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[2021] ZAGPPHC 126
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Mphuthi v Komape and Another (80744/19) [2021] ZAGPPHC 126 (12 February 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 80744/19
DATE:
12 February 2021
DORCAS
MOROKU
MPHUTHI
Applicant
V
TLOU
ERNEST KOMAPE
First Respondent
GOVERNMENT
EMPLOYEES PENSION FUND
Second Respondent
JUDGMENT
MABUSE
J
[1]
This is an application by the Applicant, Dorcas Moroku Mphuthi, an
adult unemployed female of
[….], seeks the following order
against the First Respondent, Tlou Ernest Komape, an adult male
employed in the [….],
residing at House Number. [….]:
“
1.
That it be
declared that the Applicant is entitled to 50%(Fifty percent) of the
First
Respondent’s
pension interest in the Government Employees Pension Fund under
member number
[….];
2.
That the Second
Respondent be ordered to record in its records that the Applicant is
entitled to 50% of the First Respondent’s
pension
interest in the Government
Employees Pension Fund under member number 98308349 calculated
up to
date of divorce Order;
3.
That the Second
Respondent be ordered to pay the aforesaid50% of the First
Respondent’s pension interest in the
Government Employees
Pension Fund under
member number 98308349directly to
the Applicant, alternatively to the
Applicant’s Attorneys of record, within
sixty (60) days from date
of this order;
4.
In the alternative
to Prayers 1 to 3 supra that the divorce order granted on 4 October
2018
be varied by including the
following paragraphs thereto:
“
3
The Defendant is entitled to 50%of the Plaintiff’s pension
interest in the
Government Employees Pension
Fund under member number
98308349.
4
That the Plaintiff is ordered to take all reasonable steps to ensure
that
the
Defendant’s entitlement to 50% of the
Plaintiff’s
pension interest be recorded in
the records of the Government Employees Pension Fund and that the
Defendant’s share be paid to her within 60 (sixty) days from
date of this Order.”
5.
That the Costs of
this application be paid by the First respondent in the event of it
being opposed.”
[2]
This application is resisted by the First Respondent only.
[3]
The Applicant and the First Respondent were married to each other in
community of property on
8 November 2011. The said marriage was
terminated by an order of Court incorporating a settlement agreement
on 4 October 2018.
[4]
The said settlement agreement was signed by both the Applicant and
the First Respondent in the
presence of their witnesses on 1 May
2018.
[5]
The salient terms of the said settlement agreement were as follows:
“
1.2
Plaintiff and Defendant (hereinafter referred to collectively as “the
parties”) have reached an agreement
of settlement in regard to
their proprietary rights; and
1.3
The parties desire that their settlement agreement be made an Order
of Court subject to the approval
of the above Honourable Court.
CASH
SETTLEMENT
3.1
The parties agree that the Plaintiff will pay the Name Defendant the
amount of R15,000.00(Fifteen Thousand)
in full and final settlement
of all disputes and/or any claims arising from the marriage in
community of property into the Defendant’s
nominated account
which is ….
Name
of Account Holder: DORCAS MOROKU MPHUTI
BANK:
CAPITEC
ACCOUNT
NUMBER:[….]
BRANCH
CODE:470010
4.
POLICIES
AND PENSION INTEREST
The
parties agree that each party shall retain their respective policies
and pension interest as their sole and exclusive benefit
and the
defendant waives any claim against the plaintiff pension held with
the Government Employee Pension Fund, commonly known
as “GEPF”
with Pension Nr. [….].
FULL
AND FINAL SETTLEMENT
8.1
This agreement is in full and final settlement of all or any claims
of whatsoever nature and howsoever
arising which either party might
have against the other, and save as is expressly set out in this
agreement, neither party shall
have any claim against the other of
whatsoever nature.”
[6]
Now the Applicant claims the relief set out in paragraph [1]
supra
because she contends that:
6.1
the combined summons, the settlement agreement and the Court order
did not make provision for an order
that 50% of the First
Respondent’s pension interest be awarded to her;
6.2
she claims furthermore that she did not abandon her entitlement to
50% of the First Respondent’s
pension interest;
6.3
she claims that when she signed the settlement agreement, she was
highly pregnant, emotionally challenged
and mentally unstable.
She did not comprehend the clause to mean that she abandoned her
right. She then annexed copies
of the medical certificate;
6.4
she states that she was under an impression that at all material
times the First Respondent’s
pension benefits formed part of
the joint estate;
6.5
according to her, the R15,000.00 that she received was in respect of
the motor vehicles and the household
effect.
[7]
The Applicant states that the First Respondent’s pension
interest was discussed, and it
was agreed that she would receive 50%
of the First Respondent’s pension interest.
[8]
It is of paramount importance to point out that it was the First
Respondent who initiated, by
way of the combined summons, the divorce
proceedings of the Applicant and himself. In the particulars of
claim (“POC”)
the First Respondent had stated as follows:
“
7.
The
Plaintiff is a member of the Government Employee Pension Fund,
commonly known as “GEPF”, with Pension Nr. 98308349
and
in terms of the provisions of the Divorce Act, as amended, the
defendant is entitled to 50% of the plaintiff pension interest.
In
prayer 2 of the POC the Plaintiff had prayed for
:
(2)
An order directing the Government Employee Pension Fund to pay the
Defendant her half share of the plaintiff pension interest
with the
prescribed time limit and/or as may be directed by the above
Honourable Court.”
[9]
It is therefore not correct, as the Applicant stated in paragraph 6.1
supra, that the combined
summons did not make provision for an order
that 50% of the First Respondent’s pension interest should be
awarded to her.
It is surprising that the Applicant should make
such a statement and having done so, attach a copy of the combined
summons that
clearly refers to the First Respondent’s pension
interest.
[10]
As I pointed out in paragraph [2]
supra
, the First Respondent
opposes the application. For that purpose, he has, in addition,
delivered an answering affidavit.
In opposing the relief that
the Applicant seeks, the First Respondent has raised three points
in
limine
as follows:
10.1
non-compliance with the provisions of Regulation 4(1) as promulgated
in Government Gazette 3619, Government Notice
R1258 of 21 July 1972,
as amended:
10.1.1
in this respect the First Respondent complains about the date on
which the
founding affidavit was commissioned. While the month
of September 2019 appears in the typed certificate of oath, the
Commissioner’s
stamp shows that the founding affidavit was
commissioned on 29 October 2019;
10.1.2
the Applicant has pointed out in the replying affidavit that the
founding
affidavit was commissioned on 29 October 2019 and not in
September 2019. This Court accepts the explanation as
reasonable.
10.2
The second point
in
limine
is
transactio
:
10.2.1
it is the First Respondent’s case that during 2017 the
Applicant was
served with a copy of the divorce proceedings under
case number 23712/2014; that the parties signed a settlement
agreement on 1
May 2018; that in terms of paragraph 3.1 of the said
settlement agreement, the Applicant agreed to receive the sum of
R15,000.00;
that she expressly waived all her legal rights and
entitlements to any claim arising from marriage in community of
property, which
rights included her interest in the pension fund held
on administration by the Second Respondent; that by agreement between
the
Applicant and the First Respondent, the settlement agreement was
made a court order; that on the basis of the said court order,
the
First Respondent paid the Applicant R15,000.00. It is finally
the First Respondent’s case that all the disputes
between them
have been properly resolved;
10.2.2
Rule 42 of the Uniform Rules of Court deals with the grounds upon
which certain
of its orders or judgments can be varied or rescinded
or amended. With reference to the grounds set out in the
application
on which the Applicant seeks to rescind the Court Order
of 4 October 2018 the provisions of Rule 42(1)(c) are apposite.
Rule
42(1) states that:
“
The
Court may in addition to any other powers it may, have mero motu or
upon the application of any party affected rescind or vary
–
(c)
an order or judgment granted as a result of a mistake common to the
parties.”;
10.2.3
to succeed with her application to rescind or vary the Court Order,
the Applicant
must prove that the settlement agreement did not
contain the true terms agreed. An analysis of her reasons for
rescinding
the settlement agreement will reveal that no blame
whatsoever is placed by the Applicant at the feet of the First
Respondent.
Furthermore, no blame at all is placed by the
Applicant at the feet of the First Respondent’s legal
representative.
It is therefore not a common error that lead to
the parties signing the settlement agreement. It is because of
an error on
the part of the Applicant that she signed the settlement
agreement;
10.2.4
the Applicant does not explain how the fact that she was pregnant or
emotionally
challenged led her to signing the agreement. She
does not say that she was misled into signing the settlement
agreement.
In the premises, the Court finds that it was an
error on her part that led her to signing the settlement agreement;
10.2.5
in such circumstances I find no reason to deviate from the Judgment
of
Joseph v Joseph
1951 (3) SA 776
[N.P.D]
where the Court
held that if a litigant, by mistake of himself or his legal advisors
abandons relief to which he is or may be entitled,
the Court has no
jurisdiction or power to recall or amend the order it had in
consequence deliberately made, in the absence of
fraud of the other
party in the cause of the proceedings including the order;
10.2.6
at pages 779H to 770, the Court, as per Caney AJ, said the following
to say
in Joseph v Joseph:
“
The
Plaintiff was entitled of right to an order for forfeiture if she had
asked for it. Ward v Ward,
1924 N.P.D 301.
The
fact that her omission to do so was due to an error on the part of
herself or her legal advisors does not allow her now to obtain
a
variation of the Court’s judgment…..
.”
(My
own underlining).
There
was no mistake or inadvertent omission or oversight on the part of
the Court or in the issue of the order which was the very
order for
which the Applicant had asked;
10.2.7
the fact that the Applicant signed the deed of settlement meant that
the
mistake was due to her own carelessness or inattention. So,
she cannot raise it;
10.2.8
in
Humphries v Laser Transport Holdings Ltd and Another
1994 (4)
SA 388
CPD
, the Court dealt with,
inter alia
, firstly
rectification of a contract and what the claimant must prove to
succeed. To succeed, the claimant must prove common
intention
which the parties intended to express in the contract but which,
through a mistake, they failed to express. Secondly,
it dealt
with the grounds of error. The error is required to be
reasonable. It held that the unreasonableness of one
parties’
conduct is not relevant when the parties are
ad idem
about the
terms of the agreement.
10.2.9
Finally the
First Respondent’s legal representative referred this Court in
his heads of argument to the judgment of
National
and Overseas Distributors Corporation (Pty) Ltd v Potato Board
1958
(2) SA 473
(A), 479F-H
,
where the Court had the following to say:
“
Our
law allows a party to set up his own mistake in certain circumstances
to escape liability under a contract into which he has
entered. But
where the other party has not made any misrepresentation and has not
appreciated at the time of acceptance that his
offer was being
accepted under a misapprehension, the scope for a defence of
unilateral error is very narrow, if it exists at all.
At least the
mistake (error) would have to be reasonable (justus) and it would
have to be pleaded. In the present case the plea
makes no mention of
mistake and there is no basis in the evidence for a contention that
the mistake was reasonable.”
10.2.10
The First
Respondent’s legal representative submitted in his heads of
argument that the issue of
justus
error was raised by the Applicant for the first time in her heads of
argument and that it was never pleaded. He is correct. I agree
with
him. This is the principle set out in the Potato Board authority.
[11]
RES
JUDICATA
The
last point
in
limine
that the First Respondent has raised is that of
r
es
Judicata
.
It is
contended
by the First Respondent that after the settlement agreement being
made an Order of Court and the marriage relationship
between the
parties being dissolved the matter
became
a
res
judicata
.
According
to the First Respondent the effect of
res
judicata
is that
once
a determination has been made on a specific dispute between the
parties both parties
are
bound by that determination and cannot litigate the same dispute.
The
expression
res
judicata
literally
means that the matter has already been decided. In this regard the
First
Respondent’s
legal representative finds support in the judgment
of
Prinsloo NO & Others v
Goldex
15 (Pty) Ltd & Another
2014 (5) SA 297
SCA at para 10
.
In the said paragraph the
SCA
set out the general rule that was pronounced in
Estate
Garlick v Commissioner or Inland Revenue,
1934 AD, 499
at 502
,
De Villiers, J A, that “
an
order of Court, once it has
been
pronounced by the word of mouth of the Judge, cannot as a rule be
thereafter altered
or
amended by that Judge”.
Having
set out the general rule above, the court then stated that:
“
To
this general rule there are certain exceptions, which are stated by
the writers
referred
to; for instance, and order after having been pronounced may be
amended or added to where through some mistake it does
not express
the true intention and decision of the Court; or where it is
ambiguous; or where the Court through an oversight has
omitted to
include in its order something which is accessory to the principal,
such as interest, fruits, or costs.”
[12]
I
therefore do not agree with the First Respondent’s legal
practitioner that the Applicant may
not
challenge the order of Court granted at the end of the divorce
proceedings in this regard.
For
instance, in
West
Rand Estate, Limited v New Zealand Insurance Co., Ltd 1926 A.D.173 at
p.179
where
Innes C.J. cited with approval from
Randfontein
Estates Ltd. v
Robinson,
1921 A.D. 515
,
the
following passage:
“
It
is sufficient for purposes of this case to say that a Judge may
explain his order if
ambiguous,
or may correct an error, or add a supplementary detail so as to give
effect to his true intention but cannot alter an
order once duly made
and accurately drawn up”.
[13]
Therefore
the fact of
res
judicata
cannot prevent the Applicant from launching an application to rescind
and set aside an order obtained in circumstances referred
to in Rule
41(1)(c) of
the
Rules, nor can it prevent the Judge who granted the Order from
amending it or adding to
it
if the conditions set out in Estate Garlick
supra
prevail.
[14]
I have
already stated in paragraph 10.2.6 supra that in his application the
order that was expressed between the parties, in my
view, expressed
the true intention and decision of the Court.
There
was no mistake, inadvertent omission, or oversight on the part of the
Court or
in
making the Order which was the very Order that the Applicant had
sought in the draft
Order
that was ultimately confirmed by the Court at the application of the
Applicant.
The
relief
that she now seeks would be in direct conflict with the order that
was granted by the
Court
on 4 October 2018.
[15
]
Accordingly,
the application is refused
.
PM
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant:
Adv AM Letwaba
Instructed
by:
Mukwevho NP Attorneys
Counsel
for the Defendant:
Attorney S Makhafola
Instructed
by:
Makhafola & Verster Incorporated
Date
on the opposed roll before Mabuse J:
18 November 2020
Date
of Judgment:
12 February 2021