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[2024] ZANCHC 108
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E.S v R.B (23212016) [2024] ZANCHC 108 (29 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
reportable
Case
No: 2321/2016
In
the matter between:
ES
APPLICANT
and
RB
RESPONDENT
Neutral
citation:
ES v RB
(Case no. 2321/2016) (29 November 2024)
Heard:
16 August
2024
Delivered:
29
November
2024
Judgment
Phatshoane
DJP
[1]
The applicant, Ms ES, approached this Court for an order that
the
award issued on 30 July 2021 by Mr André Heyns, the receiver,
concerning the determination of the accrual in her and
the
respondent’s estate be made an order of this Court (the main
application). The respondent, Mr RB, opposes the main application
on
the basis that some calculations in Mr Heyns’s award have their
origin in the deed of settlement which to a certain extent
is
ostensibly unlawful. He therefore filed a counter-application in
which he seeks relief in terms of rule 42(1)
(b)
and (c)
to vary the terms of the decree
of divorce substantially in the following way:
1.1
That para 2.1 of the deed of settlement incorporated into the decree
of divorce on 01 March 2019 be
amended by excising the following part
thereof:
“…
and
to the defendant’s assets shall be included the assets and
liabilities of R[…]Trust,
number IT 1[…], and the assets and liabilities of the R[…]
shall be deemed to be the assets and liabilities of the
defendant”.
1.2
That para 2.2.9 of the said deed be deleted in its entirety.
1.3
That the award of André Heyns be declared unlawful to the
extent that the assets of R[…]
Trust has been deemed to be the
assets of the respondent’s estate and included in such estate
for the purposes of calculating
the accrual in the respondent’s
estate during the subsistence of the parties’ marriage.
1.4 That the
parties be ordered to direct that Mr Heyns, within 30 days from the
date of the order, excise R[…]
Trust’s assets from his
award and to recalculate the accruals in the parties’ estates
without such assets.
[2]
The respondent raised three preliminary points against the
application whereas the applicant took
issue with the late filing of
the counter-application. The replying affidavit in the
counter-application was also filed outside
the time allowed in the
Uniform Rules of this Court. Before turning to these issues, some
background is necessary.
[3]
The applicant and the respondent were married to each other on 17
December 1994 out of community
of property in terms of an antenuptial
contract which incorporated the accrual system as contemplated in ss
2 and 3 of the Matrimonial
Property Act 88 of 1984 (MPA). Two
children were born of the marriage, a son, JB, and a daughter, MB. JB
passed away on 17
July 2014. MB attained the age of majority on 15
January 2015.
[4] On
26 October 2016 the applicant issued summons against the respondent
for a decree of divorce. She also filed
a Rule 43 application for
maintenance
pendente lite
on 14 December 2016.
The
marriage between the parties was dissolved on an unopposed basis
before Coetzee AJ on 01 March 2019 by a decree of divorce which
incorporated the deed of settlement. Prior to the dissolution, the
parties were not
ad idem
with regard to their respective estate’s accrual and therefore
agreed to the following salient terms in the deed of settlement:
“
2.1
That each party will under oath, within 14 (fourteen) days from date
of the divorce, furnish the other party and
the receiver with a
statement setting out each party’s assets and liabilities
and
to the defendant’s assets shall be included the assets and
liabilities of R[…] Trust, number IT 1[…], and
the
assets and liabilities of the R[…] shall be deemed to be the
assets and liabilities of the defendant
.
2.2 Mr André
Heyns of the firm Enslins Auditors, Kimberely, is hereby appointed as
the receiver to determine the accrual
in the parties’
respective estates with the following rights and powers:
2.2.9 The receiver
shall also determine the assets and the liabilities of R[…]l
Trust and such assets and liability
shall be deemed to be the
defendant’s personal assets and liabilities.
2.4 That the
receiver shall forward his award to the parties’ respective
attorneys and both the plaintiff and the defendant
shall be entitled
to lodge an objection against such an award within 14 (fourteen) days
after the award had been dispatched. The
receiver is to consider such
objections and within 14 (fourteen) days following receipt of such
objections issue the final award,
which award shall be final and
binding on the parties.
2.5 That each party
is free to make the receiver’s final award an order of court,
with the understanding that the plaintiff
shall solely be entitled to
do so after she had complied with the provisions of clause 3
hereinunder.
3. That
the plaintiff shall within 7 (seven) days after the receiver’s
final award, as provided for in clause
2.4, resign as a trustee of
R[…] Trust, number IT 1[…], and shall sign all
necessary documents to give effect to
the resignation.”
[5]
Some 18 years prior to the breakdown of the marriage, the parties
established R[….] Trust
on 01 June 1998. The applicant and the
respondent were appointed the trustees whereas JB and MB the capital
and income beneficiaries
of the Trust. The trustees were not the
beneficiaries of the trust. The main purpose of the Trust was the
acquisition of assets
and income to be applied for the benefit of the
beneficiaries and, as part of the parties’ estate planning, to
prevent their
respective estates or that of their children from
paying estate duty upon their deaths. Part B, Clause 5.1 of the
trust deed
[1]
stipulates:
“
5.1
RESTRICTIONS ON THE POWERS OF THE TRUSTEES
5.1.1. Unless the
provisions of Part C provide otherwise, the board, a trustee and
executive trustee may not:
5.1.1.1
merge the assets of the trust with their own assets.
5.1.1.2
directly or indirectly professes that any of the
trust assets form
part of his estate or personally belong to him or are due to him.
Part
B, Clause 7.7.1 provides:
“
7.7.1
A trustee shall not be entitled to dispose of any trust funds,
capital or income of the trust for his own benefit
or for the benefit
of his estate unless he is compensated in terms of the provisions of
the trust deed or he is a beneficiary and
the estate, assets,
accounts and affairs of the trust shall as far as possible be
controlled and administered separately from the
trustee.”
[6]
On 30 July 2021 Mr Heyns, in accordance with the terms of the deed of
settlement, made an award
in terms of which he concluded that the
respondent pays to the plaintiff R3 311 897. On 26 August 2021 the
respondent objected
to the award. However, on 01 September 2021, Mr
Heyns notified the parties, in a comprehensively motivated letter,
that he stood
by the determination he made on 30 July 2021. Following
this, the applicant’s attorneys directed a letter to the
respondent’s
attorneys dated 29 September 2021 to which was
attached an e-mail from the applicant in which she resigned as
trustee with immediate
effect. In addition, the applicant’s
attorneys demanded payment of the award and notified the respondent’s
attorneys
that in the event of non-compliance the plaintiff would
approach the court in terms of clause 2.5 of the deed of settlement
for
the award to be made an order of this Court. The main application
was served and filed on 17 November 2021. It was not met with
any
immediate response from the respondent. I now turn to consider the
preliminary issues.
[7]
First, is the respondent’s application for condonation of the
late filing of his replying
affidavit in his counter-application,
filed
a month
outside
the time allowed in the Uniform Rules.
He explained that his
attorney was indisposed which occasioned the delay. The delay is
negligible. There can be no prejudice for
condonation to be granted
and it is so ordered.
[8]
More problematic for the respondent is the unexplained delay in the
launching of his counter-application
in which he seeks the variation
of the deed of settlement in terms of Rule 42(1)
(b)
and
(c)
.
This rule is a procedural step designed to correct expeditiously an
obviously wrong judgment or order.
[2]
Therefore, an application for rescission or variation in terms of
either rule 42 or the common law must be made within a reasonable
time after the applicant acquired knowledge of such judgment.
[3]
[9]
As alluded to, the deed of settlement sought to be varied was
incorporated into the decree of
divorce on 01 March 2019. Following
Mr Heyns final award on 01 September 2021 the respondent did nothing
to challenge the divorce
order upon which the award is founded. It
also bears repeating that the main application to have the award made
an order of this
Court was served on 17 November 2021. Once more,
following receipt of the application, the respondent did nothing to
challenge
the decree of divorce. He served his answering affidavit to
the main application in which he conveniently incorporated his
counter-application
on 16 October 2023. He did not seek condonation.
Instead, he explained that he was ordered by this Court on 15
September 2023 to
file his answering affidavit to the main
application by 16 October 2023. He further explained that insofar as
the counter-application
forms part of the answering affidavit, it too
had to be delivered by that date. He therefore contended that the
counter-application
was lodged timeously. In the alternative, he
avers:
“
...(I)t is clear
from paragraph 21 of my Founding Affidavit that the grounds for the
Counter-application only became known to me
when I consulted with my
current attorney of record for the purposes of drawing my answering
affidavit and that was in September
this year [2023] and the
Counter-application was brought within the next month which is hardly
an unreasonable delay. The matter
is in any event only scheduled for
hearing on 16 August 2024.”
[10]
The counter-application was served and filed approximately four years
after the decree of divorce had issued
and almost two years after the
respondent had been served with the main application. The delay is
quite egregious and the explanation
thereof wholly inadequate and
unconvincing. The Court’s backlog and its turnaround time
cannot serve as an excuse for the
parties’ non-compliance with
the rules of this Court. This is impermissible and deserving of
censure.
This
would have been the end of the matter in relation to the
counter-application. However, based on the caution sounded in various
decisions of our courts, that a court in exercising its inherent
power in application proceedings to separate issues in limine
must do
so with circumspection,
[4]
something must be said concerning the respondent’s
counter-application which in any event is so inextricably linked to
the
main application that any severance thereof would serve no
worthwhile purpose.
[11]
The striking feature of this case is that
the
applicant, in her answering affidavit to the respondent
counter-application, states that before the hearing of the main
application
the respondent convinced their daughter,
MB,
to bring an urgent application on 26 November 2021 where the
respondent was cited as the first respondent whereas the applicant
the second respondent. In that application, MB sought an order to
stay the present main application pending the determination of
Part B
of her application; that she be granted leave to intervene as the
second respondent in the main application; that she be
afforded leave
to intervene in the divorce proceedings and an order interdicting her
parents from alienating the trust’s
assets pending the
determination of the relief in Part B. In part B, MB sought an order
that the impugned clause 2.1 of the deed
of settlement be amended by
deleting the words: “…
and to the
defendant’s assets shall be included the assets and liabilities
of R[…] Trust, number IT 1[…], and
the assets and
liabilities of the R[…] shall be deemed to be the assets and
liabilities of the defendant”
and
that clause 2.2.9 be deleted in its entirety. Nxumalo J dismissed
that application with costs including the subsequent application
for
leave to appeal. What is remarkable is that the respondent currently
seeks almost the identical relief in the present counter-application.
[12] As
I see it, the
three preliminary points raised by
the respondent are decisive of both the principal and the
counter-application
. With regard to the first point in limine,
it was argued for him that to the extent that the deed of settlement
provides in clauses
2.1 and 2.2.9 that the trust’s assets be
considered as part of the respondent’s assets for the purposes
of determining
the accrual, it is unlawful in that it offends against
s 12 of the Trust Property Control Act 57 of 1988 (TPCA) which
provides
that:
“
Trust
property shall not form part of the personal estate of the trustee
except in so far as he as the trust beneficiary is entitled
to the
trust property.”
[13] It
was further argued for the respondent that the deed of settlement
also offends clauses 5.1.1.1, 5.1.1.2
and 7.7.1 of the trust deed
which prohibits trustees from merging any of the assets of the trust
with their own or holding out
that any trust assets belong to them
personally or appropriating any of the trust capital or income for
their own benefit. It was
further contended that both parties, when
they agreed to the terms of the deed of settlement, acted unlawfully
under a material
error of law, beyond their powers as trustees, and
in breach of the trust deed which renders the deed of settlement
unenforceable.
That insofar as Mr Heyns’s award is founded in
the deed of settlement, it is unenforceable and neither competent nor
proper
to be made an order of the Court.
[14]
Rule 42(1)
(c)
provides that the Court may, in addition to any other powers it may
have,
mero
motu
or
upon the application of any party affected, rescind or vary
an
order or judgment granted as the result of a mistake common to the
parties. In
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture
,
Corruption
and Fraud in the Public Sector Including Organs of State and
others
[5]
,
the Constitutional Court underscored that the rule
operates
only in specific and limited circumstances and that the interest of
justice requires the grounds available for rescission,
and by
extension variation, to remain carefully defined. The guiding
principle of the common law being the certainty of judgments.
[15]
Two broad requirements must be satisfied where a party relies on
common mistake. First, there must be a common
mistake which occurs
where both parties are of one mind and share the same mistake.
Secondly, there must be a causal link between
the mistake and the
grant of the order or judgment. In other words, the judgment or order
must be as a result of a mistake.
[6]
A
common mistake would cover the case of a judgment entered by consent
where the parties consented in
justus
error
.
It is not sufficient, however, if the error is that of one of
the parties only, for instance, if a litigant by mistake
of himself
or his legal advisers abandons relief to which he is or may be
entitled, the court has no power to recall or amend the
order it has
in consequence deliberately made, in the absence of fraud of the
other party in the course of the proceedings.
[7]
[16] To
demonstrate that the deed of settlement was not conceived as a result
of a mistake common to the parties
the applicant, in her answering
affidavit to the counter-application, states that following the
settlement negotiations between
the parties on 14 November 2018 her
attorneys directed a letter to the respondent’s attorneys to
which was attached a draft
deed of settlement. On 25 January 2019 her
attorneys provided the respondent’s attorneys with an amended
deed of settlement.
On 08 February 2019 she says that the
respondent’s senior counsel recommended that certain amendments
be made on the deed
of settlement and further intimated that the
respondent would sign the deed if the applicant was not averse to the
amendments.
The applicant further says that her attorney amended the
deed as suggested by the respondent’s counsel. Following which
she
signed the deed on 13 February 2019 whereas the respondent did so
on 26 February 2019 and the divorce was finalised on an unopposed
basis on 01 March 2019.
[17]
The respondent was ably represented by senior counsel and an attorney
during the settlement negotiations.
In his replication he did
not admit or deny the history and progress with regard to the
settlement negotiations as sketched by
the applicant. He simply
contended that the settlement negotiations were conducted on a
without prejudice basis and that it was
inappropriate for the
applicant to rehearse the contents and the progress or history of the
negotiations without his consent.
[18] It
is trite that a statement made by a party involved in a dispute which
is genuinely aimed at achieving
a compromise is protected from
disclosure. These statements are usually marked 'without prejudice'
and can only be accepted into
evidence with the consent of both
parties. However, ‘without prejudice’ privilege is
not a blanket privilege.
It is subject to certain exceptions. In the context of this case the
views expressed by
James
JP i
n
Gcabashe
v Nene
[8]
,
which
I adopt, are apposite:
"Negotiations
conducted without prejudice are, of course, designed to
resolve disputes between the parties and if
the negotiations result
in a settlement then logically evidence about the settlement and the
negotiations leading up to it should
be available to the trial Court
because the whole basis of non-disclosure has fallen away."
[19]
I strain to find that the history of the negotiations leading up to
and giving rise to a settlement
agreement is inadmissible in the
circumstances where this serves to establish whether there had been a
common mistake between the
parties. I accept that the applicant fully
substantiated, by setting out the background to the negotiations
which had been confirmed
by her attorney in his supporting affidavit,
that she did not labour under any mistake let alone one common to the
parties. It
seems to me that the
error, if any,
was that of the respondent alone. However, it does not end here
because core
to the respondent’s argument is that the
parties acted under a material error of law and beyond their powers
as trustees which
renders the deed of settlement unenforceable. I now
turn to consider whether clause 2.1 and 2.2.9 of the deed of
settlement violates
s 12 of the TPCA and clause 5.1.1.1, 5.1.1.2 and
7.7.1 of the trust deed.
[20] In
Badenhorst
v Badenhorst
[9]
,
the appellant sought that the court, in awarding a redistribution of
assets order in terms of s 7 of the Divorce Act 70 of
1979 (the
Divorce Act) considers
the assets of an
inter
vivos
trust
in addition to the respondent's personal estate on the basis that the
trust was the respondent's (trustee's) alter ego.
The crisp question
there arising was whether, when making a redistribution order in
terms of
s 7(3)
of the
Divorce Act, the
assets of an
inter
vivos
discretionary
trust created during the marriage must be taken into account. The
court held:
“
[9]
The mere fact that the assets vested in the trustees and did not form
part of the respondent's estate does not
per
se
exclude them from consideration
when determining what must be taken into account when making a
redistribution order. A trust
is administered and controlled by
trustees, much as the affairs of a close corporation are controlled
by its members and a
company by its shareholders. To succeed in a
claim that trust assets be included in the estate of one of the
parties to a marriage
there needs to be evidence that such party
controlled the trust and but for the trust would have acquired
and owned the assets
in his own name. Control must be
de
facto
and not necessarily
de
iure
. A nominee of a sole shareholder
may have
de iure
control
of the affairs of the company but the
de
facto
control rests with the
shareholder.
De iure
control
of a trust is in the hands of the trustees but very often the founder
in business or family trusts appoints close
relatives or friends who
are either supine or do the bidding of their appointer.
De
facto
the founder controls the
trust. To determine whether a party has such control it is necessary
to first have regard to
the terms of the trust deed, and secondly to
consider the evidence of how the affairs of the trust were conducted
during the marriage.”
[21]
In
Badenhorst
the
SCA concluded that the
value
of the trust assets should have been added to the value of the
respondent's estate. It also
referred
to some decisions of the High Court where the
question
of whether the trust assets can be taken into account in
redistribution orders had received attention and was answered
affirmatively. In
WT
And Others v KT,
[10]
the SCA did not extend the principles laid down in
Badenhorst
to the division of joint estate in marriages concluded in community
of property. It distinguished
Badenhorst
on the basis that the latter case related to the determination of a
redistribution of assets in terms of
s 7(3)
of the
Divorce Act for
a
marriage out of community of property. In its later decision in
REM
v VM,
[11]
the SCA said:
“
. . .A claim lies
against the trust, or the errant trustee, on the basis that the
unconscionable abuse of the trust form by the
trustee, in his or her
administration of the trust, through fraud, dishonesty or an
improper purpose prejudices the enforcement
of the obligation owed to
the third party, or a spouse. The respondent had to prove that
the appellant transferred personal
assets to these trusts and dealt
with them as if they were assets of these trusts with the fraudulent
or dishonest purpose of avoiding
his obligation to properly account
to the respondent for the accrual of his estate and thereby
evade payment of what was due
to the respondent, in accordance with
her accrual claim. If established, a declaration could be made that
the trust assets in question
are to be used to calculate the accrual
of the appellant's estate, as well as satisfy any personal liability
of the appellant to
make payment to the respondent.”
[22]
With regard to
s 12
of the TPCA, it was held in
REM
v VM
(supra) that where the trust form is 'debased' justice dictates
'that the veneer of the trust be pierced in the interests
of
creditors' and by parity of reasoning, ‘unconscionable abuse of
the trust form through fraud, dishonesty or an improper
purpose will
justify looking behind the trust form’. The ambit of a
claim of this nature must be considered with due
cognisance of the
provisions of the Trust Property Control Act 57 of 1988 including s
12.
[12]
This entails ignoring
the trust’s separate existence momentarily and for the limited
purpose of providing an equitable
remedy to the victim of trust
abuse. More importantly, the Court’s power to pierce the
trust form is not based on the
authority of the MPA or in the
exercise of a statutory discretion, but on the basis that a factual
enquiry has revealed trust-form
abuse, upon which the piercing of the
trust veneer follows.
[13]
[23]
What the above authorities illustrate is that clauses 2.1 and 2.2.9
of the deed of settlement cannot be said
to be offending s 12 of the
TPCA to the extent that they provide that the trust’s assets be
considered as part of the respondent’s
assets for the purposes
of determining the accrual. Neither does the deed of settlement
offends against clause 5.1.1.1, 5.1.1.2
and 7.7.1 of the trust deed.
What must be established casuistically is whether the trustees acted
in an unconscionable manner in
handling the affairs of the trust in
order for the Court to give an equitable remedy to the victim of
trust abuse.
[24] In
the main application the applicant barely touched on the subject that
the respondent abused the trust
form understandably because the
nature of the application did not require that exposition. However,
the allegation that the respondent
abused the trust form surfaced
slightly in the papers. In her answering affidavit in the
counter-application the applicant states
that the respondent treated
the trust as his
alter ego
throughout their marriage contrary
to the provisions of the trust deed. In the Rule 43 application,
attached to her answering affidavit,
she intimated that the
respondent did not involve her in any decision concerning the trust.
To this end, she referenced some examples.
[25]
The respondent countered that the allegation that he treated the
trust as his alter ego was not averred in
the Particulars of Claim
and no finding in this regard had been made by Coetzee AJ when he
dissolved the marriage between the parties
and incorporating the deed
of settlement to the decree of divorce. It was argued that Coetzee AJ
therefore erred to the extent
that he made the settlement agreement
an order of the Court which provided that the trust’s assets be
considered for the
purposes of determining his accrual. The
respondent further maintained that the rule 43 application is not
part of the pleadings
but a discreet proceedings ancillary to and
distinct from the main action and that the affidavits filed in that
application are
not normally read into the record in the main
proceedings. He did not reply to the allegation contained in the rule
43 application
because the matter became settled.
[26]
In my view, it is not necessary to determine whether there had been
in this case unconscionable abuse
of the trust form. This is so
because all the disputes between the parties were settled. On the
respondent’s own version
“during the settlement
negotiation”, prior to the dissolution of the marriage, the
applicant and her legal representatives
for the first time demanded
that the trust assets be deemed to be the assets in his estate for
purposes of determining the accrual
during the subsistence of the
marriage “claiming” that the trust was the respondent’s
“
alter ego
”. He then stated in para 18:
“
At the time the
animosity generated by the litigation which was dragging on forever
and was then in its third year had exhausted
me mentally and
physically and I believe there was similarly an urgency on the part
of the applicant to settle as she wanted to
move on with her life and
remarry and we settled on this basis- namely that the trust assets
would be deemed to be part of my estate
for the purposes of the
determination of the accrual thereof during the subsistence of the
marriage.”
At
para 19 he further states:
“
This is captured
in the Deed of Settlement which was made an order of Court as part of
the order dissolving the marriage between
myself and the applicant on
1 March 2019.”
[27]
This unequivocally shows that the parties have freely, voluntarily
and in full knowledge of their rights agreed
to settle the
divorce on the basis, inter alia, that the trust’s assets would
be deemed to be part of the respondent estate
for the purposes of the
determination of the accrual. I have already determined that there
was nothing unlawful in the parties
reaching such a compromise,
particularly in the context of some discussions between them
suggestive that one of the trustees abused
the trust form. The deed
of settlement has a non-variation clause. As a matter of policy, such
a clause should in principle be
recognised as enforceable.
[14]
[28] To
borrow from Innes CJ in
Burger
v Central South African Railways
[15]
:
“It is a sound principle of law that a man, when he signs a
contract, is taken to be bound by the ordinary meaning and effect
of
the words which appear over his signature. There are, of course,
grounds upon which he may repudiate a document to which he
had put
his hand.” No such grounds were established by the respondent,
either on account of
justus
error
or common mistake, or a patent error as contemplated in terms of Rule
42(1)
(b)
and (c)
.
It follows that the point taken must fail.
[29]
The second point in limine is to the effect that there is no
allegation in the Particulars of Claim that the trust’s
assets
had to be considered for purposes of determining the accrual in the
parties’ respective estates or that they be deemed
to be part
of the respondent’s estate nor is there any reference in the
pleadings to the trust or its assets or the ownership
thereof. Put
otherwise, it was argued that the applicant never prayed in her
pleadings for the Court to pierce the trust form and
order that the
value of its assets be taken into account in the calculation of the
accrual in his estate. Accordingly, so it was
argued, no evidence was
placed before Coetzee AJ to make such a determination and
consequently the decree of divorce incorporating
the deed of
settlement was incompetent. It was argued that the deed of
settlement, insofar as it travelled beyond the pleadings,
is
incompetent to be made an order of the court and ought not to have
been incorporated into the decree of divorce.
[30]
The second preliminary point ought not to be discussed at any great
length as decisions of the Constitutional
Court in
Eke
v Parsons
[16]
and
that of the SCA in
Road
Accident Fund v Taylor and related matters
[17]
are dispositive of it. In
Taylor,
[18]
the SCA held:
“
Importantly,
however, the judgment [
Eke v Parsons
] makes clear. . . that
the power to make a compromise an order of court is derived from a
long-standing practice aimed at assisting
the parties to give effect
to their compromise. The clear import of
Eke v
Parsons
therefore is that this power is not derived from the
jurisdiction of the court over the issues that had been raised before
it but were subsequently settled. In making a compromise an order of
court, the court plainly does not determine the issues that
the
compromise settled. Unless a compromise is conditional upon it being
made an order of court, the fact that a court declines
to do so, in
itself, has no effect on the enforceability of the compromise inter
partes.”
And further at para 51:
“
To sum up, when
the parties to litigation confirm that they have reached a
compromise,
a court has no power or jurisdiction to embark upon an
enquiry as to whether the compromise was justified on the merits of
the matter
or was validly concluded
. When a court is asked to
make a settlement agreement an order of court, it has the power to do
so. The exercise of this power
essentially requires a determination
of whether it would be appropriate to incorporate the terms of the
compromise into an order
of court.” (My emphasis)
[31]
The applicant stated that, during the settlement negotiation on 19
October 2018, her attorney notified the
respondent’s legal team
that he held instructions to amend the Particulars of Claim by
including an averment to the effect
that the trust assets be
considered as part of the respondent’s assets for purposes of
determining the accrual in his estate.
To avoid further litigation
and concomitant costs the divorce was settled. The respondent does
not recall whether such discussion
ever took place and persist that
an amendment was never applied for. That the Particulars of Claim
were silent with regard to the
trust’s assets is of no moment
in light of the decision in
Taylor
. Accordingly, the point
taken must falter.
[32]
With regard to the third preliminary point, it was argued that the
main application is premature because,
in terms of clause 2.5 of the
deed of settlement, the applicant was not entitled to bring the
application to have the award made
an order of the court until she
had resigned as a trustee. It was contended that resignation as a
trustee must comply with clause
7.3.1.1. of the trust deed which is
to the effect that a written notice of resignation be forwarded to
the board of trustees, which
the applicant did not do. The
applicant’s resignation was in the form of an e-mail sent to
her attorney who in turn
sent a letter to the respondent’s
attorney pointing to her resignation. It was argued that to the
extent that the e-mail
was not addressed to the board nor signed by
the applicant, the resignation is defective for lack of compliance
with the requirement
of the trust deed.
[33]
The trust deed does not provide that a written resignation be signed
albeit it would be preferable that it
be signed. At no stage,
following receipt of the resignation did the respondent protest that
the resignation was invalid. It took
the respondent almost two years
to record his remonstrations when he filed his opposing papers to the
main application. There is
no allegation that the applicant took part
in the administration of the trust following her resignation. Form
cannot be allowed
to trump substance. I am satisfied that the
resignation conforms with the provisions of clause 7.3.1.1 of the
deed of trust. The
point taken is devoid of any merit.
[34] On
the aforegoing analysis, the applicant made out a case for the Award
by Mr Heyns to be made an order of
this Court.
[35] Finally, with
regard to his counter-application, the respondent similarly contended
that clauses 2.1 and 2.2.9 of the
deed of settlement and their
incorporation into the decree of divorce constituted a patent error
as contemplated in rule 42(1)
(b
) and a mistake common to
the parties as envisaged in rule 42(1)
(c)
which would entitle
this Court to vary the decree of divorce by excising the said
offending clauses or part thereof from the deed
of settlement and the
calculations as contained in Mr Heyns’s award which are based
on them. The argument in the counter-application
attracts similar
reasoning as in the principal application. It follows that the
counter-application must be dismissed. Costs shall
follow the result
in both applications. An order is therefore made.
Order:
1.
The final award of Mr André Heyns, dated 30 July 2021, in
respect of the determination
of the accrual in the applicant and
respondent’s respective estates and attached to the applicant’s
founding affidavit
as Annexure “C”, is made an order of
this Court.
2.
The respondent is ordered to pay R3 311 897.00 to the applicant
in respect of the applicant’s
accrual claim against the
respondent in terms of the provisions
of Chapter 1 of the
Matrimonial Property Act 88 of 1984
.
3.
The respondent is to pay the cost of the main application on
party
and party High Court scale, which costs shall include the fees of a
senior-junior counsel on scale B in terms of Rule 67A
of the Uniform
Rules of this Court.
4.
The respondent’s counter application is
dismissed with costs, such costs to be on party and party High Court
scale and shall
include the fees of senior-junior counsel on scale B
in terms of Rule 67A of the Uniform Rules of this Court.
_____________________
PHATSHOANE DJP
For the
applicant:
Adv AS Sieberhagen
Instructed
by:
PGMO Attorneys, Kimberley.
For the
respondent:
Adv A Eillert
Instructed
by:
Adrian B Horwitz & Associates, Kimberley.
[1]
As translated.
[2]
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
1996
(4) SA 411
(C) at 417C.
[3]
Gcasamba
v Mercedes-Benz Financial Services SA (Pty) Ltd
2023
(1) SA 141
(FB) para 29;
Roopnarain
v Kamalapathy and Another
1971 (3) SA 387
(D) at 391F-G.
[4]
See
Louis
Pasteur Holdings (Pty) Ltd and Others v ABSA Bank Ltd and Others
2019 (3) SA 97
(SCA) para 33;
Democratic
Alliance and Others v Acting National Director of Public
Prosecutions and Others
2012 (3) SA 486
(SCA); ([2012]
2 All SA 345
;
2012 (6) BCLR 613
;
[2012] ZASCA 15)
para 49.
[5]
2021
(11) BCLR 1263
(CC) para 98.
[6]
Tshivhase
Royal Council v Tshivhase
[1992] ZASCA 185
;
1992
(4) SA 852
(A) at 863A-C.
[7]
DE van Loggerenberg
Erasmus:
Superior Court Practice
- (Jutastat e-publications: Commentary under rule 42)- RS 23, 2024,
D1 Rule 42-30.
[8]
1975 (3) SA 912(D)
[9]
2006 (2) SA 255
(SCA).
[10]
2015 (3) SA 574 (SCA)
[11]
2017 (3) SA 371
(SCA) para 20.
[12]
Ibid
para
19.
[13]
PAF v
SCF
2022 (6)
SA 162 (SCA) at para 36.
[14]
SA
Sentrale Ko
-
op
Graanmaatskappy Bpk v Shifren en Andere
1964
(4) SA 760 (A).
[15]
Burger
v Central South African Railways
,
1903 T.S. 571
at 578 approved in
George
v Fairmead (Pty) Ltd
1958 (2) SA 465
(SCA) at 470B – E.
[16]
2016 (3) SA 37 (CC); (2015 (11) BCLR 1319; [2015] ZACC 30).
[17]
2023 (5) SA 147 (SCA).
[18]
Ibid
para 42.