T.A.M v M.F.M (1275/2021) [2022] ZAFSHC 129 (12 May 2022)

T.A.M v M.F.M (1275/2021) [2022] ZAFSHC 129 (12 May 2022)

The court found that the applicant failed to provide a satisfactory and detailed explanation for the seven-month delay in bringing the rescission application. The founding affidavit did not address the period of inactivity after the last correspondence in July 2021, nor did it explain the delay in obtaining supporting documents. The attempt to address the delay in the replying affidavit was inadequate and lacked necessary detail. The court held that condonation was required even under common law, and the applicant did not make out a case for such indulgence. Without a reasonable and acceptable explanation for the delay, the prospects of success were immaterial. Accordingly, the...

Citation
[2022] ZAFSHC 129
Parties
Applicant: T[....] A[....] M[....]; Respondent: M[....]2 F[....] M[....]
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 May 2022
Case Number
1275/2021
Procedural Posture
Urgent Application / Application for Rescission of Default Divorce Order
Outcome
Application for rescission dismissed with costs.
Judges
Africa AJ
Legal Topics
Rescission of Judgment, Default Divorce Order, Condonation, Reasonable Time Requirement, Division of Joint Estate, Spousal Maintenance
Civil Procedure Family and Children Rescission of Judgment Default Divorce Order Condonation Reasonable Time Requirement Division of Joint Estate Spousal Maintenance

Case Brief

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Parties

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

Applicant

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

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Divorce Order

Legal Issues

  1. 1 Whether the applicant provided a reasonable and satisfactory explanation for his default in defending the divorce action.
  2. 2 Whether the rescission application was brought within a reasonable time as required by common law.
  3. 3 Whether condonation for the late filing of the rescission application should be granted.

Ratio Decidendi

The court found that the applicant failed to provide a satisfactory and detailed explanation for the seven-month delay in bringing the rescission application. The founding affidavit did not address the period of inactivity after the last correspondence in July 2021, nor did it explain the delay in obtaining supporting documents. The attempt to address the delay in the replying affidavit was inadequate and lacked necessary detail. The court held that condonation was required even under common law, and the applicant did not make out a case for such indulgence. Without a reasonable and acceptable explanation for the delay, the prospects of success were immaterial. Accordingly, the...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The second point in limine is upheld.
  • The application for rescission is dismissed with costs.