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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 8233/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 25 July 2025
Signature:
In the matter between:
S[...] J[...] H[...]-C[...] Applicant
And
R[...] M[...] L[...] Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This is an opposed application to set aside a warrant of execution with punitive
costs. More specifically the applicant seeks an order in the following terms:
1.1 That the warrant of execution issued under case number
8233/2017 dated 6 October 2023 and issued on 17 October
2023 is set aside.
1.2 That the respondent shall pay the costs of this application on
the scale of attorney and client.
[2] The respondent seeks an order dismissing the application with costs.
B. BACKGROUND
[3] The background to this matter is that the parties were previously married and
became divorced during April 2018. They concluded a settlement agreement
which was made an order of court.
[4] Three children , all dependent majors, were born from the marriage. It is the
maintenance costs of the children that is central to the dispute between the
parties.
[5] The dispute relates to the non -payment of maintenance from early 2019 until
2023.
[6] The parties attempted mediation twice, during September 2019 and September
2022.
[7] The applicant applied to vary the settlement agreement in 2019. He withdrew
that application in August 2022.
[8] The respondent issued a warrant of execution on 17 October 2023 which was
served on the applicant on 4 November 2023.
[9] The applicant launched an application to set aside the warrant of execution on
22 November 2023.
C. ISSUES
[10] The main issue in this application is whether or not the court should set aside
the warrant of execution against the applicant under the above case number,
as well as a determination as to which party should pay the costs of this
application and on which scale.
D. APPLICANT’S CONTENTIONS
[11] The Applicant applies for the warrant of execution to be set aside for the
following reasons:
11.1 There is no valid causa for the issuing thereof.
11.2 The amount claimed by the respondent in the warrant of
execution is, to the respondent's knowledge, incorrect and in
dispute.
11.3 The warrant has not been issued in accordance with the terms
of the court order upon which it is premised.
11.4 Upon a proper accounting in terms of the provisions of the
settlement agreement, the respondent is in fact indebted to the
applicant.
E. RESPONDENT’S CONTENTIONS
[12] The respondent’s contentions on the applicant’s breach of the settlement
agreement over a long period of time, leading to the applicant’s indebtedness
on which the writ is premised are detailed in her answering affidavit and
summed up by her counsel in the heads of argument . I do not propose to
restate those facts which were meticulously dealt with in the hearing , save to
adumbrate the fact that they concern expenses related to the University
education and accommodation costs for the children and costs of an
emergency medical expense in one instance. The respondent has to date not
been compensated for these costs as envisaged in the settlement agreement.
F. DISCUSSION
[13] The specifics around the amounts attributed to the applicant’s non-payment
were detailed in Mrs. Rooney’s confirmatory affidavit, which is ironically, based
on a spreadsheet designed by the applicant himself.
[14] Having regard to the agreement, and the fact that the applicant did comply with
it at the beginning , the applicant’s contention that there was no valid causa for
the issuing of the writ lacks foundation. The same can be said for the rest of the
bases on which the applicant founds his application.
[15] The decision in Butchart v Butchart1 confirmed that a writ of execution may be
validly issued based on an 'expenses clause' contained in a maintenance
order, provided the amount is easily ascertainable. This decision was followed
by her Ladyship Siwendu J in VDB v VDB2 when she held that this procedure
was correct. The latter case has uncanny similarities with the current matter.
[16] The applicant is well aware that if for any reason, he wishes to obtain a
reduction of the amount of maintenance specified in the settlement ag reement
he needs to approach a competent court. He has in fact done so but withdrew
the application midstream, just as he was about to face cross -examination. He
was seemingly reluctant to face a cross-examiner who would confront him
about the proceeds of a luxury house he had recently sold.
[17] The respondent submits that the applicant had given a sob -story pleading
poverty at the variation hearing he had initiated, before the withdrawal.
G. CONCLUSION
[18] In all the circumstances, I am disinclined to exercise my discretion in favour of
the applicant.
11997 (4) SA 108 (W)
2 2022 (5) SA 633 (GJ)
[19] Accordingly, the application to set aside the writ is dismissed with costs taxable
at scale C.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 29/01/2025
Date of Judgment: 25 July 2025
On behalf of the Applicant: Adv L. Franck
Instructed by: SWVG Inc Attorneys, Pretoria
On behalf of the Respondents: Adv. D. Turner SC
Instructed by: Fuchs Roux Attorneys
Delivery: This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand-down is deemed to be 25 July 2025.