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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 DIVISION, PRETORIA

(1)  REPORTABLE:  YES / NO

(2)  OF INTEREST TO OTHER JUDGES:  YES / NO

(3)  REVISED

 

                                                                                    CASE NO.:  84951/2019

 

In the matter between:

K[....]  C[....]  M[....] -D[....]                                                                               APPLICANT

 

AND

 

B[....]  N[....]  D[....]                                                                                            1^ST RESPONDENT

SHERIFF PRETORIA EAST                                                                          2^ND RESPONDENT

 

JUDGMENT

 

VAN NIEUWENHUIZEN AJ:

[1]           This is an application for the rescission of a default judgment whereby, in terms of Rule 43, the following pendente lite relief was granted against the Applicant in favour of the First Respondent on 27 February 2020:

“1.        The Family Advocate is requested to conduct a thorough investigation into the affairs of the minor child, namely T[…], with specific reference to his primary care, as provided for and envisaged in Section 18(2)(a) of the Childrens Act, No 38 of 2005 (hereinafter referred to as “the Act”) and to make a recommendation in respect of the non-custodian parent’s right to maintain contact with him (the minor child), as provided for and envisaged in Section 18(2)(b) of the Act;

2.         The Applicant and the Respondent retain full parental responsibilities and rights in respect of the minor child as provided for and envisaged in Section 18(1) of the Act;

3.         The Applicant’s right or entitlement to maintain contact with the minor child, as provided for and envisaged in Section 18(2)(b) of the Act, is suspended pending the finalization of the Family Advocate’s investigation and recommendation, as provided for in paragraph 1 supra;

4.         The Respondent is ordered to pay maintenance to the Applicant in the amount of R22 000,00 per month, the first payment to be effected on or before Monday, 2 March 2020, and thereafter on or before the 1^st day of each subsequent month;

5.         The Respondent is ordered to make a contribution in the amount of R20,000,00 to the Applicant’s legal costs, payable in instalments in the amount of R1,000,00 per month, the first instalment to be paid on or before Monday, 2 March 2020, and thereafter on or before the 1^st day of each subsequent month;  and

6.         The costs of this application are costs in the divorce action.”

(sic). The “Applicant” and “Respondent” referred to in the quoted order are conversely the applicant and first respondent before me.  Accordingly, for ease of reference, and seeing as the First Respondent had instituted divorce proceedings against the Applicant, I shall refer to the parties as cited in the divorce action. In other words, in the present matter, the Defendant seeks a rescission of the default judgment granted in terms of Rule 43 against her in favour of the Plaintiff. The Defendant also seeks that the writ of execution of 9 March 2020 be set aside.

[2]           On 14 January 2020 the Rule 43 application and summons in the divorce action was served on the Defendant. The Defendant’s attorneys delivered a notice of intention to defend the divorce action on 24 January 2020.  On 28 January 2020, in terms of Rule 43(3)(c), the Defendant was barred from delivering a sworn reply to the Plaintiff’s statement whereby he sought relief in terms of Rule 43. The Plaintiff’s attorneys proceeded to serve a notice of set down of the Rule 43 application on the Defendant’s attorneys of record on 10 February 2020. On 12 February 2020, the Defendant’s attorneys of record delivered a notice of intention to oppose the Rule 43 application, but no sworn reply in opposition thereto (it has not been suggested in the Defendant’s papers that the barring provision of Rule 43(3)(c) played any role in her actions, or rather, inactions).

[3]           The Rule 43 application proceeded to be heard on 27 February 2020 by this court and the afore-quoted order was accordingly granted in the Defendant’s absence (“the default order”). There is no explanation proffered on the papers before me as to why there had not been anyone present to appear on behalf of the Defendant.  According to the Defendant knowledge of the default order came to the attention of her attorney of record on 5 March 2020 when same was served on the Defendant’s correspondent attorneys. There is some contradiction as regards to the knowledge acquired by her attorney as in the same affidavit she states that on 6 March 2020 her attorney gained knowledge of the default order when, in separate domestic violence proceedings at the “White river court” (sic), the Plaintiff’s attorneys made mention thereof in passing to him. This commutation is common cause.

[4]           Whilst it is not expressly stated in either the Defendant’s notice of motion or founding affidavit whether the present application is brought in terms of Rule 31(2)(b), the common law, or Rule 42(1), the Defendant expressly deals with the questions of “lack of wilful default” and “ad bona fide defense” (sic), and further expressly seeks that the late “filing” of the application be condoned. Clearly, this is an application in terms of Rule 31(2)(b) of the Rules of Court. The present application was only served on the Plaintiff on 21 July 2020. In fact, during argument the Defendant’s legal representative conceded that on my calculation, if the date of 6 March 2020 was used as the date by when the Defendant became aware of the default order, the application for rescission was to be brought by 3 April 2020.  Therefore, insofar as condonation is sought, the Defendant was enjoined to explain the whole period of delay from 3 April 2020 to 21 July 2020. I interpose that even if the application invoked this court’s jurisdiction in terms of the common law, or Rule 42(1), condonation would nonetheless still be required if not brought within a reasonable time (see First National Bank of Southern Africa Limited v Van Rensburg NO and Others; In re First National Bank of Southern Africa Limited v Jurgens and Others 1994 (1) SA 677 (T) 681 D – H).

[5]           In deciding whether or not condonation ought to be granted, the standard that a court needs to adopt is whether it would be in the interests of justice to do so, which in turn depends on the facts and circumstances of each case.  This is the standard that has been laid down by the Constitutional Court in Van Wyk v Unitas Hospital (Open Democratic Advice Centre as amicus curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at paragraph 20.  The court continued to state that factors to be taken into consideration (which was not a closed list) would be the nature of the relief sought, the extent and the cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation of the delay and the prospects of success.  At paragraph 22 the court stated that an applicant for condonation must give a full explanation for the delay (in the sense that it must be a comprehensive or detailed explanation) and in addition thereto it must cover the entire period of the delay and must be reasonable.  In other words, a party seeking condonation is obliged to:

[5.1]            give a full, or complete, or precise explanation for the delay (in this regard see also Duncan t/a San Sales v Herbor Investments (Pty) Limited 1974 (2) SA 214 (T) where the Full Bench at 216 E – G/H held inter alia that:

           “A litigant who asks for an indulgence should act with reasonable promptitude. ...  Other neglectful acts in the history of the case are relevant to show his attitude and motives. ... A litigant who asks for an indulgence must be scrupulously accurate in his statement to the court.”  

and the well-known case of Silber v Ozen Wholesalers (Pty) Limited 1954 (2) SA 345 (A) where Schreiner JA at 353A held as follows:

“... the defendant must at least furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about, and to assess his conduct and motives.”)

[5.2]            The explanation must cover the entire period of delay (in Unitrans Fuel and Chemical (Pty) Limited v Dove-Co Carriers CC 2010 (5) SA 340 (GSJ) the Full Bench of the South Gauteng High Court, Johannesburg (as it was then named) at paragraphs 14 to 17 held as follows:

“[14]    Firstly, it is often and undesirably so in our courts that the length of the delay in condonation applications determines how detailed the explanation is.

[15]     To illustrate: if a delay of a few days has to be explained, then the failure to deal with a day or two may well prove fatal to the application. Likewise, if a delay of some three weeks has to be explained, then a failure to deal with three to four days may lead to the failure of the application.

[16]     In the case of much longer delays, such as the case in casu (some three years), applicants sometimes (but too often) regard the failure to explain three to four days as reasonable. In fact, much longer unexplained periods seem to pale into insignificance simply due to the length of the total delay, with applicants seemingly under the impression that a few days or even weeks here and there will not 'break the camel's back'.

[17]     This is unacceptable. The test does not change with the length of the delay, and the duty to fully explain the entire period of delay remains the same, quite irrespective of the period of the delay.”

and at paragraph 28.1:

“[28.1]  The entire period of the delay has to be explained thoroughly and the longer the period of delay, does not detract from this fact, ...”);

[5.3]            The explanation must be reasonable. In other words, plainly, the explanation must be cogent and not inherently improbable. In an unreported decision of the full bench of this court in Loretto CC & Another v Distillers Corporation Ltd [Case No. A1090/07 (GNP)], Ismail AJ (as he then was) at paragraph 11 held as follows (albeit in dealing with the question of the reasonableness of the explanation for a party’s “wilful default” in showing “good cause”):

“The explanation which a party seeking rescission sets out to give must be “reasonable or satisfactory”. The significance of this is that not just any explanation would pass muster to the test and rescission would be given no matter how poor the explanation or excuse for the default judgment having taken place.”

[6]           It would indeed be inimical to the interests of justice if the aforesaid requirements are not met unless exceptional instances pertaining to other relevant factors exists that may compensate for the non-compliance with the three requirements in respect of the delay, tipping the scale to grant condonation in the interest of justice. Each case is to be decided on its own facts.

[7]           In the present matter the Defendant renders the following explanation in respect of the delay of institution of the present application in her founding affidavit:

“The application for rescission was prepared as early as 24^th of March 2020 but because of the curfew imposed by lockdown regulation, the application could not be issued and the 1^st respondent’s attorneys were alerted about the application for rescission and notwithstanding that they have instructed the 2^nd respondent to attach my account and properties and I am unable to access funds from my account to meet my monthly financial obligations and this prejudices me a lot. 

In the premises the court is requested to grant an indulgence and condone the late filing of the application.”

(sic).

[8]           In the answering affidavit the Plaintiff expressly records that “The rescission application has also been filed out of time, and wilfully so. The Court will note that the Applicant already knew about the order shortly after it was granted and elected to do nothing.”

[9]           In the Defendant’s replying affidavit, she replies to the aforesaid statement of the Plaintiff as follows:

“An application for condonation has been made and I do not intend to reiterate the averments made in support of the application for condonation.”

[10]       The Plaintiff, in his answering affidavit before me, further challenged the Defendant’s application for condonation on the premise that the other requirements in explaining the delay were not addressed by the Defendant at all. The Defendant did not deal with these challenges in her replying affidavit. From the aforegoing, it is patently evident that none of the three requirements for seeking condonation have been met: There is firstly no full explanation for the delay of more than three months, secondly, the entire period of the said delay is not explained, and thirdly, it logically follows of course that where there is no full explanation there can hardly be a reasonable explanation for such a delay.

[11]       However, it remains to consider other factors which may be exceptional enough to tip the scales of what is in the interest of justice to grant condonation. In the present case the factors that arise on the papers are (1) whether or not the Defendant was in fact in wilful default, (2) the prospects of success insofar as the merits are concerned, and (3) the prejudice that the Plaintiff may suffer if condonation is granted.

[12]       It appears to me that the Defendant was not in wilful default as she had indeed timeously deposed to her sworn reply opposing the Rule 43 application. The affidavit was, however, contrary to the Defendant’s contention, not sent to the Plaintiff’s attorneys, but to the Defendant’s correspondent attorneys. Whilst the conduct (or lack thereof) of the Defendant’s attorneys and correspondent attorneys leaves much to be desired, for example, failing to ensure that the application in terms of Rule 43 did not proceed on an unopposed basis by sending, even if electronically, the Defendant’s sworn reply to the Plaintiff’s Rule 43 application, or to send counsel or an attorney to attend court on the day when it was set down for hearing (again, in respect of which no explanation is preferred), I do not believe that their sins have reached such a level so as to befall the Defendant (cf Saloojee and Another, NNO v Minister Of Community Development 1965 (2) SA 135 (A) 141H – 142H). However, this factor alone, in my view, is not exceptional enough to yet tip the scales of the interest of justice.

[13]       One is then left with the question as to whether or not there is a bona fide defence to the Plaintiff’s Rule 43 relief claimed which in turn entails an enquiry as to whether or not such defence is meritorious and bona fide, being separate requirements. This was the conclusion reached by Marais J in Standard Bank of SA Limited v El-Naddaf and Another 1999 (4) SA 779 (W) at 784C – 786B, and whereat he also dealt with bona fide requirement specifically. The relevant part of his judgment reads as follows:

“I wish to add something in regard to the sketchiness of the second defendant's affidavit. It is true that in Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) Brink J at 476-7 said that:

'He must show that he has a bona fide defence to the plaintiff's claim. It is sufficient if he makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.'

I am aware that this was approved by Zulman AJ (as he then was) in  Federated Timbers Ltd v Bosman NO and Others 1990 (3) SA 149 (W) at 155 et seq. I also accept the statement by Zulman AJ that it is not necessary for the defendant to actually prove his case. Clearly not.

But I find a degree of contradiction in the statement by Brink J that on the one hand the applicant must show that he has a bona  fide defence and his statement that it is sufficient if the applicant sets out 'averments which, if established at the trial, would entitle him to the relief asked for'. It seems to me that the question of whether the applicant has shown that he has a bona fide defence must be decided against the background of the full context of the case. In a case such as this, where the applicant for rescission admits having signed a clear suretyship, I feel that it cannot be sufficient to establish bona fides if she baldly states 'the plaintiff misled me as to the contents of the document I was signing' without saying how the plaintiff misled her. I am at a loss to understand how, if so bald and sketchy an averment is made, a court can be satisfied as to the bona fides of an applicant who is in a position to set out much more clearly (without requiring massive detail) how she was misled and by whom on behalf of the plaintiff. 

It seems to me that the situation is analogous to that under Rule 32(3)(b) of the Uniform Rules of Court, which requires that the Court must be satisfied that the defendant has a bona fide defence. This subrule was considered in Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T). The relevant portion of the subrule requires the defendant to 'satisfy the Court by affidavit . . . that he has a bona fide defence to the action; such affidavit . . . shall disclose fully the nature and ground of the defence and the material facts relied upon therefor'. It will immediately be seen that the second portion of the sentence contains requirements different to those specifically required in an application for rescission. However, Colman J deals with the requirement that the defendant must satisfy that his defence is bona fide as

(a)       separate from the requirement that he must satisfy the Court that he has a defence and

(b)       separate from the requirement that he ‘shall disclose fully the nature and grounds of the defence and the material facts relied upon therefor.

At 227 in fine - 228A Colman J says:

'If, therefore, the averments in a defendant's affidavit disclose a defence, the question whether the defence is bona fide or not, in the ordinary sense of that expression, will depend upon his belief as the truth or falsity of his factual statements. . . .'

That paragraph is preceded at 227G-H by the statement that the rule requires that the defendant

'set out in his affidavit facts which, if proved at the trial, will constitute an answer to the plaintiff's claim. If he does not do that, he can hardly satisfy the Court that he has a defence. . . . On the face of it, bona fides is a separate element relating to the state of defendant's mind.'

This makes it quite clear that Colman J regarded the requirement that bona fides be demonstrated as separate and distinct from the requirement that the affidavit 'shall disclose fully the nature and grounds of the defence' etc, even though there would appear to be some inevitable overlapping between the two requirements. That Colman J regarded bona fides as a separate requirement, and was dealing with that only in the last sentence of the following passage, appears from the full passage itself. At 228B-E the relevant passage occurs and it reads:

'Another provision of the subrule which causes difficulty, is the requirement that in the defendant's affidavit the nature and the grounds of his defence, and the material facts relied upon therefor, are to be disclosed ''fully''. A literal reading of that requirement would impose upon a defendant the duty of setting out in his affidavit the full details of all the evidence which he proposes to rely upon in resisting the plaintiff's claim at the trial. It is inconceivable, however, that the draftsman of the Rule intended to place that burden upon a defendant. I respectfully agree, subject to one addition, with the suggestion by Miller J in Shepstone v  Shepstone 1974 (2) SA 462 (N) at 366-467, that the word ''fully'' should not be given its literal meaning in Rule 32(3), and that no more is called for than this: that the statement of material facts be sufficiently full to persuade the Court that what the defendant has alleged, if it is proved at the trial, will constitute a defence to the plaintiff's claim. What I should add, however, is that if the defence is averred in a manner which appears in all the circumstances to be needlessly bald, vague or sketchy, that will constitute material for the Court to consider in relation to the requirement of bona fides.'

The last two sentences make it clear that Colman J separates the requirement to show bona fides and the requirement to 'disclose fully the nature and grounds of the defence and the material facts relied upon therefor'. 

I stress the distinction drawn by Colman J because, since he does not rely upon the other arguments of the Rule when he lays down what is required to demonstrate bona fides, I am satisfied that his remarks regarding what is required to demonstrate that a defence is bona fide are of equal application to applications for rescission where the applicant is also required to demonstrate that he has a defence which is bona fide.

In my view the concluding sentence in the passage that I have quoted is of full application to applications for rescission. In my view, where it is required that bona fides be demonstrated, this cannot be done by making a bald averment lacking in any detail. 

Insofar as Grant's case may suggest that a mere bald averment 'which appears in all the circumstances to be needlessly bald, vague or sketchy' is sufficient to demonstrate bona fides, I am of the view that it is clearly wrong and I decline to follow it.

The authority of the judgment of Colman J (and common sense) indicate that bona fides cannot be demonstrated by merely making a bald averment lacking in any detail. To hold that such bald averment is sufficient to demonstrate bona fides is a classic oxymoron. It effectively negates the requirement that the Court be satisfied that the applicant has a bona fide defence. It could with equal validity be held that a mere statement by an applicant that his defence is bona fide would be sufficient, which is manifestly absurd.”

[14]       Marais J’s reasoning cannot be faulted and was in fact followed in Loretto at paragraph 14. More recently, in Gap Merchant Recycling CC v Goal Reach Trading CC 2016 (1) SA 261 (WCC), Rogers J also endorsed Marais J’s reasoning in the context of the bona fides required of a respondent raising a bona fide dispute to an applicant’s claim in liquidation proceedings in invoking the “Badenhorst Rule” (see Badenhorst v Northern Construction Enterprises (Pty) Ltd  1956 (2) SA 346 (T) at 347H – 348C) and stated the following at paragraphs 23 to 26:

“[23] Mr Randall reminded me that in the present case the applicant did not accept the bona fides of the respondent in raising its defence. Both bona fides and reasonableness were in issue. With regard to the   requirement of bona fides, Mr Randall referred me to the judgment of Marais J in Standard Bank of SA Ltd v El-Naddaf and Another  1999 (4) SA 779 (W). That case concerned an application for rescission. One of the requirements for successful rescission was that the defendant had to demonstrate the existence of a bona fide defence. Marais J referred to the well-known judgment of Colman J in Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T) concerning summary judgment. He pointed out   that in Breitenbach Colman J held that the requirement of bona fides was separate from the requirement that the defendant satisfy the court that he has a defence, and separate from the requirement that the defendant 'disclose fully the nature and grounds of the defence and the material facts relied upon therefor'. Bona fides have to do with the belief on the part of the litigant as to the truth or falsity of his factual statements; it is a separate element relating to the state of the defendant's mind (El-Naddaf at 784G – 785B, quoting from Breitenbach).

[24] Marais J then quoted (at 785D – F) the passage in Breitenbach appearing at 228B – E. In that passage Colman J said, with reference to rule 32(3), that the duty 'fully' to disclose the nature and grounds of the defence was not to be taken literally and that the statement of material facts should simply be sufficiently full to persuade the court that what the defendant has alleged, if it is proved at the trial, will constitute a defence to the plaintiff's claim. Importantly, Colman J added the following (and it was this passage in particular which Marais J in El-Naddaf highlighted):

'What I should add, however, is that if the defence is averred in a manner which appears in all the circumstances to be needlessly bald, vague or sketchy, that will constitute material for the Court to consider in relation to the requirement of bona fides.'

[25] Marais J said that this explanation regarding the requirement of   bona fides applied with equal force to the requirement in rescission proceedings that the defendant demonstrate a bona fide defence, emphasising in particular that bona fides cannot be demonstrated by making bald averments lacking in any detail (at 785H – I). 

[26] I see no reason for adopting a different approach when considering, in liquidation proceedings, whether the applicant's claim is bona fide disputed on reasonable grounds. Bona fides relates to the respondent's subjective state of mind, while reasonableness has to do with whether, objectively speaking, the facts alleged by the respondent constitute in law a defence. The two elements are nevertheless interrelated because inadequacies in the statement of the facts underlying the alleged defence may indicate that the respondent is not bona fide in asserting those facts. As Hülse-Reutter makes clear, the objective requirement of reasonable grounds for a defence is not met by bald allegations lacking in particularity; and, as appears from Breitenbach and El-Naddaf, bald allegations lacking in particularity are unlikely to be sufficient to persuade a court that the respondent is bona fide.”

[15]       The Defendant raises various aspects as to the merits of the Rule 43 application, such as:

[15.1]         the breakdown of the marriage was the fault of the Plaintiff;

[15.2]         various acts of financial misconduct committed by the Plaintiff in respect of the joint estate, including unlawful dispositions therefrom and also the failure to make contributions to the joint estate (suggesting he kept money received for his own estate);

[15.3]         the Defendant was solely responsible for the maintenance, well-being and educational expenses of the Plaintiff’s children and his elder brother’s children;

[15.4]         that the Plaintiff had failed to make relevant disclosures insofar as his financial position was concerned in several respects;

[15.5]         further disputes raised insofar as the reason for the Plaintiff’s vacation of the matrimonial home and that the Plaintiff resides with another married woman (which is not in dispute);

[15.6]         the Plaintiff had conceded that there is an amount payable to him on a monthly basis of approximately R2 250.00 (money received from a Sanlam Pension and from Momentum – which is common cause) and with “this colossal amount of loan monies advanced to him by loan sharks after pledging properties belonging to the joint estate can survive him until the divorce is finalized” (sic).  It is unclear what the supposed “colossal amount” is, but presumably relates to the alleged financial misconduct, particularly where the Plaintiff is accused of pledging certain luxury German vehicles as collateral for financial loans in undisclosed amounts;

[15.7]         the Plaintiff is a well-educated person and clearly experienced in business and has not disclosed what steps he had taken to obtain employment;

[15.8]          Finally, the Defendant further states that she cannot afford the relief granted in the default order as she is left with a monthly deficit of R16 634.70 after all her expenses are deducted from her income. 

[16]       Thus, at least on a prima facie level, the Defendant does appear to have a defence insofar as the merits are concerned. It should be remembered that all that is required is a defence that has some prospects of success (see Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) 764J and 765A – D).  However, is the defence bona fide?

[17]       At the outset I find it curious how anyone can survive on a nett deficit monthly income. The Defendant did not provide an explanation as to how the deficit was funded. In argument before me, the Defendant’s attorney referred me to the Defendant’s allegation that she had received a letter of demand from Nedbank in respect of her home loan account in the amount of R348 862.38 and that if there had been no shortage of money, she would not have received such a letter of demand. No such letter, however, is attached to the papers. No financial disclosure form has been provided either.

[18]       A further glaring inconsistency in the Defendant’s version pertains to her claim to deduct an amount of R50 200.00 in respect of bond instalments in relation to the parties’ immoveable properties, however, when listed separately, both in the founding and replying affidavit, the Defendant records the individual bond instalments as R12 000.00, R5 000.00, R4 500.00 and R5 700.00, thus R13 000.00 in total.  That is a difference of R37 200.00 and thus even if the deficit is deducted therefrom, an amount of R21 000.00 remains available. The difference between the present amount awarded in respect of the default order and the aforesaid amount is not that significant that the Defendant would not be able to cut some expenses and tighten her belt to meet the obligations in terms thereof.

[19]       Thus, to sum up, the Defendant’s bona fides is brought into question insofar as (1) her failure to produce a financial disclosure form is concerned; (2) her failure to properly explain how she survives on a monthly deficit of R16 634.70; and (3) the glaring discrepancy of the bond instalment expenses.

[20]       However, juxtaposed to the matters where the Defendant’s bona fides are called into question are the factors raised which are common cause, namely: (1) that the Plaintiff is in a long-term relationship with a third party and co-habiting with her. In fact the Plaintiff goes so far as to list his rental, electricity, groceries (including cleaning material), housekeeping and gardener as expenses as half of the joint needs of him and his partner; and (2) on the Plaintiff’s own version he had an amount of R20 000.00 paid to him on 1 November 2020, but used that money to assist another church member. I find this concerning for two reasons: firstly, the Plaintiff is not candid with the court as to the source of this income, nor did he provide more bank statements from which it could be established if this is a regular payment (and it deserves mentioning that the Plaintiff similarly hasn’t produced a financial disclosure form); and secondly, charity starts at home. Why pay someone else money if you are truly in financial dire straits?

[21]       I may also then add that the Plaintiff had claimed expenses which, in my view, ought not be granted for purposes of interim maintenance, such as the provision for holidays in the amount of R1 000.00 per month (as a court should discourage luxurious items – see P v P (21010/2020) [2020] ZAGPPHC 400 (12 August 2020) [12] and holidays are not to be provided for having regard to the interim nature of Rule 43 relief – see A G v L G (9207/2020) [2020] ZAWCHC 83 (25 August 2020) [12]) and, it also seems to me the Plaintiff is claiming excessive amounts for one person in respect of food items, fuel (especially where unemployed), vehicle maintenance and tyres, cellular phone, clothing and entertainment, books and unforeseen expenses.

[22]       It follows that the Defendant certainly has disclosed bona fides in respect of at least some defences because:

[22.1]         a court may, depending on the circumstances, justifiably refuse interim maintenance to a spouse, where that spouse is living with another person in a romantic relationship (cf EH v SH  2012 (4) SA 164 (SCA) [11]);

[22.2]           the Plaintiff seemingly did not come to court with the utmost of good faith insofar as disclosing the receipt of R20 000.00 is concerned. In Du Preez v Du Preez 2009 (6) 28 (T) at paragraphs 15 and 16 Murphy J held as follows:

“[15] However, before concluding, there is another matter that gives me cause for concern, deserving of mention and brief consideration. In my experience, and I gather my colleagues on the bench have found the same, there is a tendency for parties in rule 43 applications, acting expediently or strategically, to misstate the true nature of their financial affairs. It is not unusual for parties to exaggerate their expenses and to understate their income, only then later in subsequent affidavits or in argument, having been caught out in the face of unassailable contrary evidence, to seek to correct the relevant information. Counsel habitually, acting no doubt on instruction, unabashedly seek to rectify the false information as if the original misstatement was one of those things courts are expected to live with in rule 43 applications. To my mind the practice is distasteful, unacceptable, and should be censured. Such conduct, whatever the motivation behind it, is dishonourable and should find no place in judicial proceedings. Parties should at all times remain aware that the intentional making of a false statement under oath in the course of judicial proceedings constitutes the offence of perjury and, in certain circumstances, may be the crime of defeating the course of justice. Should such conduct occur in rule 43 proceedings at the instance of the applicant, then relief should be denied.

[16] Moreover, the power of the court in rule 43 proceedings in terms of rule 43(5) is to 'dismiss the application or make such order as it thinks fit to ensure a just and expeditious decision'. The discretion is essentially an equitable one and has accordingly to be exercised judicially with regard to all relevant considerations. A misstatement of one aspect of relevant information invariably will colour other aspects with the possible (or likely) result that fairness will not be done. Consequently, I would assume there is a duty on applicants in rule 43 applications seeking equitable redress to act with the utmost good faith (uberrimae fidei) and to disclose fully all material information regarding their financial affairs. Any false disclosure or material non-disclosure would mean that he or she is not before the court with 'clean hands' and, on that ground alone, the court will be justified in refusing relief.”

[22.3]         the Plaintiff certainly has a duty to employ his qualifications and experience in seeking employment. The Plaintiff makes only a bald statement that “despite my endeavours” he has been unable to find employment. I accept the Plaintiff is 59 years old, but he holds a bachelors degree and an honours degree and has a background in teaching. His age certainly is no bar to teaching and he has not demonstrated making any endeavour to obtain employment in that field. Although dealing with the question of maintenance of minor children, I find the following reasoning of Madlanga J (as he then was) in Mgumane v Setemane  1998 (2) SA 247 (Tk) at 252B – E apropos in the context of spouses as well, especially as interim maintenance is not supposed to be an interim meal ticket (see Nilsson v Nilsson 1984 (2) SA 294 (C) 295F):

“A parent cannot be allowed not to realise the full potential of his/her earning capacity to the detriment of his/her children who are in need of maintenance. In a given case the facts may amply demonstrate that a parent can earn more than he/she is actually earning and that it would be a matter of relative ease for him/her to so adjust his/her position as to be able to earn a higher income. In such a situation the courts would be failing in their duty if they were to accept a mere ipse dixit that the parent is unable to pay maintenance or to pay maintenance to the extent of the children's needs. In his Law of Parent and Child 3rd ed at 368 Spiro says that

`a parent cannot escape the duty to support a child, which is entitled thereto, by donating away all property or by resigning from work and going back to university or by living on a scale which unduly interferes with the needs of his or her children'

and a parent who does the latter

`must rather adjust his or her own standard of living so that his or her children are not prejudiced in the important years of their upbringing'

(see the cases referred to).”

[23]       To sum up thus far: Has the lack of wilful default on the Defendant’s part, the fact that she has at least established some bona fide and valid defences, together with the shortcomings of the allegations of the Plaintiff’s Rule 43 papers, juxtaposed with the Defendant’s miserable failure to comply with the requisites in explaining her delay in bringing the present application, together with her own shortcomings in her opposing papers in the Rule 43 application, tipped the scales of the interest of justice in her favour? I still require to consider the question of prejudice the Plaintiff may suffer should I grant condonation and grant a rescission of the default order. 

[24]       In Pangbourne Properties Limited v Pulse Moving CC and Another 2013 (3) SA 140 (GSJ), Wepener J at paragraphs 18 and 19 said the following:

“[18] The respondents had the replying affidavit in their possession for four months and made no attempt to object to the late filing thereof until the objection was made in argument before me. Its own affidavit was late and would pursuant to the Waltloo judgment not be before me. The respondents did not show why they would be prejudiced should the matter be heard by me. The objection to the affidavit is stated thus:

'Applicant's replying affidavit was served and filed some 8 months out of time and falls to be disregarded.'

It fails to indicate what prejudice, if any, the respondents suffered as a   result of the late filing of the replying affidavit. The words of Brand JA in Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA) in para 32 are apposite:

'I am not entirely sure what is meant by the description of the application as totally irregular. If it is intended to convey that the application amounted to a deviation from the Uniform Rules of Court, the answer is, in my view, that, as [has] often been said, the Rules are there for the Court, and not the Court for the Rules. The court a quo obviously had a discretion to allow the affidavit. In exercising this discretion, the overriding factor that ought to have been considered was the question of prejudice. The perceived prejudice that the respondent   would suffer if the application were to be upheld, is not explained. Apart from being deprived of the opportunity to raise technical objections, I can see no prejudice that the respondent would have suffered at all. At the time of the substantive application the respondent had already responded — in its rejoining affidavit — to the matter sought to be included in the founding affidavit. The procedure which the   appellant proposed would have cured the technical defects of which respondent complained. The respondent could not both complain that certain matter was objectionable and at the same time resist steps to remove the basis for its complaint. The appellant's only alternative would have been to withdraw its application, pay the wasted costs and bring it again supplemented by the new matter. This would merely   result in a pointless waste of time and costs.'

On the facts of the present matter I deem it unnecessary for either of the parties to have brought a substantive application for condonation. See McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) at 643C – F; Hessel's Cash and Carry v SA Commercial Catering and Allied Workers Union 1992 (4) SA 593 (E) at 599F – 600B; and the unreported   matter of The National Director of Public Prosecutions referred to above.

In the matter under consideration all the papers are before me and the matter is ready to be dealt with. To uphold the argument that the   replying affidavit and consequently also the answering affidavit fall to be disregarded because they were filed out of time will be too formalistic and an exercise in futility, and will leave the parties to commence the same proceedings on the same facts de novo.

[19] There is no allegation of prejudice to any party nor have I been referred to any such prejudice if the matter is to be disposed of on its   merits despite the late filing of the answering and replying affidavits. The failure of the respondents to utilise the provisions of rule 30 regarding the setting-aside of irregular proceedings strengthens my view that neither party was prejudiced by the late filing of the affidavits. It is in the interests of justice that the affidavits be taken into account and that this matter be   finalised and unnecessary additional costs be avoided. Insofar as it may be necessary and within my discretion to allow the late filing of the answering affidavit and the late replying affidavit, I do so in order to decide the merits of the dispute between the parties unfettered by technicalities.”

[25]       The Plaintiff states that he is unemployed and that the Defendant has full control of the joint estate.  The Defendant seemingly does not dispute the allegations of the Plaintiff in this respect but qualifies her stance in refusing the Plaintiff access to the joint estate (and the income and benefits deriving therefrom) on the basis of a court order that was obtained precluding the Plaintiff from selling any assets absent her prior consent, which she obtained in the “White river court”. The fact remains that (save for the unexplained R20 000.00 smoking gun payment of 1 November 2019) the Plaintiff does not have access to funds, but it also appears that this may be his own doing culminating in such status quo being established by way of an order of court.

[26]       In fact, the Plaintiff’s poor financial state seems to be conceded by the Defendant to the extent that she suggests that the Plaintiff ought to, rather than seek a contribution to costs, approach the Legal Aid Board. This is of course not the position of our law in relation to matrimonial proceedings and I merely need to refer to the recent decision of Binns-Ward J in V v V (18559/2016) [2020] ZAWCHC 126 (21 October 2020) at paragraphs 18 – 19. 

[27]       The Plaintiff further states that he was “literally” left starving and supported by donations from a church and that his rent is in arrears.  The Defendant does not dispute that the Plaintiff is in arrears with his rental, but challenges the veracity of the Plaintiff’s suggestion that he was supported by a church as he does not state which church had made the donations to him.  I agree with the Defendant in this regard. Although reference to the “ECG” Church is made by the Plaintiff in relation to the contention that it provided him with accommodation until the end of November 2019, there is nothing else said. The Plaintiff’s allegations in this respect are indeed needlessly bald and sketchy.

[28]       Having regard to all the facts of the matter, and carefully balancing the allegations of both parties, it seems to me that the Plaintiff will indeed prima facie be prejudiced should condonation be granted and the default order be rescinded in the present circumstances.  The Plaintiff had incurred expenses and made a concerted effort to issue warrants of execution and to address correspondence to the Defendant’s attorneys on 25 March, 23 April, 8 May and 13 May 2020, respectively, yet there was absolutely no urgency from the Defendant in launching the application for rescission timeously or with the necessary promptitude one would expect from a litigant acting reasonably and responsibly.  The Defendant was in fact also late with the delivery of her replying affidavit in the application for rescission of default judgment.  In respect of the latter dilatory conduct of the Defendant, she merely puts forward her current duties as a Deputy Minister as an excuse for the monopolisation of her time precluding her from timeously deposing to the replying affidavit.  This explanation too is not full, fails to deal with the entire period of its lateness, and is not satisfactory either.

[29]       Where does all of this then leave the scales of the interest of justice? Have exceptional circumstances been found to tip it in favour of the Defendant? Having regard to all the matters and legal principles set out in this judgment, I am of the view that the Defendant’s prospects of success just barely, by the slightest of margins, at best, tipped the scales evenly and I thus propose to exercise the wide powers afforded to me in terms of Rule 32(1)(b) which expressly provides that I may make any order I deem fit, to make a concomitant fair order. In Pansolutions Holdings Ltd v P&G General Dealers & Repairers CC  2011 (5) SA 608 (KZD) Swain J (as he then was) at paragraph 13.1 said the following:

“It is clear that a court, in evaluating 'good cause', has a wide discretion in order to ensure that justice is done. Wahl v Prinswil Beleggings (Edms) Bpk  1984 (1) SA 457 (T).”

[30]       One cannot foretell what the court hearing the Rule 43 application de novo may order, but, at the very least, having regard to the discrepancy in the Defendant’s bond expenses, I am of the view she is able to afford the present amount set out in the default order. Whether the Plaintiff truly “needs” such an amount is for the court hearing the Rule 43 application in due course to determine. It would thus be fair, and in the interest of justice, that the Defendant, having acted in such an inexcusable dilatory manner, continue to pay the maintenance in terms of the default order, including the contribution to costs, until such time as the Rule 43 application has been heard and determined in due course pursuant to the order I propose to make below. This shall constitute an appropriate panacea for any prejudice the Plaintiff is suffering and motivate the Defendant to play her part in ensuring that the divorce proceedings and all matters interlocutory thereto, are expeditiously disposed of. The remainder of the default order does not truly seem to be contentious and they can only benefit the minor child. Those orders shall accordingly not be set aside.

[31]       All then what remains is costs. The Plaintiff sought a punitive cost order and to hold the Defendant’s attorneys liable de bonis propriis, jointly and severally with the Defendant for such costs. The Defendant’s attitude to this application is, as I have said, inexcusable. Her attorney certainly did not appear to assist matters, but submitted that he was a creature of instructions. Attorneys should not heed instructions which are contrary to the interest of justice in achieving expedient judicial resolution of disputes. However, I am not convinced that there is sufficient facts before me that I am able to find that the Defendant’s attorney has failed to discharge his duties as an officer of court and I am not inclined to grant any order against him. The Defendant, on the other hand, especially being a Deputy Minister, should show this court and its procedures the necessary respect it deserves. The Defendant has acted dilatory and with scant regard to the expediency required to seek condonation. The Defendant’s papers are a mesh of prima facie bona fide allegations and patent omissions which suggest a lack of bona fides on the other hand. Her conduct is a clear example of conduct warranting this court’s censure. In Koetsier v SA Council of Town and Regional Planners  1987 (4) SA 735 (W) Goldstone J (as he then was) on behalf of the full bench put it succinctly as follows at 744J – 745A:

“Awards of attorney and client costs are used by the Court to mark its disapproval of some conduct which should be frowned upon.”

[32]       In the circumstances I make the following order:

1.            The application for condonation is granted;

2.            Paragraphs 4 and 5 of the order granted under the above case number on 27 February 2020 in favour of the Plaintiff (“the default order”) is set aside, however, the operation of such setting aside shall only be effective prospectively from the date when the Rule 43 application dated 11 November 2019 is heard de novo insofar as the questions of maintenance and contribution to costs are concerned and a new order granted in terms thereof;

3.            Until such time as the Rule 43 application dated 11 November 2019 is heard and a new order granted in terms thereof, the Defendant is ordered to:

a.    pay the arrear maintenance and contributions to costs by no later than 30 November 2020;

b.    pay the maintenance and contribution to costs as stipulated in terms of paragraphs 4 and 5 of the default order on the first day of every following month, commencing on 7 December 2020;

4.            The warrant of execution dated 9 March 2020, and any other warrants of execution in respect of the Defendant’s arrears are not set aside, but stayed only until 1 December 2020, whereafter they may be executed should the Defendant fail to comply with her obligations as stipulated in this order;

5.            The Defendant shall pay the costs of this application on the attorney and client scale.

H P VAN NIEUWENHUIZEN

Acting Judge of the High Court

Gauteng Division of the High Court, Pretoria

 

Delivered:       This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e mail and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 25 November 2020.

 

Date of hearing: 12 November 2020

Date of judgment: 25 November 2020

Appearances:

M M Labe Attorneys

Attorneys for the Applicant (Defendant)

Counsel for the Applicant (Defendant): Mr Labe (Attorney)

 

J W Wessels & Vennote Ing

Attorneys for the First Respondent (Plaintiff)

Counsel for the First Respondent (Plaintiff): A C Diamond

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