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2023
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[2023] ZAECQBHC 36
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C.L.S v T.I.S (645/2020) [2023] ZAECQBHC 36 (13 June 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISON,
GQEBERHA
Case No:
645/2020
Date Heard: 6 June
2023
Date Delivered: 13
June 2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED:
YES/NO
In the matter between:
C[…]
L[…] S[…]
Plaintiff
And
T[…]
I[…] S[…]
Defendant
JUDGMENT
COLLETT AJ:
[1]
I am required to determine the limited issue of a special
plea
relating to whether a settlement agreement has been set aside by a
court order issued by the Regional Court under case no.
ECPERC
2178/2017 on 23 August 2019.
The
background
[2]
The plaintiff and defendant were previously married to
one another,
which marriage was dissolved by decree of divorce on the 19 March
2018 in the Regional Court for the district of Port
Elizabeth.
[3]
The parties entered into a settlement agreement, the
terms of which
are not relevant to the determination of the present issue, which was
made an order of court simultaneously with
the decree of divorce.
[4]
Subsequent hereto, the plaintiff for reasons that are
not of
consequence hereto, approached the Regional Court on application for
the rescission of the order granted by the court on
the 19 March 2018
in terms of Rule 49(8) of the Rules regulating the proceedings in the
Magistrate’s Court.
[5]
Despite the defendant’s opposition thereto, the
learned
magistrate granted the plaintiff’s application for rescission
in respect of the certain paragraphs of the Deed of
Settlement hence,
by implication, the remaining paragraphs including the decree of
divorce remained intact.
[6]
It deserves mention that the defendant did not appeal
the order of
the magistrate as aforementioned.
[7]
The plaintiff, some six months thereafter, issued summons
in the
present matter seeking relief based on issues that had been
previously contained in the Deed of Settlement, which were rescinded
by the magistrate. I am not required to consider the merits or
otherwise of such litigation or the reasoning of the magistrate.
[8]
The defendant, in opposing the relief sought in the main
action, has
inter alia
, raised four special pleas and pleaded over.
Pursuant to a separation order, granted by this Court on 7 February
2023 in terms
of Rule 33 (4) of the Uniform Rules of Court, the first
special plea was to be adjudicated separately. It is this special
plea
that serves presently before me for determination.
[9]
The defendant’s first special plea reads as follows:
‘
1.
On or about 1 December 2017, and at Port Elizabeth, the Plaintiff,
personally represented,
and the Defendant, personally represented,
concluded a written settlement agreement that finally settled all of
disputes and claims
which form the subject matter of the Plaintiff’s
present claim.
2.
A copy of the said settlement agreement is attached to the
Plaintiff’s
Amended Particulars of Claim as annexure “POC2”.
3.
The settlement agreement has not been set aside and is still binding
upon the
parties hereto.
[10]
The exact nature of this special plea is not a picture of clarity and
is seemingly
a hybrid of
res judicata
and existing contractual
obligations enforceable between the parties.
[11]
Nonetheless, the defendant contends that despite the rescission order
granted
by the magistrate relating to certain paragraphs of the Deed
of Settlement, the parties are still bound by the terms thereof as
the normal requirements for the setting aside of a contract must
be followed.
[12]
The gist of defendant counsel’s submissions is that the
plaintiff only
sought to have the order encompassing the terms of the
Deed of Settlement rescinded. Consequently, the Deed of
Settlement
was not set aside and the parties are bound by the terms
thereof.
[13]
Conversely, the plaintiff’s counsel submitted that the order
granted
by the magistrate on 23 August 2019 unambiguously rescinds
the paragraphs of the Deed of Settlement and the parties are no
longer
bound by those terms.
[14]
As I am not
sitting as a court of appeal, there is no reason for me to analyze
the reasoning or otherwise of the magistrate in granting
the order.
Suffice to state, that it is an order of court which is enforceable
until set aside by a competent court
[1]
.
Legal
principles
[15]
The mere fact that an order of court was made based on a Deed of
Settlement
is not of consequence as such an order has the same
qualities and standing as any other order. To ignore such an order
would be
inconsistent with section 165(3) of the Constitution, Act
108 of 1996.
[16]
In deciding
upon the enforceability of a settlement agreement that had been made
an order of court in
Eke
v Parson
[2]
,
Jafta J said:
“
The parties’
agreement had been converted by the High Court into its own order
when the order was issued. The parties’
settlement was novated
by operation of law.”
[17]
Following this reasoning, when the magistrate rescinded certain
paragraphs
of the court order, what remained was the balance of the
Deed of Settlement which had initially been novated by operation of
law.
[18]
I am accordingly not persuaded that the Deed of Settlement persists
in its
original format as existed prior to the court order dated 19
March 2018 or that the recission order did not rescind and/or set
aside certain of the paragraphs of the Deed of Settlement.
[19]
However, even if the defendant is correct and the Deed of Settlement
concluded
and signed by the parties survived the rescission of the
paragraphs embodied in the court order, I am not convinced that this
is
an issue that can validly be raised as a special plea.
[20]
The plaintiff’s cause of action is premised upon the rescission
of the
paragraphs of the court order and, by extension, the Deed of
Settlement.
[21]
The defendant’s defence is,
inter alia,
to assert the
existence of a binding Deed of Settlement between the parties thus
disputing the plaintiff’s cause of action.
[22]
Implicit in the successful rescission application in the Regional
Court was
a finding of some form of fraud and/or inducement
surrounding the conclusion of the Deed of Settlement.
[23]
Given the defendant’s current defence in the main action, this
a triable
issue which requires proper ventilation of the
circumstances culminating in the Deed of Settlement between the
parties.
[24]
I am further of the view that this cannot, in any event, be couched
or decided
under the auspices of a special plea.
[25]
For these reasons, the first special plea raised by the defendant
must fail.
[26]
In the circumstances, the following order will issue:
1.
The defendant’s first special plea is
dismissed with costs.
S
A COLLETT
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv
M Veldsman
Instructed
by
Anthony-Gooden
Incorporated,
Gqeberha
For
Defendant:
Adv
A Moorhouse
Instructed
by
TN &
Associates,
Gqeberha
[1]
[1]
Moraitis Investments (Pty) LTD and Others v Montic Dairy (Pty) LTD
2017
[2]
2016 (3) SA 37
(CC) para 68