The rescission of divorce orders: A note of caution to courts

October 1st, 2018
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By James D Lekhuleni

There is no doubt that the rescission and variation of divorce orders in our courts has not been easy. One important question that our courts have grappled with is whether or not a court can rescind a divorce order, which has been granted in default. This question has been a bone of contention in the High Courts and recently in the regional courts.

This article briefly investigates the manner in which our courts and in particular, the High Court has dealt with these questions and will explore the principles that will serve as a guide for the judiciary and the wider legal fraternity in dealing with applications of this nature. There is a plethora of cases on this topic decided by the various High Courts. However, a discussion of all those cases goes beyond the scope of this article.

Can a divorce order be rescinded?

In common law, an order of the court, once pronounced, is final and immutable. ‘The guiding principle of the common law is certainty of judgments’ (see Colyn v Tiger Food Industries Ltd t/a Meadow Feeds Mills (Cape) 2003 (6) SA 1 (SCA) at para 4). Once an order is pronounced it may not, thereafter, be altered by the court that granted it. The presiding officer becomes functus officio and may not ordinarily vary or rescind their own judgment (Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)). That is a function of the court of appeal.

However, there are exceptions to the immutability of judgments (see the Colyn case (op cit)). First, after evidence has been led and the merits of the dispute have been determined, rescission is permissible in limited cases of a judgment obtained by fraud or, exceptionally, justus error. Secondly, the rescission of judgment obtained by default can be rescinded – where the applicant can show good cause or good reason – why such an order should be rescinded. Thirdly, a court may correct, alter or supplement its judgment to give content and meaning to its order. In divorce cases, I submit that a fourth exception to the general rule is created by s 8(1) of the Divorce Act 70 of 1979, which deals with custody, guardianship, or access to and maintenance of minor children. Orders in respect of s 8(1) do not assume the character of a final judgment as they are always subject to variation.

The rescission of orders in the magistrate’s court is regulated by s 36 of the Magistrates’ Courts Act 32 of 1944 (the Act). Section 36(a) of the Act, permits a magistrate’s court to rescind a judgment granted in default. The procedural requirements are governed by sub rules 49(1) to (6) of the magistrates’ courts rules. Rule 49(1) provides that a court may rescind or vary a default judgment on such terms as it may deem fit on good cause shown; or if the court is satisfied that there is good reason to do so. The applicant must provide a reasonable explanation for their default and must show that they have a bona fide defence and that the application made was bona fide (see D v D (GJ) (unreported case no A3079/15, 12-2-2016) (Wepener J and Crutchfield A)). The rescission and variation of orders in the High Court is regulated by r 42 of the Uniform Rules of Court.

The question whether a court can rescind a divorce order where good cause has been shown and restore the status quo ante matrimony of the parties, after they have been divorced, has been a grey area in the family law spectra. For example, in the case of M v M (FB) (unreported case no 5710/2010, 15-9-2014) (Motloung AJ), the plaintiff and the defendant where divorced in the Free State Division of the High Court. When the divorce order was granted, the defendant (wife) was in default. She was served with summons and she did not defend. A final order of divorce was granted in favour of her husband, including a prayer for forfeiture, as well as custody of their minor child. Aggrieved by the order, she applied for the rescission of the divorce order, the order for forfeiture, as well as the order granting custody of their minor child to her husband. It was argued on behalf of the respondent that after the decree of divorce was granted, he remarried and that a rescission of the court order will have far-reaching and complicating results.

The court considered the application and found that the applicant had shown good cause for the rescission of the order. However, the court found that both parties had agreed on the irretrievable breakdown of the marriage. The court considered the potential prejudice that would be suffered by the respondent’s new spouse if the decree of divorce was interfered with. In the view of the court, if the divorce order was set aside, it would have the effect of setting aside the new marriage of the respondent. Consequently, the court rescinded the order dealing with patrimonial consequences and custody of the minor child. The court left the final order of divorce intact.

In JJ v KJ and Another (FB) (unreported case no 5035/2012, 11-7-2013) (Mhlambi AJ), the applicant sought an order for the rescission of the divorce order, which was granted in his absence. He wanted to contest the divorce and in particular the rights of primary care and residence of their minor children. He admitted that the marriage between them had broken down irretrievably, but denied the reasons advanced by his wife. After considering the facts of the case, the arguments of both parties and the law the court found that the applicant gave a reasonable explanation of him default and granted the rescission of the divorce order, as well as the ancillary orders. The state of matrimony of the parties was re-established as the final divorce order was set aside.

In D v D, the respondent (husband) issued summons for divorce against his wife (appellant) in the regional court. The appellant defended the matter and filed a plea and counterclaim. When the matter was enrolled for trial, the appellant failed to attend court as she had prior trip arrangements. The attorney for the appellant, who was instructed to apply for a postponement of the matter, went to the wrong court and a final order of divorce was granted in the absence of the appellant. The appellant subsequently applied for the rescission of the divorce order. The regional court refused the appellant’s application for rescission.

On appeal to the High Court, the court found that the explanation of default raised by the appellant was sound and reasonable. The court stated that the effect of setting aside the divorce order would, in the eyes of the law, automatically result in the parties returning to a state of matrimony. Moreover, the automatic consequences attendant on a marriage in community of property would operate with immediate effect. The court found that to set aside the divorce between the parties per se, and return them to a state of matrimony pursuant to an automatic consequence of the legal process, and, not as a result of a personal choice purposely made by each of them, would be to undermine, even deny, their respective rights of dignity, including their right to privacy. The court eventually rescinded the order dealing with patrimonial consequences and left the decree of divorce intact.

I submit that the decision of the court in this matter and in the case of M is preferable. Where the parties have been divorced, the court should be slow to rescind the divorce order, especially where the parties are ad idem that their marriage has broken down irretrievably. Where an application for rescission is sought together with other ancillary orders and good cause is shown, the court should rather consider varying the ancillary orders and leave the decree of divorce intact. A rescission of the divorce order has far-reaching consequences. It has a potential of complicating the lives of the parties on multiple aspects especially where they have been divorced for a long period. It invalidates a marriage, which one spouse might have innocently entered into after the divorce was granted. I submit that the decision in JJ (op cit) was wrong in rescinding the whole divorce order, as from the affidavits before court, it was clear that both parties wanted a divorce and admitted to the irretrievable break down of their marriage.

Can a regional court vary a divorce order from the High Court?

Section 29(1B)(a) of the Act provides that ‘[a] court for a regional division hearing a matter referred to in paragraph (a) [a suit relating to nullity of marriage] shall have the same jurisdiction as any High Court in relation to such matter’. This section makes it clear that the regional courts and the High Courts have concurrent jurisdiction in relation to divorce matters. The question, therefore is, can a regional court vary a divorce order granted in the High Court especially where the parties can no longer afford the costs of litigating in the High Court? The regional court was faced with this question in the case of Miller v Miller (WCC) (unreported case no A168/2013, 7-3-2013) (Ndita J). In this case, the parties were divorced by the Western Cape Division of the High Court in Cape Town. A consent paper was signed and incorporated into the final order of divorce. After the matter was finalised, the plaintiff issued summons in the Somerset West Regional Court seeking an order against the defendant for specific performance in terms of the consent paper for the payment of one half of the respondent’s annuity. She alleged that she received less of the defendant’s retirement annuity than what was agreed on in terms of the consent paper. The regional court dealt with the matter labouring under the impression that it had jurisdiction in terms of s 29(1B)(a) of the Act and dismissed the appellant’s case, finding among others, that the respondent had not breached the terms of the consent paper.

On appeal to the Western Cape Division of the High Court, the court mero motu raised the question whether a regional court had jurisdiction to amend a divorce order of the High Court. The court held that on a closer examination of the papers, the appellant sought a variation, rectification or rescission of the High Court order. The court found that it was not open for the regional court to adjudicate on a matter in respect of which a final pronouncement was made by the High Court. The court found that this is so because even the judge who made the order was functus officio and the right of recourse for the appellant was to lodge an appeal against the judgment or order, alternatively, the appellant ought instead to return to the court that made the order to obtain a further order clarifying their rights and or obligations. The court found that the regional court did not have jurisdiction to rectify, vary or set aside an order of the High Court. The appeal was dismissed with costs. The appellant was not satisfied with the decision of the High Court and she applied for leave to appeal to the Supreme Court of Appeal (SCA) (see Miller v Miller (SCA) (unreported case no 20865/14, 6-5-2015)). The SCA dismissed the application for leave to appeal on the grounds that there were no reasonable prospects of success and that there was no other compelling reason why the appeal should be heard.

Conclusion

From the above discussion, I submit that South African courts should be slow to rescind final divorce orders unless those orders were obtained through fraudulent means. Regional courts should be careful when approached with applications for rescission of divorce orders. At the same time, I submit that those who draft the applications should bear in mind the fact that the rescission of a divorce order has the potential to complicate the lives of the parties on multiple aspects especially where they have been divorced for a long time. It raises constitutional problems and it infringes on the parties’ entrenched rights to dignity, as well as the right to privacy.

James D Lekhuleni BProc (UNIN) LLB (UL) LLM (UP) LLM (UP) LLD (UWC) is a regional magistrate in Cape Town.

This article was first published in De Rebus in 2018 (Oct) DR 26.

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