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[2009] ZAGPPHC 353
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M v M (25705/2003) [2009] ZAGPPHC 353 (11 December 2009)
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
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA)
DATE:
11 DECEMBER 2009
CASE
NO: 25705/2003
NOT
REPORTABLE
In
the matter between:
A.
B.
M. APPLICANT
AND
S.
E.
M. FIRST
RESPONDENT
SHERIFF
WONDERBOOM SECOND
RESPONDENT
JUDGMENT
PHATUDI
(J)
[1]
The bonds of marriage between the Applicant/Plaintiff and the First
Respondent/Defendant were dissolved on the 1 March 2005
with
settlement agreement incorporated in as an Order of Court.
[2]
The Applicant instituted this application on the 7 November 2007
seeking relief as set out in the Notice of Motion. The Application
was set down for 28 November 2007 but struck off the roll.
[3]
Since November 2007 to date, umpteenth applications were launched by
either party including this matter before me. The applicant
is still
seeking relief as sought in the notice of motion dated 7 November
2007. being:
“
1.
Ordering the Respondent to comply with the Court order dated 1 March
2005;
2.
Directing that should the Respondent fail to comply with this ordei
within 10 days of service of this order, that the Seconc
Respondent
(Sheriff) be authorised to sign any documentation or the First
Respondent's behalf and to take any steps necessary to:
a.
Transfer her half undivided share in the immovable property situated
at […....] to the Applicant upon payment by the Applicant
of
the amount of R65000.00 on date of registration of transfer:
3.
Calling upon the first respondent to advance reasons on a date to be
determined by the Above Honourable court why she should
not be held
in contempt of Court and why she should not be committed to prison
for a period within the Above Honourable Court’s
discretion;
4.
That leave be granted to apply at a later stage on the same papers
for an order declaring the first respondent to be in contempt
of
court and that she be committed to prison for a period within the
court's discretion;
5.
That the costs of this application be paid by the first respondent as
between attorney and client"
[4]
The kernel of this application is a sought order ordering the first
Respondent to comply with clause 3.1.8 of the settlement
agreement.
The said clause provides that [T]he Defendant will sign all and any
transfer documents relating to her undivided half
share in the
immovable property within 7 (seven) days from being requested to do
so by the Plaintiff...'
[5]
The settlement agreement (as ordered) further provides that ‘the
Plaintiff will make payment towards the Defendant of
an amount of
R65000.00 in lieu of her undivided half share ..' (clause 311) The
payment is said to be payable 'on the date of registration'.
[6]
No action was taken by the Applicant from 1 March 2005 up to March
2007. The applicant states in his founding affidavit that
my
attorneys...began communicating with the first respondent in an
effort to obtain her compliance with the court order
-
(para 3 1).
[7]
In response thereto, the first respondent states that she '...refused
to sign the transfer documents and declined to take the
money from
the Applicant until proper provision is made for the children, (para
3.5 of answering affidavit)
[8]
She refused to sign the required documents on the basis that she
continued to stay with the minor children in the said house
and that
she effected payment towards the bond while staying with the children
notwithstanding the custodial order in favour of
the Applicant.
[8]
In considering the evidence and the submissions made by Mr Politis.
counsel for the Applicant, I am not persuaded that the first
respondent is in contempt of an order made on 1 March 2005. Her
concession on refusal to sign the documents was, in my view, a
way of
‘counter claim" or trying to exercise her right of a
“lien" towards recovering her damages. I find
that she
ignorantly acted on the premise that the applicant should first
reimburse her for her damages, which ignorance I find
excusable.
[9]
Ms Steenekamp submitted that the First Respondent struggled immensely
to survive financially as she had to maintain the children
and
service the bond in fear of loosing the roof over the children's
heads. The said children are still living with the first Respondent.
[10]
However, the Respondent succeeded on 10 December 2008 in obtaining an
order enforcing the other terms of the order dated 1
March 2005 that
are in her favour.
[11]
The order of 1 March 2005 is still in force and effect There is
neither variation of the order sought by the First Respondent
nor a
counter claim for the damages she allegedly sustained while staying
with the children and or for recovery of the amount paid
towards the
bond
[12]
The Respondent conceded to have refused to accept the money and to
sign the required documentation to effect transfer of her
undivided
half share.
[13]
An order of a Court of Law is valid until set aside by a Court of
competent jurisdiction. An order of court must be obeyed
at all times
notwithstanding how wrong it may be.
[14]
The Respondent has been ordered to sign all and any transfer
documents relating to her undivided half share in the immovable
property. In my view, the provisions of the order of 1 March 2005 is
still valid and stands to be adhered to. I, as a result thereof,
make
the following order.
[14.1]
The first Respondent is ordered to comply with court order dated 1
March 2005.
[14.2]
The first Respondent is further ordered to sign all or any transfer
documents relating to her undivided half share in the
immovable
property within 10 days from date hereof.
[14.3]
First Respondent to pay applicant’s costs on Party and Party
scale.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on:
01 December 2009
For
the Applicant:
Adv Politis
Instructed
by:
Messrs MATABANE INC
For
the Respondent:
Adv Steenekamp
Instructed
by:
Messrs TINGULULU GILLY GWANGWA
ATT.
Date
of Judgment:
11 December 2009