N.Q.M v N.W.M and Another (2018/39527) [2022] ZAGPJHC 5 (3 January 2022)

N.Q.M v N.W.M and Another (2018/39527) [2022] ZAGPJHC 5 (3 January 2022)

The applicant provided a detailed and credible explanation for the delay in filing her amended plea and conditional counterclaim, including difficulties in obtaining court records, COVID-19 lockdown disruptions, and administrative errors. The court found no reckless or intentional disregard of the rules. The applicant demonstrated a bona fide defence by relying on the divorce order, which granted forfeiture of benefits in her favour, thereby making her the sole owner of the property. The court held that the divorce order cannot be ignored and precludes equal division of the joint estate, as the granting court was satisfied that such division would unduly benefit the first respondent. The...

Citation
[2022] ZAGPJHC 5
Parties
Applicant: N.Q.M; Respondent: N.W.M; Respondent: Registrar of Deeds Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 January 2022
Case Number
2018/39527
Procedural Posture
Civil Application / Application to Uplift Bar and Extend Time for Amended Plea and Counterclaim
Outcome
The application to uplift the bar is granted. The applicant is ordered to pay the costs of the application.
Judges
F Karachi
Legal Topics
Upliftment of Bar, Forfeiture of Benefits, Divorce Act Section 9, Amended Plea, Conditional Counterclaim
Civil Procedure Family and Children Upliftment of Bar Forfeiture of Benefits Divorce Act Section 9 Amended Plea Conditional Counterclaim

Case Brief

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Parties

N.Q.M

Applicant

N.W.M

Respondent

Registrar of Deeds Johannesburg

Respondent

Procedural Posture

Civil Application / Application to Uplift Bar and Extend Time for Amended Plea and Counterclaim

Legal Issues

  1. 1 Whether the applicant has shown good cause for the upliftment of the bar to file an amended plea and conditional counterclaim.
  2. 2 Whether the applicant has provided a sufficient explanation for the delay and demonstrated a bona fide defence.
  3. 3 Whether the order for forfeiture of benefits in the divorce precludes equal division of the joint estate.

Ratio Decidendi

The applicant provided a detailed and credible explanation for the delay in filing her amended plea and conditional counterclaim, including difficulties in obtaining court records, COVID-19 lockdown disruptions, and administrative errors. The court found no reckless or intentional disregard of the rules. The applicant demonstrated a bona fide defence by relying on the divorce order, which granted forfeiture of benefits in her favour, thereby making her the sole owner of the property. The court held that the divorce order cannot be ignored and precludes equal division of the joint estate, as the granting court was satisfied that such division would unduly benefit the first respondent. The...

Court Disposition

The application to uplift the bar is granted. The applicant is ordered to pay the costs of the application.

Orders

  • The bar is uplifted.
  • The time period for delivery of the applicant's amended plea and conditional counterclaim is extended for a period of 5 days from 17 January 2022.