Malope v Malope

• Jurisdiction: South Africa
• Judge: Musi J
• Judgment Date: 10 January 2008
• Docket Number: 1669/07
• Court: Orange Free State Provincial Division
• Hearing Date: 03 January 2008
• Citation: 2008 JDR 1053 (O)

H.M. Musi J

[1]

This matter was heard on 3 January 2008 and on the 4th January 2008 I granted an order of divorce and other relief. I indicated that I would give full reasons for the orders in the form of a written judgment to be delivered on 10 January 2008. The bulk of the reasons relate to the prayer for forfeiture of the benefits of the marriage and these follow hereunder.

2008 JDR 1053 p2

H.M. Musi J

[2]

The plaintiff has instituted an action against the defendant in this court claiming:

(a)

A decree of divorce;

(b)

Custody and control of the minor child born of the marriage between the parties;

(c)

Payment of maintenance at the rate of R500.00 per month for and in respect of the minor child, once the defendant has obtained employment;

(d)

Forfeiture of the benefits of the marriage in community of property;

(e)

Costs of suit;

(f)

Further and alternative relief.

[3]

The summons was served on the defendant personally on 25 April 2007. He failed to file a notice of intention to defend within the prescribed period or at all. The matter was, however, only enrolled for trial during November 2007 and it thus became necessary to serve the notice of setdown on the defendant. The notice of setdown was accordingly served on the defendant personally on 27 November 2007 indicating that the matter would be heard on 3 January 2008.

2008 JDR 1053 p3

H.M. Musi J

The defendant still gave no indication that he wanted to oppose the grant of divorce.

[4]

When the matter came before me on 3 January 2008 the defendant appeared in person and indicated that he wanted a postponement in order to obtain the services of a legal representative. The plaintiff opposed the application. I adjourned the matter for 30 minutes in order to give the parties the opportunity to attempt a settlement or come to some agreement on the way forward. No agreement could be reached and counsel for the plaintiff indicated that he would lead evidence to counter the application for a postponement. Having heard the plaintiff's evidence I then heard the defendant's evidence under oath on the reasons why he had not done the necessary in order to defend the action. I then dismissed the application for a postponement and proceeded to hear the matter as an unopposed divorce. I gave brief reasons for my decision which are on record. I need not repeat them here.

[5]

In essence, the plaintiff confirmed under oath the grounds of divorce as set out in her particulars of claim. In a nutshell

2008 JDR 1053 p4

H.M. Musi J

these are that the defendant abuses alcohol, that he has been unemployed since 1999 and does not show interest in obtaining employment, that he squandered money given to him by the plaintiff for the payment of the couple's liabilities which include monthly bond repayments and school fees for their children, and further that the defendant sold movable assets of the joint estate without the plaintiff's consent. She mentioned, upon questioning by the court, that they are still living in the same house but...