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[2011] ZAGPPHC 15
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Z.A.D v D.K.D (5181/2010) [2011] ZAGPPHC 15 (11 February 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 5181/2010
DATE:11/02/2011
In
the matter between:
Z
A
D
..................................................................................................
Plaintiff/Respondent
and
D
K
D
..................................................................................................
Defendant/Excipient
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The plaintiff issued summons in terms of which it is seeking
rectification of clause 3 of a written agreement he alleges he
concluded with the defendant on 25 March 2009.
[2]
In its particulars of claim the plaintiff alleges that clause 3 of
the alleged agreement does not reflect the common intention
of the
parties at the time the agreement was concluded.
[3]
Clause 3 which the plaintiff seeks to be rectified reads as
follows:
"...
D will have the rights to occupy this property or to operate the
lodge on this property, subject to the following conditions.
As D is
desirous to revert to her maiden name, an attorney will be instructed
to re-register the deed of ownership in the names
of the two parties
on conclusion of the divorce. From the date of divorce, D:
a
Will be fully responsible for all expenses relating to the farm
and the lodge such as electricity, rates and taxes, levies
and the
like; b Will be entitled to all profits and responsible for all
losses stemming from operating a lodge on this property."
[4]
Attached to the plaintiff's particulars of claim is a copy of an
agreement to which reference is made.
[5]
In his particulars of claim the plaintiff further alleges that at the
time the agreement was reduced to writing, the plaintiff
and the
respondent's common intention was that:
5.1
they
would jointly own the immovable property, Portion 8 Balule Nature
Reserve, Hoedspruit (the property);
5.2
they
would both be entitled to occupy the property and the defendant would
be entitled to operate a lodge thereon; and
5.3
from
the date of divorce all expenses relating to the property would be
paid as follows:
5.3.1
the
plaintiff would pay the levies; and
5.3.2
the
defendant would pay the electricity, rates and taxes and all other
expenses.
[6]
The plaintiff is seeking that the above -mentioned portions of
clause 3
of
the agreement be deleted and replaced by the following:
"A
and D will both be entitled to occupation of the property and D will
be entitled to operate a lodge thereon, subject to
the following
conditions. As D is desirous to revert to her maiden name, an
attorney will be instructed to re-register the deed
of ownership in
the names of the two parties on conclusion of the divorce. From the
date of the divorce:
a
A will be responsible for the payment of all levies in respect of the
property;
b
D will be responsible for all remaining expenses relating to the
property and the lodge such as electricity, rates and taxes and
the
like;
c
D will be entitled to all profits and responsible for all losses
stemming from operating a lodge on the property."
[7]
The defendant has taken an exception to the plaintiff's
particulars of claim on the ground that it lacks averments necessary
to sustain a cause of action. The defendant's exception reads, in
part, as follows:
"1.
ANNEXURE
"A'
to
the particulars of claim namely
"Terms
of Separation Agreement"
made
an order of the South Gauteng High Court, Johannesburg, on 5 June
2009, when that Court granted a final decree of divorce.
(See
ANNEXURE
'A'
attached)
2.
ANNEXURE
'A'
to
the Plaintiff's particulars of claim is a fraudulent document and the
true
"Terms
of Separation Agreement"
which
was incorporated as an order of Court is attached hereunto marked
'B'.
3.
ANNEXURE
'A'
to
the Plaintiff's particulars of claim having been elevated to the
status of a Court Order, the plaintiff cannot seek rectification
thereof.
4.
The
Defendant accordingly requests that the plaintiffs particulars of
claim be struck out and his action be dismissed with costs."
[8]
Attached to the defendant's Notice of exception is a copy of an
agreement whose content is identical to the agreement attached
to the
plaintiff's particulars of claim except for the fact that the
agreement attached to the defendant's notice also bears the
following:
8.1
The
letter "X" in the top right hand corner, which is
indicative as being an agreement made an order of court;
8.2
The
signature of the judge making the agreement an order of court; and
8.3
The
date on which the agreement was made an order of court.
[9]
The defendant has taken an exception to the plaintiff's particulars
of claim on two grounds:
9.1
that
the purported real agreement attached to the particulars of claim is
fraudulent; and
5.2
that
when the agreement was incorporated into the order of Court when the
divorce was granted, the Court order became final and
cannot be
rectified and that the Plaintiff should have used a different
procedure to seek relief, for instance Rule 42 of the Uniform
Rules
of court.
[10]
Although in his submissions, counsel for the plaintiff did not
address me on the discrepancies revealed above between the agreement
it sought to be rectified and the agreement made an order of court,
nothing turns on the defendant's first ground as indicated
in
paragraph 8 above, the agreement attached to the plaintiff's
particulars of claim is identical in content to the settlement
agreement incorporated to the court order and attached to the
defendant's Notice of Exception except for the fact that the
agreement
filed by the plaintiff lacks the formal aspects of a
settlement agreement made an order of court.
[11]
In terms of Rule 23(1) a litigant may raise an exception against an
opponent's pleading on the basis that the pleading does
not disclose
either a cause of action or a defence. This means that the court must
look at the pleading excepted to as it stands
and cannot take into
account any facts outside those stated in the pleading except those
stated in the pleading and cannot refer
to any other document.
Erasmus
Superior Court Practic
e
at
B1-151)
.
[12]
To succeed an excipient has to convince the court that upon every
interpretation which the pleading in question can reasonably
bear no
cause of action or defence is disclosed. Furthermore, an exception on
the basis that the particulars of claim do not disclose
any cause of
action is designed to obtain a determination of a point of law which
will dispose of the case either in whole or in
part, thereby avoiding
the leading of unnecessary evidence at a trial.
Aiphina
Investvestments Ltd v Blacher
2008
(5) SA 479
(C) at 483B.
[13]
The thrust of the defendant's argument in noting an exception to the
plaintiff's particulars of claim is that:
13.1
a
final judgment cannot be rectified and that the plaintiff should have
sought relief in terms of rule 42(1) of the rules of court;
and
13.2
the
plaintiff's particulars of claim particulars of claim do not disclose
any cause of action.
[14]
It is submitted on behalf of the defendant that since the
plaintiff seems to rely in his claim on clause 3 of a settlement
agreement which was made an order of court, it was material for the
plaintiff to have averred in his pleadings to this fact since
a
judgment which is final cannot be rectified.
[15]
In its argument the defendant relied on the decision in
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977(4)
SA 298 (A) where the Appellate Division, as it then was, in dealing
with the issue as to whether an order of Court can be
rectified held
at 306F-G that:
'The
general principle, now well established in our law, is that, once a
court has duly pronounced a final judgment or order, it
has no
authority to correct, alter, or supplement it. The reason is that it
thereupon becomes
functus
officio:
its
jurisdiction in the case having been fully and finally exercised, its
authority over the subject-matter has ceased. See West
Rand Estates
Ltd v New Zealand Insurance Co Ltd
1926 AD 173
at pp 176, 178, 186 -
7 and 192;
Estate
Garlick v Commissioner of Inland Revenue,
1934
AD 599
at p. 502.
There
are, however, a few exceptions to that rule which are mentioned in
the old authorities and have been authoritatively accepted
by this
Court. Thus, provided the court is approached within a reasonable
time of its pronouncing the judgment or order, it may
correct, alter,
or supplement it in one or more of the following cases:
(i)
The
principal judgment or order may be supplemented in respect of
accessory or consequential matters, for example, costs or interest
on
the judgment debt, which the court overlooked or inadvertently
omitted to grant {see the West Rand case, supra).
(ii)
The
court may clarify its judgment or order if on a proper
interpretation, the meaning thereof remains obscure, ambiguous or
otherwise
uncertain, so as to give effect to its true intention
provided, that it does not thereby alter "the sense and
substance"
of the judgment or order....
(iii)
The
court may correct a clerical, arithmetical or other error in its
judgment or order so as to give effect to its true intention....
(iv)
Where
counsel has argued the merits and not the costs of the case ..., but
the Court, in granting judgment, also makes an order
concerning the
costs, it may thereafter correct, alter or supplement that order...."
[16]
It was submitted on behalf of the plaintiff that the notice of
exception does not attack the particulars of claim as it stands
and
that the defendant cannot rely on facts extraneous to the particulars
of claim. Further that the court must look at the pleading
as it
stands and cannot have reference to any other document.
[17]
It was further argued on behalf of the plaintiff that an order of
court can be rectified. For this contention reliance was
placed on
Johannesburg
Taxi Association v Bare -City Taxi Association
1989
(4) SA 808
(WLD) and the unreported judgement of
Da
Costa v Da Costa
2005
(JDR) 0080 (T).
[18]
In the
Johannesburg
Taxi Association (supra)
matter
reliance was
placed
on what Flemming J stated at 810 that:
"Counsel
for both parties apparently at the time believed that the undertaking
(when made part of the order) would or might
well open the way for
contempt of court proceedings. The Court must interpret the order as
it is found unless it is amended pursuant
to rectification properly
asked and obtained. Neither party attempted to obtain an amendment
and an amendment would in any event
not alter the absence of a legal
basis for committal on the ground of behaviour in the period before
the order is in fact amended."
[19]
In the
Da
Costa
matter
reliance was placed on paragraphs 13 and 14
thereof
which read as follows:
"[13]
Turning to the counter-application, my view is that the Respondent
failed to make out a proper case. In terms of Rule
42 (1) of the
Rules of Court, this court is empowered to vary an order or judgment
erroneously obtained, or an order or judgment
in which there is
ambiguity or a patent error, only to the extent of the ambiguity or
error and an order or judgment granted as
a result of a mistake
common to the parties. There is ample authority that a final order
correctly expressing the true decision
of the court cannot be altered
by that court. (See
First
National Bank of South Africa Ltd v Jurgers and others
1993
(1) SA 245
(W) at 246 J). The grounds put up by the respondent do not
come anywhere near the grounds stated above."
[14]
Rectification should be sought by way of action unless there is no
dispute of fact and that which is sought to be rectified
is common
cause between the parties. In casu the rectification sought is
nowhere near common cause and is vehemently disputed therefore
the
respondent knew or ought to have known that motion proceedings would
be fatally flawed. As early as June 2003 the Respondent
became aware
that a serious dispute of fact was bound to develop...."
[20]
Counsel for the plaintiff seems to have missed the point in that in
both the
Johannesburg
Taxi Association (supra)
and
Da
Costa (supra)
matters,
the court was referring to situations where rectification of an order
or judgment could be sought in the context of either
rule 42 (1) of
the Rules of Court or under the common law.
[21]
In its particulars of claim the plaintiff gives no indication that
the agreement it seeks rectified was made an order of court
when the
parties were divorced on 5 June 2009, nor was this disputed during
argument. This was a material averment which should
have been made.
Furthermore, except for saying that as a result of a common error
between the parties, which allegation is disputed
by the defendant,
the plaintiff gives no indication as to how the error occurred when
the agreement was reduced to writing.
[22]
I am of the view, in the light of the Firestone decision that the
exception should be upheld in that the plaintiff's particulars
of
claim particulars of claim do not disclose any cause of action.
[23]
I am of the view that the defendant's reliance on the
Firestone
South Africa
matter
(supra), is misplaced for its view that a court order cannot be
rectified.
What the court dealt with in that matter was a case relating to the
construction of its own judgment or order. In this
case, the
plaintiff in its particulars of claim clearly sets out the ground on
which it seeks rectification of the order granted
by Mayat J, namely,
a common mistake. Whether this is true will be decided at the trial.
[24]
However, I am of the view that the exception should be upheld in that
the plaintiff in its particulars of claim did not allege
the fact
that the agreement it is seeking to be rectified was made an order of
court and thereby lacks material averments necessary.
The particulars
of claim need to be amended accordingly.
[25]
Accordingly the following order is made:
1.
The
exception is upheld;
2.
The
plaintiff's particulars of claim are struck out;
3.
Plaintiff's
claim is dismissed with costs.
MNGIBISA-THUSI
Judge
of the North Gauteng High Court