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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2020/62105
Date of hearing: 1 September 2025
Date delivered: 21 November 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 21/11/25
SIGNATURE:
In the application between:
C[...] I[...] A[...] Applicant
and
N[...] A[...] Q[...] Respondent
JUDGMENT
SWANEPOEL J:
[1] This is an application for the partial rescission of a divorce order granted on 8
September 2021. Although the notice of motion seeks the rescission of the entire
order, the founding affidavit makes it clear that only a partial rescission is sought.
Paragraph 1 of the order granted the parties a decree of divorce, whilst paragraph 2
ordered the applicant to pay the respondent R 250 000 plus interest at the rate of
8.25% from 1 December 2020. Paragraph 4 ordered the applicant to pay the costs of
the divorce. The applicant seeks to rescind paragraphs 2 and 4 of the order.
[2] The applicant explains his default in opposing the action by alleging that he
was never served with the summons. The summons was served by the Sheriff on
the applicant personally on 14 January 2021. The applicant says that someone must
have impersonated him when the Sheriff attended at his home in Dainfern to serve
the summons. He says that when the summons was served he was in Cape Town.
The applicant has provided no evidence to subs tantiate his allegation that he was in
Cape Town on 14 January 2021. His version is rather fanciful. If someone
impersonated him that would require such a person to know that he was absent, to
know when the Sheriff was going to serve the papers, and to be able to access his
home. I find that explanation rather outlandish.
[3] Moreover, the applicant had been emailed the summons by the respondent's
attorney on 6 January 2021. He received the email, but purported to believe that the
summons was not 'real'. T he applicant was, despite his protestations to the opposite
effect, well aware of the fact that divorce proceedings were underway. Why he would
regard the summons as 'not real' is inexplicable. I find his explanation for his default
outlandish and unbelievable.
[4] Applicant's case is complicated further by the fact that during 2022 the
respondent initiated section 65 debt-collection proceedings in the Magistrate's Court.
The first appearance was on 2 November 2022 when the applicant was clearly made
aware of the divorce order, and he knew, at least then, that the section 65
proceedings were aimed at collecting the R 250 000. The applicant attended at that
court on numerous occasions, and at no stage did he dispute that he owed the
money in terms of the o rder. He was, in fact, told during those proceedings that
should he dispute the debt he should apply to rescind the order.
should he dispute the debt he should apply to rescind the order.
[5] This application was launched on 8 March 2025, almost 3 years after the
applicant was first made aware of the order. There is no explanation for the delay,
save that the applicant says that he suffered from a mental illness. He also professes
to have been intimidated by the respondent's attorney. Save that there is some
evidence that in 2022 the applicant sought treatment for an un known mental illness,
there is nothing to suggest that he was unable to handle his affairs, nor any reason
why he was unable to bring this application in the years after November 2022. In this
regard the applicant's version is also quite outlandish.
[6] As far as the merits of the claim are concerned, the respondent says that the
parties entered into an agreement in terms of which he undertook to pay the monies.
The applicant denies that he entered into such an agreement. However, he does not
set up any explanation for the agreement upon which the order was based.
[7] Consequently, I find that the applicant's explanation for his willful default is to
be rejected. The applicant has shown no reason for the late filing of this application,
nor has he sought condonation for the almost three years that he waited to bring this
application. The applicant has not shown good cause to rescind the order. The
applicant's further suggestion that the summons was never served on him, and that
the judgment was, consequently, granted erroneously, is rejected.
[8] I make the following order:
The application is dismissed with costs on Scale B.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the applicant: Adv. J Gates
Instructed by: Hamann Attorneys
Counsel for the respondent: Adv. L van Stade
Instructed by: Hartzenberg Inc.
Heard on; 1 September 2025
Judgment on: 21 November 2025