SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2020-40872
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 03/09/25
SIGNATURE
In the matter between:-
Q[...] K[...] (Born H[...]) Applicant
and
M[...] K[...] Respondent
JUDGMENT
Mfenyana J
[1] In this application, the applicant seeks an order compelling the respondent to
make proper financial disclosure in compliance with the Practice Directive of
the Judge President of this Division issued on 12 June 2024. The applicant
further seeks an order directing the respondent to pay the costs of this
application on attorney and client scale.
[2] The respondent is opposing the application.
[3] The parties, who are married to each other out of community of property,
excluding accrual, are entangled in divorce proceedings pending before this
court. Two children were born of the marriage, who are still minors. The
summons was issued on 27 November 2020. On 29 April 2021, the defendant
delivered his notice of intention to defend and his plea on 19 May 2021.
Thereafter, the parties exchanged discoveries , the last of which was the
plaintiff’s discovery, delivered on 4 August 2023.
[4] On 23 November 2023, the applicant signed a settlement agreement,
disposing of the litigation between the parties. The respondent signed the
settlement agreement on 5 December 2023. Thereafter, the applicant’s
attorneys at the time applied for a hearing date on the unopposed motion roll.
[5] On 5 July 2024, the applicant , through her new attorneys of record, sent a
request to the respondent’s attorneys for the responde nt to deliver his
Financial Disclosure Form (FDF) , ostensibly, as envisaged in the Judge
President’s Directive. This was followed by another similar request on 11 July
2024. Having not received the FDF as requested, the applicant sent another
request on 19 July 2024, this time advising that she would proceed with an
application to compel, should the respondent fail to furnish his FDF. To date,
the respondent has not furnished his FDF. The applicant contends that she is
prejudiced by the respondent’s non-compliance, as she is unable to proceed
with litigation.
[6] In opposing the application, the respondent avers that the FDF is not
necessary as the parties have settled their disputes and signed a settlement
agreement. He further contends that t he applicant’s reliance on the Practice
Directive is misplaced , as the applicant sent different requests from two sets
of attorneys, and as such, the respondent could not be expected to entertain
all these requests. The respondent further avers that the applicant’s current
attorneys only formally placed themselves on record on 10 September 2024
after the requests were made by the applicant’s previous attorneys. He further
after the requests were made by the applicant’s previous attorneys. He further
contends that the applicant’s current attorneys failed to disclose to his
attorneys what their involvement in the matter was, and given his right to
privacy, he instructed his attorneys not to furnish his FDF.
[7] It is further the respondent’s contention that the applicant’s requests are not in
accordance with the rules of court, as the applicant’s current attorneys were
not yet on record. As such, there is no justification for the present application.
Importantly, the respondent notes that the relevant provision of the Practice
Directives only requires financial disclosure forms in the event of a dispute
between the parties.
[8] Finally, the respondent contends that the application is an abuse of the
process of the court, exacerbated by the fact that the applicant herself has not
furnished her FDF.
[9] In reply, the applicant concedes that her erstwhile attorneys did not deliver a
notice of withdrawal and did not provide her with feedback on the matter. As
such, they failed to act in the best interests of the minor children. The
applicant, however, avers that her current attorneys delivered the relevant
notices. In this regard, it is worth stating that the record indicates that the
applicant’s current attorneys delivered a notice of substitution on 10
September 2024.
[10] Regarding the settlement of the matter, the applicant denies that the matter
became settled. She , however, concedes that she signed the settlement
agreement on the advice of her previous attorneys , even though no FDF had
been furnished by the respondent. According to the applicant, the signing of a
settlement agreement does not mean that the dispute between the parties has
become settled.
[11] The applicant further notes that in terms of the signed settlement agreement,
the respondent is to pay R8 100.00 towards the maintenance of both minor
children. However, the respondent lives a luxurious life and is therefore in a
position to contribute more towards the maintenance of the minor children ,
she further avers . On that basis, she now disputes the maintenance amount
she previously agreed to. It is also for this reason that the applicant avers that
a dispute exists in relation to the maintenance of the minor children , which
entitles her to the relief she seeks.
[12] Interestingly, the applicant concedes that she has not furnished an FDF which
she avers she had completed with her previous attorneys who failed to serve
them on the respondent’s attorneys. She offers to complete a new FDF as she
states the previous one may be out of date.
[13] The footnote to p aragraph 29.4.7 of the 2024 Practice Directives (Revised
Consolidated Practice Directive 1 of 2024) provides that an FDF must be
completed by each party under oath, together with supporting documentation
referred to in the FDF and must be exchanged in every opposed action and in
every rule 43 matter in which maintenance is in dispute. The Practice
Directive further stipulates that the FDF must be exchanged no later than 10
days after the plea is uploaded.
[14] There is no dispute that the parties have signed a settlement agreement in
which they settled the issues between them, including parental rights and
responsibilities to the minor children, contact, maintenance, medical aid and
movable property. It further records that either party may apply to the
maintenance court to vary the maintenance amount. The applicant does not
say that she no longer wishes to be bound by the settlement agreement , and
if so what aspects of the settlement agreement she no longer wants to pursue.
[15] In the heads of argument, it is submitted that without the FDF, the court is not
in a position to make a fair and just finding regarding the best interests of the
minor children and would merely rubber -stamp the settlement agreement
concluded by the parties. The applicant asserts that the respondent is obliged
to comply with the Rules and practice directives. She relies on the decisions in
N.Z.M1 v Road Accident Fund and ABSA Bank v The Farm Klippan 490 CC 2
for this proposition. While true of the principle they assert, these decisions do
for this proposition. While true of the principle they assert, these decisions do
1 (13281/2020) [2024] ZAGPPHC 444 (16 May 2024).
2 2000 (2) SA 211 (W).
not take the applicant’s case much further. The fact is that, just as the
respondent is obliged to comply with the Rules and Practice Directives, so is
the applicant.
[16] The respondent, on the other hand , submits that following the signing of the
settlement by the applicant, he proceeded to sign the settlement agreement
on 5 December 2023. Thereafter, on 11 March 2024, the applicant’s erstwhile
attorneys applied for a date for the hearing of the matter on the unopposed
roll. The respondent contends that the purpose of filing financial disclosure
forms as envisaged in E v E and related matters 3 is to enable the court to
make a proper determination in rule 43 applications. In those circumstances,
the court would have all the facts before it , which may be material in
determining the dispute between the parties. The respondent disputes the
applicant’s submission that a settlement agreement does not mean that there
is no longer a dispute.
[17] The question is whether a settlement agreement settles the dispute s between
the parties. The answer is ‘yes’. I agree with Ms Patel that the conclusion of a
settlement agreement means exactly that: that the parties have reached
agreement on disputes between them. By affixing her signature, the applicant
bound herself to the terms of the settlement agreement . There are a number
of reasons for this position.
[18] In Barkhuizen v Napier 4, the Constitutional Court noted that the principle of
pacta sunt servanda plays a huge role in the exercise of the court’s discretion
in making settlement agreements orders of court. Thus, signatories to
settlement agreements are expected to honour their contractual agreements.
It is therefore not correct, as the applicant suggests, that concluding a
settlement agreement does not indicate that the matter is settled. A settlement
agreement is a recordal of the resolution of a dispute. Once signed, the
parties are legally bound by its terms. The fact that the settlement has not
parties are legally bound by its terms. The fact that the settlement has not
3 2019 (5) SA 565 (GJ).
4 2007 (5) SA 323 (CC).
been made an order of court does not render it pro non scripto . It remains
binding as between the parties. That the applicant has had a change of heart,
is also of no moment.
[19] In MB v RB 5, the Supreme Court of Appeal found that dissatisfaction or a
unilateral error is not sufficient ground for the variation of a settlement
agreement (which had been made an order of court). In T.R v Z.D.R6, the
court dismissed an application in which the applicant sought an order
rescinding and setting aside a settlement agreement on the basis that she
was induced by misrepresentation, dishonest and fraudulent conduct. In that
matter, the court also dismissed the application for leave to appeal.
[20] There is clearly no pending dispute between the parties. What the applicant
seeks to do is to reopen the litigation, in circumstances where there is a valid
settlement agreement concluded between the parties. I do not understand the
applicant to be saying that she seeks an order varying the terms of the
settlement agreement and the reasons therefor . What she says is that she
wants to make up her mind all over again and requires the respondent’s FDF
to do so.
[21] I do not understand the applicant to be saying that she was induced by some
or other factor in signing the agreement. Even if that were the case, the
applicant does not concern herself with the status of th e settlement
agreement, only that she should be allowed to peek into the respondent’s
financial affairs and decide what course to take , in the hope that a dispute
might arise once she has sight of the FDF. All this because, according to the
applicant, the respondent seems to be living at the lap of luxury. This is pure
speculation.
[22] The applicant’s submission that this is to compel compliance with the practice
directives is simply a ruse. As the respondent correctly points out, the
5 (259/2023) [2024] ZASCA 116 (24 July 2024) (unreported).
6 T.R v Z.D.R and Others (93454/2015) [2024] ZAGPPHC 1343 (20 December 2024).
exchange of FDFs as envisaged by the Practice Directives is only required
where there is a dispute. There is no live dispute in this matter. Besides, the
applicant has herself not complied with the very same requirement she seeks
the respondent to comply with. It makes no difference that the applicant
belatedly offers to provide an FDF. Interestingly, the applicant does not state
what dispute remains, save to state that the filing of the FDF is in the best
interests of the minor children.
[23] As regards the applicant’s submission that the court is not there to rubber -
stamp settlement agreements, the judgments of the Constitutional Court in
Mafisa7 and the Supreme Court of Appeal in Taylor8, serve as authority that a
court will not interfere with the terms of a settlement agreement in the
absence of concerns of the nature contemplated in Eke9, that the agreement
must be competent and proper and relate directly or indirectly to the lis
between the parties. This is not the same as saying that courts merely rubber -
stamp decisions. It is also not the applicant’s case that the settlement
agreement she entered into does not meet legal standards. Nothing prohibits
the applicant from approaching the maintenance court should the
maintenance amount she agreed to not be adequate. This is any event,
catered for in the settlement agreement. In the circumstances, the application
falls to be dismissed.
Order
[24] In the result, I make the following order:
a. The application is dismissed with costs
7 Mafisa v Road Accident Fund and Another [2024] ZACC 4.
8 The Road Accident Fund v Taylor and other matters (1136-1140/2021) [2023] ZASCA 64 (8 May
2023).
9 Eke v Parsons (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29
September 2015).
S MFENYANA
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES
GAUTENG DIVISION, JOHANNESBURG
For the applicant : Adv X van Niekerk instructed by Waldick Inc.
anoeschka@waldickinc.co.za
For the respondent :
Date of hearing :
Date of judgment. :
Adv H Patel instructed by MH Attorneys
info@mhatt.co.za
05 March 2025
03 September 2025