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[2008] ZAWCHC 81
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Rossouw v Rossouw and Another (4559/2004) [2008] ZAWCHC 81 (15 September 2008)
UDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
4559/2004
DATE
:
15
SEPTEMBER 2008
In
the matter between:
GABRIEL
PETRUS ROSSOUW
Applicant
and
EMILIE
DALENE ROSSOUW AND ONE OTHER
Respondent
JUDGMENT
NGEWU,
J
:
[1]
The
applicant launched an application in which he sought rectification
of a clause in a consent paper agreed upon between him
and the first
respondent on August 2006 which was subsequently made a court order
on 23 August 2006.
Applicant
further applied for an order setting aside, or suspending the
warrant of execution issued pursuant to the said clause,
pending the
outcome of the application for rectification.
[2]
In terms of paragraph 4 of the consent paper the applicant agreed to
make payment to the first respondent in the sum of R8
200 000 as
follows;
4.1.1. By
payment of the sum of R300 000 (Three Hundred Thousand) by 30
September 2006, directly to the plaintiff's attorney of
record,
Baumann, Gilfillan Incorporated;
4.1.2. By
payment to the plaintiff of the sum of Rlmillion, by no later than
30 September 2006, directly into such bank account
as nominated by
the plaintiff;
4.1.3. By
payment of Rlmillion upon the registration of Transfer of
ownership of the Franskraal property (referred
to in
paragraph 4.5.1 of the deed) in the event that the property is sold
or by no later than 31 January 2007, whichever occurred
first;
4.1.4. By
payment of the sum of R5 900 000 upon the date upon which the
Gabriel Rossouw Trust effects transfer of ownership of
the farm
Morgenzon to the purchaser or by 1 August 2007, whichever occurs
first;"
[3]
It is common cause that the applicant met his obligations in terms
of clause 4.1.1, 4.1.2, 4.1.3 only. Though, I must add,
that the
first respondent alleged that the amount in 4.1.3 was only paid on
13 March 2007 and not on 1 January 2007 as was provided
for in the
consent paper. She further sought interest on the Rlmillion at the
rate of 15.5% for the period 1 February 2007 to
13 March 2007 in an
amount of R17 410,96.
[4]
It was further not in dispute that the amount of R5 900 000, as
provided for in clause 4.1.4 had not been paid. First respondent
sought interest on the amount aforesaid for the period 2 August 2007
to 28 August 2007 in the sum of R67 467,95.
[5]
In terms of clause 3 of the consent paper applicant agreed, and
undertook to contribute to first respondent maintenance as
follows;
"3.1.1
Until such time as first defendant, now applicant, has complied with
this obligation in terms of 4.1.4 below, by
payment to the
plaintiff (now first respondent), of the sum of R24 000 per month,
without deduction or set off, into such
account as plaintiff may
determine, the first such payment to be made on 1 September 2006 and
thereafter on or before the 1
st
day of each month.
3.1.2
Until such time as the first defendant has complied with his
obligations in terms of 4.1.3 below or secured the mortgage
bond
finance in terms of paragraph 4.2.1 below, by payment to the
plaintiff of the sum of R4 100, 20 per month without deduction
or
set off, into such account as plaintiff may determine, the first
such payment to be made on 1 September 2006 and thereafter
on or
before the 1
st
day of each month.
3.1.3
In the event that first defendant has for any reason not
complied with his obligations in terms of paragraph 4.1.3
and 4.1.4
of the consent paper by 1 September 2007, the maintenance payable by
him in terms of paragraph 3.1.1 and 3.1.2 above
shall increase in
accordance with the percentage increase in the Consumer Price Index
as determined by the Director of Statistics
for the middle income
group during the preceding year calculated for the period 30 June
2007 and thereafter shall increase annually
on 1 September of each
succeeding year on the aforesaid basis for 12 months period ending
30 June of the year.
[6]
On 31 August 2007 first respondent took out a warrant of execution
against the applicant for the sum of R5 985 058,91, which
amount she
detailed in the affidavit as follows; R5 900 000 plus R17 410,96,
being interest due on the amount of Rlmillion, which
was due and
payable on 31 January 2007 plus R67 467,95 being interest due on the
amount of R5 900 000 from 2 August to 28 August
2007.
[7]
It was contended on behalf of the applicant that the warrant is not
supported by its
causa
and
is not in accordance with the judgment, in that no interest is
payable on the amounts of R1000 000.00 and R5900 000.00 while
they
remain unpaid as the amounts in 3.1.1 and 3.1.2 and also clause 3.3
covered such eventuality. Hence, the payments of the
above amounts
cease on payment of the capital amounts to the first respondent.
Interest payment was not what parties had in
mind at the time the
consent paper was signed. By then the farm Morgenzon had already
been on the market for a period in excess
of one year, and applicant
had no sufficient personal assets to cover the amounts due to the
respondent. The real intention of
the parties was that the R5.9
million would not be payable until the farm Morgenzon was sold. It
was argued that the consent
paper does not reflect the true
intention or the common intention of the parties as they both
contemplated that the farm Morgenzon,
which was worth R5 900 000
would be sold before applicant could be able to make payment to the
first respondent.
The
applicant accordingly claimed rectification of paragraph 4.1.4 of
the consent paper by deleting the words "by 1 August
2007
whichever occurs first" and by substituting then with the words
"within a reasonable time". Applicant maintained
that the
Court should exercise its discretion to suspend the warrant as first
respondent does not run any real risk of not getting
her capital
amount. She may run such a risk if the applicant's moveables are
sold in execution and his only source of income,
being the farming
operations, are disrupted.
It
was further submitted that even if the warrant was executed first
respondent would receive a fraction of the capital amount
owed to
her, whilst severely crippling the applicant's earning ability, and
ability to pay the monthly maintenance for the first
respondent and
their minor child. Applicant had taken steps to sell his farm
properties to pay his debts but was hampered by
external economic
factors. As at the date of the argument he had already concluded a
deed of sale for Morgenzon for R3.5million
and also Langkloof and
Franskraal, which would cover a major part of the first respondents
remaining indebtedness. He even went
an extra mile by disposing of
the trust shares in order to meet his obligation towards the first
respondent. He had also tried
to secure mortgage bonds over his
property, but unfortunately did not succeed due to the National
Credit Act. Applicant further
asked that the issue of rectification
be referred for oral evidence.
[8]
First respondent premises her claim on the ground that applicant
successfully raised a bond over Franskraal in an amount of
Rlmillion
and sold Morgenzon farm for R3.5million and did not make payments to
her, which was not the case. In the alternative
first respondent
claimed that more than six months, a date which applicant contended,
was reasonable, had elapsed since the date
of the application.
According to her, even on applicant's own version, the payment was
due. She further contended that she would
never have agreed to an
indefinite period of time for the sale of Morgenzon without making
provision for the payment of interest
on the sum of R5.9million.
The
reason why the date of 1 August 2007 was inserted was specifically
to cater for the eventuality that Morgenzon would not be
sold by
such date according to her. Both parties agreed and intended that
payment had to be effected by not later than that date.
First
respondent further disputed that the proceeds of the sale of
Morgenzon would be applied towards settlement of the applicant's
indebtedness to her. She further submitted that applicant inflated
the prices of the farms and delayed the sales. It was her
contention
that for applicant to succeed with rectification he had to prove a
common intention of both parties that Morgenzon
would be sold within
a reasonable period and that the sale proceeds would be used to pay
her. She further maintained that clause
3.3 was inserted to cater
for the eventuality that the applicant might renege in respect of
his obligations in terms of the consent
paper. Applicant failed to
make payment on 1 August 2007, and, according to her, is
in
mora ex lege.
Interest
at the prescribed legal rate is applicable to the judgment.
[9]
From the above it is clearly discernible that there are disputes of
fact regarding the true intention of the parties in relation
to
clause, that is clauses 3.1.1, 3.1.2 and 3.3 of the consent paper,
disputes which cannot be resolved on the papers. Accordingly
this
Court
is
unable
to
properly
resolve the application on papers. The applicant has correctly
applied that the question of rectification be referred
for oral
evidence in terms of Rule 6(5)(g) of the Uniform Rules of court, as
the court cannot make probability findings on affidavits.
In this
regard see
Fourie
Poultry Farms v Kwa-Natal Food Distributors
1991(4) SA 514 NPD.
Furthermore,
at a glance, clause 4.1.4 of the deed of settlement does not seem to
be meticulously worded. The first respondent's
claim for interest in
respect of the amounts owing is clouded with uncertainty if one has
regard to clauses 3.1.1 and 3.1.2 of
the consent paper.
[10]
In
the interests of real and substantive justice between the parties,
the Court will suspend the warrant of execution pending
proper
ventilation of the circumstances surrounding clauses 3.3 and 4.1.4
of the deed of settlement. Applicant has shown that
he has made
efforts in an attempt to realise the amount due to the first
respondent and has continued paying the substantial
amount required
of him pending settlement of the respondent's claims.
[11]
The court makes the following order:
The
APPLICATION
FOR RECTIFICATION IS REFERRED FOR ORAL EVIDENCE
.
The
WARRANT
OF EXECUTION IS SUSPENDED
pending
the outcome of the application for rectification.
The
costs incurred in the application up to this stage are reserved for
decision by the Court deciding the application.
NGEWU,
AJ