IN
THE HIGH COURT OF SWAZILAND
In
the matter between:
ESTER
THOKO ZULU Applicant
VS
PETER
EZRA NKAMBULE Respondent
CORAM
F. X. ROONEY
FOR
APPLICANT F. NDZIMANDZE
FOR
RESPONDENT S. EARNSHAW
JUDGMENT
31/3/89
Rooney,
J.
This
is an application under Rule 42 of the Rules of the High Court for an
order setting aside a decree of divorce pronounced by Dunn, J. on the
24th September, 1987.
The
applicant and the respondent were married on the 15th September,
1975. On the 12th November 1985 the respondent commenced an action in
this Court in which he sought an order calling upon his wife to
restore conjugal rights and, failing which, an order of divorce on
the grounds of malicous desertion. On the 1st December, 1986, the
applicant filed a defence and counterclaim. In this she was
represented by a firm of attorneys. In the counterclaim she prayed
for restitution of conjugal rights etc. and a decree of divorce by
reason of the defe-dant's adultery. In a further pleading the
respondent admitted his adultery.
2
The
attorneys for the parties drew up a Deed of Settlement which
provided, inter alia, for the applicant to have custody of the
children of the marriage and for the respondent to pay E250 a month
for their maintainance. The agreement was conditional upon the
defendant (the present applicant) obtaining a final decree of
divorce. The respondent undertook to withdraw his action against the
applicant and she promised to continue with her claim. The agreement
was signed on the 24th September, 1987, immediately before the matter
came up for hearing before Dunn, J., who thereafter pronounced the
dissolution of the marriage between the parties.
This
application was not filed until the 11th May, 1988. The only
explantion offered for this delay is that the applicant "immediately
after pronouncement of judgment, instructed attorney Lukhele of
Manzini who promised to look into the matter but to no avail".
In her replying affidavit the applicant repeats this averment and
annexes a copy of a letter written by Mr Lukhele in support. The
letter, dated 8th March 1988 makes no reference to the proceedings
before Dunn J. and advises the applicant to apply for an increase in
the amount of maintainance for her children.
In
her founding affidavit, the applicant complains that at the time she
signed the "Deed of Settlement" she was emotionally
disturbed, confused mentally, weak and exhausted. She claims that she
did not appreciate the nature of the entire proceedings. She said
that the matter should not have proceeded as "no evidence
whatsoever was led......to establish the existence of the marriage"
and that an order
for
restitution should have been issued "as the only allegation
against me was malicious desertion and not adultery".
This
allegation is based upon the incorrect assumption that the divorce
was granted in favour of the respondent, which is not the
3
case.
The applicant's founding affidavit goes on to repeat her denial that
she deserted her husband and the allegation against him that he
committed adultery. The applicant submits that if these facts had
been known to the judge he would not have made the final decree.
It
is in her replying affidavit that the applicant makes this case -
"I
state that even though the Deed of Settlement is valid, a decree of
divorce ought not to have
been issued in as much as I did not proceed with my counterclaim
against respondent. At
no stage did I give evidence to the effect that the respondent
committed adultery and in fact
I was not called upon at any stage to give evidence".
This
presents an entirely new case to the Court. It contradicts her
founding affidavit. The applicant says that she was granted a divorce
that which she had not sought and/she "signed the Deed of
Settlement but the effect thereof carries no weight in as much as
what I consented to was a withdrawal by respondent of the divorce
action". This seems to suggest that the applicant was well aware
of the nature of the settlement and only signed it to procure the
withdrawal of her husband's action against her and nothing more.
The
case made by the applicant in her founding affidavit was quite
different from that advanced in her replying affidavit. The general
principle is that an applicant cannot for the first time make a case
in a replying affidavit (Jay's Properties v. Tungin 1950 (2) S.A. 694
following de Villiers v. de Villiers 1943 TPD 60. No application to
condone this departure from the normal practice was made and the
respondent had no opportunity to answer what was a new case, raised
by the applicant.
Neither
party has attempted to place before this Court any record which may
exist, of the proceedings before Dunn, J. All I have is the
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formal
order of this Court dissolving the marriage. If the applicant was
dissatisfied with the judgment given by Dunn J. an appeal lay to the
Court of Appeal under section 14 of the Court of Appeal Act 1954. She
has not,availed herself of that right. It should be made clear that
whereas there does exist jurisdiction to rescind a judgment of this
Court in a proper case, I have no authority, as a member of this
Court, to entertain or act upon any application or action, however
presented, which in effect constitutes an appeal against the decision
of another judge of this Court.
Rule
42 of the High Court Rules reads -"Variation and Rescission of
Orders 42.
(1)
The Court may, in addition to any other powers it may have, mero
motu or upon the application
of any party effected, riscind or vary -
(a)
an order or judgment erroneously sought or erroneously granted in
the absence of any party effected
thereby;
(b)
an order or judgment in which is an ambiguity, or a patent error or
omission, but only to the extent
of such ambiguity, error or omission;
(c)
an order or judgment granted as the result of a mistake common to
the parties.
(2)
Any party desiring any relief under this rule shall make application
therefore upon notice to all parties
whose interests may be affected by any variation sought.
(3)
The court shall not in granting any relief under this rule, make any
order rescinding or varying any
order of judgment unless satisfied that all parties whose interests
may be affected have notice
of the proposed."
This
rule is not of much assistance to the applicant. The order was not
granted in her absence. There is no ambiguity or patent error in the
decree of divorce. On the face of it, it is valid, regular and clear
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as
to its purport. The decree was not pronounced as the result of a
mistake common to the parties.
They
had just signed an agreement under which the respondent undertook to
withdraw his action and the applicant to proceed with her/claim in
reconvention. Even if the divorce was procured against the wishes of
the applicant and in a manner which was irregular it was not the
result of a mistake common to the parties.
It
was submitted by Mr Ndzimandze that the Court has an inherent power
to correct its own error. The Court has certain limited powers at
common law to set aside its own judgments. It is not alleged that the
divorce was obtained by the fraud of the respondent. Ne new docu-men
has been presented which might give rise to a claim on the ground of
instrumentum noviter reptertum.
There
remains the question of justus error. In the case of Childerley
Estate Stores v. Standard Bank of S.A. 1924 Q.P.D. 163, the Court
stated at p. 168 -
"We
arrive at this position then, that so far as justus error is
concerned, default judgments may
in some cases be set aside under the Roman Dutch Law on the ground of
justus error, and
that judgments, whether by default or not, may be set aside in
the seven exceptional cases
abovementioned on the ground of instrumentum noviter repertum, though
evidently some
of those cases are nowadays obsolete and inapplicable; there are
further, the exceptional
cases of setting aside a decree of perpetual silence and the doubtful
case of setting
aside a judgment in a matrimonial suit on the ground of justus error.
Moreover, judgments
entered by consent may be set aside under certain circumstances on
the ground of
justus error (Arg. Voet, 22.6.6.7. and De Vos v. Calitz, 1916, C.P.D.
465). There may be other
exceptional instances. But I
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must
say that I know of no such further general application of the
doctrine of justus error to judgments
as would entitles the vanquished party to bring an action to set
aside a judgment on
the ground that the Court gave the judgment in error, even if such
error was just and was induced
by a non-fraudulent misrepresentation made by the other party to the
case. And no attempt
has bee made by plaintiff's counsel in this case to produce any
authority which would justify
such an extensive application of the doctrine. On the contrary it
seems clear that Voet, in
stating that judgments may be set aside on the ground of fraud, and
(in the exceptional cases)
on the ground of instrumentum noviter repertum, intends impliedly to
exclude any other
grounds ejusdem generis for setting aside judgments delivered in
defended cases after both
parties have been heard, and the action has been faught to a finish.
The same may be said
of Huber (5.37.7.11) and Schorer (notes 527 et seq. to Grotius)"
The
majority of decided cases are concerned with default judgments. See
for instance Naidoo v. Cavandish Transport Co. (PTY)Ltd. 1956 (3)
S.A. 244 and Briston v. Hill 1975 (2) S.A. 505 where the Court
granted summary judgment in the absence of the applicant.
In
the present instance the proceedings conducted before Dunn J.
resulted in a divorce being granted in favour of the applicant. If it
is contended that the judge was mistaken in granting that relief then
the applicant ought to have appealed against that decision (Pistorius
v. Cohen 1928, 162 at 168 per Feetham J.). It. is still open to the
applicant to seek leave to present her appeal out of time.
This
application is dimissed with costs.
F.X.
ROONEY
JUDGE
