D.V.L v N.B.M (Born L) and Another (2579/2010) [2014] ZAGPPHC 1005 (20 November 2014)

D.V.L v N.B.M (Born L) and Another (2579/2010) [2014] ZAGPPHC 1005 (20 November 2014)

The court found that the applicant failed to establish grounds for rescission under common law, as she did not demonstrate that the judgment was obtained by fraud or iustus error. The omission of facts regarding the alleged customary marriage was not attributed to the respondent or the court, but rather to the applicant's own failure to include them in her affidavit. The court held that even if her attorney negligently omitted these facts, the applicant must bear the consequences. The application for condonation was granted as it was unopposed, but the rescission application and the request for an order declaring the marriage valid were dismissed with costs.

Citation
[2014] ZAGPPHC 1005
Parties
Applicant: D[...] V[...] L[...]; Respondent: N[...] B[...] M[...] (Born L[...]); Respondent: Department of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 November 2014
Case Number
2579/2010
Procedural Posture
Rescission Application / Opposed Application for Rescission of Judgment
Outcome
Application for rescission of judgment and for declaration of marriage validity dismissed with costs.
Judges
Modiba
Legal Topics
Rescission of Judgment, Customary Marriage, Condonation, Nullity of Marriage
Civil Procedure Family and Children Rescission of Judgment Customary Marriage Condonation Nullity of Marriage

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

D[...] V[...] L[...]

Applicant

N[...] B[...] M[...] (Born L[...])

Respondent

Department of Home Affairs

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of Judgment

Legal Issues

  1. 1 Whether the rescission application was brought within a reasonable time.
  2. 2 Whether the order declaring the applicant's marriage to the deceased null and void was granted as a result of fraud or iustus error.

Ratio Decidendi

The court found that the applicant failed to establish grounds for rescission under common law, as she did not demonstrate that the judgment was obtained by fraud or iustus error. The omission of facts regarding the alleged customary marriage was not attributed to the respondent or the court, but rather to the applicant's own failure to include them in her affidavit. The court held that even if her attorney negligently omitted these facts, the applicant must bear the consequences. The application for condonation was granted as it was unopposed, but the rescission application and the request for an order declaring the marriage valid were dismissed with costs.

Court Disposition

Application for rescission of judgment and for declaration of marriage validity dismissed with costs.

Orders

  • The application for condonation for the late filing of the rescission application is granted.
  • The application for the rescission of judgment granted by Makgoka J on 14 November 2011 is dismissed with costs.