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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A2024/042817
DOH: 31 JULY 2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
In the matter between:
M[…] L[…] D[…] T[…] APPELLANT
And
G[…] J[…] D[...] T[…] 1ST RESPONDENT
THE DEPUTY SHERIFF OF THE
REGIONAL COURT, BENONI 2
ND
RESPONDENT
In Re the matter between:
G[…] J[…] D[…] T[…] APPLICANT
2
And
M[…] L[…] D[…] T[…] 1ST RESPONDENT
THE DEPUTY SHERIFF OF THE
REGIONAL COURT, BENONI 2
ND RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on Caselines. The
date for hand down is deemed to be on 19 September 2025
JUDGMENT
MALI J
Et
NKOENYANE AJ
Introduction
[1] This is an appeal against the entire judgment and order of the Regional
Court, Benoni granted on 22 March 2024, setting aside the warrant of
execution (warrant) issued on 17 January 2022, in terms of section 62 of
the Magistrate court Act 32 of 1944.
[2] There is no relief sought against the second respondent, the Deputy
Sheriff, Benoni. It is common cause that the appeal was not prosecuted
timeously. The appellant had filed application for condonation for the late
filing. The first respondent agreed to abide by the decision of the court. In
the interests of justice, condonation for the late filing of the appeal was
granted.
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[3] Brief facts are that the appellant and respondent were married to each
other, out of community of property with accrual. They divorced on 28
October 2020. They entered into a settlement agreement (agreement)
which was later incorporated and made an order of court.
[4] The crux of the agreement is the determination of the accrual liability and
amount. The relevant clauses of the agreement are as follows:
“[8] The parties further agree that each party will appoint their own
chartered accountant to determine each party’s accrual, calculated until
date of divorce. Such appointments would be done on each party’s own
costs.
[9]The parties further agree their appointed chartered accountant would
take into account and determine the following property which may
include but is not limited to the value of shares of either in any business,
bank accounts, values, values of movable property and/or the existence
and/or value of any other movable or immovable properties in either
party’s name.
[10] The parties agree that they will make any documentation available
which may be relevant in respect of the abovementioned valuations and
the determination, upon request of either party.
[ 11] The parties agree that each chartered accountant will deliver a
report to all parties within a reasonable time after appointment,
whereafter a joint meeting may be held between the chartered
accountants and the parties in order to arrive at a consensus.
[12] Should this not be achieved, within 14 (fourteen) days thereafter the
chairperson of the Independent Regulatory Board of Auditors is to
appoint a person who would act as an arbitrator to settle any disputes
between the parties, and costs will be shared equally between the
parties.”
[5] It is not in dispute that the respondent did not comply with these clauses as
he did not appoint a chartered accountant to evaluate the accrual of his
estate. Whereas the appellant complied by appointing chartered
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accountant and relevant experts in accordance with the clauses of the
agreement. Furthermore, the appella nt’s attorneys communicated with the
respondent alerting him of the steps taken by the appellant. The
respondent was also requested to submit his own reports which request he
ignored for a long period of time. Further attempts made by the
respondent’s attorneys to invite him to a meeting were unsuccessful. The
respondent had indicated that he was engaged in some other matters and
never followed up on his obligation in accordance with the settlement
agreement.
[6] In the meeting the respondent failed to attend, the experts made a
determination and arrived at the figure of R618 009 .50, being the amount
due by the respondent to the appellant. The appellant obtained a warrant
depicting the amount as above, for which the attachment was later made in
the respondent’s bank account.
[7] The respondent challenged the issuing of the warrant by the Assistant
Registrar in the court a quo. The respondent’s argument in court a quo is
that the appellant had no valid court order , because there i s no judgment
liability which is specifically set out and describes the debt or other
obligation of the judgment debtor, which is to be enforced by the sheriff.
[8] Furthermore, the respondent decries the non- appointment of the
arbitrator. This is based on the fact that the settlement agreement did not
fully resolve the dispute as to the value of the accrual.
[9] The appellant contends that she complied with all the obligations under the
contentious clauses. The accrual was accordingly properly computed, and
the warrant was lawfully issued.
[10] The question before the court a quo was whether the appellant complied
with all the legal requirements in obtaining the writ/warrant of execution.
[11] Section 62 of the Magistrate Court Act 32 of 1944 provides:
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“(1) Any Court which has jurisdiction to try an action shall have
jurisdiction to issue against any party thereto any form of process in
execution of its judgment in such action.
(2). A Court (in this subsection called second court), other than the court
which gave judgment in an action, shall have jurisdiction on good cause
shown to stay any warrant of execution or arrest issued by another Court
against a party who is subject to the jurisdiction of the second court.
(3) Any Court may, on good cause shown, stay or set aside any warrant
of execution or arrest issued by itself, including an order under section
seventy-two.”
[12] The court a quo reasoned that the clauses relied upon by the appellant did
not have a definitive amount to be attached but based on the calculations
of the appellant’s legal experts and chartered account reached is not
reflected in the settlement agreement. It is further stated that the
settlement agreement provided that in the event that the parties ’ charted
accountants fail to agree, the matter was to be referred for Arbitration for
final adjudication. It cannot be said from the settlement agreement that the
court ordered determinable amount. At most the applicant could have been
held in contempt as he failed to appoint chartered accountants to assist
him as the respondent obliged.
[13] Other aspects of the court a quo’s judgment are as follows:
“The Applicant in his arguments did not even try to give reasons or justify
his failure to comply with the agreed settlement in terms of clauses 8 to
15 at least. This attitude does not help the Applicant as he is not
coming to court with clean hands, however, the Respondent failed to do
the necessary step of approaching the court to obtain the necessary
order which would be having the exact amount claimed and how they
came to that conclusion.
There was no amount at least available to the Assistant Registrar to
determine the extent on which the warrant of execution would be
determine the extent on which the warrant of execution would be
satisfied after the attachment of the bank account. The Respondent used
the information available furnished by the Applicant during the pleading
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before the divorce was finalized to determine the accrual of the
Applicant’s estate. [ added emphasis]
There is no doubt that the Applicant failed to comply with the settlement
agreement with a reasonable period and neglected to appoint chartered
accountants to assist in this regard. It is very clear he deliberately
ignored the Respondent when invited to try and finalise the estate in
accordance with the settlement agreement and this is demonstrated by
his swift action when his bank account is attached and frozen.
I therefore believe that the Respondent did not act appropriately in
obtaining the warrant of execution but should have approached court to
obtain court order to sustain the issue the warrant of execution.”
On appeal
[14] In this court , the appellant’s argument is that t he settlement agreement
was incorporated and made an order of court, as such had the necessary
Court Order issue a warrant of execution.
[15] Respondent’s argument is that the appellant did not have a Court order to
issue the warrant of execution. The appellant was wrong to rely o n the
settlement agreement, the same submission made in court a quo about
lack of the judgment liability was repeated with vigor. Respondent’s
argument is that the figures reached by the appellant’s accountants should
have been on the settlement agreement.
[16] The crux of respondent’s argument is that the appellant had no judgment
at all. Reference is made to Campbell v Botha and others 1 that there is
no judgment at all, therefore execution could not prevail.
[17] Furthermore, the respondent submits that the appellant should have taken
certain steps. The respondent does not state which steps the appellant
missed.
1 [2008] ZASCA 126; 2009 (1) SA 238 ( SCA)
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[18] Respondent’s argument in respect of Arbitration is that the settlement
agreement provided that in the event that the parties ’ charted accountants
fail to agree, the matter was to be referred for Arbitration for final
adjudication. It cannot be said from the settlement agreement that the court
ordered determinable amount.
Discussion
[19] The issue considered by the court a quo is the absence of the amount in
the warrant. This is not correct, the warrant has the amount or figure,
hence the respondent’s bank was able to freeze the amount in question.
The figure is as a result of application of the clause/s agreed upon by the
parties in the settlement agreement.
[20] The respondent’s version in the founding affidavit in the court a quo quotes
paragraph 4.6 which states;
“The deed of settlement also make provisos for the
calculation of any accrual, if applicable…”
[21] It is common cause that the accrual was applicable, and the settlement
agreement which became a court order provides for the calculation of
accrual. In compliance with the court order the appellant undertook the
calculation without the participation of the respondent. The reasons for
doing so have been alluded above.
[22] In Eke v Parsons and Others,
2 (Eke) the Constitutional Court explained
the effect on a settlement agreement which was made an order of court:
“Once a settlement agreement has been made an order of court, it is an
order like any other. It will be interpreted like all court orders...”
“The effect of a settlement order is to change the status of rights and
obligations between the parties.”
[23] It is a settled rule of statutory interpretation that when interpreting
legislation, what must be considered is the language used, the context in
2 (CCT214/14 ) [2025] ZACC 30, paras 29 and 31
8
which the relevant provision appears and the apparent purpose to which it
is directed.3
[24] In addition to the principles established in Endumeni, in Capitec Bank
Holdings v Coral Lagoon Investments 194 (Pty) Ltd 4 at para [25] it is
held
“ ……. I would only add that the triad of text, context and purpose should
not be used in mechanical fashion. It is the relationship between the two
words used, the concepts expressed by those words and the place of the
contested provision within the scheme of the agreement (or instrument)
as a whole that constitutes the enterprise by recourse to which a
coherent and salient interpretation is determined. As Endumeni
emphasises, citing well -known cases, “[ t]he inevitable point of departure
is the language of the provision itself”
[25] At para [50] it is further held:
“...Meaning is ultimately the most compelling and coherent account the
interpreter can provide, making use of the sources of interpretation. It is
not a partial selection of interpretational materials directed at a
predetermined result.”
[26] Lastly para [5] reads:
“The proposition that context is everything is not a license to contend for
meanings unmoored in the text and its structure. Rather, context and
purpose may be used to elucidate the text.”
[27] The context dictates that the amount was to be determined by the
accountant/s; indeed, that occurred and the amount of R618 009.50. was
found to be the judgment debt, since the settlement agreement was
already made a court order.
[28] The interpretation of the agreement is what is envisaged in Eke .
Respondent’s status changed to that of the debtor with a determined
amount and his obligation to pay. There is no legal basis for the
3 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA
593 (SCA) para 18.
4 [2021] ZASCA 99, 2022 (1) SA 100 (SCA).
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submission that the agreement should have the amount . In fact,
respondent’s argument lack s logic, considering that the settlement
agreement which became the court order gave clear guidance pertaining
the mechanisms to get to the accrual amount . as well as the debtor and
creditor. It was not necessary for the appellant to obtain another court
order. The settlement agreement is good.
[29] Furthermore, in Eke the action to be followed by a party is clearly stated. A
litigant armed with an order may use the judgment to obtain contempt of
court order or to obtain a warrant of execution. There is no preference of
one over another . The court a quo’s view that the appellant would have
first applied for contempt of court order for respondent’s failure to attend
the meeting cannot prevail. The court a quo also is not enlightening as to
what steps the appellant failed to take.
[30] In paragraph 33 of Eke it is not envisaged that after the settlement
agreement had been made an order of court, that the judgement creditor
should approach the court again to obtain another judgment in order to
execute. What would had been the purpose of making a settlement
agreement an order of court, if it carries no executional weight? It would be
mechanical and un business like to expect the appellant to get another
order whilst already in possession of same. This would be unnecessary
dragging of the matter resulting in delayed justice to the prejudice of the
appellant.
[31] In Fischer v U bomi Ushishi Trading, 5 the court had to answer the
question of whether a divorce order has the effect that one spouse's half
share in immovable property vested in the other spouse in terms of the
divorce order or whether additional steps need to be taken before such
vesting takes place. In conclusion it is held:
“For these reasons, and to the extent that it held that dominium of
immovable property vests immediately in a spouse in accordance with a
immovable property vests immediately in a spouse in accordance with a
settlement agreement that is made an order of court, and that transfer of
5 (1085/2017) [2018] ZASCA 154; 2019 (2) SA 117 (SCA) (19 November 2018) para 29.
10
such property is not required for dominium to vest, Corporate
Liquidators was wrongly decided.[40] It follows that the court a quo erred
by relying on this case in holding that upon the granting of the divorce
order, ownership of Mr Haynes’ half share in the property vested
immediately in Mrs Haynes; and in its interpretation of s 16 of the Deeds
Registries Act.”
[32] Pertaining to the arbitration clause, what is envisaged is the dispute in the
process of determining the accrual. There is no dispute at all, therefore the
arbitration clause was not triggered. Respondent’s failure to attend the
meetings and his voluntary non- participation in the determination of
accrual is not a dispute.
[33] It is trite that the appeal court may interfere with the judgment of the court a
quo where it has been demonstrated that the court a quo has misdirected
itself in its conclusion.
[34] Having regard to the above it is concluded that the court a quo misdirected
itself in setting the warrant aside. The appeal must succeed. In the result
the following order is granted.
Order
1. Appeal is upheld with costs on attorney and client scale.
_______________________
N.P. MALI
JUDGE OF THE HIGH COURT
I agree ______________________
N NKOENYANE AJ
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ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Appellant
Adv C van der Merwe
Instructed by: Minnie & Du Preez Attorneys
Tel: 011 391 0271
Email: marius@minnieattorneys.co.za
Counsel for the 1st Respondent
Adv AA Basson
Instructed by: Arthur Channon Attorneys
Tel: 012 997 3747
Email: arthur@channonattorneys.co.za
Date of hearing: 31 July 2025
Date of Judgment: 19 September 2025