Watling v Watling and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Hofmeyr AJ |
| Judgment Date | 11 August 2023 |
| Citation | 2023 JDR 3002 (WCC) |
| Hearing Date | 03 August 2023 |
| Docket Number | 17909/2022 |
| Court | Western Cape Division, Cape Town |
Hofmeyr AJ:
The applicant and the first respondent were divorced in 2016. For convenience, I shall refer to the first respondent as “the respondent” in this judgment because the second
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respondent took no active part in the proceedings. The parties concluded a settlement agreement at the time of their divorce to deal with issues such as maintenance and care for their children.
A number of years later, in mid-2022, the respondent caused a warrant of execution to be issued against the applicant, for the amount of R172,222.97 which related to alleged arrear maintenance in the amount of R46,000.00 and alleged arrear school fees from 2016 in the amount of R129,222.97.
Pursuant to the issue of the warrant, the sheriff attached a number of the applicant’s movables and prepared an inventory. However, an arrangement was reached between the parties and the movables were not removed from the applicant’s residence. That has been the position since the issue of the warrant and remains the position. The applicant has therefore not be deprived of his movable property but it remains attached pursuant to the warrant.
The applicant launched proceedings in this Court on 8 July 2022 to have the warrant and attachment set aside, alternatively stayed, while the matter is referred to oral evidence. I shall refer to the application as “the main application”.
The respondent was slow to deal with the matter. She only opposed the application on 1 September 2022 and filed her answering affidavit on 7 September 2022. As a result, the matter, which was originally set down on the unopposed roll for 14 September 2022, was postponed to 13 February 2023 with an order requiring the respondent to pay the wasted costs of the postponement.
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When the respondent filed her answering affidavit on 7 September 2022, she did not seek condonation for the late filing of the affidavit but she did indicate, through her attorneys in correspondence, that she would bring a formal condonation application.
However, she did not do so for many months. Instead, in the week prior to the hearing of the main application, she delivered a condonation application. The applicant did not have sufficient time to answer the condonation application so the matter was again postponed but costs of that postponement were reserved.
The matters before me are therefore fourfold:
Who should pay the reserved costs of the postponement in February this year?
Should condonation be granted for the late filing of the respondent’s answering affidavit in the main application?
Should the main application be granted?
Who should bear the costs of both the condonation application and the main application?
I shall deal with each issue in turn.
The reserved costs of the postponement in February
Despite indicating in September 2022 that she would bring a condonation application, the respondent delayed for five months and then only filed the application in the week before the scheduled hearing of the main application.
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Her approach in the condonation application was quite extraordinary. Despite not seeking condonation when she initially delivered her answering affidavit in the main application, and despite delaying for five months to bring the condonation application, she gave the applicant a day and a half to oppose the application and a further half day to file opposing papers. There was no justification for this precipitous and prejudicial handling of her request for condonation. There was not even an explanation in her founding affidavit in the condonation application of why she deemed it appropriate to so severely truncate the timelines for the applicant to answer the application.
The late delivery of the condonation application was the cause of the postponement of the main application from 13 February 2023. No adequate explanation for her delay was proffered. The respondent should therefore be ordered to pay the wasted costs of the February 2023 postponement.
The condonation application
The reasons given for the respondent’s delay in filing her answering affidavit in the main application were twofold. She said that she is a single mother and has her time taken up with care for their children and running her own business. She also explained that she was very concerned about the legal fees involved in opposing the application and hoped that the parties could find each other. But when they could not, she realised that she would need to oppose the application to avoid having the warrant set aside on an unopposed basis.
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Courts have a general discretion to condone the late filing of affidavits when it is in the interests of justice to do so. [1] The difficulty that I have with the respondent’s explanation of her delay is that she was content to incur legal costs and to act swiftly when she decided to take steps to have the applicant’s property attached but she was not as wiling to incur those fees and act timeously when she was a respondent in these proceedings.
The respondent’s conduct must be placed in its proper context. At the time that the respondent caused the warrant to be issued, the arrears that she says justified the warrant had been unpaid, on her own version, for six years and three years, respectively. It is clear from the papers that the parties have been unable to resolve matters amicably for some time. However, when the applicant then took steps to have that warrant set aside, the respondent’s main explanation for not abiding the rules of court is that she had hoped the parties could find each other. In the full context of their dealings with each other prior to the issue of the warrant, that was an unrealistic expectation.
The respondent’s explanation for her delay is therefore less than compelling. But no prejudice has arisen from her delay. Mr Ebersöhn, who appeared for the applicant, confirmed that there is no allegation on the papers of prejudice to the applicant as a result of the delay in the matter – the attached movables have not been removed.
When considering whether to condone the late filing of the respondent’s answering affidavit, I am also required to assess the merits of her defence to the main application. [2] As I shall set out in more detail below, I find that the respondent has a good defence on
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the merits of the case set out in the applicant’s founding affidavit. The fact that her defence is a strong one, and there has been no prejudice to the applicant as a result of the delay, tilts the balance in favour of admitting the affidavit despite its late delivery and the weak explanation provided for its delay.
Mr Torrington, who appeared for the respondent, advanced a further argument in favour of condonation. He argued that because the applicant had filed a replying affidavit in the main...
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