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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL1544/2024
In the matter between:
N[...] S[...] Applicant
And
N[...] L[...] S[...] Responden t
JUDG MENT
ZONO AJ:
Introduction
[1] The app licant approached this court , mainly , for mandatory interdict i n terms of
which she seeks to compel compliance with Clause 10.3 of the Deed of
settlement entered into between her and the respondent, ostensibly on the 06th of
April 2021. In essence the applicant seeks an order in terms of which the
respondent is compel led to take all necessary steps to facilitate the sale of the
immovable property situated at 6[...] M[...] Road, Sax lby, East London, Erf
No1[...], measuring 1045m2, which property is to be sold by auction. The
applicant further seeks the respondent to be compel led to sign all necessary
documentation for the aforementioned purposes, that is , to effect the sale and
transfer of the said property.
[2] In the event of respondent’s failure to take the necessary steps to effect sale and
transfer of the immovable prope rty aforesaid, the applicant further seeks the
sheriff of this court to be authorized to sign all the necessary documentation and
take all such steps as they may be necessary to effect the sale and transfer of
the said immovable property.
[3] As a conseq uence of the above relief the applicant seeks an order compelling
the respondent to cooperate with auctioneers to provide free access for
inspection and viewing of the property. Should access be not provided ,
auctioneers be granted leave to use the service s of a locksmith to gain access to
the property. All outstanding bond installments payable by the respondent to Fir st
National Bank be ordered to be paid from the respondent’s portion of the net
proceeds of the sale of the immovable property. All outstandi ng amounts due to
the Municipality (BCMM) by the respondent be ordered to be paid from
respondent’s portion of proceeds of the sale of the immovable property. Punitive
costs order i s sought against the respondent.
[4] Although the main relief seeks compliance with Clause 10.3 of the Deed of
Agreement, the central Clause soug ht to be enforced is Clause 10.3 .5 which
reads as follows:
“10.3.5 It is further agreed that the immovab le property situated at Erf ELM
01[...] commonly known as 6[...] M[...] Road, Saxilby, E ast London will be
transferred i nto the defendant’s name within 90 (ninety) days of the
granting of the decree of divorce, failing which, the immovable property
situated at 6 [...] M[...] Road, Saxilby, East London, shall be placed on the
open market to be sold as soon as possible, at the best available price.
The net proceeds from the sale of the aforesaid property after the usual
deductions such as rates, outst anding bonds, cancellation costs and
Estate A gents commission shall be divided equally between the parties.
The parties agree that they undertook to sign all documentation relating to
the sale and transfer of the property when called upon to do so, failing
which the sheriff of this court shall be empowered to do so on their b ehalf”.
[5] The central issue is whether there is a legal basis to compel the respondent to
comply with the afore said provision. All the orders sought in the notice of motion
revolv e around this Clause. They may be granted only if there is a legal basis to
do so. Before dealing with this is sue, it is important to anteriorly deal with the
brief background as that has a bearing on the determination of this matter.
Brief Factual Background
[6] Sequel to divorce proceedings having been instituted in the Regional Court, a
divorce order was granted in the following terms:
“That the bonds of marriage subsisting between plaintiff and defendant be
and are hereby dissolved. That the deed of settlement between the parties
handed in and marked Exhibit “B”, attach ed hereto, is made an order of
court”.
[7] The parties exchanged a lot of correspondence, especially about the aforesaid
immovable property. After it became clear that parties could not find each other,
the applicant instituted the present proceedings.
[8] To support the relief sought in the notice of motion the applicant preponderantly
refer to the specific terms of the Deed of A greement, especially Clause 10.3.2,
10.3.3, 10.3.4 and 10.3.5. thereof. The applicant makes the following specific
allegation s about Clause 10.3.5 in her founding affidavit:
“34. The respondent refuses to comply with the terms of the settlement
agreement, more particularly paragraph 10.3.5 thereof. On 01
August the respondent was given one last chance to reconsider his
position….
38. Aside from the fact that the respondent has failed to comply in any
reasonable manner with its obligations relating to the sale of the
immovable property the respondent continues to reside in the
immovable property and to enjoy the use and benefit o f same to my
detriment and the detriment of the minor children.
41. It is further clear from the correspondence that I have tried
everything in my power to facilitate the sale of the immovable
property, which is what was agreed upon in our deed of settlement
at the time when the divorce action was finalized. The respondent
has been willful in his actions and has actively prevented the sale of
the property and has further caused the Municipal account on the
property to fall in arrears, which would be ultimately prejudicial to
me upon the sale of the property ” (sic).
[9] While the pleadings -including in motion proceedings, not only the formal
terminology of the notice of motion, but also the contents of the supporting
affidavits -must be interpreted to establish what the basis of the applicant’s claim
is, it is not for the court to say that the facts asserted by the applicant would also
sustain another claim1. When interpreting the no tice of motion and the assertion s
1 Gcaba v Minister of Safety and Security and others 2010 (1) SA 238 (EC) Para 75 .
referred to above, it is plain that the descriptive character of applicant’s case
before this c ourt is that of a mandatory interdict2. I state at this early state that
applicant’s founding paper s are not a model of clarity, and I will deal with that
later in this judgment.
[10] Mandatory interdict is an order requiring a person to do some positive act to
remedy a wrongful state of affairs for which he is responsible, or to do something
which he ought to do if the complainant is to have his rights3. It has been said
that a mandat ory interdict can serve to compel the performance of a specific
statutory duty, and to remedy the effects of unlawful action already taken4. The
formal terminology of the notice of motion coupled with the relevant assertions in
the founding affidavit cond uce to an interpretation that establishes mandatory
interdict as the legal basis of applicant’s complaint.
[11] The applicant approached this court for a mandatory final interdict. There are
three requisites for the grant of a final interdict, all of whic h must be present5: A
clear right on the part of the applicant; an i njury actually committed or reasonably
apprehended; and the absence of any other satisfactory remedy available to the
applicant.
[12] It is without a doubt that the applicant is entitled to the proceeds of the sale of the
immovable property in question. The proceeds to which the applicant is entitled
can only be extended to her once the property is sold and paid for. In terms of
Clause 10.3.4 of the Deed of A greement the applicant is enti tled to one -half of
the market value of the immovable property less one -half of the amount
outstanding in respect of the mortgage bond currently registered over the
immovable property.
2 Makhanya v University of Zululand 2010 (1) SA 62 (SCA) Para 72 .
3 Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673 C -D; Kaputuaza v Executive Committee of the
Administration for the Heros 1984 (4) SA 295 (SWA) at 317 F -H.
4 Baxter: Administrative Law 690; Jordan v Penmill Investments CC 1991 (2) SA 430 (E) at 436 E .
5 Setlogelo v Setlogelo 1914 AD 221 .
[13] A harm or injury is caused if the sale and transfer of the immo vable property is
not taking place or is delayed. The respondent was entitled to the transfer of the
immovable property within 90 days of the granting of the decree of divorce. The
transfer was contextually dependent upon the payment referred to in Clause
10.3.4 of the Deed of A greement which reads as follows:
“10.3.4 On registration of transfer, the defendant shall effect payment to
the plaintiff of ½ (one half) of the amount outstanding in respect of the
mortgage bond currently registered over the immovable property. It is
recorded that the market value of the property is the sum of R1 379
000.00 (One Million Three Hundred and Seventy -Nine Thousand Ra nds)”.
Failure to cause the transfer to be effected within the stipulated 90 (ninety) days
prescribed in the Deed of Agreement is injurious or harmful to the applicant.
Such failure adversely affects applicant’s right to payment as indicated above.
[14] The absence of any other satisfactory remedy available to the applicant is the
next topic on the subject. Clause 10.3.5 of the Deed of settlement provides for
two possibilities in the event of the respondent not fulfilling or performing his
obligations .
14.1 Firstly, failure to transfer the immovable property within stipulated time
shall result in the immovable property being placed on the open market to
be sold as soon as possible, at the best available price. Any party may
avail him or herself to this remedy . Placing the immovable property on the
open market is a satisfactory remedy available to the applicant. It does not
appear clearly in the papers why the applicant failed to explore this
remedy. All the dispu ted attempts that were allegedly explored did not
relate to the placing of the immovable property on the open market6. Even
if they were to relate to the placing of the immovable property on the open
6 Plascon Evans P aints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 E -G.
market, the nature of the dispute raised in the papers would necessitate
the rejection of the applicant’s version.
14.2 Secondly, the Clause provides that the sheriff of the Regional Court shall
be empowered to sign all the documentation relating to the sale and the
transfer of the property if the parties fai l to do so when called upon to do
so. It does not appear “ ex facie” the papers that the documentation
referred to in this Clause was ever prepared and that the respondent was
ever called upon to sign same. Assuming that such was done, the sheriff
of the Re gional Court should have been approached for signature on
behalf of the respondent if the respondent is refusing to sign . There is
absolutely no basis for approaching this court for an order directing the
respondent to sign all the documentation relating t o the sale and the
transfer of the property, when the sheriff of the Regional Court has not
been approached. There is no basis to authorise the sheriff to sign
document if the sheriff has not been a pproached and refused. T he sheriff
is authorised by the parties in their agreement.
[15] The existence of an adequate alternative remedy is such that it must be such as
to afford the injured party a remedy that gives similar protection to an interdict
against the injury that was occurring or apprehended7. An internal remedy
provided in an agreement is a legal remedy that must be exhausted before
coming to court for a similar protection for which the agreement provides8. On the
application of doctrine of contractual privity the applicant is bound by the terms of
her agreement9. Parties are bound by the contract they make with each other10.
7 Rhodes University v Student Representative Council of Rhodes University 2017 (1) LL SA 617
(ECG) Para 86 .
8 Totalgaz Southern Africa (Pty) Ltd v Rhyder Investments CC t/a DTB Sales and another Case No
EL 809/2024 Para 22 .
9 RH Christie: The law of Contract in South Africa, 5th Edition, Page 260 .
10 Gugu and another v Zongwana and others 2014 ALL SA 203(ECM) Para 21 .
[16] In the circumstances I see no reason why the applicant failed t o exhaust the
remedies provided in Clause 10 .3.5 of the Deed of Ag reement. I find that they
provide a s imilar protection to the interdictory relief the applicant is seeking
herein. The Deed of Agreement provides an alternative satisfactory remedy to
the applicant. Accordingly, this application cannot succeed. It must fail on this
basis alone.
[17] Howev er, even if I am wrong in the characterisation of this case in the light of the
refere nce made in the founding affidavit to he alleged noncompliance with the
divorce order and a vague reference to contempt of court order. In a confused
way, this applicatio n viccilated between mandatory interdict and contempt of
court proceedings without one being alternative to the other. No relief relating to
the contempt of court order is sought in the notice of motion. However,
allegations are made in the founding affida vit about contempt of court. When
matter was argued in court it was argued as a contempt of court application. It is
important to state that applicant’s founding papers are not a model of clarity. No
single clear cause of action is pleaded.
[18] Even if it can be said the relief for contempt of court order i s sought (which is not
the position) and the case for such contempt is pleaded in support of the relief ,
the applicant would still be required to prove the following requisites:
That an order was granted against the respondent; that the respondent
was either served with the court order or informed of the grant of the
order; and that the respondent has either disobeyed the order or
neglected to comply with it.
[19] There is absolutely no clear o r dim suggestion on the applicant’s papers that the
respondent was served with or informed about the court order. Applicant’s case
on contempt of court order would have fallen or faile d on the first hurdle. It is trite
law that an applicant mus t make out i ts case in the fou nding affidavit11. No case
for service of the court order is made out in the papers. The court order (Decree
of Divorce) does not show that the respondent was in court when it was granted.
There is no averment in the founding affidavit stating that the respondent was in
court when the decree of divorce was granted. In the light of the above and the
nature of the proceedings it was incumbent upon th e respondent to ensure that
the respondent was served with or informed about the court order; and an
allegation is made in the founding affidavit that the respondent was duly served
with or was fully informed of the court order.
[20] Diemont JA puts this point aptly as follows in Mistry12 “When, as in this case ,
the proceedings are launched by way of notice of motion, it is to the founding
affidavit which a judge will look to determine what the complaint is. As was
pointed out by Krause J in Pountas’ Trustee v Lahanas 1924 WLD 67at 68 and
as has been said in man y other cases…. An applicant must stand or fall by his
petition and the facts alleged therein and that , although sometime it is
permissible to supplement the allegations contained in the petition, still the main
foundation of the application is the allegat ion of facts stated therein”.
[21] To underscore the importance of pleadings, as a matter of proper pleading, it is
not sufficient for a party , to attach, without more, an annexure to an affidavit and
then expect the opposing party and the court to sift a nd trawl through the
annexures with a view to speculating as to what case is made out. That practice,
if allowed, would degenerate the significance of the pleadings and introduce an
improper practice of pleading through correspondence and documents that ar e
not pleadings. That practice would be contrary to the express provisions of Rule
6(1) of the Uniform Rules of court which provide thus:
11Nkume v Transunion Credit Bureau (Pty) Ltd and Another 2014 (1) SA 134 (ECM) Para 7 .
12 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635 -636A .
“(1) Every application must be brought in notice of motion supported by an
affidavit as to the facts upon which the ap plicant relies for relief ”. (my
underlining) .
It is to the facts pleaded in the founding or supporting affidavit that the
respondent must plead or is called upon to plead13. Rule 6(1) must be juxtaposed
with Rule 18(4) of the Uniform Rules of court which require that “every pleading
shall contain a clear and concise statement of material facts upon which a
pleader relies for his claim or defence….”.
[22] It is impermissible for the parties to simply annex documents to the affi davits and
not identify the por tions thereof on which reliance is placed. It is further
impermissible not to indicate the case which is sought to be made out on th e
strength of the document and por tion r elied upon. I am not alone on this point .
Joffe J in Swissborough14 had this to say:
“Regard being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annexe to its affidavit documentation
and to request the Court to have regard to it. What is required is the
identification of the portions thereof on which reliance is placed and an
indication of the case which i s sought to be made out on the strength
thereof. If this were not so the essence of our established practice would
be destroyed. A party would not know what case must be met ”.
[23] The Supreme Court of Appeal endorsed this principle in Zuma15as follows:
“[47] The trial judge , again, failed to comply with basic rules of
procedure. Judgment by ambush is not permitted. It is not proper
13 Rule 6(5)(d)(iii) of the Uniform Rules .
14 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2)
SA 279 (T ) at 324 F -G.
15 National Director of Public Prosecutions v Zuma 2009 (2) SA 227 (SCA) Para 47 .
for a court in motion proceedings to base its judgment on passages
in documents which have been annexed to the papers when the
conclu sions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest ─ the other
party may well be prejudiced because evidence may have been
available to it to refute the new case on the facts. A party cannot be
expected to trawl through annexures to the opponent’s affidavit and
to speculate on the possible relevance of facts therein contained.
The position is no different from the case where a witness in a trial
is not called upon to deal with a fact and the court t hen draws an
adverse conclusion against that witness”.
[24] I am therefore satisfied that the requirement of service or notice of the court order
has not been pleaded in the founding affid avit. Whilst it is true that a Deed of
Agreement was entered into between the parties and both parties are aware of
the contents thereof, it does not necessarily follow that such knowledge , without
more, engenders knowledge of the court order which was not in existence when
the parties were entering into a Deed of Agreem ent.
[25] Even if I am wrong in this regard , applicant’s application for contempt of court
would still not succeed for another reason. There is nothing leading me to a
conclusion that the respondent was wilful and mala fide in not complying with the
court order of 06th May 2021.
[26] The respondent posits a case that the non -compliance with the court order , part
of which is Clause 10.3.5 of the Deed of A greement which was made an order of
court , was not wilful and malafides . The respondent accepts that he did not
acquire a bond within 90 (ninety) days of divorce order due to applicant’s
personal loan reflecting in respondent’ s credit profile. The respondent failed
affordability assessment due to the adverse information relati ng to applicant’s
loan. However, respondents financial position improved and he then became
able to comply with the court order , albeit after 90 (ninety) days of the divorce
order . When his financial situation changed , the respondent made several offers
to the applicant , which offers were not accepted by the applicant. These
contentions are not in dispute as I will demonstrate hereinafter.
[27] In relevant paragraphs of the replying affidavit the applicant deals with
respondent’s allegations as follows:
“14. It is specifically problematic for the respondent that he claims not to
have been in the position to obtain a bond due to a personal loan
reflecting on his account. The respondent has never produced any proof
of such. I had the exact same situation, and I obtain ed a bond. That
excuse had been used since 2021. I have set out the factual position in
my founding affidavit” ( sic).
Respondent’s assertion that the applicant has been aware of the adverse
information listed against the respondent ’s name is not in dispute. It is also not in
dispute that applicant’s loan is listed against respondent’s name. Th e applicant
confirms that she was exactly in the same position, b ut she was fortunate as she
managed to obtain the loan notwithstanding that negative listing .
[28] About respondent’s proactiveness to make some settl ement proposals to her , the
applicant replied thereto as follows:
“16. I am further not willing to accept a 50% offer on the actual value of
the property. The respondent has been offering me much less than
the actual value of the property, which he very well knows” ( sic).
[29] In Fakie16 Cameron JA said that the offence is committed not by a mere
disregard of a court’s order, but by the deliberate and intentional violation of the
16 Fakie NO v CC II Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at 333 and 334 .
court’s dign ity, repute or authority that this evinces. The contempt proceedings
are concerned with the unlawful and intentional refusal or failure to comply with
the court order17. If a person ’s failure to comply is thus due to inability to do so or
flows from a mistake as to what was required , a committal for contempt will not
be granted18. Generally, where, as in this case , non-compliance calls for an
explanation that points away from defiance, a party might plead impossibility of
perfo rmance, or the existence of an impediment inhibiting performance19.
[30] There is no factual basis to negate respondent’s contention that his non -
compliance with Clause 10.3.5 of the Deed of Agreement incorporated into a
court order of 06th May 2021 was d ue to him not having been able to be afforded
credit due to the adverse listing in respect of the applicant’s loan. I am therefore
unable to find that the respondent deliberately and intentionally violated court’s
dignity, repute or authority. Accordingly, the respondent has succeeded in
casting doubt20on whether he deliberately and intentionally violated the court
order dated 06th May 2021. This application cannot succeed . It stands to fail.
[31] The only outstanding issue is that of costs . The general rule is that costst must
follow the result. I see no reason why there should be deviation from that general
rule. The a pplicant is liable to pay costs of the application.
[32] In the result the following order shall is sue:
32.1 The application is dismissed with costs.
____________________
ZONO AJ
17 Herbstein and Van Winsen: The Civil Practice of the High Courts of South Africa, Volume 2, Page
1100 .
18 Herbste in and Van Winsen: The Civil Practice of High Courts of South Africa, Volume 2 Page 1110 .
19 Readam v BSB International 2017 (5 ) SA 183 Para 10 .
20 Herbstein and Van Winsen: The Civil Practice of the High Courts of South Africa, Volume 2 Page 1104 .
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
Counsel for the Applicant : ADV D MOSTERT
Instructed by : Sharp, Crisp& Associates
14 Bonza Bay Road
Beacon Bay
East London
Tel:043 422 0284
Email: kayleen@sharplaw.co.za
Ref:MS K B CRISP/AB/SOV2/001
Counsel for the Respondent :ADV. L. MATI
Instructed by :Schoombee Van Der Nest A ttorneys
39 Vincent Road
Vincent
East London
Tel: 043 743 1267
Email: holly@schoombee.co.za
Date heard : 29th May 2025
Date Delivered: : 01st July 2025