M v M (5710/2010) [2014] ZAFSHC 170 (5 September 2014)

M v M (5710/2010) [2014] ZAFSHC 170 (5 September 2014)

The court found that the applicant acted within a reasonable time after learning of the default divorce order and demonstrated a bona fide intention to contest the custody and patrimonial consequences. The delay was not inordinate, considering the applicant's indigence and reliance on Legal Aid, which resulted in multiple attorneys handling her matter. The respondent was aware of the pending litigation before his remarriage and could have set the matter down for hearing. The applicant showed a prima facie triable issue regarding custody and forfeiture, supported by her actions and the Family Advocate's report. The court held that rescission of only the custody and forfeiture orders was...

Citation
[2014] ZAFSHC 170
Parties
Applicant: Sisinyane Abigail Majaphage; Respondent: Gabokganenwe Klaas Majaphage
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 September 2014
Case Number
5710/2010
Procedural Posture
Rescission Application / Application for Rescission of Divorce Order and Condonation
Outcome
Application for rescission and condonation granted in part; custody and forfeiture orders set aside, divorce order remains intact.
Judges
Motloung
Legal Topics
Divorce Order Rescission, Custody of Minor Child, Forfeiture of Benefits, Condonation of Late Filing
Family and Children Civil Procedure Divorce Order Rescission Custody of Minor Child Forfeiture of Benefits Condonation of Late Filing

Case Brief

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Parties

Sisinyane Abigail Majaphage

Applicant

Gabokganenwe Klaas Majaphage

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Divorce Order and Condonation

Legal Issues

  1. 1 Whether the applicant has shown good cause for rescission of the default divorce order granted in her absence.
  2. 2 Whether the delay in launching and prosecuting the rescission application should be condoned.
  3. 3 Whether the applicant has a bona fide defence regarding custody of the minor child and forfeiture of benefits.

Ratio Decidendi

The court found that the applicant acted within a reasonable time after learning of the default divorce order and demonstrated a bona fide intention to contest the custody and patrimonial consequences. The delay was not inordinate, considering the applicant's indigence and reliance on Legal Aid, which resulted in multiple attorneys handling her matter. The respondent was aware of the pending litigation before his remarriage and could have set the matter down for hearing. The applicant showed a prima facie triable issue regarding custody and forfeiture, supported by her actions and the Family Advocate's report. The court held that rescission of only the custody and forfeiture orders was...

Court Disposition

Application for rescission and condonation granted in part; custody and forfeiture orders set aside, divorce order remains intact.

Orders

  • The order granted on 23 December 2010 is in part set aside, save for the order in paragraph 1 thereof regarding the decree of divorce.
  • The applicant is granted leave to defend the action under case number 5710/2010.