SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

DELETE WHICHEVER IS NOT APPLICABLE:
(1)	REPORTABLE: 				YES/NO
(2)	OF INTEREST TO OTHER JUDGES	YES/NO
(3)	REVISED: 
14	19 November 2021	             ………………..
DATE			SIGNATURE	

CASE NO: 51615/2016
In the matter between.
	B[....] T[....] L[....]	Applicant
and
	A[....] L[....]	Respondent

JUDGEMENT   

 BOKAKO AJ

 INTRODUCTION 
1.	In the current proceedings being the application for rescission of judgment of the order in Rule 43 proceedings. This is an application for the rescission of judgments which were handed down by Maakane AJ, on 29 September 2017, judgment handed down by Davis J, on 10 April 2019 and judgment handed down by Mokose J, on 28 November 2019. The application came before me in the opposed motion court on the 24th of August 2021.
BACKGROUND
2.	The parties were married on the 8th of July 2006, out of community of property, which matrimonial regime was excluded from the accrual. The parties have three minor children born from their relationship and subsequent marriage namely Olivia currently 15 years of age; B[....] T[....] currently 13 years of age and J[....] M[....] currently 9 years of age. The Respondent instituted divorce proceedings against the Applicant. In and about March 2017, the Respondent launched a Rule 43(1) application against the Applicant, in which she sought inter alia, maintenance for herself and the minor children. 
SUBMISSIONS 
3.	The main contention of the Applicant is that at the time when the 29th September 2017 Order was granted by the Court, the Respondent failed to inform the Court of the fact that she was employed. The Respondent misled the Court as to her true financial ability to contribute to the maintenance obligations that she shared with the Applicant towards the minor children.

4.	The Applicant submitted that the Respondent in her Founding Affidavit stated that she was unemployed and earned no income. Though on the 12th of July 2017 the Respondent received an offer of employment from the firm [….], which offer she accepted on the 14th July 2017. The Respondent commenced working on the 14th of July 2017 and was earning a salary of R33 333.33 per month. 

5.	The Applicant argued that it was clear that the Respondent was working at the time the matter was heard before Maakane AJ on the 18th September 2017. The Respondent was working for at least two months prior to the hearing of the matter and she failed to draw this to the attention of the court. Contending that, the Respondent had no hesitation about allowing the presiding Judge to labour under the misconception that she was unemployed and had no earnings of her own. Further arguing that this amounted to a fraudulent nondisclosure to the Court about her income which would have a material bearing on the order granted, reason being the court relied on the affidavits of the Respondent to the effect that she was unemployed and the court order granted on the 29th of September 2017 was influenced by the Respondent`s submissions.  At the time the  Applicant provided a fully detailed prescription of   his income and expenditure of which was clear that he could not afford to pay the Respondent as she prayed for  and that the  Applicant is still unable to meet his maintenance obligation imposed on him by  Court.

6.	The Applicant contends that his personal living expenditure and commitments were never properly taken into account when the aforesaid order was granted, neither was the Applicant's income neither was the Respondent's income which she intentionally withheld from the Court disclosed in order for her to obtain a financial advantage over the Applicant. 

7.	It was further argued that the Respondent was responsible for a fraudulent nondisclosure, based upon false evidence wilfully presented to the Court in order to influence the presiding Judge to grant her an order in her favour.

8.	Further contending that all the elements of the fraud were present in the application. The Respondent as the successful litigant was the party to the fraud; her evidence pertaining to her income was false; she persisted in placing the incorrect allegations relating to her earnings before the court.

9.	The Applicant further refuted the contentions of the Respondent in that the fact that she was only temporarily employed at the time is an irrelevant reflection. She distorted the court, with no remorse. 

10.	Applicant’s Counsel further argued that it is indicative of  how modest the Respondent is by her unlawful conduct and the far-reaching significances that  her actions  has had on the Applicant emotionally and financially , also there are at least three warrants of arrest against the Applicant all of which emanate from the September 2017 order. The Respondent conveniently chose to quote from the honourable Judge Neukircher’s transcript. The Judge's comments at the hearing of the Rule 43(6) application, indicate if anything, that the Respondent should have been open and forthright and transparent with the allegations she was making at the time Judge Neukircher was not dealing with a rescission application. The Judge made her comments in passing. 

11.	The Applicant's Rule 43(6) application was partially based on the fact that the Respondent had misled the court and perjured herself in obtaining the first court order.  Further argued that the Respondent's conduct led to the Applicant's prejudice. He did not have sufficient funds to pay an interim maintenance order. 

12.	The Respondent started by outlining sequence of events of this matter. Contending that, Rule 43 was granted on the 29th of September 2017 by Maakane AJ, subsequent to this, the applicant brought an application in terms of Rule 43(6) which was dismissed on grounds of abuse of process.  On the 30th of August 2018, Thlapi J made an order for the Applicant to pay R15 000 per month as opposed to R30 000 as was initially ordered and this R15 000 was only paid for five months. On the 8th of April 2019 a second Rule 43(6) application was brought which subsequently was also dismissed. On the 10th of April 2019 Davis J found the Applicant to be in contempt of court and ordered his incarceration suspended for thirty days on condition that the Applicant makes a monthly payment of R15 000. On the 28th of November 2019 Mokose J ordered the Applicant`s incarceration. On the 4th of December the Applicant filed for leave of appeal which was dismissed as well. On the 12th of March 2020, warrants of arrests were issued and the Applicant`s attempts in setting them aside were unsuccessful. On the 6th of October 2020, the Applicant petitioned the SCA subsequently leave to appeal the incarceration was granted. 

13.	The Respondent argued that the alleged fraud has been campaigned in eight different applications and such is tantamount to abuse of process and another opportunistic attempts in disregarding the court and continuously be in contempt of various court orders since 2017.

14.	The Respondent further submitted that the motion proceeding is not the proper forum for the adjudication of fraud.  Also an order of court of law stands until set aside by a court of competent jurisdiction, until then the court order must be obeyed even if it is wrong. It is clear that the Applicant is using necessary machinery to delay the execution of orders.  Also argued that it was not an excuse that the Applicant was sequestrated on the 29th of September 2016. Also it was not a disputed fact that during September 2017 the Applicant earned at least R115 000 per month and in April 2019 the Applicant earned at least R80 000 per month. 

15.	Further arguing that the orders sought to be set aside were not granted in the absence of the Applicant therefore this court does not have a jurisdiction to entertain this matter on the basis of erroneously granted in terms of Rule 42(1)(a). 

16.	Also motion court is not a proper forum for adjudication of fraud. It is also trite that save for exceptional circumstances disputes of facts arising on affidavits cannot be finally determined on papers. 

17.	It was also pointed out that on numerous occasions the Respondent did respond and explain the allegations in detail about her employment situation.  In that, at the time of her employment, it was temporary in nature and there were no certainties as to future employment.  The Respondent`s employment terminated on the 14th of December 2017. 

18.	Further arguing that the finding of fraud against the Respondent is unattainable. The Respondent had no intentions to mislead the court and such was explained succinctly in her papers.  The Applicant has refused to execute the orders for the past four years. Therefore, this application must be dismissed with punitive cost as these issues were dealt with a number of times. The Applicant is well aware of the financial difficulties of the Respondent.   
SOME LEGAL PRINCIPLES 
19.	The principles applicable to the adjudication of rescission applications based on the common law have by now become settled and trite, and require no exclusive exposition for present purposes.  There is also abundant authority for the proposition that in matters of this nature, the terms “sufficient cause” and “good cause”, are almost identical or used interchangeably.  See inter alia, Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 9C.  The principles are succinctly set out in Erasmus (B1-307), that:
 
“At common law a judgment can be set aside on the following grounds:  fraud, justus error (on rare occasions), in certain exceptional circumstances when new documents have been discovered, when judgment had been granted by default and, in the absence between the parties of a valid agreement to support the judgment, on the grounds of justus causa.”

ANALYSIS 

20.	Rule 43 applies whenever a spouse seeks relief from a court in respect of, inter alia, maintenance pendente lite.  The form of the proceedings and the procedure to be followed are set out in sub-rule (2) to (5).  Rule 43 proceedings are designed to enable parties to a matrimonial dispute to deal expeditiously and relatively inexpensively with matters to be determined pending the finalisation of the divorce proceedings.

21.	Sub-section (6) provides as follows: “The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child, or the contribution towards costs proving to be inadequate.

22.	Two points should be noted in this regard.  The first is that Rule 43 provides, in the context of the specialised proceedings created by the rule, for a basis upon which a court’s orders made in terms of the rule may be varied.  The second is that the form and procedure of the variation proceedings is the same as provided for in a Rule 43 application ab initio.  Thus the number of sets of affidavits and the form and content of those affidavits as well as the form of the notice to be given to the respondent and the time periods for the filing of papers are regulated by the rule.  In addition, the rule imposes limitations on the party which are calculated to ensure not only that the application is expeditiously finalised but also that legal representatives are limited in the fees that may properly be charged for the conduct of interim proceedings in matrimonial matters.

23.	In this case the application is founded in very concise terms.  It is alleged that at the time when the court made the order for interim maintenance in terms of Rule 43, the Respondent was employed but did not disclose. The Respondent asserts that she was on temporary employment and still on probation without any guarantee of permanent employment. The Respondent`s temporary employment was terminated subsequently after three months.  Such is the Applicant contends that the Respondent committed fraud on the basis of failure to disclose her status of employment, he contends that if such information was brought to the attention of the court, the court would not have ordered him to pay R30 000 for this reason he seeks the setting aside of the order.  Also he was sequestrated at the time. 

24.	In relation to the basis upon which the applicant seeks the setting aside of the order the respondent admits that she was on probation when the Rule 43 was granted and such was disclosed, the Respondent denies that she was permanently employed.  There is an allegation that the applicant has secreted certain funds away and that he is accordingly able to pay the maintenance.  This is denied.  The thrust of the opposition is however that the applicant is seeking to frustrate the execution of the court order and to avoid paying maintenance in terms thereof.

25.	In this case, the Applicant seeks an order of this Court to rescind its own order which came as a result of alleged fraud on the part of the Respondent in circumstances where the latter had deliberately misrepresented facts to the Court in the Rule 43 application.  The application for condonation has to be brought within a reasonable time and without undue delay.  In this case the Applicant`s case has been brought after a long time and after numerous attempts which all failed. No basis is set out in the affidavit upon which this court can exercise that jurisdiction to vary, rescind or set aside an order of court.  

26.	The essence of the Applicant`s basis of this application is that the Respondent did not disclose to the court that she was employed and making an income during Rule 43 application. In order to succeed on a claim that a judgment be set aside on the grounds of fraud the Applicant is expected to  allege and prove the following: that the Respondent was a party to the fraud; allegations of the Respondent were in fact incorrect; that it was made fraudulently and with intent to mislead;  and that it diverged to such an extent from the true facts that the Court would, if the true facts had been placed before Court, have given a judgment other than that which it was induced by the incorrect evidence to give; but for the fraud, the Court would not have granted the judgment.

27.	Given the submissions by both parties, it follows that on the probabilities the Respondent’s version must be accepted and therefore the Applicant has failed to prove on a balance of probabilities that the Respondent was a party to any crime it was also not substantiated  in their submissions that Respondent`s evidence was given fraudulently or with intent to mislead;  and that there was evidence which diverged to any extent from the true facts so as to conclude that the true facts had been placed before Court, or have given judgment other than that which the Court was induced by incorrect evidence.

28.	I am in any event not persuaded that a proper case has been made out for the order sought in this matter, the evidence placed before this court does not conclusively satisfy this Court that the evidence adduced on behalf of the Respondent was tainted with fraud.  

29.	It is important that I deal with an aspect of contempt. The elements of the offence of contempt must be established beyond a reasonable doubt.  In Fakie NO v CCII Systems (Pty) Ltd 2006(4) SA 326 (SCA) the court, dealing with the deliberate disobedience of a court order, (at 333 C – E) stated that:

“A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt.  In such a case, good faith avoids the infraction.  Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).  

These requirements that the refusal to obey should be both wilful and mala fide and that unreasonable compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation.  They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces.”

30.	The evidence before me does establish, beyond a reasonable doubt, that the applicant is guilty of contempt.  The parties are involved in an unfriendly dispute and such perception however is sufficient to conclude that the Applicant is deliberately defying a court order.  The fact that the applicant seeks to set aside court`s orders is indicative of defiance that is anything but contemptuous. The general well established rule is that once a Court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it and in that case the final judgment becomes functus officio.  It follows, therefore, that the Rule 43 order itself is an interlocutory order which has final definitive effect in the pending matrimonial proceedings, even though it might be interlocutory in the wide sense.  In other words, once that order is made and the decision is taken it is still res judicata.  The inherent jurisdiction of the High Courts does not include the right to interfere with the principle of finality of judgments, other than in the circumstances specifically provided for in the rules or the common law (De Wet V Western Bank Ltd 1977 (4) SA 770T at 780H-781A; see also Swart v Absa Bank Ltd 2009 (5) SA 219 (C) at 221B-D and 223A-B).

31.	Both parties ought to be reminded that however resentful they may be, the interests of  minor children born of their marriage are vital.  Just as the Applicant is indebted to honour his maintenance obligations so too is the Respondent to gain employment.  Such is the nature of the shared parental responsibility for which our law provides.  

CONCLUSION

32.	Based on all the circumstances of this matter, as well as the applicable legal principles, I therefore conclude that the applicant has not made out a case for the rescission of the judgements granted against him. In the result, I am of the view that the application should be dismissed.
COSTS

33.	I turn now to deal with the question of an appropriate cost order to be made.  It is trite that costs are within the discretion of the court.  In exercising that discretion a court takes into account the circumstances of the matter, the issues adjudicated and the results of such adjudication, the conduct of the parties and what would be fair and just between the parties. Finding of fraud against the Respondent is unachievable. The Respondent had no intentions to mislead the court and such was explained succinctly in her papers.  The Applicant has blatantly refused to execute the orders for the past four years. These issues were dealt with a number of times. In these circumstances I consider that it would be appropriate for the Applicant to pay costs.

ORDER

34.	In the result the following order is made:

a.	The application for rescission is refused.
	
b.	Applicant to pay costs.

______________________
T.P BOKAKO
Acting Judge of the High Court, 
Gauteng Division, Pretoria

Date of hearing: 24 August 2021
Date of judgment: 19 November 2021

Appearances:

For the Applicant: Adv M Snyman SC instructed by Mohamed Seedat Attorneys

For the Respondent: Adv C H Badenhorst instructed by Authur Channon Inc Attorneys