selatlhwa v selatlhwa - botswana v... · 2011-03-17 · she denied generally the truth of what was...
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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE COURT OF APPEAL CIVIL APPEAL NO. CACLB-017-09 HIGH COURT CIVIL CASE NO: MC 281-2003 In the matter between: KHELINA JAMES SELATLHWA APPELLANT AND HOWARD SELATLHWA RESPONDENT Mr. T. D. Sebola for the Appellant Mrs. R. Keevil for the Respondent CORAM: RAMODIBEDI JA HOWIE JA LORD ABERNETHY JA Heard: 14 January 2011 Delivered: 27 January 2011
J U D G M E N T
LORD ABERNETHY JA: [1] The parties in this appeal were married on 24 January 2002. The marriage
was not successful and on 4 September 2003 the respondent filed a writ
of summons and particulars of claim in which he sought an order of the
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Court, inter alia, declaring the marriage null and void on the ground that it
had never been consummated.
[2] On 4 March 2004 what bore to be a Settlement Agreement, signed by
both parties and witnessed and dated 10 February 2004, was filed, in
which it was stated, inter alia:
“1. DIVORCE
Defendant and (sic) admits that the marriage has broken
down irretrievably and consents to the decree of divorce
being granted in favour of the Plaintiff…
3. PROPERTY
Each party must keep whatever is in his/or her own
possession.”
[3] By Notice to Substitute Settlement Agreement, dated 16 April 2004 but
absent a filing stamp, it was stated that the parties “by agreement hereby
substitute their settlement agreement in this matter dated 10 February
2004.” What bore to be the Substituted Settlement Agreement, signed
by both parties, witnessed and dated 19 April 2004 by the appellant (no
date was given for the respondent’s signature), provided, inter alia, as
follows:
“WHEREAS on 10th February 2004 the parties discussed and
agreed on the way forward in this matter;
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WHEREAS on 10th February 2004 the parties filed and recorded an
agreement in respect hereof and filed same in this Honourable
Court on 4 March 2004;
WHEREAS subsequent to filing the settlement agreement
aforesaid it became apparent and the parties realized that at
paragraph 1 thereof they had recorded a term concerning a
divorce;
WHEREAS the term concerning divorce was erroneously recorded;
and
WHEREAS the parties are desirous of amending their settlement
agreement to bring it in coformity with the pleadings in this matter.
NOW THEREFORE the parties agree and record that
1. The following is substituted for the whole of paragraph of the
settlement agreement dated 10th day of February 2004, namely
that:
a. Defendant admits that the marriage between the parties has
not been consummated due to Defendant’s wilful refusal to
consummate it;
b. By reason of the facts set forth at paragraph (a) above the
parties marriage is voidable;
c. Defendant hereby consents to an order annulling the
marriage…….
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3. Property
Each party must keep whatever is in his /her own possession…”
[4] On 17 May 2004 the matter came before Dow J in the High Court and the
following Order was made:
“UPON HEARING: Mr. Attorney Moremi for the Plaintiff, (no
appearance for the Defendant) and having read the documents
filed of record:
IT IS ORDERED THAT:
1. Marriage is Null and Void.
2. Each party to keep such property in his or her possession.
3. Each party to bear its own costs.”
This Order (the Annulment Order) gave effect, therefore, to the
Substituted Settlement Agreement mentioned above.
[5] Due to an apparent mistake by the respondent’s attorneys the Annulment
Order , although ordering that the marriage was null and void, was treated
as a Decree Nisi and, apparently without the respondent’s knowledge, the
attorneys applied for a Decree Absolute, which was pronounced on 2
September 2004 and which stated, inter alia, that it was “hereby certified
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that the said decree (nisi) was on the 2nd day of JUNE 2004 made final
and absolute and the marriage was thereby dissoved.” I use the words
“apparent” and “apparently” because that is what is stated in the founding
affidavit by the respondent dated 11 November 2008 mentioned in the
next paragraph but it is not in dispute.
[6] The next step in the action was a Notice of Motion on behalf of the
respondent dated merely November 2008 in which notice was given that
the respondent intended to apply for an order in the following terms:
“1. The Order of this Honourable Court of 17 May 2004 be
rectified and varied;
2. That the Order be varied, more particularly at (2) thereof , to
read as follows:
2.1 ‘each party to retain such property as was in his or
her possession prior to the purported marriage and
that each immediately return to the other such
property belonging to the other or to which the other
may be entitled as may now be in his or her
possession’; and
2.2 ‘the Respondent is to refund to the Applicant all
rentals arising or arisen from Plot No. 04-002, Old
Naledi, Gaborone from March 2002 to date of
Respondent giving up possession of the said property
in the sum of P290 500.00’; and
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2.3 ‘the Respondent has no rights, title or interest of any
value to Plot No. 04-002, Old Naledi, Gaborone and
should vacate the property immediately.’
3. The Decree Absolute issued by this Honourable Court on 2nd
September 2004 be set aside;
4. The Respondent pay the costs of this application.”
A founding affidavit by the respondent dated 11 November 2008 was filed
on 12 November 2008 in support of the Notice.
[7] In the affidavit the respondent explained that his application seeking a
variation to the Annulment Order and rescission of the Decree Absolute
issued on 2 September 2004 was to settle an ambiguity in the Annulment
Order. The ambiguity, he claimed, was in paragraph 2 of the Order which
ordered “Each party to keep such property in his or her possession.” The
respondent claimed that certain immoveable property at Plot No. 04-002,
Old Naledi, Gaborone (“the property”) was his by inheritance from his
father and that the appellant took occupation of it without his knowledge or
permission and continued to occupy it against his wishes. He stated that
the appellant refused to move from the property, believing that as she was
in possession of it at the date of the Order it had become hers. His
position, however, was that following the Order declaring the marriage to
be null and void he should be restored to the status quo ante and the
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property should be returned to his possession together with the rental
income which the appellant has derived from it while it had been in her
possession. There were also certain moveable properties which the
respondent claimed were his but were in the possession of the appellant
and should be returned to him. He then went on to give reasons for his
delay in making the application. He stated that in the months after the
Order was made his attorney and the University of Botswana Legal Clinic
wrote to the appellant requiring her to move out of the property but she did
not respond. He was then unable to afford fees for an attorney so he tried
to approach the appellant directly but he said she assaulted him. He then
tried, without success, to get help from Gaborone City Council, the SHHA
offices and the Customary Court. Eventually, in May 2008 the High Court
registry referred him to his present attorneys who agreed not to charge for
their services. Further correspondence between them and the appellant’s
attorneys proved fruitless and eventually the respondent decided to wait
no longer and proceeded with his Notice of Motion.
[8] Hitherto the appellant had taken no active part in the proceedings. In
particular, she had taken no issue with the various steps outlined above.
The respondent’s Notice of Motion, however, drew an immediate
response. A Notice of Opposition by the appellant to the respondent’s
application, her answering affidavit, a Notice of Counter-Claim by her and
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her founding affidavit in support of that Notice were all filed on 4
December 2008.
[9] For present purposes it is sufficient to say that the appellant’s position as
disclosed in her answering affidavit was as follows. She denied generally
the truth of what was said in the respondent’s founding affidavit. More
particularly, she averred that she was never served with any of the steps
in the proceedings for annulment of the marriage and only became aware
of the Annulment Order in August 2008 when she received a letter dated
18 August 2008 from the respondent’s attorneys, inter alia, informing her
of the same and seeking her removal from the property. She said that she
had not signed any document in the proceedings and, in particular, had
not signed the Substituted Settlement Agreement; any signature which
purported to be hers on any such document was a forgery. She said that
she was going to counter-claim and seek an order from the High Court
setting aside the Annulment Order and granting her leave to defend the
proceedings for annulment. Later, however, she said that she told the
respondent that she was tempted to ask the High Court to set aside the
Annulment Order but because they were no longer living as husband and
wife she would not launch proceedings if the property was transferred into
her name. She told her attorneys the same thing after they had told her it
would cost a lot to have the Order set aside. In any event she averred
that, even though the Order was fraudulently sought and wrongly granted,
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it was not ambiguous in its terms and she was the owner of the property
as she was in possesion of it at the material time. With regard to the
moveable properties claimed by the respondent she said that they had
been re-possessed by the furniture shops where they were bought
because the respondent had stopped paying the instalments due on them.
[10] In the founding affidavit in support of her counter–claim seeking, inter alia,
to have the Annulment Order set aside, she made it clear that the
marriage had been consummated and that the parties had lived together
as husband and wife at the property from the date of the marriage until he
left in 2005. She averred that had she been made aware of the
proceedings for annulment she would have vigorously defended them.
She also averred that if the Annulment Order were set aside, she should
be declared the owner of the property as she had been in possession of it
from the date of the marriage.
[11] In his replying affidavit dated 10 December 2008 the respondent denied
the appellant’s claims that the Annulment Order was fraudulently sought
and wrongly granted. He said the appellant had been correctly served with
the writ of summons and the notice of set down. In accordance with
normal practice she would have been sent a copy of the Annulment Order
by the Court. Moreover, letters had been sent to her by his attorneys in
May and July 2004 requesting her to leave the property in terms of the
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Order. He vehemently denied any fraudulent conduct on his part or that
he had been involved in any forgery of her signatures on the documents.
He re-iterated that they had not lived together since the marriage.
[12] In his answering affidavit to the counter-claim, which was also dated 10
December 2008, the respondent said that the Settlement Agreement and
the Substituted Settlement Agreement mentioned earlier had been
prepared for him by the University of Botswana Legal Clinic. He had then
personally taken each of them, the first on 10 February 2004 and the
second on 19 April 2004, to the appellant for signature. On each occasion
she took the document into the house and returned with it signed.
[13] The matter came before Nganunu CJ and on 11 March 2009, after hearing
the parties’ attorneys and having read the documents filed of record, the
Court issued the following Order:
“1. Paragraph 2 of the annulment Order is hereby varied by its
deletion, and by substituting therefor the following
paragraph:
2.1 Each party to retain such property as was in his or her
possession immediately prior to the purported
marriage and that each immediately returns to the
other such property belonging to the other or to which
the other may be entitled as may now be in his or her
possession.
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2.2 The respondent has no rights, title or interest of any
nature in or to Plot 04-002, Old Naledi, Gaborone and
should vacate and surrender the property to the
applicant hereof within 30 days of this Order.
2.3 The respondent is to refund to the applicant all rentals
that have arisen out of a hiring of rooms at the
property as from the month of March 2003 to date of
the surrender of the plot to the applicant. Such
rentals to be in such amount as shall be determined
and established by this court on a future date.
2. As of the date of this Order, the respondent is restrained from
collecting any rentals from tenants of the property and the
applicant shall have the rights to collect such rentals from date
hereof.
3. A decree absolute issued by the court on 2 September 2004 is
hereby set aside.
4. The counter application of the respondent for the rescission and
setting aside of the Annulment Order and any other reliefs
sought thereunder are hereby dismissed.
5. The respondent is to pay the costs of this application and those
of the counter application to the applicant.”
The applicant there is the present respondent and the respondent there is
the present appellant.
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[14] Also on 11 March 2009 Nganunu CJ delivered a judgment giving reasons
for the Order of that date. It is against that Order that the present appeal
has been taken.
[15] In his judgment the learned Judge a quo first dealt with the appellant’s
counter-claim to have the Annulment Order rescinded, because if that
succeeded there could be no order to vary as sought by the respondent.
He noted that the counter-claim was based on the ground that the Order
was “fraudulently” and “unlawfully” applied for and granted by the Court
erroneously under the impression that the appellant knew about the action
whereas in fact she had no notice or knowledge of it. Order 48 of the High
Court Rules allow for an Order to be rescinded in those circusmtances.
Rule 1 (a) of Order 48 is in the following terms:
“1. The judge may in addition to any other powers he may have
mero motu, or upon the application of any party affected,
rescind or vary –
(a) An order or judgment erroneously sought or erroneously
granted without notice to any party affected thereby.”
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[16] The learned Judge a quo then embarked on a detailed examination of the
record to see if he could come to any conclusion on the question of
whether the appellant had had notice or knowledge of the action. The
burden of proving her case on the counter-claim, on the balance of
probabilities, was on her. The learned Judge noted that when faced with
a conflict of facts on evidence in affidavits, as was the case here, the
Court would normally not make a finding and rule against one version or
the other but would send the matter to trial for oral evidence to be led. But
he went on to hold, under reference to Greenways (Pty) Ltd v Engen
Marketing Botswana (Pty) Ltd [2005] 2 BLR 270 CA, that where it was
clear that referring the case for oral evidence was not necessary, the
Court will not shy away from what he described as a robust view of the
situation and make the appropriate ruling.
[17] In the Greenways case Tebbutt JP, at pages 275 – 276, said this:
“It is well settled in South Africa following the decision in the Court
of Appeal of that country in the case of Plascon – Evans Ltd v
Van Riebeck Paints (Pty) Ltd 1984 3 SA 623 (A) at p634, a
decision frequently referred to and followed in this country, that
where in proceedings on motion disputes of fact arise on the
affidavits an order may nevertheless be granted, where those facts
alleged in an applicant’s affidavits which are admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. Moreover, the court should closely scrutinise
the alleged issues of fact to decide whether, despite any dispute on
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them, the matter can be decided without the aid of oral evidence
and if the probabilities overwhelmingly favour a specific factual
finding, the court would take a robust approach and make that
finding (see South Peninsula Municipality v Evans & Others 2001
(1) SA, 271 at 283 E-H)”.
[18] Here the appellant’s application to rescind the Annulment Order was
based only on her unsupported averments that she had not been served
with any document concerning the annulment proceedings and had no
knowledge that they were taking place. Moreover, she offered only a bare
denial of the substantial documentary evidence of the respondent. The
Judge’s conclusion was that these bare statements and denials could not
stand in the way of “such overwhelming evidence to the contrary”.
“Evidence,” he continued, “which on the face of it comes from different
sources, both at the beginning of the proceedings and thereafter; and
which confirm and corroborate each other. That evidence clearly called
for an answer; and there has been none forthcoming. In such
circumstances, mere denials, like what the respondent has provided,
cannot constitute a conflict of facts that call for evidence at a trial. In such
circumstances, the court is entitled, in my view, to take a robust view of
the situation and make a decision even in the face of a claim of a conflict
of facts”.
[19] The learned Judge a quo found that, having regard to her bare averments
and the cogency of the evidence on the other side, the appellant had not
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proved that she had not been served with various process. The counter-
claim was accordingly dismissed with costs.
[20] The Judge a quo then proceeded to consider the respondent’s application
to vary the Annulment Order and his claim to the rentals in respect of the
property.
[21] Order 48 Rule 1 (b) provides as follows :-
“1. The judge may in addition to any other powers he may have
mero motu, or upon the application of any party affected, rescind or
vary –
(b) an order or judgment in which there is an ambiguity or a
patent error or omission, but only to the extent of such
ambiguity, error or omission.”
[22] The Judge then considered whether there was an ambiguity or a patent
error in paragraph 2 of the Annulment Order. He held, first, that there was
a latent ambiguity in that, although paragraph 2 was at first sight
unambiguous, when one had regard to the law, it was clear that it was
ambiguous. The law in question, which was not in dispute, was that when
a marriage is annulled the marriage is regarded as not having existed; and
so far as property is concerned, each party is restored to the status quo
ante and so gets the property that he or she had before the marriage was
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entered into. Reference was made to, inter alia, Lawsa Vol.16 para . 40
and Sinclar on the Law of Marriage page 402. In that situation the
judge held that it did not make legal sense for the Court to order that a
party should keep property that he or she had possession of at the time of
the annulment but it did make legal sense that each party should have
property that he or she had at the time they entered into the marriage. He
held that the Court which made the Annulment Order was under no
misapprehension as to the nature of the proceedings, which were for
nullity, not divorce. It made an order for nullity. It would therefore have
intended to make an order as to property which was consistent with that
but its language was ambigous in that it did not make that intention clear
and unambiguous. Alternatively, the learned Judge a quo was of the view
that the Annulment Order contained an error with regard to the property
rights that could flow from an annulment of marriage. In either event, he
considered that the Order was amenable to variation in terms of Order 48
Rule 1 (b).
[23] Turning to the respondent’s claim for the payment of rental income derived
from the property the Judge a quo held that the respondent was entitled to
payment of that income from March 2003, the date since when she had
had exclusive use of the property. The actual amount of the rental income
due, however, he referred to evidence as there was a wide difference
between the parties as to what the amount should be.
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[24] With regard to the moveable properties claimed by the respondent, the
learned Judge held that they must be returned by the appellant to him
save insofar as she could prove that they had been repossessed by the
furniture companies that had sold them. That proof should be made
available to the Court at the time of deciding the amount of rental income
due.
[25] In her heads of argument the appellant reiterated that she had not been
served with the writ of summons or the respondent’s declaration seeking
annulment of the marriage. She submitted that the Judge a quo had erred
in concluding otherwise. She also reiterated that the respondent’s ground
for seeking annulment had no basis, because the marriage had been
consummated. The respondent should rather have pleaded irretrievable
breakdown of the marriage and sought divorce. She would not have
opposed that. She therefore sought rescission of the decree of nullity or,
alternatively, an order declaring that the Annulment Order was not
ambiguous and needed no amendment.
[26] In his oral submissions on her behalf Mr. Sebola criticised the manner in
which the Judge a quo had come to his decision. He submitted that there
should have been oral evidence at least as to whether the marriage had
or had not been consummated and as to whether the signature on the
Substituted Settlement Agreement was hers. It was not wise for the
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learned Judge not to have taken that course, although Mr. Sebola
accepted that it was open to a court to take a robust view and decide the
matter on the basis of affidavits. He also submitted, with particular
reference to the question whether the appellant had been served with the
court papers and had knowledge of the proceedings, that Dow J.
exercised her discretion in an unwise way when she proceeded to grant
decree of nullity in the absence of the appellant.
[27] It is convenient to start by considering whether the learned Judge a quo
erred in any way in dismissing the appellant’s counter-claim or counter
application, because, as he himself said, if the counter-claim was
successful, the question of variation of the Annulment Order did not arise.
[28] Whether the appellant had knowledge of the proceedings and had been
served with any of the documents in those proceedings was a question of
fact. No doubt it could have been referred to oral evidence but Mr. Sebola,
rightly in my view, accepted that it was open to the Court to decide it on
affidavit evidence in appropriate circumstances. The furthest he was
prepared to go was to say that in the circusmtances of this case it was
unwise for the Judge a quo to decide it on affidavit evidence. But where
the matter is one of discretion, as it is here, an appellant has to go further
than that to be successful. It has to be shown that the Judge overstepped
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the bounds of this discretion in proceeding as he did. Mr. Sebola, again
rightly in my view, did not attempt to do that.
[29] In my opinion the learned Judge was fully entitled to exercise his
discretion in the way he did and decide this question of fact on affidavit
evidence and without referring the matter to oral evidence. On the one
hand, as he pointed out, there was on the part of the appellant only her
bare assertions that she had no knowledge of the annulment proceedings
and had not been served with any of the documents in those proceedings.
They stood alone and unsupported. On the other hand, there was what
the Judge rightly described as “overwhelming evidence to the contrary.”
That evidence is set out in his judgment as follows (before him the
applicant was the present respondent, the respondent or defendant the
present appellant):
“In his founding affidavit, and his answer and replies to the various
applications, the applicant states that the respondent was fully served
with the summons commencing this action and all the annexures
thereto. Firstly, he supports the service of the summons from an
endorsement, which can also be seen in the original court summons,
allegedly inscribed thereon by the court messenger M. Keatlholetswe,
who stated on that endorsement that he had served the summons at
10.30 a.m. on 5th September 2003. He signed for this statement in
the summons; and in addition thereafter swore an affidavit of service
before a Commissioner of Oaths at the Borakanelo Police Station,
Gaborone on 26 November 2003, to the effect that he had served the
summons on 5 September 2003 on the defendant and explained the
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nature and content of the documents, as well as informing the
defendant that the documents concerned an annulment of their
marriage and she was required to plead thereto. The affidavit is
detailed as to what was done or explained to the respondent, but it
does not, however, state the response of the defendant or where she
was served.
The next notification of the proceedings to the respondent, it is said, is
contained in a notice to plead, issued on 23 February 2004 addressed
to both the Registrar of the Court and the defendant, Khelinah
Selatlhwa, Box 501640 Gaborone. This was apparently sent by post
and the court’s copy is in the court file.
According to the applicant, he also served a notice of set down of the
action personally on the respondent on 6 May 2003; and
subsequently he swore to an affidavit of such service on 10 May 2003
and filed a copy in court. From these two returns of service, and the
notice to plead, the applicant contends that the respondent was
served and received knowledge of the action for annulment well
before judgment on it was given.
In addition and in preparation for the hearing, two settlement
agreements were signed by the parties according to the applicant.
They are dated 4 March and 19 April 2004 respectively. They purport
to show that both parties with separate witnesses signed these
documents. If they were so signed, they too would show that the
respondent had knowledge of the institution of the annulment case.
Furthermore, on 24 May 2004 and on 7 July 2004, Moremi attorneys
and the Legal Clinic of the University of Botswana respectively, and
acting for the applicant, advised the respondent of the conclusion of
the court case. In the letter of Moremi attorneys, stating that her
husband had obtained a divorce from her. In the case of the letter by
the Legal Clinic of the university, respondent was notified of the
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annulment of the marriage. Both letters sought the respondent to
vacate the property plot 04-002 Naledi in favour of the applicant.
The applicant believes that after the judgment, the High Court would
have sent a copy of the order of 17 May to the respondent at her
postal address,as is done in all other cases; and he cites this as
additional evidence that the respondent knew much earlier than 18
August 2008 that her marriage had been annulled, but she did nothing
about it.
The applicant says that after the case was completed and in June
2006, he visited the respondent and talked to her personally about the
annulment of their marriage, but according to him she assaulted him,
causing an injury on his head for which he received some stitching. A
medical report is filed in proof of the injuries, but it is dated 6 July
2006, instead of a date in June, the month he claims for the visit. He
says he did not again visit her himself as he feared her.”
This was, as the Judge said, evidence which on the face of it comes from
different sources, both at the beginning of the proceedings and thereafter
and which confirm and corroborate each other. Agreeing with the Judge,
this evidence in my opinion clearly called for an aswer; but there was none
save for a bare denial. In these circumstances the learned Judge was in
my opinion well entitled to deal with the appellant’s counter-claim in the
way he did and to dismiss it.
[30] At this stage I should just say, in parenthesis as it were because it forms
no part of the appellant’s appeal, that in my opinion there is no substance
in the criticism made by Mr. Sebola of Dow J that it would have been wise
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of her to have called for the presence of the appellant before the
Annulment Order was made. It is all very well to say this in the light of
subsequent events; hindsight is a wonderful thing. But faced with the
documents placed before her, which on their face showed that the
appellant had full knowledge that an annulment order was being sought
by the respondent and was in full agreement with it, Dow J. cannot in my
opinion be criticised for proceeding to grant the Annulment Order in her
absence.
[31] I turn now to the question whether the Annulment Order should have been
varied by the learned Judge a quo as sought by the respondent. In his
submissions Mr. Sebola did not add to what was said in the appellant’s
heads of argument, which was simply that the Annulment Order was not
ambiguous and needed no amendment. I do not agree. In my opinion, for
the reasons given by the Judge a quo, the Order came within the ambit of
Order 48 Rule 1 (b) of the High Court on the ground either of ambiguity or
of patent error. Mr. Sebola did not suggest, rightly in my view, that the
Judge was incorrect when he said that when a marriage is annulled the
marriage is regarded as not having existed; and so far as property is
concerned, each party is restored to the status quo ante and so gets the
property that he or she had before the marriage was entered into. I refer
to the authorities mentioned in paragraph [22] above.
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[32] In these circumstances the learned Judge was in my opinion correct to
vary the Annulment Order as he did. I should just add that there was no
particular issue taken as to the parts of his Order relating to the rentals
from the property or setting aside the Decree Absolute issued by the
Court on 2 September 2004.
[33] For all these reasons the appeal is dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE THIS 27TH DAY OF JANUARY 2011. _____________________ LORD ABERNETHY JUSTICE OF APPEAL I agree _____________________ M. M. RAMODIBEDI JUSTICE OF APPEAL I agree ______________________ C. T. HOWIE JUSTICE OF APPEAL