M v M (1275/2021) [2022] ZAFSHC 185 (26 July 2022)

M v M (1275/2021) [2022] ZAFSHC 185 (26 July 2022)

The court found that the applicant failed to provide a full, detailed, and accurate account for the delay of nearly seven months in bringing the rescission application. The founding affidavit did not adequately explain the period after the last correspondence, nor did it establish that the applicant was awaiting the Valuation Report. The court held that, in the absence of a reasonable explanation for the delay, the prospects of success are immaterial. The 20-day period prescribed by Rule 31(2)(b) was used as guidance, not as an overriding factor. The applicant did not disclose a bona fide defence in the founding affidavit. Consequently, the court was not persuaded that another court would...

Citation
[2022] ZAFSHC 185
Parties
Applicant: T[....] A[....] M[....]1; Respondent: M[....]2 F[....] M[....]1
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 July 2022
Case Number
1275/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
Africa
Legal Topics
Leave to Appeal, Rescission of Judgment, Reasonable Time Requirement, Condonation, Bona Fide Defence
Civil Procedure Family and Children Leave to Appeal Rescission of Judgment Reasonable Time Requirement Condonation Bona Fide Defence

Case Brief

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Parties

T[....] A[....] M[....]1

Applicant

M[....]2 F[....] M[....]1

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the applicant has shown reasonable prospects of success for leave to appeal.
  2. 2 Whether the delay in bringing the rescission application was adequately explained.
  3. 3 Whether the application for rescission was brought within a reasonable time.

Ratio Decidendi

The court found that the applicant failed to provide a full, detailed, and accurate account for the delay of nearly seven months in bringing the rescission application. The founding affidavit did not adequately explain the period after the last correspondence, nor did it establish that the applicant was awaiting the Valuation Report. The court held that, in the absence of a reasonable explanation for the delay, the prospects of success are immaterial. The 20-day period prescribed by Rule 31(2)(b) was used as guidance, not as an overriding factor. The applicant did not disclose a bona fide defence in the founding affidavit. Consequently, the court was not persuaded that another court would...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal to the full bench of this division against the judgment granted on 21 April 2022 is dismissed with costs.