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[2013] ZAGPJHC 323
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Schultze v Schultze and Others (11/5810) [2013] ZAGPJHC 323 (5 November 2013)
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 11/5810
In
the matter between:
SCHULTZE,
WARREN
KIRKWOOD PLAINTIFF
AND
SCHULTZE,
TANA(born VAN
RYNEVELD) DEFENDANT
AND
SCHULTZE
N.O., WARREN
KIRKWOOD FIRST
THIRD PARTY
JACKSON
N.O., BRYAN
TERENCE SECOND
THIRD PARTY
SCHULTZE
N.O., RONALD
KIRKWOOD THIRD
THIRD PARTY
SCHULTZE
N.O.,
TANA 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, 6
th
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