Rowe v Rowe (105/96) [1997] ZASCA 54; 1997 (4) SA 160 (SCA); [1997] 3 All SA 503 (A); (27 May 1997)

Rowe v Rowe (105/96) [1997] ZASCA 54; 1997 (4) SA 160 (SCA); [1997] 3 All SA 503 (A); (27 May 1997)

The Supreme Court of Appeal held that the exception to the main claim could not succeed on the grounds pleaded. The fact that the divorce order was granted by consent in terms of a settlement agreement distinguishes the case from Florence v Florence. Fraud perpetrated on the court, even if extra-judicial, is a valid ground for rescission if it induced the court to grant an order it would not otherwise have made. The alternative claim for enrichment is a discrete cause of action and is not dependent on rescission of the divorce order. The exception rei judicatae does not apply as the facts alleged in the alternative claim were not adjudicated in the divorce proceedings. The appeal was...

Citation
[1997] ZASCA 54
Parties
Appellant: Gregory Stewart Rowe; Respondent: Catharina Jacoba Rowe
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 1997
Case Number
105/96
Procedural Posture
Civil Appeal / Appeal Against Upholding of Exception and Dismissal of Claim
Outcome
Appeal upheld; exception dismissed with costs.
Judges
Hefer, Vivier, Nienaber, Olivier, Streicher
Legal Topics
Fraudulent Misrepresentation, Rescission of Judgment, Exception to Pleadings, Maintenance Claim, Custody of Minors
Family and Children Civil Procedure Fraudulent Misrepresentation Rescission of Judgment Exception to Pleadings Maintenance Claim Custody of Minors

Case Brief

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Parties

Gregory Stewart Rowe

Appellant

Catharina Jacoba Rowe

Respondent

Procedural Posture

Civil Appeal / Appeal Against Upholding of Exception and Dismissal of Claim

Legal Issues

  1. 1 Whether a party who procured a judgment by fraud is entitled to have it rescinded on the ground of the other party's fraud.
  2. 2 Whether the absence of a specific prayer for rescission in the particulars of claim is fatal to the main claim.
  3. 3 Whether the alternative claim for enrichment is dependent on the rescission of the divorce order.

Ratio Decidendi

The Supreme Court of Appeal held that the exception to the main claim could not succeed on the grounds pleaded. The fact that the divorce order was granted by consent in terms of a settlement agreement distinguishes the case from Florence v Florence. Fraud perpetrated on the court, even if extra-judicial, is a valid ground for rescission if it induced the court to grant an order it would not otherwise have made. The alternative claim for enrichment is a discrete cause of action and is not dependent on rescission of the divorce order. The exception rei judicatae does not apply as the facts alleged in the alternative claim were not adjudicated in the divorce proceedings. The appeal was...

Court Disposition

Appeal upheld; exception dismissed with costs.

Orders

  • The exception is dismissed with costs.