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[2010] ZAGPJHC 153
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W v W and Another (2000/21991) [2010] ZAGPJHC 153; 2011 (6) SA 237 (GSJ) (10 December 2010)
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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
2000/21991
DATE:10/12/2011
In the matter between:
W,
J C
P
...............................................................................................
Applicant
and
W,
H (born
V)
..........................................................................
First
Respondent
THE
ACTING SHERIFF OF SANDTON
............................
Second
Respondent
J U D G M E N T
WEPENER, J
:
[1] The applicant seeks the setting aside of a writ and in the
alternative a stay of execution of the writ until a determination
of
the applicant’s maintenance liability to the first respondent
by the Maintenance Court in Randburg.
[2] First respondent issued a
writ pursuant to a divorce settlement agreement which was declared
binding by the court when issuing
an order of divorce between the
parties. The applicant correctly states that a writ can only follow
upon a valid court order. He
contends that a writ cannot be issued
pursuant to a declaration issued by the court at the time of issuing
the decree of divorce.
In addition, it is argued that the settlement
agreement was conditional upon an order of divorce being granted and
the deed of
settlement being made a court order. These two points go
hand in hand. If the declaration is indeed an order of court, the
condition
was met and the writ can be issued based on the court
order.
[3] Mr Cook, on behalf of the
applicant, abandoned the first point
in
limine
taken in the
affidavit, namely, that the warrant of execution was not signed by
the Registrar of the High Court and accordingly
fatally defective.
He, however, relied on
Thutha
v Thutha
2008 (3) SA
494
(TkH) for the argument that the declaration is not sufficient for
the agreement of settlement to be regarded as an order of court.
The
learned Judge referred to a number of problems that he could foresee
if the settlement agreement is to be regarded as a court
order. He,
however, made no reference to the case of
Butchart
v Butchart
1996 (2) SA
581
(W) where a practical manner was found to deal with problem areas
arising from settlement agreements, should they arise.
[4] The applicant further relied
on
Brandtner v
Brandtner
1999 (1) SA
866
(W) where Boruchowitz J held that a
declaration as
referred to above does not have the effect of converting the
settlement agreement into a court order.
[5] However, in
Tshetlo
v Tshetlo
2000 (4) SA
673
(T), Shongwe AJ (as he then was) disapproved of the
Brandtner
case and said at 674G:
“
The
purpose of a divorce order is to regulate the consequences of the
dissolution of the marriage. It would be an absurdity for
the Court
dissolving a marriage to leave certain important aspects of the
consequences of the marriage
(and
its dissolution, I may add)
to
chance.
Therefore,
although the Court used the words 'declared binding', it is my view
that it meant and intended the usual well-known expression
that the
'deed of settlement shall be incorporated in the decree of divorce'
or 'the deed of settlement is made an order of Court'.
”
[6] Also in
Lebeloane
v Lebeloane
2001 (1)
SA 1079
(W), Wunsh J after considering the
Brandtner
and
Tshetlo
matters held that the intention by declaring an agreement binding is
to comply with
section 6
of the
Divorce Act 70 of 1979
. Wunsh J said
at paragraphs [21] and [22] as follows:
“
[21]
If the Registrar's order in the
Brandtner
case was incorrect
in that its effect was not to make the settlement agreement an order
of Court, it should have been corrected
by the Court, which it had
the power to do (
Roopnarain
v Kamalapathy and Another
1971
(3) SA 387
(D)
at 389;
Isaacs v Williams
en Andere
1983
(2) SA 723 (NC)
). It
was clearly the intention of the parties that the agreement be made
an order of Court and that was also the intention of the
Judge who
dealt with the matter. The defendant could also have been in no doubt
as to the status of the agreement which he had
entered into with the
plaintiff and that it was to have the force of an order of Court. He
had agreed to that being the case.
[22] With respect, an
order setting aside the writ, such as the one granted in the
Brandtner
case,
should not have been granted on a highly technical ground which was
in conflict with the substance of the case. The Court
in the
Brandtner
case
said that the plaintiff had a remedy under Rule 41(4) of the Uniform
Rules of Court, which entitled her to apply to Court to
have the
settlement agreement made a judgment. But there is no reason why she
should, on the basis that the wording of the order
issued by the
Registrar did not make the settlement agreement an order of Court,
have been put to the cost and trouble of an application
and why the
Courts should now be faced with numerous applications which may arise
in similar circumstances. Furthermore, there
could be opposition and
quite unnecessary litigation.
”
[7] That the parties also
intended the agreement of settlement to operate as a court order, is
also so in this matter having regard
to the fact that the agreement
of settlement itself “
…
is conditional upon the order of divorce being granted and this Deed
of Settlement being made an order of Court
”.
I respectfully follow the decisions in this and the North Gauteng
Division which held that the settlement agreement indeed
forms part
of the court order and I cannot find these judgments to be clearly
wrong and indeed am of the view that they set out
the law correctly
and reject the applicant’s contention that the applicant’s
obligation to pay maintenance was not
imposed by an order of court.
[8] The applicant’s
counsel argued that in the event of my coming to the conclusion
regarding the court order as I have,
that I have a discretion to stay
the execution of the writ primarily based on the fact that the
applicant attempted to settle the
matter with the respondent and that
he has now approached the Maintenance Court – the latter fact
which was only disclosed
in the replying affidavit. Mr Bunn, on
behalf of the respondent, argued that the discretion should be
exercised against the applicant
by virtue of the four following
factors: The applicant has been paying maintenance in terms of the
court order since 2001 without
objection; the applicant has set out
no grounds which would entitle him to a reduction of the maintenance
amount; the application
is not premised on the basis that the
applicant cannot afford to pay the outstanding maintenance; the
applicant has been advised
repeatedly since March 2010 that should he
wish to obtain a reduction of the amount of maintenance specified in
the settlement
agreement, he would have to approach a competent court
to do so. This he did not do until faced with the writ in October
2010.
[9] The applicant further
contends as follows:
“
I
humbly submit that I will suffer irreparable harm if the Honourable
Court does not stay the writ. It is submitted that the First
Respondent will receive monies that she is not entitled to receive by
way of the writ, and that the costs of recovering such monies
would
be prohibitive in the circumstances due to the quantum. Furthermore,
if the Sheriff attaches and sells my household goods
at an auction,
they will not realise the true value, which will be highly
prejudicial to myself, as I will be forced to replace
the goods at
new prices which will be financially devastating.
”
The generalised statement is not
supported by facts. I may add that the writ is for a nominal amount
of R5 342,19 and the applicant
will act to his own peril to have his
goods sold on auction. The amounts owing by him are made up of short
payments over a period
of 12 months i.e. an average short payment of
approximately R444,00 per month. The applicant describes himself as
an adult male
director and has not, premised the application on the
basis that he cannot afford to pay the maintenance for his son.
[10] In all the circumstances I
decline to exercise my discretion in favour of the applicant and the
application to set aside or
stay the writ is dismissed with costs.
____________________________
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT:ADV A L COOK
INSTRUCTED BY:LIVINGSTONE CRICHTON
COUNSEL FOR THE RESPONDENT:ADV S BUNN
INSTRUCTED BY:T G FINE