Introduction
The case of S.L v A.C (8030/2021) [2025] ZAWCHC 565 (4 December 2025) serves as a stark reminder that access to justice does not mean access to courts on one’s own terms. Davis AJ delivered a judgment that will undoubtedly resonate with practitioners who have encountered recalcitrant litigants who treat court orders as mere suggestions and procedural rules as optional guidelines.
At its heart, this matter concerned two interrelated applications in a divorce action: a rescission application brought by the defendant to set aside a discovery order, and a striking application brought by the plaintiff seeking to strike out the defendant’s defence for non-compliance with that very discovery order. What makes this judgment particularly instructive is not merely the legal principles it reiterates, but the court’s unflinching analysis of conduct that amounts to abuse of court process and the ethical responsibilities of legal practitioners who enable such conduct.
The judgment grapples with fundamental questions about the balance between a litigant’s constitutional right of access to courts enshrined in section 34 of the Constitution and the imperative to maintain the orderly administration of justice through compliance with procedural rules. Davis AJ confronts the reality that the justice system cannot function where litigants systematically flout court orders and treat litigation as a war of attrition.
For practitioners, the case offers crucial guidance on the requirements for rescission at common law, the exercise of the court’s discretion under Rule 35(7) of the Uniform Rules of Court to strike out a defence for failure to make discovery, and the limits of judicial patience when confronted with serial non-compliance. Perhaps most significantly, the judgment contains a pointed reminder of the ethical duties imposed on legal practitioners by the Legal Practice Council Code of Conduct, particularly the duty not to permit abuse of court process and the principle that a practitioner’s duty to the court supersedes the duty to the client.
This case study in contumacy ultimately resulted in the striking out of the defendant’s defence and a punitive costs order on the attorney and client scale, demonstrating that courts possess both the power and the will to protect the administration of justice from those who seek to undermine it.
The Facts: A Chronicle of Contumacy and Non-Compliance
The parties were married in 2009 in terms of Shariah Law. Two minor children were born of the marriage, a boy of 13 and a girl of 10. By the time the plaintiff issued summons in the divorce action on 12 May 2021, she and the minor children were residing in Cape Town whilst the defendant resided in Sandton, Gauteng.
The plaintiff’s claims in the divorce action were comprehensive. She sought a decree of divorce, maintenance for herself and the minor children, and an order in terms of section 7(3) of the Divorce Act 70 of 1979 for the redistribution of assets to the value of 50 per cent of the defendant’s estate. She also sought incorporation of a parenting plan regulating the parties’ parental rights and obligations regarding the minor children.
The defendant’s response, delivered only after a notice of bar was served, raised a curious defence. In his plea delivered on 30 July 2021, he admitted the parties had entered into a marriage but denied it was valid in terms of Shariah Law. The foundation of this denial was an allegation that the plaintiff had deceived him regarding her age at the time of marriage. Predicated on this denial of a valid Muslim marriage, the defendant contended that the provisions of the Divorce Act did not apply to the union.
In his counterclaim, the defendant sought an order that the minor children reside with him with limited contact to the plaintiff. He painted an unflattering picture of the plaintiff, alleging she was emotionally unstable, engaged in parental alienation, displayed abusive and violent behaviour in front of the children, and had uprooted them from a stable environment in Johannesburg. He claimed superior emotional and psychological capacity to care for the children and sought forfeiture of any redistribution order that might be awarded to the plaintiff.
The plaintiff’s plea to the counterclaim denied these allegations and countered that she had been compelled to leave the former matrimonial home due to the defendant’s verbal and physical violence and abuse towards her and the minor children.
A Rule 43 order was granted on 31 May 2021 requiring the defendant to pay cash maintenance to the plaintiff, rental, medical expenses, the children’s education costs, and a contribution of R200 000 towards the plaintiff’s legal costs in the divorce action. The defendant’s compliance with this order would prove to be sporadic at best. On 26 September 2024, the plaintiff launched contempt proceedings for the defendant’s failure to pay cash maintenance for three months and other outstanding payments. Although the defendant settled a portion of the arrears shortly before the hearing, Nuku J declared him in contempt on 25 October 2024.
The defendant’s attempt to appeal this finding was unsuccessful. Nuku J refused leave to appeal on 13 March 2025, and his subsequent petition to the Supreme Court of Appeal was refused on 23 June 2025. Meanwhile, the plaintiff brought a second contempt application on 20 December 2024 for the defendant’s failure to pay rental from December 2022 to December 2024. Van Zyl AJ declared the defendant in contempt on 17 January 2025. The defendant’s application for leave to appeal this second contempt order remained pending at the time of the hearing before Davis AJ.
The discovery debacle began on 25 January 2024 when the plaintiff delivered a notice in terms of Rule 35(1) of the Uniform Rules of Court calling upon the defendant to make discovery. The defendant delivered a discovery affidavit on 31 January 2024. Dissatisfied with the disclosure, the plaintiff delivered a notice in terms of Rule 35(3) on 4 June 2024 calling for discovery of additional documents relevant to her claims.
The defendant’s response was due on 19 June 2024. None was forthcoming. The plaintiff’s attorney extended the deadline to 24 June 2024, warning that an application to compel would be brought failing compliance. The letter was ignored. True to her word, the plaintiff launched an application to compel on 5 July 2024.
On 28 June 2024, the defendant filed a notice of opposition to the application to compel but then failed to deliver his answering affidavit on time despite two reminder letters. The plaintiff brought a chamber book application, and on 21 August 2024, Thulare J granted an order directing the defendant to serve his answering affidavit within five days, failing which the application to compel could be enrolled on the unopposed roll. The order was served on the defendant’s attorney by email on 22 August 2024.
The defendant was obliged to deliver his answering affidavit by 29 August 2024. He failed to do so. The matter was enrolled on the unopposed motion roll for 17 October 2024, with the plaintiff’s attorney sending notice of set down to the defendant’s attorney on 30 September 2024. There was no appearance for the defendant on 17 October 2024, and Baartman J granted an order by default directing the defendant to reply to the plaintiff’s Rule 35(3) notice within ten days of service.
The order was served on the defendant’s attorneys on 25 October 2024 by email. The defendant failed to deliver the required reply by 8 November 2024. The plaintiff’s attorney wrote on 11 November 2024 demanding compliance by close of business on 12 November 2024, failing which the defendant’s defence would be struck out. Once again, the letter elicited no response.
The plaintiff launched the striking application on 7 January 2025, set down for hearing on the unopposed motion roll on 14 March 2025. The application was served on the defendant’s attorney by email on 7 January 2025. Silence reigned until 11 March 2025, three days before the matter was due to be heard unopposed. On that day, the defendant’s attorney filed a notice of opposition and conveyed his intention to file an answering affidavit and bring a rescission application.
The parties reached agreement embodied in an order granted by Kusevitsky J on 14 March 2025, postponing the striking application to 22 October 2025 and requiring the defendant to deliver the rescission application by no later than 4 April 2025. Provision was made for filing answering and replying affidavits.
The rescission application was not delivered on 4 April 2025. The plaintiff’s attorney wrote on 7 April 2025 calling for service, failing which a chamber book application would be brought. No response was received. On 8 April 2025, the plaintiff brought a chamber book application for an order compelling delivery within five days. Bhoopchand AJ granted such an order on 16 April 2025, directing service within five days, failing which the striking application could be enrolled on the unopposed motion roll.
The defendant was obliged to file the rescission application by 30 April 2025. He failed to do so. The striking application was set down for 13 May 2025. The defendant’s attorney appeared before Saldanha J and informed the court that he had received instructions only the day before to prepare the rescission application, this despite the rescission application having first been heralded two months previously.
The transcript reveals Saldanha J’s displeasure. He pointed out the defendant’s attorney had an ethical obligation to advise compliance with court orders and that the defendant was abusing the court’s process. Saldanha J granted an order on 13 May 2025 directing the defendant to file the rescission application and his answering affidavit in the striking application by 14 May 2025, with provision for further affidavits and heads of argument. Both applications would be heard on 22 October 2025. The defendant was ordered to pay wasted costs on the punitive attorney and client scale.
Spurred by Saldanha J’s intervention, the defendant delivered the rescission application and answering affidavit on 14 May 2025. The plaintiff’s answering affidavit in the rescission application was delivered out of time as she awaited the transcript of proceedings before Saldanha J. The plaintiff’s attorney proposed an adjusted timetable for the defendant’s replying affidavit but received no response. A further letter on 25 August 2025 asking when the replying affidavit would be delivered was similarly ignored.
The plaintiff brought yet another chamber book application on 4 September 2025 seeking an order directing the defendant to serve his replying affidavit within five days, failing which he would be barred from doing so. Holderness J granted such an order on 12 September 2025, served on the defendant’s attorney by email on 18 September 2025. The defendant was obliged to deliver his replying affidavit by 6 September 2025. He did not do so, even belatedly.
When the two applications came before Davis AJ on 22 October 2025, the plaintiff had delivered heads of argument and a practice note. The defendant had filed neither heads of argument nor a practice note, and no replying affidavit had been delivered. Nevertheless, counsel was briefed to appear for the defendant.
Rescission at Common Law: Good Cause Still Requires Good Explanations
At the hearing before Davis AJ, counsel for the defendant, Mr Holland, disavowed reliance on Rule 42(1)(a) of the Uniform Rules of Court and relied solely on the common law grounds for rescission. This meant the defendant had to satisfy the well-established requirements for demonstrating “good cause” or “sufficient cause” for rescission of the default judgment granted by Baartman J.
The court confirmed that whilst these concepts defy precise definition and imply a wide judicial discretion, the established jurisprudence requires an applicant to satisfy three core requirements. First, the applicant must give a reasonable and acceptable explanation for the default, which must not be wilful or grossly negligent. Second, the applicant must show the application is made bona fide and not merely with the intention of delaying the plaintiff’s claim. Third, the applicant must demonstrate a bona fide defence which prima facie has some prospects of success.
Davis AJ drew attention to the jurisprudence in Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture 2021 (11) BCLR 1263 (CC), Government of the Republic of South Africa v Fick 2013 (10) BCLR 1103 (CC), Colyn v Tiger Food Industries t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA), Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) and De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) which established these principles. An important additional consideration identified in the Zuma case is whether the applicant has demonstrated a determined effort to lay his case before the court and not to abandon it.
The court emphasised a critical principle articulated in Chetty: both requirements of a satisfactory explanation for default and prospects of success on the merits must be satisfied. It is insufficient if only one requirement is met. A party showing no prospect of success will fail regardless of how reasonable his explanation for default. Conversely, ordered judicial process would be negated if a party who offers no explanation other than disdain for the rules could nevertheless obtain rescission on the ground of reasonable prospects of success.
In evaluating the defendant’s case, Davis AJ identified that the defendant bore the burden of explaining two discrete instances of default. First, why the judgment in the application to compel was allowed to go by default, particularly when he had been ordered by Thulare J to deliver an answering affidavit by 29 August 2024 but failed to do so. Second, why he delayed in launching the rescission application.
The founding affidavit in the rescission application was signally silent on the first issue. No attempt whatsoever was made to explain why the defendant allowed Baartman J’s order to be granted in his absence despite having filed a notice of opposition to the application to compel.
Regarding the delay in launching the rescission application, the defendant advanced a disingenuous argument. He suggested he was not required to explain the delay between service of Baartman J’s order on 25 October 2024 and the date of Kusevitsky J’s order on 14 March 2025 because the plaintiff had agreed, and Kusevitsky J had ordered, that he could bring the rescission application by 4 April 2025.
Davis AJ rejected this submission as misconceived. Kusevitsky J was not seized with the rescission application and could not, and did not purport to, decide anything concerning it. She merely made an order by agreement regulating the further conduct of the matter. There was no indication in the wording of the order that the plaintiff waived her right to object to rescission on the ground of delay. Even had there been such a waiver, the plaintiff’s attitude could not bind the court, as it remained for the court to determine whether sufficient explanation had been advanced for the delay.
The court referred to P E Bosman Transport Works Committee and Others v P E Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) for the proposition that the defendant was required to provide an explanation for the entire period of default or delay, from when his answering affidavit in the application to compel was due until the rescission application was brought, as well as his subsequent failure to deliver a replying affidavit and heads of argument timeously.
The defendant provided no explanation for why he failed to deliver an answering affidavit timeously in the application to compel, why he failed to bring the rescission application between 25 October 2024 and 14 March 2025, why he failed to deliver a replying affidavit or comply with Holderness J’s order, and why he failed to deliver heads of argument.
The sole explanation the defendant offered related only to his failure to comply with the orders of Kusevitsky J and Bhoopchand AJ. He claimed he was unable to comply because his legal team had to prepare an urgent petition to the Supreme Court of Appeal when Nuku J refused leave to appeal the first contempt order. He further alleged he was unable to access funds because the plaintiff had attached his bank account, suggesting he could not pay his legal team to prepare the rescission application.
The plaintiff demolished these explanations in her answering affidavit. She pointed out that the defendant’s petition to the Supreme Court of Appeal was filed on 10 April 2025, whereas he only instructed his attorney on 12 May 2025 to prepare the rescission application. She attached a copy of the defendant’s Discovery Purple Card bank statement for April 2025, obtained under subpoena, which revealed multiple substantial payments ranging from R25 000 to R200 000 into the defendant’s account from CA Cell, the defendant’s close corporation. The statement disclosed what appeared to be luxurious expenditure including travel, restaurants, spa treatments, a purchase for R8 916.50 from Armani Exchange in Sandton, and two purchases at Incredible Connection for R45 998 and R115 004.
These allegations stood undisputed as the defendant failed to file a replying affidavit. Davis AJ found the defendant’s reliance on the unavailability of his legal team to be spurious given the petition was already lodged on 10 April 2025 whilst instructions for the rescission application only came on 12 May 2025. The claim of lacking access to funds was manifestly untrue when regard was had to the April 2025 bank statement, which revealed the defendant had access to other banking and credit facilities and was adept at moving funds between accounts.
Mr Holland conceded the defendant’s explanation for default was inadequate but argued that strong prospects of success on the merits may compensate for a weak explanation. Davis AJ rejected this submission decisively. The Zuma case expressly rejected the notion that a litigant can escape the obligation adequately to explain default by showing prospects of success on the merits.
Having found the explanation for default unsatisfactory, the court observed it was not strictly necessary to consider prospects of success. Nevertheless, Davis AJ proceeded to do so for completeness. He noted the defendant had misconceived the relevant enquiry. As rescission was sought of Baartman J’s order compelling response to a Rule 35(3) notice, the defendant was required to demonstrate prima facie prospects of success in resisting that application to compel, not in defending the divorce action itself.
The plaintiff’s Rule 35(3) notice sought various bank statements and financial documents alleged to be relevant to the issues in the divorce action. The question of relevance for discovery purposes is determined with reference to the issues on the pleadings, as confirmed in Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 297 (T), Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) and ST v CT 2018 (5) SA 479 (SCA).
In the divorce action, the plaintiff claimed spousal maintenance. In his plea, the defendant denied having sufficient means to afford the maintenance claimed. By placing affordability of maintenance in issue, the defendant rendered his financial standing a live issue, making documents pertaining to his finances and means relevant. The defendant raised no objection to the contents of the Rule 35(3) notice in the rescission application. He did not complain it was overly broad.
Mr Holland’s sole argument was that because the defendant disputed the existence of a valid marriage, the plaintiff was not entitled to discovery regarding his finances unless and until she demonstrated entitlement in terms of the Divorce Act. Davis AJ observed this argument might have gained traction had the defendant brought an application in terms of Rule 33(4) to have the question of the marriage’s validity determined as a separated issue with the remainder of proceedings stayed. However, the defendant had not sought such separation despite ample opportunity to do so. As matters stood, the defendant’s means remained an issue on the pleadings as he disputed his ability to pay the maintenance claimed.
The court concluded the defendant failed to show prospects of success in resisting the application to compel compliance with the Rule 35(3) notice. Furthermore, the litigation history demonstrated the absence of any clear intention and determined effort on the defendant’s part to lay his case before the court. The defendant failed to explain why the application to compel went by default, his delay in launching the rescission application, and his failure to comply with numerous court orders directing him to file affidavits.
The ineluctable conclusion was that the defendant was not serious about finalising the divorce action. His conduct pointed to a concerted effort to delay and protract the divorce action, particularly the plaintiff’s claims for maintenance and division of assets. Davis AJ found the rescission application was not bona fide, as the defendant had no genuine wish to put forward his case but was merely pursuing a modus operandi aimed at delaying and frustrating the plaintiff’s claims.
Given these findings regarding the defendant’s failure to provide a satisfactory explanation for default, his lack of prospects of success in resisting the application to compel, and his lack of bona fides in bringing the rescission application, Davis AJ concluded the defendant had not made out a proper case for the remedy of rescission. The rescission application fell to be dismissed.
Striking Out Under Rule 35(7): When the Court’s Patience Runs Out
Davis AJ turned his attention to the striking application brought in terms of Rule 35(7) which provides that if any party fails to give discovery or, having been served with a notice under subrule (6), omits to give notice of a time for inspection or fails to give inspection as required, the party desiring discovery or inspection may apply to court, which may order compliance and, failing such compliance, may dismiss the claim or strike out the defence.
The court explained that the rule contemplates a two-stage procedure. At the first stage, an order compelling the defaulting party to provide discovery is sought. The usual order made at this stage includes granting leave to the applicant to apply to court on the same papers, amplified if necessary, for dismissal of the defence or striking out of the claim in the event of non-compliance with the discovery order. The rule does not envisage automatic dismissal or striking out upon non-compliance, but only on application.
At the second stage, where dismissal or striking out is sought, the court must determine whether there has in fact been non-compliance with the discovery order and, if so, exercise a discretion whether to grant the order, which discretion must be exercised judicially. Davis AJ drew upon Ikamva Architects CC v MEC for the Department of Public Works and Another (CA337/2013) [2014] ZAECGHC 70 and MEC Department of Public Works v Ikamva Architects 2022 (6) SA 275 (ECB) for these principles.
The court acknowledged that the power to dismiss a claim or strike out a defence is a drastic remedy impacting on the constitutional right of access to court enshrined in section 34. The usual effect of such an order is to prevent the presentation of a claim or defence so that judgment by default will be entered for the other party. The Ikamva case established that striking out should normally be a last resort, considering its potential to deprive a litigant of an entrenched right to a fair trial, and that the sanction should fit the breach.
However, Davis AJ emphasised critical considerations often overlooked in discussions of striking out applications. Whilst section 34 grants everyone the right of access to courts, it does not afford litigants the right of access on their own terms. The constitutional imperative to provide access to court for all persons necessitates that such access be regulated through procedural rules designed to ensure fair administration of justice in the interests of all parties. Both parties to a dispute have the right to a fair hearing. If one party delays the matter by failing to comply with the Rules of Court, that party is likely trampling on the other party’s right to a fair hearing. The rules exist for the benefit of all and should be observed by all.
Equally important is recognition that the Rules of Court exist to preserve the orderly administration of justice. The justice system would collapse in the chaos which would ensue were litigants permitted to ignore procedural requirements and engage in a free-for-all. The justice system is undermined when litigants wilfully disobey the rules. Even worse is the flouting of orders aimed at enforcing compliance with procedural rules. Open disdain for the authority of the court, if allowed to go unchecked, represents an existential threat to the maintenance of the rule of law. This aspect must be borne in mind when considering whether the sanction fits the breach.
Davis AJ held that the degree of contumacy of a litigant must play a role in determining whether striking out is appropriate. Where there is a reasonable explanation for non-compliance with a discovery order and it appears the non-compliance was not wilful and mala fide, the remedy of striking out will not be appropriate. But if there is no satisfactory explanation for non-compliance and the failure to comply is prima facie contemptuous, as explained in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), the remedy of striking out may be the only way to vindicate the authority of the court.
Particularly where it appears the failure to comply with a discovery order is part of a pattern of contemptuous and obstructive conduct, a robust exercise may be called for of the court’s inherent power at common law to protect itself and others against abuse of its processes. This power was recognised in Beinash v Wixley 1997 (3) SA 721 (SCA) and affirmed in Lawyers for Human Rights v Minister in the Presidency 2017 (1) SA 645 (CC). It has received statutory recognition in section 173 of the Constitution which provides that the Constitutional Court, Supreme Court of Appeal and High Court each has the inherent power to protect and regulate their own process and to develop the common law, taking into account the interests of justice.
The court held that the common law requirements for rescission of a default judgment, with some modification, provide a useful guideline for exercising the discretion under Rule 35(7). A respondent resisting a striking out application should be required to put up a reasonable explanation for failing to comply with the discovery order, which suffices to show the non-compliance was not wilful or mala fide, and demonstrate a bona fide claim or defence which carries prima facie prospects of success.
In the striking application before him, Davis AJ noted the plaintiff’s allegations in the founding affidavit were not placed in dispute. The defendant’s defence was based solely on the rescission application. The defendant made no attempt in the striking application to explain why he failed to comply with Baartman J’s discovery order. Reliance was placed on the rescission application, but as already found, the defendant delayed in launching it without explanation and the rescission application was ultimately unsuccessful.
Davis AJ found the defendant failed to put up a satisfactory explanation for his failure to comply with the discovery order. His reliance on the rescission application did not serve to show his failure to comply was not wilful or mala fide. Instead, it formed part of a pattern of deliberate delay and obstruction, aptly described by the court as “Stalingrad tactics”.
Regarding whether the defendant had a bona fide defence with prima facie prospects of success, the court examined the defendant’s reliance in the rescission application on the assertion that there was no valid Muslim marriage because the plaintiff allegedly lied about her age, and hence no valid marriage for purposes of the Divorce Act.
In the first instance, it was not clear that a misrepresentation as to age would indeed affect the validity of a Muslim marriage. In South African law, the validity of a marriage is not affected by a mistake as to the age of one of the parties, which is regarded as an error in motive not relevant to the marriage itself and therefore does not vitiate consent to marry. The court referred to the textbook authority in Jacqueline Heaton et al “Marriage” 16 LAWSA (2ed).
The defendant stated he was of the opinion, having taken counsel from various Ulama bodies around South Africa, that a misrepresentation by the plaintiff as to her age would be material and would invalidate the marriage. However, he failed to identify the experts he consulted or to provide affidavits from them. His evidence in this regard was inadmissible hearsay. It was incumbent upon the defendant to substantiate his defence with expert evidence on affidavit from persons qualified to expound on the Islamic law of marriage. He failed to do so.
In any event, the factual foundation of the defendant’s defence was disputed. The plaintiff denied lying about her age and alleged the defendant was well aware of it. She explained the defendant was aware she had two adult children from a previous relationship, that he had her identity document to arrange air tickets for her to visit him in Johannesburg before they married, that he had her passport details to make travel arrangements for their honeymoon in Dubai, and that he himself inserted her identity number on their Muslim marriage certificate.
These allegations stood undisputed as the defendant failed to deliver a replying affidavit in response to the plaintiff’s answering affidavit in the rescission application. The plaintiff’s uncontested version put paid to the defendant’s claim that he was misled regarding her age. Davis AJ concluded the defendant did not have a bona fide defence to the plaintiff’s claim in the divorce action which prima facie carried prospects of success.
However, the defendant’s counterclaim in the divorce action stood on a different footing. The counterclaim related entirely to the minor children. The defendant made allegations bearing on the best interests of the minor children. Section 6(1) of the Divorce Act states that a decree of divorce shall not be granted until the court is satisfied that the provisions contemplated with regard to minor children are satisfactory or are the best that can be effected in the circumstances.
In light of the provisions of section 6(1) and the principle in section 28 of the Constitution that the best interests of minor children are paramount, it would not be appropriate to grant an order dismissing the defendant’s counterclaim in the divorce action. Such an order would preclude him from adducing evidence which may be relevant with regard to the best interests of the minor children.
Davis AJ found that not only had the defendant failed to put up a satisfactory explanation for his failure to comply with the discovery order and failed to show he had a bona fide defence which carried prima facie prospects of success, but he had failed to explain his repeated failure to comply with numerous court orders granted in chamber book applications directing him to file affidavits in the striking application and the rescission application.
The defendant’s conduct evinced a deliberate strategy of delay aimed at thwarting the plaintiff’s claims in the divorce action. He had repeatedly violated court orders without explanation or apology. There could be no doubt he was guilty of an egregious abuse of court process. In such circumstances the court cannot stand by wringing its hands in despair.
Mr Holland submitted that if the rescission application were unsuccessful, the court should grant the defendant a final opportunity to comply with the discovery order. Davis AJ disagreed. The defendant had been given every latitude by the court and in return had made a habit of thumbing his nose at the authority of the court. There was no reason to believe he would behave any differently in future. A line in the sand had to be drawn to put a stop to the defendant’s abuse of court process.
Given the degree of the defendant’s contumacy, the court considered the only appropriate sanction was to grant an order striking out the defendant’s defence in the divorce action. This was necessary to vindicate the court’s authority and to protect the plaintiff’s right to a fair hearing. A message had to be sent that the court is not to be trifled with.
Ethical Duties of Legal Practitioners: The Duty to Court Trumps Duty to Client
Davis AJ concluded his judgment with a pointed reminder of the ethical duties resting on legal practitioners in regard to abuse of process. He drew attention to sections 60.1 and 60.2 of the Legal Practice Council Code of Conduct which provide that a legal practitioner shall not abuse or permit abuse of the process of court or tribunal and shall act in a manner that shall promote and advance efficacy of the legal process, and that a legal practitioner shall not deliberately protract the duration of a case before a court or tribunal.
The court observed that the defendant had systematically delayed the progress of the divorce action through a calculated series of failures. He failed to make proper discovery. He failed to comply with the plaintiff’s Rule 35(3) notice. When faced with the application to compel discovery, he delivered a notice of intention to oppose but then failed to deliver an answering affidavit. Despite being ordered by Thulare J to deliver his answering affidavit in the application to compel, he failed to do so. The application to compel was then set down on an unopposed basis and the discovery order was granted by default.
The defendant predictably failed to comply with the discovery order. When the plaintiff brought the striking application to strike out his defence, the defendant allowed two months to pass and then surfaced at the last minute to prevent the plaintiff from taking a striking order by announcing his intention to apply to rescind the discovery order. He then failed to deliver the rescission application within the time frame ordered by Kusevitsky J. Despite being ordered by Bhoopchand AJ to deliver the rescission application, he ignored that order.
When the striking application was due to be heard unopposed on 13 May 2025, he instructed his attorney to appear to oppose. Having finally delivered the rescission application only when Saldanha J took the war to his attorney, he failed to deliver a replying affidavit in the rescission application and had to be ordered to do so by Holderness J. The defendant ignored Holderness J’s order. He failed to file heads of argument or a practice note in either the rescission application or the striking application. Yet in a striking show of discourtesy to the court, counsel was briefed to appear on the day appointed for the hearing despite the absence of heads of argument.
Davis AJ held there could be no doubt, in all the circumstances, that the defendant had adopted a deliberate modus operandi aimed at procrastinating the divorce action to delay and frustrate the plaintiff’s claims. That conclusion was fortified by the fact that both the rescission and striking applications were wholly without merit. The defendant was clearly pursuing a Stalingrad strategy. He repeatedly forced the plaintiff to incur the cost of chamber book applications to compel him to file papers whilst failing to comply properly with the Rule 43 order, as was evident from the first and second contempt orders.
Apart from his contempt of the Rule 43 order, the defendant had defied five court orders relating to the application to compel, the striking application and the rescission application. The court was dealing with serial contempt and abuse of court process.
Significantly, Davis AJ stated it regrettably had to be said that the defendant’s attorney had been complicit in the defendant’s Stalingrad tactics. The attorney repeatedly failed to respond to correspondence from the plaintiff’s attorney. He clearly aided and abetted the defendant in failing to honour deadlines and court orders. The court held that in so doing, the attorney violated sections 60.1 and 60.2 of the Code of Conduct.
Davis AJ emphasised that legal practitioners must not be enablers of abuse of process. They must not be complicit in contempt of court. It is incumbent upon attorneys to advise their clients of the need to honour court orders and to abide by the deadlines imposed by the Rules of Court. Attorneys have a duty to take a stand, even to withdraw if necessary, when a recalcitrant client places the attorney in a position where he or she is unable to honour their duty to the court.
The court reminded legal practitioners that their duty to the client is subservient to their duty to the court. A legal practitioner’s first duty is to the court and the interests of justice. This much is clear from section 3 of the Code of Conduct which provides that legal practitioners, candidate legal practitioners and juristic entities shall treat the interests of their clients as paramount, provided that their conduct shall be subject always to their duty to the court, the interests of justice, observance of the law, and the maintenance of ethical standards as prescribed by the code and any ethical standards generally recognised by the profession.
The placement of “duty to the court” at the apex of this hierarchy of obligations is deliberate and fundamental to the proper functioning of the administration of justice. When a conflict arises between what a client demands and what the court requires, the legal practitioner’s obligation to the court must prevail. This is not merely an aspirational principle but a binding obligation enforced through the disciplinary mechanisms of the Legal Practice Council.
In the context of this case, the defendant’s attorney found himself in a position where his client was systematically defying court orders and flouting procedural rules. Instead of advising the client of the serious consequences of such conduct and insisting on compliance, or withdrawing from the matter if the client refused to follow proper advice, the attorney appeared to facilitate the delay tactics by his own failures to respond to correspondence and to ensure timely filing of documents.
The ethical obligation not to permit abuse of court process extends beyond merely refraining from personally engaging in abusive conduct. It requires legal practitioners actively to prevent and discourage such abuse by their clients. When an attorney becomes aware that a client is using litigation as a vehicle for delay and obstruction rather than as a genuine attempt to vindicate rights, the attorney cannot simply acquiesce in that strategy by continuing to act on the client’s instructions.
The duty not to deliberately protract the duration of a case carries particular weight in family law matters where the parties’ ability to move forward with their lives and make arrangements for children may be held in abeyance pending resolution of the litigation. The attorney’s role in enabling the defendant’s dilatory tactics had real consequences for the plaintiff and the minor children who remained in limbo whilst the defendant played games with the court process.
Davis AJ’s judgment serves as a clarion call to the legal profession that passive complicity in abuse of process will not escape judicial censure. Attorneys who find themselves acting for obstructive clients must remember that their professional obligations require them to be officers of the court first and agents of their clients second. When those roles come into conflict, there is no room for equivocation about which duty takes precedence.
Questions and Answers
What are the common law requirements for rescission of a default judgment?
An applicant seeking rescission at common law must demonstrate “good cause” or “sufficient cause”, which generally requires three elements. First, the applicant must give a reasonable and acceptable explanation for the default, which must not be wilful or grossly negligent. Second, the applicant must show that the application for rescission is made bona fide and not merely with the intention of delaying the plaintiff’s claim. Third, the applicant must demonstrate that on the merits he has a bona fide defence which prima facie has some prospects of success. All three requirements must be satisfied; it is insufficient if only one is met.
Can strong prospects of success compensate for a weak explanation for default in a rescission application?
No. The Zuma case expressly rejected the notion that a litigant can escape the obligation adequately to explain default by showing prospects of success on the merits. As Miller JA explained in the Chetty case, ordered judicial process would be negated if a party who could offer no explanation of his default other than his disdain of the rules was nevertheless permitted to have a judgment against him rescinded on the ground that he had reasonable prospects of success on the merits. Both a satisfactory explanation for default and prospects of success must be demonstrated.
What period of delay must be explained in a rescission application?
The applicant must provide an explanation for the entire period of default or delay, from the time when compliance was first required up until the time when the rescission application was brought. This extends to any subsequent failures to comply with procedural requirements in the rescission application itself, such as failure to deliver replying affidavits or heads of argument timeously. The P E Bosman case established this principle.
Does a consent order regulating the timetable for bringing a rescission application amount to a waiver of the right to object on grounds of delay?
No. Even if parties agree on a timetable for bringing a rescission application and that agreement is embodied in a court order, this does not constitute a waiver of the right to object to rescission on the ground of delay. The plaintiff’s attitude cannot bind the court, as it remains for the court to determine whether a sufficient explanation has been advanced for the entire period of delay. The court in S.L v A.C held that Kusevitsky J was not seized with the rescission application and could not decide anything concerning it; she merely made an order regulating the further conduct of the matter.
What is the two-stage procedure contemplated by Rule 35(7) for striking out a defence?
The first stage involves seeking an order compelling the defaulting party to provide discovery. The usual order at this stage includes granting leave to the applicant to apply to court on the same papers, amplified if necessary, for dismissal of the claim or striking out of the defence in the event of non-compliance. The rule does not envisage automatic dismissal or striking out upon non-compliance. At the second stage, where dismissal or striking out is sought, the court must determine whether there has in fact been non-compliance with the discovery order and then exercise a judicial discretion whether to grant the order.
What factors should a court consider when exercising its discretion to strike out a defence under Rule 35(7)?
The court should consider whether the respondent has put up a reasonable explanation for failing to comply with the discovery order which suffices to show the non-compliance was not wilful or mala fide, and whether the respondent has demonstrated a bona fide claim or defence which carries prima facie prospects of success. The degree of contumacy of the litigant must play a role. Where there is a reasonable explanation for non-compliance and it appears the non-compliance was not wilful and mala fide, the remedy of striking out will not be appropriate. However, where there is no satisfactory explanation and the failure to comply is prima facie contemptuous, particularly where it appears to be part of a pattern of contemptuous and obstructive conduct, striking out may be the only way to vindicate the authority of the court.
Is striking out a defence a drastic remedy and when should it be employed?
Yes, striking out is a drastic remedy that impacts on the constitutional right of access to court enshrined in section 34 of the Constitution. The usual effect is to prevent the presentation of a defence so that judgment by default will be entered. The Ikamva case established that striking out should normally be a last resort, considering its potential to deprive a litigant of an entrenched right to a fair trial, and that the sanction should fit the breach. However, the court must also recognise that if one party is delaying the matter by failing to comply with the Rules of Court, that party is likely trampling on the other party’s right to a fair hearing. Open disdain for the authority of the court, if allowed to go unchecked, represents an existential threat to the maintenance of the rule of law.
Does the constitutional right of access to courts mean litigants can access courts on their own terms?
No. Whilst section 34 of the Constitution grants everyone the right of access to courts, it does not afford litigants the right of access on their own terms. The constitutional imperative to provide access to court for all persons necessitates that such access be regulated through procedural rules designed to ensure fair administration of justice in the interests of all parties. Both parties to a dispute have the right to a fair hearing, and the Rules of Court exist for the benefit of all and should be observed by all.
What is the test for relevance of documents sought in discovery?
The question of relevance for purposes of discovery is determined with reference to the issues on the pleadings. The Swissborough, Helen Suzman Foundation and ST v CT cases established this principle. In the S.L v A.C case, because the defendant denied having sufficient means to afford the maintenance claimed by the plaintiff, he placed affordability of maintenance in issue, thereby rendering his financial standing a live issue in the divorce action. Documents pertaining to his finances and means were therefore relevant for discovery purposes.
Can a defendant avoid discovery obligations by disputing the validity of the marriage in a divorce action?
No, not unless the defendant brings an application in terms of Rule 33(4) to have the question of the validity of the marriage determined as a separated issue and for the remainder of the proceedings to be stayed. In the absence of such a separation of issues, if the defendant has put his means in issue by denying his ability to pay maintenance, his financial standing remains a live issue on the pleadings and the plaintiff is entitled to seek documents pertaining to his finances.
What ethical duties do legal practitioners owe in relation to abuse of court process?
Legal practitioners are bound by sections 60.1 and 60.2 of the Legal Practice Council Code of Conduct which provide that a legal practitioner shall not abuse or permit abuse of the process of court or tribunal and shall act in a manner that shall promote and advance efficacy of the legal process, and that a legal practitioner shall not deliberately protract the duration of a case before a court or tribunal. Legal practitioners must not be enablers of abuse of process or complicit in contempt of court. It is incumbent upon attorneys to advise their clients of the need to honour court orders and to abide by the deadlines imposed by the Rules of Court. Attorneys have a duty to take a stand, even to withdraw if necessary, when a recalcitrant client places the attorney in a position where they are unable to honour their duty to the court.
What is the hierarchy of a legal practitioner’s professional duties?
A legal practitioner’s first duty is to the court and the interests of justice. Section 3 of the Code of Conduct provides that legal practitioners shall treat the interests of their clients as paramount, provided that their conduct shall be subject always to their duty to the court, the interests of justice, observance of the law, and the maintenance of ethical standards. The duty to the client is expressly stated to be subservient to the duty to the court. When a conflict arises between what a client demands and what the court requires, the legal practitioner’s obligation to the court must prevail.
What is the court’s inherent power to protect itself against abuse of process?
The court has an inherent power at common law to protect itself and others against abuse of its processes, a power recognised in the Beinash case and affirmed in the Lawyers for Human Rights case. This power has received statutory recognition in section 173 of the Constitution which provides that the Constitutional Court, Supreme Court of Appeal and High Court each has the inherent power to protect and regulate their own process and to develop the common law, taking into account the interests of justice. This power may be robustly exercised where it appears that failure to comply with court orders is part of a pattern of contemptuous and obstructive conduct.
Does the duty not to mislead the court extend to factual statements made by counsel?
Yes. The duty not to mislead the court, now codified in section 57.1 of the Legal Practice Council Code of Conduct, requires that legal practitioners take scrupulous care not to make inaccurate factual statements which are not borne out by the evidence, or to advance legal submissions which are not substantiated by authority. Counsel and attorneys appearing before a court must ensure that their submissions can be justified with reference to the record and that they can direct the court to the relevant passages in the record if asked to do so. The proper functioning of the administration of justice requires that courts be able to rely implicitly on the correctness of the information conveyed by legal practitioners.
Why would it be inappropriate to dismiss a counterclaim relating to minor children in a divorce action?
Section 6(1) of the Divorce Act states that a decree of divorce shall not be granted until the court is satisfied that the provisions contemplated with regard to minor children are satisfactory or are the best that can be effected in the circumstances. In light of this provision and the principle in section 28 of the Constitution that the best interests of minor children are paramount, it would not be appropriate to grant an order dismissing a counterclaim relating entirely to minor children. Such an order would have the effect of precluding the defendant from adducing evidence which may be relevant with regard to the best interests of the minor children, even where the defendant’s defence to the main claim is struck out for abuse of process.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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