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[2022] ZAECMKHC 47
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J.A.N v N.C.N (2283/2021) [2022] ZAECMKHC 47 (10 August 2022)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 2283/2021
In
the matter between:
J[....]
A[....]
N[....]2
Applicant
and
N[....]1
C[....] N[....]2
Respondent
LEAVE
TO APPEAL JUDGMENT
Govindjee
J
[1]
The parties were married out of community of property with the
inclusion
of the accrual system during 1996. They divorced on 18 June
2019, having entered into a settlement agreement made an order of
court
(‘the order’). The applicant sought rescission of
the order, alternatively that certain paragraphs of the settlement
agreement made an order be expunged from that agreement. The
application was dismissed with costs, excluding costs of an
application
to strike, on 17 May 2022 (‘the judgment’).
[2]
The grounds on which this application is premised are the following:
a.
The court erred in its judgment, another court may reasonably
possibly come to
a different conclusion and an appeal enjoys a
reasonable prospect of success.
b.
The court erred in deciding that the
Plascon-Evans
rule was
applicable, alternatively erred in its application of that rule.
c.
The principle of the sanctity of a court order was over-emphasised
when considering
the injustice that will result from dismissal of the
application.
d.
The court erred in equating the order to one obtained in contested
proceedings
and thereby applying a more stringent test for
rescission.
e.
The court erred by finding that there was no mistake common to the
parties and
should have accepted that the parties were in agreement
that a further amount was due to the applicant, despite the consent
paper
to the contrary.
f.
The respondent’s conflicting statements on the papers were not
properly
interrogated.
g.
The concepts of ‘good cause’ and ‘iustus error’
were
interpreted too narrowly and erroneously limited to the
applicant’s conduct.
h.
The court should have found that the applicant had not made an
informed decision
when signing the deed of settlement, so that no
true consensus existed.
i.
The parties’ attorney’s role and affidavit had not been
examined critically.
j.
The court neglected to consider whether the implementation of the
contract was against public policy and unlawful and erred in not
rescinding the order on this basis.
[3]
Many of the
grounds advanced follow this court’s finding that the
Plascon-Evans
rule was applicable. Counsel for the applicant had argued during the
hearing of the application, and based on
Gangat
v Akoon
,
[1]
that the rule was completely inapplicable in rescission applications,
because the order to be made would not be a final order on
the legal
aspects of the dispute. The court delved into
Gangat
and distinguished that decision, placing reliance on
Storti
v Nugent and Others
.
[2]
The conclusion reached was that there is a difference in cases
involving rescission of an order which should never have been granted
(the effect of such an order being interim only), and orders
correctly made but to be permanently set aside for one or another
reason. In the present instance, following
Storti
,
the order was correctly made and a decision to set aside the order
was expected to have final effect so that factual disputes
became an
obstacle to the applicant. The application before court sought final
relief in the form of rescinding parts of the order
that governed the
division of the parties’ estates at the time of the divorce.
The question of the validity of the order
and settlement agreement
would not be considered again. Instead, the consequences of the
dissolution of the marriage would be considered
afresh and without
reference to material terms of the settlement agreement incorporated
into the order. As a result, the court
held that the relief sought
was final in nature so that the
Plascon-Evans
rule
applied.
[4]
Importantly,
the court found support in its reading in the judgment of the SCA in
Slabbert
v MEC
for Health and Social Development, Gauteng
.
[3]
This matter concerned a compromise agreement made an order of court.
An application for rescission was launched. The SCA confirmed
that
Plascon-Evans
ought
to have been applied by the court a quo. Although counsel suggested
that there were philosophical principles that should result
in a
different outcome, I am not persuaded that there is a reasonable
prospect of success in this regard, particularly given the
authority
relied upon and the absence of any authority to support a different
interpretation.
[5]
Likewise, given the clear averments on the papers, I am unable to
conclude
that there are reasonable prospects of success in respect of
the court’s application of the
Plascon-Evans
rule,
contained in paragraphs 19-21 of the judgment. The type of
interrogation and scrutiny of the respondent’s version proposed
by the applicant would completely negate the very purpose of the rule
and require a referral for oral evidence in many more cases.
In any
event, in this instance counsel were in agreement that no such
referral was warranted. The plea, in essence, was for the
court to
scrutinise the submissions of the respondent and attorney with
scepticism and draw inferences based on the probabilities
that the
applicant would not have knowingly entered into the settlement
agreement. Unfortunately for the applicant, that is simply
not the
appropriate application of the rule where real, genuine and bona fide
disputes are apparent on the papers.
[6]
The argument based on the suggested common mistake falls as a result
of
the application of the
Plascon-Evans
rule and based on the
unchallenged authorities that required this court to focus, in the
first place, on the order, rather than
the underlying agreement, in
considering the application. The same difficulty is encountered in
respect of the argument that the
court should have scrutinised the
applicant’s state of mind at the time she entered into the
settlement agreement.
[7]
There is
copious authority emphasising the importance of the finality of
judgments, also included in the judgment, so that the suggestion
that
the court over-emphasised this point has no reasonable prospect of
success. No authorities suggesting the contrary position
were
presented. Likewise, in relation to the application of a more
stringent test, no authorities were advanced to counter the
reliance
on
Moraitis
Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd and
Others
[4]
and other authorities quoted in footnote 30 of the judgment. As a
result, there is no reasonable prospect of an appeal succeeding
on
this ground.
[8]
The proposed ‘wider’ interpretation of ‘good cause’
and ‘iustus error’ also lacks a legal underpinning and,
on the accepted facts, cannot support the applicant’s
argument.
The arguments relating to the court’s treatment of the
attorney’s role in the matter are unfounded: the court
not only
applied
Plascon-Evans
to the attorney’s version but also
remarked, in paragraph 45, on the attorney’s conduct in
advising both parties, acknowledging
possible separate proceedings.
[9]
Finally, the court considered the broader issue of ‘the
interests
of justice’ in deciding whether to grant the relief
sought, with full reference to the leading authorities on the point.
The applicant was unable to point to an erroneous interpretation of
those authorities, or to other authorities supporting rescission
of a
consent order in such circumstances. Much of the argument, reduced to
its essence, was that the outcome was unjust or unfair
for the
applicant, who could have obtained so much more had she not entered
into the settlement agreement made an order of court.
But no proper
basis was advanced to explain how another court might be able to
circumvent the authorities relied upon in the judgment
to refuse
rescission or variation. Ultimately, that is the main difficulty with
the present application. That being the case, there
is no basis for
concluding that the applicant enjoys reasonable prospects of success
and the application stands to be dismissed
with costs.
Order
[10]
The application for leave to appeal is dismissed with costs.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
29 July 2022
Delivered:
10 August 2022
Appearances:
Applicant’s
Counsel:
Adv L. Crouse
Instructed
by
:
Cloete &
Company
12A
High street
Makhanda
Email:admin@cloeteandco.za
Respondent’s
Counsel:
Adv
G. Brown
Instructed
by
:
Wheeldon Rushmere &
Cole Inc.
Matthew
Fosi Chambers
119
High Street
Makhanda
Email:sandra@wheeldon.co.za
[1]
Gangat
v Akoon
[2021] ZAGPJHC 828.
[2]
Storti
v Nugent and Others
2001
(3) SA 783 (W).
[3]
Slabbert
v MEC for Health and Social Development, Gauteng
[2016]
ZASCA 157.
[4]
Moraitis
Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd and Others
[2017]
ZASCA 54
;
2017 (5) SA 508
(SCA).