering affidavit in the application to compel.
On 21 August 2024, Thulare, J granted a chamber book order directing the
defendant to serve his answering affidavit within 5 (five) days , failing which
the application to compel could be enrolled on the unopposed roll. The order
of Thulare, J was serv ed on the defendant’s attorney by email on 22 August
2024.
23. In terms of the order of Thulare, J, t he defendant was obliged to deliver his
answering affidavit in the application to compel by 29 August 2024, but he
failed to do so. The matter was then enroll ed on the unopposed motion roll for
hearing on 17 October 2024. On 30 September 2024, the plaintiff’s attorney
emailed a notice of set down to the defendant’s attorney, alerting him to the
fact that the matter was set down on 17 October 2024 at 10:00am.
24. There was no appearance for the defendant in the third division on 17
October 2024. Baartman, J granted an order by default in terms whereof she
directed the defendant to reply to the plaintiff’s Rule 35(3) notice within 10
(ten) days service of the order (‘the order of Baartman, J ’ or ‘the discovery
order’).
25. The discovery order was served on the defendant’s attorneys on 25 October
2024 by way of email. The defendant failed to deliver a re ply to the plaintiff ’s
Rule 35(3) by 8 November 2024, as required.
26. On 11 November 2024, the plaintiff’s attorney wrote to the defendant’s
attorney demanding that the reply to the Rule 35(3) n otice be delivered by
close of business on 12 November 2024, failing which an application to strike
out the defendant’s defence in t he divorce would be brought. Once again, the
letter elicited no response.
27. The plaintiff accordingly launched the striking application on 7 January 2025,
which was set down for hearing on the unopposed motion roll on 14 March
2025. The striking application was served on the defendant’s attorney by
email on 7 January 2025.
28. The defendant failed to respond to the striking application until 11 March
2025. On that day – three days before the matter was due to be heard on an
unopposed basis – his attorney filed a notice of opposition to the striking
application and conveyed to the plaintiff’s attorney that he h ad instructions to
file an answering affidavit in the striking application and to bring an application
for the rescission of the discovery order.
29. The parties then reached agreement on the further conduct of the matter ,
which agreement was embodied in a court order granted by Kusevitsky, J on
14 March 2025. It was ordered that the striking application be postponed to 22
October 2025 for hearing on the semi-urgent roll, and that the defendant the
rescission application by no later than 4 April 2025 . Provision was also made
for the filing of answering and replying affidavits in the rescission application.
30. The rescission application was not delivered on Friday, 4 April 2025 , as
ordered. On 7 April 2025, the plaintiff’s attorney wrote to the defendant’s
attorney calling for the rescission application to be served, failing which a
chamber book application would be brought to compel the defendant to do so.
Yet again, no response was forthcoming.
31. On 8 April 2025, the plaintiff brought a chamber book application for an order
compelling the defendant to deliver the rescission application with in 5 (five)
days. On 16 April 2025, Bhoopchand, AJ granted a n order directing the
defendant to serve the rescission application within 5 (five) days, failing which
the matter ( referring to the striking application) could be enrolled for hearing
on the unopposed motion roll.
32. In terms of the order of Bhoop chand, AJ, the defendant was obliged to file the
rescission application by 30 April 2025. He failed to do so. The striking
application was then set down for hearing on 13 May 2025 in the third
division, where the matter became before Saldanha, J.
33. The defendant’s attorney appeared at the hearing before Saldanha, J. He
informed the court that he had received instructions the day before, i.e., on 12
May 2025, to prepare the rescission application - this in circumstances where
the rescission application had first been heralded two months previously on 11
March 2025.
34. The transcript of the proceedings on 13 Ma y 2025 reveals that Saldanha, J
was singularly unimpressed. He did not mince words, pointing out that the
defendant’s attorney had an ethical obligation to advise the defendant to
comply with court orders, and that the defendant was abusing the process of
the court.
35. In the event, Saldanha, J granted an or der on 13 May 2025 in terms whereof
he directed the defendant to file the rescission application and his answering
affidavit in the striking application by 14 May 2025. The order also provided for
the filing of further affidavits and heads of argument, it being envisaged that
the rescission application and the striking application would both be heard on
22 October 2025. The defendant was ordered to pay the wasted costs
occasioned by the postponement on the punitive attorney and client scale.
The rescission application
36. Doubtless spurred into action by the wrath of Saldanha, J, the defendant duly
delivered the rescission application and his answering affidavit in the striking
application on 14 May 2025, as he had been ordered to do
37. The plaintiff’s answering affidavit in the rescission application was delivered
out of time .1 The plaintiff’s attorney proposed an adjusted timetable for the
filing of the defendant’s replying affidavit in the rescission application , but her
letter elicited no response , and on 25 August 2025 she again wrote to the
defendant’s attorney asking when replying affidavit would be delivered. Yet
again, no response was received.
38. The plaintiff then brought a chamber book application on 4 September 2025 ,
seeking an order directing the defendant to serve his replying affidavit in the
rescission application within 5 (five) days , failing which he would be barred
from doing so. On 12 September 2025, Ho lderness, J granted such an order.
1 The plaintiff was awaiting a transcript of the proceedings before Saldanha, J on 13 May 2025,
which was attached as an annexure to the answering affidavit.
The order of Holderness, J was served on the defendants’ attorney by email
on 18 September 2025. The defendant was obliged to deliver his replying
affidavit by 6 September 2025. He did not do so, even belatedly.
The hearing on 22 October 2022
39. When the two applications came before me on 22 October 2025, the plaintiff
had delivered h eads of argument and a practice note , but no heads of
argument or practice note had been filed on behalf of the defendant. Despite
the absence of a replying affidavit and /or heads of argument, counsel was
briefed to appear for the defendant at the hearing. Mr Holland appeared for
the defendant, and Ms Bezuidenhout for the plaintiff.
40. Without any apology or explanation for the absence of heads of argument, Mr
Holland sought to argue what he described as a “point of law”, namely that the
order of Baartman, J should be rescinded because , so he said, the plaintiff
had not served a Rule 35(1) notice and the defendant had not delivered a
discovery affidavit, with the result that the Rule 35(3) notice was incompetent,
and hence also the discovery order.
41. When I questioned whether a factual basis for this argument had been laid in
the rescission application, Mr Holland persisted that the point was one of law,
which he was entitled to argue. This approach is misconceived. The questions
of w hether or not a Rule 35(1) notice was served, and whether or not the
defendant had filed a discovery affidavit in response, are factual questions. In
the absence of the necessary factual allegations, the argument sought to be
advanced by Mr Holland could not be entertained.
42. Moreover, it is wholly unacceptable for counsel to seek to advance an
argument on a point of law which has not been heralded in a notice in terms
of Rule 6(5)( d)(iii) or, at the very least, in heads of argument . Litigation by
ambush is manifestly unfair to opposing counsel, not to mention discourteous
to the Court. It cannot be tolerated. The Court, no less than opposing counsel,
requires prior notice of any legal points to be argued in order to be in a
position meaningfully to engage with the argument during the hearing.
43. Having been taken by surprise, Ms Bezuidenhout, who appeared for the
plaintiff, was understandably unprepared to deal with the argument, save to
point out that it had never been raised before.
44. In the circumstances, I ruled that Mr Holland could not raise new arguments
which had not been heralded in the affidavits, and that he was confined to
arguing the case made out in the papers.
45. Having had the opportunity for further scrutiny of the papers, it regrettably has
to be said that there was no factual basis for the point sought to be argued by
Mr Holland. The plaintiff alleged in the application to compel that she delivered
a notice in terms of Rule 35(1) on 25 January 2024, and that the defendant
delivered a discovery affidavit on 31 January 2024. The defendant at no stage
denied these allegations. There was thus no conceivable basis on which Mr
Holland could argue that the discovery order, granted in terms of Rule 35(3),
was incompetent because no discovery affidavit had yet been delivered in
terms of Rule 35(1).
46. It has long been recognized that counsel are under a duty not to mislead a
court.2 That duty is now codified in section 57.1 of the Legal Practice Council
Code of Conduct made in terms of s 36(1) of the Legal Practice Act 28 of
2014 (‘the Code of Conduct’), which provides that:
‘A legal practitioner shall take reasonable steps to avoid, directly or indirectly,
misleading a court or tribunal on any matter of fact or question of law. In
particulars, a legal practitioner shall not mislead a court or a tribunal in
respect of what is in papers before the court or tri bunal, including any
transcript of evidence.’
47. The duty not to mislead the court requires that legal practitioners appearing
before a court take scrupulous care not to make inaccurate factual statements
which are not borne out by the evidence , or to advanc e legal submissions
which are not substantiated by authority. The proper functioning of the
administration of justice requires that courts be able to rely implicitly on the
correctness of the information conveyed by legal practitioners. 3 It is an
intolerable addition to the burden on Judges when they are forced to question
the accuracy of what they are told by legal practitioners. Counsel and
attorneys appearing before a court must ensure that their submissions can be
justified with reference to the record , and that they can direct the court to the
relevant passages in the record if asked to do so.
2 See Kekana v Society of Advocates of South Africa 1988 (4) SA 649 (SCA) 655 I – J, where the Court observed
that both the Bar and the Side Bar have strict ethical rules aimed at preventing their members from becoming
parties to the deception of the Court.
See, too, Van Dijkhorst and Church ‘Legal Practitioners’ 14 Part 2 LAWSA (2ed) para 132.
3 See Ex parte Swain 1973 (2) SA 427 (N) 434 H.
48. It is therefore disquieting that counsel saw fit to advance an argument based
on factual assumptions which were belied by the undisputed allegations in the
striking application. At best for Mr Holland, he was unprepared for the hearing
and acted recklessly in advancing submissions when he could not be sure of
the relevant facts.
THE RESCISSION APPLICATION
49. In the founding affidavit in the rescission application, no attempt is made to
identify the legal grounds on which the defendant relies for the rescission of
the discovery order. The defendant’s case in the rescission application can be
summed up as follows:
a) there was no valid Muslim marriage because the plaintiff lied to the
defendant about her age, and since there was no valid Muslim marriage,
the provisions of the Divorce Act do not apply, and the plaintiff therefore
has no claim in terms of the Divorce Act;
b) but even if there was a valid marriage, the plaintiff should be ordered to
forfeit any claims on account of her misrepresentation;
c) unless and until the plaintiff proves her entitlement to relief in terms of
the divorce action, she is not entitled to information about the
defendant’s finances.
50. In the rescission application, the defendant also seeks condonation for his
failure to comply with the orders of Kusevitsky, J and Bhoopchand, AJ. He
alleges that he was unable to comply with these orders as his legal team had
to prepare an urgent petition to the Supreme Court of Appeal when Nuku, J
refused his application for leave to appeal against the first contempt order.
The defendant furthermore alleges that he was unable to access funds
because the plaintiff attached his bank account, the intimation being that he
could not pay his legal team to prepare the rescission application.
51. In her answering affidavit in the rescission application, the plaintiff roundly
refuted the defendant’s explanations in this regard:
a) firstly, she points out that the defendant’s petition to the SCA was filed
on 10 April 2025 already, whereas the defendant only instructed his
attorney on 12 May 2025 to prepare the rescission application; and
b) secondly, she attaches a copy of the defendant’s Discovery Purple
Card bank s tatement for April 2025 (obtained under subpoena) . This
statement shows a multitude of substantial payments (ranging from
R25 000 to R200 000) into the defendant’s account from CA Cell, the
defendant’s close corporation . It also reveals what appears to be
luxurious expenditure on the part of the defendant, including travel,
restaurants, spa treatments, a purchase for an amount of R 8 916.50
from Armani Exchange in Sandton, and two purchases at Incredible
Connection for R45 998.00 and R115 004.00.
52. The defendant did not file a replying affidavit dealing with these allegations.
The requirements for rescission at common law
53. In the hearing, Mr Holland relied solely on the common law, disavowing any
reliance on the provisions of Rule 42(1)(a).4
54. The common law requirements for rescission of a default judgment are well -
established. An applicant is required to show ‘good’ or ‘sufficient cause’,5 an
expression which defies precise definition and implies a wide discretion, but
which generally entails that an applicant should:
a) give a reasonable and acceptable explanation for his default, which must
not be wilful or grossly negligent;
b) show that the application for rescission is made bona fide and not merely
with the intention of delaying the plaintiff’s claim; and
c) demonstrate that on the merits he has a bona fide defence, which prima
facie has some prospects of success. 6
4 Rule 42(1)(a) reads as follows:
‘(1) The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected, rescind or vary:
(a) An order o r judgment erroneously sought or erroneously granted in the absence of any
party affected thereby.’
5 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture (“Zuma”)
2021 (11) BCLR 1263 (CC) ; Government of the Republic of South Africa v Fick (“Fick”) 2013 (10)
BCLR 1103 (CC); Colyn v Tiger Food Industries t/a Meadow Feed M ills (Cape) (“Colyn”) 2003 (6)
SA 1 (SCA) para 11; Chetty v Law Society, Transvaal (“Chetty”) 1985 (2) SA 756 (A) AT 765 A – C;
De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042 G.
6 Colyn (supra) para 11; Zuma (supra) para 71; Fick (supra) para 85; Chetty (supra) at 765 A – C;
De Wet and Others v Western Bank Ltd 1977 (2) SA 1033 (W) at 1036 D – E.
55. An important aspect to be taken into account in the exercise of the judicial
discretion whether or not to grant the remedy of rescission is whether or not
the applicant has demonstrated ‘ a determined effort to lay his case before the
court and not to abandon it.’7
56. It has been held that it is essen tial for an applicant for rescission to satisfy
both the requirements of a satisfactory explanation for the default, and
prospects of success on the merits. 8 As Miller JA explained in Chetty v Law
Society, Transvaal:9
‘It is not sufficient if only one of these two requirements is met; for obvious
reasons a party showing no prospect of success on the merits will fail in an
application for rescission of a default judgment against him, no matter how
reasonable and convincing his explanation of his default. And ordered judicial
process would be negated it, on the other hand, a party who could offer no
explanation of his default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him resc inded on the ground that he
had reasonable prospects of success on the merits.’ 10
57. I turn now to consider whether the defendant has met the requirements for
rescission.
Reasonable explanation for default
58. In this particular case, it was incumbent on the defendant to provide an
explanation for two discrete instances of default in order to satisfy the Court
that rescission should be granted.
7 Zuma (supra) footnote 20.
8 Zuma (supra) para 71; Fick (supra) para 85.
9 Chetty (supra) at 765 D – E.
10 Ibid.
59. Firstly, the defendant was required to explain why the judgment in the
application to com pel was allowed to go by default, i.e., why the order of
Baartman, J was obtained in his absence, particularly in circumstances where
he been ordered by Thulare, J to deliver an answering affidavit by 29 August
2024, but failed to do so . The defendant signally failed to address this issue :
the founding affidavit in the rescission application is silent in this regard.
60. Secondly, the defendant needed to explain his delay in launching the
rescission application. The discovery order was served on the defendant’s
attorney on 25 October 2024, but no mention was made of a rescission
application until 12 March 2025, two days before the striking application was
to be heard on 14 March 2025 . Worse still, h aving committed himself to
deliver the recission application by 4 April 2025 in terms of the consent order
made by Kusevitsky, J, he failed to do so . He then failed to comply with the
order of Bhoopchand AJ that he deliver the rescission application by 30 April
2025.
61. The defendant suggests in his founding affidavit that he was not required to
explain the delay in bringing the rescission application in the period between
the service of the discovery order (25 October 2024) and the date of the order
of Kusev itsky, J (14 March 2025) . He alleges in this regard that the plaintiff
agreed, and Kusevitsky, J ordered, that he could bring the rescission
application by 4 April 2025.
62. This argument is disingenuous. Kusevisky, J w as not seized with the
rescission application. She could not, and did not purport to, decide anything
to do with the rescission application , which had not yet been brought. All
Kusevitsky, J did was to make an order by agreement between the parties
which regulated the further conduct of the mat ter, including the date by when
the rescission application had to be brought . Moreover, there is no indication
in the wording of the order that the plaintiff waived her right to object to
rescission on the ground of delay. In any event , even had there been such a
waiver, the plaintiff’s attitude could not bind th is Court, for it is for the Court to
determine whether or not a sufficient explanation has been advanced for the
delay in bringing the application.11
63. Moreover, the defendant was required to provide an explanation for the entire
period of default or delay, from the time when his answering affidavit in the
application to compel was due up until the time when the rescission
application was brought, as well as his subsequent failure timeously to deliver
a replying affidavit and heads of argument in the rescission application. 12
64. The defendant did not provide any explanation at all for:
a) why he failed to deliver an answering affidavit timeously in the
application to compel (including complying with the order of Thulare, J ),
and why he allowed judgment to be taken by default;
b) why he failed to bring the rescission application between 25 October
2024 and 14 March 2025;
11 P E Bosman Transport Works Committee and Others v P E Bosman Transport (Pty) Ltd (“P E Bosman”)
1980 (4) SA 794 (A) at G – H.
12 P E Bosman (supra) at 799 D – E.
c) having brought the rescission application, why he failed to deliver a
replying affidavit timeously, or to comply with the order of Holderness, J;
and
d) why he failed to deliver heads of argument in the rescission and striking
applications.
65. The only explanation which the defendant did see fit to provide relates only to
his failure to comply with the orders of Kusevitsky, J and Boopchand, AJ. That
explanation is patently false. I say that for the following reasons.
66. Firstly, his reliance on the unavailability of his legal team due to the need to
prepare a petition in respect of the first contempt order is spurious , given that
the petition was already lodged on 10 April 2025, whereas the defendant only
instructed his attorney to prepare the recission application on 12 May 2025.
67. Secondly, his claim that he lacked access to funds because his bank account
had been attached by the plaintiff is manifestly untrue if one has regard t o the
Discovery Purple Card statement for April 2025 . It r eveals that the defendant
had access to other banking and credit facilities, and that he was adept at
moving funds between various bank accounts.
68. I am therefore of the view that the defendant has failed to put up a satisfactory
explanation for his default in opposing the application to compel, and his delay
in bringing the rescission application – not to mention his failure to comply
with the litany of court orders relating to the filing of papers.
69. Mr Holland seemed to concede that the defendant’s explanation for his default
is inadequate, but he argued that strong prospects of success in the
rescission application may compensate for a weak explanation for the default.
70. This argument does not hold water. In Zuma the Constitutional Court
expressly rejected t he notion that a litigant can escape the obligation
adequately to explain his default by showing prospects of success on the
merits.13
71. In the absence of an acceptable explanation for the defendant’s default, it is
not strictly speaking necessary to consider whether or not he has shown
prospects of success on the merits .14 I shall nevertheless do so, for the sake
of completeness.
Prospects of success on the merits
72. In his founding affidavit in the rescission application, the defendant sought to
show that he has prospects of success in the divorce action . In doing so, he
misconceived the relevant enquiry. As rescission is sought in respect of the
order of Baartman, J, which compelled him to reply to a Rule 35(3) notice, he is
required to demonstrate that he has prima facie prospects of success in
resisting the application to compel.
73. In the Rule 35(3) notice which formed the subject of the application to comp el,
the plaintiff sought various bank statements and financial documents which she
13 Zuma (supra) paras 71 – 76.
14 Zuma (supra) para 76.
alleges are relevant to the issues in the divorce action. It is trite that the
question of relevance for purposes of discovery is determined with reference to
the issues on the pleadings.15
74. In the divorce action, the plaintiff claims payment of spousal maintenance. In
paragraph 10.5 of his plea, the defendant denies that he has sufficient means
to afford the maintenance claimed by the plaintiff.
75. By virtue of the fact that the defendant has put affordability of maintenance in
issue, the question of his financial standing is a live issue in the divorce action,
and documents pertaining to his finances and means are therefore relevant.
76. It bears emphas is that the defendant did not raise any objection in the
rescission application to the contents of the Rule 35(3) notice . He did not, for
instance, complain that the notice was overly broad. Had he done so, he may
or may not have had a point. But the point was not taken.
77. In contending that there were prospects of success in resisting the application
to compel, Mr Holland relied solely on the argument that, because the
defendant disputes that there was a valid marriage, the plaintiff is not entitled to
discovery with regard to the defendant’s finances unless and until she
demonstrates an entitlement in terms of the Divorce Act.
78. The argument might have gained some traction had the defendant brought an
application in terms of Rule 33(4) of the Rules of Court to have the question of
15 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 297
(T) at 311; Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) at 15 B; ST v
CT 2018 (5) SA 479 (SCA) at 488 B.
the existence or otherwise of a valid marriage determined as a separated
issue, and for the remainder of the proceedings to be stayed (although it is
doubtful whether a court would consider such a separation convenient, given
that the court in any event has to determine arrangements for the care and
maintenance of the minor children born of the parties’ relationship, even if the
marriage is invalid). But the defendant has not sought such a separation of
issues, despite having had ample opportunity to do so.
79. As matters stand, therefore, the defendant’s means are an issue on the
pleadings, as he disputes his ability to pay the maintenance claimed by the
plaintiff. The plaintiff is therefore entitled to seek documents pertaining to his
finances.
80. In the circumstances, I consider that the defendant has failed to show
prospects of success in resisting the application to compel compliance with the
plaintiff’s Rule 35(3) notice.
Is the application for rescission bona fide?
81. In my view the history of the litigation, to which I have referred, demonstrates
the absence of any clear intention and determined effort on the part of the
defendant to lay his case before the court.
82. The defendant has failed to explain why the applica tion to compel was
allowed to go by default in the first place. He has failed to explain his delay in
launching the rescission application. He has failed to explain his failure to
comply with a litany of Court orders granted in chamber book applications to
compel him to file affidavits. In the circumstances, the ineluctable conclusion
is that the defendant is not serious about finalising the divorce action: his
conduct points to a concerted effort to delay and protract the divorce action ,
particularly the plaintiff’s claims against him for maintenance and a division of
assets.
83. I conclude that the defendant’s application for rescission is not bona fide, as
the defendant has no genuine wish to put forward his case in the divorce
action, and that the resciss ion application is merely part of an overall modus
operandi aimed at delaying and frustrating the plaintiff’s claims in the divorce
action.
No case made out for rescission
84. In all the circumstances, given my findings with regard to the defendant’s
failure to put up a satisfactory explanation for his default, his lack of prospects
of success in resisting the application to compel, and his lack of bona fides in
bringing the recission application, I conclude that the defendant has not made
out a proper case for the granting of the remedy of rescission.
85. The rescission application therefore falls to be dismissed.
THE STRIKING APPLICATION
The relevant legal principles
86. Rule 35(7) of the Uniform Rules of Court provides that:
‘If any party fails to give discovery as aforesaid or, having been served with a notice
under subrule (6), omits to give notice of a time for inspection as aforesaid or fails to
give inspection as required by that subrule, the party desiring discovery or inspection
may apply to a court, which may order compliance with this rule and, failing such
compliance, may dismiss the claim or strike out the defence.’
87. The rule contemplates a two-stage procedure. At the first stage, an order
compelling the defaulting party to provide discovery is sought. The usual order
made at the first stage includes the granting of leave to the applicant to apply
to court on the same papers, amplified if necessa ry, for the dismissal of the
defence, or the striking out of the claim, in the event of non -compliance with
the discovery order. The rule does not envisage d ismissal or striking out
automatically on non -compliance with the discovery order , but only on
application.16
88. At the second stage, where the dismissal of a claim and/or the striking out of a
defence is sought, the court is called upon to determine whether or not there
has in fact been non -compliance with the discovery order and, if so, to
exercise a discretion whether or not to grant an order dismissing the claim or
striking out the defence, which discretion must be exercised judicially.17
89. It must be borne in mind that the power to dismiss a claim or strike out a
defence is a drastic remedy which impacts on the constitutional right of
access to court , as the usual effect of such an order is to prevent the
presentation of a claim or defenc e, as the case may be, so that judgment by
16 Ikamva Architects CC v MEC for the Department of Public Works and Another (CA337/2013)
[2014] ZAECGHC 70 (22 August 2014).
17 MEC Department of Public Works v Ikamva Architects 2022 (6) SA 275 (ECB) para 18.
default will be entered for the other party .18 It has been held that ‘ striking out
should normally be a last resort, considering that it has the potential to deprive
a litigant of an entrenched right to a fair trial’ and that the sanction should fit
the breach.19
90. In my view it should also be borne in mind that, while section 34 grants
everyone the right of access to courts, it does not afford litigants the right of
access to courts on their own terms . The constitutional imperative to provide
access to court for all persons necessitates that such access be regulated
through procedural rules designed to ensure the fair administration of justice
in the interests of all parties. Both parties to a dispute have t he right to a fair
hearing. And if one party is delaying the matter by failing to comply with the
Rules of Court, he or she is likely tr ampling on the other party’s right to a fair
hearing. In short, the Rules of Court are there for the benefit of all and should
be observed by all.
91. It is equally important to bear in mind that the Rules of Court exist to preserve
the orderly administration of justice. The justice system would collapse in the
chaos which would ensue were litigants permitted to ignore procedural
requirements and engage in a free -for-all. The justice system is undermined
when litigants wilfully disobey the Rules of Court. Even worse is the flouting of
orders of C ourt aimed at enforcing compliance with the procedural rules.
Open disdain f or the authority of the Court , if allowed to go unchecked,
represents an existential threat to the maintenance of the rule of law. This is
18 Ibid.
19 MEC Department of Public Works v Ikamva Architects (supra) para 19.
an aspect to bear in mind when considering whether the sanction fits the
breach.
92. It seems to me that the d egree of contumacy of a litigant must play a role in
determining whether it is appropriate to strike out a claim or defence. Where
there is a reasonable explanation for non-compliance with a discovery order,
and it appears that the non-compliance was not wilful and mala fide, ie, not
contemptuous, the remedy of striking out will not be appropriate.
93. But if there is no satisfactory explanation for non-compliance with a discovery
order, and the failure to comply is prima facie contemptuous,20 the remedy of
striking out may be the only way to vindicate the authority of the Court.
Particularly where it appears that the failure to comply with a discovery order
is part of a pattern of contemptuous and obstructive c onduct, a robust
exercise may be called for of the court’s inherent power at common law to
protect itself and others against an abuse of its processes ,21 a power which
has received statutory recognition in section 173 of the Constitution.22
94. In my view, the common law requirements for the rescission of a default
judgment referred to above, with some modification, provide a useful guideline
for the exercise of the discretion under Rule 35(7) whether or not to grant an
20 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 41.
21 Beinash v Wixley 1997 (3) SA 721 (SCA) at 734 D (affirmed in Lawyers for Human Rights v
Minister in the Presidency 2017 (1) SA 645 CC para 20).
22 Section 173 of the Constitution provides that:
‘The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each
has the inherent power to protect and regulate their own process, and to develop the common law,
taking into account the interests of justice.’
application to strike out a claim or defence. In my view a respondent resisting
such an application should be required to:
a) put up a reasonable explanation for failing to comply with the discovery
order, which suffices to show that the non-compliance with the
discovery order was not wilful or mala fide (ie, not contemptuous);
b) demonstrate that he or she has a bona fide claim or defence which
carries prima facie prospects of success.
The defendant’s defence to the striking application
95. In the striking application, the plaintiff’s allegations in the founding affidavit are
not placed in dispute. The defendant’s defence to the striking application is
based solely on the rescission application.
Explanation for the failure to comply with the discovery order
96. The defendant made no attempt in the striking application to explain why he
failed to comply with the discovery order. Reliance was placed on the
rescission application, but as mentioned, he delayed in launching the
rescission application , which delay was never explained . And t he recission
application was ultimately unsuccessful, for the reasons set out above.
97. In the circumstances, I find that the defendant has failed to put up a
satisfactory explanation for his failure to comply with the discovery order. In
particular, I find that his reliance on the rescission application does not serve
to show that his failur e to comply with the discovery order was not wilful or
mala fide , since he delayed in launching the rescission application and the
rescission application itself was not bona fide . Instead, it formed part of
pattern of deliberate delay and obstruction on th e part of the defendant – the
vogue expression ‘Stalingrad tactics’ comes to mind.
Does the defendant have a bona fide defence / counterclaim with prima facie
prospects of success?
98. In regard to his defence to the divorce action, the defendant, in his founding
affidavit in the rescission application, relied on the assertion that there was no
valid Muslim marriage because the plaintiff allegedly lied about her age, and
hence no valid marriage for purposes of the Divorce Act.
99. In the first instance, it is no t clear that a misrepresentation as to age would
indeed affect the validity of a Muslim marriage.
100. In South African law the validity of a marriage is not affected by a mistake as
to the age of one of the parties, which is regarded as an error in motive which
is not relevant to the marriage as such and therefore does not vitiate consent
to marry.23
101. The defendant states that he is of the opinion, ‘ having taken proper counsel
on the issue from various Ulama bodies (a body of Muslim scholars who a re
recognized as having specialist knowledge of Islamic sacred law and
theology) around South Africa ’ that a misrepresentation by the plaintiff as to
her age would be material and would invalidate the marriage. But he failed
23 Jacqueline Heaton et al ‘Marriage’ 16 LAWSA (2ed) para 31 and authorities cited at footnote 2.
identify the experts who he con sulted, or to provide affidavits from them. His
evidence in this regard is inadmissible hearsay. It was incumbent upon the
defendant to substantiate his defence with reference to expert evidence, put
up on affidavit, from a person or persons qualified to e xpound on the Islamic
law of marriage. He failed to do so.
102. But in any event, the factual foundation of the defendant’s defence is
disputed. The plaintiff denies that she lied to the defendant about her age .
She alleges that he was well -aware of her age . She explains in this regard
that the defendant was aware that she had two adult children from a previous
relationship; that the defendant had her identity document to arrange air
tickets for her to visit him in Johannesburg before they married; that the
defendant had her passport details to make travel arrangements before their
marriage for their honeymoon in Dubai, and that the defendant himself
inserted her identity number on their Muslim marriage certificate.
103. These allegations by the plaintiff stand und isputed, as the defendant failed to
deliver a replying affidavit in response to the plaintiff’s answering affidavit in
the rescission application. The plaintiff’s uncontested version puts paid to the
defendant’s claim that he was misled with regard to the plaintiff’s age.
104. I therefore conclude that the defendant does not have a bona fide defence to
the plaintiff’s claim in the divorce action, which prima facie carries prospects of
success.
105. The defendant’s counterclaim in the divorce action stands on a different
footing. The counterclaim relates entirely to the minor children. The defendant
makes allegations which have bearing on the best interests of the minor
children. Section 6(1) of the Divorce Act states that a decree of divorce shall
not be granted until the Court is sa tisfied that the provisions contemplated
with regard to the minor children are satisfactory or are the best that can be
effected in the circumstances.
106. In the light of the provisions of s 6(1) of the Divorce Act , as well as the
principle laid down in sect ion 28 of the Constitution that the best interests of
minor children are paramount, it would not be appropriate to grant an order
dismissing the defendant’s counterclaim in the divorce action , as such an
order would have the effect of precluding him the de fendant from adducing
evidence which may be relevant with regard to the best interests of the minor
children.
Conclusion with regard to striking the defence
107. Not only has the defendant failed a) to put up a satisfactory explanation for his
failure to comply with the discovery order and b) to show that he has a bona
fide defence in the divorce action which carr ies prima facie prospects of
success, but he has fai led to explain his repeated failure to comply with a
litany of Court orders granted in chamber book applications directing him to
file affidavits in the striking application and the rescission application.
108. The defendant’s conduct evinces a deliberate strategy of delay, clearly aimed
at thwarting the plaintiff’s claims in the divorce action. He has repeatedly
violated Court orders without explanation or apology . There can be no doubt
that he is guilty of an egregious abuse of court process. In such
circumstances the Court cannot stand by, wringing its hands in despair.
109. Mr Holland submitted that, if the rescission application were unsuccessful, I
should grant the defendant a final opportunity to comply with the discovery
order. I do not agree. The defendant has been given every latitude by this
Court, and, in return, he has made a habit of thumbing his nose at the
authority of the Court. There is no reason to believe that he will behave any
differently in future. A line in the sand has to be drawn to put a s top to the
defendant’s abuse of court process.
110. Given the degree of the defendant’s contumacy, I consider that the only
appropriate sanction is to grant an order striking out the defendant’s defence
in the divorce action. This is necessary to vindicate t he Court’s authority and
to protect the plaintiff ’s right to a fair hearing. A message has to be sent that
the Court is not to be trifled with.
THE ETHICAL DUTY ON LEGAL PRACTITIONERS TO PREVENT ABUSE
111. The circumstances of this case call for a reminder of the ethical duties resting
on legal practitioners in regard to abuse of process. Sections 60.1 and 60.2 of
the Code of Conduct read as follows:
‘60.1 A legal practitioner shall not abuse or permit abuse of the process of court or
tribunal and shall act in a manner that shall promote and advance efficacy of
the legal process.
60.2 A legal practitioner shall not deliberately protract the duration of a case
before a court or tribunal.’
112. The defendant has systematically delayed the progress of the divorce action.
He failed to make proper discovery. He failed to comply with the plaintiff’s
Rule 35(3) notice. When faced with an application to compel discovery, he
delivered a notice of intent ion to oppose, but then failed to deliver an
answering affidavit. He was ordered by Thulare, J to deliver his answering
affidavit in the application to compel. He failed to do so. The application to
compel was then set down on an unopposed basis, and a dis covery order
was granted by default. The defendant predictably failed to comply with the
discovery order. The plaintiff brought the striking application to strike out his
defence. The defendant allowed two months to pass and then surfaced at the
last minute to prevent the plaintiff from taking a striking order by announcing
that he intended to apply to rescind the discovery order. The defendant then
failed to deliver the rescission application within the time frame ordered by
Kusevitsky, J. He was ordered b y Bhoopchand AJ to deliver the rescission
application, and he ignored th at order. But when the striking application was
due to be heard on an unopposed basis on 13 May 2025, he instructed his
attorney to appear to oppose the application. Having finally delivered the
rescission application – only when Saldanha, J took the war to his attorney –
he failed to deliver a replying affidavit in the rescission application , and had to
be ordered to do so by Holderness, J. The defendant ignored the order of
Holderness, J. He failed to file heads of argument, or a practice note in the
rescission application and the striking application . Yet, in a striking show of
discourtesy to the Court, Counsel was briefed to appear on the day appointed
for the hearing of the matter, and to argue the matter despite the absence of
heads of argument.
113. There can be no doubt , in all the circumstances, that the defendant has
adopted a deliberate modus operandi aimed at procrastinating the divorce
action in order to delay and frustrate the plaintiff’s claims. That conclusion is
fortified by the fact that both the rescission and striking applications are wholly
without merit.
114. The defendant is clearly pursuing a “Stalingrad Strategy’, he repeatedly forces
the plaintiff to incur the cost of chamber book applications to compel him to
file papers, while failing to comply properly with the Rule 43 order, as is
evident from the first and second contempt orders. Apart from his contempt of
the Rule 43 order, he has defied five court orders relating to the application to
compel, the striking application and the rescission application. We are dealing
here with serial contempt and abuse of court process.
115. It regrettably has to be said that the defendant’s attorney has been complicit
the defendant’s Stalingrad tactics. He repeatedly failed to respond to
correspondence from the plaintiff’s attorney. He clearly aided and abetted the
defendant in failing to honour deadlines and Court orders . In my view he
violated sections 60.1 and 60.2 of the Code of Conduct in so doing. L egal
practitioners must not be enablers of abuse of process . They must not be
complicit in contempt of Court. It is incumbent upon attorneys to advise their
clients of the need to honour Court orders and to abide by the deadline s
imposed by the Rules of Court. Attorneys have a duty to take a stand - even
to withdraw if necessary - when a recalcitrant client places the attorney in a
position where he or she is unable to honour their duty to the Court.
116. Legal practitioners would do well to remember t hat their duty to the client is
subservient to their duty to the court . A legal practitioner’s first duty is to the
court and the interests of justice. This much is clear from section 3 of the
Code of Conduct, which reads as follows in relevant part:
‘3. Legal practitioners, candidate legal practitioners and juristic entities shall –
…
3.3 treat the interests of their clients as paramount, provided that their conduct
shall be subject always to:
3.3.1 their duty to the court;
3.3.2 the interests of justice;
3.3.3 observance of the law;
3.3.4 the maintenance of ethical standards as prescr ibed by this code, and
any ethical standards generally recognized by the profession.’
[Emphasis addwed]
CONCLUSION AND COSTS
117. In the result, the rescission application falls to be dismissed, and the striking
application succeeds to the extent that the def endant’s defence in the divorce
action is to be struck out.
118. For the reasons already referred to, I do not consider it appropriate to dismiss
the defendant’s claim in reconvention in the divorce action, as it relates to the
parties’ minor children, whose best interests are paramount.
119. As regards the question of costs, given the defendant’s flagrant abuse of court
process and his defiance of numerous orders of this Court, I consider that the
only fitting costs order is a punitive costs order on the scale of attorney and
client. The defendant will therefore be ordered to pay the plaintiff’s costs in the
rescission application and the striking application, on the attorney and client
scale.
_____________________________
D M DAVIS
ACTING HIGH COURT JUDGE
Appearances:
For the plaintiff: Adv L Bezuidenhout
Instructed by Ms Kaamilah Paulse
Herold Gie Attorneys
For the defendant: Adv M Holland
Instructed by Mr Nazeer Parkar
Parkar Attorneys