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[2013] ZAGPJHC 312
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S v S (11/5810) [2013] ZAGPJHC 312 (5 November 2013)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 11/5810
DATE:
05 NOVEMBER 2013
REPOTABLE
OF
INTEREST TO OTHER JUDGES
In the matter
between:
S, W
K
......................................................
PLAINTIFF
AND
S, T(born VAN
R)
.......................................
DEFENDANT
AND
S N.O., W
K
..........................
FIRST THIRD PARTY
J N.O., B
T
.............................
.
SECOND THIRD PARTY
S N.O., R
K
.........................
THIRD THIRD PARTY
S N.O.,
T
....................................................
FOURTH
THIRD PARTY
JUDGMENT
BAQWA J
Headnote
Subsequent to a
settlement agreement entered into between the parties in a divorce
action in terms of which they settled the patrimonial
consequences
and parenting arrangements, the defendant sought to resile from the
agreement. She alleged, inter alia, that the agreement
was ‘void
for vagueness’ and that ‘it was not binding upon her.’
Held
that a
person who signs a contractual document thereby signifies his assent
to contents of the document. He is bound by the ordinary
meaning and
effect of the words which appear above his signature.
Held
one
cannot have a resolutive condition operate on an agreement which is
not binding because a resolutive condition necessarily
implies a
binding agreement which will be binding until the condition is
fulfilled. Similarly it is legally not sustainable to
speak of a
repudiation of a non-binding agreement. For repudiation to occur it
must of necessity relate to a binding agreement.
[1] This is an
action in which the enforcement of a written settlement agreement is
sought. The enforceability thereof has been
separated for
determination in terms of Rule 33(4). The third parties are the
trustees of the WKS Trust and they are not involved
in the
determination of the separated issue.
[2] The plaintiff
and the defendant are husband and wife who are currently involved in
divorce proceedings. They were married in
1995 and two children were
born out of the marriage. The accrual regime applies to their
marriage and the starting values of their
estates are nil.
Background
[3] The parties
entered into a deed of settlement (Annexure B) which conferred on the
defendant the right to receive from the marriage
and the trust a
combined value of thirty five million rand plus an estimated annual
income of seven hundred and fifty thousand
rands.
[4] Plaintiff seeks
that the annexure ‘’B’’ be made an order of
court whilst defendant denies that the agreement
is binding. She has
counterclaimed to set the trust aside but the counterclaim is not
part of this hearing.
Pleadings
[5]On 17 May 2013
defendant withdrew some of the defences she had mounted against
annexure B. In order to gain a full picture of
her approach to this
matter, I set out hereunder the defences prior to the said
withdrawal:
5.1. The parties
shared a common assumption that the Deed of Settlement would be
concluded within a specific period of time. The
common assumption was
tacitly incorporated into the agreement but it failed.
5.2. Annexure B
contained a resolutive condition that a further Divorce Settlement
Agreement (DSA) had to be entered into within
a specific time,
failing which the deed of settlement would lapse.
5.3. Annexure B is
to be rectified to record that it was agreed that it was not binding.
5.4. Plaintiff
misrepresented to the defendant the reliability and trustworthiness
of figures regarding the estimated value of certain
shares held by
the trust. This allegation was based on the fact that estimates of
future income did not match the actual future
income of the company
in which the trust held shares. Consequently, defendant has elected
to rescind the deed of settlement.
5.5. Plaintiff
repudiated the deed of settlement by failing to pay an amount due
thereunder.
5.6. Both the
plaintiff and the defendant abandoned the deed of settlement after
they concluded it.
5.7. Plaintiff had
further repudiated the agreement by rejecting an evaluation of the
matrimonial home.
5.8. Annexure B is
so vaguely worded that it is void for vagueness.
[6] Plaintiff’s
response was that the deed of settlement was properly drafted,
recorded and signed by the defendant and that
there was no need for
rectification. He also stated that he had been advised that the deed
of settlement was adequate for divorce
purposes in terms of the
Divorce Act 1979
. He denied the existence of a resolutive condition
or a tacit agreement.
[7] Plaintiff
further pleaded that there could be no tacit term as that would be
directly contradicted by an express term of the
agreement, namely
clause 6.5 which stated that the agreement was binding between the
two parties.
[8] Plaintiff
further contested the misrepresentation allegation stating that the
agreed methodology had been adhered to, a fact
which defendant later
admitted in her evidence. More particularly plaintiff’s
response was that it erroneous to use figures
realised by a company a
year later to reach a conclusion that the figures used by the
plaintiff were unreliable or untrustworthy
as the figures were a mere
forecast as opposed to actuals.
[9] Plaintiff denied
that he had either abandoned or repudiated the agreement, further
stating that he had in fact made some payments
under the agreement,
thereby demonstrating his firm intention to adhere to it.
[10] Plaintiff
denied that the agreement was void for vagueness stating that in
regard to the trust assets the deed of settlement
provided the
necessary information to enable segregation, to identify the purpose
for which the segregated assets were to be applied
and providing for
the joint management by the plaintiff and defendant into the future.
[11] Plaintiff was
further of the view that with regard to other assets, all the
necessary values had been agreed and that certain
specific values
were to be used as preliminary values. Further evaluation would be
used to verify the preliminary values and make
an adjustment payment
where necessary.
The evidence
[12] The plaintiff
gave evidence together with two other witnesses Brian Jackson and
David Nagel. Defendant also testified but called
no witnesses despite
having given notice to call an expert witness, Mrs Anderson. Mr David
Nagel’s evidence who is a qualified
chartered accountant
corroborated the evidence of plaintiff particularly with regard to
the misrepresentation allegation by defendant.
He testified that the
valuation that had been performed by the plaintiff was not a
misrepresentation, but an evaluation which correlated
to the
circumstances at the time, based on appropriate documents. He
affirmed that the conclusions reached were the correct conclusions.
[13] Mr Brian
Jackson had been the Chief Executive Officer of the Eris Group and a
friend of both the plaintiff and defendant. He
possesses legal
qualifications though he had never practiced law. He had recruited
defendant who was an executive of Hyprop to
join the Eris Group.
Jackson had taken
early retirement due to health reasons but he had continued to
socialise with the defendant and plaintiff as family
friends despite
his move to Kwazulu Natal after his retirement.
When he became aware
of the breakdown in the relationship between the defendant and
plaintiff and that they could not reconcile
he offered to assist them
to try and work out on an amicable settlement.
Jackson was quite
intimately involved with the settlement discussions between the
parties not only through telephonic and email
exchanges but also
through direct discussions. He testified about how he flew into
Johannesburg to further the settlement discussions
with the parties.
This culminated in annexure ‘B’ which is the subject of
this case. I found the plaintiff and his
witnesses to be credible
witnesses. Mr Jackson in particular gave a very favourable impression
to the court. His evidence demonstrated
his independence and his wish
not to prejudice or display bias to any of the parties. He was a
person who had both their interests
at heart.
I will comment about
the evidence of the defendant later in this judgment when I deal with
the defences which she withdrew after
the evidence had been
completed.
Onus
[14] The plaintiff
bore the overall onus as defendant’s admission of the signing
of the agreement meant that she was prima
facie bound and the onus
which she bore was to produce evidence why she should not be bound.
[15] One of the main
grounds for attacking the validity of the settlement agreement,
annexure ‘’B’’ is
that it is ‘’void
for vagueness.’’ There are four categories under which
contracts of this nature can be
classified and these are discussed in
the judgment of Quenet J in Levenstein v Levenstein 1955(3) SA 65
(SR)
15.1. Category 1:
Where the contract is not enforceable because the promise is
‘dependant on a condition which in fact reserves
an unlimited
option to the promissor’. In this category there is uncertainty
whether the promissor will ever acknowledge
the existence of an
obligation.
15.2. Category 2:
Where the vague and uncertain language justifies the implication that
the parties were never ad idem. The uncertainty
is fatal in this
category due to the uncertainty as to what was acknowledged as the
obligation.
15.3. Category 3:
Where there is no concluded contract as in ‘’…. of
continuing negotiations broken off in medio’’.
The
uncertainty in this category arises out of the uncertainty as to the
subject matter which has still to be agreed.
15.4. Category 4:
Where the unspecified details of the contract are questions of fact
capable of determination by evidence, this
category of contract is
not void.
[16] As can be
observed, we are not dealing with categories 1 and 3 and we are only
left with categories 2 and 4. Category 4 does
not raise the risk of
‘void for vagueness’. We therefore have to consider
category 2, namely, whether vagueness and
uncertain language
justifies the implication that the parties were never ad idem,
creating the possibility that the parties were
never certain as to
what they acknowledged as their obligations.
[17] The clauses
that have remained under attack by the defendant after he abandonment
of certain defences are the ones pertaining
to household assets; the
matrimonial home; the Landrover and boat; the Vaal property and the
segregated assets.
[18] The general
approach to questions of vagueness by the courts is to seek to uphold
the contract rather than to destroy it. This
principle was enunciated
in Hoffman and Carvalho v Minister of Agriculture 1947(2)SA855(T)
where it was said that where the parties
who have intended to
conclude a contract and proceed to act as if the contract were
binding and complete, the court should try
to assist the parties to
achieve what they both intended rather than obstruct them by legal
subtleties and assist one of the parties
to escape the consequences
of all that he has intended.
[19] The ‘’golden
rule’’ of interpretation is that where the language of
the contract is clear and unambiguous
effect must be given to its
ordinary grammatical meaning except where this meaning leads to an
absurdity or to something which
the parties obviously never
envisaged. If the meaning of the words used is clear and unambiguous,
evidence is not admissible to
contradict, add or modify their
meaning. According to Lewis JA in Ekurhuleni Metropolitan
Municipality v Germiston Municipal Retirement
Fund 2010(2) All SA 195
(SCA) [paragraph 13] a contractual provision must be given a
‘’commercially sensible meaning.’’
[20] If a court is
still in doubt as to the intention of the parties after considering
all the admissible evidence, it may resort
to one or more canons of
construction to arrive at the meaning intended by the parties. I set
out some of the important canons
hereunder:
20.1. Where the
language of a contract is ambiguous and one interpretation renders
the contract valid whilst another invalidates
it, the court will
place the construction upon it which upholds the contract rather than
one which makes it illegal or void. A
benign interpretation which
gives the contract or agreement effect is to be preferred.
See: Kotze v
Frankel and Co
1929 AD 418
Cilliers v
Prinsloo
1964 All SA 533(T)
Inventive Labour
Structuring (Pty) Ltd v Corfe 2006(3) SA 107 SCA paragraph 11
20.2. Here a
contract is ambiguous, the principle that all contracts are governed
by good faith applies and the intention of the
parties is determined
on the basis that they negotiated with one another in good faith.
20.3. If a word or
clause is ambiguous the meaning which best fits the nature of the
agreement is accepted.
20.4. If the
contract is capable of two constructions, the court will adopt the
more equitable of the constructions, and will not
interpret the
contract so as to give one of the parties an unfair or unreasonable
advantage over the other.
[21] In Namibian
Minerals Corporation Ltd v Benguella Concessions Ltd 1997(2) SA
548(A) 557-563 the position is set out thus: ‘’One
must
distinguish between vagueness and ambiguity. If a contract can be
interpreted to have two or more reasonable meanings, this
would by
itself render the contract void for vagueness. The use of intrinsic
evidence or the process of legal interpretation can
determine the
correct meaning. It is only where the contract is not capable of any
effective meaning in the circumstances that
if it would be too vague
to be enforced.’’
[22] Nugent AJA (as
he then was) held that the factual and policy considerations
summarised in Namibian Minerals to be taken into
account when
deciding whether an agreement is too vague to be enforced would
include: The parties’ initial desire to have
entered into a
binding legal relationship; that many contracts (such as sale, lease
or partnership) are governed by legally implied
terms and do not
require much by way of agreement to be binding; many agreements
contain tacit terms (such as those relating to
reasonableness);
language is inherently flexible and should be approached sensibly and
fairly; that contracts are not concluded
on the supposition that
there will be litigation; and that the court should strive to
uphold-and not destroy- bargains. Namibian
Minerals (supra) 516G-J.
[23] In the present
case, the parties are married and their contract is underpinned by
laws relating to marriage. In the matrimonial
context therefore the
following policy considerations come into play: the best interests of
the children; the avoidance of the
destructiveness of litigation on
family life; the need for finality in litigation and the benefits of
a clean break between the
divorcing parties.
[24]Upon weighing
the policy considerations and the views expressed above the only
conclusion one can come to is that invalidity
will only be reached as
a last resort.
See Haviland Estates
(Pty) Ltd and Another v Mcmaster 1969(2) SA 312(A) at 337 H.
Lewis v
Oneanate(Pty) Ltd and Another 1992(4) SA 811(A) at 819 E-J.
[25] It is necessary
to briefly analyse some of the clauses under attack to establish the
validity of the attack. Generally it has
to be borne in mind that all
the clauses in annexure ‘’B’’ had been
crafted with defendant’s active
participation and contribution.
This was demonstrated by her contribution to the drafts of the DSA
which was in furtherance of
the terms of the settlement agreement
prior to 13 July 2010. She made no significant changes to the joint
management clauses of
the segregated assets in this period.
[26] As was stated
in the testimony of plaintiff and Mr Jackson, all that was necessary
was to segregate and manage the ten million
rands for the children as
per the deed of settlement in which the segregated assets were
specified as those in Wartan Investments
(Pty) Ltd, a company wholly
owned by the Trust.
[27] The
requirements for joint management of the segregated assets were set
out in the deed of settlement. The purpose (education),
the source
and the method of payment was also set out in the deed of settlement.
The conclusion is that there was no uncertainty
or ambiguity
regarding the issue of segregated assets.
[28] Regarding the
valuation clauses, the parties took the precaution of recording the
preliminary values of their assets as default
values so that if no
further evaluation took place they could use these as the firm
valuations.
Annexure ‘’A’’
to the agreement serves as a record of each preliminary value. The
record is precise and
detailed down to the lowest valued item. Where
no further valuation took place it could therefore not be said that
the parties
were not ad idem but on the contrary, they had agreed the
preliminary values. Counsel for the plaintiff submits and I accept
that
any allegation of vagueness in regard to these assets cannot but
be considered illusory and any assets not so valued would fall
to be
considered in terms of the de minimis principle.
[29] The purpose of
the deed of settlement was to regulate the divorce between the
parties in all its facets. The means whereby
the household goods and
other assets were to be valued cannot be said to be an essential term
of the contract because under section
7 of the Matrimonial Property
Act each party has to provide full particulars of the value of their
estate to the other and the
absence of agreement thereon cannot be an
obstacle to the granting of a divorce. In any event in the present
case there was no
disagreement as the parties had agreed on the
preliminary values.
[30] With regard to
the household assets clause 3.3.1 reads as follows:
‘’The
value and apportionment of the household contents has not been
agreed. The parties agree to list the household
contents and use
their best endeavours to agree the values and apportionment thereof,
and where values and apportionment cannot
be agreed, to dispose of
the applicable items with proceeds to be split equally between the
parties.’’
This clause makes it
clear that if agreement cannot be reached the parties assets must be
sold and the proceeds split equally. In
his evidence, plaintiff
testified that there was a fifty-fifty split in the estate’s
value of assets. Once divided, the greater
value estate had to pay
the other an adjustment value to achieve parity. Even on this issue
the manner of dealing with the household
assets was clear,
ascertainable and not ambiguous.
[31] Clause 3.3.3
reads:
‘’The
value of 3 Audocia Place Hurlingham Manor shall be determined by the
requesting valuations from two independent
estate agents and taking
the mean of these valuations.’’
At the time of the
institution of these proceedings the terms of this clause had not
been fully achieved but the value of Audocia
had been agreed in terms
of the annexure to the agreement as a preliminary value. That saved
the clause from vagueness. The preliminary
value was agreed at R4.5
million rands. As no later valuations resulted in a binding value in
terms of the agreement, the parties
are bound by the agreed
preliminary value of R4.5 million.
[32] Similarly, the
contention by the defendant that there is no method prescribed for
making the valuation of the Landrover and
the boat can be discounted
on the basis of the preliminary values given in annexure ‘’A’’.
Plaintiff’s
50 percent share in the Landrover, which he shares
with a partner who owns the other 50 percent is valued at R30,000
whilst the
boat is valued R27,500 each per party. Even in this regard
there is no vagueness.
[33] Regarding the
Vaal property, clause 3.6 reads:
‘’Should
either of the parties wish to dispose of their share of the property,
the parties shall agree a value at which
the property will be
marketed after which the property shall be placed on the market, if a
value cannot be agreed the party that
wishes to dispose of their
share shall be entitled to market the property at the price at which
a recognised estate agent recommends
for this purpose. If an offer is
received at the price at which the property is offered, the other
party shall have a pre-emptive
right to acquire the selling party’s
share at the offer price, which shall be exercised within 2 days of
receipt of the offer.’’
[34] Defendant
contends that the agreement did not establish an external standard
for determination of the identity of the recognised
estate agent and
that a further agreement was needed in this regard.
[35] It does not
seem to me that this clause presents a problem. It is common cause
that the plaintiff and the defendant are company
executives who are
chartered accountants familiar with property deals. All this clause
specifies is the identification of a recognised
estate agent. That
agent does not fix the value at which the property is sold, he simply
sets the commencement price at which the
property is to be marketed.
This is therefore a workable clause which is duly enforceable.
[36] Another
challenge by defendant to the settlement agreement is that it was
subject to a resolutive condition that the deed of
settlement would
lapse in the non conclusion of a DSA on a specified date or within
reasonable time.
Clause 6.5 of the
deed of settlement provides that it is only the DSA which will
supersede the deed of settlement. Thus failure
to sign the DSA means
the deed of settlement continues in force. This is the document which
they created under their own hands
to enable them to produce it as
their agreement in order to get a divorce.
They laboured under
the impression that they needed another similar document crafted by
an attorney for the same purpose. It does
not seem to me that their
misconception is of any consequence as their original agreement stays
in force.
[37] Christie, 6th
edition page 201 observes regarding resolutive conditions that the
parole evidence rule does not prevent the
leading of evidence to
prove that a written contract was subject to a condition precedent
not expressed in the document provided
the condition is not
inconsistent with the terms of the document. In casu, the resolutive
condition is directly contradicted by
the provisions of clause 6.5.
[38] Another
consideration is that there are a number of acts required to be
performed in terms of the deed of settlement irrespective
of the date
of conclusion of the DSA.
These include the
obligation to value the assets, pay maintenance, make payment in
respect of the Vaal property, cease cohabitation
and commerce
arrangements in respect of the children. The inference to draw is
therefore that the conclusion of the DSA was a mere
formality to draw
them closer to the mutually desired goal, a divorce. With this
understanding, it does not seem that the defendant
has gone past the
hurdle of proving that the deed of settlement was subject to a
resolutive condition.
Caveat
subscriptor
[39]It is trite that
a person who signs a contractual document thereby signifies his
assent to contents of the document. He is bound
by the ordinary
meaning and effect of the words which appear above his signature.
See Burger v Central
South African Railways
1903 TS 571
Probabilities
[40] From a reading
of the deed of settlement, the evidence presented and the language of
the deed of settlement the probabilities
seem to be weighed against
the defendant.
Each of the main
clauses contain the words: ‘’The parties hereby agree…’’
Clause 6.5 records that
‘’the parties agree that this
agreement contains the principal terms and conditions of the
agreement between the parties
and the agreement will prevail until
superseded by the divorce settlement agreement.’’
[41] Plaintiff’s
testimony which is corroborated by the evidence of Mr Jackson is that
the parties intended the agreement
to be binding.
[42] The context,
the surrounding circumstances, the extensive negotiations which
preceded the signing of the agreement, the exchange
of detailed
e-mails, the untenable nature of the parties home relationship and
the content of the parties e-mails prior to the
week-end of
negotiations showed a strong intent to bring finality to their
dispute. All these factors are inconsistent with an
intention to
compile a set of non-binding principles.
[43] Over and above
these factors, plaintiff had performed in a number of ways over a
three year period in terms of the agreement.
He had paid maintenance
for the children, paid maintenance for the Vaal house, paid medical
and educational expenses and the defendant
accepted benefits which
accrued to her without demur.
[44] In assessing
the probabilities and considering all the events as they unfolded the
inescapable conclusion is that of the two
versions before me as to
what the parties agreed to, plaintiff’s is the more probable
one.
[45] At this point
it is necessary to consider the withdrawal of certain defences by the
defendant on 17 May 2013. These were:
45.1. The
repudiation based on plaintiff’s non payment of amounts due
under the deed of settlement;
45.2. Rectification;
45.3.
Misrepresentation in respect of the senior debt component of the
evaluation of the trust’s shares in Eris;
45.4. Void for
vagueness insofar as the indicative budget on the Vaal property is
concerned;
45.5. Void for
vagueness insofar as the liquid assets are concerned.
The withdrawal
occurred after both parties had closed their cases. These withdrawals
could only have been made because the evidence
tendered by the
defendant did not support the facts pleaded during the pleading
stage.
[46] Inevitably this
has had an effect on the credibility of the defendant and the
defendant’s case. Defendant had initially
pleaded for a
rectification of the contract and a considerable portion of the
pleadings and evidence was devoted to addressing
this issue.
Defendant ought to have known from the very onset that she could not
sustain the pleaded case when it came to giving
her testimony. This
speaks to the honesty of the defendant both as a witness and a
litigant. Her actions can only be described
as disingenuous and this
late withdrawal cannot but weaken her case considerably.
[47] Plaintiff has
deplored these actions by the defendant which have led to wasted
costs both in terms of time and money. The withdrawal
has a bearing
not only on the case as whole but also on the question of costs which
plaintiff’s counsel is arguing must be
awarded on a punitive
scale.
Conclusion
[48] The deed of
settlement is a very detailed agreement which deals with how the
parties’ estate is to be divided, how the
two minor children
will be cared for and how the trust assets are to be segregated.
Clause 6.5 records
how the parties agree that the principal terms and conditions of the
agreement will prevail until superseded
by the divorce settlement
(DSA).
[49] The defendant’s
case has been that the parties and Mr Jackson had taken all the
trouble of negotiating the terms of a
long and detailed document
dealing with all the important aspects of their private lives
culminating in the signatures not only
of the parties but also of a
long time friend, colleague and confidante, Mr Brian Jackson- all
this done simply to record an agreement
that would be non-binding on
the parties.
This version, now
abandoned was clearly not in keeping with a logical understanding of
all that had occurred over a protracted period
between the parties.
[50] In Barkhuizen v
Napier 2007(5) SA 323 (CC) paragraph 87, the Constitutional Court
observed ‘’pacta sunt servanda
is a profoundly moral
principle, on which the coherence of any society relies. It is also a
universally recognised legal principle…’’
One cannot have a
resolutive condition operate on an agreement wich is not binding
because a resolutive condition necessarily implies
a binding
agreement which will be binding until the condition is fulfilled.
Similarly it is legally not sustainable to speak of
a repudiation of
a non-binding agreement. For repudiation to occur it must of
necessity relate to a binding agreement. This was
the issue in
defendant’s case that has diminished the credibility of
defendant’s case.
[51] The law
relating to interpretation of documents is summarised by Harms DP in
KPMG v Securefin Ltd 2009(4) SA 399 (SCA) at page
409 paragraph 39 as
follows:
‘’First,
the integration (or parole evidence) rule remains part of our law.
However, it is frequently ignored by practitioners
and seldom
enforced by trial courts. If a document was intended to provide a
complete memorial of a jural act, extrinsic evidence
may not
contradict, add to or modify its meaning (Johnson v Leal 1980(3) SA
927(A) at 943B). Second interpretation is a matter
of law and not
fact and, accordingly, interpretation is a matter for the court and
not for the witnesses (or as said in common
law jurisprudence, it is
not a jury question: Hodge M Malek (ed) Phipson on Evidence (16
edition 2005) paragraphs 33-64). Third,
the rules about admissibility
of evidence in this regard do not depend on the nature of the
document, whether statute, contract
or patent (Johnson and Johnson
(Pty) Ltd v Kimberly-Clark Corp (Pty) Ltd 1985 BP 126 (A)
(1985)
ZASCA 132
, (at www.saflii.org.za). Fourthly, to the extent that
evidence may be admissible to contextualise the document (since
‘context
is everything’) to establish its factual matrix
or purpose or for purposes of identification, ‘one must use it
as conservatively
as possible’ (Delmas Milling Co Ltd v du
Plessis 1955(3) SA 447 (A) at 455B-C). The time has arrived for us to
accept that
there is no merit in trying to distinguish between
‘background circumstances’ and ‘surrounding
circumstances’.
The distinction is artificial and in addition,
both terms are vague and confusing…’’
[52] Even though I
have to determine the validity or otherwise of the settlement
agreement, I have had to constantly keep in mind
the fact that this
is a divorce action not the unbundling of Anglo American Corporation.
To that end, the deed of settlement sets
out clearly enough what the
intention of the parties is for divorce purposes.
[53] The words of
Wallis JA in Natal Joint Municipal Pension Fund v Endumeni
Municipality 2012(4) SA 593 (SCA) at page 603 [paragraph
18] find
resonance in this case where he states:
‘’Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision occurs; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document…’’
[54] At the end of
the day for a document to be accepted to serve as a settlement
agreement it must:
52.1. Set out quite
clearly enough what the intention of the parties is regarding the
patrimonial consequences of their estate and
it must be in compliance
with the provisions of
section 7
of the
Divorce Act.
52.2. The
agreement
must also contain a parenting plan regarding the minor children of
the marriage which must be in compliance with the
law.
[55] Having taken
into account all the facts of this case and the law, I have come to
the conclusion that the plaintiff has succeeded
in making out a
proper case and that the defendant has failed to discharge the onus
regarding those aspects on which the onus was
upon her.
[55]In the result, I
make the following order:
55.1. The deed of
settlement entitled ‘’Heads of Agreement’’
dated 13 and 14 June 2010, annexure ‘’B’’
to
the particulars of claim is a binding agreement, valid and
enforceable.
55.2. The defendant
is ordered to pay the costs of the action to date, including the
costs of two counsel.
55.3. By reason of
the late withdrawal of the rectification and other defences abandoned
by defendant on or about 17 May 2013 the
defendant is ordered to pay
half the costs of the matter to date on the attorney and client
scale, such costs to include the costs
of two counsel.
S.A.M BAQWA
(JUDGE OF THE
HIGH COURT)
Counsel for the
plaintiff: Adv L.J Morrison SC
Adv A Pheto
Instructed
by: Greensteins Attorneys
Counsel for the
defendant and fourth third party: Adv G Farber SC
Adv K
Foulkes-Jones SC
Instructed
by: Yammin Hammond Attorneys