Rowe v Rowe

• Jurisdiction: South Africa
• Judge: Hefer JA, Vivier JA, Nienaber JA, Olivier JA and Streicher AJA
• Judgment Date: 27 May 1997
• Citation: 1997 (4) SA 160 (SCA)
• Docket Number: 105/96
• Hearing Date: 20 May 1997
• Counsel: M L Haskins for the appellant B Knoetze for the respondent
• Court: Supreme Court of Appeal

Hefer JA:

It stands to reason, as De Villiers JA observed in Schierhout v Union Government 1927 AD 94 at 98, that a judgment procured by the fraud of one of the parties cannot be allowed to stand. But this does not entail, so Roos J held in upholding an exception F in the present case, that the party who procured the judgment is entitled to have it rescinded on the ground that he had been induced to do so by the fraud of the other party.

The parties to the appeal were formerly husband and wife. They were divorced by order of the erstwhile Witwatersrand Local Division in an action in which the appellant (husband) was the G plaintiff and the respondent (wife) the defendant. In terms of an agreement of settlement incorporated in the order and recording that three minor children had been born from the marriage, the appellant was awarded custody of Raymond but ordered to pay the medical, tuition and boarding fees and expenses of Marelize and Brendan whose custody was awarded to the respondent. H

After the divorce the appellant commenced further proceedings against the respondent in the same Court. The pivotal allegations in the particulars of claim in support of his main claim were

(1)

that the respondent had induced him to sign the settlement agreement, and to obtain a I divorce in terms thereof, by fraudulently representing to him that he had fathered Brendan and Raymond;

(2)

that the appellant had cancelled the agreement, and

(3)

that, by virtue of the respondent's fraud, he was entitled to the rescission of the decree of divorce in the form in which it was issued. J

Hefer J A

The particulars of claim proceeded with the usual allegations to found a claim for a decree of A divorce and concluded, as far as the main claim was concerned, with a prayer for such an order and ancillary relief which did not provide for Brendan and Raymond's custody and maintenance but included a declaration that they were not the appellant's children. B

There was also an alternative claim for payment of R138 000 being the amount by which the respondent had allegedly been enriched at appellant's expense in that he had maintained her children since their birth in the bona fide but mistaken belief, engendered by her fraudulent misrepresentations, that he was obliged to do so. C

The respondent excepted to the particulars of claim in the following terms:

'Defendant hereby excepts to the plaintiff's particulars of claim as being bad in law on the following grounds:

1.

It discloses no cause of action in that: D

1.1

in essence, plaintiff's claims seek, and are dependent upon an order setting aside the order of the Court set out in annexures ''A'' and ''B'' to plaintiff's particulars of claim;

1.2

plaintiff was also the plaintiff in the divorce action between the parties which culminated in the order;

1.3

the order was made upon the request of plaintiff; E

1.4

in the premises, the above honourable Court has no power to accede to the plaintiff's application to set aside the order which he himself:

1.4.1

sought; and

1.4.2

obtained; F

1.5

alternatively to para 1.4 above, the issues raised in plaintiff's particulars of claim have been finally adjudicated upon by a Court of competent jurisdiction.

Wherefore defendant prays that plaintiff's claims be dismissed with costs.' G

Roos J upheld the exception on the grounds listed in paras 1.1 to 1.4. The appeal which is before us upon leave granted by members of this Court is against his order that

'the exception is thus upheld with costs and the plaintiff's claim is dismissed with costs'. H

In this Court counsel were agreed that, despite its wording (''the plaintiff's claim is dismissed'), the order must be interpreted as one dismissing the main and the alternative claim as well. This is undoubtedly correct. It...