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
GAUTENG DIVISION, PRETORIA
Case No. 078368 / 2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 4 February 2025
SIGNATURE
In the matter between:
J[...] R[...]
APPLICANT
and
L[...] R[...]
RESPONDENT
JUDGMENT
NEUKIRCHER J
[1] On 16 July 2024 the present applicant launched an urgent Rule 45A
application against the first respondent and the Sheriff, Pretoria East. The application
was set down for hearing on 30 July 2024. The amended Notice of Motion1 sought
the following relief:
1 Dated 25 July 2024
“1. That the matter be heard as one of urgency in terms of Rule 6(12), the
requirements of the Rules of Court in respect of notice and service being
dispensed with and the applicants’ departure therefrom are condoned;
2. That the warrant of execution under case number 113220/2023, dated 2
July 2024, be and is hereby suspended;
3. That the attachment of the applicant’s movable property identified in the
notice of attachment in execution under case number 113220/2023,
dated 3 July 2024, be set aside consequent to 2 supra;
4. That:
4.1 Paragraph 7 of the order under case number 113220/2023, made
by Neukircher J on 5 February 2024 be and is hereby suspended;
and
4.2 Any and all right to execution, or ongoing execution of the above
paragraph of the order be and is hereby suspended; and
4.3 The order as per 4.1 and 4.2 supra be made pending the outcome
(inclusive of any appeal processes and/or settlement thereof) of the
action instituted by the applicant under case number 2024 -073340;
and
4.4 Should the parties fail to prosecute the action under case number
2024 -073340, the order as per 4.1 and 4.2 supra is automatically
discharged …”
[2] The application did not fare well – it was struck from the roll due to a lack of
urgency.
[3] The application was then set down for hearing on the ordinary Family Court
roll. In effect, what the applica nt seeks to do is to suspend the balance of an accrual
payment2 - which is over-due to the first respondent (the respondent) - pending the
finalization of an action which he has now instituted against her. It is common cause
that the action was launched on 3 July 2024 under case no 07334/2024 in this
division.
2 An amount of R1 009 700-50 (the R1 million)
[4] It is also common cause that when the applica nt failed/refused to pay the R1
million to the respondent, her attorneys (Adams & Adams) caused a Writ of
Execution (the Writ) to be issued on 2 July 2024 and it was serve d. It is this Writ that
applicant seeks to suspend in terms of Rule 45A.
[5] Rule 45A states:
“The court may, on application, suspend the operation and execution of any
order for such period as it may deem fit: Provided that in the case of an
appeal, such suspension is in compliance with section 18 of the Act.”
[6] When considering the Rule 45A application, it is useful to bear in mind a few
facts:
a) the parties were involved in divorce proceedings in this court under case
number 113220/23;
b) after much to-ing and fro-ing they eventually signed a settlement
agreement (the Settlement) on 29 September 2023;
c) the unopposed divorce action was set down for hearing before me on 5
February 2024, after the Notice of Set Down had been served on
applicant via email. Importantly, applicant does not deny any of this;
d) I granted the decree of divorce incorporating the Settlement.
[7] In broad terms, the Settlement makes provision for:
a) primary care and residence of and contact with the parties’ three minor
children;
b) medi ation and dispute resolution in regards of the children;
c) maintenance for the children ;
d) the division of assets.
[8] Whilst the applica nt initially took issue with the entire settlement, in his
replying affidavit he conceded that the most contentious clause was Clause 7 which
reads:
“CASH PAYMENT
7.1 The Defendant shall pay a sum of R1 859 700.50 (ONE MILLION
EIGHT HUNDRED AND FIFTY NINE THOUSAND AND SEVEN
HUNDRED RAND AND FIFTY CENTS) (“the Settlement Amount”) to
the Plaintiff within 60 days.
7.2 The payment referred to in paragraph 7.1 shall be made by the
Defendant to the Plaintiff together with the further benefits and assets
provided for in this agreement, free of deduction and set-off, in full and
final settlement of all and any claims that the Plaintiff has in terms of
the parties’ marital regime and any other cause of action, if any.”
[9] Thus, it is common cause that according to the Settlement the applica nt was
to pay to respondent R1 859 700-50 on or before 4 April 2024 , of which he had
already paid to R850 000 to her prior to the divorce being granted. Thus, as at date
of divorce, the amount due and payable was R1 009 700-50.
[10] The applicant attempt s to string his bow with an argument that, as only the
amount of R1 009 700-50 was owing when the divorce order was granted, and that
the order fails to record this, this vitiates the order. But this argument is untenable
and must be rejected: obviously any amount now payable to the respondent must
take into account any payments already made. The fact that the Writ of Execution is
in the amount of R1 009 700-50 clearly indicates that this is what occurred.
[11] But the applicant ’s main attack is that the amount of R1 859 700-50
represents the accrual payable to the respondent in full settlement of the division of
the parties ’ patrimonial benefits . He alleges :
a) that the Settlement was erroneously alternatively fraudulently made an
order on 5 February 2024 in that:
(i) the amount of R1 859 700-50 was derived from an accrual
calculat ion done by an independent third party ;
(ii) the parties believed this calculation to be accurate ;
(iii) the calculation was materially flawed alternatively did not constitute
a valid and lawful calculation ;
(iv) the Settlement therefore did not reflect the “common and
continuing intention of the parties ”;
(v) “[u]pon Becoming aware of the consequences of the above
mentioned and having obtained advi(c)e from my legal
representatives on the recourse available to me, I requested the
respondent not to employ any execution steps in relation to the
order against me until I have applied to vary or rectify settlement
agreement ”.
[12] What is interesting about this matter is that the respondent was perfectly
content to agree to settle and pay the respondent R1 859 700-50, perfectly content
to sign the Settlement3, perfectly content to pay respondent R850 000 in November
2023 and perfectly content to have the Settlement made an order of court four-and-
a-half months later. It is also important to note that at all stages, the applicant was
properly represented.
[13] It is clear however, that it was when he realized that he would have to pay the
respondent the remaining R1 million that the shoe began to pinch. On 12 April 2024,
a week after the balance of the money was to be paid, his attorney (FVS)
approached Adams and Adams seeking to stay any execution processes “until such
time that we can provide you with our clients instructions pertaining to the terms of
the settlement agreement... ”. Unsurprisingly , the request was refused .
[14] On 8 May 2024 FVS sought another undertaking not to enforce payment - this
time pending an application for rectification. It took FVS another month to explain to
Adams and Adams that the reason for the request was that the applicant disputed
the accrual calculation .
[15] What stands out in all of this is that, despite this alleged dispute, it is only the
monetary payment that was, and is, disputed by the applicant :
a) there is no dispute regarding the division of the movable property or that
each party would “retain any and all additional assets of whatsoever
3 The settlement of 29 September 2023 was not the first draft signed by the applicant - but in the
previous draft signed by him also included precisely the same amount.
nature currently registered or held in their respective names and/or
under their control - as the sole and exclusive property, including but not
limited to vehicles, investments, shares, retirement annuities and
pension funds, if any”;
b) nor is there a dispute regarding the transfer of the immovable property
into the applicant's name against payment of an amount of R1 231 032-
00.
[16] But lest it be assumed that the latter amount was paid to the respondent plus
an additional amount of R1 850 000-00, the voice note sent to the respondent on
23 April 2024 says differently. In this, he states that the respondent should have
been paid R1 800 000-00 for her share in the joint property, despite the Settlement
stating otherwise.
[17] In any event, in the event that the applicant seeks a recalculation of the
accrual, at the very least he should have tendered restitution - he does not.
[18] In my view, the applicant attempts to make out a case for the grant of the Rule
45A in three distinct documents :
a) his founding affidavit ;
b) his replying affidavit where he material ly amends his case ; and
c) his particulars of claim in the action instituted under case number
073340 /2024 on 3 July 2024 .
[19] I have already outlined the thrust of the allegations in the founding affidavit. In
essence the applica nt alleges that:
a) he became aware of the “legal flaws ” in the accrual calculation in June
2024 “in response to legal advice in relation thereto ”;
b) that he consulted regarding “the possible routes to rectification over a
period of time”;
c) that an accrual calculation by an entity known as PAS was used and this
calculation contained several errors in the values placed on certain
assets - for example the movables were valued at R1 000 000-00 but the
sheriff valued the same at R25 010-00;
d) that he had already voiced his disquiet over the valuations prior to
signing the Settlement ;
e) that the parties should “approach a professional to recalculate the
accrual payable herein and that the cost associated with employing said
professional be split equally between the parties ” and
f) once the calculation is completed the applicant will approach a court for
variation “with the respondents consent”.
[20] The applicant’s argument that the accrual was calculated incorrectly is that:
a) the parties agreed to exclude their respective business interests (that is
the respondent’s medical practice and the applicant’s shares in his
business ), but he was informed in July 2024 that assets cannot be
excluded from the accrual calculation except by ante-nuptial or post-
nuptial contract that is duly registered and notarized4;
b) the parties, impermissibly, agreed to exclude their timeshare ;
c) the parties agreed to value their household content at R1 million each
whereas the sheriff clearly shows his assets were valued considerably
lower ;
d) the values utilised were based on estimates which is “not a proposition
good in law”;
e) the values utilised to calculate the accrual were all obtained / agree d
prior to dissolution of the marriage which is directly contrary to the
correct and lawful position in terms of both statute and authority by the
Court5.
[21] Given the allegedly “fatally flawed ” calculation, the applicant alleges “that the
inclusion of the amount6 leads to a grave injustice in that it ostensibly entitles the
respondent to an amount she should not lawfully be entitled to…” He thus alleges
that the Settlement should be varied or rectified.
4 In my view this advice is incorrect: parties can agree to any financial settlement irrespective of what
the actual values of their respective estates are
5 The applicant cites the decision of AB v JB 2016 (5) SA 211 (SCA) as support for this allegation
6 Ie in the Settlement
[22] As a sweetener , the applicant then tenders to transfer an amount of R1 000
000 into FVS's trust account as security pending the finalization of the action . He
alleges that there can therefore be no prejudice to the respondent.
[23] He finally alleges that it is necessary to institute the action “so that the
settlement agreement reflects the parties’ true intentions ”.
[24] The particulars of claim are not exactly a model of clarity - this much was
conceded by Mr Alberts7 during his reply. He also conceded that the particulars of
claim does not make out a case for rectification. In fact, he conceded that “it would
have been ideal ” to plead rectification.
[25] What is ultimately sought in the particulars of claim is:
a) a rescission of clauses 7.9 and 10.1 of the Settlement8;
b) the determination of the patrimonial consequences of the marriage be
referred for determination in a trial de novo “which trial may be instituted
in any regional court with jurisdiction ”;
c) alternatively that clause 7 be rescinded ;
d) alternatively the clause 7 be severed or struck therefrom and/or be
declared to be invalid ;
e) that the parties be ordered to approach an independent expert with
experience in accrua l calculation to calculate the accrual ;
f) alternatively the patrimonial consequences being referred to court to be
determined de novo once the appropriate valuations of the parties ’
various assets have been done.
The respondent has filed an exception to the particulars of claim.
[26] The test to establish a prima facie right, even if open to come doubt, in
proceedings in which an interim interdict is sought9 and those in which an
7 For applicant
8 As the argument in regard of clauses 9 and 10. 1 was abandoned in argument before me, I do not
intend to deal with them
exception10 is filed are not the same . Therefore any opinion expressed herein is not
binding on a court adjudicating the exception in due course.
[27] The applicant has also concede d that the present application falls to be
adjudicated on the principles a court considers when grant ing an interim interdict in
general :
a) the applicant must establish a prima facie right, if open to some doubt;11
b) there must be a well-grounded apprehension of imminent harm;
c) the balance of convenience must fall in his favour; and
d) he must have no other suitable remedy12.
[28] It must be borne in mind that an interim interdict is a provisional order
designed to protect the rights of the complainant party pending an action or
application to establish the respective rights of the parties. It does not determine the
final determination of the rights of the parties .13
[29] Bearing this in mind I turn to the requirements for the relief sought by the
applicant.
Prima facie case
9 Webster v Mitchell at 1189 ; the qualification added in and Gool v Minister of Justice & Another 1955
(2) SA 682 (C) at 688 B -E: “With great deference, I venture to think that in some of these decisions
insufficient weight was accorded to the use of the word 'established' by INNES, C.J., in the now
classical phrase . . . 'where the right asserted by the applicant, though prima facie established, is
open to some doubt'. In granting the rule nisi in the present case HERBSTEIN, J., adopted and
applied the views expressed by CLAYDEN, J., in Webster v Mitchell, supra , the head -note of which
reads as follows:
'In an application for a temporary interdict, applicant's right need not be shown by a balance of
probabilities; it is sufficient if such right is prima facie established, though open to some doubt. The
proper manner of approach is to take the facts as set out by the applicant together with any facts set
out by the respondent which applicant cannot dispute and to consider whether, having regard to the
inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in
contradiction by respondent should then be considered, and if serious doubt is thrown upon the case
of applicant he could not succeed.' ”
10 A pleading must be set out in an intelligible and lucid form which allows the defendant to plead to it
(Herbstein and Van Winsen … 5th Ed, 2009 ch 22 – p 635 ); Factory Investments (Pty) Ltd v Record
Industries Ltd 1957 (2) SA 306 (T) at p310
11 Ferreira v Levin NO; Vryenhoek v Powell NO 1995 (2) SA 813 (W) at 817I – 818B, 824 I -J.
12 Setlogelo v Setlogelo 1914 AD 221 ; Webster v Mitchell 1948 (1) SA 1186 (WHD)
13 Airoadexpress (Pty) Ltd v Chairman Local Road Transportation Board, Durban, and Others 1986
(2) SA 663 (A) at 681 D -F
[30] According to the applicant, his prima facie right is founded on the “right in law
not to be subject to a continuing injustice and/or unlawfully obtained court order ”, and
that he has “the right to have the proprietary consequences of my marriage be
determined in a manner that is consistent with the prescripts of the law (both in terms
of the Divorce Act and other legislation and the various divisions of the High Court,
Supreme Court of Appeal and Constitutional Court on the subject, which position and
the respondent should have been advised of).”
[31] In founding this “right”, the applicant relies on the allegations set out in
paragraph 19 and 20 supra and various WhatsApp and e-mail conversation s that
took place between the parties between June 2023 and September 2023 , and the
discussions between the parties regarding the calculation of the accrual. However,
whatever these were and whatever confus ion applicant alleges there was vis-à-vis
the calculation , the following facts cannot be ignored :
a) the applicant was legally represented ;
b) he signed two Settlement agreements , both of which contained the same
accrual amount ;
c) if he was dissatisfied with the accrual calculation, nothing prevented him
from appointing his own expert to do the calculation ;
d) he was notified of the date of hearing and failed to act.
[32] But even more puzzling is that fact that a year after signing the Settlement,
and months after the divorce order was granted and after this dispute was raised , the
applicant has still failed to get out of the blocks and has abjectly failed to provide this
court with even a rudimentary calculation of what he says the accrual is14.
[33] The remedy utilised by the applicant in these proceedings is rectification but it
is very apparent, and was conceded, that this is not the case made out by him in the
pending action15. Given that this discrepancy was pointed out to the applicant by the
14 GJW v LW (2023 -114308) [2024] ZAGPPHC 823 (8 August 2024)
15 The principle is the following :
… it is clear that the remedy of rectification is not one which easily lends itself to a fallback position by
way of afterthought. It is a settled principle that a party who seeks rectification must show facts
respondent as far back as 24 July 2024 when the answering affidavit was filed - and
the respondent has filed an exception to the particulars of claim - it is somewhat
puzzling that the applicant ’s two cases remain at odds with each other. In my view,
this is fatal to the issue of whether the applicant has managed to establish a prima
facie right.
[34] But applicant ’s argument vis-à-vis his alleged prima facie right goes further :
he specifically argues that “[a] double -barrelled approach is often favoured whereby
first a decree of divorce then a computation of the accrual is sought in the action, it is
however not valid in law to make the calculation before dissolution”.
[35] For this submission, the applicant relies on AB v JB16. But in my view, the
applicant has misconstrued the judgment. In AB v JB, the SCA found that the line of
authorities17 which held that the date for determination of accrual is at litis contestatio
rather than at the dissolution of the marriage were wrongly decided.18
[36] In my view, and given the above, the values of the parties ’ respective estates
are to be placed before the court in a divorce action so that at the time of the decree
of divorce is granted, the court then determines the division of the accrual. The
manner in which this is done is either via an agreement regarding the values, or the
appointment of experts who opine on the values. Either is permissible. The fact that
the values are obtained prior to trial does not make them invalid.
[37] In any event, this application is so replete with contradictions as well as a lack
of either specificity or essential allegation s that it fails to even begin to found the
applicant’s prima facie right. Thus, the applicant’s argument is rejected.
[38] Furthermore, the applicant entered into the Settlement which contain s a non-
variation clause. It states:
entitling him to that relief ‘in the clearest and most satisfactory manner ’ – Soil Fumigation Services
Lowveld CC v Chemfit Technical Products (Pty) Ltd 2004 (6) SA 29 (SCA) paragraph 21 at 38I – 39A.
16 2016 (5) SA 211 (SCA)
17 MB v NB 2010 (3) SA 220 (GSJ) ; MB v DB 2013 (6) SA 86 (KZD) ; KS v MS 2010 (1) SA 6 (KZD)
18 AB v JB paragraph 20
“This agreement constitutes the full and final settlement of any and all of the
issues arising out of the divorce action, save and accept that which is
contained herein before, and neither party shall have any further claims
against the other party whatsoever.”
[39] In SH v GF19 the SCA stated:
“[16] In any event the view of Kollapen AJ that in the light of the oral
agreement of variation of the maintenance order it would offend against
public policy to enforce the non -variation clause, cannot be endorsed. This
court has for decades confirmed that the validity of a non -variation clause
such as the one in question is itself based on considerations of public policy,
and this is now rooted in the Constitution. See SA Sentrale Ko -op
Graanmaatskappy Bpk v Shifren en Andere 1964 (4) SA 760 (A) at 767A –
and Brisley v Drotsky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3
All SA 363) paras 7, 8, 90 and 91. Despite the disavowal by the learned
judge, the policy considerations that he relied upon are precisely those that
were weighed up in Shifren . In Media 24 Ltd and Others v SA Taxi
Securitisation (Pty) Ltd (AVUSA Media Ltd and Others as Amici Curiae) 2011
(5) SA 329 (SCA) para 35 Brand JA said:
'As explained in Brisley v Drotsky 2002 (4) SA 1 (SCA) (para 8), when this
court has taken a policy decision, we cannot change it just because we would
have decided the matter differently. We must live with that policy decision,
bearing in mind that litigants and legal practitioners have arranged their
affairs in accordance with that decision. Unless we are therefore satisfied that
there are good reasons for change, we should confirm the status quo.”
[40] In general the parol evidence rule is strictly applied . This would operate to
exclude evidence of negotiations and the intention of the parties prior to the
conclusion of the settlement . Rectification is the only way to override this
19 2013 (6) SA 621 (SCA) paragraph 16 ; Also PL v YL 2013 (6) SA 28 (ECG) at 53C – 55D
impediment20. But, as stated, this would assume that the particulars of claim
contains a claim for rectification - it does not. Instead, the relief is for rescission or a
setting aside or a striking out of declarations of invalidity , and that a trial be
concluded de novo .
[41] But no matter the construction, the applicant simply fails to make out a case to
overcome the very first hurdle for the relief he seeks .
[42] However, the SCA has put this entire issue to bed. In Botha v Botha21 the
court stated :
“[13] On the facts of this case, there was no misrepresentation by the
appellant. There were protracted negotiations between the parties which led
to a settlement agreement. In consultation with his legal representatives, the
respondent signed the settlement agreement which was made an order of
court. The fact that several months later he had a change of heart and
believed that he had overpaid his former wife does not translate into a mistake
common to the parties. Even if he genuinely believed that the calculations
were incorrect and that he should not have accepted the advice of his legal
representatives, this does not qualify as a justus error. If the mistake is due to
that party’s own fault, the error cannot be said to be justus and the mistaken
party cannot escape liability for the agreement that he signed. At best for the
respondent, this is a unilateral error. It does not lay the basis for a claim for
the variation of the settlement agreement on the grounds of a common
mistake.
[43] The facts of this case and that of Botha v Botha are virtually identical . As a
result, it puts an end to any argument on the issue of a prima facie right issue.
Irreparable Harm
[44] Insofar as it is necessary to discuss the other elements that found the grant of
20 Tesven CC v SA Bank of Athens 2000 (1) SA 268 (SCA)
21 (259/2023) [2024 ZASCA 116 (24 July 2024)
an interim interdict, I am in any event of the view that the applicant has failed
to make out a case.
[45] The applicant states that the irreparable harm lies therein that he faces what
he terms “the very real and imminent risk” that his movables will be sold in execution
which will prejudic e him and the children and that, given that the sheriff's valuation
was lower than the amount sought, the respondent will sell his immovable property.
[46] He also adds that the nulla bona return of service renders him susceptible to
sequestration and that he will need to bring a damages claim against the respondent
which will subject him to further legal costs “and years of litigation ".
[47] But the applicant ’s case on this issue is also an ever evolving one: on 7
October 2024 the applicant filed a supplementary affidavit which essentially
confirmed that he had paid an amount of R1 009 700-50 into FVS’s Trust account ,
that he entered into a deed of cession in terms of which he agreed to grant security
in that amount for the indebtedness and that ceded his rights to said security to FVS
pending the outcome of the action proceedings under case number 073340 /2024 .
[48] In my view, given that this amount is being held by the applicant's attorneys
means that there is no irreparable harm to him at all: were the applicant to fail in this
applica tion, he clearly has sufficient means to discharge his debt to the respondent.
[49] The fact that any damages claim , which he may potentially institute against
the respondent, may take time to resolve is also not a reason to grant this application
- the applicant will be in the same position that thousands of litigants are. In any
event, at this stage the respondent has a judgment in her favor and in my view any
irreparable harm that exists is hers, especially given that the applicant not only is in
possession of the immovable property, but also the R1 million he was legally
obligated to pay her months ago.
Balance of convenience
[50] Given the above, the balance of convenience does not favour the applicant .
[51] The applicant alleges in his replying affidavit that the respondent “is a
successful medical practitioner and does not need the money, nor does she attempt
to make a case that she is in need of money.”
[52] This allegation is astounding – it exhibits a clear indication of the true
motivation for this application and exhibits a profound misunderstanding of the fact
that it is he who bears the onus in this application . Whether or not respondent
“needs” the money is irrelevant – the applicant is legally obligated to pay it to her.
No other satisfactory reme dy
[53] The fact is that given the fact that the applicant asserts that the respondent is
successful and does not need the money also puts pay to the allegation that he has
no other suitable remedy available as he fails to demonstrate that he will be unable
to enforce any order for damages that may be given in his favour22.
Costs
[54] Mr Stadler23 has urged me to grant an attorney client costs order given the
manner in which the applicant has litigated . He argues that the applicant’s ever-
evolving case demonstrates a lack of bona fides.
[55] I agree. The distinct impression left by these papers is that the applicant will,
by any means, attempt to thwart the payment of the R1 009 700-50 to the
respondent . This court cannot allow a litigant to circumvent its orders – to do flies in
the face of the finality that orders bring to litigation, the facts that courts orders must
be obeyed until set aside by a court of competent jurisdiction. Furthermore, it would
open the floodgates and courts will be inundated with frivolous and vexatious
litigation , the sole intention of which is to delay execution of a court order . This holds
truer even truer where the action was settled and a settlement signed.
Order
[56] The order is the following:
The application is dismissed with costs on the attorney and client scale.
22 Paragraph 46 supra
23 For the respondent
B NEUKIRCHER
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected,
and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand -down is deemed to be 4 February 2025.
For the applicant : Adv GW Alberts SC with Adv L Hennop
Instructed by : Frik van Schalkwyk Attorneys Inc
For the respondent : Adv S Stadler
Instructed by : Adams and Adams Inc
Matter heard on : 15 October 2024
Judgment date : 4 February 2025