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[2015] ZAFSHC 247
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V v V and Another (3775/2015) [2015] ZAFSHC 247 (10 December 2015)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
nr: 3775/2015
In
the matter between:
N.
H. (PREVIOUSLY V.)
Applicant
[Identity
number:
[…….]]
and
V.
D. V.
1
st
Respondent
[Identity
number:
[…….]]
GOVERNMENT EMPLOYEE
PENSION FUND
(“GEPF”)
2nd Respondent
JUDGMENT BY:
BOKWA, AJ
HEARD
ON:
12 NOVEMBER 2015
DELIVERED
ON: 10 DECEMBER 2015
A
INTRODUCTION:
[1]
The applicant launched an application before this Court on the 12th
of August 2015 seeking an order to amend the deed of sett
lement
of the divorce action between the applicant and first respondent
already granted by the Court on the 17
th
of December 2009
under case number 1303/2009.
[2]
The first respondent opposed the application on the 1
st
of September 2015 and proceeded to file its answering affidavit on
the 21
st
of September 2015. The applicant filed its replying affidavit
on the 6
th
of October 2015.
[3]
The first respondent launched an interlocutory application on the 3
rd
of November 2015 requesting, an order that certain paragraphs of the
applicant’s main application be struck out on the basis
that
the averments made therein, fell in the applicant’s knowledge
and further that such averments ought to have been raised
in the
founding affidavit of the main application. The first
respondent contended therefore that the averments made by the
applicant must be ruled to be scandalous, vexatious or irrelevant and
as such to be struck off from the papers. The applicant
conversely, denies that these allegations are irrelevant.
[4]
The applicant employs the Court to consider whether the passages to
be expunged are therefore relevant to the issues and further
whether
such averments could be raised on the pleadings. The applicant
contends that the relevance of the passages to be
expunged ought to
be determined at the hand of the facts alleged, and if such facts are
relevant to the issues, that they ought
to stand.
B
BACKGROUND
FACTS:
Applicant’s
Case:
[5]
The applicant and the first respondent were married to each other out
of community of property with an accrual on the 3
rd
of October 1992 in Lady Gray. One minor child was born of the
marriage, a daughter R. V. and currently 12 years of
age.
[6] On
the 17
th
of December 2009, the applicant and the first respondent were
divorced by an order of this court and in terms of the divorce order,
written settlement agreement entered into by the parties was made an
order of the Court. In terms of the settlement agreement,
custody of the minor child was awarded to the applicant subject to
the first respondent’s reasonable rights of access.
In
addition, the settlement agreement provided that the first respondent
was to pay maintenance towards the minor child at R1 200.00
per
month, as well as maintain the said child as a beneficiary on his
medical aid.
[7]
The subject matter of the current application concerns clause 3.3 to
3.6 of the said deed of settlement which stated as follows:
“
3.3
Ten opsigte van die verdeling van die aanwas tussen die partye
bevestig die partye dat die Verweerder aan die Eiseres
die bedrag van
R100 000.00 (eenhonderd Duisend rand) verskuldig is.
3.4
Bogemelde bedrag sal deur Verweerder aan Eiseres uitbetaal word uit
sy pensioenbelang, wanneer sodanige pensioenbelang uitbetaal
by
aftrede of diensverlating
3.5
Bogemelde bedrag sal rente dra en toeneem met R6 000.0 (ses
Duisend rand) per kalender jaar, vanaf datum van ondertekening
hiervan.
3.6 Die Eiseres
bevestig dat sy by ontvangs van bogemelde bedrag `n trust ten
behoewe van die minderjarige kind sal skep en
die volle bedrag daarin
sal betaal, waar die kind nog nie 25 jarige ouderdom bereik het nie.
Hierdie trstfondse sal teen
die hoogste moontlike rentekoers belê
word en sodra die minderjarige kind die ouderdom van 25 jaar
bereik, sal die
trust tot `n einde kom en alle opgeloopte trust
fondse aan die minderjarige kind uitbetaal. Sandard Bank sal as
trustees
optree.
5.
Die partye erken en verklaar dat na ondertekening hiervan
hulle geen verdere eise van welke aard ookal wedersyds
teenoor mekaar
sal hê nie en dat hierdie ooreenkoms hulle onderlinge geskille
finaal skik en afhandel.”
[8]
After the divorce, the parties seems to have had ongoing problems and
disputes which in the main, related to the payment of
maintenance and
the sufficiency of such maintenance as well as the proper
interpretation to be given to paragraph 3.6 of the deed
of settlement
of their divorce. On the 12
th
of August 2015, the applicant launched an application seeking the
following relief:
“
1.
That the Deed of Settlement concluded between the Applicant and
First Respondent be amended, by substitution of Clause
3.4 of the
Deed of Settlement, with the following:
3.4
Bogemelde bedrag sal deur die Verweerder, Vincent David V., Id nr.
[….], aan die
Eiseres uitbetaal word uit sy pensioenbelang by
die Government Employee Pension Fund, waar die Verweerder `n lid is,
met pensioennommer:
[…..].
2.
That the Deed of Settlement concluded between the Applicant and
First Respondent be amended, by deleting Clause 3.6 from
the Deed of
Settlement.
3.
That this order be served on the 2
nd
Respondent;
4.
That the 2
nd
Respondent be authorized and requested to give effect to the
stipulations of Clauses 3.4 and 3.5 of the Deed of Settlement, as
amended;
5.
That the Applicant bears the cost of this application if it is
unopposed.
6.
Further and/or alternative legal relief.”
[9]
The first respondent opposes this application and the relief sought,
and has brought an interlocutory application in which it
seeks relief
in the following terms:
“
4.
This
interlocutory application is aimed at the striking out of certain
paragraphs of the Respondent’s replying affidavit in
the
application under the above case number (the main application) on the
grounds that it contains a number of allegations that:
4.1 Ought to have
been encapsulated in the Respondent’s
(Applicant’s)
founding affidavit;
And
4.2
Are vexatious and/or irrelevant to the adjudication of the issues in
the application.”
[10]
The applicant’s contention was that the proposed amendment
would give effect to the intentions of the parties as it were
agreed
during 2009, and further would enable the second respondent to
endorse it’s records with adequate information, which
was not
initially contained in annexure “B”, being the signed
deed of settlement.
[11]
The applicant submits further as follows on page 11 of the paginated
bundle:
“
10.1
I am furthermore advised that the legal position has changed from
what it initially was as reflected
in Clause 3.4 of Annexure “B”.
10.2
I am advised that an amendment to the legislation, as found in the
Government Employees Pension Law Amendment Act, No. 19 of 2011
,
coupled with an amendment to the Rules of the Second Respondent, will
entitle me to receive the said money from the First Respondent
on
retirement, death or resignation.
10.3
I furthermore confirm that none of the parties will be unduly
prejudiced by the amendment sought
by myself, since the effect of the
order sought is still in line with the stipulations of Annexure “B”
as well as the
current legal position as set out in the prevailing
legislation and pension fund rules.”
[12]
The applicant submit further as follows on page 12 of the paginated
bundles:
“
11.4
As primary caregiver of R., I am caring for her needs and maintenance
with my own funds as well as
the maintenance amount received from the
First Respondent.
11.5
During the period leading up to the decree of divorce, I was assisted
by an attorney from
Bloemfontein, Mr. Paul Myburgh. He has
since left Bloemfontein and is apparently working in the
Western-Cape, although I
could not trace him, despite my best
efforts.
11.6
The relationship between myself and the First Respondent was an
acrimonious one during
the period leading up to the divorce and my
attorney, Mr. Myburgh, advised me to settle the divorce as best I
could, since it was
the intention of the First Respondent to drag it
out.
11.7
I am advised that I was entitled to the accrual from my marriage with
the First Respondent,
as his former spouse and that my entitlement to
the accrual was to be paid by the Second Respondent.
11.12
As the primary caregiver of R., I have always had her best interests
at heart and confirm that I will endeavour
to sustain her to her best
interests by all reasonable means.
11.14
It was the opinion of my present legal representatives that the
amount with which the Trust will be benefitted
annually, after the
money is invested, will lose about 75 % of such accrual due to the
costs associated with the creation, set-up
and maintaining the
business and yearly audit fees of the Trust.
11.15
If a Trust is to be created this Trust will be subjected to all the
legal requirements of compliance, including,
inter alia, the
appointment of an accountant, drafting and submitting of financial
statements, as well as keeping a separate bank
account, all of which
will incur costs for the Trust, thereby depleting the gains the
Trust-capital might obtain.”
[13]
At paragraph 12 the applicant states as follows:
“
12.
I
would not have agreed to the stipulations of Clause 3.6 of Annexure
“B”, had I been advised of all the consequences
related
to the creation and administering of a Trust. I would
furthermore not have agreed to this Clause, had I been advised
that
such accrual actually amasses to myself due to the marriage accrual
system and that I was not obliged to set up a Trust with
this money
for the minor.”
First
Respondent’s Case:
[14]
The first respondent’s contention was that the applicant could
not vary a deed of settlement which had already been made
an order of
the Court. The first respondent assails the application on the
basis that it was unclear firstly, if the applicant
sought reliance
in terms of
Rule 42
,
Rule 31(2)(b)
or common law grounds.
[15]
The first respondent submitted that the application was not within
Rule 32(2)(b)
or alternatively that the grounds provided for in
Rule
42
were sufficiently established by the applicant. In the
result, the deed of settlement was submitted to have been subsumed
by
the Court order and consequently that the applicant could not avail
herself the grounds to vary the deed of settlement without
the
consent of the first respondent.
[16]
It was submitted that if the applicant sought to bring her
application for rescission on the grounds of fraud or mistake, she
ought to have done so within 1 year after she came to such knowledge
of fraud or mistake. The application was attacked as
defective
since it was brought after 5 years and 9 months. It was
submitted that the applicant could not simply alter the
terms of her
written agreement in the absence of a plea of rectification, fraud or
simulation. In the circumstances the first
respondent submitted
that the applicant had not made any allegations in the founding
affidavit which satisfies the requisites of
duress, undue influence
or fraud.
[17]
The first respondent submitted further that the applicant ought to
have foreseen these intractable dispute of facts before
it launched
it’s application. It submitted that the intention of the
parties was clearly expressed in the settlement
agreement as result
thereof it could not avail the applicant to introduce parole evidence
to alter the terms of the settlement
agreement in the absence of a
plea of rectification, fraud or simulation.
C
ISSUES FOR DETERMINATION
[18]
At the hearing of this matter, the following issues arose and were
identified as relevant in determining the dispute between
the
parties.
18.1
Firstly whether the applicant has made out a case for amending the
written settlement agreement of divorce
which was made an order of
the Court.
18.2
Secondly whether the first respondent made out a case in law, for the
striking out of certain averments contained
in the applicant’s
replying affidavit in terms of the uniform
Rule 6(15)
of the Court.
D
THE LAW
The
first respondent’s notice to strike out:
[19]
As far as the notice to strike out is concerned, the applicant
respectfully draw attention to the fact that all the material
which
the first respondent seeks to strike out, can properly be
characterized as permissible response to matter raised in the
replying affidavit deposed to by the applicant.
[20]
The new matter in reply, is the type of material that ought to have
been included in the founding affidavit. Consequently
the
applicant contends that it thought that the first respondent would
not oppose the application for amendment in the first place
and for
that reason only, it did not include the materials complained about
being annexures “D” and “E”
and which the
first respondent seeks the Court to strike off. The applicant
submits that in these circumstances, it is entitled
to respond to
matters raised by the first respondent in his answering affidavit to
the extend that it is relevant to do so.
[21]
In paragraph 4 of the affidavit in support of the notice to strike
out, the bold allegation is made that the material objected
to, ought
to have been encapsulated in the applicant’s founding affidavit
and are therefore “
irrelevant,
vexatious and or scandalous”
.
[22]
The applicant disputes that this is the case and further dispute that
there has and can be any prejudice to the first respondent
by reason
of the inclusion of the material objected to.
Legal
principles: Motion Proceedings:
[23]
In motion proceedings the affidavits serve not only to place evidence
before the Court, but also to refine the issues between
the
parties.
[1]
[24]
If the respondent fails to admit or deny, or confess and avoid,
allegations in the applicant’s affidavit, the court should,
for
the purpose of the application, accept that the applicant’s
allegations are correct.
[2]
Legal
principles: Striking out:
[25]
Rule 6(15)
, in relevant part, provides that:
“
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless it
is satisfied that the Applicant will be prejudiced in his case if it
be not granted.”
[26]
Two requirements must be satisfied before a striking out application
can succeed, viz
[3]
:
26.1
The matter sought to be struck out must indeed be scandalous,
vexatious or irrelevant;
and
26.2
The court must be satisfied that if such matter is not struck out the
parties seeking
such relief would be prejudiced.
[27]
The meaning of the terms used in the rule was stated as follows:
[4]
“
Scandalous
matter – allegations which may or may not be relevant but which
are so worded as to be abusive or defamatory.
Vexatious
matter – allegations which may or may not be relevant but are
so worded as to convey an intention to harass or annoy.
Irrelevant
matter – allegations which do not apply to the matter in hand
and do not contribute one way or the other to a decision
of such
matter”.
[28]
“
Irrelevant”
,
for the purposes of the Rule, means irrelevant to an issue or issues
in the action:
[5]
“
(T)he
correct test to apply is whether the matter objected to is relevant
to an issue in the action. And no particular section
can be
irrelevant within the meaning of the Rule if it is relevant to the
issue raised by the plea of which it forms a part.
That plea
may eventually be held to be bad, but, until it is excepted to and
set aside, it embodies an issue by reference to which
the relevancy
of the matter which it contains must be judged.”
[29]
In
Golding
v Torch Printing and Publishing Co (Pty) Ltd and Others
[6]
Ogilvie Thompson AJ, as he then was, said:
“
A
decisive test is whether evidence could at the trial be led on the
allegations now challenged in the plea. If evidence on
certain
facts would be admissible at the trial, those facts cannot be
regarded as irrelevant when pleaded.”
[30]
Historical background, even if strictly not relevant, should not be
struck out
[7]
:
“
For
the sake of clarity the history of a case is often permissible as an
introduction to allegations founding the cause of action.”
[31]
The first respondent seeks relief that the applicant’s replying
affidavit especially paragraph 2.6, 2.8, 6, 7, 15.1,
15.2, 19.2,
20.2, 21.2, 23.4, 26.1 and 26.2 be struck off.
[32]
The applicant states as follows in it’s replying affidavit on
page 67 of the paginated bundle:
2.1
I was quite surprised with the first respondent’s opposition of
the application.
2.2
It was necessary to bring the application in order to comply with the
2
nd
Respondent’s requirements for endorsing their records with my
claim against the 1
st
Respondent’s pension fund.
2.3
Whilst considering the bringing of this application and obtaining
legal advice, I thought it apposite to request
relief in the sense
that the 2
nd
Respondent pays out the portion of my accrual from the 1
st
Respondent’s pension fund in accordance with the clean-break
principle.
2.4
The 1
st
Respondent actually insisted that I obtain the portion of his pension
fund already during 2013, despite the wording of clause 3.4
of the
Deed of Settlement. The 1
st
Respondent said that he wanted to have my portion of the accrual paid
from his pension fund as soon as possible since he did not
want to
pay the 6 % interest on the amount of R100 000.00, as the Deed
of Settlement stipulate.
2.5
The 1
st
Respondent even provided me with all the required forms to be
completed and to submit to the 2
nd
Respondent and the 1
st
Respondent even committed to submit these forms to the regional
office of the 2
nd
Respondent so as to expedite matters.
2.6
The 1
st
Respondent’s attorneys at that stage, Messrs. Goodrick &
Franklin attorneys addressed the letter attached hereto as Annexure
“D”, dated 18 January 2013 to me in which they reminded
me to submit the claim forms for the pension fund to them “
so
spoedig moontlik”.
It was also confirmed that the pension will then be paid out and the
Trust can then be created.
2.7
The 1
st
Respondent’s apparent denial of the knowledge of this request,
initiated by him, is typical of the manner in which the 1
st
Respondent had treated me during the divorce process as well.
2.8
On 13 February 2014 Goodrick & Franklin Attorneys again
corresponded with my attorneys and confirmed that
the 2
nd
Respondent is prepared to pay out my accrual and that certain
information was required from me. The 1
st
Respondent’s attorneys even confirmed that the pay-out of the
accrual to me “…
net
tot voordeel van die
kind
kan wees …”.
This letter is attached hereto as Annexure “E”.
2.9
On 7 April 2014, the 2
nd
Respondent’s Legal Unit wrote to me and confirmed that the no
endorsement had been made against the Funds and that I had
to follow
certain steps to have the records endorsed. This letter is
attached as Annexure “F”.
[33]
The applicant submit further as follows on page 70 – 73 of the
paginated bundles:
“
5.
I
was under the impression on the date of signing the Deed of
Settlement that my claim against the Second Respondent would be
endorsed
on their records and that this claim would pay out
ultimately when the First Respondent retires or terminates his
services with
the State.
6.
The
First Respondent, however provided me with forms during January 2013
and requested me to claim my R100 000 from the 2
nd
Respondent as soon as possible.
7.
I
completed all the documents and submitted those to the Second
Respondent but was then advised during April 2014 that the Second
Respondent has not endorsement against their records and that they
were actually not obliged to endorse their records with my claim
as
they were not mentioned in the Deed of Settlement.
8.
The
2
nd
Respondent thus changed its Rules after the Deed of Settlement was
signed so that spouses in the position I was in, could claim
from the
2
nd
Respondent already at that stage, although their member had not yet
resigned or retired.
9.
In
the consultations with Me Milton I was furthermore advised that I had
allowed my accrual to be made subject to the formation
of a Trust for
my minor child.
10.
I
confirm again that I am the primary care giver of my child and that
she does not suffer any loss or lack of support or maintenance
and
that I provide in all her needs as best I can.
11.
The
accrual, however, should have befallen me and I can use such accrual
money as I choose but his would necessarily mean that I
continue to
maintain and give care to my daughter also with this money.
12.
I
was, however, advised that the Law regarding accrual and the division
of benefits in a marriage confirmed such accrual as owing
to me and
not to our minor child.
14.
During
June/July 2013 R. had to go on a netball tour to Kroonstad and I
requested the First Respondent to pay the half of this tour.
The First Respondent refused to make any contribution and said that
the pay-out of my portion of the accrual from the Second Respondent
should be used on behalf of our child. I confirmed to him at
that stage that I had not yet received it.
16.
I
therefore request a variation of the Deed of Settlement on the common
law grounds that I was brought under impression by the 1
st
Respondent’s claims during the divorce process and the advice
received from my legal representative at that time that I had
no
other options than to accept the Deed of Settlement’s proposals
if I wanted to get divorced.
17.
I
refer specifically to the investment of the accrual money in a Trust
to be set up for our minor child and the fact that the Rules
of the
2
nd
Respondent as amended after signing the Deed of Settlement to bring
the clean break principle into their rules, now provides me
with an
opportunity to lay a claim thereto, which I also do now with this
application.”
[34]
It is clear from the papers that the paragraphs alleged to be
offending by the first respondent amounts to evidence.
However,
that is insufficient reason in itself to justify it’s
being strucked out. The first respondent has not
in my view
demonstrated any real prejudice which this Court could apprehend, if
the alleged objectionable paragraphs were not struck
out. It
would appear that annexures “D” and “E”
specifically, seems to show the state of mind and
knowledge on the
part of the first respondent of the history of this matter.
[35]
In the circumstances, I am not persuaded that any of the matters
under attack are irrelevant to the issues in this case, and
therefore
in my view, no other proper basis has been advanced for their
exclusion from the pleadings. In the exercise of
my discretion,
I conclude that the application to strike out must be refused.
[36]
As I see it, the applicant has not merely annexed documentation in
the form of annexures “D” and “E”
and
requested the Court to have regard to it. On the contrary, and
in my view annexures “D” and “E”
identifies
the proper context within which this matter has to be determined.
Annexure “D” is on page 82 of the
paginated bundle, being
a letter written by the erstwhile legal representatives of the first
respondent which letter was addressed
to the applicant dated the 18
th
of January 2013. It is worth placing the terms of this letter
for proper consideration herein under.
“
AKTE
VAN DADING: N / VD V.
Ons
verwys na bogemelde aangeleentheid en rig die skrywe aan u in opdrag
van ons kliënt Mr V..
Na
aanleiding van u Akte van Dading met u Egskeiding is daar ooreengekom
dat `n Trust gestig sal word en die pensioengelde aan u
verskuldig
daarin betaal word tot voordeel van die minderjarige dogter.
Ons
verneem van u vanaf Mr V. dat hy reeds dokumentasie aan u oorhandig
het vir voltooiing en ondertekening. Ons ontvang hierdie
dokumente so spoedig moontlik. Die pensioen sal dan kan
uitbetaal en die trust kan geskep word.
Ons
vertrou op u samewerking en verneem dringend vanaf u.
Die
uwe
’’
[37] The attorneys of the
first respondent wrote to the applicant’s attorneys on the 13
th
of February 2014. Paragraph 5 of the said letter states as
follows:
“
Ons
heg verder hierby aan korrespondensie aan Me V. in sake die oprigting
van `n trust ten gunste van die minderjarige dogter ooreenkomstig
die
akte van dading. Mr V. se pensioenfonds is bereid om die bedrag
uit te betaal en het dus die nodige inligting nodig.
Ons is ook
van mening dat hierdie net tot voordeel van die kind kan wees gesien
in die lig van onderhoudsverligting.”
[38]
Annexure “F” on page 84 is a letter of the pension fund
addressed to the applicant informing her that her decree
of divorce
does not reflect an order in terms of
Section 7(8)(a)(i)
and (ii) of
the
Divorce Act, 1979
, as amended and therefore that no endorsement
was effected. In order for the GEPF to comply with the
Divorce
Act 70 of 1979
it needed adherence with all the requirements namely:
·
Identify
the Fund;
·
Direct
the Fund to record an endorsement on the member’s pension Fund;
and
·
Direct
the Fund to pay the plaintiff pension interest.
C
ANALYSIS
[39]
The applicant submits that it has shown sufficient cause why the deed
of settlement which was encapsulated in the decree of
divorce should
be amended. It further submits that if regard is had to
annexures “D” and “E”, it
is clear that the
first respondent set the process in motion to have the R100 000.00
paid out to the applicant soon after
the conclusion of the divorce.
[40]
It was submitted on behalf of the applicant that the logical way to
interpret annexures “D”, “E”,”F”
and “G” collectively, would inevitably lead to the
conclusion that the parties intended to amend the deed of settlement
and further that they reached “consensus” that it be so
amended.
[41]
The question is whether a variation of the divorce order is possible
under these circumstances. In my view public policy
dictates
that the Court as an upper guardian of minor children must assist the
parties to comply with the settlement agreement
of the divorce by
properly interpreting the agreement, regard being had to annexures
“D”, “E”, “F”
and “G”
herein above. In the dictum of
Kollapen
AJ in GF SH
2011 (3) SA 25
[8]
,
at page 29 paragraph B the Judge held as follows:
“
The
court went on to affirm that public policy is firmly rooted in our
Constitution and the fundamental values it enshrines, which
include
human dignity, the achievement of equality and the advancement of
human rights and freedoms, non-racism and non-sexism.
In the
judgment of His Lordship Mr Justice Cameron he also expressed the
position with regard to the Shifren principle as follows
in para 95:
“
The
Constitution requires that its values be employed to achieve a
careful balance between the unacceptable excesses of contractual
“freedom”, and securing a framework within which the
ability to contract enhances rather than diminishes our self-respect
and dignity. The issues in the present appeal do not imperil
that balance.”
[42] The Court went on to
consider matters that relates to rights and obligations in the
context of family law and listed those
considerations as follows on
page 30 para D(19.1 – 19.3):
“
Those
considerations include:
[19.1]
The constitutional imperative that in all matters concerning children
the principle of the best interests of the child must
apply as a
guiding and paramount principle.
[19.2]
The obligation of parents to maintain their children in accordance
with their ability, as well as the needs of the
minor children.
It should follow that it is indeed a matter of public policy to
ensure that those guiding principles, insofar
as they relate to the
reciprocal and mutual reinforcing obligations of parents, are
maintained and are not sacrificed, as it were,
at the altar of
ensuring certainty at all times.
[19.3]
The fact that in the real world parents, entrusted with the
responsibility of ensuring that the best interests of their minor
children are advanced, must invariably make decisions that may
warrant a departure from, or a variation of, the express terms of
a
settlement agreement. It would be impractical and inconvenient
to suggest that, in all such instances, and in the face
of a
non-variation-except-in-writing clause, parents should then be
constrained in their ability to take decisions and to do things,
even
by mutual agreement, that would advance the interests and the
wellbeing of such minor children.”
[43]
The applicant annexed the annexures “D”, “E”,
“F” and “G” in reply to give
the matter a
proper perspective. The first respondent submitted that in so
doing, the applicant made out a case in reply
when it ought to have
done so in it’s founding affidavit. I have already made a
finding that the application to strike
out ought to be refused.
In motion proceedings the affidavits serve not only to place evidence
before the Court but also
to define the issues between the parties.
If the respondent fails to admit or deny, or confess and avoid,
allegations in
the applicant’s affidavit, the Court should, for
the purpose of the application, accept that the applicant’s
allegations
are correct.
[44]
As I see it, there are no intractable dispute of facts which the
applicant ought to have foreseen before launching this application.
Neither is this case about an applicant who essentially changes
horses in mid-case. This is not the scenario in the matter
of
Administrator
of Transvaal and Others v Theletsane
1991 (2) SA 192 (A)
[9]
.
If a literal and contextual interpretation is given to annexures “D”,
“E”, “F” and
“G”, then the
conclusion is inevitable that the parties intended to amend the deed
of settlement of their divorce.
[45]
I concluded that the applicant made out a case for the relief it
seeks in the notice of motion.
[46]
In the premise, I make the following order:
1.
That the application to strike out be dismissed with costs;
2.
That the Deed of Settlement concluded between the Applicant and First
Respondent be amended, by substitution
of Clause 3.4 of the Deed of
Settlement, with the following:
“
3.4
Bogemelde bedrag sal deur die Verweerder,
Vincent
David V., Id nr. [......]
,
aan die Eiseres uitbetaal word uit sy pensioenbelang by die
Government
Employee Pension Fund,
waar
Verweerder `n lid is, met pensioennommer: [......].”
3.
That the Deed of Settlement concluded between the Applicant and First
Respondent be amended, by deleting Clause
3.6 from the Deed of
Settlement.
4.
That this order be served on the 2
nd
Respondent;
5. That
the 2
nd
Respondent be authorized and requested to give
effect to the stipulations of Clauses 3.4 and 3.5 of the Deed of
Settlement, as
amended;
6.
The First Respondent to pay the cost of suit to the applicant
on a party and party scale.
_______________
I R
O BOKWA, AJ
On behalf of
applicant: Adv. J.S.
Rautenbach
Instructed
by:
Bezuidenhouts
Inc
Bloemfontein
On behalf of 1
st
& 2
nd
respondent:
Adv. W.A. Van Aswegen
Instructed
by:
McIntyre
& Van der Post
Bloemfontein
/PC
[1]
Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others
1999 (2) SA 279
(T) at 323F – 324C. Cf:
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
1972 (1) SA 464
(D) at 469C-E cited with approval in
Minister
of Land Affairs and Agriculture v D&F Wevell Trust
2008 (2) SA 184
(SCA) at 200D;
MEC for
Health, Gauteng v 3P Consulting (Pty) Ltd
2012 (2) SA 542
(SCA) at 550G-551C;
[2]
Moosa v Knox
1949
(3) SA 327
(N) at 331.
United
Methodist Church of South Africa v Sokufundumala
1989 (4) SA 1055
(O) at 1059A;
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
et seq
Ebrahim v
Georgoulas
1992 (2) SA 151
(B) at 153D
[3]
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 733B;
Securefin
Ltd v KNA Insurance and Investment Brokers (Pty)
Ltd
[2001] 3 All SA 15(T)
;
Tshabalala-Msimang
v Makhanya
[2007] ZAGPHC 161
;
[2008] 1 All SA 509
(W) at
516 g-h;
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 308B
[4]
Vaatz v Law Society of Namibia
1991 (3) SA 563
(Nm) at 566C-E; Cf.:
Tshabalala-Msimang
v Makhanya
[2007] ZAGPHC 161
;
[2008] 1 All SA 509
(W) at
516e-f;
Breedenkamp v Standard Bank of
South Africa Ltd
2009 (5) SA 304
(GSJ)
at 321C-E
[5]
Stephens v De Wet
1920 AD 279
at 282;
Meintjes v
Wallachs Ltd
1913 TPD 278
at 285;
Rail
Commuters’ Action Group v Transnet Ltd
2006 (6) SA 68
(C ) at 83E.
[6]
1948 (3) SA 1067
(C ) at 1090. Cf.:
Habib
v Patel
1917 TPD 230
at 232;
Geyser v Geyser
1926 TPD 590
at 594;
Weichardt v Argus Printing &
Publishing Co Ltd
1941 CPD 133
at 145;
Golding v Torch Printing &
Publishing Co (Pty) Ltd
1948 (3) SA
1067
(C ) at 1090;
Rail Commuters’
Action Group v Transnet Ltd
2006 (6)
SA 68
(C) (supra) at 83H.
[7]
Richter v Town Council of Bloemfontein
1920 OPD 172
at 173/4;
Ahlers NO v
Snoeck
1946 TPD 590
at 594.
[8]
Kollapen AJ
in
GF SH
2011 (3) SA 25
.
[9]
Administrator of Transvaal and Others v
Theletsane
[1990] ZASCA 156
;
1991 (2) SA 192
(A)