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