DRS v VGS (M 283/2018) [2020] ZANWHC 82 (12 March 2020)

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 NORTH WEST HIGH COURT, MAFIKENG

CASE NO: M 283/2018

In the matter between:

D[…] R[…] S[….]

Applicant

and

V[….] G[….] S[….]

Respondent

DATE

OF HEARING

: 27 FEBRUARY 2020

DATE

OF JUDGMENT

: 12 MARCH 2020

FOR

THE APPLICANT

: ADV. MONTSHIWA

FOR

THE RESPONDENTS

: MR. WESSELS

ORDER

(i) The application for rescission of the order/judgment granted on 27th September 2018, is dismissed.

(ii) The applicant (D[…] R[…] S[…]) is ordered to pay the costs of this rescission application.

JUDGMENT

HENDRICKS

DJP

[1] Mr. D[…] R[…] S[…] (applicant) was married to K[…] M[…] (KM) S[…]. Their marriage was dissolved by a decree of divorce granted by the then Central Divorce Court, Johannesburg on 24th November 1995. It was inter alia ordered that their joint estate be divided. Six (6) years later, during 2001, the applicant got married to V[…] G[…] S[….] (respondent), in community of property. This marriage lasted until 08th December 2016, when it too was dissolved by a decree of divorce granted by the Regional Court, Mogwase. It was also ordered inter alia that the joint estate of the parties, be divided.

[2] The joint estate of the parties consists of movable as well as an immovable property to wit House 1[…], M[…] D[…], Unit 4, Mogwase, where the parties resided before their separation and divorce. The respondent has in the meantime relocated but they are still in the process of giving effect to the divorce order. There is a body of correspondence between the respective sets of attorneys acting on behalf of the parties. No amicable settlement of the

division of the assets of the joint estate could however be reached.

[3] The respondent decided, in the absence of an amicable settlement, to instruct her attorneys to lodge an application for the appointment of a receiver/liquidator of the joint estate. The application was issued on the 25th July 2018. After a serious of postponements, the receiver/liquidator, Jacques Parsons, was appointed as per a court order. The Court Order is dated 27th September 2018 and reads thus:

“

IT

IS ORDERED

THAT 1: JACQUES PARSONS be and is hereby appointed as receiver of the joint estate of the parties with the following powers:-

(a) The liquidator or its sworn valuator/agent to gain access to the immovable property described as HOUSE 1394, Unit 4, Mogwase for the purpose pf valuation and marketing of the property;

(b) To sell the immovable property of the joint estate by public auction or private treaty;

(c) To pay any debts of the joint estate, including his own fees, and to divide the balance between the parties;

(d) To sign any documents on behalf of the parties which are required for the dale and transfer of immovable property of the joint estate;

(e) To prepare a detailed account of what he had done when the division is complete and furnish this to both parties.

THAT 2: The parties are directed to co-operate with the receiver in the carrying out of his functions.

THAT 3: The Respondent pay the costs of the application on Attorney client scale.”

[4] The applicant, although aware of the lodging of this application for the appointment of a receiver/liquidator by the respondent, did not opposed it timeously. Therefore, the requisite order was granted. When the applicant learned about the granting of this order, he instructed his attorneys to lodge an application for rescission of the order. Needless to say, this application is opposed by the respondent. The application ultimately served before this Court on 27th February 2020. After listening to the submissions by counsel, judgment was reserved.

[5] Initially the applicant raised in limine the point that the Notice of Intention to Oppose as well as the answering affidavit of the respondent was filed out of time. The application for condonation in respect thereof was initially opposed but such was abandoned during oral argument by Adv. Montshiwa, who appeared on behalf of the applicant. The merits of the application was argued. The contention was whether an order for the

appointment of a receiver/liquidator was warranted as well as a punitive costs order.

[6] It is quite apparent from the plethora of correspondence between the two sets of attorneys that a solution with regard to the division of the assets of the joint estate could not be reached. Apart from the movable assets, the immovable property is a bone of serious contention. The respondent allege that she is ex lege entitled to 50% of the assets of the joint estate which include her half-share of the immovable property.

[7] The applicant on the other hand contend that the house forms part of the joint estate between him and his former wife KM. That estate remains undivided since 24th November 1995. Therefore, so it was further contended, is the respondent only entitled to 25% (that is half of his half-share) of the house. The applicant also raised the point of non-joinder of KM, because she has a vested interest in this matter. This need closer examination.

[8] The applicant and KM got divorced on 25th November 1995. In terms of the “Windeed” point-out that the applicant attached to his founding affidavit, the property (house) is registered in his name only and not in the joint names of him and KM. The date of registration of the house in the applicant’s name is 07th April 1997, more than 1 year and 4 months

AFTER his divorce with KM.

[9] To this, the applicant contended that the said house was acquired by him and KM during the subsistence of their marriage but only registered subsequently. This contention does not hold any water. No confirmatory affidavit of KM was obtained in this regard. This contention is therefore unconfirmed and is gainsaid by the “Windeed” point-out of the registration in the name of the applicant on 07th April 1997. The acquisition of this house was before the applicant and the respondent’s marriage during 2001. Therefore, it forms part of their joint estate since they were married in community of property.

[10] The applicant and KM divorced on 24th November 1995 which is more than 24 years ago. It defies all logic that their estate is not yet finally divided after a passage of more than 24 years. This is to say the least unacceptable. Without any stretch of the imagination, any possible claim that KM might have had in the house, expired due to the effluxion of time. It therefore makes perfectly sense that KM sent a message with her son when she was invited to a meeting with respondent’s attorney, that she is not interested. Perhaps because she knows that the acquisition of the house happened subsequent to their divorce and/or that due to the passage of time she is not interested and therefore does not want to have anything to do with this house. I am of the view that KM does not have a vested interest in this matter and should not have been joint. The argument about the non –joinder of KM is therefore unmeritorious.

[11] The applicant does not say that the respondent does not have any right or title to the house. Infact he states that’s she is entitled to half of his half-share of the house. That in itself is indicative of the fact that the respondent is entitled to share in the proceeds of the house. The question is just how much is she entitled to.

[12] It is quite obvious that the parties cannot agree on the division of the joint estate. The appointment of the receiver/ liquidator of the assets of the joint estate is therefore necessary. The applicant contended that the respondent’s application for the appointment of a receiver/ liquidator was premature as the parties could reach a settlement with regard to the division of the assets of the joint estate. This is not a feasible option since the parties could not between 08th December 2016 (date of divorce) and 27th September 2018 (date of court order for the appointment of the receiver/ liquidator) reach a settlement.

[13] The respondent contended that this is nothing but a delaying tactic employed by the applicant in an attempt to frustrate her. Furthermore, to cheat her out of 25% of her entitlement so that he can have 75% of the value of the house. He is after all still staying in the house and enjoy the exclusive benefit thereof. There is merit in this contention by the respondent. Although the applicant acquired the house before getting married to the respondent, the marriage in community of property entitled her to her half-share of the house. Perhaps, the applicant intends to delay the finalization of the division of the estate including the house also for 24 years, as was the case with KM. This is unacceptable. The divorce is finalised and

so too must the division of the assets of the joint estate be finalized as soon as possible.

[14] It is clear that service of the application was effected upon him by the Sheriff on 06th September 2018. He arrange a consultation with his attorney on 16th September 2018. The attorney could not honour the appointment and they only managed to consult on 19th September 2018. The correspondent attorney in Mahikeng was only instructed telephonically on 26th September 2018. A notice to oppose was only filed with the court on 28th September 2018, a day after the order was granted.

[15] The applicant, on his own version, became aware of the order on 01 October 2018. The Notice of Motion for rescission of the order/judgment was issued on 19th February 2019. Taking into account the dies non, this application was filed and served 86 court days after the applicant became aware of it. This is 66 court days after the passage

of the 20 days in which the applicant was supposed to file his Notice to Oppose in terms of the Rules of Court. The delay is indeed

excessive and not properly explained. The applicant applies for condonation for the late filing of his notice to oppose, application

for rescission and founding affidavit.

[16] Condonation is not for the mere asking. It is incumbent upon an applicant in an application for condonation to prove that (s)he / it did not wilfully disregard the timeframes provided for in the Rules of Court. Furthermore, that there are reasonable prospects of success on appeal. In Melane v Southern Insurance Co Ltd 1962 (4) SA 531 (AD) at page 532 B-E, the following is stated about the factors that will be taken into account when considering a condonation application:

“In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.”

[17] In S v Mantsha 2009 (1) SACR 414 (SCA) the following is stated:

“[5] … As the appellant was seeking an indulgence, he was required to show good cause for condonation to be granted. Good (or sufficient) cause has two requirements. The first is that the applicant must furnish a satisfactory and acceptable explanation for the delay. Secondly, he or she must show that he or she has reasonable prospects of success on the merits of the appeal.

[11] In considering an application for condonation a court must take into account a number of considerations. These include the extent of non-compliance and the explanation given for it; the prospects of success on the merits; the importance of the case; the respondent’s interest in the finality of the judgment; the convenience of the court and the avoidance of unnecessary delay in the administration of justice.”

[18] In Mabaso v Law Society, Northern Provinces and Another [2004] ZACC 8; 2005 (2) SA 117 (CC) at paragraph [20] the following is stated:

“[20] The rules of the SCA provide that it may condone the failure to comply with its rules, and condonation will ordinarily only be granted when sufficient cause is shown. It is trite law that a court considering whether or not to grant condonation exercises a discretion. The discretion must, of course, be exercised judicially on a consideration of all the facts and “in essence it is a matter

of fairness to both sides.” It is clear that the SCA may decide an application for condonation without considering the merits of the case, though it does so only where there is a gross and flagrant failure to comply with its rules.

“merely because the Court of appeal would itself, on the facts of the matter before the lower court, have come to a different conclusion; it may interfere only when it appears that the lower court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.””

[19] In Mogorosi v S [2010] ZASCA 147 it is stated:

“[8] A court considering an application for condonation must take into account a range of considerations. Relevant considerations include the extent of non-compliance and the explanation given for it; the prospects of success on the merits; the importance of the case; the respondent's interest in the finality of the judgment; the convenience of the court and the avoidance of unnecessary delay in the administration of justice. (See S v Di Blasi 1996 (1) SACR 1 (A) at 3g.)

[10] Even allowing for the fact that the appellant acted in person at some stages in the prosecution of his appeal that can hardly compensate for the fundamental lacunae in his application. For as Heher JA pointed out in Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) ‘condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and its effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility’. That did not happen in this case. The appellant’s affidavit, notwithstanding that he was legally represented when it was drafted, failed to heed Heher JA’s admonition. In my view it is opaque and singularly unhelpful in explaining the long delay.

[11] The court below considered all of the facts. It concluded that the delay of seven years in prosecuting the appeal was inordinately long and inexcusable and thus could not be condoned. I can find no fault in the approach adopted by court below or the conclusion reached by it. No case has been made out for this court to substitute its discretion for that of the court below. There is thus no warrant for us to do so. It follows that the appeal must fail and it is accordingly dismissed.”

[20] In Mathibela v S [2017] ZASCA 162 the following is stated:

“[9] As was the case in Mulaudzi, as is apparrent, the founding affidavit is singularly unhelpful in explaining the long delay. The explanation is not in the least satisfactory. Even worse, no explanation was provided for the third application for condonation and reinstatement of the appeal. This delay is unreasonable and there is no cogent explanation for it. It remains to consider whether the prospects of success on the merits justify the granting of condonation.”

[21] In Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) the following in stated:

“[6] 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 the 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.”

[22] The applicant contended that the judgment granted by default should be rescinded in terms of either Rule 31 (2) (b) alternatively Rule 42 (1) (a) alternatively the common law.

See: Webster v Mitchell 1948 (1) SA 1186 (W) 1189;

Ndauti v Kgami 1948 (2) All SA 199 (W); 1948 (3) SA 27 (W);

LF Boshoff Investments (Pty) Ltd v Cape Town Municipality, Cape Town Municipality v LF Boshoff Investments (Pty) Ltd 1969 (1) SA 430 (C) 1961 (2) SA 256 (C) at 267;

Simon v Air Operations of Europe AB [1998] ZASCA 79; 1998 (4) All SA 573 (A) at 581; 1991 (1) SA 217 (SCA) at 228.

Matthews v Matthews 1936 TPD 124;

Miller v Spamer 1948 (3) All SA 543; 1948 (3) SA 772 (C) 778; UDC Bank Ltd v Seacat Leasing and Finance Co (Pty) Ltd 1979 (4) All SA 825 (T); 1979 (4) SA 682 (T).

Godbole v Thomson 1970 (1) All SA 218 (D); 1970 (1) SA 61(D) at 63 D;

[23] In Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape (127/2002) [2003] ZASCA 36; [2003] 2 All SA 113 (SCA) (31 March 2003) the following is stated in paragraph [7]:

“[7] Rule 42 is confined by its wording and context to the rescission or variation of an ambiguous order or an order containing a patent error or omission (rule 42(1)(b)); or an order resulting from a mistake common to the parties (rule 42(1)(c); or ‘an order erroneously sought or erroneously granted in the absence of a party affected thereby’ (rule 42(1)(a)). In the present case the application was, as far the rule is concerned, only based on rule 42(1)(a) and the crisp question is whether the judgment was erroneously granted.”

[24] In paragraph [11] of the Colyn judgment, supra, the following is stated:

“[11] I turn now to the relief under the common law. In order to succeed an applicant for rescission of a judgment taken against him by default must show good cause (De Wet and others v Western Bank Ltd supra). The authorities emphasize that it is unwise to give a precise meaning to the term good cause. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait:

‘When dealing with words such as "good cause" and "sufficient cause" in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns' Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The Court's discretion must be exercised after a proper consideration of all the relevant circumstances.’

With that as the underlying approach the courts generally expect an applicant to show good cause (a) by giving a reasonable explanation

of his default; (b) by showing that his application is made bona fide; and (c) by showing that he has a bona fide defence to the plaintiff's claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal.)”

[25] In the application for rescission of the order/judgment for the appointment of a receiver/liquidator, the applicant does not raise any defence against the appointment of Jacques Parsons as receiver/liquidator. Nor is there any attack launched with regard to the powers of the receiver/liquidator. In essence, no complaint is raised against the appointment of the receiver/liquidator except to state that the appointment is premature as the parties can sit around a table (round table conference) and settle the matter in order to save costs. This is however not do able. The intended settlement cannot be agreed upon. Therefore, the appointment of the receiver/liquidator was necessary.

[26] The order/judgment granted for the appointment of a receiver/liquidator was not erroneously sought or granted in the absence of applicant, in terms of Rule 42 (1) (a). It was also not fraudulently granted or granted by mistake common to both parties. Furthermore, the applicant did not show good cause by proving that he has a bona fide defence in terms of Rule 31 (2) (b) and/or the common law. The application for rescission of the order/judgment can therefore not succeed.

[27] The awarding of a cost order is in the sole discretion of the presiding officer. The court ordered that costs be paid on the punitive scale as between attorney and client. The conduct of the applicant in delaying the finalization of the division of the assets of the joint estate is indeed unreasonable. The applicant admit that the respondent has a right and is entitled to share in the proceeds of the house, whether on a 50-50 basis or less (he contend that she must share with him in his 50% interest in the house). Despite this, he is not eager to settle the matter.

[28] Now that a receiver/liquidator of the assets of the joint estate is appointed, he say that the respondent had prematurely applied for such appointment. This, once again, despite the fact that they can’t reach a settlement. The applicant approbate and reprobate. This in my view is done to delay the division of the assets of the joint estate and to frustrate the respondent. The conduct of the applicant is reprehensible. Like with the application for appointment of a receiver/liquidator, the conduct of the applicant in this rescission application leaves much to be desired. The costs order granted on 27th September 2018, as well as the other orders granted, should not be disturbed nor rescinded.

Order

[29] Consequently, the following order is made:

___

R D HENDRICKS

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES:

DATE

OF HEARING

: 27 FEBRUARY 2020

DATE

OF JUDGMENT : 12 MARCH 2020

FOR

THE APPELLANT :

SETSHEDI MAKGALE &

MATLAPENG

ATT

TEL: 018 384 0138

COUNSEL FOR THE APPLICANT: ADV. MONTSHIWA

FOR

THE RESPONDENT

: VAN

ROOYEN TLHAPI

WESSELS ATT

018 381 0804

COUNSEL FOR THE RESPONDENTS : ADV. CHULU