Routier v Routier (A5048/2018) [2019] ZAGPJHC 452 (24 October 2019)

Routier v Routier (A5048/2018) [2019] ZAGPJHC 452 (24 October 2019)

The court found that the respondent was not in wilful default, as he was unaware of the hearing due to service on attorneys who were no longer practising. The affidavits filed did not constitute evidence 'led' in the sense required by the authorities, as there was no appearance or argument from the respondent, and no decision was made as to the truth of disputed facts. The stringent test for rescission following judgment on the merits was not applicable. Instead, the respondent was entitled to rescission upon showing good cause, which he did by providing a satisfactory explanation for his absence and setting out a bona fide defence. The refusal of the rescission application by the court a...

Citation
[2019] ZAGPJHC 452
Parties
Appellant: Robert Jean Routier; Respondent: Sharon Ann Routier
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 October 2019
Case Number
A5048/2018
Procedural Posture
Civil Appeal / Appeal Against Refusal of Rescission Application
Outcome
Appeal upheld; rescission application granted; main application order set aside.
Judges
C.G. Lamont, E.F. Dippenaar
Legal Topics
Rescission of Judgment, Default Judgment, Matrimonial Proceedings, Good Cause Requirement
Civil Procedure Family and Children Rescission of Judgment Default Judgment Matrimonial Proceedings Good Cause Requirement

Case Brief

Summary, issues, holding and outcome

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Parties

Robert Jean Routier

Appellant

Sharon Ann Routier

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Rescission Application

Legal Issues

  1. 1 Whether the respondent was in wilful default when judgment was granted in his absence.
  2. 2 Whether the requirements for rescission of judgment under common law were met.
  3. 3 Whether evidence was 'led' in the main application, triggering a more stringent test for rescission.

Ratio Decidendi

The court found that the respondent was not in wilful default, as he was unaware of the hearing due to service on attorneys who were no longer practising. The affidavits filed did not constitute evidence 'led' in the sense required by the authorities, as there was no appearance or argument from the respondent, and no decision was made as to the truth of disputed facts. The stringent test for rescission following judgment on the merits was not applicable. Instead, the respondent was entitled to rescission upon showing good cause, which he did by providing a satisfactory explanation for his absence and setting out a bona fide defence. The refusal of the rescission application by the court a...

Court Disposition

Appeal upheld; rescission application granted; main application order set aside.

Orders

  • The appeal succeeds.
  • The costs of appeal shall be costs in the cause of the main application.