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[2016] ZAGPPHC 69
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J.V.W v H.V.W (2380/2003) [2016] ZAGPPHC 69 (26 January 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
26/01/2016
CASE NO: 2380/2003
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
J V
W APPLICANT
and
H V
W RESPONDENT
JUDGMENT
MALI
AJ:
[1]
This is an opposed application in terms of Rule 45A of the Superior
Court Act 2013. The applicant seeks an order setting aside
the
Warrant of Execution ("writ") issued by this honourable
court in favour of the respondent.
[2]
The parties were married to each other and the said marriage was
dissolved by the court order on 14 March 2003. The settlement
agreement between the parties was incorporated into the Court Order.
The relevant terms of the settlement agreement are as
follows:
2.1.
"ONDERHOUD
3.1 Die VERWEERDER
sat
onderhoud
betaal
ten
aansien
van
die
minderjarige
kinders in die
bedrag
van
R750, 00
per maand, per
kind vanaf
1
Maart
2003 en daarna
voorlop die
7
de
dag van e/ke
daaropvolgende
maand.
Dit
is
'n uitdruklike
oorenkoms
tussen
die partye dat
die
skoolfonds,
betaalbaar
ten
opsigte
van
die
minderjarige
kinders
,
ingesluit
is by
die bedrag
onderhuid,
aldus
betaalbarr.
3.2 Die
VERWEERDER
onderneem
om
die
minderjarige kinders
as
afhanklikes op sy
mediesefonds
geregisteer
te
hou
en
aanspreeklik
te
wees
vir a/le
redelike
noodsaaklike
mediese,
tandheelkundige, oogkundige
en
apteek
uitgawes
ten
opsigte
van
die
minderjarige
kinders en
sat toesien dat
a/le voordele voortspruitend uit
gemelde
fondse die minderjarige
kinders
toeval.
\
3.3 Die partye kom
verder ooreen dat a/le bybetalings enlog koste aan gemelde
mediesefonds deur die VERWEERDER betaal sat word.
3.4 lndien die EISER
ophou om 'n lid van die medisefonds te wees sa; doe EISER
aanspreeklik wees vir die redelike en noodsaaklike,
chirurgiese,
oftamalogiese en ander verwante mediese uitgawes, ten aansien van die
minderjarige kinders."
[3]
In terms of the settlement agreement the applicant was ordered to
register the minor children on his medical aid as beneficiaries,
and
to be responsible for all their medical expenses. The parties later
verbally agreed that the respondent register the minor
children as
beneficiaries in her own medical aid fund. The applicant would then
re-imburse the respondent for the monthly premiums
which became due
to the respondent's medical aid account and for shortfalls that are
not covered by the medical aid.
[4]
As from January 2012 the minor children were registered on
respondent's medical aid scheme and the applicant was to make
payment of the monthly premium in the amount of R552.00 per month to
the respondent. On 18 November 2013 the applicant found a
writ issued
in favour of the respondent affixed to the gate of his home. The writ
was for the amount of R31 535.21.
[5]
The issue for determination is whether the amount of R31 535.21
reflected in the writ is what the applicant would have been
responsible to pay towards the minor children's medical expenses not
covered by the medical aid and that validating the writ in
question.
[6]
Rule 45 A provides as follows:
''The
court may suspend the execution of any order for such period as it
may deem fit."
[7]
"As
a
general
rule
the
court
will
grant
a
stay
of
execution
where
real
and
substantial injustice requires such
a
stay
or,
put
otherwise, where injustice
will
otherwise be done. Thus the court will grant
a
stay of
execution
where
the underlying
cause
of
the
judgment
debt
is
disputed
or
no
longer
exists,
or
when
an
attempt
is
made
to
use for
ulterior
purposes the
machinery
relating
to
the
levying
of
execution.
It has
been
held,
that, in
particular circumstances, the
court
could
,
in
the
determination of
the
factors
to
be
taken
into
account
in
the
exercise
of its
discretion
under
this rule,
borrow
from
the
requirements
for the granting
of an interim
interdict,
namely
that the applicant
must
show
(a) that
the right
which is
the subject of
the
main
action
and
which
he
or
she
seeks
to
protect
by
reason
of
the interim
relief
is
only
prima
facie
established
though
open
to
some
doubt;
(b)
that
if
the
right
is
only
prima
facie
established, there
is
a
well
-
grounded
apprehension
of
irreparable
harm
to
the
applicant
if
the
interim relief
is
not granted
and
he
or
she
ultimately
succeeds
in
the establishing of his
or her right;
( c) that
the balance
of convenience
favours the granting
of
interim
relief,·
(d)
that
the
applicant
has
no
other
satisfactory remedy."
See
Erasmus
Superior
Court
Practice
at
81-330-
B1-330A.
The
above is supported by case law.
[8]
The test has been succinctly laid down in
Dumah
v
Klerksdorp
Town Council
1951 (4) SA 519
(T)
as follows:
"The
court must consider what would be just and equitable as between the
parties and, if it considers that, regard being had
to the factors,
the execution must be stayed, then it is proper to exercise its
discretion in favour of the stay".
[9]
In
Cooper
v
Feinstein
(1129/02)
[2005]
ZAWCHC
28
Ndita AJ as she then was stated as follows:
"It
appears from what the learned authors discuss that the circumstances
in which the courts will grant or refuse the application
for
suspension of writ of execution vary from case to case depending on
the circumstances of each case. There is therefore no hard
and fast
rule."
[10]
The
pleaded
basis
for
the
relief
is
that
the
writ has
not
been
issued
in
conformity
with
the
order
because
the
respondent
is
seeking
payment
of something
that
is
not covered
by the
court
order.
Secondly
that
all monies
which
were
due
to
the
respondent
that
came
to
the
applicant's
attention were
paid.
[11]
The applicant avers that the amount of R31535.20 reflected in the
writ is incorrect because it includes the amount already
paid by him.
Furthermore that the terms of the agreement was that any amount that
is not covered by the medical aid should be paid
by the applicant.
According to the applicant the amount paid by him included in the
writ is the amount of R640.00 being the arrears
on the monthly
premiums which the applicant paid albeit subsequent to the issue of
the warrant. The alleged arrears arose
from the yearly
escalation of the medical aid monthly premium by R64.00 per month.
The applicant's argument is that he only became
aware of the said
amount when he got the writ. This is because the respondent never
informed her about the said monthly increase.
The respondent could
not gainsay the applicant's version.
[12]
The applicant further states that the amount allegedly not paid by
the applicant as has been included in the total amount of
the writ is
covered by the medical aid because it was paid from the Medical
Savings Account ("MSA") and not refunded
and or paid by the
respondent. According to the documents annexed by the respondent (
see page 47 of the paginated bundle) MSA
is defined as follows:
"Medical
Savings Account Health Wallet previously known as Medical Savings
Booster Portion not payable= The amount for which
neither you or the
scheme is responsible".
[13]
The respondent's argument is that the intention of the agreement was
that the applicant was to be responsible for all expenses
and or
claims not covered by the Medical Aid. Furthermore that the amount in
the writ includes maintenance of the minor children,
therefore the
writ was properly issued. However from the contents of the affidavit
in support of the warrant of execution there
is no allegation in
respect of cash contribution of the maintenance. The respondent makes
reference to the explanatory notes by
the Medical Aid at page 104 of
the bundle. Under code 276 the following is recorded:
"Ons
het nie u eisbedrag betaal nie, omdat die fondse in u Mediese
Spparrekening is en u nog nie die Jaarlikse Drempel bereik
het nie. U
is self verantwoordelik vir die uitstaande bedrag.
[14]
The respondent ' argument is that the amounts not paid by
the Medical Aid as explained in Code 276 were paid by
her as they
were deducted from her portion of the medical savings plan. The
applicant does not dispute the interpretation
of the explanatory
notes but his argument is that the amounts under code 276 do not add
up to the total amount of the writ.
[15]
I now turn to consider the cogency of the application. During the
argument it became apparent that the dispute centres on the
accuracy
of the calculations leading to the total amount claimed in the writ
of execution. I therefore adjourned the hearing to
allow the parties
to re work their calculations. The respondent's practice note
detailing the calculations was filed on 4
November 2015 subsequent to
the applicant's practice note of same.
[16]
The applicant's detailed calculation in respect of the amount that
was not covered by the medical aid is the amount of R9 223.68
in
respect of both minor children. The respondent's calculations amount
to a total of R21212.97. The said amount still does not
tally with
the amount of the writ, which is R31 535.21. The respondent's total
amount includes MSA amount of R17417.83. The respondent
does not
dispute that the said amount was not refunded by her to the medical
aid and she neither challenges the explanation offered
by her own
medical aid scheme that she and the scheme are not responsible for
payment. It is not clear from the respondent's calculation
which
portion has been deducted from her savings plan as alleged by her.
[17]
Having regard to the above I am inclined to borrow from the
requirements for the granting of an interim interdict. In
casu
the
applicant has successfully established the requirements of an interim
interdict as alluded in paragraph 6
supra.
In the
circumstances it is just and equitable to suspend the execution of
the writ against the applicant.
COSTS
[18]
The respondent stated that in the event that the applicant is
successful he should not be allowed costs. This is because the
applicant delayed the prosecution of the matter. Her argument is that
as at 14 March 2014 the matter was ripe for hearing and the
applicant
failed to set down the matter.
[19]
The applicant's counter argument is that as early as 3 February 2014
the matter was set down at his own instance; respondent
having failed
to file the opposing affidavit. The respondent filed the opposing
affidavit on 11 February 2014 subsequent to the
matter having been
set down. The applicant did not oppose the late filing by the
respondent.
[20]
It
is
trite
law
that
costs
follow
the
result.
In
casu
I
find
no
reason
to
deviate
from
the established legal principle.
[21]
In the result I make the following order:
1.
The
writ
of
execution
issued
under
case
2380/2003
is suspended
until
such time
the
respondent
has finally
determined
the
debt
owing
by
the applicant
to
the
respondent;
there
after
the
parties
are
granted
leave to
approach
this court on the
same
papers,
supplemented
as
the circumstances may
require for
further
appropriate
relief.
2.
The
respondent
is ordered
to
pay
costs
of the
application.
_____________________________
NP MALI ACTING JUDGE OF
THE HIGH COURT
APPEARANCES
FOR
THE APPLICANT: Adv N Erasmus
Instructed
by: CONRAD SCHULZ INCORPORATED
FOR
THE RESPONDENT: Adv L Van Rooyen- Steenkamp
Instructed
by: Harvey Nortje Wagner & Motimele Attorneys
Date
of Hearing: 13 October 2015
Date
of Judgment: 29 January 2016