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[2020] ZAGPPHC 15
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Choudry v Bronkhor CC and Another (84696/2019) [2020] ZAGPPHC 15 (31 January 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGE: NO
(3)
REVISED:
NO
CASE
NO: 84696/2019
31/1/2020
In
the matter between:
RAHAT
NABEEL
CHOUDRY
APPLICANT
and
BRONKHOR
CC
FIRST RESPONDENT
SHERIFF
OF THE HIGH COURT –
BRONKHORSTSPRUIT
SECOND RESPONDENT
JUDGEMENT
Van
der Schyff, J
[1]
The
applicants initially approached the Court on an urgent basis on 8
November 2019. They sought an order:
i.
Staying
the warrant of execution issued under case number 49389/2018;
ii.
Staying
all further execution under case number 49389/2018;
iii.
Ordering
the second respondent to open up the applicant's premises trading as
M & A Supermarket at Bronkhor Building, Shop 173,
Bronkhorstspruit and to give applicant free and undisturbed
possession of same.
[2]
The
Court granted an interim order that the warrant of execution be
stayed pending the finalisation of the application. The matter
was
enrolled for final adjudication on 27 January 2020.
Applicant's case
[3]
It
was clear from the onset that the applicant no longer required an
order staying the warrant of execution as prayed for in the
Notice of
Motion or argued for in the written Heads of Argument filed by the
applicant. It was argued on behalf of the applicant
that the Court
was entitled, under the payer for further and alternative relief, to
permanently set aside the writ of execution.
Applicant contended that
the underlying cause of the judgment debt no longer exists due to a
compromise being concluded between
the parties.
[4]
The
applicant averred that the settlement agreement concluded between the
parties during February 2019 amounted to a compromise
and
extinguished the underlying cause for the warrant of execution.
Respondent's
case
[5]
The
respondent claimed that it was within its rights to enforce and
execute the judgment obtained on 15 November 2018 and that the
agreement concluded between the parties during February 2019 does not
amount to a compromise that extinguished the judgment debt.
Legal principles
[6]
It
is trite that an applicant who seeks final relief on motion must
accept the version set up by his opponent unless no real
bona
fide
factual disputes arise. In the
current matter, the common cause facts determine the context within
which the court must determine
the application.
[7]
Harms
[1]
defines a compromise or settlement as "a
contract
which
has as
its
objective the prevention, avoidance or termination of litigation".
It has the effect of
res
judicata
and
"is
an absolute defence to any action based on the original claim".
[8]
In
Van Zyl v Niemand
1964
(4) SA 661
(A) it was held, as summarised in the headnote, that
"
A settlement has the same effect
as
res judicata, and accordingly it
excludes an action on the original cause of action, except where the
settlement expressly or by
clear implication provides that, on
non-compliance with the provisions thereof, a party can fall back
upon his original right of
action."
[9]
In
Wilson
Bayly Homes (Pty) Ltd v Maeyane and Others
1995
(4) SA 340
(T) 345E the Court held:
"
The contract in the present case was one of compromise. The nature of
such a contract is that it is concluded because the
rights of the
parties are uncertain, and they choose not to resolve that
uncertainty. By the very nature of such a contract, there
can be
little room for finding that the parties must have intended their
contract to depend upon the existence of one or other
of the factors
relevant to their respective rights. It is precisely to avoid testing
them that they compromise."
[10] When
any agreement is interpreted the principles relating to
interpretation as set out in
Natal Joint Municipality Pension Fund
v Edumeni Municipality
2012 (4) SA 593
(SCA) must be applied.
Common cause facts
[11]
It is common cause that:
i.
The
respondent obtained judgment in the amount of R554 963.42 against the
applicant;
ii.
The
cause of action was breach of contract, in that the applicant who
leased a shop from the respondent, failed to honour the terms
a lease
agreement concluded between the parties. The respondent cancelled the
lease agreement, and obtained judgment against the
applicant on 15
November 2018 for arrear lease payments;
iii.
The
parties then entered into a settlement agreement during February 2019
after the applicant and his co-debtor were for the first
time served
with a writ of execution and the court ordered their eviction from
the premises;
iv.
The
settlement agreement provided for the revival and continuation of the
lease agreement, and the payment of the judgment debt,
together with
mora
interest
and the respondent's legal fees to the date of the settlement
agreement, in monthly instalments of R20 000,00;
v.
The
agreement also contained a provision stipulating that
"should
the Defendant
[applicant]
at
any time fail to adhere to the terms of this Agreement, the Plaintiff
[respondent]
shall
without further notice to the Defendants, be entitled to proceed to
issue both
a
writ
of attachment and
a
writ
of eviction pursuant to the order of court dated 15 November 2018";
vi.
After
the conclusion of the settlement agreement the applicant defaulted on
payments and the respondent proceeded to execute the
judgment debt on
the warrant of execution issued in 2018;
vii.
The
applicant made some payments towards the judgment debt since the
judgment was obtained in November 2018;
viii.
The
warrant of execution refers to the original judgment debt without any
reconciliation of the amounts paid, refers to the wrong
address and
wrongly reference the name of business entity where the movables are
located as
"M
&
M Supermarket" instead of
"M
& A Supermarket". The
Sheriff did, however, execute the writ at the correct address.
Discussion
[12]
It is common cause that the applicant
and respondent concluded the so-called settlement agreement after the
applicant and a co-debtor
were served with a writ of execution on 1
February '2019.
[13]
It is not indicated on the papers that
there was any dispute between the parties pertaining to the
continuance of any litigation
that needed to be resolved or avoided
at the time when the settlement agreement was concluded.
[14]
On the face of it, the parties concluded
the agreement to allow the applicant to continue trading and to pay
off the judgment debt,
inclusive of the costs and
mora
interest, in instalments.
[15]
In order to protect its interests, the
respondent, however, reserved the right to execute the judgment debt
immediately, without
further notice, if the applicant defaulted on
this agreement. The settlement agreement thus expressly provides that
on non-compliance
with the provisions thereof, the respondent can
fall back upon his right to execute the judgment debt.
[16]
The agreement, however, revived the
lease agreement and the lease agreement thus exists parallel and
subject to, the agreement to
pay of the judgment debt,
mora
interest to date of settlement,
agreed amount of legal fees and interest levied on the outstanding
amount as agreed upon, in monthly
instalments of R20 000,00.
[17]
Due to the applicant's failure to honour
the terms of the settlement agreement and the fact that the applicant
defaulted on the
instalment payments, the respondent is entitled to
enforce the judgment obtained in November 2018 and may proceed to
issue both
a writ of attachment and a writ of eviction pursuant to
the order of court dated 15 November 2018, as agreed upon by the
parties.
[18]
I pause to note that it was argued on
behalf of the applicant that the terms of the lease agreement that
stipulate the process to
be followed if the applicant defaults on
that agreement, are in direct contrast to the settlement agreement
that determines that
the respondent will be entitled to proceed with
a writ of attachment and a writ of eviction in the event of
non-adherence to the
terms of the settlement agreement. The
respondent answered and stated that the lease agreement was
effectively varied by this provision
of the settlement agreement.
[19]
Considering the context within which the
lease agreement was revived, I am of the view that its continuance is
subject to the terms
of the settlement agreement. In the event that
the applicant honours the terms of the settlement agreement, the
lease will continue
unabated. Where the terms of the settlement
agreement are honoured and the applicant defaulted on lease payments,
the legal process
as prescribed in the agreement must be followed to
cancel the lease contract. However, where the terms of the settlement
agreement
are breached, the respondent is entitled to issue a writ of
attachment and a writ of eviction without further notice, and thus
the lease agreement will necessarily cease to exist when the
applicant and his co-debtor are evicted. This is a logical result
flowing from the interpretation of the settlement agreement.
[20]
The applicant did not and do not purport
to seek a rescission of the judgment which is the foundation on which
the writ of execution
was issued. In the absence of a finding that a
compromise agreement barring any proceedings aimed at executing the
original judgment
was concluded, the judgment stands, and a
causa
exists which justifies the issue of
the writ.
[21]
In the affidavit, the applicant
challenges the validity of the writ on the basis that it contains
incorrect information. I am of
the view that the warrant of execution
must be amended to reflect the correct amount owed and due in terms
of the court order dated
15 November 2018 and the correct address of
the applicant where the warrant is to be executed.
[22]
There is no reason to deviate from the
general rule that costs follow suit.
ORDER
As a
result, the following order is made:
1.
The application is dismissed.
2.
The Registrar is directed to issue an
amended warrant of execution to reflect the correct amount owed by
the applicant in terms
of the judgment of 15 November 2018, and the
correct address where the attachment is to be executed.
3.
The applicant is to pay the costs of the
application.
Elmarie van der Schyff
Judge of the High Court, Pretoria
Counsel
for the applicants:
Adv Groenewald
Instructed
by:
Friedland Hart Solomon and Nicholson
Counsel
for the respondent:
Adv LT Taljard
Instructed
by:
Haasbroek & Boezaart
Date
of the hearing:
27 January 2020
Delivered:
31 January 2020
[1]
LTC Harms,
Amler's precedents of pleadings,
LexisNexis, 7
th
ed, 97