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[2018] ZAFSHC 192
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M M v M M and Another (3019/2014) [2018] ZAFSHC 192 (6 December 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3019/2014
In
the matter between:
M
M
Plaintiff
and
M
M
1
st
Respondent
SHERIFF BLOEMFONTEIN
EAST
2
nd
Respondent
JUDGMENT BY: MHLAMBI
J,
HEARD ON:
01 NOVEMBER 2018
DELIVERED ON:
06 DECEMBER 2018
MHLAMBI,
J
[1]
The cardinal question to be decided in this matter is whether a deed
of settlement which was incorporated in a final decree
of divorce
constitutes a court order which gives rise to the authorisation of a
writ without further ado.
[2]
The applicant brought an application on 22 May 2018 in terms of which
she sought relief in two parts: Part A and B. Part A was
brought on a
semi- urgent basis for interim relief in terms of which the sheriff
of Bloemfontein East, the second respondent, was
ordered to suspend
the selling in execution of the applicant’s movable property
which was attached and removed from her home
by the sheriff on 04 May
2018 pursuant to a warrant of execution which was granted by the
registrar of this court on 20 March 2018
under case number 3019/2014.
Part A was struck from the roll on 24 May 2018 for lack of urgency.
[3]
Under Part B, the applicant sought an order setting aside,
alternatively rescinding the warrant of execution granted by the
registrar of the above court on 20 March 2018 under case number
3019/2014 and directing and ordering the second respondent to rescind
the notice of attachment in execution dated 4 May 2018. The court is
called upon to adjudicate only Part B of the Notice of Motion.
[4]
The parties were married to each other in community of property and
the bonds of marriage were dissolved on 16 February 2016
when the
court granted a decree of divorce which incorporated the deed of
settlement. Clause 2.3 of the said deed of settlement
stipulated that
both parties would be liable for fifty per cent (50%) of the two
children’s tertiary education and or post-schooling
training.
On 20 March 2018, the first respondent caused a warrant of execution
to be issued by the registrar under case number
3019/2014 for the
payment to him by the applicant of the amount of R 16 152.50.
This amount was set out in the accompanying
affidavit. as payment
that the applicant failed to pay to either the first respondent or to
Motheo TVET College in respect of the
tertiary education of the major
son, KT M, for both registration and class fees for the years 2016,
2017 and 2018. The present
application arose as a result of the
execution steps taken against the applicant.
[5]
The grounds for the relief sought under Part B of the notice of
motion are stated as follows:
5.1 The first
respondent lacked the necessary
locus standi
to claim payment
of the amount claimed and allegedly owed to him. He had not incurred
the expense of the tuition fees claimed from
the applicant as at the
time the warrant of execution was issued. The amount sought to be
recovered was owed to Motheo TVET College
and not to him.
5.2 The warrant of
execution was irregularly obtained as it did not comply with sub-Rule
45 (1) of the Uniform Rules of Court.
No judgment was granted in
favour of the first respondent which authorised the issuing of such
writ. The amount sought to be recovered
was neither a liquidated
amount of money nor a liquidated debt. The writ was therefore
ill-gotten as the settlement agreement was
enforced in a manner that
precluded the applicant from exercising his right to be heard.
5.3 On a proper
construction of clause 2.3 of the settlement agreement, the
applicant’s liability under clause 2.3 of
the agreement had not
arisen at the time legal steps were initiated against her. The
tuition provided to the child at Motheo TVET
College at the relevant
time did not qualify as “
tertiary education”
or
“
post school training”.
The child was
enrolled at Motheo TVET College in the year he was supposed to have
been in grade 11. He failed grade 10 and
the first respondent decided
unilaterally to enrol him at the college. The applicant never gave
consent for such a step nor did
he support the decision by the first
respondent in that regard. The tuition provided to the child prior to
his passing grade 12
did not qualify as either “
tertiary
education”
or “
post school training”
.
The applicant was therefore not liable for payment of 50% of the cost
of the child’s schooling as claimed.
[6]
The first respondent stated in his opposition that the grounds on
which the applicant sought to rescind the warrant of execution
was
not sustainable both in law and fact. The applicant overlooked the
fact that the relevant deed of settlement was made an order
of court.
When parties agreed to ask the court to give judgment on the issues
raised by the action in accordance with the terms
of a settlement
agreement, the advantage is that the court retains a jurisdiction
over the matter in the sense that it has the
inherent power or
authority to ensure compliance with its own orders
[1]
.
This enables the parties, in the event of a failure by any one of
them to honour the terms of the order, to turn directly to the
court
that made the order and to seek the enforcement thereof without the
necessity of commencing a new action
[2]
.
[7]
The implementation of the order was not left to the discretion of
either of the parties as the order was capable of ready enforcement
without the need to resort to further litigation. It was not the
applicant’s case that she had made payment of her half share
of
the child’s tuition fees. To the contrary, she asserted that
she was not obligated to do so as the son’s course
of study did
not constitute tertiary education. The applicant’s
non-compliance with the court order led to the tuition fees
falling
into arrears. Consequently, the first respondent signed an
acknowledgement of debt and made payment arrangements to avoid
the
child from being kicked out of college on 15 January 2008
[3]
.
The
Parties’ submissions
[8]
The applicant submitted that the settlement agreement which was made
an order of the court, was not a judgment granted in favour
of the
first respondent as envisaged in sub-Rule 45 (1) and that the proper
cause for enforcing the agreement required further
proceedings by the
first respondent on notice to the applicant. The warrant of execution
failed in material respects to comply
with Form 18 of the First
Schedule. It was further submitted that if the judgment was one
ad
pecuniam solvendam,
namely, one in which the court ordered the debtor to pay a sum of
money, it was appropriate to seek its enforcement by way of a
warrant
of execution
[4]
. Clause
2.3 of the deed of settlement did not constitute a judgment
ad
pecuniam solvendam and w
as
clearly distinguishable from the so-called “
expenses
clause”
contained in maintenance orders which are subject to the condition
that the amount must be easily ascertainable and is ascertained
in an
affidavit filed on behalf of the judgment creditor
[5]
.
The applicant, in substantiation of its submissions in this regard,
relied on a passage in
Butchard
v Butchard
[6]
(this
decision, as will be shown below, though relevant to the present
circumstances, does not bolster or assist the applicant’s
case.
On the contrary, it is fatal to her case).
[9]
It was contended on behalf of the first respondent that the
applicant’s failure to comply with clause 2.3 of the deed
of
settlement galvanised the first respondent to issue a writ in the
amount of R 16 152.50 in line with the decision of
Ex
Parte
Le Grange
[7]
.
The obligation, in clause 2.3 of the deed of settlement imposed on
the applicant and the first respondent, was indisputably one
ad
pecuniam solvendam.
The
first respondent did precisely what was proposed in
Butchard
v Butchard
[8]
as he quantified the expenses in an affidavit.
Discussion
[10]
In
Eke
vs Parsons
[9]
,
it was held that once a settlement agreement had been made an order
of court, it was like any other order and to be interpreted
as such.
As far as enforcement went, this could be by execution, contempt
proceedings, or in some other manner that the order permitted.
A
settlement order brought finality to litigation; gave rise to
res
judicata
;
was enforceable like any other order; and that the manner of its
enforcement depended on the nature of the order itself
[10]
.
In paragraph 57 of the judgment, the court expressed itself as
follows:
“
It
is the inherent power sitting in s 173 which enables superior courts
to convert settlement agreements of litigants into court
orders. As
stated in the main judgment, such orders have a status equal to every
court order and have legal force equivalent to
that of other orders
of court. This means that the High Court was wrong to hold in cases
like Thutha and Tasima
that there is a class of court
orders, based on settlement agreements, which are not enforceable as
court orders and are regarded
as nothing more than a recordal of the
parties' agreement.”
[11]
In
Le
Grange
[11]
,
Van Zyl ADJP, writing for the full bench, expressed himself as
follows
[12]
:
“
A further issue
which the court by law is required to determine and regulate is the
interest of the minor or dependent children
of the marriage. Our law,
as it is now reflected in the constitution, the Children’s Act
and the Divorce Act prescribes that
the child’s best interests
must determine the outcome when the court has to make an order
regarding a child. In terms of
section 6 of the Divorce Act the court
may not grant a decree of divorce until it is “
satisfied
”
that the arrangements that have been made with regard to the welfare
of the children of the parties are satisfactory or
the best that can
be achieved in the circumstances. The factors to be considered in
this regard are reflected in section 7 of the
Children’s Act.
Once the court is so satisfied it may make any order it deems fit
with regard with the guardianship, custody,
access and maintenance of
the children……..Should the court sanction the terms of
the settlement and incorporate it
into its order it represents a
decision of the court made on the evidence placed before it”.
[12]
The court must be satisfied that the parties to the agreement have
freely and voluntarily concluded the agreement and that
they are
ad
idem
with
regard to the terms thereof. The order must be a competent and a
proper one to make in the circumstances. The order must relate
directly or indirectly, to an issue or lis between parties that is
properly before the court and in respect whereof, but for the
settlement agreement, it would possess the necessary jurisdiction to
entertain. Secondly, the agreement must not be objectionable,
that
is, its terms must be capable, both from a legal and a practical
point of view of being included in a court order.
[13]
[13]
In the light of the above, there is no justification whatsoever why
the court should accede to the applicant’s prayers
as set out
in the notice of motion. I agree with the submissions made relating
to and the reliance on
Bucthard vs Buctchard
in that
there is no reason in principle or practice why a judgment for
payment for a category of expenses which can be quantified
without
difficulty should not be able to sustain a writ, if the accrual and
the amount of expenses, on the basis on which liability
therefor is
established in a judgment, are proved, for example by an affidavit of
the judgment creditor. The applicants’
liability for payment of
the tertiary or after school expenses is clearly established in
clause 2.3 of the deed of settlement.
The rest of the arguments
raised by the applicant are not on point and without substance. This
application must therefore fail.
[14]
In the result, costs should follow the event.
[15]
I therefor make the following order:
Order:
The
application is dismissed with costs.
___________
MHLAMBI,
J
Counsel
for the Applicant: Adv. A Lechwano
Instructed
by: Horn & Van Rensburg
:
93A Charles Street
:
Bloemfontein
Counsel
for Respondents: Adv. W Van Aswegen
Instructed
by: McIntyre & Van Der Post
:
12 Barnes Street
:
Bloemfontein
[1]
Para
16:1
st
respondent’s opposing affidavit; Ex Parte Le Grange and
another 2013(6) SA 28 (ECG) para 9
[2]
Para
17: Opposing affidavit; Ex Parte Le Grange,supra
[3]
Para
22: Opposing affidavit
[4]
Paragraph 4.17 of the applicant’s heads of arguments
[5]
Para
4.21 4.22: Applicant’s heads of argument
[6]
1996 (2) SA 581
(W) at 587 paras G-I
[7]
Ex
Parte
Le
Grange, supra, at paragraph 10
[8]
supra
[9]
2016 (3) SA 37
(CC) para 29
[10]
Eke,supra,
paras
31 and 53
[11]
supra
[12]
Paragraph 12, 13 and 15 of the judgment
[13]
Le
Grange, supra para 15