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[2012] ZAGPPHC 56
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Lambson's Hire a Sales (Pty) Ltd v Markagente and Another (15921/09) [2012] ZAGPPHC 56 (16 April 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER: 15921/09
DATE:
16
April
2012
LAMBSON'S
HIRE a SALES (PTY)
LTD
................................................................
APPLICANT
V
WITBANK
MARKAGENTE
.....................................................................
FIRST RESPONDENT
ANTOINETTE
STOFFBERG
.............................................................
SECOND RESPONDENT
WRITTEN
REASONS
VORSTER
AJ
:
1.
In this matter I made an order in terms of paragraphs 1 and 2 of the
notice of motion.
I
indicated at the time the order was made that I would furnish written
reasons for my decision if requested to do so. Such request
has now
been made. My reasons for making that order follow below:
2. The applicant applies
for an order in terms of which a written deed of settlement
entered
into between the parties is made an order of court and an order for
judgment in terms of the written deed of settlement.
For purposes of
my decision the following paragraphs in the written deed of
settlement are relevant:
"7. The defendants
undertake to collect and repair the model T350JLG areat work platform
room lift which is the subject of
the litigation in this action
(herein after referred to as "the crane") at their cost and
shall return the repaired crane
to the plaintiff at premises
nominated by the plaintiff by not later than 30 days from date of
signature of this agreement by the
last party signing."
"6. in the event of
the defendants failing to comply with any of the provisions of this
agreement, then and in that event the
defendants shall immediately
become liable to the plaintiff for payment of the replacement cost of
the crane in the amount of R272
460,00 together with the costs of
this action. "
3. The applicant
(plaintiff) alleges in its founding affidavit that the settlement
agreement also provided for payment by the defendant
of an amount of
R14 820,00 as contribution to the costs of the plaintiff. No
allegation is made that that amount was not paid by
the defendant to
the plaintiff.
4. The cause of action of
the applicant (plaintiff in the main action) is that the settlement
agreement has not been complied with
by the defendant in as far as
the provisions of clause 1 of the agreement were not complied with. I
might mention at this stage
that the written deed of settlement was
not in issue between the parties.
5. In their answering
affidavit the respondents alleged that it is still their intention to
repair the crane as provided for in
the written deed of settlement,
but that they were precluded from doing so by the refusal by the
personnel of the applicant at
the branch where the damaged crane is
kept and an allegation that it was found that the crane was even more
damaged than what the
position was when the damaged crane was
originally handed back to the applicant by the respondents.
6. In argument the
respondents raised a further point. That point is based on the
wording of Rule 41(1) of the Rules of Court. The
point raised was
that there was no allegation in the founding papers to the effect
that the action between the parties which gave
rise to the deed of
settlement, had not been withdrawn. It is convenient to deal with
this point first. In my opinion the question
whether the action
between the parties had been withdrawn or not is not a prerequisite
for a valid application in terms of Rule
41(1) by a party requesting
the court to make a written deed of settlement between the parties an
order of court. Clearly, when
an action between parties is withdrawn
the Lis between them falls away. When that happens, there is no
dispute remaining between
the parties that can be settled between
them. If an action has been withdrawn, an order of court making a
written settlement between
the parties entered into after such
withdrawal would be of no consequence - the settlement would relate
to issues between the parties
which had ceased to exist when the
action was withdrawn. Such a purported settlement would have no legal
force - it cannot be said
to have been a novation of the issues
existing between the parties and which had been withdrawn prior to
the settlement was entered
into. Therefore, if no more is said, a
party applying to a court to make a settlement between that party and
its opponent an order
of court in the case where the action had been
withdrawn prior to such settlement was entered into, embarks upon a
futile exercise
which can be of no legal consequence. Therefore, the
requirement in Rule 41(1) of the Rules of Court, that a settlement
between
parties may be made an order of court where the action has
not been withdrawn, is for the benefit and the convenience of the
court,
and not the litigating parties.
7. In the instant case
the action came to trial in this court on the 15
th
of
September 2010, when it was postponed sine die to enable a possible
settlement between the parties to eventuate. That in fact
happened on
the 17
th
of March 2011 when the written deed of settlement
was entered into. I have no reason to suspect that the action was
withdrawn by
the applicants (plaintiff) in that action prior to the
date of settlement in terms of the written deed of settlement.
Consequently,
in my view, there is no risk that this court might be
making an order which is clearly academic and of no legal consequence
by
declaring the written deed of settlement between the parties to be
an order of court.
8. As far as the other
issue raised by the respondents are concerned, I am satisfied on the
papers that there is no real dispute
between the parties as to the
question whether the respondents was denied access to the crane in
order to effect the necessary
work to it which it had contracted to
do in terms of the deed of settlement, ft was common cause that the
crane was not repaired
within the required 30 days. The only issue
remaining is whether the applicant precluded the respondent from
doing the agreed repair
work. In that regard I am satisfied that the
applicant did not so preclude the respondent as alleged.
9.
For the aforegoing reasons I made an order as prayed for in the
notice of motion.
LI. VORSTER ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Applicant's
Attorneys: DE Jager, Kruger & Van Bterk Attorneys
Applicant's
Counsel: Adv. J. De Beer
Respondent's
Attorneys: Harvey Nortje Waner 6 Motimele Attorneys
Respondent's
Counsel: Adv. 6.P. Geach (SC)
Date
Heard: 16 April 2012
Date
of Judgment:16 April 2012