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[2009] ZAGPJHC 123
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B v B (13830/09) [2009] ZAGPJHC 123 (17 July 2009)
SAFLII
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Certain
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IN THE SOUTH GAUTENG HIGH
COURT (JOHANNESBURG)
CASE
NUMBER: 13830/09
DATE:17/07/2009
In
the matter between
B,
B
A
...........................................................................................................................
Applicant
and
B,
N
..........................................................................................................................
Respondent
JUDGMENT
Gildenhuys
J
[1]
The applicant applies by notice of motion dated 31 March 2009 to have
a settlement agreement entered into between them on 10
May 2007, made
an order of court. The applicant and the respondent were previously
married to each other. They were divorced from
each other on 22
October 1986. A consent paper concluded between the parties at that
time was made an order of court. This consent
paper was subsequently
amended by the parties on several occasions. The latest agreement (of
10 May 2007) was intended to settle
all outstanding disputes on the
terms and conditions contained therein.
[2]
Clause 9 of the agreement of 10 May 2007 (to which I shall henceforth
refer as "the settlement agreement") is of importance.
It
reads as follows:-
"9. Full and final
settlement
9.1 Save for any
agreement that the parties may enter into in writing, this agreement
supersedes all prior agreements and/or arrangements
entered into
between the parties and, save for the terms contained in this
agreement neither party shall have any claim against
the other
arising contractually, by the statute or otherwise for any reason
whatsoever and this agreement is in full and final
settlement of any
and ail of the claims against and obligations owed or owing by the
parties to each other.
9.2 Further to the above,
the parties specifically record that upon signature of this
agreement:
9.2.1 they agree to
withdraw all actions and applications under the following case
numbers, each party to pay his/her own costs:
9.2.1.1 case no:
13/3/2-88/02 - in the Randburg Magistrate's Court;
9.2.1.2 case no: 16956/02
- in the Johannesburg Magistrate's Court;
9.2.1.3 case no: A3183/02
- in the High Court of South Africa, Witwatersrand Local Division;
9.2.1.4 case no: 10724/02
- in the High Court of South Africa, Witwatersrand Local Division;
9.2.1.5 case no:
102425/02 - in the Johannesburg Magistrate's Court;
9.3 that the Divorce
Order, the 1996 agreement, the May 2004 agreement and the December
2004 agreement are superseded in their totality
by this agreement and
that as from date of signature of this agreement, they are no longer
of any force or effect."
The
settlement agreement contains no provision that it be made an Order
of Court.
[3]
The applicant resides in Johannesburg. He avers that he resided in
Cape Town from 2000 to 2008. In 2008 he permanently relocated
to
Prague in the Czech Republic, where he currently resides. He says
that he owns no immovable property in the Republic of South
Africa,
although he continues to have various interests which requires his
periodic return to the country. The settlement agreement
was signed
by the applicant in Johannesburg and by the respondent in Sandton. In
the settlement agreement the applicant chose the
following domicilium
adress
c/o
David Levithan Attorneys 5
th
Floor, Hyde Park Corner, Jan
Smuts Avenue, Sandton.
The
application papers was served at the respondent's domicilium address.
He entered an appearance to defend and deposed to an answering
affidavit in Hyde Park, Johannesburg.
[4]
The respondent raised two defences which are pertinent for purposes
of this judgment. Firstly, the respondent contends that
this Court,
in the absence of an attachment to confirm jurisdiction, lacks
jurisdiction to entertain the applicant's claim as the
respondent
does not reside within its area of jurisdiction. Secondly, the
respondent submits that there is no jurisdictional basis
upon which
the settlement agreement can be made an order of court. The
applicant's remedy is to apply for enforcement of the settlement
agreement in an appropriate forum by seeking specific relief, and so
afford the respondent a proper opportunity to respond thereto.
In any
event, even if the settlement agreement can be made an order of
court, the respondent submits that it will be inappropriate
to do so,
because it will result in an order that is unenforceable, whether by
way of immediate execution or contempt proceedings.
[5]
I will firstly deal with the defence that this court has no
jurisdiction to hear the matter in the absence of an attachment
to
confirm jurisdiction- An attachment to found or confirm jurisdiction
is not always required in cases where an incola institutes
legal
proceedings against a peregrinns. Howie P J held in Bid Industrial
Holdings v Strang and Another,
2008 (3) SA 355
(SCA) at 370B-C that-
"....... the
common-law-rule that arrest is mandatory to found or confirm
jurisdiction
cannot pass the limitations test set by s 36(1). It is contrary to
the spirit, purport and objects of the Bill of Rights.
The common law
must be, and is hereby, developed by abolition of the rule and the
adoption in its stead, where attachment is not
possible, of the
practice according to which a South African High Court will have
jurisdiction if the summons is served on the
defendant while in South
Africa and there is sufficient connection between the suit and the
area of jurisdiction of the court concerned
so that disposal of the
case by that court is appropriate and convenient. It goes without
saying that the new practice could itself
be subject to development
with time."
[6]
In the case before me, the cause of action arose entirely within the
jurisdiction of this court - the written agreement was
concluded in
Johannesburg and performance was to be made by payment into the
applicant's bank account in Johannesburg. The respondent
indicated
his connection to South Africa by stating that he has various
interests which require him to return periodically to the
country.
Furthermore, the respondent deposed to his answering affidavit in
Hyde Park and not in some foreign location. The respondent
has also
(in every agreement concluded between him and the applicant) chosen a
domicilium address in Johannesburg. All of this
takes me to the view
that there is sufficient connection between the application and the
area of jurisdiction of this Court to
render the disposal of the
application by this Court appropriate and convenient.
[7]
I turn to the defence that there is no jurisdictional basis upon
which the settlement agreement can be made an order of court,
and
that it will in any event be inappropriate to do so. There is no
basis upon which a party can without more approach a court
to make an
agreement concluded by him or her an order of court. Mr Gilbert, who
appeared for the respondent, pointed out that the
applicant does not
seek judgment in terms of the settlement agreement under Uniform Rule
41. Nor could the applicant do so since
there is no litigation
underway which allows for the Rule to be invoked. All legal
proceedings between the parties are to be withdrawn
in terms of
clause 9.2 of the settlement agreement. Uniform Rule 41 is therefore
not inapplicable. Nor does the applicant seek
to vary any existing
maintenance order, whether under
section 8(1)
of the
Divorce Act No
70 of 1979
or in the maintenance courts. There is, in my view, merit
in these submissions.
[8]
Broome JP remarked in Mansell v Mansell,
1953 (3) SA 716
(N) at 721
B-E that-
"For many years this
Court has set its face against the making of agreements orders of
Court merely on consent. We have frequently
pointed out that the
Court is not a registry of obligations. Where persons enter into an
agreement, the obligee's remedy is to
sue on it, obtain judgment and
execute. If the agreement is made an order of Court, the obligee's
remedy is to execute merely.
The only merit in making such an
agreement an order of Court is to cut out the necessity for
instituting action and to enable the
obligee to proceed direct to
execution. When, therefore, the Court is asked to make an agreement
an Order of Court it must, in
my opinion, look at the agreement and
ask itself the questioin: 'Is this the sort of agreement upon which
the obligee (normally
the plaintiff) can proceed direct to
execution?' If it is, it may well be proper for the Court to make it
an order. If it is not,
the Court would be stultifying itself in
doing so."
Later
in the same judgment (at 721 H), the learned judge said:
"It is no part of
the duty of this Court, on the invitation of litigants, to invest
their agreement with some sort of vague
aura or glamour which has no
practical efficacy."
[9]
Alkema J, in a comprehensive judgment delivered in Thuta v Thuta
2008
(3) SA 494
(TkH), examined the wisdom of the practice prevailing in
various divisions of the High Courts of making settlement agreements
orders
of court. His-judgment contains a synopsis of reported cases
on this issue, and also an analysis of the different practices
followed
in each of the Divisions. In his judgment, he highlights the
difficulties which flow from the terms of a contract being embodied
in a court order. He concludes his judgment by itemizing (in par [53]
at pp 506I-508G) the substantive procedural principles which
he found
to be well established in all divisions of the High Court in this
country.
[10]
The following principles enumerated by Alkema J are relevant to this
case:
"1.
The purpose of a court order, as a final judgment, is inter alia to
allow a party to proceed directly to execution. If
the order cannot
or shouldnot be enforced, for whatever reason, it should not be made
an order of court:.......
3.
court orders should not be formulated in a way that compliance
therewith is left to the discretion of the person who is bound
thereby and, I would add, to the discretion of the sheriff or his
deputy (or any other enforcement officer such as a member of
the SA
Police Service). Such a discretion will offend against the elementary
principle that orders should be capable of ready enforcement:........
4.
As a matter of principle, if a consent order does not comply with the
above requirements of a court order, it should not be made
an order
of court. The purpose of a court order is not to record the terms of
an agreement between the parties ('the Court is not
a registry of
obligations'), but to give final effect to the judgment which brings
the dispute to closure...... "
[11]
In casu, the essence of the settlement agreement is encapsulated in
the following clauses thereof:
"4. It is agreed
between the parties that:
4.1 in full and final
settlement of any and all maintenance obligations which Nicholas [the
respondent] has to Beryl [the applicant],
whether arising out of the
Divorce Order, the 1996 agreement, the May 2004 agreement and/or the
December 2004 agreement or of any
atatutory provisions, the common
law, contract or otherwise, Nicholas shall:
4.1.1
pay Beryl R775 000.00 (Seven Hundred and Seventy Five Thousand Rand),
("the capital") on or before 1 January 2009;
4.1.2
continue to effect payment to Beryl of an amount of R5 000.00 (Five
Thousand Rand) per month as maintenance. Nicholas will
make payment
of this maintenance to Beryl on or before the first day of each and
every month by way of a direct deposit into Beryl's
banking account
held in her name, or such other account as nominated by Beryl in
writing from time to time;
4.1.3
continue to make payment on or before the first day of each and every
month of Beryl's comprehensive motor vehicle insurance,
Homeowner's
insurance and household insurance directly to the Insurance company
concerned.
4.2 Upon the date of
payment of the capital amount by Nicholas to Beryl on or before 1
January 2009, Nicholas' obligations to effect
payment of the monthly
maintenance amount to Beryl and to effect payment of the insurances
on Beryl's behalf will cease.
6.1 Nicholas hereby
pledges the shares in the Nkwazi Ridge Estate ("the shares")
to Beryl as security in respect of his
obligations in terms of this
agreement, such pledge to be realised in the event of his default.
The pledge is annexed to this agreement
as annexure "A".
6.2 It is specifically
recorded that in the event of Nicholas defaulting, Beryl is obliged
to:
6.2.1 first execute her
claim against Nicholas in terms of the pledge of shares;
6.2.2 grant Nicholas or
his nominee a right of first refusal to match any offer which may
have been received for such shares, such
right to be exercised and
payment to have been received within 30 (Thirty) days of Nicholas
having been informed of the offer received,
in writing, by means of
the delivery of a copy thereof delivered to Nicholas' attorney, David
Levitan, or to Nicholas personally
at the domicilium address provided
for below;
6.2.3 thereafter, and
once Beryl is in receipt of the funds from the sale of the shares,
and in the event of there being a shortfall,
Beryl may proceed
directly against Nicholas or any other assets belonging to Nicholas
for the recovery of all amounts owing to
Beryl in terms of this
agreement."
[12]
It is clear from the above provisions of the settlement agreement
that in the event of a default in payment of any of the amounts
due
under clause 4.1, the applicant may not immediately execute through
judicial attachment of the respondent's assets. She must
first
attempt to obtain payment through realising the pledged shares. In
doing so, she must give the respondent a right of first
refusal. Only
after she has done all of that, may she recover any shortfall through
a warrant of execution against the respondent's
other assets. This
runs contrary to the essence of a court order as described above, and
is sufficient reason not to make the settlement
agreement an order of
court.
[13]
Furthermore, if the settlement agreement is made an order of court,
it may deprive the respondent of any contractual defences
he may
have. The respondent says that, should the applicant seek specific
performance under the present settlement agreement, his
defences
would include an interpretation of the agreement as to whether a dum
casta clause that appears in the consent paper which
was incorporated
in the divorce order, survives and forms part of the present
settlement agreement, just as the order dissolving
the bonds of
marriage must survive. The applicant began co-habiting permanently
with a certain Mr Rosenbaum from September 2008.
It would follow, so
the respondent says, that if the dum casta clause survived, the
applicant would not be entitled to any payments
under the agreement
as such payments constitute maintenance. These issues can only be
addressed adequately in proceedings for specific
relief under the
settlement agreement.
[14]
It follows that the application cannot succeed. It is hereby
dismissed with costs.
A
GILDENHUYS
Judge
of the High Court
Appearances
For the applicant: Ms G
Hardy
Instructed
by
Allan
Levin & Associates
For the respondent: Mr B
Gilbert
Instructed by
David
Levithan Attorneys