Togo v Molabe and Another (29059/2014) [2016] ZAGPPHC 666 (26 July 2016)

Togo v Molabe and Another (29059/2014) [2016] ZAGPPHC 666 (26 July 2016)

The court found that the divorce order was erroneously granted on an unopposed basis despite the applicant's clear intention to oppose, and that the respondent should not have proceeded without addressing the defective service. Although there was no conclusive evidence that the notice of intention to oppose was in the court file, the applicant established good cause for rescission by showing a prima facie defence to the proprietary relief and providing a reasonable explanation for her default and delay. The court determined that only the proprietary consequences of the divorce order should be set aside, leaving the decree of divorce intact, in line with precedent. The applicant was...

Citation
[2016] ZAGPPHC 666
Parties
Applicant: Matepe Mildred Togo; Respondent: Paladi Piet Molabe; Respondent: Eskom Pension Provident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 July 2016
Case Number
29059/2014
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Divorce Order
Outcome
Application for rescission granted in part; proprietary consequences of the divorce order set aside, decree of divorce remains intact.
Judges
S.M Wentzel
Legal Topics
Rescission of Judgment, Service of Process, Division of Joint Estate, Spousal Maintenance, Maintenance of Children
Civil Procedure Family and Children Rescission of Judgment Service of Process Division of Joint Estate Spousal Maintenance Maintenance of Children

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Parties

Matepe Mildred Togo

Applicant

Paladi Piet Molabe

Respondent

Eskom Pension Provident Fund

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Divorce Order

Legal Issues

  1. 1 Whether the applicant is entitled to rescission of the divorce order granted by default.
  2. 2 Whether defective service of the notice of intention to oppose justified the granting of the order.
  3. 3 Whether the proprietary consequences of the divorce order should be set aside while leaving the decree of divorce intact.

Ratio Decidendi

The court found that the divorce order was erroneously granted on an unopposed basis despite the applicant's clear intention to oppose, and that the respondent should not have proceeded without addressing the defective service. Although there was no conclusive evidence that the notice of intention to oppose was in the court file, the applicant established good cause for rescission by showing a prima facie defence to the proprietary relief and providing a reasonable explanation for her default and delay. The court determined that only the proprietary consequences of the divorce order should be set aside, leaving the decree of divorce intact, in line with precedent. The applicant was...

Court Disposition

Application for rescission granted in part; proprietary consequences of the divorce order set aside, decree of divorce remains intact.

Orders

  • Condonation for the late filing of the application is granted.
  • The order granted on 20 June 2014 in the North Gauteng High Court, Pretoria under case number 29059/2014 is in part set aside, except for paragraphs 1, 2, 3 and 4.