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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: HCA A34/2023
COURT A QUO CASE NO: 3957/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 19/05/2025
SIGNATURE
In the matter between:
J[...] P[...] V[...] S[...] Appellant
And
M[...] M[...] V[...] S[...] First Respondent
EXILITE 385 CC Second Respondent
SEVILOR 83 CC Third Respondent
BDO BUSINESS RESTRUCTURING (PTY) LTD Fourth Respondent
Coram: Muller J, Ngobeni et Makoti AJ
Delivered : This judgment is handed down electronically by circulation to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 19 May 2025.
JUDGMENT
Makoti AJ
Introduction
[1] This appeal came before us with leave having been granted by the Court a quo ,
per Naudé -Odendaal J. At the hearing of the appeal only the Appellant ’s
representatives attended court. The appeal proceeded unopposed , without the
benefit of argument from any of the respondents . The first respondent ’s
representatives , who participated in the proceedings in the court a quo , elected
not to file written argument in this appeal. I am left in a position where the
respondent has not advanced a ny argument as to why the orders made by the
court a quo are correct or ought to be sustained . This is m ost unfortunate.
[2] The appellant impugns the and orders granted by Naudé -Odendaal J dated 28
August 20 23.1 This appeal raises the following issues for consideration:
1 Case No. 3957/2023.
[2.1] Whether the court a quo erred in not finding the settlement agreement
between the appellant and the first respondent to be void and
unenforceable;
[2.2] If the settlement agreement is not void and unenforceable, whether the
court a quo erred in not concluding that it was validly cancelled by the
appellant; and
[2.3] Lastly, whether the order granted by Makgoba JP on 13 August 20192
remains in full force and effect. This is contingent on this court finding
that the settlement agreement is void and unenforceable, alternatively,
that it was validly cancelled.
[3] Each of these grounds will be revisited upon consideration of the facts as I
consider them below .
The Facts
[4] The origin of this part of their conflict stems from the appellant ’s two-pronged
application that was divided into a Part A and B. These were heard separately
on 09 May 2023 and 23 May 2023. No contention arises from the decision in
Part A of the application. In Part B the appellant had sought an order to declare
the parties’ settlement agreement , apparently c oncluded at Lephalale on 13
August 2021, void and unenforceable. As an a lternative, that it was validly
cancelled by the appellant .
[5] Further, the appellant sought an order declaring or confirming that the previous
orders that were granted in Part A remain applica ble and in full force and effect.
The orders essentially allowed the appellant access to certain properties, as
well as the right to participate in the affairs of Exilite 385 CC (Exilite), the
second respondent , and a Land Cruiser ( C[...] ). The court also barred the first
2 Case No. 4298/2019.
respondent from accessing immovable property known as Farm
Middleboompunt 425 Lephalale.
[6] Importantly for purposes of this judgment, in the court a quo , Makgoba JP
ordered that :
“5. Neither pa rty shall sell, alienate or encumber any of the assets of the
estate of the Second Respondent, which is to include game listed in
Annexure ‘MM13’ to the First and Second Respondents’ answering
affidavit.”
[7] A further dispute arose between the appellant a nd the first respondent which
resulted in him instituting contempt proceedings against the latter. Before that
dispute could be decided, the first respondent instituted an application to wind
up the affairs of Exilite . A provisional winding up order was granted on 28
November 2019.
[8] Then, on 23 August 2021 the appellant and the first respondent concluded a
written settlement agreement in terms of which they were to end this long
running litigation , but proceed with the ir divorce. They also agreed to the
following , inter alia :
[8.1] The appellant sold his 100% member’s interest in the third respondent,
Servilor 83 CC, to the first respondent for an amount of R3 900 000 -00
(Three Million and Nine Hundred Thousand Rand Only).
[8.2] The first respondent indemnified the appellant of maintenance
obligations for their three minor children, and up to the end of the year
2024.
[8.3] the appellant was to abandon any claim to Farm Middelboomspunt.
[8.4] The first respondent w as to retain 100% member ’s interest in Exilite.
[9] Before the court a quo the appellant impugned the settlement agreement on the
basis that it was void . According to him the agreement was contra bonos mores
and therefore void as it limited the ir minor childrens ’ right to claim maintenance.
This was said to be because the agreement indemnified the appellant from his
maintenance obligations. The argument continues that t he applicant has in any
case cancelled t he agreement as a result of the first respondent’s failure to
meet the ir obligations in terms of the agreement.
[10] It is clear that, on both versions, t he settlement agreement was concluded
subject to a number of suspensive conditions . The appellant’s version is that
the suspensive conditions were fulfilled . He contended that the first respondent
failed to comply with her obligations in terms of the settlement agreement ,
having failed to pay the sum of R1 000 000 -00 (One Million Rand) within the
agreed period of 12 months. Addition ally, he contended that the second
respondent failed to pay the full amount of R600 000 -00 (Six Hundred
Thousand Rand) for a vehicle which she had taken as her own . The first
respondent all egedly paid R400 000 -00 (Four Hundred Thousand Rand)
leaving a shortfall of R200 000 -00 (Two Hundred Thousand Rand) for one of
their motor vehicle s.
[11] A notice of demand to remedy the breach, dated 21 December 2022, was not
heeded by the first respondent . According ly, this led to the appellant taking t he
decision to cancel the agreement . A notice informing the first respondent of the
cancellation of the agreement was sent through the appellant’s legal
representatives on 22 February 2023.
[12] When the matter went before the court a quo it was opposed by the first
respondent . She had pleaded , amongst other facts , that she had fully complied
with the terms of the settlement agreement by paying all the amounts that she
and the appellant h ad agreed about .
The decision a quo
[13] The application was dismissed by the court a quo . The court also discharged a
rule nisi that had been granted earlier o n 09 May 2023. The status quo ante
was restored when an application for leave to appeal was filed and extended
upon leave being granted.
[14] The court a quo laboriously considered whether the settlement was contra
bonos mores . The decision went against the appellant , with the court finding
that the settlement agreement was applicable up to end of 2024. It also found
that the maintenance clause complained of took into account that maintenance
had been paid upfront, and was not a waiver of the children’s rights to
maintenance. The Cour t concluded the issue thus:
“[46] In my view, having considered the surrounding factors and
circumstances, I deem it fit and in the best interest of the minor children
that the parties agreed to the First Respondent rather than purchasing
the property and a lump sum payment in the form of value for the farm,
be paid as maintenance in advance for a three year period. In my view,
the Applicant was not absolved from paying maintenance and indirectly
fulfilled his duty and responsibility to pay maintenance towa rds the
minor children. The specific clause in the settlement agreement is not
against public policy in this specific instance and having considered the
surrounding factors at play and therefore not contra bonos mores. The
application in respect of Pat B o f the Notice of Motion therefore stands
to be dismissed. It further follows that the rule nisi issued and interim
order made on 09 May 2023 is automatically discharged.”
[15] This matter came before us on appeal after the end of 2024. It seems,
therefore, inescapable that the issue whether the settlement agreement is
against public policy or contra bonos mores has become moot. It is no longer
applicable and no practical outcome will be achieved by this Court of appeal
deciding it.3 Therefore, it is not in the interest of justice to adjudicate it in this
appeal.4
[16] With regard to the second issue in this appeal, the question is whether the First
Respondent has breached the settlement agreement. The Court a quo rejected
the Appellant’s contention that he cancelled the settlement agreement due to
the First Respondent’s breach. It would do justice to the issue to traverse the
part of the judgment which dealt with this question . The Court a quo noted that:
“[23] … The First Respondent submitted that the Applicant bases his
averment on two separate alleged breaches, namely: -
(a) That the First Respondent failed to pay the amount of
R1 000 000.00 (One Million Rand) as required by clause 2.1.3
of the settlement agreement; and
(b) That the First Respondent only p aid R400 000.00 (Four
Hundred Thousand Rand) instead of R600 000.00 as required
by clause 2.1.4 of the settlement agreement.
[24] In this regard, I am of the view that the Applicant’s allegations are
without merit. Not only on the agreement that the Applic ant attached to
the founding affidavit, but also on the copy of the settlement agreement
attached to the First Respondent’s answering affidavit, is it evident that
the parties agreed that clause 2.1.3 dealing with R1 000 000.00 was not
to be applicable and was the paragraph deleted and initialled by both
parties.
[25] In addition, the amount of R400 000.00 in clause 2.1.4 was deleted and
substituted with an amount of R400 000.00 on both agreements before
me and the amendment was initialled seemingly by both parties. The
3 Section 16(2)(a)(i) of the Superior Courts Act No. 10 of 2013.
4 Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional
Affairs (104/2022) [2023] ZASCA 35 (31 March 2023) at para 12.
First Respondent complied with clause 2.1.4 and purchased the vehicle
in the amount of R400 000.00.”
[17] The court a quo found no evidence of a breach . The Appellant contends that
the manual cancellation and signatures which are reflected in paragraph 2.1.3
dealt only with the terms of payment of the amount of R3 900 000-00 and not
the clause in its entirety. If that be the case, t he Appellant contended further ,
the First Respondent was placed on mora when she was served with a written
demand to make payment of the outstanding amount of R1 000 000-00 plus
R200 000-00 for the vehicle.
[18] The said amount of R1 000 000-00 which was mentioned in clause 2.1.3 of the
settlement agreement formed part of the full purchase price of R3 900 000-00.5
Clause 2.1.3 is not a stand -alone clause , but is of subclause amongst others ,
which together set out how the amount of R3 900 000-00 was to be paid by the
First Respondent to the Appellant . Although it is correct , ex facie sub-clause
2.1.3 , that the settlement agreement was cancelled (being countersigned by
the parties ), it is not a pparent that any of the parties had intended that the
amount was to no longer payable.
[19] I am unable to find that cancellation by ink of clause 2.1.3 of the settlement
agreement revealed the parties’ intention . There was no meeting of the ir minds
regarding dispens ing with the First Respondent’s contractual obligation to pay
the said amount of R1 000 000-00. If that was the intention then one would
have expected the parties to have also altered the amount of R3,9 million to
reflect the decision to reduce the purchase price.
5 Clause 2.1 of the settlement agreement.
[20] The Appellant, relying on Breytenbach v Van Wyk6 and other authorities
contended that where a contract does not set time for payment, a demand by
the creditor is necessary to place the debtor in mora . I am in agreement with
this submission. To the extent that the Court a quo found that the amount of
R1 million was no longer p ayable, or had been dispensed with by the parties, it
erred. This is so especially taking into account that the full purchase price of
R3,9 million remained unchanged.
[21] There was no dispute as a mongst all the parties that the Appellant had indeed
demanded payment and placed the First Respondent in mora . The demand
was for both the amount of R1 million and for an amount of R200 000-00 which
was said to be the balance of the purchase price for the motor vehicle . From
the papers, it appears that the total sum that was claimed on behalf of the
Appellant and which led to its decision to cancel the settlement agreement
came to about R1 200 000-00. Further, there is no dispute that the First
Respondent did not make payment of the said amount following the demand.
[22] Cancellation of an agreement for breach or repudiation is acceptable in our law.
In Pretorius v Bedwell7 it was held that repudiation happens when:
“[10] … one party to a contract, without lawful grounds, indicates to the other
party, whether by words or conduct, a deliberate and unequivocal
intention to no longer be bound by the contract. Then the innocent party
will be entitled to either: (i) reject the re pudiation and claim specific
performance; or (ii) accept the repudiation, cancel the contract and
claim damages. If he or she elects to accept the repudiation, the
contract comes to an end upon the communication of the acceptance of
the repudiation to the party who has repudiated. Only then does a claim
6 1923 AD 541 at 549. See a lso, Crookes Brothers Ltd v Regional Land Claims Commission,
Mpumalanga 2013 (2) SA 259 (SCA) at para 17.
7 Pretorius v Bedwell (659/2020) [2022] ZASCA 4 (11 January 2022).
for damages arise. Accordingly, prescription commences to run from
that date.”
[23] The repudiation in this case being the refusal to pay the full amount as agreed
in the settlement agreement. It was the view of the First Respondent that she
no longer had to pay the amount of R1 million as the clause that mentioned it
had been scratched out. She did not respond to the Appellant’s email when he
sent a notice for her to settle the amount, and the R200 000-00 balance for the
motor vehicle. A letter of demand which followed later did not persuade her to
reconsider and pay the outstanding balance.
[24] I have no trouble accept ing that the amount of R600 000-00 which the parties
agreed upon for the motor vehicle was reduced to R400 000-00. The effect was
that the total purchase price was reduced to R3 700 000-00. The same cannot
be said for the amount of R1 mi llion. As I have indicated, that amount remained
payable, with the parties not having agreed terms as to when it would be paid.
Payment was demanded but the First Respondent refused to pay it.
[25] Mr Grundlingh for the Appellant relied on Vromolimnos and Another v Weinbold
and Another8 and argued that the First Respondent has refused to pay the
balance of the agr eed amount. He contended further that her conduct
represented an unequivocal refusal to pay the full purchase price constituted
repudiation . Also, that her refusal to pay the balance owing entitled the
Appellant to cancel the settlement agreement. I agree.
[26] A breach that goes to the root of the agreement has been held to be a serious
one.9 The defences that were raised for the First Respondent were that clauses
2.1.3 and 2.1.4 were not applicable and that she had fully complied with her
contractual obligations by settling what was due to be paid by her. She
8 1991 (2) SA 157 (C) at 163B -C.
9 Singh v McCathy Retail t/a McIntosh Motors 2000 (4) SA 795 (SCA) para 13.
disputed that she had failed to perfor m her obligations in terms the agreement.
Nonetheless, the First Respondent did not say that she made the payment of
the R1 million, which is more than a quarter of the agreed purchase price .
Failure to pay the amount would constitute serious failure or re fusal to perform
the obligations set out in the agreement.
[27] The First Respondent had an opportunity to remedy the failure when a notice
was given to her on 21 December 2021 calling her to pay the outstanding
amounts to the Appellant. The notice was fo llowed by a demand on 10 January
2023, from the Appellant’s attorneys. She failed to seize the opportunit ies
presented to her to remedy her breach. On 22 February 2023 the Appellant
through his attorneys cancelled the agreement. In my view, h e is entitled , as
the aggrieved party , to cancel the agreement. In finding differently the Court a
quo erred. The appeal on this score must succeed.
Orders granted by Makgoba JP under case numbers 4298/2019
[28] The Appellant seek s confirmation that the court order granted in under case
number 4298/2019 remains in full force and effect. That order was in one of the
many cases involving the Appellant and the First Respondent. A long list of
orders was granted in Part A of that applic ation by then Judge President
Makgoba.10 Part B was never heard due to the winding up of the Second
Respondent on 07 January 2020 . The final winding up was subsequently set
aside on 27 October 2021 after an application for that purpose was instituted by
the liquidators.
[29] It is not necessary to regurgitate all the individual orders, save for paragraph 5
of the order in Part A which states the following:
10 Appeal record p 405.
“5. Neither party shall sell, alienate or encumber any of the assets of the
Second Respondent, which is to include the game listed in Annexure
“MM13” to the First and Second Respondent’s answering affidavit.”
[30] The Appellant , who was the Applicant in that case, was himself ordered by
Makgoba JP not to interfere with the business of the Second Respondent by
inter alia issuing threats and/or instructions to the employees of the Second
Respondent. That means, if that 2019 order is extant and in full force and
effect, the Appel lant would still be barred from interfering with the affairs of the
Second Respondent.
[31] In Part A of this case the Appellant still pursued an interdict restricting the
alienation, disposal or encumbrance of the assets of the Second and Third
Respondent. On 9 May 2023 the parties concluded an agree ment in which they
authorised the sale of an immovable property belonging to the Second
Respondent. The property in question is situated at 1 [...] D[...] Drive, Pinnacle
Point Golf Estate, Mossel Bay, the sale of which the Appellant had sought to
interdict . The parties further agreed that the proceeds of the sale would be kept
in an interest -bearing trust account with the Appellant’s attorneys.
[32] Based on that agreement, i t seems to me that the sale by agreement, if
finalized, would have had implications for the order that was granted by
Makgoba JP. The order of 09 May 2023 was considered to be a rule nisi and
the Court a quo sought to discharge it upon dismissal of Part B of the
application. This too was in error. The order was not a rule nisi and it was
incapable of being discharged. Given its terms, the order had finality in effect in
that the property referred to in it could be disposed of. No return date was given
for any of the parties to explain why that order should not b e made final.
[33] The order of 09 May 2023 had implications making it practically impossible to
reinstate the orders as they stood then given this intervening circumstance.
Implicit from the order it is that the identified properties could now be alienat ed
through sale. The sale of any property belonging to the Second Respondent,
one should recall, was prohibited in terms of the judgment and orders of
Makgoba JP in the case bearing numbers 4298/2019.
[34] There was another intervening factor. The change of status of the Second
Respondent when it got wound up. This was p rior to the hearing of Part B of
that application , when the Second Respondent was placed under provisional
winding up in terms of an order f rom the Western Cape Division on 07
November 2019. The provisional winding up was made final on 7 January
2020. Then, on 23 August 2021 the Appellant and the First Respondent
concluded the settlement agreement. In terms of the agreement it was agreed
among st others that the Appellant would sell 100% percent of his member
interest in the Third Respondent to the First Respondent.
[35] Returning to Makgoba JP’s orders, I do not see how the Part B order can be of
full force and effect. It is simply not possible considering the interim order that
was granted by agreement between the parties on 09 May 2023. This order
was discharged as part of the impugned judgment and orders. It was restored
by virtue of t he application for and the granting of leave to appeal. If the appeal
succeeds, which concerns Part B of the application, it has no implications for
the order granted in terms of Part A.
[36] I do not see how it would be possible to resuscitate the orders which were
granted by Makgoba JP. Other than that, the appeal succeeds. In my view, the
only order that remains in place is the one that was granted at the hearing of
Part A of this application on 09 May 2023.
Costs
[37] The Appellant seeks costs f or the application, both for Part A and for Part B of
this case. This is because the question of costs was reserved for later
determination on 23 May 2023. I have mentioned that in Part A the Appellant
sought to interdict the sa le of any of the properties belonging to the Second and
Third Respondents. The agreed outcome was an agreement that the property
based in Pinnacle Point Golf Estate, Mossel Bay, would be sold.
[38] Costs usually follow the cause. The aim is to indemnify the successful litigant
the ex penses which the party has been put through, having been unjustly
compelled to initiate or defend the litigation. I n Kruger Bros & Wasserman v
Ruskin11 the Court held that:
“The rule of our law is that all costs –unless expressly otherwise
enacted – are in the discretion of the Judge. His discretion must be
judicially exercised but it cannot be challenged, taken alone and apart
from the main order without his permission”.
[39] While the Appellant can claim victory in respect of Part B of the application, that
is not the case in terms of Part A. What he sought in that urgent case was not
achieved. Instead he ended up agreeing to have one of the properties sold. He
was not successful in Part A. He cannot get the costs for that part of the
application .
[40] Apart from what I have said above, I see no reasons why the general rule as to
the awarding of costs should not be followed, and why the Appellant should not
be awarded the costs of this appeal. The costs for Part B therefore follow the
result. For his suc cess, the Appellant is entitled to the costs of the application
and of this appeal.
11 1918 AD 63 at 69.
[41] It has become customary for litigants to ask for the highest scale of costs
possible. Many times without just cause, as it is in this appeal. When the
principle for a warding of costs is followed, which is to pay some recompense to
the victor. Why scale C? Perhaps it is to discourage an opposing party from
litigating. Though the Respondents are liable for costs, the normal party and
party scale “A” is appropriate.
Order
[42] The following order is made :
[a] The appeal is upheld.
[b] The order granted by the Court a quo is set aside and substituted with
the following:
“(i) The settlement agreement concluded between the Appellant
and the First Respondent on 23 August 2021 at Lephalale,
Limpopo province is declared duly cancelled by the Appellant.
(ii) The Respondents are ordered to pay the costs of this app eal
only in respect of Part B of the Notice of Motion, which costs are
to be determined on party and party scale “A”.
(iii) There is no order as to costs for Part A of the Notice of Motion. ”
_________________________
MZ MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I, concur.
_________________________
MULLER J
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
I, concur.
_______________________
NGOBENI J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPLICANT : ADV R GRUNDLING
DE LANGE & SMIT ATTORNEYS
POLOKWANE
FOR FIRST RESPONDENT S : NO APPEARANCE
HEARD ON : 24 JANUARY 2024
DELIVERED ON : 16 MAY 2025