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[2012] ZAGPPHC 40
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P.M.M v T.H.M (A407/2007) [2012] ZAGPPHC 40 (22 February 2012)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(FULL
COURT OF THE TRANSVAAL PROVINCIAL DIVISION)
CASE
NUMBER: A407/2007
DATE:
2012/02/22
In
the Matter between:
PM
M
….......................................................................................................................
Appellant
AND
TH
M
.........................................................................................................................
Respondent
JUDGMENT
Fabricius
J:
1.
This
is an appeal from a Judgment delivered by Patel J on 17 Dec 2006. On
17 April 2007 leave to appeal to a full bench of this
Court was
granted.
2.
The
parties hereto were divorced, which divorce order incorporated a Deed
of Settlement. The relevant terms of this agreement which
gave rise
to the dispute between the parties read as follows:
4.1
Plaintiff hereby gives to Defendant for her sole and exclusive
ownership, Stand 31 Sakhile on the condition that the house bond
must
be cancelled in the name of Plaintiff within 3 months of date of
divorce.
4.2
Plaintiff shall sign all the necessary documents to effect transfer
of Stand no. 3171 to Defendant.
4.3If
Defendant fails to comply with this condition, the house then must be
sold, the house bond must be released, and the profit
to be divided
50% towards each party."
3.
The
parties could not agree on the interpretation of the relevant terms,
and, as a result, no steps were taken to give effect thereto.
This
caused the applicant to approach the court a quo seeking an order
that the common home be sold, that the respondent sign all
documents
to give effect to the sale, which in turn caused the respondent by
way of a counter application to seek an order directing
the applicant
to cancel the bond, and to transfer the relevant stand to her. This
order was granted by the court a quo on the basis
that the reference
to "defendant" in clause 4.3 of the settlement agreement in
fact meant "plaintiff", in the
context of the clauses read
as a whole.
4.
The
appellant interpreted clause 4 of the Deed of Settlement as meaning
that the respondent would become the sole owner of the property
on
condition that the bond be cancelled within three months of the
divorce, failing which the property had to be sold, the bond
be paid
off, and the profit be shared in equal parts. Obviously, the
respondent interpreted clause 4 of the agreement to be in
line with
the order granted by the court a quo. Appellant referred us to a
number of authorities dealing with the interpretation
of an
agreement, and in particular Coopers and Lybrand v Bryant 1995 (3)
SA761 (A) at 767 E to 768E. This decision is to the effect
that the
ordinary and grammatical meaning of words must be given effect to
unless an absurdity would result. The context of the
relevant clauses
must be considered in the light of the general purpose of the
agreement. Background- and surrounding circumstances
also have to be
considered.
5.
Without
detracting from that argument it was however the appellant's case
that it was not necessary to determine which party had
to fulfil the
condition in the mentioned agreement. The reason for this was that it
was objectively clear that clause 4.1 of the
agreement was not
complied with within 3 Months of the date of the divorce, and as a
result the terms of clause 4.3 had to be given
effect to. It is, as I
said, common cause that this was not done.
6.
I
agree with the submission and reasoning behind it. Accordingly, it is
my view that the learned Judge a quo was wrong in making
the order
that he did. As a result thereof the appeal must succeed and the
following order is therefore made:
a.
The Appeal succeeds with costs;
b.
The application is granted and an order is made in terms of prayers
1, 2 and 3 of the appellant's notice of motion dated 14 June
2006.
13
February 2012
JUDGE
H J FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
Agree:
JUDGE
B R SOUTHWOOD
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
Agree:
JUDGE
M W MSIMEKI
JUDGE
OF THE NORTH GAUTENG
HIGH COUR
Case
no.: A407/07
Heard
on: 22/02/2012
Counsel
for the Appellant: JR Minnaar
Instructed
by: Annari Claassen Attorneys c/o Riaan Bosch Attorneys
761
Park Street Clydesdale
Pretoria
Counsel
for the Respondent: No appearance for respondent
Instructed
by: Carrmin Essak Attorneys c/o F Vally Attorneys Standard Bank
Chambers, Room 418 12 Paul Kruger Street Pretoria
Date
of Judgment: 22 February 2012 at 10:00am. In the High Court of South
Africa