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[2018] ZAKZDHC 38
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J.M v K.M (2771/2012) [2018] ZAKZDHC 38 (31 July 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION,
DURBAN
CASE
NO.
2771/2012
In
the matter between:-
J
M
APPLICANT
and
K
M
RESPONDENT
ORDERS
(a) Judgment is granted in favour of
the applicant against the respondent:-
(i)
in the sum of R3.5 million;
(ii) interest on
the aforesaid sum of R3.5 million calculated at the rate of 15.5 %
per annum with effect from 1 March 2016 to date
of payment.
(b) The respondent
is to effect payment of the judgment amount of R3.5 million plus
interest as referred to in paragraph (a)(ii)
above within ten court
days of granting of this order.
(c) The relief
sought in paragraph 4 of the applicant’s notice of motion is
adjourned sine die and the applicant is granted
leave to reinstate
this application, supplemented as may be necessary, in regard to such
relief in the event of the respondent
failing to comply with
paragraphs (a) and (b) of the order.
(d) The respondent
is ordered to sign all documents required in order to transfer into
the name of the applicant the property which
is situate at […]
K. Road, Kenville, Durban and whose formal property description is
Portion 131 of Erf […] of Duikerfontein,
within 5 days of
being presented with such documents. In the event that the
respondent, for whatever reason, fails and/or refuses
to sign such
documents then the sheriff of this honourable court is authorised to
sign such documents in his stead and, in that
event, the respondent
shall pay for such charges as the sheriff may raise in connection
therewith.
(e) The respondent is to pay the costs
of this application.
JUDGMENT
HENRIQUES
J
Introduction
[1]
The applicant instituted motion court proceedings against the
respondent on 15 September 2016, as a consequence of the respondent’s
alleged default in complying with the settlement agreement dated 11
August 2015.
[2] The settlement agreement referred
to in paragraph 1 was concluded under the above case number and in
this court in the resolution
of the plaintiff’s (the current
applicant) action to set aside the settlement agreement dated 15
November 2010, annexure “KM1” to the papers.
History
[3]
The parties were married to each other out of community of property
and, were subsequently divorced on 15 November 2010 in terms
of a
final order of divorce.
[4]
As a precursor to the grant of a final order of divorce, the parties
entered into a settlement agreement dated 15 November 2010,
relating
to the settlement of the proprietary consequences of the marriage.
[5]
On 13 March 2012 the applicant instituted an action against the
respondent for an order declaring the settlement agreement (dated
15
November 2010) to have been validly cancelled and no longer of any
force or effect.
[6]
The said action was premised on the applicant’s allegations of
alleged misrepresentation on the part of the respondent,
which
misrepresentation induced the applicant to conclude such settlement
agreement.
[7]
The action was defended by the respondent and ultimately settled in
terms of a settlement agreement dated 11 August 2015 (annexure
‘C’
to the applicant’s founding papers).
[8]
It is this settlement agreement that forms the subject matter of the
dispute that serves before me.
[9] The applicant contends that the
respondent is in breach of the terms of the settlement agreement,
specifically in relation to
the following paragraphs:-
‘
2.
The
Defendant shall pay to the Plaintiff the sum of R3.5 million prior to
the Defendant vacating the property. The Defendant will
furnish a
guarantee for the said sum of R3.5 million not less than two weeks
before the Plaintiff vacates the property.
3.
The
Defendant will do all things necessary to transfer the property at
31Kara Road into the name of the Plaintiff forthwith after
this
agreement has been signed. The Plaintiff undertakes to sign all
documents, pay the necessary fees, disbursements and rates,
electricity and water charges, and to do all things necessary to
facilitate the transfer of the said property into her name.’
[10]
It is common cause that the respondent did not comply with the terms
of paragraphs 2 and 3 of the settlement agreement; however
the
respondent contends that he is excused from such performance for
various reasons, including but not limited to the applicant’s
conduct in constructively preventing performance by the respondent.
In the initial answering affidavit this is dealt with extensively.
At
the hearing of the matter, the respondent sought leave to supplement
this answering affidavit with his supplementary affidavit
dated 1
August 2017. The applicant has filed a reply to same. I believe it
prudent to allow the parties to file such further affidavit
so as to
ensure a proper ventilation of the issues.
[11] The history of the litigation
between the applicant and respondent has been characterised by
acrimony and bitterness.
Applicant’s
contentions
[12] The applicant in essence seeks
the enforcement of the terms of the settlement agreement of 11 August
2015, and, specific performance
from the respondent in complying with
such terms. The applicant contends that the terms are unambiguous and
clear and that the
accusations advanced by the respondent are neither
relevant nor germane in determining the respondent’s breach of
such terms
of the settlement agreement.
Respondent’s
contentions
[13]
The respondent contends that:
(a) The applicant’s
deliberate and intentional conduct in obstructing him from selling
the immovable property frustrated his
performance, alternatively
rendered it impossible for him to perform in terms of the settlement
agreement.
(b) The applicant
breached the settlement agreement in failing to give the respondent
access to electricity.
(c) The applicant’s
conduct amounted to an infringement of the principles of good faith
as the applicant bore a duty to co-operate
with the respondent in his
endeavours to market and sell the immovable property situate in
Umhlanga.
(d) Certain
misrepresentations by the applicant and her legal representatives
induced the respondent to conclude the settlement
agreement.
(e) The respondent has a right to
market the immovable property as a consequence of his ownership and
should be construed as an
implied term of the settlement agreement.
Analysis
[14]
The applicant’s case is premised solely on the express terms of
the settlement agreement and the breach or non-performance
in
compliance with such terms by the respondent.
[15]
The onus, once the applicant has established the validity of the
settlement agreement and non-performance by the respondent,
shifts to
the respondent to establish that he is excused from performance
either by the express or implied terms of the agreement.
[16]
The respondent, in concluding the settlement agreement whilst
alleging misrepresentation on the part of the applicant and/or
her
legal advisors, has not taken any steps to challenge the validity of
the agreement nor apply for its rectification.
[17]
It was neither argued nor submitted that the settlement agreement is
invalid or does not reflect the true intention of the
parties at the
time same was concluded. On the contrary, the respondent submitted
that he was represented by senior counsel when
the settlement
agreement was concluded, and which same senior counsel the respondent
intended instructing in opposing this application.
[18]
It is improbable to say the least that the respondent would not have
understood the terms and effect of the settlement agreement,
whilst
having the benefit of being represented by senior counsel.
[19]
Paragraph 2 of the settlement agreement referred to earlier in this
judgment is clear and unambiguous in its terms. The respondent
undertook to pay the applicant the sum of R3.5 million prior to the
applicant vacating the property. Such term was not dependent
or
subject to any pre-condition or concomitant obligation on the
applicant and neither was any contingent condition imposed regarding
the payment of R3.5 million. It is not recorded that the payment was
subject to the sale of the immovable property situate at Umhlanga
and
that the proceeds of such sale would be utilised to effect payment of
the sum of R 3.5 million to the applicant.
[20]
Had the parties intended such condition to be applicable, it is
highly improbable that same would not have been recorded in
the
settlement agreement. Considering the enmity between the parties, the
acrimonious history of litigation and the fact that both
parties were
represented by senior counsel in concluding the settlement agreement,
it is both reasonable and safe to infer that
such condition would
have been recorded had the parties so intended.
[21]
The respondent, in circumstances which can only be described as
concession, tendered prior to the hearing of this application,
payment of the sum of R3.5 million to the applicant, notwithstanding
the fact that the immovable property had still not been sold.
[1]
[22]
The respondent’s contention that the applicant was under a
reciprocal obligation to co-operate with him in marketing
and selling
the immovable property, from which sale the respondent would effect
to the applicant payment of R3.5 million belies
the fact that the
respondent’s performance in terms of the settlement agreement
was not subject to any such condition, which
the respondent clearly
seems to accept hence the respondent’s tender to the applicant.
[23]
In interpreting the ‘intention of the parties’ in
concluding agreements, I apply the well-known dictum of Wallis
JA in
the matter of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
2 All SA 262
(SCA) wherein the learned judge was at pains to
emphasise that words in issue must be given their ordinary
grammatical meaning
and that the meaning of such words are not to be
substituted by the imposition of one’s own views.
[24]
The respondent’s further contention that the condition that the
payment of R3.5 million to the applicant must be considered
as an
implied term of the agreement is equally unsustainable.
[25]
In
Roazar
CC v The Falls Supermarket CC
[2018]
1 All SA 438
(SCA) at 439, Tshiqi JA held ‘[i]t was not
competent for the court to import a term not intended by parties
simply on the
basis of the principle of “
ubuntu”
’.
[26]
In the absence of establishing that his performance for effecting
payment of the sum of R3.5 million to the applicant was dependent
on
the sale of the immovable property, the respondent’s
exhaustible summary of the efforts he made to market and sell the
immovable property, is rendered both nugatory and irrelevant to the
germane issue in this application.
[27] By similar rationale, the
respondent’s allegations of a breach of the settlement
agreement by the applicant and the plethora
of accusations of the
misconduct of the applicant cannot in these circumstances assist the
respondent in not complying with his
obligations in terms of the
settlement agreement. In reaching this conclusion, I have considered
the contents of the supplementary
affidavit.
[28]
The respondent was entitled to institute his own proceedings against
the applicant relating to any complaint of a breach by
the applicant
of the terms of the settlement agreement.
[29] Insofar as the transfer of the
immovable property at 31 Kara Road, as recorded in paragraph 3 of the
settlement agreement is
concerned, the respondent has not advanced
any cogent or sustainable grounds for not complying with the terms of
the agreement.
In any event, the entitlement to transfer of such
immovable property and the respondent’s obligation to effect
such transfer
emanated from the Antenuptial Contract (ANC) concluded
between the parties as far back as 1980.
Relief
sought by the applicant
[30]
I now propose to deal with the relief sought by the applicant in the
notice of motion.
Monetary
judgment
[31]
In view of the respondent’s failure to effect payment in terms
of paragraph 2 of the settlement agreement, the applicant
seeks a
judgment in terms of the provisions of rule 41(4) of the Uniform
Rules of Court.
[32]
Rule 41(4) provides ‘[u]nless such proceedings have been
withdrawn, any party to a settlement which has been
reduced to writing and signed by the parties or their legal
representatives, but which has not been carried out, may apply for
judgment in terms thereof on at least five days’ notice to all
interested parties’.
[33]
For the reasons referred to above, it is patently evident that the
respondent has not complied with the provisions of paragraph
2 of the
settlement agreement and the applicant is accordingly entitled to a
monetary judgment.
[34]
In terms of paragraph 5 of the settlement agreement, the respondent
would be liable for interest on the unpaid amount of R3.5
million
with effect from 1 March 2016.
[35] It is however in my view just and
equitable that the respondent be afforded a period of ten court days
within which to effect
payment of R3.5 million plus the interest, as
recorded above from the grant of a judgment.
Order
declaring the immovable property executable
[36]
The relief sought by the applicant in relation to declaring the
property situate at 86 Umhlanga Rocks Drive executable and
the
subsequent sale of same in execution, is premature for the reasons of
the order proposed in paragraph [35] above, coupled with
the fact
that the present application does not comply with provisions of the
amended rule 46A of the Uniform Rules of Court.
[37] The applicant should however be
granted leave to reinstate this application, supplemented as may be
necessary, to comply with
rule 46A in the event of the respondent’s
non-compliance with the orders set out in the preamble hereto.
Transfer
of Kara Road Property
[38]
The respondent has advanced no cogent or sustainable opposition to
the relief sought by the applicant, as regards the respondent
signing
all documents necessary to effect transfer of the immovable property,
situate at 31 Kara Road, Kenville.
[39] The applicant is accordingly
entitled to the relief sought in paragraph 5 of the notice of motion.
Costs
[40] The applicant has sought costs on
a scale as between attorney and own client.
[41] The settlement agreement makes no
provision for the issue of costs in the event of a breach by either
party of its obligations
in terms of such agreement.
[42]
In the exercise of the court’s discretion and taking into
account all the circumstances of this matter, particularly
the
conduct of the parties, I am not persuaded that a punitive costs
order as sought by the applicant is appropriate.
[43]
It is both just and equitable that costs should follow the result and
the respondent be ordered to pay the applicant’s
party and
party costs of the application.
[44]
I find it regrettably necessary to comment on the heads of argument
filed specifically that filed on behalf of the respondent.
It has
been repeatedly mentioned and incorporated in this court’s
practice directive the function and form of heads of argument.
The
respondent’s heads of argument made reference to numerous
authorities which were of no relevance or assistance to this
court,
and the consequence of same was the delay of the court’s time
in traversing and analysing such authorities.
[45] In making the above comments I
express the hope that practitioners will give proper attention to the
practice directive specifically
relating to the filing of the heads
of argument.
Orders
[46]
The following orders are granted:-
(a) Judgment is granted in favour of
the applicant against the respondent:-
(i)
in the sum of R3.5 million;
(ii) interest on
the aforesaid sum of R3.5 million calculated at the rate of 15.5 %
per annum with effect from 1 March 2016 to date
of payment.
(b) The respondent
is to effect payment of the judgment amount of R3.5 million plus
interest as referred to in paragraph (a)(ii)
above within ten court
days of granting of this order.
(c) The relief
sought in paragraph 4 of the applicant’s notice of motion is
adjourned sine die and the applicant is granted
leave to reinstate
this application, supplemented as may be necessary, in regard to such
relief in the event of the respondent
failing to comply with
paragraphs (a) and (b) of the order.
(d) The respondent
is ordered to sign all documents required in order to transfer into
the name of the applicant the property which
is situate at 31 Kara
Road, Kenville, Durban and whose formal property description is
Portion 131 of Erf 6 of Duikerfontein, within
5 days of being
presented with such documents. In the event that the respondent, for
whatever reason, fails and/or refuses to sign
such documents then the
sheriff of this honourable court is authorised to sign such documents
in his stead and, in that event,
the respondent shall pay for such
charges as the sheriff may raise in connection therewith.
(e) The respondent is to pay the costs
of this application.
_______________
Henriques J
Case
Information
Date
of hearing
:
7
November 2017
Date
of judgment
:
31
July 2018
Appearances
Counsel
for Applicant
:
Mr
A.D. Collingwood
Instructed
by
:
Severaj
Incorporated
Ruchira
House
26/28
Cypress Avenue
Stamfordhill,
Durban
Ref.
Mr Severaj/pg/C3397
Tel
031 312 2004/8
Counsel
for Respondent
:
Mr
M Manikam
Instructed
by
:
Vasu
Naidoo & Associates
(T)
031-303 4653
Ref:
VN /rh/M310
85
Percy Osborn Road, Windermere Durban
[1]
I may also add
that such tender was not an unconditional one and did not contain a
tender for payment of interest.