Automated Summary
Key Facts
The Applicant (Mcolisi Motsa) successfully rescinded a court order from 16 February 2024 that required expunging their customary marriage certificate. The original order was erroneously granted due to the 1st Respondent's attorney (Mr. L.N. Dlamini) misleading the court by claiming there was no Answering Affidavit filed, despite evidence showing the affidavit was served and filed. The 1st Respondent admitted this misrepresentation in their Answering Affidavit, conceding 'contents noted and not in dispute.' The court ruled that the Applicant was not in wilful default and had a bona fide defense, granting the rescission application with costs on the ordinary scale.
Issues
- The Applicant argued the 1st Respondent did not meet statutory requirements for dissolving the customary marriage, such as family consultation and proof of grounds like infidelity. The 1st Respondent admitted to suspicions of infidelity but failed to provide conclusive evidence, and the families had not met to agree on dissolution.
- The 1st Respondent opposed the rescission by asserting the Applicant was in wilful default, having failed to file an Answering Affidavit. The Applicant countered that the default was not intentional, as the attorneys had served and filed the affidavit but it was removed from the file, leading to the Court's erroneous decision.
- The primary issue was whether the Court's Order of 16th February 2024, directing the expungement of the marriage certificate, was erroneously granted because the 1st Respondent's attorneys misled the Court by claiming no Answering Affidavit was filed, despite it having been served and filed. The Applicant argued the order was obtained through fraud, while the 1st Respondent contended it was lawful and non-rescindable.
- The 1st Respondent claimed the rescission prayer was unenforceable because the marriage certificate was already cancelled, and restoring it would require re-registering the marriage. The Applicant argued the order should be rescinded to rectify the Court's error based on false submissions.
Holdings
- Civil Procedure - Rescission Application - Applicant not in wilful default - Has a bona fide defence and prospects of success. Held: Application for rescission granted with costs on the ordinary scale.
- The Applicant was not in wilful default. The court is satisfied that the Applicant has a bona fide defence with prospects of success.
Remedies
- The application for rescission was granted, setting aside the Court's Order of 16th February 2024 which directed the Registrar to expunge the marriage certificate of the Applicant and 1st Respondent.
- The Applicant was granted costs on the ordinary scale, as the 1st Respondent's attorneys misrepresented the filing status of the Answering Affidavit.
- The court directed the 2nd Respondent and relevant departments to restore the marital status in their records exactly as it was prior to the 16th February 2024 order.
Legal Principles
The court applied Rule 42 of the Civil Procedure Rules, which allows for the rescission of orders erroneously granted. This was based on the 1st Respondent's attorneys misleading the court about the absence of an Answering Affidavit, as discussed in Polo Dlamini v Martha Dlamini SZHC Case No. 1581/2008. The ruling emphasized that an order is erroneously granted when the court was unaware of a fact that would have prevented its issuance.
Precedent Name
- Kenneth Ngcamphalala v Swaziband and Nedbank
- Polo Dlamini v Martha Dlamini
Cited Statute
High Court Rules of Eswatini
Judge Name
Q.M. Mabuza
Passage Text
- Held: Application for rescission granted with costs on the ordinary scale.
- The Order was falsely/fraudulently obtained in that the 1st Respondent's Attorney misled the Court that the matter was not opposed as the Applicant had failed to file in time.
- I am satisfied that the Applicant was not in wilful default. ... I am equally satisfied that the Applicant has a bona fide defence with prospects of success.