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[2009] ZAGPPHC 53
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S v S (55989/07) [2009] ZAGPPHC 53 (15 May 2009)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
DATE: 15/05/2009
CASE NO: 55989/07
UNREPORTABLE
In the matter
between:
E H S
PLAINTIFF
And
A
L S
DEFENDANT
JUDGMENT
MAVUNDLA
J.:
[1]
The
applicant seeks an order compelling the respondent to sign transfer
documents to have the respondent’s share in an immovable
property they jointly own, transferred into the applicant’s
name, with ancillary relief.
2] The only issue to be
determined in this matter is whether the settlement agreement which
was made an order of the divorce order
of the parties on 6 November
2006 was signed by the respondent under duress
BACKROUND FACTS
[3] The parties were
married to each other for the second time, by way of Antenuptial
Contract in terms of which the Accrual System
as provided fore in
Chapter 1 of
Matrimonial Property Act No 88 of 1984
was expressly
excluded from the marriage.
[4] According to the
applicant the parties entered into a settlement agreement on 20
October 2006 (on 19 October 2006 according
to the respondent. On
October 2006). The respondent then instituted a divorce action in the
Central Divorce Court of Johannesburg
under case number 12013/2006.
On 6 November 2006 the respondent proceeded to obtain the divorce
order and the settlement agreement
was incorporate in the divorce
order
[5] The terms of the
aforesaid settlement agreement are reflected on annexure ES1 attached
to the papers
1
.
I cite herein below only what is, in my view, relevant for this
matter the following paragraphs:
“
DIVISION OF THE
ESTATE
Each party shall be
entitled to all the assets which he or she presently has in his or
her lawful possession and shall become
owner thereof;
The plaintiff further
acknowledges having removed all her and the minor children’s
clothing and personal belongings from
the common home;
The Defendant shall
become the exclusive owner of the property situated at [ …
]. The parties hereby nominate and appoint
Laubscher Attorneys as
the Attorneys who will attend to the registration of the transfer
of the Plaintiff’s interest
in the immovable property onto
the name of the Defendant. The Defendant shall contribute 50% of
the registration costs.”
5….
“
6.1 Both parties
hereby irrevocably and unconditionally waive all lawful claims that
they both may have against one another whether
the claim arose out of
the marriage between them or otherwise. The parties furthermore
acknowledge that this agreement is the full
and final agreement on
all lawful matters between them.”
[6] It is common cause
that the respondent was served with the relevant documents pertaining
to this application on 4 December
2007. A notice to oppose was filed
on 10 December 2007. The answering affidavit was only filed on 29
April 2008. It is common cause
that the respondent refused or failed
to sign the transfer documents relating to the immovable property in
issue herein.
[7] The respondent in her
answering affidavit alleges
inter
alia
that the agreement was signed under duress, after the applicant had
intimidated her. She says that, even after the divorce, she
was so
much under duress that she had to seek a protection order against the
applicant in order stop the intimidation.
AD CONDONATGION
[8] In her answering
affidavit, under the heading ‘CONDONATION” she advances
as her reasons for the late filing of her
answering affidavit. She
concedes that she was served with this application during December
2007. After she had consulted an advocate,
she gave instructions to
attorneys Rossouw to oppose the application and that necessary steps
be taken to have the settlement
agreement amended and the divorce
order set aside. She does not know why an answering affidavit was
not filed nor the instructions
to rescind the divorce order were not
executed. However, she does not state when were these instructions
given to Attorneys Rossouw.
She says that she has always been serious
to have the divorce order rescinded.
[9] The respondent, says
that she only came to know on 15 April 2008 that this application was
set on the roll for hearing of 21
April 2008. She attempted to no
avail to contact Ms Sandy du Plessis of Kort du Plessis Inc, and
only managed to secure an appointment
with her on 17 April 2008.
Because Ms Sandy du Plessis was on 18 April 2008 departing on an
over seas trip, the latter requested
Ms Van Olst to stand in for her.
Ms Van Olst directed a letter to the applicant’s attorneys,
seeking indulgence for the late
filing of her answering affidavit and
tendered costs. The respondent is reiterating that she is tendering
costs on a party and
party scale.
[10] She further states
that she has good prospects of success on the merits. She says that
she never dealt with the applicant when
she eventually signed the
settlement agreement. She says that she was never granted an
opportunity to consider or read the settlement
agreement before she
signed it. She says that the agreement was drafted by the applicant’s
brother, Oliver. She says that
she signed the agreement out of fear
after Oliver informed her that the applicant would harm their
children should she not signed
the agreement. She says that she does
not know the witnesses who signed the settlement agreement.
[11] The respondent
further confesses to having had an adulterous relationship with her
dentist employer of since 2002 -2006. She
says that she signed the
settlement agreement on 19 October 2006. Her dentist paramour,
unbeknown to her, was forced to reach a
settlement agreement with the
applicant for payment of an amount of R100 000, 00 for the adulterous
relationship with the respondent.
According to her, she was given
documents by Oliver to sign under the threat of fraud criminal
charges being preferred against
her for the amounts she had withdrawn
from the bonds account. She was forced by Oliver to agree to pay the
applicant an amount
of R50 000, 00 under the threat of fraud
criminal charges being brought against for the moneys she had
withdrawn from their bond
. She signed the documents without reading
them. He father paid the amount of R50 000, 00.
[12] She was further
informed by Oliver that a divorce action been instituted on her
behalf in the Central Divorce, Johannesburg
and that she must attend
court on 6 November 2006. She denies that the divorce action was
settled amicably. She says she and Tersa
were pressurised to pay the
amounts I have referred to herein above.
[13] The respondent was
the plaintiff and the applicant was the defendant in the divorce
action. On 6 November 2006 the presiding
officer requested her to
call her attorney to request the applicant to initial certain
corrections in the settlement agreement.
She had to telephone Oliver
to request the applicant to attend court. Indeed the applicant
arrived at court and attended to the
initialling of the settlement
agreement, where after a divorce order was granted.
[14] She points out that
she and the applicant were married to each other out of community of
property with exclusion of accrual
system. They nonetheless agreed to
purchase immovable property jointly and register it in both their
names. She subsequently learnt
that shortly after the divorce, their
joint immovable property was valued at about R1, 2 million and the
outstanding bond amount
was R350 000, 00.
[15] She points out that
in the settlement agreement she signed, she completely did away with
any benefit she had in the joint immovable
property. She says that
when she signed the settlement agreement it was the intention of the
applicant to deprive her of her interest
in the immovable property.
She further points out that Laubscher Attorneys were to deal with
the transfer of the immovable property
into the names of the
applicant. She says that the said attorneys are the very attorneys
the applicant’s brother Oliver is
employed at.
[16] I consider it not
necessary to deal with the rest of the contents of the affidavits of
the respective parties.
[17] In casu, the
respondent was served with the application in casu in on 4 December
2007. Her notice to oppose was filed on 6
December 2007. She was
supposed to have filed her answering affidavit within fifteen days
thereafter. She only did so on 29 April
2008, four months out of
time. A party who is out of time in complying with the court rules,
must approach the court within reasonable
time to seek its
indulgence; vide
Wolgroeirs
Afslaer (Edms) Bpk v Municipaliteit van Kaapstad 1978 (
1) SA 13
(A)
39-42D.
In casu the delay of four months is unreasonable.
[18] An indulgence is a
matter of the discretion of the Court. Where there is a sufficient
and reasonable or “good cause”
explaining the delay, the
court may condone the delay, vide
Saravaiva Contructions (Pty) Ltd v Zululand Electrical &
Engineering wholesalesrs
1975 (1) SA p615.
The respondent seems to be attributing the delay to her attorneys,
implicitly, because she says that she does not know why the
answering
affidavit and her instructions to rescind the divorce order were not
executed; vide
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape 2003 (2)
ALL SA;
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765A-C.
[19]
The
courts have in many instances said that remissness of an attorney,
depending on the particular circumstances of the case may
be
condoned. In casu, there is no affidavit filed by the attorneys the
applicant had instructed, explaining the delay in filing
the
answering affidavit. In casu the delay on the part of the attorneys
has not been explained. This is an important fact in the
consideration whether I must exercise my discretion and condone the
late filing of the answering affidavit. I must also consider
the
strength and weakness of the case of the respondent on the merits and
whether the resistance of the order sought by the applicant
is done
bona fide or not.
[20]
In
casu, the respondent, obtained the divorce order, which has the
settlement agreement the respondent alleges that she signed under
duress. The order was obtained on 6 November 2006. These proceedings
were initiated on the 30 November 2007, according to the date
stamp
reflected on the face of the notice of motion, which is a year after
the divorce decree was obtained, it would seem that
the respondent
has not taken any steps to bring an application for the rescission of
the settlement agreement that was made an
order of the divorce order.
Again as at the date of the filing of the answering affidavit, on 29
April 2008, there is as yet no
application to have the divorce order
rescinded. Had there been such application the respondent would have
made mention thereof
in her answering affidavit. Again, in this
regard, there is no explanation filed from the attorneys she had
instructed to bring
such application. Again in this regard there is
no reasonable explanation proffered why she did not bring such
application within
reasonable time.
[21] Where a party
attaches his signature to a document, it is assumed that he intended
to be bound by such agreement. For the respondent
to come, after
more that twelve months that the agreement which she signed, which
she personally moved the court to make an order
of the court, and
allege that she was coerced to sign, does not tally with the
objective facts. The first objective fact is the
very period she was
comfortable to live with such an order. The second objective fact, is
that her own father paid the amount of
R50 000, 00 in respect of the
moneys she had withdrawn from the joint bond account with the
applicant. Surely, if she had been
coerced to make such payment, she
at least could have confided to her father, or reported the
“blackmail” to the police
during October, November and
December 2006. Looking at these facts, in my view, the applicant
cannot succeed with the application
for rescission of the settlement
agreement.
[22] Having regard to
what I have stated herein above, the answering affidavit was filed
out of time without prior consent of the
court. There are no
sufficient reasons advanced for the late filing of the answering
affidavit. There are no prospect of success
in the belated envisaged
application for rescission. Further, in my view, the allegation that
the agreement was signed under duress,
is a mere ploy to frustrate
the applicant in enforcing the agreement, and it stands to be
rejected as I do. In the premise. I find
that the agreement is
enforceable and the applicant has made a case for the order sought.
It is not disputed that the respondent
has refused to sign the
transfer documents.
[23] The applicant seeks
that the respondent be ordered to pay the costs of this application
on an attorney and client scale. The
opposition to the application ,
in my view, has no merit and is
mala
fide
.
Where a party opposes or defends an action without any good cause,
and is also dilatory in doing so, such party must be mulcted
with a
punitive costs. The circumstances of this case warrants a punitive
costs order.
[24] In the result I make
the following order:
1. The Respondent be and
is hereby ordered to sign all necessary documentation in order to
give the transfer of the Respondent’s
half share of the
immovable property situated at [ …. ] Gauteng also known as
Erf [ … ] Registration Division
I.Q., Gauteng into the name
of the Applicant.
2. That, in the event of
the Respondent failing and or refusing to sign the aforesaid
documentation, the Sheriff for the district
of Roodepoort North be
and is hereby authorised and ordered to sign such documentation on
the Respondent’s behalf.
3. That the Respondent be
and is ordered to pay the costs of this application on the scale as
between attorney and client.
N.M. MAVUNDLA
JUDGE OF THE HIGH
COURT
DATE OF HEARING : 21/
04 / 2009
DATE OF JUDGMENT: 15
/05/ 2009
PLAINTIFFS’ ATT
: SHAPIRO & SHAPIRO INC
PLAINTIFFS’ ADV
: MR. M L HASKINS
DEFENDANT’S ATT
: CLIFFORD LEVIN ATTORNEYS.
DEFENDANT’S ADV :
ELANE BOTHA.
1
Pagianated pages 11-15
Titled ‘CONSENT ORDER”