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[2014] ZAGPJHC 393
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Kairuz v Lewitton (29115/2013) [2014] ZAGPJHC 393 (12 December 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 29115/2013
DATE: 12 DECEMBER 2014
In the matter between:
KAIRUZ, MARY
THERESE
.............................
Applicant
And
LEWITTON,
DEREK
.....................................
Respondent
J U D G M E N T
TSHABALALA, J:
[1] This matter was initially set down
as an application to hold the Respondent to be in contempt of the
court order of Judge Kgomo
of the 2nd July 2010 under Case No
21165/2010 and for various other reliefs. This judgment contained a
settlement agreement which
was made an order of the court.
[2] The application was set down for
hearing on the 10th November 2014, having been issued on the 8th
August 2013. The parties
shall be referred to as in the main
application. On the 6th November 2014 the Respondent launched the
application for the rectification
of the settlement agreement and to
file a further affidavit. This application was set down for hearing
on the 10th November 2014
i.e. on the same date that the contempt
application was scheduled for hearing.
[3] The Applicant opposed the
application but did not, due to the time constraints, file any papers
in opposition.
[4] The Applicant sought to rectify the
settlement agreement on the basis that it did not correctly reflect
the parties’ intention
and sought to file a further affidavit
in order to deal with certain issues that were raised in the
Applicant’s 4th and 5th
affidavits and to give an update on the
present status of the dispute or issues between the parties.
[5] The Applicant opposed the
application for rectification on inter alia the following grounds:
5.1 The allegation that the settlement
agreement incorrectly reflected the parties’ intention was
never raised as a defence
by the Respondent since the divorce order
was granted in 2010.
5.2 The parties have been to court when
the Applicant sought an amendment of her prayers which amendment had
a direct bearing on
the clause that the Respondent now seeks to
rectify.
5.3 The wording of the clause sought to
be rectified is clear and unambiguous and incapable of an
interpretation different to the
one contended for by the Applicant.
[6] The relevant clause of the
settlement agreement is:
“7.1 It is recorded that the
Plaintiff is the registered owner of shares in the private company
namely ITA Software, which
shares are fully paid up, as well as
options to purchase additional shares.
7.2 The parties have agreed that the
Defendant shall acquire control over 5000 of the said shares,
currently held by the Plaintiff,
which the Plaintiff further hereby
agrees to transfer to the Defendant.
7.3 The Defendant’s 5000 shares,
after transfer thereof into the name of the Defendant, and/or any
proceeds to be derived
from the sale of such 5000 shares, will only
be used in the Defendant’s name and may never be commingled
with any assets
of another and will be placed in a trust.”
[7] The rectification sought to be
introduced read as follows:
“The proceeds of the ITA shares
are to be paid directly into a trust formed in accordance with clause
7.2 of the Settlement
Agreement and not first to the applicant in her
personal capacity.”
[8] The application to amend the Notice
of Motion by the Applicant which was granted by Judge Makume on the
11th March 2014 sought
an order to compel the Respondent to pay the
proceeds of certain ITA shares to the Applicant for her to pay them
into a trust.
[9] Confronted with such an
application, the Respondent did not then launch an application for
rectification nor did he contend
that the order sought by the
Applicant was not competent in accordance with the terms of the
settlement agreement.
[10] The judgment of Makume J dealt
extensively with clauses 7.2 and 7.3 of the settlement agreement and
in particular with who
the proceeds of the ITA shares should be paid
to and what should happen with such proceeds after payment.
[11] From the 19th March 2014 until the
date when the Respondent launched his application to rectify the
settlement agreement the
Respondent understood the effect and
implication of Makume J’s judgment. For a period of seven
months, he did nothing to
correct the “mistake” which I
am satisfied was not shared by both parties. See also clause 7.2 of
the settlement agreement
which expressly allocates control of the
shares to the Applicant.
[12] Worth nothing is the fact that the
application to rectify the settlement agreement was launched two
court days before the set
down of the contempt application by the
Applicant.
[13] The judgment of Makume J spells
out the conduct of the Respondent which discouraged and frustrated
the Applicant from setting
up the trust. See the email addressed by
the Respondent to the Applicant on the 3rd June 2011 at page 319 and
the judgment of
Makume J at page 515 of Bundle 6 in which the
Respondent states that he is putting up the trust and will not put
away money into
any trust that he has not established.
[14] The Respondent referred me to
certain correspondence between the parties on the basis of which he
contended both parties believed
that their agreement (clause 7.3)
provided for the proceeds of the ITA shares to be paid directly into
a trust.
[15] The Applicant on the other hand
referred me correspondence from Respondent’s attorney to the
effect that “all communication
between the Respondent and the
Applicant/attorney will be without prejudice and that no settlement
will be reached unless an agreement
is signed by all parties”.
This in essence confirmed the non-variation clause of the settlement
agreement. No agreement
was reached between the parties. As a
result none of the clauses were altered.
[16] In so far as an application to
rectify clause 7 of the settlement agreement is concerned, I am
satisfied that there is no ambiguity
in its contents and the mistake,
if any, was not mutual. My view is further strengthened by the
contents of clause 7.2 of the
settlement agreement.
[17] A delay of four years from the
date of divorce and seven months from the date when the judgment of
Makume J was handed down
is unreasonably too long for the Respondent
to have waited until the eve of the contempt application to launch
the application
to rectify the settlement agreement.
[18] I am also of the view that the
Respondent is attempting to have a second bite at the cherry in
launching the rectification
application.
[19] For these reasons, this
application must fail.
[20] As regards the rest of the
application which deals with issues which were raised for the first
time either in the replying
or subsequent affidavit/s of the
Applicant, which have no bearing on the rectification application
leave to file a further affidavit
should succeed.
[21] To the extent that such affidavit
contains new facts/material that warrant a response, the Applicant is
given leave to file
a response thereto without raising any new facts
which may in turn necessitate a reply from the Respondent.
[22] Accordingly I grant the following
order:
1. Leave to file the additional further
affidavit is granted.
2. Leave to rectify clause 7 of the
settlement agreement is refused.
3. The Respondent is ordered to pay the
costs occasioned by the two applications and the postponement of the
application that was
initially set down for hearing on the 10th
November 2014.
N D TSHABALALA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE APPLICANT : Adv. L.
Segal
INSTRUCTED BY : WERTHEIM BECKER INC
196 Oxford Road
1st Floor Oxford Manor, Illovo
Johannesburg
Tel : 012 425 0200
Ref : KH/rf/
COUNSEL FOR THE RESPONDENT : Adv. M.
Nowitz
INSTRUCTED BY : Greensteins
Attorneys
28 Sussex Road
Parkwood
Johannesburg
Tel : 011 447-6007
DATE OF HEARING : 10 November 2014
DATE OF JUDGMENT : 12 December 2014