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
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2022-034959
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE: 26 FEBRUARY 2026
SIGNATURE
In the matter between:
R[...] B[...] D[...]
Born M[...]
(ID number: 6[...]) Applicant / Defendant
and
Z[...] A[...] D[...]
(ID NUMBER: 6[...]) Respondent / Plaintiff
Coram: B R Kahn AJ
Date of argument: 30 October 2025
Further chronology of common cause facts as per the request of the court
delivered by the parties on 15 December 2025.
Delivered: 26 February 2026
JUDGMENT
B R KAHN AJ
2
Introduction
1
1.1 The Uniform Rules of Court (the ‘Rules’) are not writ in stone and
therefore inviolate; subject to judicial oversight and proper discretion,
they form a platform or roadmap for equal and fair jousting between
litigants. They are far more than just indicative, but less than inviolate.
This however does not allow litigating parties to disregard them; on the
contrary, their purpose and adherence thereto is crucial to and for the
proper administration of justice and to enable parties in a litigious
environment to be able to address their affairs and allocate their
capacities and resources in anticipation of their opponents complying
with the Rules.
1.2 Of course, the Rules do not exist in a vacuum, nor do they exist in a
perfect world; litigants as well as their legal representatives (which, to
be clear, includes both attorneys and advocates ), often require
extensions of time to produce a document (or undertake some or other
activity referred to in the Rules ) in which event, they should at the
earliest opportunity seek an extension of time from the ir colleagues
(opponents) which requests need to be considered by the parties
themselves (and their legal representatives) who will act having regard
to their own peculiar circumstances as well as their strategies and
other influences (including practicalities and reasonableness) all of
which will impact on their response to any such request. It is, as far as
the parties are concerned, a delicate balancing act. The court however
is in a somewhat different position to the parties who often, if not
invariably, are guided by considerations that when a similar request is
to be determined by a court, is viewed through a somewhat different
lens.
Reference to the parties
3
2 For the sake of convenience, I will refer to the parties as they are cited in the
action (the ‘Action’) not in the application. In the Action (in which a divorce is
sought), the applicant is the Defendant and the respondent is the Plaintiff.
Relief sought
3 In this application the Defendant seeks to set aside the Plaintiff’s notice of
bar and to uplift same in terms of Rule 27 of the Uniform Rules of Court.
4 The Plaintiff’s response is that the Defendant has failed to:-
4.1 provide an adequate explanation for her delay in delivering her plea;
and
4.2 set out a bona fide defence to the main action,
and therefore vigorously opposes any attempt by the Defendant to further
delay the granting of an order of divorce in accordance with a Settlement
Agreement that the parties concluded on 22 September 2022 (the
‘Settlement Agreement’) prior to the institution of the divorce action – ie, the
Action – by the Plaintiff.
5 In this matter therefore, the court is required to determine whether:-
5.1 the bar served by the Plaintiff is to be uplifted; and
5.2 the Defendant is to be granted leave to file her plea and counterclaim,
and therefore essentially convert what the Plaintiff asserts should be an
unopposed divorce action (which includes the Settlement Agreement being
made an order of court ) into a defended divorce action . For context
purposes, it is clear that the marriage has broken down irretrievably and
neither of the parties suggest that an order of divorce should not be granted.
Legal principles
4
6 Before dealing with the facts (some common cause and others not), it would
be helpful to identify a number of legal principles and imperatives that are
binding on me which I identify hereunder, but in no order of importance,
simply because they all co -exist and constitute an amalgam to which I must
have due regard.
7 That the Rules must be adhered to and respected is trite; it should be a
guiding light for all litigants and more particularly the ir legal representatives
as officers of the court, but the Rules must be administered in the interest s of
justice and fairness. In Federated Trust Ltd v Botha1, van Winsen AJA stated
that the court does not encourage formalism in the application of the Rules ,
noting that the Rules are not an end in themselves to be observed for their
own sake. They are, says the learned Judge , provided to secure what he
described as the inexpensive and expeditious completion of litigation before
the courts (sadly, the Rules by and large, do not really achieve either of the
objectives the Learned Judge referred to – but it remains nonetheless a
noble and worthy aspiration / pursuit).
8 I am also very mindful of s 34 of the Constitution of the Republic of South
Africa, 1996 (the ‘Constitution’) which states that everyone has the right to
have any dispute that can be resolved by the application of law decided in a
fair public hearing before a court or where appropriate, another independent
and impartial Tribunal or forum.
9 In Sasol South Africa t/a Sasol Chemicals v Penkin2 (quoted with approval in
Van der Linde v Ben Groot TA GVS Law and another 3) it was held that the
right to have access to the court ‘is an embodiment of an ancient common
law principle that a person has a right to a proper and fair hearing, which has
as its core, the right to a litigant to tell his or her side’.
1 1978(3) SA654 (A) at 654D
2 [2023] ZAGPJHC 329 at para 6
1 1978(3) SA654 (A) at 654D
2 [2023] ZAGPJHC 329 at para 6
3 A decision of the High Court of South Africa, Western Cape Division, Cape Town judgment, appeal case
number: A1772025
5
10 Without putting the matter too simplistically, a court’s primary raison d’etre is
to determine disputes, uphold justice and ensure parties are treated fairly and
in a way that mirrors the constitutional imperatives that cloak the manner in
which courts are to discharge their duties and responsibilities.
11 Notwithstanding the above imperatives as commanded by the Constitution
and the case law, the right for a ‘litigant to tell his or her side’ is not absolute.
Litigants do not enjoy a license to abuse or manipulate the Rules, or to
simply assert that unless the relief they seek is granted, the administration of
justice will be impaired or fall short of the world that our Constitution strives to
create – a world in which (in the context of the courts ’ functioning and the
administration of justice) the justice to be had is not in favour of one litigant,
but in favour of all litigants (in this instance, the Plaintiff and the Defendant)
who come before court. Whilst justice strives to treat all litigants fairly (and I
make so bold as to suggest - with relief, pride and pleasure – that save in
the rarest of circumstances justice achieves this objective ), inevitably one
litigant must of necessity lose (and perhaps feel that justice has not been
done) whilst another wins (and feels that justice has been done). And so it is
in life and in all things and pursuits where there is a contest in which there is
a winner and a loser.
12 In the judgment of Msibi v Road Accident Fund 4 in the High Court of South
Africa, Gauteng Division, Johannesburg, Raubenheimer AJ assembled what
he described as ‘the broad and general principles in dealing with procedural
technical points’ by quoting from various judgments and I am thankful to the
learned Judge for making my task easier. Raubenheimer AJ (in paragraph 36
of the aforesaid judgment) states that these principles are as follows:
‘(a) The court does not generally encourage a formalistic approach in the
‘(a) The court does not generally encourage a formalistic approach in the
application of the rules as the rules should not be regarded as an end
in themselves .
4 [2025] ZAGPJHC 1084
6
(b) Technical objection based on procedural defects should not be
permitted unless the other party would suffer prejudice as a result.
(c) the superior court may in the exercise of their inherent power adjust
the rules depending on the circumstances of a given case.
(d) The rules of court are designed to achieve justice and thus courts will
in the exercise of their inherent power, relax the application of the
rules where the strict application thereof may result in substantial
injustice.
[37] The mentioned principles have to be balanced against the foundational
purpose of the rules as well as the time periods therein prescribed of which
the purpose is to assert the control of the court over its processes and
speedy resolution of disputes.
[38] in Grootboom v National Prosecuting Authority 5 the Constitutional Court held
that court rules serve a necessary purpose namely that the business of the
courts run effectively and efficiently.
[39] In its judgment the Court expressed its concern with a trend of non -
compliance with the rules and stated unequivocally that such practice should
be stopped. The Court referred to the non -compliance with time periods
without seeking condonation beforehand.
[40] The principle that courts are entitled to protect itself and others against an
abuse of its process has been recognised for a very long period of time.
[41] This inherent power to protect and regulate their own process is conferred by
s 173 of the Constitution on the Constitutional Court, the Supreme Court of
Appeal and the High Court.
[42] In Price Waterhouse Coopers Inc and Others v National Potato Co -operative
Ltd6 this inherent power was described as a mechanism to prevent abuse o f
5 [2013] ZACC 37
7
process and to prevent the court’s procedure from being used for purposes
foreign to its design.’
13 Raubenheimer AJ also refers to Beinash v Wixley 7 in which, and to quote
Raubenheimer AJ again:
‘the court held that an abuse of process occurs where the procedures are
used for a purpose other than that for which they were intended such as
when proceedings are initiate d with an improper and ulterior motive or when
the process is used to achieve something that is not permissible or for which
the process was not designed. The determination of an abuse is determined
by the circumstances of each case the fundamental question to be answered
deals with the lack of bona fides in the use of the court’s procedures’
(paragraph 43) and paragraph 44 states as follows:
‘Litigation consumes a public resource and the abuse thereof is harmful not
only to the litigants but to the entire justice system. The court emphasises
that its processes should be used for the resolution of genuine disputes and
not for tactical purposes.’
14 The legal principles referred to above deal with compliance with the Rules in
general and how courts should approach non -compliance. I now deal more
pertinently with the legal principles regarding the upliftment of a bar which is
the relief sought in this matter by the Defendant. The authorities reveal, and it
is trite law that:
14.1 the Defendant is required to show good cause as to why an order
uplifting the bar should be granted; Du Plooy v Anwes Motors (Edms)
Bpk8 sets out that the court has a wide discretion which must be
exercised with regard to the merits of the matter seen as a whole;
14.2 where the delay is unacceptably excessive and there is no explanation
– or no satisfactory explanation – for the delay, there may be no need
6 [2015] ZASCA 2
7 [1997] ZASCA 32
8 1983 (4) SA 212 (0)
8
to consider prospects of success but if the period of the delay is short
and there is a satisfactory explanation together with reasonable
prospects of success, condonation should be granted; and
14.3 despite the presence of a reasonable prospect of success,
condonation may be refused where the delay is excessive , the
explanation is non -existent and granting condonation would prejudice
the other party – the Plaintiff in this instance;
15 Put another way , if there is no reasonable and acceptable explanation for a
lengthy delay, the applicant’s prospects of success are material when
considering the relief sought, but without prospects of success then no matter
how good the explanation f or the delay may be , condonation ought to be
refused.9
16 There are three principal requirements for this court to come to the
assistance of the Defendant. being the following:
16.1 the Defendant must provide a full explanation for the delay; and
16.2 the Defendant must satisfy the court that she has a bona fide defence
and the application to uplift the bar was not made with the intention of
delaying the Plaintiff’s claim10; and
16.3 the grant of the indulgence sought must not prejudice the Plaintiff in a
way that a suitable order cannot compensate in regard to costs.
17 The SCA in Ingosstrakh v Global Aviation Investments (Pty) Ltd and Others 11
reaffirmed these trite principles, and the following was held:
‘Generally, the concept of ‘good cause’ entails a consideration of the
following factors: a reasonable and acceptable explanation for the default; a
9 Abrahams v EOH Mthombo (Pty) Ltd [2021] ZALCJHB 313
10 Silverthorne v Simon 1907
11 [2021] ZASCA 69 at para 21
9
demonstration that a party is acting bona fide; and that such party has a bona
fide defence which prima facie has some prospects of success. Good cause
requires a full explanation of the default so that the court may assess the
explanation.’
18 In the matter of Junkeeparsad v Solomon 12, the position was stated as
follows:-
‘Factors which usually weigh with a court in considering an application for
condonation include the degree of non -compliance, the explanation therefore
and an applicant’s prospects of success on the merits. (See Ferris and
another v Firstrand Bank Ltd 2014 (3) SA 39 (CC) para 10; Federated
Employers Fire & General Insurance Company Limited & another v
McKenzie 1969 (3) SA 360 (A) at 362F -G; Dengetenge Holdings (Pty) Ltd v
Southern Sphere Mining and Development Company Ltd and others {2013}
All SA 251 (SCA) para 11.) In Valor IT v Premier, North West Province and
Ohters 2021 (1) SA 42 (SCA) para 39, Plasket JA said that ‘very week
prospects of success may not offset a full, complete and satisfactory
explanation for a delay; while strong merits of success may excuse an
inadequate explanation for the delay (to a point).’
19 In Smith N.O. v Brummer N.O.13, it was stated that the court tends to grant a
removal of bar where:
19.1 the applicant has given a reasonable explanation for the delay;
19.2 the application is bona fide and not made with the object of delaying
the opposite party’s claim;
19.3 there has not been a reckless or intentional disregard of the Rules;
19.4 the applicant’s action is clearly not ill-founded; and
12 [2021] ZAGPJHC 48 at para 7
13 1954. (3) SA 352 (O)
10
19.5 any prejudice caused to the opposite party could be compensated by
an appropriate order as to costs.
20 In Uitenhage Transitional Local Council v South African Revenue Service
2004 (1) SA 292 (SCA)14, the court stated:
‘One would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be trite
knowledge among practitioners who are entrusted with a preparation of
appeals to this Court: condonation is not to be had merely for the asking; a
full detailed and accurate account of the causes of the delay and their effects
must be furnished so as to enable the Court to understand clearly the
reasons and to assess the responsibility . It must be obvious that, if the non -
compliance is time-related, then the date, duration and extent of any obstacle
on which reliance is placed must be spelled out.’
What calls for some acceptable explanation is not only the delay in the filing
of the heads argument, but also the delay in seeking condonation. An
appellant should, whenever it realises that it has not complied with a rule of
court, apply for condonation without delay15.
(my emphasis).
21 In the Constitutional Court decision of Van Wyk V Unitas Hospital and
Another (Open Democratic Advice Centre as amicus curiae)16, it was
reiterated that an applicant must give a full explanation for the ir delay. In
addition, the explanation must cover the entire period of the delay.
22 There are two time periods alluded to above, relevant to considering the
default of the Defendant, which was pertinently addressed in Ingosstrakh v
Global Aviation Investments (Pty) Ltd and others 17 where Makgoka JA stated
as follows:-
14 2004 (1) SA 292 (SCA at para 6
15 2004 (2) SA 472 (CC)
16 2008(2) SA 472 (CC)
17 Supra 9 at para 22
11
‘With regard to the explanation for the default, there are two periods of
default which Ingosstrakh must explain for its failure to deliver a plea. The
first is before the notice of bar was served on it, and the second relates to the
period after the bar was served. This is because the notice of bar was served
as a consequence to Ingosstrakh’s failure to plea. With regard to the former,
Ingosstrakh served its notice of intention to defend the Action on 30
September 2015. It, therefore, had up to 28 October 2015. There is simply no
explanation whatsoever why a plea was not filed during that period.’
The common cause facts
23 Before putting flesh on the bones, the skeleton timeline is the following:
23.1 a written and signed Settlement Agreement (the ‘ Settlement
Agreement’) was concluded on 22 September 2022.
23.2 on 13 January 2023, a divorce summons initiating the Action was
served at the instance of the Plaintiff on the Defendant;
23.3 on 26 January 2023, the Defendant filed a notice to defend;
23.4 on 30 June 2023, the Plaintiff served a notice of bar;
23.5 on 20 October 2023, the Plaintiff enrolled the Action on the unopposed
divorce roll for hearing;
23.6 on 8 November 2023, the Plaintiff filed a notice of set down for an
unopposed divorce enrolled for hearing on 17 November 2023;
23.7 on 16 November 2023, the Defendant’s new attorney of record
delivered a notice of appointment as attorney of record;
23.8 on 17 November 2023:
12
23.8.1 this Rule 27 application was initiated by the Defendant; and
23.8.2 the unopposed divorce was removed from the roll by
agreement between the parties
24 So much for the skeleton; now for the flesh. As is to be noted, the period s
between:
24.1 the filing of a notice of intention to defend on 26 January 2023 and the
filing of the notice of Bar on 30 June 2023 (ie, the first period); and
24.2 the filing of the notice of bar on 30 June 2023 and the filing of this
application on 17 November 2023 (i.e., the second period),
comprised lengthy delay s and i t is the Defendant who, inter alia, has the
onus to establish that there was good cause to uplift the bar (and by
extension, an explanation as to why the plea was not filed), but also to set
out a bona fide defence to the Action.
25
25.1
25.1.1 The Defendants’ explanation for the delay s can, I think, be
fairly summarised as follows; she spent large swathes of
time both in the United Kingdom and in the United States of
America with the parties’ daughters who required her
presence and was therefore (by implication) unable to deal
with the Action.
25.1.2 This explanation is as sparsely explained as it is
unconvincing, rendered even more unconvincing by the
defendant’s failure to furnish dates as to her movements
between continents , and her activities whilst with her
daughters outside South Africa.
13
25.1.3 This hiatus in the Defendant’s narrative is vast and leaves
the court without any real understanding – indeed without
any understand at all – as to what precluded the Defendant
whilst outside South Africa and visiting her daughters,
dealing with the Action and instructing her attorneys.
25.2
25.2.1 There was however a period when she failed to deal with
the Action because she says she believed that the notice of
bar had been suspended , but assuming in favour of the
Defendant that this was a reason not to file her plea, it is
common cause that on 9 August 2023, she, the Defendant,
was notified that the period of suspension relating to the bar
had terminated and that she should deliver her plea, and yet
she failed to do so.
25.2.2 Save for a brief and passing reference to the parties’
daughter in the United States of America being depressed,
the Defendant makes no effort whatsoever to explain why
her lengthy delays overseas (running into many months)
had any form of priority over the litigation between her and
her husband in South Africa.
25.2.3 To exacerbate the Defendant’s sparce (at best) explanation
for the delays, the Defendant made no effort to explain why
(particularly with today’s technology which enables parties
to meet remotely at the proverbial drop of a hat), she was
unable to engage with her attorneys whilst overseas.
25.3 The excuse proffer ed by the Defendant (such as it is) as to why she
failed to attend to the matter is hard to justify in today’s age of instant
and easy communication. Save in the rarest of circumstances, people
are able to manage their affairs effectively, properly and substantively
from afar. The Defendant’s explanation in this regard is, put at its
highest and at best for the Defendant, completely unconvincing.
14
26 The Defendant also relies on the fact that she failed to deliver a plea because
she was provided with assurances by the Plaintiff that the notice of bar had
been withdrawn and that she did not need to consult with her attorney to
prepare a plea – this at the time when the Plaintiff had performed all his
financial obligations in terms of the Deed of Settlement – but such a position
is not only untenable, but disingenuous, because:
26.1 on 28 June 2023, the Defendant’s attorney received an email from the
Plaintiff’s attorney placing on record that the pleadings were no longer
being held in obeyance, that there was only one day left to plead and
absent a plea, a notice of bar would be filed on 30 June 2023;
26.2 a notice of bar was in fact served on 30 June 2023, the dies of which
lapsed on 7 July 2023 when the Defendant became ipso facto barred
from pleading;
26.3 on 9 August 2023, the Defendant’s attorney reminded the Plaintiff’s
attorney that she, the Plaintiff was ipso facto barred from pleading;
26.4 on 30 October 2023, the Defendant’s attorney advised the Plaintiff’s
attorney that the Defendant would be enrolling the matter for an
unopposed divorce order on 17 November 2023,
which ‘warnings’ were plentiful and should have alerted the Defendant – over
and over again – to the consequences of her failure to initially plead and
thereafter absent a plea, take whatever steps she considered appropriate to
advance and protect her interests as she saw them.
27
27.1 Notwithstanding service of a notice of bar on 30 June 2023 , the
Defendant travelled to the United Kingdom some 11 days later – on 11
July 2023 – and only returned to South Africa in January 2024 during
which time she made no effort whatsoever to address the notice of bar
15
in spite of the fact that the Plaintiff reminded the Defendant on 9
August 2023 that she was under a notice of bar.
27.2 As I state hereunder; the Defendant’s attorney of record who received
the email dated 28 June 2023 and the other warnings (see paragraph
26 above), has not deposed to an affidavit in support of the Defendant.
That omission is glaring.
27.3 It is clear that the Defendant’s plea was due prior to service of the
notice of bar anyway.
28
28.1 The Defendant also contends that she was a financial hostage (my
words, not the Defendant’s words – although this forms part of the
Defendant’s explanation) with limited funds, but yet it is common cause
that the Defendant had access to many millions of rands which she
could have used to acquire appropriate legal advice at the appropriate
time. She failed to do so.
28.2
28.2.1 The canvas of impecuniosity painted by the defendant in
support of why she failed to deliver a plea timeously, is the
equivalent of a hundred piece jigsaw puzzle with perhaps
three or four pieces identified by the Plaintiff in her founding
affidavit.
28.2.2 The defendant makes no attempt whatsoever to take the
Court into her confidence and attach, for example, monthly
accounts showing income and expenditure, nor does she
attach any financial documents (for example, bank or credit
card statements) that may have assisted her. The absence
of this sort of detail is telling.
28.3
16
28.3.1 In fact , if I have regard to the common cause facts as to
what monies were paid by the Plaintiff to the Defendant –
not only as he was obliged to do so in terms of the
Settlement Agreement, (viz R3 075 000.00) – but over and
above his contractual obligations contained therein, in order
to assist the Defendant financially in regard to her living
expense,.
28.3.2 This however does not mean that the parties are not bound
by the Settlement Agreement or for that matter, not obliged
to attend to their obligations in respect of the Action; it
simply demonstrates in my view a kindness by the Plaintiff
in what where probably fairly difficult / trying – and very
frustrating – circumstances for him. To hold this against the
Plaintiff would be most unfair.
28.4 In addition to the aforesaid it seems to me that the Plaintiff’s tolerance
extended to a willingness – but clearly within certain parameters – to
engage with the Defendant about what is called a ‘new’ Settlement
Agreement proposed by the Defendant. That the Plaintiff was willing to
engage in such discussions is indicative of a person who adopted a
pragmatic approach, as opposed to a dogmatic approach and an
approach that if used against him would be fundamentally unfair. A
willingness to engage with a spouse of approximately 29 years and
who is the mother of your children is to be viewed for what it is; an act
of humaneness and perhaps even generosity of spirit.
29 As emerges from what is referred to above, I have found that the Defendant’s
explanation (such as it is) for her delay in pleading in the matter is completely
unsatisfactory and does not reach the threshold of a reasonable explanation;
indeed, it seems to me, in the words of Smith N.O v Brummer N.O 18, that there has
been a reckless or intentional disregard of the Rules.
Allegations / Defence of duress
18 Ibid 11 above
17
30
30.1 It may well be that having found that the Defendant’s explanation (I
repeat – such as it is) in relation to the delay is non -existent or
completely unconvincing, there may be no need to consider whether
the defence tendered by the Defendant is a bona fide defence which
has a reasonable prospect of success , but nonetheless, I intend to do
so.
30.2 In considering the question posed in paragraph 30.1 above, I have had
regard to the Defendant’s founding affidavit and her proposed plea that
she would file in the event that the notice of bar is uplifted and she is
given leave to file a defence. In considering this defence on paper, I
have had regard to the legal principles referred to above.
30.3 This defence is as unconvincing as it is unlikely. I say that for the
reasons referred to hereunder.
31 The Settlement Agreement was concluded on 22 September 2022. The high
water mark of the Defendant’s explanation in regard to the allegation that it
was signed under duress is that – and what follows is the defendant’s version
– she was ‘man -handled by the plaintiff outside the South African UK
Embassy’ (I deal therewith briefly hereunder) ‘in the presence of his agents,
being 2 (two) male policemen friends who are employed by SAPS and
stationed at Mondeor SAPS’. This defence is supplemented by her proposed
plea (to be clear; this is the plea that the Defendant would file assuming her
application is successful) in which she stated (in pleading form obviously as
opposed to in affidavit form) that:
‘6.2 In amplification of the Defendant’s denial the Defendant states the
following:-
6.2.1 the Settlement Agreement was signed under duress with
Police Officers present at the behest of the Plaintiff to ensure
she signed it;
18
6.2.2 the parties did not agree to incorporate the Settlement
Agreement.’
32
32.1 As opposed to the Defendant’s cryptic explanation of the
circumstances surrounding the signing of the Settlement Agreement in
her founding affidavit, the Plaintiff sets out in detail what transpired, not
only on the day the Settlement Agreement was signed , but also what
led up to the signing of the Settlement Agreement, that he was acting
cautiously and carefully and under the guidance of his attorney of
record.
32.2 The so -called two ‘friends’ referred to by the Defendant were clearly
not friends; they were strangers to the Plaintiff who were policemen at
the Mondeor police station because the Plaintiff’s clear intention
(guided by his attorney) was to ensure that matters relative to the
signing of the Settlement Agreement proceeded properly, prudently
and in circumstances where there would , if needs be, be reliable
witnesses.
32.3 There is a reference to the South African UK Embassy made by the
Defendant being the venue outside of where she was allegedly
manhandled, but it is clear that the Settlement Agreement was not
signed in the United Kingdom, but in South Africa. This strange feature
has never been explained, but nothing turns thereon other than a
further layer of incredulity as to the veracity of the Defendant’s version
in regard to her having signed the Settlement Agreement under
duress.
33 It seems inconceivable that the Defendant (who at all times material was
represented by an attorney) would not appreciate (under the guidance of her
attorney and perhaps even counsel) how crucial it would be in her founding
papers to set out as much detail as possible about the circumstances
surrounding the signing of the Settlement Agreement (the alleged duress) so
19
that a court could determine whether it is likely or possible that the Defendant
would be able to establish (if she was given leave to file her plea and the
matter proceeded to trial) that actionable duress had occurred which would
suffice to set aside / rescind the Settlement Agreement.
34
34.1 What is noticeable however is that in spite of the fact that the
Settlement Agreement was concluded on 22 September 2022, there is
no allegation made by the Defendant until the delivery of her
application in this matter ( 451 days after the conclusion of the
Settlement Agreement) that she was placed under duress.
34.2 I do not think it would be unfair to the Defendant to opine that, had she
been placed under duress, as alleged, s he would have instructed her
attorney to place same on record as soon as possible after the
Settlement Agreement was signed (after all she had access to
substantial monies in terms of the Settlement Agreement ) and
endeavour to then repudiate the Settlement Agreement, but she does
nothing of the sort. She does not proffer any evidence by, for example,
friends of hers who she may have spoken to about the (alleged)
duress. The Defendant also makes no reference to any effort s she
may have made to obtain the evidence of the police officer who
witnessed her and the Plaintiff’s signature to the Settlement
Agreement. All this court is left with is one sentence in the founding
affidavit which is quoted in paragraph 31 above.
34.3 In addition thereto, and very surprisingly, she has not procured
affidavits from any legal representative she had instructed at any time
prior to or even subsequent to the Settlement Agreement being
concluded, and 16 November 2023 when her new attorney of record
filed a notice of appointment as attorney of record. This hiatus is highly
significant and exacerbates the Defendant’s somewhat hopeless
position (in general) as well as her inability to present a bona fide
defence (grounded in alleged duress) as alleged by her.
20
34.4 The Defendant has accepted the financial benefits of the Settlement
Agreement and in spite of her wanting to set aside the Settlement
Agreement which provided for and generated those financial benefits ,
the Defendant makes no effort to tender the return of the money she
received thereunder.
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35.1 This is a case involving a marriage of many decades that had, for
whatever reason, run its course and was to come to an end where the
parties to that marriage (the Plaintiff and the Defendant) resolved (via
the Settlement Agreement) the proprietary matters between them and
one of those parties (the Defendant) has had second thoughts as to
the wisdom of her decision to conclude the Settlement Agreement.
35.2 This dispute is not about a divorce per se ; it is - at its core – a
commercial dispute. The Defendant having concluded the Settlement
Agreement – and it is important to note that the Plaintiff has performed
all his financial obligations in terms of the Settlement Agreement –
clearly has, what is known in the commercial world as ‘buyer’s
remorse’ and now wishes to turn the clock back, set aside / rescind
the Settlement Agreement and (at least from her perspective )
endeavour to procure what she perceive s to be a more attractive
settlement in the (divorce) Action.
36 The allegations in regard to the alleged duress are so thin that there is simply
no flesh to extract from the Defendant’s narrative. Compared to the Plaintiff’s
narrative, which is at pains to point out in detail to the court what, on the
Plaintiff’s version, actually occurred (not rebutted by the Defendant in reply) ,
it seems to me that the Defendant’s version is so improbable that I can reject
it entirely and conclude that, delays aside, the Defendant is not being bona
fide in her conduct in seeking to set aside the notice of bar and assert her
defence of duress. Her version (ie, her defence) is, in a word, unbelievable.
defence of duress. Her version (ie, her defence) is, in a word, unbelievable.
37 I am satisfied that the Defendant’s conduct in seeking to set aside the notice
of bar based on her version that there had been duress ( as set out in her
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founding affidavit and proposed plea, which is all I have to rely on) is doomed
to failure ; there is, based on the papers, no prospect of the Defendant
succeeding. It is not for me to speculate as to what evidence the Defendant
might present to this court if she were to be granted the order she has prayed
for and the matter proceeded on the issue as to whether there was or was
not duress and whether the Settlement Agreement is to be set aside. I can
only rely on the Defendant’s own version in coming to the conclusion I have.
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38.1 All in all, I would be remiss in my duty in seeking to do justice if I
granted the order prayed for by the Plaintiff.
38.2 It is clear from the totality of the narrative (as contained in the
affidavits) that the Defendant was very anxious to settle the anticipated
(by the parties – husband and wife) divorce action on certain terms, did
so after careful consideration, signed the settlement agreement
purposely and purposefully , received payment pursuant to the
Settlement Agreement , and then used the millions of rands made
available to her pursuant to the Settlement Agreement (and additional
monies from the Plaintiff – without any obligation - to assist the
Defendant) as she chose ,and knew that she was bound thereby. I
furthermore believe (as I have already found) that the Defendant’s
allegation of duress (her portal , as she sees it, to setting aside the
Settlement Agreement) is simply untrue . At the risk of repeating
myself; she has ‘buyer’s remorse ’, which cannot be visited upon the
Plaintiff. To do so would in my view be not only grossly unfair , but
would not be the proper application of the legal principles in this kind of
matter.
38.3 The Defendant concluded the Settlement Agreement because that is
what she wanted at the relevant time, that is what she bargained for at
the relevant time, and she received the benefit of her bargain at the
relevant time . I t is clear that the Defendant, suffering from buyer’s
relevant time . I t is clear that the Defendant, suffering from buyer’s
remorse wants a second bite at the cherry (to use a well -known
phrase) and in reaching for that bowl of cherries, has conjured up a
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way (at least as she sees it) to obtain a better financial outcome than
that which is provided for in the Settlement Agreement that she and
the Plaintiff deliberately signed – a way which is both fanciful and
disingenuous.
Strike out application
39 The Respondent, in his answering affidavit, makes reference to the striking
out of a number of paragraphs in the Applicant’s founding affidavit, but at the
hearing of the application, same was not pursued and consequently, I will not
deal therewith, other than in the following limited respects; the paragraphs
the Plaintiff identified as being subject to the strike out (whether irrelevant,
vexatious, scandalous, without prejudice, hearsay or scurrilous), were not of
such a nature that even though I had regard thereto, the content would have
affected the outcome of this application.
Conclusion
40 In coming to my conclusion an d exercising my discretion in all the
circumstances of the matter I have taken into account all that is referred to
above which includes:
40.1 the factual matrix as described by the Defendant (vague, superficial
and unconvincing) compared to that described by the Plaintiff (precise,
detailed and convincing);
40.2 the delays occasioned by the Defendant in the matter and the reasons
tendered by her in regard thereto (also vague , incomplete, painted in
broad brushstrokes and in my view contrived); and
40.3 the likelihood of the Defendant being able to set aside the Settlement
Agreement based on duress – ie, a bona fide defence (no realistic
prospect at all);
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and the fact that at its heart this is not (at this juncture) a family law matter; it
is simply a commercial matter and an attempt by one of the parties to set
aside the settlement based on alleged duress. Based on what the Defendant
has tendered to this court, I am not able to find in her favour.
41 The conduct of the Defendant in this matter is, in my view, an abuse of the
process; she has not explained her multiple and ongoing delays and she has
not presented a bona fide defence. On the contrary, she has, I regret to say,
presented a dishonest defence – at least as emerges from the papers filed in
this matter.
42 As a result thereof, the application is dismissed with costs.
43 In considering the level of costs, I am guided by the Defendant’s conduct in
this matter; she has by her conduct, wasted scarce judicial resources,
delayed the Plaintiff getting on with his life (and also delayed her independent
future and getting on with her own life) in circumstances where there was
simply no prospect of success in her application . Consequently, I believe
costs on the attorney / client scale are warranted and insofar as counsel ’s
fees are concerned, on scale B.
_______________________________
B R KAHN AJ
Judge of the High Court
Johannesburg
Counsel for the Applicant (Defendant): I Vorster
Email: lorraine@mngunilaw.co.za
Instructed by: Mnguni (PNL) Attorneys Inc.
Counsel for Respondent (Plaintiff): T Lipshitz
Email: barryct@balaw.co.za
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Instructed by: Barry Aaron & Associates CT