S.P.M v L.M (Born M) (56859/2021) [2024] ZAGPPHC 729 (2 August 2024)

S.P.M v L.M (Born M) (56859/2021) [2024] ZAGPPHC 729 (2 August 2024)

The applicant failed to provide a reasonable and bona fide explanation for his default, as his and his attorney's versions regarding the absence of counsel were contradictory and implausible. The applicant did not set out any bona fide defence to the respondent's claim, which is fatal to his rescission application. The orders were not granted in the applicant's absence due to procedural irregularity, but rather due to his attorney's failure to properly brief counsel, which is attributable to the applicant. The requirements for rescission under Rule 31(2) and Rule 42(1)(a) were not met. Accordingly, both the application for rescission of the order of 16 November 2022 and the application...

Citation
[2024] ZAGPPHC 729
Parties
Applicant: S[...] P[...] M[...]; Respondent: L[...] M[...] (Born M[...])
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 August 2024
Case Number
56859/2021
Procedural Posture
Urgent Application / Application for Rescission of Previous Orders in Divorce Proceedings
Outcome
Both applications for rescission are dismissed with costs.
Judges
Gwala AJ
Legal Topics
Rescission of Judgment, Rule 27 Application, Rule 31 2 Default Judgment, Rule 42 1 a Error, Forfeiture of Matrimonial Benefits, Divorce Proceedings
Civil Procedure Family and Children Rescission of Judgment Rule 27 Application Rule 31 2 Default Judgment Rule 42 1 a Error Forfeiture of Matrimonial Benefits Divorce Proceedings

Case Brief

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Parties

S[...] P[...] M[...]

Applicant

L[...] M[...] (Born M[...])

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Previous Orders in Divorce Proceedings

Legal Issues

  1. 1 Whether the applicant has shown good cause for rescission of the order dismissing his Rule 27 application.
  2. 2 Whether the applicant is entitled to rescission of the divorce judgment and forfeiture order granted on 21 February 2023.
  3. 3 Whether the applicant's absence and his attorney's conduct constitute reasonable explanation for default.

Ratio Decidendi

The applicant failed to provide a reasonable and bona fide explanation for his default, as his and his attorney's versions regarding the absence of counsel were contradictory and implausible. The applicant did not set out any bona fide defence to the respondent's claim, which is fatal to his rescission application. The orders were not granted in the applicant's absence due to procedural irregularity, but rather due to his attorney's failure to properly brief counsel, which is attributable to the applicant. The requirements for rescission under Rule 31(2) and Rule 42(1)(a) were not met. Accordingly, both the application for rescission of the order of 16 November 2022 and the application...

Court Disposition

Both applications for rescission are dismissed with costs.

Orders

  • The application for rescission of the order of 16 November 2022 is dismissed.
  • The application for rescission of the judgment and order of 21 February 2023 is dismissed.