K v K (2016/06073) [2019] ZAGPJHC 18 (17 January 2019)

/ / Rescission – Court order – Decree of divorce, 2019


An application for the recession of a judgment granting a decree of divorce, dated 20 July 2017 (the “Court Order”), was brought before the High Court of South Africa, Gauteng Local Division, Johannesburg (the “Court”), in terms of which the parties were married out of community of property with the exclusion of the accrual system.

The applicant alleged that she had instituted divorce proceedings on 4 March 2016 and, as such, she was shocked to receive the Court Order amidst ongoing settlement negotiations with the respondent.
The respondent, however, alleged that he had instituted divorce proceedings against on 22 February 2016 and, after many unsuccessful attempts at effecting personal service on the applicant, he launched an application for substituted service, which was granted by the Court.

The applicant contended that she only became aware of the Court Order at the end of September 2017; whereas the respondent was adamant that he had personally informed the applicant of the Court Order on or about 17 August 2017.


In order to succeed with her application to rescind the Court Order, the Court held that the applicant must show good/sufficient cause, which generally entails the following:
(1) give a reasonable (and acceptable) explanation for the default;  
(2) show that respondent’s application was made bona fide; and  
(3) show that she has a bona fide defence based on the merits and that same prima facie carries some prospect of success.

Having regard to the above, the Court was inclined to resolve the dispute on the respondent’s version and, as such, found that the applicant failed to prove a reasonable and acceptable explanation for her default.
On consideration of whether or not the applicant had a bona fide defence, the Court noted that the applicant did not dispute the irretrievable breakdown of the marriage relationship between herself and the respondent.

Accordingly, the Court found that the Court Order was not being challenged on the basis that it was erroneously granted in the applicant’s absence. Rather, the applicant was challenging the patrimonial consequences of the marriage. In this regard, by granting the Court Order, the Court deprived the applicant of the opportunity to seek a redistribution order in terms of section 7(3) of the Divorce Act No. 70 of 1979, in terms of which she carried a reasonable prospect of success.
Notwithstanding the aforegoing, the Court held that, on the papers before it, the applicant had not shown reasonable prospects of success in regard to the redistribution order she sought for, inter alia, the following reasons:

1. the applicant merely made a bald allegation that she was entitled to such a redistribution inasmuch as she “indirectly contributed to the growth and increase of the respondent’s estate” without setting out the facts on which said conclusion was drawn; and
2. the applicant did not set out the extent of the respondent’s estate in respect of which the redistribution is claimed.

The Court found that the applicant failed to show a bona fide defence with regard to the redistribution relief sought and, accordingly, the Court dismissed the application for rescission of the Court Order.


A Court will not grant an order to rescind a decree of divorce if the applicant making the application fails to show good and sufficient cause to succeed with such application.

Written by Jayna Hira Checked by Kerry Theunissen

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