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[2018] ZAGPPHC 377
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N.A.R v J.M.R (95368/2016) [2018] ZAGPPHC 377 (22 February 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:95368/2016
22/2/2018
In the matter between:
N
A
R
APPLICANT
and
J
M
R
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
In this matter the
applicant seeks an order in the following terms as set out in the
notice of motion:
'1. That
the respondent be ordered to relinquish and transfer 50% shareholding
and/or Interest
in all the companies, corporations and businesses
held by the respondent as at 02 August 2010 in favour of the
applicant within
seven (7) days of this court order.
2.
That
the respondent be ordered to resign as trustee and beneficiary of the
Magoeba Manor Trust, IT 9246/00 and to transfer all interest
as a
beneficiary thereto to the applicant within seven (7) days of this
court order.
3.
In
the event of the respondent failing to act as specified in 1 and 2
above, that the Sheriff/s be authorised to sign on behalf
of the
respondent to
effect;
3.1
The
transfer 50% of the respondents
(sic)
shareholding and/or interest held by
the respondent in all companies, corporations and businesses as at
August 02, 2010.
3.2
The
resignation as Trustee in the and relinquishment.
(sic)
3.3
The
transfer of the respondents
(sic)
interests as beneficiary in the
Magoeba Manor Trust; IT 9246/00.
4.
Costs
of this application on an attorney and client scale.
5.
Further
and/or alternative relief.'
[2]
Sub-paragraph 3.2 is incomplete but in
view of the conclusion I have come to it Is not relevant.
[3]
The applicant was married to the
respondent on 12 February 1983 but the marriage was dissolved by
order of this Court on 5 August
2010. A settlement agreement entered
into between the applicant and the respondent was made an order of
court. The Divorce Order
reads:
'1. That
the bonds of marriage subsisting between plaintiff and defendant be
and are hereby dissolved.
2.
That
the agreement between the parties filed of record and marked "X"
be and is hereby made an order of this court.'
[4]
The relevant sections of the settlement agreement that was made an
order of court
that are relevant for purposes of this judgment are
the following:
'
BUSINESS INTERESTAND
SHAREHOLDING
Both parties to retain fifty
percent (50%) of all shares held by themselves at the date of
divorce.
PROPRIETARY CLAIM
13.1
The
parties agree that they will retain as their exclusively
(sic)
movable assets which they
respectively have in their possession and under their control.
13.2
The
Faerie Glen properties shall be kept by the defendant as her own
property.
13.3
The
Magoebaskloof property shall be kept by the Plaintiff as his sole
property.
NON-VARIATION
The parties agree that this
agreement is the sole agreement between them and any variation must
be in writing and signed by both
parties.'
[5]
The respondent
raised three points
in-limine
but in her
counsel’s heads of argument and during the hearing only the
first one was pursued seemingly because the other two
were more
properly dealt with in response to the merits of the claim. I turn
then to the point
in-limine.
The respondent
says the appellant’s claims have prescribed in terms of the
Prescription Act No. 18 of 1943. During arguments,
counsel for the
respondent conceded, as pointed out by the applicant, that the
correct Act is the Prescription Act No. 68 of 1969
which is relied
upon by the respondent.
[6]
The
respondent avers that notwithstanding the fact that the settlement
agreement was made an order of court, applicant seeks to
enforce
proprietary rights where the cause of action is based on a contract.
Hence the period of prescription relating to a contractual
debt
applies. The settlement agreement was made an order of court on 5
August 2010. The application was served on the respondent
on 9
December 2016 which is more than six years from the date the cause of
action arose, i.e. 5 August 2010. Hence, says respondent,
the claim
has prescribed.
[7]
The applicant, however, contends that
since the settlement agreement was made an order of court it is a
judgment debt and thus the
provision of s11(a)(ii) of Act 68 of 1969
applies. The section provides -
'11.
Periods of prescription of debts-
The periods of prescription of
debts shall be the following:
(a)
thirty
years in respect of-
(i) ...
(ii) any judgment debt;
…
.
Hence,
says applicant, the judgment debt has not prescribed.
[8]
The question that arises is whether a
settlement agreement which was incorporated into the divorce order
and is made
an order of court
is
a 'judgment debt'. In
PL v YL
2013(6)
SA 28 ECG, Van Zyl ADJP (as he then was). writing for a full court,
held at para [32] -
'... the making of an order in
terms of an agreement as envisaged in s 7(1) [of the Divorce Act]
brings about a change in the status
of the rights and obligations of
the parties to the settlement agreement. The reason for this lies in
the fact that the terms of
the agreement are incorporated in an order
of court. The granting of the consent judgment is a judicial act. It
vests the settlement
agreement with the authority, force and effect
of a judgment:
'When a consent paper is
incorporated in an order of court by agreement between the parties in
a matrimonial suit it becomes part
of that order and its relevant
contents then form part of the decision of that court . . . and must
be construed upon that basis.69'
The most important benefit which
accrues to the parties by reason of this change in the status of
their rights and obligations under
the settlement agreement, is that
the court retains authority over its own orders to ensure that the
terms thereof are complied
with. This In turn gives the parties the
right to approach the court for appropriate relief in the event of a
failure by one of
them to honour the terms of a consent order.
Accordingly, by agreeing to their settlement being made an order of
court, both parties
effectively commit themselves to comply with the
terms thereof and to be subjected to sanction by the court should
they fail to
do so.'
(Footnote 69 is a reference to the
judgment of MT Steyn J in
Hermanides v Pauls
1977 (2) SA 450
(0) at 452G - H.) With respect, I agree with the view of the Full
Court. Accordingly,
in casu
the settlement agreement is a
judgment debt. The thirty years prescription period applies therefore
the claim has not prescribed.
[9]
The applicant seeks
enforcement of the order. However. the respondent contends that the
judgment does not contain any obligation
on respondent to transfer
any shares to applicant, to resign as trustee, 'and/or' to resign as
beneficiary as claimed in the notice
of motion. The applicant seems
to rely on an implied term of the agreement which relates to a matter
of interpretation and not
a judgment
ad
factum praestandum
(to
perform an act).
[10]
The applicant relies on the clause in the settlement agreement which
provides that 'Both parties
to retain fifty percent (50%) of all the
shares held by themselves at the date of divocrce.'
The
clause does not clearly say what is to happen to the other 50%. It
does not evince an obligation that either party should transfer
shares to the other party. It also has to be borne in mind that
clause 13.1 of the settlement agreement provides that any variation
of the agreement is to be in writing.
[11]
In prayer 2 the applicant seeks an order
that the respondent resign as trustee and beneficiary of the Magoeba
Manor Trust and that
all her interest as beneficiary be transferred
to the applicant.
[12]
It is common cause that the property
referred to in clause 13.3 of the agreement
de
facto
vests in the Magoeba Manor
Trust. The agreement contains no provision that either the applicant
or the respondent is obliged to
resign as trustee and beneficiary of
the trust.
[13]
During oral submissions, applicant's
counsel emphasised that what the applicant was seeking was
enforcement of the court order of
5 August 2010. Given the
ambiguities in the relevant clauses of the settlement agreement, in
my view, what the applicant probably
should have done is seek
rectification of the agreement in order to reflect the true intention
of the parties.
[14]
Where enforcement of a court order is
sought it must be readily capable of execution. (See
PL
v YL supra
at 498-C para (35].
However, Van Zyl ADJP said -
'The notion that a court order
must be readily enforceable has as its purpose the effective
enforcement of the pronouncements of
the court as a constitutional
institution clothed with judicial authority.'
The learned Judge said further at
p50 para [38]-
'The findings in
Thutha,
[2008(3) SA 494 (TkH)] namely (a) that the practice of
incorporating the terms of a settlement agreement into an order of
court
should not be followed; and (b) that no agreement should be
made an order of court unless its provisions can be translated into
an order upon which the parties thereto can proceed directly to
execution, 'without redress to further litigation', is in my view
unduly inflexible and restrictive, not only of the powers of the
court in s 7(1) of the Divorce Act, but also in relation to the
inherent power of the court to compel the observance of its orders.'
Further at para [39] -
'The finding in
Thutha
is
further premised on the incorrect assumption that the court will only
give effect to an order that is readily enforceable.' (Footnotes
omitted.)
[15]
It seems to me that
the parties intended to carry out certain reciprocal obligations in
settlement of the divorce matter but the
agreement has been worded
ineptly. As I said, the applicant should have sought rectification of
the settlement agreement or its
interpretation, if so advised. But I
note that the agreement has a non-variation clause as well.
[16]
In the circumstances, the application
falls to be dismissed with costs.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant :
Adv. T Williams
Instructed
by:
Mpoyana Ledwaba Inc.
Counsel
on behalf of Respondent:
Adv. P.A Van Niekerk
(SC)
Instructed
by:
Lingenfelder & Baloyi
Attorneys
Date
heard :
24 October 2017
Date
delivered:
22 February 2018