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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 10528/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 16 July 2025
Signature: E van der Schyff
In the matter between:
O[...] M[...] L[...] PLAINTIFF
(ID 7[…])
and
S[...] S[...] L[...] DEFENDANT
(ID 7[...])
JUDGMENT
Van der Schyff J
The factual context
[1] Mrs. O[...] L[...] (Mrs. O) and Mr. S[...] L[...] (Mr. S) were married in community of
property on 26 July 2006. Their union was blessed with two children, both of whom
are still minors. Unfortunately, the marriage broke down irretrievably. Mrs. O issued
a summons for divorce . She claims in the particulars of claim that the parties
reached a settlement. She attached a settlement agreement signed by her and two
witnesses to th e summons . This agreement deals with the issue of the parties’
respective parental rights and responsibilities, care and contact ( sic), child
maintenance, and the proprietary aspects arising out of the marriage and the
termination thereof.
[2] The settlement agreement attached to the particulars of claim is dated 21 February
2022. The particulars of claim was dated on the same date. The summons was
served on Mr. S. personally on 15 March 2022. Mr. S subsequently signed the
settlement agreement on 25 March 20 22, together with two witnesses, and
couriered it to Mrs. O. He again signed the settlement agreement on 11 April 2022
at a meeting with Mrs. O and her legal representative. I pause to note that neither
Mrs. O nor Mr. S explained during the trial why he si gned the same settlement
agreement twice.
[3] Some time passed, and Mr. S apparently had a change of heart. On 15 July 2022 ,
he filed a notice of intention to defend the divorce action. After a notice of bar was
served on Mr. S’s legal representative, a plea was eventually filed in November
2022.
[4] In the plea , Mr. S admit s that the marriage has irretrievably broken down. He
denies, however, that a settlement agreement was concluded between the parties
and avers that when he signed the a greement, he believed he had signed an
acknowledgement of receipt of the divorce summons. Mr. S seeks a decree of
divorce, the division of the joint estate, and the referral of the maintenance of the
minor children to the maintenance court.
[5] Mrs. O filed a plea in reconvention. She dispute s Mr. S’s claim that no agreement
was concluded between the parties, stating that Mr. S had signed the return of
service and handed it back to the Sheriff, while couriering the signed settlement
agreement to her.
Proceedings in court
[6] When the trial commenced, Mrs. O’s legal representative submitted that the issue
was crisp. The parties have concluded a settlement agreement in anticipation of
finalising their divorce, and the court should enforce it.
[7] Mrs. O provided the evidence necessary to sustain a decree of divorce. She also
confirmed the signatures on both copies of the settlement agreement as those of
herself and Mr. S. She testified that the settlement agreeme nt reflects that the
parties agreed that they would both retain parental rights and responsibilities
regarding the minor children, that the children’s primary residence would be with
her, that Mr. S. would pay child maintenance in the amount of R4000.00 pe r month
per child and that she would not receive any spousal maintenance. Mrs. O testified
that the parties agreed that full ownership of the parties’ immovable property would
be transferred to her. She testified that Mr. S not only signed the settlement
agreement that he couriered to her, but he also signed a copy of the agreement
again after the parties met at her counsel’s office on a later date.1
[8] Mrs. O was not vigorously cross -examined. She was asked why the particulars of
claim and the settlement agreement signed by her reflect the same date. She
answered that she signed one document. Thereafter, Mr. S’s version was put to
her. It was put to her that Mr. S. would testify that he did not understand that what
he signed was a settlement agreement, as he is not trained or educated in the law.
he signed was a settlement agreement, as he is not trained or educated in the law.
Mr. S would also testify that there was no discussion with him regarding forfeiting
1 Adv. Lynn Human initially represented the plaintiff.
his interest in the partie s’ immovable property. Mrs. O answered – ‘I know there
was a discussion before I sued for divorce.’ The plaintiff’s case was closed after a
short re-examination.
[9] Mr. S testified on his own behalf. He testified that he was emotionally affected by
the divor ce proceedings. He thought he was acknowledging receipt of the
summons when he signed the settlement agreement. He later attended a meeting
with Mrs. O’s legal representative and signed another copy of the same
agreement. He said he was told during this me eting what he had to agree to , and
therefore signed the agreement . He later decided he was not in agreement with
what he was told to sign and obtained legal representation. He denied that there
was any discussion regarding a settlement.
[10] During cross-examination, Mr. S’s attention was drawn to the fact that he not only
signed the settlement agreement on 25 March 2022, but that two witnesses co -
signed it , and that he also added his email address and cell number to the
document. On 11 April 2022, another copy of the settlement agreement was
signed by him, and two witnesses again co -signed it. Whilst Mr. S claimed that he
initially signed the settlement agreement because he thought he was merely
acknowledging receipt of the summons, he concede d that he signed the
agreement a second time.
[11] My impression of Mr. S as a witness is not favorable. His answers were vague and
elusive. When asked by Mr. O’s counsel regarding his employment, he attempted
to avoid the question and said he does not think the information is relevant for the
proceedings. He answered , when prompted by the court, that he is a consulting
engineer. He was vague when asked to explain why he signed the agreement a
second time. In answer to a question by the court , Mr. S stated that he was called
to a meeting with Mrs. O and her legal representative , discussions ensued, and he
was given a document to sign. Mrs. O was legally represented, but he was not. Mr.
was given a document to sign. Mrs. O was legally represented, but he was not. Mr.
S’s case was closed.
[12] Both c ounsel made oral submissions aft er evidence was led. Mrs. O’ s counsel
submitted that the matter was settled . He submitted that the court must apply the
principle of ‘ caveat subscriptor’. He emphasised that Mr. S is not an ignorant or
uneducated person. He signed the agreement twice in th e presence of witnesses
and was aware of its consequences. He should be held bound to the agreement.
[13] Mr. S’s counsel submitted that Mrs. O did not lead any evidence as to where and
when the parties engaged in negotiations before the divorce summons was issued.
He again reiterated that Mr . S. signed the agreement the first time because he
thought he was acknowledging receipt of the summons. H e was unaware of the
implications of what he had signed. Counsel referred the court’s attention to clause
6.1.2 of the settlement agreement and submitted that Mrs. O attempted to sneak
the forfeiture of Mr. S’s interest in the parties' immovable property i n through the
back door. He emphasised that n o agreement was reached regarding the
immovable property.
Discussion
[14] After considering the evidence presented and the submissions made , and on the
basis set out below, I am of the view that clause 6.1.2 of the alleged settlement
agreement lies at the root of the litigation and caused Mr. S to defend the divorce
action. Mr. S is not opposing the granting of a decree of divorce. He essenti ally
wants to escape the patrimonial consequences of the averred settlement
agreement as he sees it. The only defen se pleaded by Mr. S is that he denies
having concluded a settlement agreement with Mrs. O. He denied the existence of
an agreement on the basis that he signed the document embodying the agreement
because he was under the impression that he was acknowledging receipt of the
summons.
[15] Divorce litigation is sui generis. A court order is required to dissolve a marriage,
irrespective of whether the divorce is uncontested. Section 7 of the Divorce Act 20
irrespective of whether the divorce is uncontested. Section 7 of the Divorce Act 20
of 1979 specifically provides that a court granting a decree of divorce may make an
order regarding the division of assets or the payment of maintenance in
accordance with a written agreement concluded between the parties.
[16] Parties often discuss and agree on the patrimonial effects of their looming divorce
before the actual divorce proceedings are instituted. The written agreement
containing the terms on which a matter is settled is drafted and signed, often
before the summon s is issued. Because of the sui generis nature of divorce
proceedings and the fact that a court order is required to dissolve a marriage, it
can, in my view, not be said that parties have contracted ‘outside the context of
litigation’2 when a written agreement is concluded before the institution of divorce
proceedings, even less, in circumstances like the current one, where discussions
between the parties before the institution of a divorce are captured in a written
agreement signed by one pa rty at the institution of the proceedings and co -signed
by the other after the summons initiating the proceedings is served.3
[17] The context within which a finding must be made as to whether the parties reached
an agreement settling at least some of the consequences of their looming divor ce
is the following –
i. Mrs. O avers the parties settled the issues arising from their divorce and
attaches a settlement agreement signed by her to the particulars of claim;
ii. About ten days after being served with the s ummons, Mr. S signs the
settlement agreement and returns it to Mrs. O per courier;
iii. At a subsequent meeting , Mr. S again signs the settlement agreement after
discussions were held;
iv. During cross -examination, it was pertinently put to Mrs. O that Mr. S will
testify that there was no discussion regarding him forfeiting his interest in
the immovable property. It is very relevant that this is the sole aspect of the
agreement that arose during Mrs. O’s cross-examination.
2 See Eke v Parsons 2016 (3) SA 37 (CC) at 49A.
2 See Eke v Parsons 2016 (3) SA 37 (CC) at 49A.
3 Marriage is not an ordinary contract. It cannot be terminated by the mere consent of the parties. See
Carter v Carter 1953 (1) SA 202 (A) at 205.
v. In answer to a question raised by the court, Mr. S said there were
discussions regarding the ‘split’ but ‘nothing concrete’, ‘no specifics’ were
agreed on.
[18] The fact that Mr. S signed the agreement a second time in April 2022, after having
had discussions with Mrs. O and her legal representat ive renders the question as
to whether he signed the agreement in March 2022 because he was of the view
that he acknowledged receipt of the summons, moot, except as far as it relates to
his credibility as a witness.
[19] It remains relevant to state, however, that Mr. S’s explanation that he thought he
was acknowledging receipt of the summons when he signed and returned the hard
copy settlement agreement does not hold water. He might not be educated in the
law, but he is, by his own admission, not an ignorant, unschooled person. He is a
consulting engineer , a fact he only disclosed after being prompted by the court.
The document he signed with two witnesses is clearly titled ‘Settlement
Agreement.’ The preamble to the agreement is clear and unambiguous . It
expresses the desire of two parties who acknowledge that their marriage has
irretrievably broken down, to settle the matter in the terms contained in the
agreement.
[20] Mr. S did not merely sign the document and hand it back to the Sheriff of the court;
he took his time, had the document co-signed by witnesses, and then returned it to
Mrs. O. This conduct is not indicative of an intention to defend a divorce action but
leads to the only logical inference that the parties settled the issues between them
on the terms contained in the agreement.
[21] To make matters worse for Mr. S, he signed this agreement for a second time. His
evidence was that he met with Mrs. O's legal representative, discussions ensued,
and he again signed the document. His testimony that he signed the document a
second time because he was told to do so is insufficient for this court to find that he
second time because he was told to do so is insufficient for this court to find that he
was unduly influenced or coerced into signing the agreement or that it was induced
by fraud . It was not pleaded, and he did not elaborate on the statement when
testifying.
[22] The court was presented with a signed settlement agreement. When a document is
put in evidence and the defendant’s signature is admitted, the onus resting on the
plaintiff is discharged unless the evidence also discloses some fact which, in law,
entitles the defendant to repudiate the document.4 Also relevant is Burger v Central
South African Railways,5 where it was held that it is a sound principle of law that a
person, when they sign a contract, is taken to be bound by the ordinary meaning
and effect of the words that appear above their signature.
[23] If the circumstances under which Mr. S. signed the agreement are considered,
neither fraud, nor misrepresentation, nor undue duress was pleaded or has been
shown to exist. Mr. S is an educated person. No evidence indicates that he was
misled. The language of the agreement is straightforward and non -technical. The
evidence does not indicate that any undue pressure was exerted to force him to
sign.
[24] In University of Johannesburg v Auckland Park Theological Seminary and
Another,6 the Constitutional Court considered the interplay between the
interpretative injunction on courts to interpret contracts within their contexts, having
regard to relevant contextual evidence and the accepted legal principles that form
part of the parol evi dence rule.7 In dealing with th e interpretation of the contract
before it, the Constitutional Court endorsed the approach laid down in the often
quoted Natal Joint Municipal Pension Fund v Endumeni Municipality ,8 and
confirmed that it is now settled law that the approach to interpretation requires the
court, from the outset, to consider text, context, and purpose together, with neither
predominating over the other.9
4 George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 470A.
5 1903 T.S. 571 at 578.
6 2021 (6) SA 1 (CC) hereafter referred to as Auckland Park.
7 Auckland Park supra at para [2].
7 Auckland Park supra at para [2].
8 2012 (4) SA 593 (SCA) at par [18].
9 Auckland Park supra at para [65].
[25] The factual context within which the written agreement between Mrs. O and Mr. S
was concluded is that they were facing an imminent divorce. The document clearly
reflects that it is a settlement agreement. In the preamble to the agreement , it is
stated that:
i. It is common cause that the marriage has irretrievably broken down;
ii. The parties are desirous of settling the patrimonial aspects of their marriage
relationship, which has irretrievably broken down on certain terms and
conditions as set out in the agreement;
iii. The parties have reached an agre ement about the parental rights and
responsibilities, contact, and maintenance [as far as their minor children are
concerned].
[26] The agreement reflects the phrases ‘both parties agree’ or ‘the parties agree that’
in relation to the following issues:
i. That a decree of divorce be granted;
ii. That both parties shall have full parental rights and responsibilities with
regard to the minor children;
iii. Mrs. O’s right to provide for the minor children’s primary residence and care;
iv. Mr. S’s right of contact with the children;
v. Mr. O’s duty to pay the children’s monthly medical aid contributions , and her
responsibility to provide for the ir stationery, school uniforms, clothing,
transport, and allowances;
vi. Mr. S’s responsibility to pay the school -, tertiary, and post -graduate study
fees and extramural activities, and a maintenance contribution of R4000.00
per month per child , which amount shall escalate by 6% per year on the
‘anniversary of the court order’;
vii. The maintenance court may be approached for a varia tion of the
maintenance payable by the parties;
viii. The parties agree that any debts that either party has incurred shall retain
(sic.) [remain] the debt of such party and the parties ‘irrevocably indemnify
each other from liability for debts incurred by the other party, except for the
Tshwane Municipality arrears account of plus minus R425 000.00 of which
Mr. S previo usly agreed to pay and in relation of which Mrs. O has been
paying an amount of R7 500.00 per month.
[27] The language used and the contextual setting within which this document is to be
interpreted support a finding that the above -mentioned aspects were defin itively
settled between the parties. Other aspects that were clearly settled if the
agreement is read in context include:
i. The issue of spousal maintenance - Mrs. O abandons her claim for
maintenance against Mr. S;
ii. The division of movable property.
[28] This brings us to clause 6 of the agreement, and for clarity's sake, the section is
quoted below:
‘6. PROPRIETARY ASPECTS
6.1 IMMOVABLE PROPERTY
PROPERTY: STAND 2[...] SITUATED AT [...] A[...] CRESCENT, I[...] V[...]
ESTATE, HIGHVELD, CENTURION, 0157
6.1.1 It is recorded that the parties are the joint owners of the above
property, and the Plaintiff is responsible for paying the mortgage
bond payments and interest thereon.
6.1.2 The Plaintiff seeks that the Defendant will forfeit his share of
patrimonial benefit on the grounds that the Defendant will unduly
benefit from the Community of Property Regime, as the Plaintiff
has been solely responsible for the bond repayments.
6.1.3 Further that the Property will be transferred into the name of the
Plaintiff once the Decree of Divorce is granted.’
[29] Counsel for Mr. S. argued that the wording of clause 6 reflects that the issue was
not settled. After carefully considering the pleadings, the evidence, and the legal
principles referred to above, I disagree. I interpret clause 6 in its totality, and in its
contextual setting as captured in a settlement agreement that Mrs. O sought for
purposes of settlement that Mr. S forfeit his interest in the immovable property. By
signing the agreement, he acceded to the request.
[30] It is again apt to refer to George v Fairmead (Pty) Ltd, supra , where the appeal
court confirmed:
‘When a man is asked to put his signature to a document , he cannot fail to
realise that he is called upon to signify, by doing so, his assent to whatever
words appear above his signature. In cases of the type of which the three I
have mentioned are examples, the party who seeks relief must convince
the Court that he was misled as to the purport of the words to which he was
thus signifying his assent. That must, in each case, be a question of fact, to
be decided on all the evidence led in that particular case.’10
[31] Mrs. O successfully proved the existence of a wri tten settlement agreement
between the parties. The fundamental general principle that applies where written
agreements are concluded between parties is pacta sunt servanda. A principle that
withstood constitutional muster, albeit that the Constitutional Court confirmed that
the principle is subject to constitutional control. 11 Mr. S did not make out a case
that the agreement in question embodies contractual terms that are in conflict with
constitutional values or that he was ‘misled as to t he purport of the words to which
he was thus signifying his assent’.
[32] The issue of costs was not raised by any of the parties, and neither was it sought
in the pleadings.
ORDER
In the result, the following order is granted:
10 At 472A-B.
11 Barkhuizen v Napier 2007 (5) SA 323 (CC)
1. A decree of divorce is granted, incorporating the settlement agreement
marked ‘X’ signed by the parties.
______________________
E van der Schyff
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. In the event that there is a discrepancy
between the date the judgment is signed and the date it is uploaded to CaseLines, the
date the judgment is uploaded to CaseLines is deemed to be the date that the
judgment is handed down.
For the plaintiff: Adv. H.C. Du Plessis
Instructed by: Shapiro & Ledwaba Attorneys
For the defendant: Mr. T.K. Noyane
Instructed by: Noyane Inc
Date of the hearing: 9 June 2025
Date of judgment: 16 July 2025