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[2016] ZAGPPHC 931
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I.P v D.P (16300/2015) [2016] ZAGPPHC 931 (10 October 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION, PRETORIA)
Case
No:
16300/2015
In
the matter between:
I.
P.
Plaintiff
and
D.
P.
Defendant
JUDGMENT
D
S FOURIE,
J:
[1]
During March 2015 the plaintiff instituted action against the
defendant for a decree of divorce and certain ancillary relief
relating to,
inter
alia,
maintenance for herself
and payment of an amount equal to 50% of the difference between the
net accruals of the parties' respective
estates. In his plea the
defendant relies on a written settlement agreement in terms whereof
it has been recorded that no maintenance
shall be payable by the
defendant to the plaintiff and that each party will retain those
movable assets currently in his or her
possession as well as those
immovable assets registered in his or her name.
[2]
The defendant has also filed a counterclaim in which he claims,
inter
alia,
a decree of divorce incorporating the settlement agreement.
In her plea to the counterclaim the plaintiff admits that on or about
17 September 2015 the parties concluded a written settlement
agreement, but pleads that it was entered into under duress,
alternatively
as a result of undue influence by the defendant, and
should therefore be set aside.
[3]
At the commencement of the trial it was ordered (by agreement between
the parties) that the issue to be adjudicated is the enforceability
of the settlement agreement entered into between the parties and that
this issue be separated from all other issues in terms of
Rule 33(4).
The parties have further agreed to define the main issue as follows:
•
whether the plaintiff
entered into the agreement as a consequence of duress by the
defendant;
•
whether the plaintiff
entered into the agreement as a consequence of undue influence, which
the defendant exercised over the plaintiff,
which culminated in the
parties entering into the agreement;
•
whether the agreement is
unenforceable as a consequence of the duress, alternatively undue
influence and should be set aside; and
•
whether the plaintiff is
entitled to an order declaring that the agreement entered into
between the parties on 17 September 2015
is unenforceable.
[4]
Both parties have testified, but no witnesses were called. They both
referred to various documents which will be dealt with
later insofar
as it may be necessary.
EVIDENCE
FOR THE PLAINTIFF
[5]
The plaintiff testified that she and the defendant were married to
each other out of community of property on 16 October 2010.
At that
stage she was a flight attendant and the defendant a captain and
flight commander employed by the South African Airways.
According to
her the defendant continued to have a relationship with his former
wife as if they were still married. She sent inappropriate
messages
to the defendant and his former wife about this relationship. In
Court she more than once referred to him as a
"bigamist".
[6]
During August 2013 she requested the defendant to assist her with
certain renovations, but he refused. This incident infuriated
her as
a result whereof she attempted to break through a door by using a
hammer to gain entry to a room where the defendant was.
When the
police arrived she ran away because she was scared of the police and
did not want to be arrested. She was ultimately found
and taken to
the police station.
[7]
During January 2014 she was instructed by the defendant to go to
hospital and have herself admitted. She was then hospitalised
in
Denmar Psychiatric Hospital for a period of ten days. As a
consequence of the diagnosis of the treating psychiatrist and
medical
reports submitted to her employer (South African Airways), she was
declared medically unfit as cabin crew member on 28
May 2014.
[8]
She then lodged an internal appeal with the support of the defendant.
On 29 June 2015 she received notification from the Civil
Aviation
Authority of the recommendations of the appeal panel. She was
considered to be "medically temporary unfit" until
the
finalisation of the divorce and for a period of six months thereafter
to allow her time to become stable "in the post-divorce
period".
She was also required to submit herself to ongoing evaluations by a
psychologist and a psychiatrist during this six
months period. In the
event that she is reinstated as cabin crew member she will probably
be financially self-sufficient, but at
present she is employed in a
lesser position with a substantially reduced income.
[9]
During January 2015 the defendant was on holiday whilst the plaintiff
was at home. One evening she went onto Facebook and saw
a photograph
of the defendant and his former wife somewhere in Mozambique. This
caused her to become very sad and depressed. She
started to drink and
became upset. She then took red spray paint and painted the name of
the defendant's former wife "on all
the outside walls". She
admitted that she had made a mess. Later she attempted to undo what
she had done but was not able
to do so completely. When the defendant
returned from Mozambique he was extremely upset and she was afraid
that he might phone
the police again. Later during January 2015 the
defendant informed her that he wanted to divorce her, that she will
get nothing
and that he will see to it that she "is prosecuted
and locked up".
[10]
Towards the end of January 2015 the defendant gave her a copy of a
settlement agreement (exhibit "B" p 27) which
he requested
her to sign. As she did not comply with his request, he phoned her
the following day and informed her that he was
going to lay criminal
charges against her for malicious damage to property and that
he was also going "to lay civil
charges" against her.
Shortly thereafter she received a telephone call from the Garsfontein
Police Station during which she
was informed that the defendant had
laid criminal charges against her. She then instructed her attorney
to write a letter to the
defendant's attorney (exhibit "B"
p 34) which is dated 16 February 2015. In this letter it was put on
record that the
defendant had threatened the plaintiff that should
she not sign the settlement agreement, the defendant would proceed to
lay criminal
charges for attempted murder and malicious damage to
property and also ensure that she would no longer be employed by the
South
African Airways. The following is stated in paragraph 5 of the
letter:
"Please
advise your client that the aforementioned conduct is against the law
and will not be tolerated by my client. Should
your client persist
with this conduct my client will act without notice and/or delay."
[11]
On 23 February 2015 the defendant's attorney wrote to
the plaintiffs attorney informing him that summons
will be
issued and requested the plaintiff to put forward a settlement
proposal. No answer was given to the alleged threats referred
to in
the letter of 16 February 2015. On 27 February 2015 the plaintiff s
attorney again wrote to the defendant's attorney pointing
out that he
has failed to deal with the allegations in the letter of 16 February
2015. In addition thereto, the following
was said in paragraph
4 of the letter:
"It
is clear from
a
reading of my previous letter and your letter under reply that
your client is intent on proceeding with criminal charges, so as to
gain an advantage in the divorce proceedings. My client will deal
with this matter and the issue of the charges in the appropriate
forum and in that regard arrangements have already been made."
[12]
The witness then referred to documents pertaining to domestic
violence proceedings which had been instituted against her by
the
defendant (exhibit "B" p 46). She testified that on the day
in question (23 July 2015) she went to Court without
her attorney and
requested the Magistrate to postpone the case because she needed her
lawyer to be present. Up until then nothing
came of the alleged
threat to lay criminal charges against her. On 31 August 2015 the
plaintiff's answering affidavit to the application
for a protection
order was filed. In this affidavit (19 pages) she
inter alia
said
the following:
•
She and the defendant are
involved in divorce proceedings;
•
The defendant had
informed her that if she were to sign an agreement whereby she
renounced all her rights to share in the accrual
system they would be
able to continue to live together and lead a normal life. According
to her she was the victim of ongoing psychological
abuse and
manipulation;
•
She also referred to
their intimate private life which is not necessary to repeat here.
[13]
On 16 September 2015 at 08h41 she received a telephone call from the
defendant. This conversation was recorded by the plaintiff
and by
agreement between the parties a true transcript thereof has been made
available (exhibit "B" p 143). Referring
to this telephonic
discussion, the plaintiff testified that she was threatened again by
the defendant, to such an extent that she
was "ripped with
fear''. She testified that during this telephonic discussion the
defendant had threatened her. She then capitulated
and informed the
defendant that she would sign the settlement agreement. She
travelled to Rosebank in an attempt to
consult with her attorney. He
was not available and she then travelled to Pretoria to sign the
settlement agreement at the offices
of the defendant's attorneys.
[14]
She was taken to a room where the agreement was already on the table.
She was crying and attempted to delay the signing of
the agreement.
She was then informed of the contents of the agreement and was
invited by the defendant's attorney to contact her
attorney before
signing the agreement. According to her she then, as a result of the
defendant's threats and the fear that such
threats invoked in her,
signed the agreement on 16 September 2015. The defendant then
withdrew the domestic violence proceedings
on the same date.
[15]
After she had signed the agreement and upon leaving the offices of
the defendant's attorneys she went to Wonderboom Airport.
The
defendant was also there working on his aircraft. According to her
she could not go back to work "because the day was
gone now ...
(and) I was nervous I could not go back to work in such a state".
Later she admitted that she also had lunch
with the defendant.
[16]
In cross-examination she admitted that at some stage during 2012 she
also vandalised the defendant's BMW motorcycle whilst
she was totally
sober. According to her it was as a result of the fact that the
defendant's son had denied her access into the
house. She then
thought to herself "if he wants to treat me like a child I will
act like a child". According to her she
took a sharp object and
scratched the fuel tank of the motorcycle.
[17]
She also conceded that nothing is said about any threats which had
been made by the defendant in her answering affidavit to
the domestic
violence application. According to her she did not think that it was
necessary to refer to these threats, because
there were so many other
things that she had to deal with. She then said the following:
"By
now
I had
a
lawyer
I did
not
think
he
was going
to kill me
so
I did not mention
it
because
I thought I have got
a
lawyer,
I
have got some
protection now."
[18]
It was then put to her that not only did she have to contend with her
husband who was withdrawing from her, but also that she
had lost her
ability to fly because of her suspension. This she admitted and also
added that she was devastated because she could
no longer fly. Later
during cross examination it was pertinently put to her that she
had signed the settlement agreement out
of her own free will because
she wanted to fly again and not because of any duress, fear or having
been influenced by the defendant.
She then gave a very long answer,
the gist of which is the following:
"It
is correct that I wanted to carry on with my life, because
the way that
I
felt
is
like
I
was
dead
and
you
yourself said, in
that
five conversations,
there is
not
a
lot of time now
...
I sound
quite
dead, because
I felt dead and even if the defendant
did not say to me go and
sign
the
papers,
he had
undue
influence
over
me
and
he not
only had undue influence
over me, and I
am
in
this position
where I
am
already
his
subordinate
and
we are working in an
environment where he is
the commander
and
I am
the
flight
attendant.
I obey his
rules.
..."
EVIDENCE
FOR THE DEFENDANT
[19]
The defendant testified that he was a senior captain employed by the
South African Airways, but at present he is not employed
in that
capacity due to illness. He also testified that the plaintiff had
vandalised his property. According to him he had to protect
himself
against the plaintiff and that is why the police was informed about
her conduct. He and his former wife had no personal
relationship,
although he did have contact with her from time to time. He admitted
that his former wife had accompanied him and
their children to
Mozambique, but that was to allow her time with their children.
[20]
With regard to the settlement agreement he testified that it was
prepared by his attorney. At some stage thereafter he and
the
plaintiff went to lunch to discuss a possible solution. There was a
lot of tension between them and he suggested to her that
they should
get divorced "and see if we cannot get you back in the flying".
She then indicated that she will sign it.
However, back at home she
was using "disgusting words" and refused to sign the
agreement.
[21]
On 30 January 2015 he went to her place of work to fetch the
agreement. According to him she had taken it with her to sign
and he
went there to pick it up. She was nowhere to be found and after
a while he was informed that she did not want to see
him. He was then
referred to the letter of the plaintiff's attorney addressed to his
attorney dated 16 February 2015 (exhibit "B"
p 34). He
testified that he still loved the plaintiff and that he would never
threaten or force her to do anything. He also said
he would never
"threaten her job" and that there is no evidence that he
has "ever put my foot wrong one day at SAA
for her''.
[22]
He was then referred to the interim protection application. He
testified that at that stage he was in a very weak position
as far as
his health was concerned. She had, according to him, informed him on
more than one occasion that she could kill him and
would get away
with it because she was bipolar. She was driving him and his family
"absolutely mad and I realised that I had
to do something".
He then decided to apply for an interim protection order to protect
himself and his family. He was given
a copy of the plaintiff's
answering affidavit to his application. According to him he was very
angry about this affidavit. Later
he decided to contact her about the
situation.
[23]
On the morning of 16 September 2015 he had a telephonic
discussion with the plaintiff. He felt very hurt over the
contents
revealed in the affidavit. He said he is a private person and was
very emotional about it. He pointed out that the plaintiff
was
disclosing their sex life and she had abused his love for her by
putting it "on a washing line". He had a feeling
of being
betrayed.
[24]
Later during that day, whilst he was working on his aircraft at the
Wonderboom Airport, he received a telephone call from the
plaintiff.
She informed him that that she had signed the agreement and that she
was on her way to Wonderboom Airport. When she
arrived he noticed
that she was in a good mood and he introduced her to the other people
present. They then had lunch and a few
beers together. They
celebrated the fact that they had got to a point where the issues in
their lives have been dissolved. He signed
the agreement on the 1th
of September 2015.
[25]
In cross-examination he explained that he fully understands her loss
by not being able to fly as he is in the same situation.
He conceded
that if she was able to fly again she would be able to increase her
income. He admitted that at some stage he suggested
to her that she
should seek help for her alcohol problem. That was after he had
realised that "alcohol was taking over her
life". He
conceded that the plaintiff was suffering from emotional problems,
psychological problems as well as problems relating
to alcohol abuse.
[26]
He was then referred to the letter dated 16 February 2015 addressed
to his attorney. With regard to the threats mentioned therein,
he
conceded that "some of these things that I can recall that I
might have said to her". According to him he never intended
to
take any action against the plaintiff and she was aware of it. He
denied the allegation that he would contact Dr Potgieter to
testify
against the plaintiff at a trial. He conceded that he had laid
charges against the plaintiff for malicious damage to property.
[27]
He was then cross-examined about the telephonic discussion which he
and the plaintiff had on 16 September 2015. With regard
to his
initial remark that "dit gaan nog baie slegter gaan met jou",
his answer was that he was just informing her, without
threatening
her. He later conceded that this remark could have been misconstrued
by the plaintiff as a threat. With regard to the
criminal charges he
explained that prosecution had been delayed by him. It was then put
to him that the plaintiff capitulated completely
when she said "ek
wil die goed gaan teken". His response was "tell me where
that is" whereafter he also added
"but if you read further
on I said to her Iwant you still to do the right thing".
DISCUSSION
[28]
Before considering the issues, it is not only appropriate but also
necessary to say something about the credibility and reliability
of
the parties. Counsel for the plaintiff criticised the defendant by
referring to contradictions in his evidence and submitted
that he was
not an honest and forthright witness. An assessment of the
credibility and reliability of a witness has to take into
account the
general context, the witness' intelligence, memory and the ability to
express him- or herself properly. It is a well-known
fact that
sometimes witnesses do make mistakes and even contradict themselves.
One should therefore distinguish between
bona
fide
errors and intentional untruths. I have had the opportunity to
observe the demeanour of both the plaintiff and the defendant and
to
listen carefully to their evidence. They are both intelligent and
well-articulated. Although sometimes the plaintiff was not
able to
contain her emotions, she was thereafter able to proceed and to give
evidence as before. She did not always answer succinctly
and to the
point, but she was able to express herself properly. The defendant,
on the other hand, was able to contain himself.
He did make mistakes
and sometimes contradicted himself, but I have to take into account
that some of the incidents took place
during 2014 and early 2015.
Notwithstanding my observations in this regard, I did not get the
impression that the plaintiff or
the defendant intentionally tried to
mislead the Court or knowingly told an untruth. It is possible that
their evidence with regard
to some incidents is not so reliable, but
I have no reason to conclude that they were untruthful. This is a
matter that should
be decided on the evidence and the probabilities.
DURESS
[29]
I shall first consider the issue whether the plaintiff entered into
the agreement as a consequence of duress by the defendant.
It is
trite that a contract entered into under duress may be voided by the
innocent party. The party relying on duress must prove:
•
a threat of considerable
evil to the person concerned;
•
that the fear was
reasonable;
•
that the threat was of an
imminent or inevitable evil and induced fear;
•
that the threat or
intimidation was unlawful or
contra
bonos
mores;
and
•
that the contract was
concluded as a result of the duress
(Arend
v
Astra Furnishers
(Pty) Ltd
1974
(1) SA 298
(C) at 3068).
[30]
It was contended on behalf of the plaintiff that she had been able to
prove all the requirements referred to above, taking
into account,
inter
alia,
the background facts, her personal
circumstances and the threats of criminal prosecution as well as the
delivering of medical evidence
to her employer. It was also submitted
that as a consequence of these threats and the plaintiffs fear that
the agreement was entered
into resulting in her waiving her claim for
maintenance and to share in the accrual of assets. It was argued on
behalf of the defendant
that the plaintiff has failed to discharge
the onus. It was submitted that the plaintiff signed the agreement,
not out of fear,
but because she wanted to carry on with her life.
[31]
In
Sawides
v
Sawides
1986
(2) SA 325
(T) Myburgh AJ (as he then was) assessed the subjective
effect which a husband's threat not to return home had on a loving
wife
who signed a power of attorney for the transfer of immovable
property when she was financially vulnerable and concerned
about
the future of their children. The Court held (at 331H) that she
had signed the power of attorney under duress. This decision
potentially
opened the door to a successful reliance on duress under
circumstances where the duress (although subjectively reasonable) may
be objectively speaking, unreasonable.
[32]
In
Paragon
Business
Forms
(Ply)
Ltd
v Du
Preez
1994 (1) SA 434
(SE) at 441D-G it was emphasised that the Court should have regard to
the person complaining of the duress and the circumstances
in which
he found himself at the time and then decide, in the light of all the
relevant factors, whether it was reasonable for
the person concerned
to have suffered fear and to have succumbed thereto. This
is also the approach suggested by Christie,
The
Law
of Contract in South Africa
(6
th
Ed at 315):
''The
point
is that every person
who complains
of duress is entitled to
be
seen
as
the
sort
of person
he
or
she
is,
but
to prevent
the remedy
getting out
of
hand
he
is
not
entitled
to
resile
from
the contract
if
he
claims
to
have
succumbed
to
the fear
that
would
be unreasonable even for the sort of person
he is".
[33]
I associate myself with this approach. What is the objective evidence
in this regard? During 2012 she vandalised the defendant's
BMW
motorcycle whilst she was totally sober. According to her it was as a
result of the fact that the defendant's son had denied
her access
into the house. During August 2013 she requested the defendant to
assist her with certain renovations, but he refused.
This incident
infuriated her as a result whereof she attempted to break through a
door by using a hammer. When the police arrived
she ran away but was
ultimately found and taken to the police station. Notwithstanding
this incident and her subsequent
confrontation
with the police, during January 2015 she vandalised the
defendant's house with red paint "on
all the outside walls".
This happened after she had seen a photograph of the defendant and
his former wife on Facebook whereafter
she started to drink and
became upset. Shortly thereafter the defendant laid charges against
the plaintiff for malicious damage
to property.
[34]
Towards the end of January 2015 the defendant gave her a copy of a
settlement agreement which he requested her to sign. Shortly
thereafter she received a telephone call from the Garsfontein Police
Station during which she was informed that the defendant had
laid
criminal charges against her. She then instructed her attorney to
write a letter to the defendant's attorney (exhibit "B",
p
34) which is dated 16 February 2015. In this letter it was put on
record that the defendant had threatened the plaintiff that
if she
did not sign the settlement agreement, the defendant would proceed to
lay criminal charges for attempted murder and also
to ensure that she
would no longer be employed by the South African Airways.
Notwithstanding her being aware that the defendant
had already laid
criminal charges against her, she did not sign the agreement. As a
matter of fact she instructed her attorney
to respond to the other
alleged threats by putting on record that this conduct is against the
law "and will not be tolerated
by my client".
[35]
She was declared medically unfit as a cabin
crew member on 28 May 2014. During June
2015 she received
notification from the Civil Aviation Authority of the recommendations
of the Appeal Panel subsequent to her appeal.
She was
considered to be "medically temporary unfit" until the
finalisation of the divorce and for a period of
six months thereafter
to allow her time to become stable "in the post-divorce period".
This notification made it
possible for the plaintiff (subject
to certain conditions) to be reinstated as a cabin crew member in
future in which event she
would probably be financially
self-sufficient.
[36]
On 23 June 2015 the defendant applied to the Magistrate's Court for
an interim protection order against the plaintiff. The
matter was set
down for hearing on 23 July 2015. On that day she went to Court
without her attorney and requested the Magistrate
to postpone the
case because she needed her lawyer to be present. On 31•1 August
2015 her answering affidavit
to this application was
filed. In this affidavit she did not refer to any of the alleged
threats, but she did indicate that she
was a victim of ongoing
psychological abuse and manipulation. However, reference was made to
their intimate private life. It is
common cause that at this stage
the settlement agreement had been presented to her on two occasions
for signature and on both occasions
she had refused to sign it.
[37]
During the morning of 16 September 2015 the plaintiff received a
telephone call from the defendant. This conversation was recorded
by
the plaintiff and a true transcript thereof has been made available
(exhibit "B", p 143). Much reliance was placed
on the
contents of this exhibit. In cross examination it was put to the
defendant that the plaintiff capitulated completely
when she said "ek
wil die goed gaan teken". However, when this remark is
considered in context, the following should
be pointed out:
•
Right at the beginning of
this conversation, before anything was put to the plaintiff, she
indicated "dit gaan sleg".
Immediately thereafter the
defendant said "Dit gaan nog baie slegter gaan met jou";
•
When asked "Why",
the defendant immediately referred to her answering affidavit in his
application for a protection order.
He criticised her for having
discussed their sex life and accused her of lying continuously;
•
He then referred to his
own conduct by saying that "I kept my mouth shut about Dr
Matthee ... I kept my mouth shut about what
you did to my house ... I
held back for you ... I am finished with you ... You have never
trusted me";
•
Whilst he was still
talking she then interrupted him by saying: "Ag luister hier. Ek
wil hierdie egskeiding verby kry. Wanneer
kan ek die goed gaan teken?
Ek wil die goed gaan teken.";
•
It was only thereafter
that he indicated that he would get an interdict, that she will then
have a criminal record, "ek gaan
jou op die lappe sit" and
that he would now destroy her.
[38]
Later that morning she travelled to Rosebank to consult with her
attorney. He was not available and she then travelled to Pretoria
to
sign the settlement agreement at the offices of the defendant's
attorney. There she was invited by the defendant's attorney
to
contact her attorney before signing the agreement. After she had
signed the agreement she travelled to Wonderboom Airport where
the
defendant was. There they had lunch and a few beers together.
[39]
In cross-examination she conceded that nothing was said about any
threats in her answering affidavit. According to her
she did
not think that it was necessary to refer to these threats. She
then said the following:
"By
now
I had
a
lawyer
I did
not
think
he
was going
to kill
me
so
I did not mention
it because
I thought I have got
a
lawyer,
I have got some
protection now".
[40]
Later in cross-examination she admitted that she also was
devastated because she could no longer fly. When it was
put to her
that she had signed the settlement agreement out of her own free will
because she wanted to fly again and not because
of any duress, she
did not deny these allegations. As a matter of fact she responded by
saying "It is correct that I wanted
to carry on with my life"
and that even if the defendant did not say to her that she must sign
the papers he still had "undue
influence over me ... where he is
the commander and I am the flight attendant".
[41]
Having regard to this evidence and the objective facts it seems to me
that these threats to contact Dr Potgieter, to ensure
that she will
lose her employment and to lay criminal charges against the plaintiff
were neither imminent, nor did they induce
a reasonable fear which
caused the plaintiff to sign the settlement agreement. I say so for
the following reasons: First, on the
plaintiff s own version these
threats were made during January/February 2015 whereas the agreement
was only signed by her almost
six months later on 16 September 2015.
Second, after she had been threatened, she knew exactly what to do.
She went to see
her attorney and instructed him to write a
letter concerning these threats. Such a letter was written on 16
February 2015 pointing
out that this conduct (the threats) is against
the law and will not be tolerated by the plaintiff. Third, after the
defendant had
filed an application for a protection order on 23 June
2015, the defendant attended the proceedings without legal
representation
and requested a postponement to obtain the services of
an attorney. Again, she knew what to do and with reference to another
more
serious threat (to kill her), she was quite happy to respond
that "I have got some protection now". Finally, the
plaintiff
almost conceded (by not denying) that she had signed the
settlement agreement out of her own free will because she wanted to
carry
on with her life.
[42]
It is very difficult to reconcile this evidence and the objective
facts with a plea of duress. I am not convinced that the
plaintiff
proved that there was a threat of an imminent or inevitable evil
which caused her to sign the settlement agreement. She
had been
living under these circumstances for at least six months and she knew
exactly how to deal with it. I therefore conclude
that the onus with
regard to duress has not been discharged.
UNDUE
INFLUENCE
[43]
It was contended, in the alternative, that the
agreement was entered into as a consequence
of undue
influence by the defendant. It was argued
inter
alia,
that the defendant had substantial power in the plaintiff's place
of employment as a consequence of his position as senior captain
and
her position as a flight attendant. Ultimately, it was argued, the
plaintiff's resistance to the defendant's influence was
diminished of
dire consequences should she fail to comply with the defendant's
demands or wishes. Counsel for the defendant submitted
that the
plaintiff failed to present any evidence which may support a
conclusion that she had signed the agreement as a result
of the
defendant's undue influence.
[44]
A party wishing to rely on undue influence must prove that:
•
the other party had
influence over him or her;
•
the influence weakened
his or her resistance;
•
the other party used his
influence unscrupulously towards the innocent party;
•
the transaction which was
concluded, is prejudicial; and
•
exercising a normal and
free will, the innocent party would not have entered into the
jural
act or transaction.
(Preller
v Jordaan
1956 (1) SA 483
(A) at 492 H.)
[45]
The evidence and objective facts referred to and discussed in
paragraphs 33 to 41 above also apply here, but need not be repeated.
In addition thereto, the following should be taken into account. The
fact that a special relationship of flight commander and flight
attendant existed between the parties does not in itself create any
presumption of undue influence
(
Miller
v
Muller
1965 (4) SA 458
(C) at 463 C-F). On the contrary,
the evidence and objective facts clearly indicate the opposite. On
more than one occasion she
vandalised the defendant's property and
she also did not hesitate to refer in her answering affidavit to
their intimate private
life. This is not the picture of a woman who
was so weakened by the influence of her husband that she agreed to
sign a settlement
agreement. She had already refused to sign on two
previous occasions and was resisting the defendant over a period of
at least
six months. Moreover, her remark during the telephonic
discussion on 16 September 2015, when she said "ag luister hier
ek
wil hierdie egskeiding verbykry, wanneer kan ek die goed gaan
teken?" is to a large extent an objective indication that she
independently decided to sign the settlement agreement out of her own
free will. Having regard to all these considerations,
I have to
conclude that the plaintiff was unable to prove undue influence.
ORDER
In
the result I make the following order:
1.
It is declared that the settlement agreement entered into between the
parties on 17 September
2015 is valid and binding;
2.
The plaintiff shall pay the defendant's party and party costs in
respect of consultation
and preparation for trial on 13 June 2016 and
the appearances on 13, 14, 15 and 17 June 2016.
____________________________
D
S FOURIE
JUDGE
OF
THE
HIGH
COURT
PRETORIA
Date:
10 October 2016
PRETORIUS
IV PRETORIUS
0,
JUDGMENT