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[2023] ZAFSHC 199
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L.D.T v H.D.T (6201/2022) [2023] ZAFSHC 199 (22 May 2023)
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,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6201/2022
In
the matter between:
L[…]
L[…] D[...] T[…]
Applicant
and
H[…]
R[…] D[…] T[…]
Respondent
HEARD
ON:
23
FEBRUARY 2023
CORAM:
JONASE
,
AJ
DELIVERED ON:
The judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and release to SAFLII
on 22 MAY 2023. The date and time for
hand-down is deemed to be 22
May 2023 at 15h00.
Introduction
[1]
This is an
application brought by the
applicant for an order in the following terms;
a)
That it be
declared that the order made
by this court on 11 December 2020 under case number 3451/2020
pursuant to Rule 43 proceedings between
the applicant and respondent
is of full force and effect.
b)
That
it be declared that the respondent is to comply fully with
the
Rule 43 order until finalisation of the divorce action between the
applicant and respondent.
Facts
[2]
The jurisdictional facts are that;
a)
The divorce action was instituted in this court and it is still
pending.
b)
By virtue of the provisions of
Section 21
(1)(c)
of the
Superior Courts Act, 2013
, this court has the power to
enquire into any existing, future, or contingent rights or
obligations and can therefore grant a relief
sought in this
application upon a proper case being made.
[3]
Subsequent to the granting of the
Rule 43
order, on 6 August 2021 the
applicant
and the respondent entered a deed of settlement.
[4]
The applicant alleges that after the withdrawal of both parties’
previous
legal representatives,
the parties abandoned the deed of settlement.
[5]
The reason for the parties to abandon the said deed of settlement is
due
to the
circumstances between the
parties specifically those in respect of the minor
child materially
changing.
[6]
In terms of the deed of settlement,
the
minor child was to
reside with
both
parties on
a week
-to-week basis. As
such, the deed of settlement did not make provision for the payment
of maintenance by the respondent in respect
of the minor child.
[7]
The minor child has recently started to permanently reside with the
applicant.
Therefore, the deed of
settlement is not practically executable.
[8]
On 18 March 2022 the respondent’s new attorneys of record, sent
a letter to the applicant’s new attorneys of record
with effect that the divorce action was not finally
settled by
the deed of settlement but rather the deed of settlement
should serve as a guideline for further negotiations
between the
parties.
[10]
The parties on other hand proceeded to take further steps in
furtherance of the
divorce action.
[11]
The applicant indicated that the divorce action was not finalised or
settled.
[12]
The applicant further indicated
that the
Rule 43
order is still in existence,
pendente
lite
the respondent has failed to comply with the order. The
respondent has since stopped making maintenance payment
for
the applicant and the minor child and removed the
applicant from the medical aid fund.
[13]
The respondent has taken a complete stance that the respondent is not
compelled
to comply with the obligati
ons
in terms of the
Rule 43
order as the results of
the deed of settlement concluded.
Issues
[14]
The applicant contends that the
Rule 43
order stands, and the
respondent is compelled to comply with the order until such time this
court grants a decree of divorce.
[15]
The applicant further contends that there is a need for maintenance
for the minor child and the
respondent makes no payment for
maintenance of the minor child. The respondent’s removal from
the medical aid fund compelled
the respondent to pay own medical
expenses.
[16]
The applicant concludes that it will be just and equitable for this
court to decree that the
Rule 43
order is in force and effect and
that the respondent is to comply with such order until such time the
divorce action is finalised.
[17]
The respondent alleges that after entering
into
the deed of settlement and having it submitted to the office
of the Family Advocate for finalisation and approval, the Family
Advocate
held an enquiry regarding the best interest of the minor
child.
[18]
The Family Advocate’s office issued a report in which it
indicated that it will be in the
best interest of the minor child
that the parties amend the
term t
hat the
minor child was to reside with both parties on a week-to-week basis.
[19]
The respondent contends that the respondent has been willing that the
deed of settlement be amended
as proposed by the office of the Family
Advocate but the applicant is not willing to cooperate and is
frustrating the finalisation
of the divorce decree.
[20]
The respondent denies that the parties abandoned the deed of
settlement but confirms the concern
of the Family advocate as alleged
by the applicant.
[21]
The respondent further contends that according to clause 4 of the
deed of settlement the respondent
will pay interim maintenance to the
applicant in the amount of R13 000-00 per month for a period of
twenty -four months. The
period is from 1 September 2021 to 1
September 2023. After this period the parties will have no further
claims
against each other in respect of
maintenance.
[22]
However, the respondent alleges that he was willing to amend the
originally agreed rights and
duties regarding the minor child to
bring it in line with the proposals by the Family Advocate.
[23]
The respondent further alleges that in the deed of
settlement,
parties agreed on the division of the assets. The report by
the Family Advocate had no bearing on the parties’ s agreement
regarding the division of assets. The respondent has no intention and
reason to abandon the agreement in that regard.
[24]
The respondent further contends that the only reason he was willing
to amend the deed of settlement
was because the Family Advocate
indicated that it will be in the interest of the minor child if
certain aspects regarding the parties’
rights and duties
towards him
are
amended as proposed by
the Family Advocate.
[25]
The respondent further contends that since the beginning of October
2022 he made several attempts
to settle all outstanding disputes with
the applicant and to prevent any unnecessary litigation.
[26]
The respondent seemingly brought an application in this court for an
order to suspend and set
aside the writ of execution obtained by the
applicant during August 2022. The applicant filed an opposing
affidavit in which she
confirmed that the deed of settlement was
concluded but averred that the divorce action has not been settled.
[27]
The respondent alleges that he has been advised that the applicant
could have brought this application
as a counter-application on the
above application. Apart from being more cost-effective, it would
make more sense as the cardinal
issue that needs to be adjudicated in
both applications is whether the applicant can rely on the original
Rue 43 order after she
had entered a deed of settlement.
[28]
The respondent contends that the deed of settlement is a valid and
binding contract. Seemingly,
the applicant acted in accordance with
it by taking full control of the respondent lucrative business and
only after taking full
control of the said
business
did
the applicant want
to renege
on the agreement. The applicant is not entitled to do that.
[29]
Finally, the respondent alleges that in the meantime and as
agreed
to in
the deed of settlement, the applicant has taken full
control of the lucrative business. The applicant’s financial
resources
have significantly increased since obtaining the original
Rule 43
order.
[30]
the
applicant’s r
eply to the
effect that the purpose of this application is not to amend or vary
the existing
Rule 43
order due to material change of circumstances.
It is the applicant’s case that;
a)
This court has granted an order
pendete lite
in terms of which
the respondent was ordered to make certain payments,
b)
The effect of
Rule 43
order is that it will remain in existence, and
the respondent is to comply with the order until the divorce action
is finalised.
c)
The divorce action the applicant instituted against the respondent
has not been finalised and is still pending
as there are various
contentious issues which remains unresolved in the action; and
d)
The respondent has simply failed to comply with the
Rule 43
order.
[31]
The
applicant emphasises that the
deed
of settlement does not nullify the
Rule 43
order as same is of full
force and effect until the divorce action is finalised.
Analysis
[32]
Section 21(1)
of the
Superior
Courts Act No. 10 of 2013
provides
for declaratory orders and states:
“
Section
21(1)
A Division has jurisdiction over all people residing or being
in, and in relation to all causes of action arising and all offences
triable within, its area of jurisdiction and all other
matters of which it may according to law take cognisance, and
has the
power-
(a)…
(b)….
(c) in its discretion,
and at the instance of any interested person, to enquire into and
determine any existing, future or contingent
right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon the determination”
.
[33]
This subsection provides for declaratory orders.
[34]
Proxi
Smart Services (Pty) Ltd v Law Society of South Africa
[1]
the
court held that;
“
It
is trite that a Court exercising a declaratory jurisdiction will
follow a two-step process. In this regard the process established
by
the Appellate Division in 1942 is still good law where it was held:
Durban
City Council v Association of Building Societies
1942 AD 27
at 32
“
The
question whether or not an order should be made under this section
has to be examined in two stages. First the Court must be
satisfied
that the applicant is a person interested in an ‘existing,
future or contingent right or obligation’, and
then, if
satisfied on that point, the Court must decide whether the case is a
proper one for the exercise of discretion conferred
on it”.
[35]
The court went further to say:
“
The
Constitutional Court has emphasised that court orders must b
framed in unambiguous terms and must be practical and enforceable.
It
must leave no doubt as to what the order requires to be done. In Eke
v Parsons
[2]
the
Constitutional Court stated the following
;
“
the
rule of law required not only that a court order is couched in clear
terms but also that its purpose is readily ascertainable
from the
language of the order. This is because disobedience of a court order
constitutes a
violation of
the Constitution. Furthermore, in appropriate circumstances,
non-compliance may amount to a criminal offence with
serious
consequences like incarceration
”.
[36]
At paragraph 74 the court stated
further that:
“
If
the order is ambiguous, unenforceable, ineffective, inappropriate,
all lacks the element of bringing finality to a matter or
at least
part of the case, it cannot be said that the court that granted it
exercised its discretion properly. It is a fundamental
principle of
our law that the court order must be effective and enforceable, and
it must be formulated in language that leaves
no doubt, as to what
the order requires to be done. The order may not be framed in a
manner that affords the person to whom it
applies, the discretion to
comply or disregard it”.
[37]
At paragraph [76] the court stated that “
the court will not
grant a declaratory order if the issue raised before it, is
hypothetical, abstract and academic, or where the
legal position is
clearly defined by the statute.
[38]
The application at hand is based on the order made in terms of Rule
43 on the impending divorce
action between the parties. The said
order is clear as to the respondent’s obligations
pendente
lite
and as such, it is fully effective and enforceable until
finalisation of the divorce action between the parties.
[39]
The applicant correctly pointed out that in
the
Secretary of the Judicial Commission of Enquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
including
Organs of State v Zuma
[3]
that:
“
it
cannot be gainsaid that the orders of Court bind all to whom they
apply. In fact, all orders of Court, whether correctly or incorrectly
granted, have to be obeyed unless they are properly set aside. This
in addition to typifying common sense. The constitution itself
enjoys. Section 165(5) of the Constitution itself provides that an
order or decision binds all persons to whom it applies
”.
[40]
The respondent submitted, emphatically, that the parties did not
abandon the deed of settlement
and same is a valid and binding
contract.
The applicant acted in accordance with it by taking
full control of the lucrative business. Only after the applicant had
taken full
control of it the applicant wants to renege on the
agreement. The applicant is not entitled to do this.
[41]
According to the respondent
, by
entering
into the deed of settlement, the applicant has waived her rights in
terms of the Rule 43 order.
[42]
The deed of settlement stipulates that “…
AND WHEREAS
the parties are desirous of settling the abovementioned action on
certain terms and conditions, subject to the approval
of the above
Honourable Court, and subject to the specific conditions that the
Plaintiff shall proceed to procure a final decree
of divorce, with
the incorporation of this agreement, on an uncontested basis
”.
[43]
It is apparent that the said disputed deed of settlement was to be
subject to certain terms and
conditions, court approval and specific
conditions for procuring the final decree of divorce incorporating
it. That has not yet
materialised.
[44]
The respondent relies on the case of
Odgers
v De Gersigny
[4]
in which the court stated that;
“
There are no
restrictions to the quantum and time frames to which that parties may
bind themselves relating to payment of maintenance
irrespective of
whether the recipient spouse remarries…There is no bar to
agreeing on the duration and extent of the payment
of maintenance
which is to be made, irrespective of any change in the parties’
circumstances, the agreement is valid and
purely contractual in
nature. It falls to be governed by the rules applicable in that
sphere…….it does not matter
whether the agreement is
made an order of Court in terms of section 7(1) for its
interpretation- the essence of the agreement remains
the same”
.
[45]
The respondent submitted that the applicant’s financial
resources have significantly increased
since obtaining the original
Rule 43 order. The settlement agreement is valid and binding. The
applicant can only claim relief
and exercise of her rights in terms
of the settlement agreement.
[46]
The
Odgers case
above is distinguishable in that the court
there, for the reasons unknown, finalised the divorce action and the
settlement agreement
was not incorporated in the decree of divorce.
The court clearly indicated that the settlement agreement was a
normal contract
the ex-wife was entitled to enforce and sue under the
common law principles of contract (the court above said……
It
falls to be governed by the rules applicable in that sphere..”).
[47]
This is not the case in this matter due to the following;
a)
there is a dispute whether the deed of settlement was abandoned.
b)
The deed of settlement was not yet approved by this Court, and
c)
the applicant has not procured a final decree of divorce with
incorporation of
the agreement.
[48]
Nothing inhibited the respondent to approach this Court in terms of
Rule 43(6) should there be
a material change of circumstances of the
applicant.
[49]
The defence of waiver by the respondent is
misplaced and as such should fail.
Conclusion
[50]
In the circumstances, I make the following order;
1.
It is
declared that the order made by
this court on 11 December 2020 under case number 3451/2020 pursuant
to Rule 43 proceedings between
the applicant and respondent is of
full force and effect.
2.
It is declared that the respondent is to comply
fully with
the Rule 43 order until finalisation of the divorce
action between the applicant and respondent.
3.
The respondent to pay the costs of this application.
___________________
S.
JONASE AJ
On
behalf of the Applicant:
Adv.
GC STEENKAMP
Instructed
by:
Badenhorst
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
MDJ STEENKAMP
Instructed
by:
FS
LAW INCOPORATED Attorneys
BLOEMFONTEIN
[1]
(74313/16)
[2018] ZAGPPHC 333
[2]
[2015] (11) BCLR 1319 (CC)
[3]
(CCT 5214/21)
[2021] ZACC 18
at PARAS 59
[4]
2007 (2) SA 305
SCA at 309 A-D