Radebe v Mokoena

• Jurisdiction: South Africa
• Judge: DSS Moshidi J (A Louw J and RE Monana J concurring)
• Judgment Date: 14 March 2014
• Citation: 2014 JDR 0650 (GSJ)
• Hearing Date: 26 February 2014
• Court: South Gauteng High Court, Johannesburg
• Docket Number: 1997/2766

D S S Moshidi, J (A Louw J and R E Monana J concurring)

INTRODUCTION

[1]

This appeal concerns a failed application for rescission of a default judgment. The appellant appeals against the whole of the judgment of Nicholls J in dismissing her application for condonation and application (later action) for rescission of the default judgment on 23 February 2012. The appellant sought to rescind a divorce order granted by this court by default as far back as 13 March 1997.

[2]

The appellant initially brought a rescission application which was opposed. As a consequence, the application was referred to trial. Nicholls J was subsequently allocated the trial. This appeal is with the leave of the court a quo.

[3]

The grounds of appeal, which I deal with later below, are as set out in the notice of appeal dated 10 December 2012.

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COMMON CAUSE FACTS

[4]

The following are common cause facts, or not seriously in dispute: The appellant and Mr Jeremiah Jerry Radebe ("the deceased") were married to each other in community of property at Johannesburg on 2 April 1996. There are no children born of the marriage. They lived in Soweto, Johannesburg, after the marriage. However, the marriage was short-lived. In February 1997, the deceased issued divorce summons in this court, and acting in person. The return of service shows that the summons was served by the sheriff of the Court on the appellant personally on 7 February 1997. There was no appearance to defend. On 13 March 1997, the matter came before Cassim AJ who granted a divorce order unopposed. There was also an order for the division of the joint estate. The question of the sheriff's return of service was, and is a hotly contested matter in the court a quo, and also in this appeal, as discussed later herein. In May 2004, at a meeting convened at the deceased's place of employment, i.e. the Reserve Bank, Johannesburg, the question of the deceased's estate was discussed. The appellant was also in attendance. She was informed that the deceased had divorced her. In 2005 the appellant launched an application for rescission of the divorce order. However, this application was not proceeded since the presiding Judge raised certain procedural issues. In 2006, another rescission application was launched. This application was postponed sine die because the Master's Report was required. In November 2009, the appellant brought another application for rescission which application forms the subject-matter of the current proceedings and appeal. There are other matters such as the joinder

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of the deceased's sister ("the first respondent"), her appointment as executrix in the estate, the appointment of the appellant by the Master as executrix in the estate of the deceased, the withdrawal of such letters of executorship, the Master's Report, and correspondence from the Family Advocate, Gauteng, which are also not in dispute. These will be referred to later only when necessary.

THE APPELLANT'S EVIDENCE

[5]

In the court a quo, in her papers and oral evidence, the appellant advanced several reasons in support of her application for condonation for the late filing of the application for rescission. These may be summarised as follows: that the appellant resided with the deceased until his death on 17 April 2004 when they jointly acquired accommodation at No 9247 Protea Glen, Extension 12. On or about 10 March 2006 she was informed by the deceased's employers that they were in possession of a decree of divorce obtained against her and that she was required to discuss the matter with the office of the Master. This was subsequent to her appointment as executrix by the Master in July 2004. In this regard, it is significant to observe that the earlier testimony of the appellant was that she knew already by 10 May 2004 at the meeting with the deceased's employers, the Reserve Bank, that a divorce order was in place. In spite hereof, the appellant contended that she was devastated by the news conveyed by the Master's office to the effect that she had been divorced by the deceased as far back as March 1997. She was also informed that another deceased estate file had been opened at the

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Master's offices in Pretoria. She confirmed that she launched separate rescission applications in September 2005 and 2006 which were not proceeded with for a variety of reasons. In March 2006 the appellant instead approached the Department of Home Affairs in Pretoria ("Home Affairs") where it was confirmed by letter that she was still reflected as being married to the deceased. A second letter from Home Affairs dated 16 March 2006 confirmed that the appellant was reflected as a 'widow'. At the same time (March 2006) the appellant addressed a letter to the Department of Justice and she was advised to enlist the services of Legal Aid SA in regard to rescinding the divorce order. Thereafter, approximately 18 months, the appellant said she received a letter from the Master's office at Johannesburg informing her that the Letter of Authority issued to her in terms of sec 18(3) of the Administration of Estates Act 66 of 1965 on 2 July 2004 was withdrawn as invalid. For the sake of clarity the letter read:

"Please note that the letter of authority issued to you on 2 July 2004 is withdrawn with immediate effect, please return the original issued to you. You are further instructed not to use this letter of authority as same has been declared invalid."

[6]

In the condonation application, the appellant also contended that due to lack of funds, she was unable to instruct her attorneys of record to prosecute her rescission application. It was only on 18 July 2008, some four years after she knew of the divorce order, that she consulted her present attorneys, C M Leballo Attorneys ("C M Leballo"). In spite hereof, C M Leballo took a year, i.e. 24 June 2009, to address a letter to the first respondent's

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then attorneys of record, Molefe Dlepu Inc. This delay was ascribed to the two estate files opened in Johannesburg and Pretoria to a large extent. This was also, as contended by the appellant, that she did not have the contact details of the first respondent, the sister of the deceased. It is necessary to reproduce parts of the letter which read:

"The decree of divorce obtained by the late Jeremiah Jerry Radebe was fraudulently obtained in that the sheriff served the summons commencing action on the 7th February 1997 at United Bank, Cnr Fox and Eloff Street, which was purportedly the place of employment of our client and proceeded to obtain a decree of divorce by default (see attached summons and return of service). As opposed to what the late Jeremiah Jerry Radebe alleged in his summons and particulars of claim our client was at all material times employed at Powertech Management Services as a receptionist from 1 June 1996 until 4 July 2008 (see attached herewith letter from employer). In the light of the above we request from yourselves to furnish us with a letter consenting to the setting aside of the decree of divorce and we also seek your permission that we can serve the application at your offices."

The delay from the time the appellant first consulted with C M Leballo to the dispatching of the letter just quoted, has not been explained satisfactorily. The appellant also said that her legal representatives, presumably at the same consultation, advised her that the rescission application had to be served on a family member of the deceased as well. Thereafter it took the appellant more than a year i.e. 22 July 2009 to establish the address of the first respondent. On the basis of this unexplained dilatoriness, the appellant nevertheless contended that she had not delayed in prosecuting the application for rescission.

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[7]

In her oral evidence in the court a quo the appellant testified that she first became aware of the divorce order in May 2004. She also testified about the Master's Report dated 21 December 2004 as requisitioned by the court previously. The Master's Report, in short, conveyed that the appellant was issued with letters of authority as she presented to the Master that she was still married to the deceased (the deceased had died some three months earlier i.e. 17 April 2004). The appellant knew this. She had visited the deceased on his sickbed in hospital on her version on occasions. She also attended the funeral on her version. The relevant parts of the Master's Report are paras 6 and 8. Paragraph 6 read as follows:

"And then later during October 2004, it then came to the Master's attention that the applicant [appellant] was in fact a divorcee at the time of the deceased's death. And upon the Master's knowledge same was communicated to the applicant with the view to withdraw the said letter of authority issued to the applicant forthwith …" (my insertion)

The Master then sought legal advice from the Chief State Law Advisor. In para 8 of the report the Master proceeded to state that:

"On the 20th of January 2005 the said office duly responded and opined that the applicant 'committed the crime of fraud and/or theft depending on the facts we [they] are not privy to.' And also suggested that the State Attorneys' office be briefed in this regard 'with a view regarding costs, the institution of possible criminal proceedings against the suspect and other related matter. …"

The Master was obliged to withdraw the letter of authority issued to the appellant and demanded the return thereof, which demand was not complied with as at the date of the Master's Report. As second respondent in the present application, the Master chose to abide the decision of the Court.

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[8]

Indeed, the evidence in the court a quo revealed that the conduct of the appellant, after...