About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 536
|
|
P.N v D.N (14530/2009) [2010] ZAGPPHC 536 (26 April 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 14530/2009
DATE: 26 APRIL 2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
P[...]
N[...]
..............................................................................................................................................
Applicant
And
D[...]
N[...]
............................................................................................................................................
Defendant
JUDGMENT
MATO JANE J
[1] The applicant
seeks an order compelling the respondent to sign necessary documents
relating to the sale and transfer of the
parties former matrimonial
home. The respondent brings a counter-application in terms whereof
respondent moves for an order compelling
applicant to pay in terms of
the settlement agreement.
[2] The background
to the application is that the parties were married to each other, in
community of property. This marriage was
dissolved by an order of
Court on the 30 November 2007. In terms of the settlement agreement
which was made an order of court the
parties agreed as follows:
4.1.
The parties agree that on a current valuation of the current
matrimonial home located in Lenasia, the Plaintiff agrees to pay
the
Defendant an amount equal to half the value of the matrimonal home,
equalling an amount of R500 000.00 (five hundred thousand
rand)
within a period of 3
½
(three
and one half) months after the date of the granting of a decree of
divorce herein.
5.1 Save as may be
specifically provided for herein, each party shall retain such assets
as may be currently in their possession
and of which they have use,
as if same was their sole and exclusive property, and shall be
responsible for the payment of such
debts as may have been incurred
by such party in relation to such assets.
[3] The applicant
contend in his founding affidavit that he was under the impression
that he would be able to obtain a mortgage
bond over the parties
former matrimonial home which would have enabled him to make payment
of R500 000.00 to the respondent and
that he has paid an amount of
R159 000.00 towards a vehicle for the respondent, which amount is to
be offset against the R500 000.00
owing to the respondent.
[4] The respondent,
correctly in my view, contend that clause 4.1 above does not require
that the property must be sold or bonded
first before applicant makes
payment to the respondent. Further, the payment of R159 000.00 was in
lieu of the vehicle that respondent
had at the time of the divorce
and was bought for the benefit of the respondent in terms of clause 5
of the settlement agreement.
Applicable Law
[5]
It is trite that when interpreting a clause in a contract, the
language used by the parties must be given its ordinary grammatical
meaning to establish the common intention of the parties unless this
would result in some absurdity or some repugnancy or inconsistency
with the rest of the instrument, having established the literal
meaning of the words or phrases in question, one must have regard
to
context, background and surrounding circumstances. See
Coopers
& Lybrand v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A) 767E-768E.
[6] This statement
of the iaw and the fact that the agreement between the parties
contains a non variation clause effectively disposes
off applicant's
contention that payment to respondent was subject to him obtaining a
bond over the property or selling the property.
The agreement must be
honoured.
[7] The applicant
rendered no reply to respondent's answer that in terms of the
agreement, she kept a Mercedes Benz C200 kompressor
that was being
paid for by applicant. As applicant could not afford the monthly
instalments on the Mercedes Benz, by agreement,
applicant sold and
replaced the said Mercedes Benz with a new Toyota corolla, which he
paid for in cash for R159 000.00.
[8] Respondent
contends that the said amount of R159 000.00 cannot be set off
against the R500 000.00 owed to her by the applicant
as she was
entitled to retain a motor vehicle and be paid the amount of R500
000.00.
[9] Clause 9 of the
settlement agreement state that no indulgence, waiver or abandonment
in terms of the agreement shall operate
as a waiver or novation of
any of the parties rights in terms of the agreement. In my view, when
applicant continued paying the
monthly instalment on the Mercedes
Benz despite the agreement to the contrary, and the respondent
agreeing that the Mercedes Benz
be sold and replaced with a more
affordable vehicle, the parties were giving or allowing each other
indulgences which did not affect
any of the parties rights in terms
of the agreement. Clause 9 specifically states that a party is not
precluded from enforcing
at any time and without any notice strict
and punctual compliance with each and every provision of the
agreement.
[10] Counsel for the
applicant submitted that applicant is not under any obligation in
terms of agreement to provide respondent
with a car. He argued that
the car must be seen as the property of the applicant as he was
paying the monthly instalments on the
Mercedes Benz and furnished
respondent with a new Toyota that he paid for in cash after selling
the Mercedes.
[11] I incline to
the view that, on proper construction of clause 4 and 5 of the
agreement between the parties, respondent was entitled
to retain a
motor vehicle and be paid the amount of R500 000.00. Accordingly the
amount of R159 000.00 cannot be set off against
R500 000.00 owed to
the respondent.
[12] In the
circumstances, I make the following order:-
1. The applicant's
application is dismissed with costs.
2. Applicant is
ordered to pay respondent the amount of R500 000.00 within 30
(thirty) days of this order.
3. Applicant is
ordered to pay respondent interest, at the rate of 15.5% per annum,
on the amount of R500 000.00 calculated from
16 March 2008 up to date
of final payment.
MATOJANE, J