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[2008] ZAWCHC 266
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Rossouw v Rossouw and Another (4559/2004) [2008] ZAWCHC 266 (15 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS
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 in 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 R1 million, by no later than
30 September 2006
r
directly into such bank account as nominated by the plaintiff;
4.1.3 By
payment of Rl million 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
Unti! 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
h
the maintenance payable by him in terms of paragraph 3.1.1 and 3.1.2
above shali 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
f
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
R5.9million 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 applicants 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
R1 million
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 efapsed since the date
of the application.
According to her, even on applicants 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,
A J