J.A v R.A (3348/2019) [2022] ZAFSHC 31 (28 February 2022)

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[2022] ZAFSHC 31
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J.A v R.A (3348/2019) [2022] ZAFSHC 31 (28 February 2022)

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
no: 3348/2019
In
the matter between:
J[….]
A[….]

Applicant
and
R[….]
A[….]

Respondent
HEARD ON:
03 FEBRUARY 2022
JUDGMENT
BY:
MATSHAYA, AJ
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal representatives
by email and release to SAFLII
on 25 February 2022. The date and time
for hand-down is deemed to be the 28 February 2022 at 9h30.
[1]     The
applicant was granted interim relief by this court on 10 November
2021 suspending the execution of a warrant
of execution (the writ)
that was granted by the Registrar of this court on 25 October 2021
against him in favour of the respondent.
He now seeks the setting
aside of the said writ with costs. The application is opposed by the
respondent.
[2]     The
applicant is an adult male person residing at no.[….],
Bloemfontein. The respondent is an adult female
person residing at
no.[….], Bloemfontein.
[3]    Their
marriage to each other was dissolved by an order of this court on 4
June 2020. There was a divorce settlement
agreement that was signed
by the parties which was subsequently made an order of court, amongst
other clauses, their immovable property
(the property) would be sold
in the open market and proceeds shared in a particular manner. I
deliberately omit to mention the manner
of sharing because it seems
from the pleadings to be a cause of disagreement of which I am not
called upon to venture into in these
proceedings.
[4]     The
property was subsequently sold and there was net profit of
R404 935.22 of which the applicant contends
is entitled to his
equal half share thereof for R202 467.61. It appears from the
pleadings that the respondent resists the applicant’s
entitlement
to the said share that is still held in the trust account of
Symington and De Kock who acted as the transferring attorneys
for the
property.
[5]     Subsequent
to the parties’ dispute pertaining to the net profit of the sale of
the property, Symington and
De Kock filed interpleader proceedings
(the inter pleader proceedings) in the regional court in an attempt
to resolve the dispute.
The matter was dismissed on the basis of lack
of jurisdiction on that court. Thereafter, the applicant did not take
any steps to
assert his perceived rights to the remaining half share
until the respondent obtained the writ from the registrar to enforce
her
alleged rights to the remaining half of the net proceeds that are
still held in the trust account of Symington and De Kock. The
applicant
lodged this application in the main, to set aside the writ
as he is of the view that there was no legal basis for the said writ.
[6]     It is not
in dispute that the parties were married to each other and the said
marriage was dissolved by an
order of this court through a decree of
divorce that incorporated a deed of settlement. It is also common
cause that the respondent
has already claimed one half share of the
net proceeds from Symington and De Kock. It is also not in dispute
that the remaining half
of the net profit generated from the sale of
the property is still held in the trust account of Symington and De
Kock.
[7]  The genesis of
the dispute between the parties is the interpretation of clause 4.2
and 4.2.4 (the impugned clauses) of the
deed of settlement that was
incorporated into the decree of divorce. The applicant is of the view
that he is entitled to the half
share of the net profit from the sale
of the property whereas the respondent is of the view that she is
entitled to the whole profit.
[8]     Further,
the applicant is of the view that there is a dispute pertaining to
the interpretation of the impugned
clauses of the Deed of Settlement
and therefore, the respondent should not have acquired the writ until
the dispute has been resolved.
He submitted that the respondent
herself acknowledged the said dispute during the inter pleader
proceedings. In essence, the applicant
submitted that there is no
judgment debt and therefore no basis for the issuing of the writ.
[9]     The
respondent denies that there is a dispute regarding the impugned
clauses. She is if the view that the writ
was lawfully issued and
there is no basis for it to be set aside. She also submitted that
there is no pending legal dispute challenging
the legality or
validity of the writ to warrant it to be set aside.
[10]   I pause to reiterate
that these proceedings are not meant to adjudicate the point of
dispute regarding the interpretation
of the impugned clauses but
whether the applicant has made out a good case for the writ to be set
aside.
[11]
Uniform
Rule
[1]
45(1)
provides that:
“
A
judgment creditor may, at his or her own risk, sue out of the office
of the registrar one or more writs for execution thereof
….”
[12]
A
writ may be set aside on,
inter alia
,
the following grounds:
“
(a)
(b)
(c) Where the
amount payable under the judgment can be ascertained only after
deciding a further legal problem
.”
[2]
[13]   It is trite that
there must be certainty as to what the creditor is entitled to under
the judgment, and a writ may be
set aside if the judgment in respect
of which it had been issued is not definite and certain,
[3]
or if it is no longer supported by its
causa
.
[4]
[14] At first, counsel for
the applicant sought to suggest that a settlement agreement that was
made an order of court is not a judgment
debt for purposes of Uniform
Rule 45(1). When engaged by the court on this aspect, she reneged
from that submission. That was a noble
concession because it is
settled law that a deed of settlement that has been made an order of
court is a judgment debt. Instead,
she then submitted that the deed
of settlement did not entitle the respondent to the amount under
whose pretext the writ was issued.
[15] The respondent argued that
the applicant sat back and did not do anything to assert his alleged
rights to the remaining half
share of the net profit that is still
held in trust. The pleadings confirm this submission. This created a
difficulty because there
were no legal proceedings instituted by any
of the parties particularly the applicant, to resolve the dispute
pertaining to the impugned
clauses. This was not an ideal situation.
[16]   It is trite that the
registrar is empowered in law to issue a writ.
[5]
It is also apparent from the pleadings that the amount of the
‘judgment debt’ was easily ascertainable. As indicated earlier,
the genesis of this dispute pertains to the interpretation of the
impugned clauses.
[17] The significance of this is
that the underlying right of the respective parties’ entitlement to
the remaining half share of
the net proceeds is challenged. To put
the matter differently, according to the applicant, the respondent’s
underlying right to
the ‘judgment debt’ is not ascertainable. To
advance his case, the applicant referred to paragraph 6.3 of the
respondent’s
founding affidavit of the inter pleader proceedings
suggesting that the respondent acknowledged the dispute. The
respondent disagreed
to that submission. The said paragraph ought to
be viewed in context. Upon a careful look at it, it seems those
averments were made
in the alternative. Therefore, they cannot be
viewed as acknowledgement by the respondent of the need for
rectification of the impugned
clauses.
[18]   From the pleadings,
the dispute pertaining to the correct interpretation of the impugned
clauses is glaring. The fact
that there were inter pleader
proceedings in the regional court support my view that there is a
dispute pertaining to the parties’
underlying right to the amount
in question. Inevitably, this also renders questionable the
underlying
causa
on which the writ was issued. Furthermore, in
paragraph 4.5 of the respondent’s affidavit in the inter pleader
proceedings acknowledged
the existence of the said dispute.
Therefore, she should not have caused the Registrar to issue a writ
pending the resolution of
the dispute pertaining to their perceived
right to this amount, respectively. It was pre-mature of her to do
so. Clearly, the amount
payable to the respective parties, whether
equal half or the whole net profit to the respondent, can only be
ascertained after adjudication
of a certain legal problem pertaining
to the impugned clauses. I cannot be prescriptive to the parties on
the form such proceedings
should take whether they be declaratory or
rectification proceedings as that discretion rests with them.
CONCLUSION
[19]   It is clear that the
underpinning right of the respondent to the remaining half share of
the net profit is seriously challenged
by the applicant even though
the applicant regrettably, has not taken steps to assert his
perceived rights thereto. Therefore, the
respondent should not have
caused the Registrar to issue the writ pending the determination of
the further legal problem. The writ
ought to be set aside.
COSTS
[20]   Costs are generally
in the discretion of the court. Ordinarily, they follow the
successful party. I am not convinced that
the applicant has made out
a case for punitive costs and that prayer cannot succeed.
ORDER
[21]   The application for
the setting aside of the warrant of execution is granted with costs.
MATSHAYA
AJ
Appearances:
For
the Applicant   :  Adv. Ferreira
Instructed
by           :
Callis Attorneys
12 Milner Road,
Waverley, Bloemfontein
For
the Respondent: Adv. Van der Merwe
Instructed
by          : R.J. Britz
Attorneys
C/O Honey
Attorneys
Northridge
Mall
Bloemfontein
[1]
Uniform Rules of Court.
[2]
Erasmus: Superior Court Practise, D1-604-5.
[3]
See De Crespigny v De Crespigny
1959 (1) SA 149
(N); Ras v Sand
River Citrus Estates (Pty) Ltd
1972 (4) SA 504
(T) at 510E; Le Roux
v Yskor Landgoed (Edms) Bpk
1984 (4) SA 252
(T) at 257G and Van Dyk
v Du Toit
1993 (2) SA 781
(O) at 783D.
[4]
See Ras v Sand River Citrus Estates (Pty) Ltd, supra, at 510A-E; and
Van Dyk v Du Toit, supra, at 783C.
[5]
Uniform Rule 45(1), supra.