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[2017] ZAGPJHC 271
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P v P and Another (10225/2013) [2017] ZAGPJHC 271 (19 September 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10225/2013
Not
reportable
Not
of interest to other judges
Revised.
19/9/2017
In
the matter between:
G
P
Applicant
and
A
P
THE
SHERIFF JOHANNESBURG NORTH
First
Respondent
Second
Respondent
JUDGMENT
WILLIS
AJ:
Introduction
1.
The
applicant and first respondent were divorced on 22 November 2013 by
decree of divorce incorporating a settlement agreement.
Two
minor children were born of the marriage namely R (15) and T (10)
(“the minor children”) and whose interests
are secured in
the settlement agreement. In late 2014 the first respondent
relocated together with the minor children to
reside in Namibia. I
will henceforth refer to the first respondent as the ‘respondent’.
2.
On or
about 16 March 2016 the respondent caused a warrant of execution
(“the warrant”) to be issued out of the above
court
against the applicant for failure to make payments in terms of the
settlement agreement.
3.
The
applicant applies to have the warrant of execution set aside and that
the first respondent be ordered to pay the costs of the
application
on the attorney and client scale.
4.
The
applicant annexed neither the warrant of execution nor the
respondent’s affidavit in support of the warrant (“the
warrant affidavit”) to his founding affidavit. In fact
the applicant only annexed the settlement agreement, a thread
of two
emails on 14 January 2014 and a letter by his attorney.
5.
Regarding
the warrant: the court file did not contain a copy of the warrant
either. I called for a copy of the warrant from
the parties
attorneys before handing down judgement. Until I had sight of the
warrant, and even though the amount of R114 452.51
is totalled
in paragraph 15 of the warrant affidavit as the amount owing by the
applicant to the respondent, I was of the understanding
that the
amount in which the warrant was issued was the amount prayed in
paragraph 18 of the warrant affidavit namely R89 207.61.
Although not explained. Be that as it may, the warrant is in
the higher amount and that is the amount the respondent made
out in
her warrant affidavit.
6.
Regarding
the warrant affidavit. It is the
causa
underpinning the warrant, and the applicant’s case had to deal
adequately therewith. In effect the applicant had the
respondent’s version from the start. The applicant dealt
selectively in his founding affidavit with paragraphs from
the
warrant affidavit. It is apparent on the applicant’s
papers that the approach of the applicant was that the application
is
all about the interpretation of the settlement agreement and not a
factual enquiry at all, whether maintenance or otherwise.
The
applicant is correct that the application was not a maintenance
enquiry but incorrect to think it could only be a matter of
interpretation. Be that as it may the respondent annexed a copy
of her warrant affidavit to her answering affidavit.
7.
I am not
told when the warrant was served, but the applicant launched his
application on or about 28 August 2016.
8.
The
respondent caused the issuing of the warrant on the basis that the
applicant failed to make payment of:
8.1.
the
escalation in maintenance in accordance with the consumer price index
(CPI) per clause 7.3 of the settlement agreement;
8.2.
50% of
medical expenses not covered by the medical aid scheme per clause 7.5
of the settlement agreement; and
8.3.
50% of
extra ordinary expenses to which she says he agreed per clause 7.8 of
the agreement;
during
the period 1 November 2014 to 1 March 2016
9.
The
applicant’s case is in essence the following. In December
2013 he was retrenched. He was remunerated for the
next nine
months but was required to sign an 18 month restraint of trade
agreement which severely affected his ability to find
gainful
employment and he remains unemployed.
10.
In
respect of the CPI escalation provided for in the settlement
agreement, he said it does not apply and there has been no escalation
of the maintenance in respect of the minor children.
11.
In
respect of medical expenses not covered by the medical aid plan the
applicant complains that upon the respondent’s relocation
to
Namibia she selected a less comprehensive medical aid plan with
reduced benefits, which since then has resulted in the applicant
incurring increased expense in respect of items no longer covered.
He complains that he does not fall to be held liable for
an
expense which was not initially envisaged in terms of the settlement
agreement and which the first respondent has “instigated
“as
he puts it.
12.
In regard
to the extraordinary expenses the applicant says that in terms of the
divorce settlement his liability is expressly limited
to school fees
and it was agreed that the first respondent would be responsible for
all other educational expenses. Further
that the bulk of monies
claimed by the first respondent in the warrant are educational
expenses other than the scholastic expenses
for which he is liable.
He states that he has to be consulted prior to any extra
ordinary expenses being incurred and that
the first respondent first
incurred the expense and thereafter demanded payment of 50% from him.
13.
The
applicant alleges that he is unlikely to receive any form of income
for the next two years or more and that he has already instructed
his
attorney to commence proceedings for a reduction in maintenance as he
cannot sustain his maintenance obligations based on his
current
finances.
14.
The
respondent argues that the applicant is earning a substantial monthly
annuity from his capital and investments and is hiding
his true
financial position.
15.
In regard
to finances, there is no case for lack of affordability made out by
the applicant. He says that he has made all
payments up until
now out of his capital funds and not his investments. It is
common cause on the papers that both parties
are possessed of
substantial financial means. In their divorce the parties
divided equally between them an estate worth in
excess of R50
million. As the applicant puts it in his replying affidavit:
the matter is not a determination of “
my
ability to pay maintenance but rather is one of the correct
interpretation of the settlement agreement
”.
The first respondent puts it “
I
am enforcing my rights to claim the outstanding money that I consider
to be owing by the applicant… in respect of the two
minor
children
.”
16.
The
primary issue for determination is whether or not the case and facts
on which the applicant relies to set aside the warrant
amount to good
cause. This after all is the guiding principle. I deal
with the applicable law further below.
The
escalation dispute
17.
The
amount claimed by the respondent under this dispute is
R33
783.75. No issue is taken with the calculation and sum.
18.
The
relevant parts of the settlement agreement read as follows:
“
7 MAINTENANCE: THE MINOR
CHILDREN IN TERMS OF SECTION 18 (2)(d) OF THE ACT”
7.1 It is the responsibility and
duty of
both
parents to at all times maintain the minor children fully and in all
respects as envisaged and referred to in Section 18 (2)(d)
of the
act.
7.2 The Defendant will pay
maintenance to the Plaintiff in respect of the minor children at the
rate of R15, 000.00 (Fifteen Thousand
Rand) per month per child until
they become self-supporting.
7.3 The maintenance payable by
the Defendant in respect of the minor children shall escalate
annually on the anniversary of the
date of the final decree of
divorce of each year by the same percentage as the Consumer Price
Index (“CPI”) for the
Republic of South Africa, as
notified from time to time by the Director of Statistics but not more
than the percentage increase
earned by the Defendant for the said
year.
19.
Clause
7.3 deals with escalation and is on my reading, unequivocal. The
parties agreed that the maintenance payable by the
defendant in
respect of the minor children shall escalate annually on the
anniversary date of the final decree of divorce by the
same
percentage as the CPI (consumer price index), as more fully described
in clause 7.3.
20.
However
the parties also agreed a qualification namely that the escalation
percentage i.e. that of the CPI, will not be more than
the percentage
increase earned by the defendant for the year in issue.
21.
The
applicant’s case is that he has not earned “
a
percentage increase
”
since his retrenchment i.e. his percentage increase was and remains
zero,
ergo
no escalation.
22.
The
respondent’s contention is that the applicant has substantial
investments and capital from which he earns annuity income
and which
he lives off, and ought to have made a full disclosure to demonstrate
what he has earned from this annuity type income.
She estimates
the applicant earns at least R100 000.00 per month. She
alleges that the applicant’s retrenchment
package, shortly
after the divorce, included R1.5 million plus profits, bonuses,
restraint incentive and share options but he does
not disclose these.
23.
Bar
denial the applicant does not deal with these allegations in reply.
Furthermore the respondent believes the applicant
is in a business
called ENCA Health Care with a friend and is hiding his true
financial position. Save to baldly deny this
allegation of a
new business interest the applicant does not deal therewith in
reply. It does not escape me that the applicant’s
restraint of trade would have expired in about June 2015 already.
24.
The
CPI is a measure of the average change over time in the prices paid
by urban consumers for a market basket of consumer goods
and
services. T
he
annual percentage change in the CPI is well recognized as a measure
of inflation or the
general
depreciation in the value of currency.
Its
application can ensure that the consumption power of money is not
eroded over time and compensates for the diminishing value
of money.
25.
The word
‘shall’ in clause 7.3 fortifies an interpretation that
the maintenance must increase each year. The need
for an annual
increase in maintenance according to some standard is obvious.
The standard chosen is the CPI.
26.
The first
part of clause 7.3 was evidently designed to protect the respondent
and minor children.
27.
The
qualification was clearly designed to protect the applicant.
One can easily appreciate the applicant wanting to protect
his
finances in the event of him having no earnings whatsoever.
28.
Each
party is contending for the protection they believe they enjoy.
29.
Clause
7.3 was agreed upon between the parties with the intention that it
should have commercial operation. The principle
in such
instance is that the clause should not be held unenforceable because
the parties did not express themselves as clearly
as they might have
done. In
Murray
& Roberts Construction Ltd v. Finat Properties (Pty) Ltd
[1]
Hoexter JA repeated
[2]
the
dictum of Lord Right in
Hillas
& Co Ltd v. Arcos Ltd
[3]
:
“
Businessmen
often record the most important agreements in crude and summary
fashion; modes of expression, sufficient and clear to
them in the
course of their business may appear to those unfamiliar with the
business far from complete or precise. It is
accordingly the
duty of the court to construe such documents fairly and broadly,
without being too astute or subtle in finding
defects.
”
30.
There is
no defect in clause 7.3, it just falls to be interpreted or construed
in its proper context and purpose, fairly and broadly.
31.
A
parent’s financial obligations are not dependent on the
parent’s ability to pay through only one means for example
employment. Not even a lack of cash flow is an excuse.
Assets, investments and available capital all serve in general
terms
as a source of funding of the needs of minor children. Evidently
the applicant is possessed of the sort of estate that
has all three
of the aforementioned. His contention or allegations of
financial predicament are not received as broadly as
he would like.
32.
There it
is no basis for me to find that the word “earned” in
clause 7.3 refers only to earnings from employment. If
that is
what the applicant intended it to communicate it certainly does not
do so.
33.
The
applicant relies entirely on his interpretation of clause 7.3.
Inasmuch as he was in my view incorrect, he ought to have
made
out a case as to what the increase in his earnings percentagewise was
in the relevant periods, and if less than the CPI, the
increase in
maintenance would have been limited to that percentage. No such
case is made out. Accordingly I find that
the applicant fails
on this point.
The
medical expenses dispute
34.
The
amount claimed by the respondent under this dispute is R3 035.26.
No issue is taken with the calculation and sum.
35.
The
relevant parts of the settlement agreement read as follows:
7.4 The Defendant will retain the
minor children on his medical aid scheme and pay the monthly medical
premiums in respect thereof
until they become self-supporting.
7.5 The Defendant and the
Plaintiff shall share in equal parts the cost of all reasonable
medical expenses not covered by the medical
scheme referred to in
7.4. Of the minor children, (sic) such costs to include, but
not be limited to all medical, dental,
surgical, hospital,
orthodontic and ophthalmologic treatment required by the minor
children, including any sums payable to a physiotherapist,
occupational therapist, speech therapist, practitioner of holistic
medicine, dermatologist, psychiatrist/psychologist, and chiropractor,
the cost of medication and the provision where necessary of
spectacles and/or contact lenses and pharmaceutical expenses incurred
on doctors prescriptions.
7.6 Neither party shall allow the
minor children to undergo any specialist medical treatment, (unless
in an absolute emergency),
without giving the other party at least
seven days written notice (including via email) of that party’s
intention to do so
calling for the other party’s consent, which
consent shall not be unreasonably withheld. The Defendant and
the Plaintiff
shall undertake to pay in equal parts all the
reasonable costs incurred in respect of any specialist medical
treatment and/or procedure
performed in regard to the minor children.
36.
Clause
7.4 makes clear that the parties intended for the minor children to
be maintained on the applicant’s medical aid. That
was no
longer possible when the respondent relocated together with the
children to Namibia and had to secure a local medical aid.
It
is common cause that the applicant maintained the respondent and
children on a Discovery comprehensive medical aid plan.
From
January 2015 when the respondent had settled in the Namibia the
applicant paid the requisite premium to the respondent.
37.
Clause
7.5 obliges the applicant and respondent
to
“share in equal parts the costs of all reasonable medical
expenses not covered by the medical plan”.
38.
The
applicant puts up a two prong complaint in argument and defence of
not paying the medical expenses claimed.
39.
The
applicant’s first prong is the complaint that the respondent
“
elected
to choose a less comprehensive medical aid with reduced benefits
.”,
that she failed to properly evaluate the choice of medical aid plan.
The respondent’s version is that she
emailed the
applicant the available options in order to choose a Discovery
medical aid equivalent in Namibia and they agreed on
the MHP Silver
plan. She says this was the only equivalent plan available in
Namibia comparable to the Discovery plan in
South Africa. She
informs further that the applicant had been the COO of a medical
listed company before his retrenchment
that she was guided by him.
Whether she was or was not guided by the applicant I expect
that she would have, in the best
interests of herself and her
children, wanted to be on a Discovery equivalent. To the extent
that there is any relevance
to this complaint there exists a dispute
of fact.
40.
In my
view nothing turns on this complaint in the first prong but if I’m
wrong I am in any event obliged to prefer the respondent’s
version over that of the applicant in accordance with the
Plascon-Evans rule.
In
motion proceedings a final order may be granted if those facts
averred in the applicant’s affidavits, which have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order. In certain instances the denial
by a
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or
bona
fide
dispute of fact. It is
bona
fide
disputes in motion proceedings which fall to be determined on the
facts contained in the opposing papers which must be preferred
in
accordance with the rule in
Plascon-Evans
Paints Ltd v. Van Riebeeck Paints (Pty) Ltd
[4]
.
41.
The
applicant’s second prong is the complaint that he had not been
consulted by the first respondent in regard to expenses
falling
outside of medical aid cover for which the respondent then demands
his 50% contribution, arguing that that the medical
expenses the
respondent claims under the warrant are not covered by the settlement
agreement and clause 7.5.
42.
Clause
7.5 does not remotely suggest that the applicant must first be
consulted by the first respondent in regard to expenses falling
outside of the medical aid cover.
43.
Clause
7.6 requires a party to give at least seven days’ notice to the
other party in the event of one of the minor children
needing to
undergo specialist medical treatment, but the applicant correctly
does not rely on this.
44.
The only
question is whether or not the costs the applicant is called upon by
the respondent to share in the payment of, are reasonable
medical
expenses. The applicant did not attack the warrant on this
basis in the founding or replying affidavits, and no argument
was
advanced along these lines either.
45.
The
applicant must fail on this point of dispute.
The
extra ordinary expenses dispute
46.
The
amounts claimed by the respondent under this dispute are R71 580.10
and R6053.50.
47.
The
applicant denies that he consented to be liable for any part of the
extraordinary expenses.
48.
There are
two sets of extraordinary costs involved, the first being two school
trips that the parties minor son R took to Harvard
University in 2014
and Europe in 2015, in respect of which the respondent claims the sum
of R71 580.10 on the basis that the
applicant agreed to share in
the costs.
49.
The
second set of extraordinary costs is the purchase of an iPad for
their minor son T in the amount of R9507.00 plus the cost of
repairing the iPad that T presently has in the amount of R2600.00,
50% of which total is claimed in the sum of R6053.50 on the
basis
that the applicant agreed to pay same.
50.
The
relevant parts of the settlement agreement read as follows:
7.7 The Defendant will bear all
the reasonable education costs in respect of the minor children.
Educational costs shall include
but be limited to all private
school fees and additional tuition fees reasonably required by the
minor children. The cost
of school uniforms, school books,
sporting equipment, school outings and camps, reasonably required by
them as prescribed by the
minor children school, relating to their
education and extra-curricular school activities engaged in by them
shall be the responsibility
of the Plaintiff.
7.8 In the event of the Plaintiff
incurring an extraordinary item of expenditure in this regard the
Plaintiff may request that the
Defendant consent to pay 50% of the
cost the two prior to incurring such expense, which consent shall not
be unreasonably withheld.”
51.
The
applicant makes the allegation that the settlement agreement
expressly states that he is to be consulted prior to any
extraordinary
expenses being incurred. His understanding of
clause 7.8 is mistaken. There is no requirement that the
applicant be
consulted. Clause 7.8 applies to extra ordinary
expenditure. What clause 7.8 makes clear is that in the event
of the respondent
incurring extraordinary expenditure, whether before
or after getting the applicant’s agreement to share in the
expense, the
applicant has to consent to, agree or undertake to
share in that expense for the applicant to attract an obligation.
52.
Clause
7.8 clearly distinguishes ordinary item expenses from extra-ordinary
item expenses. The ordinary item expenses are
specific expenses
and nature of expenses which are dealt with in the settlement
agreement. Extra-ordinary item expenses are
those either not
specifically dealt with in the settlement agreement and/or all those
item expenses outside of the nature of expenses
dealt with in the
settlement agreement. It is common cause between the parties
that the overseas trips are extra ordinary
expenses.
53.
In the warrant
affidavit at paragraphs 10 to 12 in particular the applicant made the
unequivocal allegation repeatedly that the
applicant had agreed to
pay 50% of the costs which she had incurred in respect of both the
Harvard and Europe trips.
54.
Except for the
Harvard trip, the applicant deals with the respondent’s
allegations by bare denial evidently relying on his
interpretation of
the settlement agreement. In one instance in his founding
affidavit the applicant made reference to the
existence of documents
saying that they would be provided at the hearing of the application,
if needed. He made a similar
comment in reply.
The
onus is on the applicant to establish the facts on which his case is
based in his founding papers, which constitute and must
contain both
the pleadings and evidence. See
inter
alia Titties Bar and Bottle Store (Pty) Ltd v. ABC Garage (Pty)
Ltd
[5]
,
Director
of Hospital Services v. Mistry
[6]
.
An applicant is required to do so at least in satisfaction of
the general rule that the party who alleges must prove.
55.
Before
dealing more specifically with allegations made by the applicant,
this is an appropriate stage to address the requirements
and
standards for setting aside a warrant or writ of execution.
56.
There is
no specific Uniform Rule of Court or section of an act applicable as
for instance in section 62 (3) of the Magistrates
Court Act 32 of
1994 which reads: “
Any
court may, on good cause shown, set aside any warrant of execution or
arrest issued by itself”.
57.
In terms
of its inherent jurisdiction, the High Court has a discretion to set
aside a warrant or writ of execution on good cause
shown. The
general principle is that a warrant of execution will be set aside if
the warrant is not supported or is no longer
supported by its
causa.
See
Le
Roux v. Yskor Landgoed (Edms) Bpk en Andere
.
[7]
See also
Strime
v Strime
[8]
in the words
[9]
of Tebbutt J:
“
Execution is
a process of the court and the court has an inherent power to control
its own process subject to the rules of court.
It accordingly
has a discretion to set aside or stay a writ of execution (see
Williams v. Carrick
1938 TPD 147
at 162; Graham v. Graham
1950 (1) SA
655
(T) at 658; Cohen v. Cohen
1979 (3) SA 420
(R) at 423B- C). The
court will, generally speaking, grant a stay of execution where real
and substantial justice requires
such a stay or, put otherwise where
injustice would otherwise be done.
”
58.
‘
Good
cause’ is a well-known phrasing of a standard for certain types
of relief. There is no
numerous
clausus
or
definition of what constitutes good cause as a recognised standard.
In
South
African Forestry Co v. York Timbers Ltd
[10]
the SCA said the following about the phrase:
““
Good
cause” is a phrase of wide import that requires a court to
consider each case on its merits in order to achieve a just
and
equitable result in the particular circumstances. As pointed
out by Innes CJ in Cohen Brothers v Samuels
1906 TS 221
at 224 in
relation to the meaning of that phrase …” No general
rule which the wit of man could devise would be likely
to cover all
the varying circumstances which may arise in application of this
nature. We can only deal with each application
on its own
merits, and deciding each case with a good cause has been shown.”
59.
It was
for the applicant to make out a case for good cause. Indeed if
the warrant is premised on a wrong interpretation of
a judgement or a
settlement agreement, then that alone could constitute good cause. I
return to the case made out in the
founding affidavit.
60.
I is
evident that the applicant was consulted regarding the Harvard trip
by latest 14 January 2014. It is relevant that the
applicant
did not ask in her email, to which the applicant was replying, that
the applicant fit 50% of the bill but that they use
R’s
scholarship savings. The applicant refused consent either way,
at that stage anyway, and in my view not unreasonably
on his
version. In the email he told the respondent that it would be
fair if she paid for the trip because he had paid R90 000.00
the
previous year for a Mount Everest trip for both the respondent and
R. He did also reference his “
financial
predicament
”.
61.
That was
January 2014 and the trip took place in July 2014. The
respondent’s allegation in her warrant affidavit is
that the
applicant consented to pay “
his
50%
contribution
for these trips”
referring
to Harvard and Europe
.
In his email the applicant also requested a host of information and
ended the email with “
Hopefully
you will get more information and feedback from them.”
I reasonably infer that the parties had further discussions, weather
the applicant consented, at some stage, to fit 50% of
the
expenditure, or not. The respondent certainly did not make the
allegations in her warrant affidavit premised on the email
put up by
the applicant. Surprisingly the respondent did not in her
answering affidavit factually address the applicant’s
denial.
One would expect there to be further information of their
interaction, maybe even emails but if not, then at least
when or at
what stage and how or with words to what effect the applicant
allegedly consented.
62.
The
respondent argues that the applicant did consent to R travelling
overseas because he signed the Visa forms. Consenting
to R
travelling overseas does not show that the applicant consented to
share the costs to the measure of 50%. The net effect
is that
in the face of evidence by the applicant, there is no controverting
version put up by the respondent, neither in her warrant
affidavit
nor answering affidavit. I cannot find that the applicant
agreed to contribute to the Harvard trip. Accordingly
the
applicant shows good cause why he should never have been made liable
for the Harvard trip in terms of the warrant. In
terms of the
warrant affidavit the respondent claimed 50% of R12 941.00 in
respect of the Harvard trip air ticket and 50%
of R48 399.00 per the
leadership summit document. The 50% portion of these is R30
670.00 for which the applicant is not liable.
The applicant is
also not liable for USD 750.00 being the 50% part of R’s pocket
money for the Harvard trip. The respondent
calculated the
USD1500 and Euro 1500 in Rands and put them up as one Rand amount of
R50 490.00. I can only assume she
calculated the US dollar
amount as at the date of trip. On the papers R flew on or about 27
July 2014.
63.
Regarding
the Europe trip, bar a bare denial the applicant fails to deal
therewith, even in reply where he deals further with the
Harvard
trip. Accordingly in the face of the respondent’s
allegations the applicant shows no cause why he should never
have
been made liable for the Europe trip in terms of the warrant.
64.
As far as
the iPad expenses are concerned the applicant denied giving consent
stating that it was an expense which the respondent
was responsible
for. In my view clause 7.7 includes the iPad expenses,
particularly in as much as the respondent herself
cited same as
necessary schooling expenses and she is ordinarily responsible for
that. Accordingly in my view the iPad expenses
are not
extraordinary and do not resort under clause 7.8. The
applicant’s denial and reasoning accords with clause
7.7 of the
settlement agreement. In my view the respondent did not make
out a proper case for why the applicant should be
liable for the iPad
expenses. It may well be that the respondent did ask and the
applicant did agree to pay for such but
no facts to that affect can
be found in the warrant affidavit or the answering affidavit.
While an allegation of consent
might be adequate to give rise to an
agreement foreshadowed in clause 7.8, (as I found in the case of the
Europe trip, for the
reasons stated) for the respondent to show an
agreement contrary to the terms of clause 7.7 the mere allegation
that the applicant
consented to pay these expenses is inadequate
especially in the face of there being no obligation on the applicant
to do so and
in face of the obligation falling on the respondent.
Accordingly I find that the applicant shows good cause why he should
not have been held liable for the iPad costs in terms of the
warrant. The 50% in relation to the iPad’s which the
applicant is not liable four is the sum of R6 053.50.
Conclusion
65.
In
conclusion I find that the applicant failed to show good cause for
the warrant to be set aside which was the relief prayed.
66.
However
the applicant did show good cause for the warrant to be varied.
He showed he is not liable for payment of R36 723.50
and the Rand
amount of USD1500.00 in terms of the warrant.
67.
A
variation is indeed not prayed as a specific alternative but in my
view follows in the interests of justice even though the applicant
did not pray the “
further
and/or alternative relief prayer
”.
68.
My
findings leave me with the task of crafting an order to vary the
warrant.
69.
There was
some argument in respect of the content of a letter by the
applicant’s attorney to the respondent’s attorney
in
particular and the reasonable conduct and
bona
fides
of the parties and their attorneys. Ultimately what is clear is
that the parties took different views on the meanings of
the
settlement agreement clauses which has played itself out. At
best these arguments go to costs. In considering the
costs
issue I considered
De
Crespigny v. De Crespigny
[11]
where Holmes J (as he then was) said
[12]
the following about execution:
“
The civil
administration of justice provides machinery inter-alia for the
enforcement of rights. It provides, amongst other
things, for
litigation, judgement, and execution. As execution is a process
for enforcing judgements, it seems to me axiomatic
that it is only
available when the claim or
lis
has
not been judicially resolved if the amount payable under the
judgement can only be ascertained after a further problem of law
has
been decided. It is not within the province of the plaintiff to
decide such problems. In such a case, failing agreement
between
the parties, a plaintiff’s remedy, at any rate in the Supreme
Court, would, I think be to apply for a definition
of his rights
under the judgement. Whether this could be done by way of an
application for a declarator, or in the course of applying
for leave
to execute, I need not decide
”
70.
The
applicant misconstrued clauses 7.3 and 7.5. Both parties
misconstrued clause 7.8. Ultimately the respondent failed
in
respect of the Harvard trip for want of allegations to sustain a case
of ‘consent’ and the applicant failed in respect
of the
Europe trip for want of allegations to support a denial.
71.
The cost
order granted in my discretion below, is the result of careful
consideration of the relative degrees of success of the
parties,
fairness and justice.
Order
72.
In the
result I make the following order:
72.1.
The
applicant is not liable for payment of the amount of
R36 723.50
and the Rand amount claimed for USD750.00 in terms of the warrant of
execution dated 18 March 2016 issued out of the
above court under
case number 10255/2013.
72.2.
The
warrant of execution aforementioned is varied by substituting for the
amount of R114 452.51, the sum of R77 729.01
less the Rand
amount of USD750.00 exchanged as at 27 July 2014.
72.3.
The
registrar is directed to re-issue the warrant in accordance with this
order.
72.4.
Each
party is to pay their own costs.
RS
WILLIS
JUDGE
OF THE HIGH COURT
Date
of Hearing: 21 April 2017
Judgment
Delivered: 21 September 2017
APPEARANCES
On
Behalf of the Applicant: A Saldulker
Instructed
By: Jennifer Scholtz Attorney
12
Robina Crescent Fourways Gardens Phase 2
0114671165
Email:
Candice@jenniferscholtz.co.za
On
Behalf of the Respondent: V Vergano
Instructed
By: Leslie Cohen and Associates
Ilovo
Law Chambers 4 Fricker Road
Illovo
011 447
7747
Email:
leslie@icalaw.co.za
[1]
1991 (1) SA 508 (A)
[2]
At 514B-F
[3]
[1932] UKHL 2
;
147 LTR 503
at 514
[4]
[1984] ZASCA 51
;
1984 (3) SA 623
A at 634 E – 635 C
[5]
1974(4) SA 362 T
at 368 H to 269 B
[6]
1979 (1) SA 626
A
[7]
1984 (4) SA 252
T at 257 B
[8]
1983 (4) SA 850 (K)
[9]
852 A -B
[10]
2003 (1) SA 331
SCA
[11]
1959 (1) SA 149 (N)
[12]
150 F-G