- Divorce wrongly granted as unopposed despite filed defence and plea, order rescinded under Rule 42(1)(a).
- Pension and retirement funds were preserved and repaid into trust pending a full opposed trial.
- Attorney found to have deceived the court, ordered to pay costs personally and reported to the Legal Practice Council.
A divorce that should never have been granted has been set aside by the High Court in Durban after it found the matter was improperly placed on the unopposed roll, despite the husband having formally defended the case.
Judge RG Mossop ruled that the decree was obtained through conduct that misled the court, froze pension payouts already made, and ordered the wife’s attorney to personally pay costs from her own funds.
The decision restores the parties to an opposed divorce trial and safeguards retirement and pension money that had begun flowing to the wife under the now-rescinded order. The court also referred the attorney’s conduct to the professional regulator, describing it as a breach of the profession’s core duty of honesty to the court.
A divorce that should never have been on the unopposed roll
The parties married in 2012. When the wife instituted divorce proceedings, the husband, initially unrepresented, emailed and delivered a notice of intention to defend and later a plea. The wife’s attorneys received both documents and took exception to the plea, steps that confirmed the matter was contested.
Despite this, the case was set down on the unopposed motion roll and presented to another judge as if the husband had not defended. A divorce order was granted on 1 December 2025. Pension and retirement funds, including payments from the Government Employees Pension Fund, were directed to be paid out. Weeks later, when the husband’s attorneys discovered what had happened, they launched an urgent rescission application.
Judge Mossop stated that the enrolment should never have happened. The court stressed that the motion roll in that division deals only with unopposed divorces and that once a notice of intention to defend is filed, the matter is automatically opposed.
“There is no other way to state it other than this was an act of deception,” the judge said, finding that the Registrar and the previous presiding judge had both been misled.
Judge condemns lack of candour
In direct language, Judge Mossop criticised the attorney’s reliance on the fact that the husband’s documents were allegedly not in the physical court file. That, he held, could never justify presenting a defended matter as unopposed.
“The requirement that advocates should be honest and truthful in their dealings with each other and the Court applies equally to attorneys,” he said.
He continued that legal practitioners must anticipate mistakes by unrepresented litigants and cannot exploit procedural imperfections to secure orders they are not entitled to seek. The applicant’s failure to ensure the documents were physically in the file did not erase the attorney’s knowledge that they existed.
“If the documents … were not in the court file, then it was her duty to ensure that the court file was complete because she knew that those documents had, indeed, been filed,” he said. The judge rejected attempts to blame the husband, stating: “The applicant is in no way to blame for what occurred.”
Because pension money had already been paid out under the defective order, the court moved quickly to protect it. The wife was prohibited from using the funds and ordered to repay any amounts received into the husband’s attorneys’ trust account within 48 hours.
The money must be kept in an interest-bearing account until the divorce trial court decides how it should ultimately be divided. This step prevents irreversible financial prejudice while the real dispute is ventilated at trial.
Personal costs and professional scrutiny
The most serious consequence fell on the attorney. Judge Mossop concluded that her conduct was contrary to the standards of integrity expected of the profession and that her primary duty was to the court, not to tactical advantage for a client.
He ordered that she pay the costs of the rescission application on an attorney and client scale, de bonis propriis, meaning from her own funds rather than the client’s. The Registrar was further directed to send the judgment and papers to the Legal Practice Council to consider disciplinary action.
“The legal profession is regarded as a noble profession because it requires those who are permitted to practice it to act with integrity,” the judge said, adding that the conduct fell short of those ethical standards.
What happens next
The divorce action now proceeds as an ordinary opposed trial under the Uniform Rules. Evidence will be tested properly, and any division of assets or pension interests will be decided afresh.
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