Chiloane v Chiloane (27836/06) [2007] ZAGPHC 183 (7 September 2007)

Chiloane v Chiloane (27836/06) [2007] ZAGPHC 183 (7 September 2007)

The court found that the applicant was in wilful default in both instances, having failed to oppose the motion and subsequently failing to appear for the rescission application. The principle of finality in litigation requires certainty regarding court orders, but the absence of a settlement agreement or court order regarding the division of the joint estate and pension interest justified the respondent's application. The court held that section 7(8) of the Divorce Act empowers it to make an order regarding pension interest after divorce, even if not addressed during the divorce proceedings. The orders obtained by default were set aside and substituted to ensure equitable division of the...

Citation
[2007] ZAGPHC 183
Parties
Applicant: Goodman Chiloane; Respondent: Kedibone Patricia Chiloane
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
7 September 2007
Case Number
27836/06
Procedural Posture
Review Application / Application to Rescind or Vary Previous Default Orders
Outcome
The application to rescind and vary the previous orders is granted. The order of 23 November 2006 is set aside and the order of 27 September 2006 is varied and substituted.
Judges
Raulinga
Legal Topics
Division of Joint Estate, Pension Interest, Default Judgment, Rescission of Order, Rule 42, Divorce Act Section 7
Family and Children Civil Procedure Division of Joint Estate Pension Interest Default Judgment Rescission of Order Rule 42 Divorce Act Section 7

Case Brief

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Parties

Goodman Chiloane

Applicant

Kedibone Patricia Chiloane

Respondent

Procedural Posture

Review Application / Application to Rescind or Vary Previous Default Orders

Legal Issues

  1. 1 Whether the orders of 27 September 2006 and 23 November 2006 should be rescinded or varied.
  2. 2 Whether the court can award a portion of the pension interest of the applicant to the respondent after divorce.
  3. 3 Whether the respondent is entitled to half of the applicant's pension interest under section 7(8)(a) of the Divorce Act.

Ratio Decidendi

The court found that the applicant was in wilful default in both instances, having failed to oppose the motion and subsequently failing to appear for the rescission application. The principle of finality in litigation requires certainty regarding court orders, but the absence of a settlement agreement or court order regarding the division of the joint estate and pension interest justified the respondent's application. The court held that section 7(8) of the Divorce Act empowers it to make an order regarding pension interest after divorce, even if not addressed during the divorce proceedings. The orders obtained by default were set aside and substituted to ensure equitable division of the...

Court Disposition

The application to rescind and vary the previous orders is granted. The order of 23 November 2006 is set aside and the order of 27 September 2006 is varied and substituted.

Orders

  • Mr M K Malema of Malema, Musi & Partners is appointed liquidator and authorised to take all steps necessary for the sale and transfer of the common marital home at 2 Chestnut Ave, Heuweloord Extension 2, Centurion, Pretoria.
  • The applicant is ordered to hand the keys of the property to the liquidator immediately upon service of this order and to allow unrestrained access for sale and transfer.