SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case 2024/131418
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
7 August 2025

In the matter between:

J[…] V[…] N[…] Plaintiff

and

S[…] S[…] Defendant


JUDGMENT


DU PLESSIS J

[1] This is an unopposed divorce in which the plaintiff seeks an order to make a
settlement agreement an order of the court. The defendant, acting in her personal
capacity, filed a notice of intention to defend with a new proposed settlement
agreement.

[2] Since the defendant seemed to be self -represented and living in London, I
was initially reluctant to grant the order and invited counsel for the plaintiff to file

heads of argument to address the court’s concerns. Counsel did so, for which I am
grateful.

[3] The attorneys involved in the drafting of the settlement agreement also filed a
supplementary affidavit to set out the circumstances surrounding the signing of the
settlement agreement and subsequent communications. Having considered the
supplementary affidavit and the heads of argument filed, I am satisfied that I the
settlement agreement may be made an order of court, for the reasons that follow.

[4] On 13 November 2024, the parties entered a deed of settlement to settle the
divorce. The agreement included a clause expressly stating that the settlement
agreement may be made an order of court. Attached to the supplementary affidavit
attaches is an indemnity confirming that the agreement was explained to both
parties, and that they accepted its terms.

[5] On 5 March 2025, the defendant filed a notice of intention to defend and
submitted a new proposed settlement agreement. The supplementary affidavit filed
by the plaintiff’s attorneys explains that the defendant is assisted by a divorce
mediator who is not an admitted legal practitioner , but does have a legal
background.

[6] No plea was filed. On 9 April 2025, the plaintiff filed a notice of bar, which
expired without response. The defendant is therefore barred from pleading, and the
only pleadings before the court remain the particulars of claim, which seek to make
the settlement agreement an order of court.

[7] The supplementary affidavit further confirms that the notice of set down was
properly served on both the defendant and the mediator assisting her. The mediator
indicated that attorneys would be appointed to represent the defendant. However, no
attorneys were appointed. There was further correspondence between the parties
thereafter, wherein the attorneys indicated that the discussion does not affect the
running of the matter that remains on the unopposed roll.

[8] No application was made to uplift the bar, and no appearance was entered on
the date of hearing.

[9] I am accordingly satisfied that the plaintiff complied with all the procedures to
set down the matter on the unopposed roll.

[10] Section 7(1) of the Divorce Act
1 stipulates that

"A court granting a decree of divorce may in accordance with a written
agreement between the parties make an order with regard to the division of
the assets of the parties or the payment of maintenance by the one party to
the other".

[11] This section allows for settlement agreements regarding patrimonial
consequences of a marriage to be made orders of court.

[12] Such agreements are governed by the law of contract and settlement. The
court’s power to make settlement agreements and order derives from the
Constitution itself.2

[13] In Eke v Parsons3 and Mafisa v Road Accident Fund4 the Constitutional Court
emphasised that a court is not obliged to accept , and make an order of the court ,
everything that the parties agreed to. In Eke, the court laid down three requirements
that must be considered when making a settlement agreement an order of court.
These requirements are:

1. They must relate directly or indirectly to the dispute between the
parties;

1 ???
2 South African Broadcasting Corporation Limited v National Director of Public Prosecutions [2006] ZACC 14
para 88.
3 [2015] ZACC 30.
4 [2024] ZACC 4.

2. It must not be objectionable – it must accord with the Constitution and
the law, and not be offensive to public policy; and
3. It must hold some practical and legitimate advantage.

[14] In Mafisa,5 the Constitutional Court reaffirmed that parties may enter into
settlements or compromises to avoid litigation, and that such agreements give rise to
contractual rights and obligations. Agreements freely and voluntarily entered into
should, generally, be respected and enforced.
6

[15] In PL v YL 7 the court stated two basic requirements for making a settlement
agreement an order of court in divorce proceedings:

“An overview of the reported decisions on the subject shows that there are
two basic requirements that are to be met when the court considers a request
to grant a judgment in accordance with the terms of a settlement agreement.
The first is that the court must be satisfied that the parties to the agreement
have freely and voluntarily concluded the agreement and that they are ad
idem with regard to the terms thereof. As will be pointed out later in this
judgment, the granting of an order in terms of s 7(1) of the Divorce Act holds
certain consequences for the rights of the parties. To the first requirement
must accordingly be added that the court must satisfy itself that the parties are
in agreement that the terms of their settlement be made part of the order of
the court. The second requirement is that the order sought must be a
competent and proper one to make in the circumstances. The first
requirement speaks for itself. It is the second requirement and in particular its
content that is relevant to this appeal and the issue raised in the Thutha
judgment. What it requires in the first place is that it must be competent for the
court to make the settlement agreement an order. That is, it must relate
directly or indirectly to an issue or lis between the parties that is properly

5 Para 33.
6 Para 36.
7 2013 (6) SA 28 (ECGG).

before the court, and in respect whereof, but for the settlement agreement, it
would possess the necessary jurisdiction to entertain it.”

[16] In this matter, I am satisfied that the settlement agreement was signed by
both parties and is binding as between them. If made an order of court, it would be
capable of enforcement. While the defendant later sought to depart from the
agreement, her proposal was not accepted by the plaintiff. No plea was filed. After
the expiry of the notice of bar, no application was made to uplift it. The defendant
was aware of the proceedings, and aware of the set down.

[17] The matter is thus properly before the court as an unopposed divorce with a
validly concluded settlement agreement. There is no indication that the agreement
was not freely and voluntarily entered into. The court must adjudicate on the
pleadings before it and, in this instance, those pleadings support the relief sought.
8

Order
[18] Accordingly, the following order is made:
1. The marriage between the parties is dissolved;
2. The decree of divorce incorporating the settlement agreement marked
“B”.

WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg

Date of hearing:

15 July 2025
Date of judgment:

7 August 2025
For the applicant:

LF Talja ard appeared at the second
appearance and submitted heads of
argument, GS Moeletsi appeared at the

8 PL v YL 2013 (6) SA 28 (ECG).

first appearance. They were instructed by
Denga Incorporated.

For the respondent:

No appearance.