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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 6055/2005
In matter between:
L[...] N[...] M[...] Applicant
and
K[...] M[...] First Respondent
GOVERNMENT EMPLOYEES PENSION FUND Second Respondent
In re:
K[...] M[...] Plaintiff
and
L[...] N[...] M[...] Defendant
__________________________________________________________________
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED YES/NO
SIGNATURE DATE: 25/09/2025
SIGNATURE DATE
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JUDGMENT
__________________________________________________________________
STONE AJ
Introduction
[1] The applicant and the first respondent were previously married in community
of property. Their marriage was dissolved in terms of an order of this Court
on 3 November 2006. The division of their joint estate is still in dispute. This
application is a further chapter in a history of litigation between them
regarding the division of their joint estate and the applicant’s entitlement to a
part of the Respondent’s pension interest.
[2] The second respondent is the Government Employee Pension Fund (The
GEPF). The second respondent has not participated in the application.
[3] The first respondent (as plaintiff) instituted divorce proceedings in 2005
under case number 6066/2005 against the applicant (the defendant in such
action). Subsequent litigation proceedings between the parties to which I
refer herein, have all been instituted under the same case number.
Relief claimed by the applicant
[4] The relief claimed by the a pplicant in her notice of motion is formulated as
follows:
“1. The settlement agreement made an order of court on 31 October 2023 signed
by me and the First Respondent is to be declared null and void and to have
no force and effect.
2. Alternatively, the settlement agreement made an order of court on 31
October 2023 be varied and to include the following clause:
That the Plaintiff is a member of the Government Employee Pension Fund,
with Pension No.: 96221151, In terms of provisions of section 7 of the
Divorce Act, the said Plaintiff pension fund’s interest in the Government
Employee Pension Fund forms part of the joint estate.
The Defendant is entitled to an amount of R360 000.00 of the Plaintiff’s
pension fund interest in the Government Employee Pension Fund, the
Government Employee Pension Fund is hereby directed to endorse the
amount of R360 000 [Three Hundred and Sixty Thousand Rand] in favour of
the Defendant against Plaintiff Pension Fund interest and to pay the said
amount of R360 000 to the Defendant within 30 days of the order.”
That, the immovable property situated at 1 […] R[...] Street, Sun Valley,
Mamelodi West, Pretoria, Mamelodi, which the joint estate is the owner
thereof, shall be evaluated by a professional valua tor to be appointed jointly
by the parties alternatively by Association of Professional evaluators of
South Africa, within 30 [Thirty] days of the order, and the cost of such
evaluation shall be on the account of the parties in equal share.
After the evaluation of the immovable property the property shall be sold
either by a direct sale, or estate agent or public auction and the proceeds
thereof shall be shared between the parties.
The Plaintiff shall exercise his rights of first pref erence to purchase the
Defendant half share of the immovable property within 30 [thirty] days of
order, if not, then it shall be sold to a third party.
3. Costs of this application only in the event of opposition”.
Background
[5] On 3 November 2006 this court per Shongwe DJP made an order (“the 2006
order”) as follows:
“1. THAT the bonds of marriage subsisting between the plaintiff and the
defendant are hereby dissolved.
defendant are hereby dissolved.
2. THAT custody of the two minor children be and is hereby awarded to the
plaintiff, to the plaintiff, subject to the defendant’s reasonable rights of
access
3. Division of the joint estate.
4. No order as to costs. “
[6] The remaining contentious issue is whether the joint estate has been fully
divided as contemplated in paragraph 3 of the aforesaid order, in terms of a
settlement agreement that was made an order of court on 31 October 2023,
or whether it still remains to be implemented in full.
[7] Although it was previously disputed by the applicant, it is common cause in
the present application that the parties signed the aforesaid settlement
agreement which is referred to in the notice of motion, on 14 December 2020
(the settlement agreement).
[8] Despite the fact that she signed the settlement agreement in 2020, t he
applicant subsequently lodged an application to this Court for the variation of
the 2006 order , to include relief that she be aw arded 50% of the first
respondent’s interest in the GEPF . The applicant did not rely on the
settlement agreement in such application . Pursuant to such application,
Kovari J granted an order on 17 October 2022, in the absence of the first
respondent, varying the 2006 order. His order read as follows:
“1. The Order dated 3 November 2006 is varied to include paragraph 4 in the
following terms: -
“That the Second Respondent (the pension fund) be ordered to pay to the
Applicant the half share of the pension interest in the fund known as
GOVERNMENT EMPLOYEES PENSION FUND WITH NUMBER:
96221153 within three months of date of this order.”
2. (Was deleted)
3. No order as to costs”
[9] The first respondent thereafter contended that the order of Koevertjie J was
granted in his absence, and that it was at variance with the abovementioned
agreement of settlement. The first respondent therefore applied, in turn, for
an order that the variation order granted by Kovari J on 17 October 2022 be
set aside and/or varied , in terms of rule 42 of the Uniform Rules of Court,
and that the aforesaid settlement agreement concluded between the parties
be made an order of court.
[10] Such application came before Molopa-Sethosa J on 31 October 2023 . She
granted an order in the following terms:
“1. The order of Koevertjie J of 17 October 2022 is rescinded and set aside.
2. The settlement agreement entered into by the applicant (the first
respondent i n the present application) and the first respondent (the
applicant in the present application) herein dated 14 December 2020,
marked ‘X” is made an order of court
3. Each party is ordered to pay his/her own cost.”
[11] Although such order does not indicate that it was made by agreement , I was
informed in argument by counsel, that the parties were in agreement that the
order of Molopa -Sethosa J was granted by agreement. The order of
Koovertjie J was rescinded and paragraph 2 of the ord er of 31 October 2023
(making the settlement agreement an order of court) was made by
agreement. There is no judgment of Molopa -Sethoa J on record, which is
evidently due to the fact that the parties agreed to the said relief.1
1 Upon enquiry I was assured that Molopa-Sethosa J only made the order on 31 October 2023.
[12] The relief in the present application is now aimed at declaring null and void
or varying the settlement agreement which was made an order of court by
Molopa-Sethosa J on 31 October 2023. (“the 2023 order”).
[13] Applicant’s counsel approached the application on the basis that the
agreement should be declared void or varied . The Applicant did not make it
clear in her papers whether the application was based on common law
grounds or rule 42. T he respondent and his counsel approached the matter
on the basis that the application is bro ught in terms of rule 42 of the Uniform
Rules of Court . In my view the application must be determined in terms of
such rule.
The settlement agreement which was made an order of court
[14] The settlement agreement of 14 December 2020 , which was made an order
of court on 31 October 2023 (the 2023 order) reads as follows:
“WHEREAS the Plaintiff and the Defendant hereto were married to each
other on 20 July 2000 at Pretoria, in community of property in terms of the
Matrimonial Property Act, Act 88 of 1984.
AND WHEREAS the marriage relationship has broken down and the parties
divorced on 03 November 2006.
AND WHEREA S Plaintiff was a member of the GOVERNMENT
EMPLOYEES PENSION FUND (“the Fund”) at the time of divorce held
under pension fund number 9 […]. The Parties agree that the Defendant
shall be entitled to THRE E HUNDRED AND SISTY (sic) THOUSAN D
RANDS (R 360 000.00) of the pension interest held in the fund. [the
paragraph numbering starts with the number 7.2]
7.2 The said amount of the Plaintiff ’s pension interest shall be payable to the
Defendant by the fund as contemplated in section 37D(1)(d)( I) of the
Pension Fund Act read with section 7(8)(a) of the Divorce Act,
7.3 The Plaintiff will retain the remainder of the value of his fund as his sole and
exclusive property,
7.4 An endorsement shall be made in the records of the Government Employees
Pension Fund that the Defendant’s share of the Plaintiff’s pension interest is
payable to defendant. The F und shall pay to the defendant his share of the
interest as referred to herein within 90 days of being informed of how the
amount must be dealt with in accordance with Defendant’s election.
NOW THEREFORE the parties hereto agree as follows:
ENTIRE AGREEMENT
11.1 This agreement is in full and final settlement of the issues between the
parties hereto and save as provided herein, no party hereto will have any
further claim and/or claims against any other party in any form whatsoever.
11.2 Any amendment and/or variation or change to any of the terms of the
agreement will only be of any force and/or effect if such amendment,
variation and/or change is reduced to writing and signed by all the parties
hereto.”
Main issues for decision
[15] The main issues for decision are:
15.1 Whether the settlement agreem ent should be declared void and of
no force or effect based on alleged fraud by the first respondent’s
representative.
15.2 Whether, in the alternative, the settlement agreement should be
rescinded or varied.
15.3 Whether the 2023 order should be rescinded or varied.
15.4 Whether the applicant should be declared a vexatious litigant.
15.5 The interpretation of the settlement agreement: Whether it includes a
full and final settlement of the division of the joint estate, or onl y a
settlement in respect of the pension interest.
15.6 Whether the order of Molopa-Sethosa J, as it stands, can be
implemented to obtain payment from the GEPF.
The applicant’s main contentions
[16] The applicant relies thereon that the settlement agreement is void , as the
first respondent was represented by a Mr Khoza when the agreement was
negotiated and signed, who was not an attorney, but misrepresented that he
was (this is common cause). She contends that the settlement agreement is
to be set aside due to the fraud of Mr Khoza.
[17] She avers in the alternative, if the settlement agreement is not set aside, that
it should be varied, as set out in the notice of motion.2
[18] In her founding affidavit the applicant relies thereon that the 2006 order only
provided for the “division of the joint estate ”, without providing how it should
occur. She contends that the amount in the settlement agreement is not a
settlement in full of the division of the joint estate, but only constitutes a
settlement of her entitlement to receive a part of the first respondent’s
pension interest in the GEPF . It is common cause that an immovable
property in Mamelodi, Pretoria 3 (which she contends form s part of the
2 See paragraph [4] supra.
3 Referred to in paragraph 2 of the notice of motion. See paragraph 4 supra.
common property owned by her a nd the first respondent ) remains in his
possession. She avers that the immovable property should still be divided by
selling and dividing the proceeds , or that a liquidator be appointed to divide
the joint estate.
[19] She complains that the GEPF has failed to make payments to her in respect
of the first respondent’s pension interest, as the settlement agreement does
not accord with the fund’s requirements. In her replying affidavit she avers
that the request for a variation of the settlement agreement stems from “the
impracticability and short comings as the settlement fail to deal with other
joint estate, the errors come from the settlement itsel f”. Unfortunately, she
however does not provide full particulars of the alleged short comings and
the reasons why the GEPF’s has allegedly refused to make payments. She
avers that the wording of the clause containing an obligation that the GEPF
must pay her R360 000.00 as contained in the settlement order, “is of such a
nature that the Fun d requires direction to pay a nd in the absence of such
they will not pay , it is therefore on that basis that the settlement agreement
be varied” as set out in her notice of motion. A somewhat more detailed
indication appeared from her answering affidavit in the application which
served before Molopa-Sethosa J, wherein it is stated:
“In order for me to be able to enforce joint division on the pension, the
pension fund clause, and pension number as well as full details of parties,
were required to enforce the pay-out from the administrators of the second
respondent (the GEPF).”
[20] Her counsel unfortunately also could not provide more clarity regarding the
exact nature of the reasons why the GEPF would not make payment
pursuant to the 2023 order, and the reasons why the fund required a varied
court order. He argued that the “precise concern” in the 2023 order is that if
the settlement is not corrected alternatively varied, there will not be finality
on the division of the part of the joint estate (the property) as the pension
fund will still require a varied order to effect payments to the applicant.
[21] The applicant denies that she ever waived her entitlement to receive a
division of the common property , which she says is not provided for in the
settlement agreement . She avers that she would not have accepted the
amount reflected in the settlement as a settlement which includes the
division of the immovable property, as she never received particulars of the
value of the pension fund nor of the common property.
[22] In her replying affidavit she responded to allegations by the first respondent
(which he had also made in the application which served before Molopa-
Sethosa J, that the parties reached an agreement at a round table in 2018,
for the settlement off all clai ms for a specific amount of R360 000.00, and
that it was intended to consist of amounts of R250 000.00 for her half share
in the common property based on the market value thereof , and
R110 000.00 from his pension interest calculated as at the date of divo rce.
She contends that it is “legally wrong to read his intention into the
agreement, whereas, such is not recorded , I have read the settlement, but I
could not find such clause.”
[23] Her counsel submitted that the contention of the first respondent is at
variance with the contents of the settlement agreement, wherein no such
values or division are specified as being included in the R360 000.00.
[24] Her counsel contended that the true intention of the p arties with the
settlement was to only settle her claim in respect of the first respondent’s
pension interest , and t hat the settlement agreement should be interpreted
accordingly. He submitted that such division still has to take place.
[25] On the basis of the applicant’s main contentions that the agreement is void,
he submitted that the parties will still have to convene again to agree on a
division of the immovable property, and if they cannot agree, the court should
then make a division ord er. I understood him to contend, regarding the
alternative relief of a variation of the agreement, that the court has a
discretion to make an order for the division of the immovable prope rty, and
should do so in the interest of justice , to set out how the division should
occur, with reference to the procedure mentioned in the alternative prayer in
the notice of motion, in order t o bring finality to the disputes between the
parties.
[26] He sub mitted that although the parties now have divergent stances
regarding the interpretation of the settlement agreement, the settlement
agreement is not ambiguous. He submitted that both parties must have
intended to only settle the pension interest. If I und erstood him correctly, he
contended that, if the aforesaid is not the interpretation of the agreement, it
does not conform with the intention of the parties.
[27] He submitted in argument that the main point, which is really in issue, is how
the settlement agreement should be interpreted . He contended that the
dispute about what was inc luded in the settlement amount, is not a material
dispute of fact on the papers.
[28] He indicated in argument that the applicant w ould be seeking a rescission of
paragraph 2 of Molopa-Sethosa J’S 31 October 2023 4. In the alternative, i f
relief is not granted as per paragraph 2 of the notice of motion, then a 50/50
division of the joint estate property should be ordered.
The first respondent’s main contentions
[29] In his answering affidavit the first respondent relies on the following main
contentions:
29.1 The first respondent initially, submitted that the relief claimed cannot
be sustained as the court, per Molopa-Sethosa J, has already
pronounced on the matter and is res judicata . This point was
however withdrawn by his counsel, in argument.
29.2 He submitted that the applicant’s recourse is to appeal against the
order of Molopa-Sethosa J, not by way of the relief she presently
seeks.
29.3 The settlement agreement constitutes a full and final settlement of
the division of the joint estate and should so be interpreted. The
4 The applicant has not sought a rescission of the part of the order of Molopa-Sethosa-
J setting aside the order of Koertge J.
settlement agreement (paragraph 11.1) provides fo r a full and final
settlement of all claims between the parties for the amount of
R360 000.00, and the parties have agreed that they will have no
further claims of whatsoever nature against each other. The
applicant is therefore not entitled to further relief in respect of the
division of the joint estate.
29.4 The applicant’s reliance on the misrepresentation of the first
respondent’s representative (Mr Khoza) that he was an attorney, has
no merit. The first respondent does not concede th at this tainted the
consensus between the parties.
29.5 The application is in essence an application in terms of rule 42, and
he submitted that the applicant has not made out a case, in
compliance with such rule, for a rescission or variation of the order of
Molopa-Sethosa J.
29.6 The application is also opposed on the ground that the applicant
should be declared a vexatious litigant, and he seeks an order that
she should be declared as such.
29.7 The first respondent’s counsel initially submitted that there was not a
meeting of the minds between the applicant and the first respondent,
but he withdrew this submission during argument and submitted that
the settlement agreement reflects what was agreed between the
parties, and that there exist no grounds on whi ch it is void or should
be varied.
Rescission or variation of the 2023 order: The legal position
[30] It is a well -established rule that once a court has duly pronounced a final
judgment or order, it has itself no authority to set it aside or to correct, alter
or supplement it. The reasons are twofold: first, the court becomes functus
officio and its autho rity over the subject matter ceases; secondly, it is in the
public interest that litigation be brought to finality, which dictates that the
power of the court should come to an end.5
[31] In Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture Corruption and Fraud in the Public Sector
Including Organs of State6 the Constitutional Court observed:
“[t]he principle of finality in litigation which underlies the common law rules
for the variation of judgments and orders is clearly relevant to constitutional
matters. There must be an end to litigation, and it would be intolerable and
could lead to great uncertainty if courts could be approached to reconsider
final orders made.” There is a reason that rule 42, in consolidating what the
common law has long permitted, operates only in specific and limited
circumstances. Lest chaos be invited into the processes of administering
justice, the interest of justice requires the grounds available for rescission
to remain carefully def ined. In Colyn, the Supreme Court of Appeal
emphasised that “the guiding principle of the common law is certainty of
judgments”. Indeed, a court must be guided by prudence when exercising
its discretionary powers in terms of the law of rescission, which di scretion,
as expounded above, should be exercised only in exceptional cases,
having “regard to the principle that it is desirable for there to be finality in
judgments”.
5 Gaborone v Gaborone 2025 JDR 0907 (GP) par [10]; Morae v Morae and another 2023 JDR 2064
(GP) at par [19]-[21].
6 2021 (11) BCLR 1263 (CC) at para 97-98.
[32] Once a settlement agreement is made an order of Court, it obtains the status
of a cour t order7, and must be dealt with as such. C ourt orders may be set
aside or varied in terms the common law, under rule 31 or in terms of rule
42, whichever finds application. The applicant did not set out in her
application on which of these bases she reli es. The first respondent
accepted in his papers, and it was also argued by his counsel, that the
application should be assessed as a rule 42 application.
[33] The applicant has failed to set out sufficient allegations in her papers to
support a case in terms o f the rule 31 or the common law, and she did not
rely thereon. She does not contend that the order was made in her absence,
and she has failed to provide a proper explanation why the settlement
agreement was made by agreement.
[34] The court has a discretion to rescind or vary an order in terms of rule 42,
which must be exercised judicially, taking into account considerations of
fairness and justice, in view of the facts of a particular case. Before relief is
granted in terms of rule 42(1), all the jurisdictional requirements must be
present. In the absence of on e of the jurisdictional facts as contained in rule
42 (a), (b) or (c) the court does not have a discretion to set aside or vary an
order.8
[35] In terms of the common law a judgement can be set aside on grounds of
fraud, Justus error, in certain exceptional circumstances when new
documents have been discovered, where judgment was granted by default,
7 Eke v Parsons 2016 (3) SA 37 (CC).paras [8] – [14] & [24] – [25].
8 Gaborone v Gaborone 2025 JDR 0907 (GP) par [10]; Morae v Morae and another 2023 JDR 2064
(GP) at par [19]-[21].
in the absence of a valid agreement. The only identifiable common law
ground relied on by the applicant is the alleged fraud by the abovementioned
Mr Khoza, who misrepresented that he was an admitted attorney whilst
acting on behalf of the first respondent. She has not demonstrated good
cause or sufficient cause in her affidavits for a rescission under rule 31 or the
common law.
[36] A court may clarify its judgment or order if, on a proper construction, the
meaning thereof remains obscure, ambiguous or otherwise uncertain, in
order to give effect to its true intention, but it may not alter the substance of
the order or judgment9.
[37] In casu the jurisdictional facts for an application in terms of rule 42(1)(a) are
absent. That leaves potentially rules 42(1)(b) or (c). The ambiguity or patent
error or omission mentioned in rule 42(1)(b) must be attributed to the court
itself.10 Whether a common mistake existed as contemplated in rule 42 (1)(c),
must be proved by the party seeking such rescission or variation. The court
however retains a residual discretion to rescind or vary an or der or judgment
on the grounds in rule 42(1) if applicable. It can do so Mero motu, but this
discretion should be exercised judicially, and sparingly.
Is the settlement agreement void due to fraud?
[38] An assessment of the applicant’s founding affidavit shows that this is the
only ground clearly relied on by her for the contention that the agreement is
9 Firestone South Africa (Pty) Ltd v Gentrack AG 1977 (4) SA 298 (A) at 307 C – G; Thompson v
South African Broadcasting Corporation 2001 93) SA 746 (SCA) at par [5].
10 First National Bank of South Africa Ltd v Jurgens and other 1993 (1) SA 245 (W) at 246 F; Mostert
NO v Old Mutual Life Assurance Co SA Ltd 2002 (1) SA 82 SCA at 86C-D
void. The other allegations in her affidavits are rather made in support of the
alternative relief.
[39] The applicant submits that the first respondent cannot rely on the agreement
as Mr Khoza falsely represented that he was an admitted attorney, and that
he rendered advice to the first respondent whilst not being an admitted
attorney. She says that such misrepresentation r enders the agreement null
and void. Her counsel relied on a reported review application 11 where
criminal proceedings were set aside in circumstances where a person held
himself out to be a legal practitioner and represented an accused without
being admitte d as an attorney. The court considered it a gross irregularity
and set aside proceedings. In my view the facts in this matter are different.
The first respondent, who was represented by Mr Khoza, does not complain
that Mr Khoza’s position affected him or h is decision to agree to the terms of
the agreement. He was not represented by Mr Khoza when the 2023 order
was made.
[40] A party who is induced by a misrepresentation of the other party to enter into
a contract, is entitled to rescind the contract. A person r elying on a
misrepresentation to avoid the contract, must allege and prove that the
misrepresentation induced her to enter into the agreement, or that she would
not have entered into the agreement if it was not for the misrepresentation 12.
Such misrepresen tation must however be material , or in respect of a
material fact. If not, a rescission will not follow. Whether a misrepresentation
11 S v Sereni and other 2023 JDR 4041 (NWM); (HC 05/2023) [2023] ZANWHC 193 (25 October
2023).
12 See the discussion in Christie’s, The Law of Contract in South Africa, 8th Edition p 346 -347.
is material, is assessed by applying an objective test. It must be such that it
goes to the root of the contract, and it must have persuaded the other party
to enter into the agreement. It must have been made with the intention to
induce a contract and must in fact have induced the person to conclude the
agreement. The maxim that fraud unravels a contract depends on its victim ,
not the fraudster or third parties. A party must have acted to his detriment, or
have been prejudiced by the fraud, to be able to rely on fraud.13
[41] The applicant’s averments regarding the misrepresentation fall short of these
requirements. It is not disputed that the applicant herself was duly
represented by attorneys when the settlement agreement was negotiated
and signed . Although she says that Mr K hoza misrepresented his position
during negotiations and the signing of the settlement agreement, she does
not allege that the fraud of Mr Khoza induced the settlement agreement, nor
that she would not have signed it if she knew that Mr Khoza wa s not an
attorney, nor does she make out a case that she was prejudiced thereby. In
the absence of clear allegations by the applicant that Mr Khoza’s
misrepresentations concerning his position as an attorney affected her in
accepting and signing the settlement agree ment, and how it affected her,
and as the first respondent himself does not have such a complaint, I am of
the view that this does not afford a basis for a finding that the agreement is
void.
The alternative relief, to vary the settlement agreement which was made an
order of court on 31 October 2023.
13 Nihongo Property Investments (Pty) Ltd v Groenewald and Others 2022 (2) SA 543 (WCC) at [25] –
[27].
[42] The court may grant orders regarding the way in which assets of a joint
estate should be divided, if the parties cannot agree thereto, and if the joint
estate has not yet been divided 14. It is however trite that the court cannot
make a new contract for the parties. A request for a variation of the
agreement can be made if it does not reflect the parties’ true intention.15.
[43] The applicant seeks alternative relief in the form of a variation of the terms of
the settlement agreement . She seeks relief that is final in nature. 16 Her real
motivation with the application appears to be to obtain an order that could
place her in a position to receive a pa rt of the first respondent’s pension
interest from the GEPF. The stated reason for the amendments is to include
practical arrangements to achieve a division, and to record her entitlement to
an interest in the first respondent’s pension fund. These allegat ions are
however not presented as a basis to avoid the agreement. Her contentions,
and that of her counsel, illustrate that her requested variations to the
settlement agreement constitute an attempt t o obtain an order which the
GEPF would be willing or com pelled to implement. The applicant does not
rely on an ambiguity, a patent error or omission attributable to the court, save
insofar as it is alleged that the GEPF has requested a clearer or more
circumscribed order. She equally does not clearly rely in he r papers on a
mistake common to the parties. She has not made out a case on her
affidavits in terms of rule 4217.
14 Id.
15 LH V NH 2020 JDR 2711 (GP) par [30];
16 JN v NN 2022 JDR 1357 (ECMA).
17 Fritz v Feudatory Umbrella Pension Fund and Others 2013 94) SA 492 (ECP)
[44] In argument counsel for the applicant submitted that there has not been a
meeting of the minds between the parties as to the question whether the
agreement included a total settlement of all disputes, or only a settlement in
respect of the pension interest. Counsel for the first respondent initially also
submitted that there was no meeting of the minds, but he withdrew the
submission in argumen t. He then proceeded to contend that there was
indeed a meeting of the minds in respect of the terms of the settlement
agreement.
The interpretation of the settlement agreement
[45] In deciding whether a court order should be rescinded or varied, the order
itself must also be considered and interpreted. In casu, this also entails the
interpretation of the settlement agreement which now forms part of the 2023
order. I deal with this infra.
[46] Counsel for both parties intimated that there should be finality to the disputes
between the parties . They agree that the court should decide on the correct
interpretation of the settlement agreement in order to determine whether it
includes a full and final settlement in respect of the applicant’s entitlement to
a part of the first respondent’s interest in the GEPF only, or whether it
includes a total settlement in respect of the division of the joint estate. The
interpretation of the agreement also proved to be relevant to the relief to be
granted.
The Law: Interpretation of contracts and court orders
[47] Erasmus, Superior Court Practice 18, summarise the principles applicable
to the construction of court orders , with reference to Natal Joint Municipal
Pension Fund v Endumeni Municipality19, as follows:
“The basic principles applicable to construing documents apply to the
construction of a judgment or order. This includes settlement orders. In a long
line of cases the position has been held to be as follows:
(i) The Court’s intention is to be ascertained primarily from the language of
the judgment or order as construed according to well-known rules.
(ii) As in the case of a document, the judgment or order and the court’s
reasons for giving it must be read as a whole in order to ascertain its
intention.
(ii) If, on such a reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic fact or evidence is admissible to contradict,
vary, qualify or supplement it. In such case not even the court that gave
the judgment or order can be asked to state what its subjective intention
was in giving it.
(iv) If any uncertainty in meaning does emerge, the extrinsic circumstances
surrounding or leading up to the court’ s granting of the judgment or
order may be investigated and regarded in order to clarify it;
(v) If the meaning of the order is, however clear and unambiguous, it is
decisive, and cannot be restricted or extended by anything else stated
in the judgment”.
[48] In Endumeni Municipality the approach to interpretation of contacts was
set out as follows by the Supreme Court of Appeal: 20
“The present state of our law can be expressed as follows: Interpretation is
the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to
the context provided by reading the particular provision or provisions in the
light of the document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document, consideration
coming into existence. Whatever the nature of the document, consideration
18 Second Edition, Volume 2 at p42-25/26.
19 2012 (4) SA 59 (SCA) at 603F-610C.
20 Id par [18].
must be given to the language used in the light of the ordi nary rules of
grammar and syntax; the context in which the provision appears; the
apparent purpose to which it is directed and the material known to those
responsible for its production. Where more than one meaning is possible
each possibility must be weig hed in the light of all these factors. The
process is objective, not subjective. A sensible meaning is to be preferred
to one that leads to insensible or unbusinesslike results or undermines the
apparent purpose of the document. Judges must be alert to, an d guard
against, the temptation to substitute what they regard as reasonable,
sensible or businesslike for the words actually used. To do so in regard to
a statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context it is to make a
contract for the parties other than the one they in fact made. The 'inevitable
point of departure is the language of the provision itself', read in context
and having regard to the purpose of the provision and the backgr ound to
the preparation and production of the document.”21
[49] In the same matter22 Wallis JA further explained:
“[24]The sole benefit of expressions such as 'the intention of the legislature' or
'the intention of the parties' is to serve as a warning to courts that the task
they are engaged upon is discerning the meaning of words used by
others, not one of imposing their own views of what it would have been
sensible for those others to say. Their disadvantages, which far outweigh
that benefit, lie at opposite ends of the interpretative spectrum. At the one
end, they may lead to a fragmentation of the process of interpretation by
conveying that it must commence with an initial search for the 'ordinary
grammatical meaning' or 'natural meaning' of the words used seen in
isolation, to be followed in some instances only by resort to the context.
isolation, to be followed in some instances only by resort to the context.
At the other, they beguile judges into seeking out intention free from the
constraints of the language in question, and then imposing that intention
on the language used. Both of these are contrary to the proper approach,
which is from the outset to read the words used in the contex t of the
document as a whole and in the light of all relevant circumstances. That
is how people use and understand language and it is sensible, more
transparent and conduces to greater clarity about the task of
interpretation for courts to do the same.
[25] Which of the interpretational factors I have mentioned will predominate in
any given situation varies. Sometimes the language of the provision,
when read in its particular context, seems clear and admits of little if any
ambiguity. Courts say in such cases that they adhere to the ordinary
21 Also: MAS Stores (Pty) Ltd v Marray & Roberts Construction (Pty) Ltd and Another 2008 (6) SA 654
(SCA) para 7; Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Funs 2010
(2) SA 498 (SCA) paras 12-14; Bothma-Batho Transport v S Bothma & Seun Transport (Edms)
Bpk 2014 (2) SA 494 (SCA) paras [10] – [12]; Better bridge (Py) Ltd v Masilo and others NNO 2015
(GNP) par [8], where Unterhalter J referred to the approach as “a unitary endeavour requiring the
considerations of text, context and purpose”.
22 Indumeni, supra n19 paras [24] and [25].
grammatical meaning of the words used. However, that too is
a misnomer. It is a product of a time when language was viewed
differently and regarded as likely to have a fixed and definite meaning; a
view that the experience of lawyers down the years, as well as the study
of linguistics, has shown to be mistaken. Most words can bear several
different meanings or shades of meaning and to try to ascertain
their meaning in the abstract, divorced from the broad conte xt of their
use, is an unhelpful exercise. The expression can mean no more than
that, when the provision is read in context, that is the appropriate
meaning to give to the language used. At the other extreme, where the
context makes it plain that adhering to the meaning suggested by
apparently plain language would lead to glaring absurdity, the court will
ascribe a meaning to the language that avoids the absurdity. This is said
to involve a departure from the plain meaning of the words used. More
accurately it is either a restriction [ or extension of the language used by
the adoption of a narrow or broad meaning of the words, the selection of
a less immediately apparent meaning [ or sometimes the correction of an
apparent error in the language in order to avoid the identified absurdity.”23
[50] The shift to an emphasis on context recognises that attributing meaning to
words al ways involves a consideration of the context in which they are
used24. A court should seek the intention of the parties as it appears from the
contract to be assessed. As pointed out in Christie’s the phrase “intention of
the parties” should not be misunderstood to mean what the parties proposed
to do, rather than what the words they used mean. The author s state in this
regard:
“This misunderstanding might cause courts to stray into the error of seeking
the parties’ intentions outside the contr act terms and giving effect to the
intention by substituting words that express that intention for those actually
intention by substituting words that express that intention for those actually
used by the parties. This is not what the process of interpretation entails. It
must be restricted to construing the meaning of the language o f the
contract in context.”25
23 See also Batho Transport (supra) n21 par [12].
24 Christie’s The Law of Contract in South Africa, 8th Edition, p 260; Natal Joint Municipal Pension
Fund supra, at par [18].
25 Id p 257.
[51] In University of Johannesburg v Auckland Park Theological Seminary
and Another (University of Johannesburg)26 the Constitutional Court dealt
with the parole evidence rule as follows:
“[68] Let me clarify that what I say here does not mean that extrinsic
evidence is always admissible. It is true that a court's recourse to extrinsic
evidence is not limitless because 'interpretation is a matter of law a nd not
of fact and, accordingly, interpretation is a matter for the court and not for
witnesses'. It is also true that 'to the extent that evidence may be
admissible to contextualise the document (since ''context is everything'')
to establish its factual matrix or purpose or for purposes of identification,
one must use it as conservatively as possible'. I must, however, make it
clear that this does not detract from the injunction on courts to consider
evidence of context and purpose. Where, in a gi ven case, reasonable
people may disagree on the admissibility of the contextual evidence in
question, the unitary approach to contractual interpretation enjoins a court
to err on the side of admitting the evidence. There would, of course, still
be sufficient checks against any undue reach of such evidence because
the court dealing with the evidence could still disregard it on the basis that
it lacks weight. When dealing with evidence in this context, it is important
not to conflate admissibility and weight.”
………….
“[89] The rule consists of two subrules. This duality was outlined by
Corbett JA in Johnston:
' As has been indicated, the parole evidence rule is not a
single rule. It in fact branches into two independent rules or
sets of rules: (1) the integration rule . . . which defines the
limits of the contract, and (2) the [interpretation] rule, or set
of rules, which determines when and to what extent extrinsic
evidence may be adduced to explain or affect the meaning
evidence may be adduced to explain or affect the meaning
of the words contained in a written contract.' [
[90] The parole evidence rule therefore has both an integration
facet and an interpretation facet. It is the latter facet th at was
relied on by the Supreme Court of Appeal. That facet of the rule
was explained by Corbett JA as follows:
'In many instances recourse to evidence of an earlier or
contemporaneous oral agreement would, in any event, be
precluded by . . . that branch of the rule which prescribes that,
subject to certain qualifications, when a contract has been
reduced to writing, the writing is regarded as the exclusive
embodiment or memorial of the transaction and no extrinsic
evidence may be g iven of other utterances or jural acts by the
parties which would have the effect of contradicting, altering,
adding to or varying the written contract. The extrinsic
evidence is excluded because it relates to matters which, by
reason of the reduction of the contract to writing and its
26 2021 (6) SA 1 (CC) paras [68], [89] [90],
integration in a single memorial, have become legally
immaterial or irrelevant.'
[91] He continued to say:
'(I)t is clear to me that the aim and effect of [the integration] rule
is to prevent a party to a contract which has been integrated
into a single and complete written memorial from seeking to
contradict, add to or modify the writing by reference to extrinsic
evidence and in that way to redefine the terms of the contract.
The object of the party seeking to adduce such extrinsic
evidence is usually to enforce the contract as redefined or, at
any rate, to rely upon the contractual force of the additional or
varied terms, as established by the extrinsic evidence.'
[92] The integration facet of the parole evidence rule relied on by the
Supreme Court of Appeal is relevant when a court is concerned
with an attempted amendment of a contract. It does not prevent
contextual evidence from being adduced. The rule is concerned
with cases where the evidence in question seeks to vary,
contradict or add to (as opposed to assist the court to interpret)
the terms of the agreement…”27
Evidence
[52] In casu, it was indicated in a practice note that the first respondent would
request to give oral evidence. At the hearing, counsel for the first respondent
indicated that he would not present oral evidence. Counsel for the applicant
submitted that there w ere no material disputes of fact , and the applicant did
not apply that any aspect of the matter be referred for oral evidence or for
trial. I therefore deal with the matter on that basis.
[53] The gist of the first respondent’s extrinsic evidence is that the parties met
with their legal representatives and negotiated in 2018, deciding on the fixed
amount of R360 000, 00 calculated by way of an amount of R110 000 as
pension interest as at date of the divorce and R250 000.00 based on a half
share of the immovable propery value. The settlement agreement itself
share of the immovable propery value. The settlement agreement itself
27See also KPMG Chartered Accountants (SA) v Secure fin Ltd and Another 2009 (4) SA399 SCA par
[30].
however does not contain an indication of such a division, or that the amount
includes a share of the property . The applicant disputes this. In my view this
evidence regarding the settlement agreement and negotiations rather fall in
the second category of evidence to which the parole evidence rule pertains,
namely evidence which seeks to vary, contradict or add to the agreement, as
contemplated in University of Joha nnesburg28. It is also of note that the
round table was allegedly held in 2018, whereas the agreement was only
signed in December 2020.
[54] In the application which served before Molopa-Sethosa J the first respondent
also relied on the aforesaid agreement in 2018. The applicant avers that she
raised, in previous papers, that the division of the joint estate has not yet
taken place. She disputes that the parties agreed on the terms as alleged by
the first respondent.
[55] The application unfortunately lacks full and supported particulars of the way
in which the amount of R360 000.00 was compiled and calculated. The first
respondent did not provide any valuation of the property as at the time of
signature or on any other date, nor other supporting evidence. The applicant
has equally placed no valuation of the property before the court.
Furthermore, neither of the parties have submitted on record a certificate of
the GEPF or other calculation of the actual value of the applicant’s interest in
the GEPF as at the date of the divorce on record. In the premises , even if
the first respondent’s evidence regarding prior negotiations is admitted, in my
view the available evidence still does not conclusively show (even if the
28 Supra n 28
amount of R360 000.00 was in full and final settlement) whether the
calculation of the amount includes a value for common property or not.
Content, context and purpose.
[56] In applying the principles set out in the abovementioned authorities, and
mindful of the importance of the words used, a contextual interpretation, and
the purpose of the agreement, I proceed to consider the words of the
agreement.
[57] In my view the words in the agreement are not ambiguous, (save in respect
of minor ambiguity in paragraph 7.4. referred to infra29, which does not
affect the core enquiry of whether the settlement is a full and final ). In my
view the words of the agreemen t are sufficiently clear on the question
whether or not it contains a full and final settlement . The first t wo
unnumbered paragraphs of the agreement, and the first sentence of the third
paragraph thereof, which respectively begin with words “WHEREAS” or
“AND WHEREAS” contain statements which are in the form of a preamble or
recital30. It records the fact that the parties were married in community of
property, and that they are divorced . The first sentence of the third
unnumbered paragraph , which als o starts with “AND WHEREAS” , is also
rather in the form of a preamble, recording that the first respondent (plaintiff)
was a member of the GEPF.
29 Par [89] – [93].
30 Logistic Inc and Others v Van der Merwe 2010 (3) SA 105 (WCC) par [11].
[58] The aforesaid preamble paragraphs do not set out in respect of which part of
the joint estate the settlement is concluded. The second sentence of the third
unnumbered paragraph to the settlement agreement 31, which provides for
the payment by the Fund of an amount of R360 000.00, does not specify
how it is made up . It provides that the payment is an amount “of the
Plaintiff’s pension interest held in the Fund ”. This in itself however does not
indicate what the payment is for, it only specifies the origin of the payment.
[59] Read with the contents of paragraphs 7.2 to 7.4 (which all only deal with the
pension fund and pension interest), it is clear that the origin of the payment
of R360 000.00 is the first respondent’s pension fund interest , and that the
applicant is to receive such payment from the Fund . The agreement places
no obligation to pay on the first respondent himself.
[60] Applicant’s counsel submitted that paragraph 7.4 informs what is settled in
terms of the agreement . He referred to section 7(8)(a) of the Divorce Act 32,
submitting that the use of the word “ share” shows that it is only the
applicant’s share in the pension interest which was settled . The Divorce Act
does not use the same terminology. It refers to a “ part” of the “pension
interest” which is due or assigned to the party to a divorce which is not a
member of the pension fund. Section 7(8)(a) of the Divorce Act provides that
the court granting a decree of divorce in respect of a member of the fund
may make an order that any part of the pension interest of the member due
or assigned to the other party to the divorce action, shall b e paid to the other
party by the fund when the pension benefits accrue. In my view the use of
31 See paragraph [14] supra.
32 Act 70 of 1979.
the words “share of the Plaintiff’s pension interest ” in paragraph 7.4 of the
settlement agreement can only refer to the amount of R360 000.00. A
different interpretation would be ambiguous.
[61] In paragraph 7.2 of the agreement , reference is also made to section
37D(1)(d)(i) of the Pension Funds Act 25 of 1956. This subsection provides
that a registered fund may:
“(d) deduct from a member's individual account in the case of a defined
contribution category of a fund or, in any other case, from a minimum
individual reserve in the fund as determined by the fund rules or as
determined in accordance with the Income Tax Act and the Tax
Administration Act, 2011 (Act 28 of 2011)-
(i) any portion of the pension interest assigned to a non -member spouse
in the court order”
[62] In my view the reference s to section 7(8)(a) of the Divorce Act and section
37D(1)(d)(I) of the Pension Funds Act, and the reference to the “share” of the
pension interest on their own inform an interpretation that the amount of
R360 000.00 would be payable from the first respondent’s pension interest.
[63] This interpretation is reinforced by the content of paragraph 7.3 of the
agreement which provides that the first respondent would retain the
remainder of the value of his fund as his sole and exclusive property. It was
argued on beh alf of the applicant that, as the agreement does not in the
same terms refer to a settlement of the division of the rest of the joint estate ,
it is excluded (apparently on the basis of the inclusion unius exclusio alterius
maxim33). It was submitted that if the settlement agreement was intended to
include a settlement in respect of the immovable property, one would have
expected that it would also have referred to the immovable property.
[64] A further consideration is the fact that the agreement does not refer at all to
the 2006 court order, in terms whereof the joint estate , so it is argued, still
had to be divided. In this regard consideration should be had to the order of
Molopa-Sethosa J, which did not vary paragraph 3 of the 2006 or der. She
did not, as was done by Koevertjie J, vary the 2006 order. The first
respondent’s counsel submits that her order was supplementary to the 2006
order. In my view this was the effect thereof.
[65] The first paragraphs of the settlement agreement (up to p aragraph 7.4
thereof) however do not exist in isolation. It must be read in the context of
paragraph 11.1 and 11.2 thereof . If regard is had to the words “NOW
THEREFORE the parties agree as follows:” after paragraph 7.4, it would
appear that the preceding paragraphs of the agreement (from the
unnumbered paragraphs before paragraph 7.2 up to and including
paragraph 7.4), serve to both record what is agreed, and in effect as a
preamble to paragraphs 11.1 and 11.2.
[66] The use of the words “NOW THEREFORE” after paragraph 7.4 leads to an
interpretation that what is contained thereafter, in paragraphs 11.1 and 11.2,
is a consequence of or follows upon what is contained in the settlement
agreement up to paragraph 7.4 thereof. The context of clause 11.1 is that at
33 See Christie’s supra, at p 277.
the time of the agreement , one of the issues that remained unresolved was
the division of the property. The use of the word “issues” (plural) also informs
an interpretation that all disputes between the parties are settled. It is not
necessarily only the claim for a portion of the first respondent’s pension
interest which is made part of the settlement, but indeed of other remaining
issues in dispute. It is also compatible with the first respondent’s contentions
that the settlement included a settlement in respect of the common property.
[67] The second part of paragraph 11.1, which provides that “save as provided for
herein, no party hereto will have any further claim and/or claims against any
other party in any form whatsoever ”, is also clear and unambiguous. It must
be read with the provision that the agreement is a settlement “ of the issues
between the parties ”. In context, t he parties must surely have known when
signing the agreement what issues still remained to be resolved. The words
“any other claim and/or claims in any form whatsoever” are wide in meaning,
and inclusive. On the face of it, it is not necessarily limited to a division in
respect of the pension interest. Although the issues are not specified, the
words of paragraph 11.1 are clear, and leave no room for a contention that
the agreement only contained a partial settlement. Such an interpretation
would be at variance with the word s of the agreement , and the mentioned
principles of interpretation.
[68] Interpreted as a whole, the fact that the preceding paragraphs only deal with
the pension interest, does not cr eate an ambiguity . From t he second
sentence of the third paragraphs, up to paragraph 7.4 , the settlement
agreement deals with the existence of the pension interest and that an
amount will be paid to the applicant theref rom. This is not incompatible with
the provision in paragraph 11.1 which can in my view only be interpreted to
mean that, save for payment of such amount by the fund, the applicant will
have no further claim of whatsoever nature against the first respondent.
[69] An important consideration of the context in which the agreement was
signed, is that the applicant was at the time represented by attorneys. There
could have been no doubt in the mind of a legal representative that the
settlement’s words, on the face of paragraph 11.1, referred to a full and final
settlement of more than the pension interest. I also take into account that the
parties subsequently agreed before Molopa-Sethosa J that the settlement be
made an order of court. Thus, the applicant and her legal representatives
had more than one occasion to consider the contents of the agreement ,
including the import of clause 11, and agreed thereto.
[70] As to the purpose of the agreement, it appears from paragraph 11.1 the
agreement was to achieve a full and final settlement , so that the parties
would not have further claims against each other.
[71] Christie’s34 describe the effect of a compromise as follows:
“…the effect of a compromise is the same as res judicata, or a judgment
given by consent. It is an absolute bar to action on the cause of action
compromised, but not, of course, on any claim not included in the
compromise. What cla ims were not included is ascertainable from the
pleadings if the compromise settled an action, and from the terms of the
compromise interpreted in accordance with general rules of interpretation
in any other case.”
34 Supra p 557
[72] In Tololo v Road Accident Fund 35 the Supreme Court of Appeal had to
decide whether an agre ement of compromise was binding. The court found
that it was binding, in circumstances where there w as no basis on the
pleadings or evidence found to impugn the settle ment agreement , no
rectification was pleaded, and no evidence could be led to contradict the
terms.36
[73] The applicant has made no proper application for rectification of the
settlement agreement in respect of clause 11.1 and 11.2. 37 In order to
succeed with rectification, the applicant would have had to allege and prove
that the settlement agreement does not correctly reflect the true common
continuing intention of the parties as it existed when the agreement was
concluded, due to a mistake in drafting the document, as a result of a bona
fide mutual error or an intentional misleading act. 38 The requirements for
rectification have not been alleged nor proved. She did file a notice to amend
the notice of motion, to include an alternative cla im for rectification (in the
alternative to a variation of the agreement) , but at the hearing , her counsel
indicated that she would ask relief based on the original notice of motion as
set out above.39 She also did not, for example, rely thereon that she signed
the agreement due to a unilateral justus error, caused by a
misrepresentation on the part of the first respondent 40 nor did she set out
35 2025 JDR 1212 (SCA) at [16] – [17]
36 See also Gollach and Gomperts (1967) (Pty) Ltd v Universal Mills & Produce (Pty) Ltd 1978 (1) SA
914 (A0 at 922H.
37 Van Aardt v Galway 2012 (2) SA 312 (SCA) at par [9].
38 See for example: Kathern Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) at 503
E-G; Milner Street Properties (Pty) Ltd v Eckstein Properties (Pty) Ltd 2001 (4) SA 1315 (SCA) para
39 As set out in paragraph 4 supra
40 For example: Prins v ABSA Bank Ltd 1998 (3) SA 904 (C); Spindrifter (Pty) Ltd v Lester Donovan
(Pty) Ltd 1986 (1) SA 303 (A) at 316-317; Snap Petroleum v Papagiannis 1992 (3) SA 234 (A)
sufficient averments to make out a case for a common mistake or a mutual
mistake.41
[74] The settlement agreement and the 2023 order must therefore be assessed
and interpreted on the wording thereof, as it stands
[75] My interpretation of the effect of the settlement agreement, is that the parties
settled all disputes and claims regarding the division of their common
property, including her entitlement to a part of the pension interest, for an
amount of R360 000.00 and after the settlement no par ty would have any
claim against the other, whatever the form thereof. This finding however
does not mean that I find that the allegations of intention outside of the
agreement regarding the way in which the amount of R360 000.00 was
calculated are accepted. The admissible evidence regarding this a spect is
not sufficient.to support a conclusive finding on this. On the face of the
settlement agreement, it deals with the pension interest, no division , but it
does constitute a full and final settlement.
[76] In reaching the conclusions regarding the final settlement, I also had regard
to the broader context within which the settlement agreement was
concluded, including the factual matrix mentioned above, and the following
evidence and circumstances:
at 239I -240.
41 Krapohl v Orange Cooperative BPK 1990 (3) SA 848 (A) at 865; Diamond v Kernick 1947 (3) SA
76.1 The parties had already been divorced for about 14 years at the time
of conclusion of the settlement agreement. It stands to reason that
they would rather have been intent on a final solution.
76.2 At the time of the conclusion of the agreement the disputes
regarding the common property had not been settled and the
applicant’s interest in the first respondent’s pension fund has not
been paid to her.
76.3 In the previous application before Molopa-Sethosa J the first
respondent already took the stance that the amount of R360 000.00
was an amount which settled both the pension interest and division
of the property. In her answering affidavit in such application (dated
13 March 2023) the applicant denied having knowledge of the
settlement agree ment, and that she had signed it or agreed to the
terms thereof . This prompted the first respondent in his replying
affidavit to such application , to attach a previous supplementary
affidavit filed by the applicant in her application which served before
Koevertjie J. It is evident from such affidavit (dated 9 June 2022) that
she had averred that she and the first respondent attended at the
Fund with the settlement agreement in 2021 to seek payment of the
monies due to her , and she also attached the signed a greement
thereto. In the present application she however avers that the
agreement was signed by her. These conflicting statements under
oath in different applications impact on her credibility in respect of
her denials regarding the agreement.
76.4 The settlement agreement was concluded whilst the parties were
represented. The applicant was represented by an admitted attorney.
The fist respondent avers that the applicant ’s legal representatives
did not raise any objec tions and that there is no evidence t hat she
was misled.
76.5 None of the parties have set forth any indication that the settlement
agreement was made with reservation of rights.
76.6 When the applicant applied for the ord er granted by Koevertjie J in
the absence of the first respondent, the settlemen t agreement was
already signed ( in December 2020). She however did not apply for
an order in terms thereof, but for an order that she is entitled to 50%
of the pension interest. If she had in her mind that a division of the
joint estate still had to occur, one would have expected her to
request relief in respect thereof, at the same time.
76.7 Cause 11.2 of the settlement agreement contains a non -variation
clause, which prevents an amendment without mutual consent.
[77] The first respondent’s contentions that a full and final settlement was
reached can also be assessed on the basis of the Plascon-Evans rule42.
[78] In National Director of Public Prosecutions v Zuma43 the Plascon-Evans rule
was explained as follows:
42 Plascon-Evans v Van Riebeeck Paints 1984 (3) SA 623 A at 634F-G
43 2009 (2) SA 277(SCA) par [26].
"[26] Motion proceedings, unless concerned with interim relief, are all about the resolution
of legal issues based on common cause facts. Unless the circumstances are special they
cannot be used to resolve factual issues because they are not designed to determine
probabilities. It is well-established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise out on the affidavits, a final order can be granted only if
the facts averred in the applicant's affidavit, which have been admitted by the respondent,
together with the facts alleged by the latter, justify such order." 44
[79] In Mamadi v Premier, Limpopo and Others 45 the Constitutional Court held as
follows in respect of disputes of fact and the Plascon-Evans rule:
“General principles governing the referral of a matter to oral evidence or
trial remain applicable. Litigants should, as a general rule, apply for a
referral to oral evidence or trial, where warranted, as soon as the
affidavits have been exchanged. [ Where timeous application is not
made, courts are, in general, entitled to proceed on the basis that the
applicant has accepted that factual disputes will be resolved by
application of Plascon-Evans. Likewise, w here an applicant relies
on Plascon-Evans, but fails to convince a court that its application can
prevail by application of the rule, a court might justifiably refuse a
belated application for referral to oral evidence.“
[80] No request was made for a referral for oral evidence. Applying the Plascon -
Evans rule, the applicant’s version that the settlement agreement does not
include a full and final settlement of all disputes between the parties, cannot
be sustained.
Patent error and ambiguity
[81] The applicant complains that she has been struggling to persuade the Fund
to pay the pension interest to her. She therefore seeks an order as per the
44 See also Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 (T) at 1162.
Gounder v Top Spec Investments (Pty) Ltd 2008 (5) SA 151 (SCA) par 10.
45 2024 (1) SA 1 (CC)
first two paragraphs contained in the alternative relief set out in the notice of
motion46, that she is entitl ed to an amount of R360 000.00 of the first
respondent’s pension benefit, and that the GEPF be directed to endorse
such amount in favour of the applicant, and to pay same to her within 30
days.
[82] In my view the applicant seeks orders in respect of the pensi on interest
which largely correspond with what has already been included in the
settlement order.47
[83] An analysis of the 2023 order and settlement agreement which was made an
order of court on 31 October 2023 , reveals that the GEPF is duly identified,
as we ll as the relevant pension fund number. The names of the parties
contained therein, and the part of the pension interest that is to be paid, is
also identified therein (the amount of R360 000.00).
[84] Paragraph 7.2 of the settlement order furthermore makes it clear that the
order pertains to payment of a part of the pension interest of the first
respondent as at date of the divorce.
[85] It was not necessary for the settlement order to refer to section 7(7) and that
the pension interest is part of the joint estate48. It is deemed to be an integral
part of the joint estate upon divorce which is to be share d between the
parties.
46 Supra, par [4].
47 WR v PR 2011 jar 0327 (GNP) at par [12]; AVW v SVW and Others (3118/2021) [2022] ZAWCHC
48 MP v FN 2024 JDR 3781 (GP) par [15].
[86] A court may clarify its judgment, or order , if, on a proper construction, the
meaning thereof remains obscure, ambiguous or otherwise uncert ain, in
order to give effect to its true intention, but it may not alter the substance of
the order or judgment 49.A court may substitute more accurate or intelligent
language so as to give effect to its true intention, provided it does not thereby
alter “ the sense and substance ” thereof . A court may also supplement an
order in respect of accessory or consensual matters 50 and correct a clerical
or arithmetical error in an order so as to give effect to its true meaning. 51 A
court can rescind or vary an invalid judgment, if the requirements of the
common law have been met52.
[87] In my view the paragraph of the settlement order that should be varied is
paragraph 7.4 of the settlement agreement , to clarify and correct a patent
error and ambiguity.
[88] In this regard, t he provisions in the third unnumbered paragraph of the
settlement agreement and paragraphs 7.2 and 7.3 thereof, in my view clearly
contain an intention that the applicant (defendant) shall be entitled to
R360 000.00 of the first respondent’s pension interest, and that he will retain
the remainder of the value of his interest in the pension fund.
[89] Paragraph 7.4 of the settlement agreement provides:
“7.4 An endorsement shall be made in the records of the Government
Employees Pension Fund that the Defendant’s share of the Plaintiff’s
49 Firestone South Africa (Pty) Ltd v Gentrack AG 1977 (4) SA 298 (A) at 307 C – G; Thompson v
South African Broadcasting Corporation 2001 93) SA 746 (SCA) at par [5].
50 Id.
51 Id at 307 D
52 Van Dyk and Another v Rhodes 2025(3) SA313 (GJ)
pension interest is payable to defendant. The Fund shall pay to the
defendant his share of the interest as referred to herein within 90
days of being informed of how the amount must be dealt with in
accordance with Defendant’s election.”
[90] In my view the words “ Defendant’s share of the Plaintiff’s pension interest ”
refer to the amount of R360 000.00. The words “ The Fund shall pay to the
Defendant his share of the interest” in the second sentence of paragraph 7.4
is evidently a patent error, and ambiguous, if regard is had to the context of
the preceding paragraphs of the settlement agreement, and the paragraph in
which such words occur. The third unnumbered paragraph (which contains
the reference to the amount of R360 000.00) in the settlement agreement
provides that the applicant (defendant) shall be entitled to such amount “ of
the plaintiff’s pension interest”. Paragraph 7.2 provides that “the said amount
of the Plaintiff’s pension interest shall be payable to the Defendant ”, with
reference to section 7(8) of the Divorce Act and section 37D(1)(d)( i) of the
Pension Funds Act. Paragraph 7.3 provides that the first respondent will
retain the remainder of the value of his funds as his sole and exclusive
property. In the first sentence of paragraph 7.4 reference is made to an
endorsement which shall be made in the records of the GEPF that the “the
Defendant’s share of the Plaintiff’s pension interest is payable to defendant”.
In my view this is meant to be a reference to the amount of R360 000, if
regard is had to the plain wording of the preceding paragraphs.
[91] The reference in the second sentence in paragraph 7.4 of the agreement to
“his share of the interest ” is therefore a patent error. It causes an ambiguity,
as it is at variance with the preceding paragraphs. The word “ his” should
clearly have read “ her”. Furthermore, the reference to “ share of the interest ”
is unclear, and should be clarified, as it does not clearly reflect the intention,
that R360 000.00 of the Plaintiff’s interest in the GEPF calculated as at the
date of divorce is to be paid to the defendant. The parties have also
understood that payment would be made accordingly, as is for example
evident from the applicant’s application and the relief claimed therein . I
intend to exercise my discretion to correct such patent error and ambiguity
mero motu , and to make an order to vary and clarify paragraph 7.4 of the
settlement agreement accordingly , formulating the order along the same
lines as a recent order of the Bull Bench53.
[92] The ambiguity is perhaps a reason why it is contended by the applicant that
she has struggled to obtain payment from the GEPF and wh y the fund may
have had difficulties with the interpretation of the agreement. In my view the
order that I propose to make should address the issue.
[93] In view of the lack of detail in the application regarding reasons for the
GEPF’s previous failure to make payment, I will also order that, in the event
that the GEPF should fail to make the endorsement or any payment in terms
of the order , any par ty m ay set down the application, with such
supplemented affidavits as may be necessary, for further relief.
Vexatious litigation
[94] The first respondent avers that the applicant’s application is vexatious in
nature, relying on section 2(1)(b) of the Vexatious Proceedings Act 54 He
53 MP v FN 2024 jdr 3781 (GP) nat par 29.
54 3 of 1956
avers that the applicant should be declared a vexatious litigant to prevent her
from engaging in abusive litigation which he says is aimed at harassing him.
[95] The only application instituted by the applicant prior to the present
application, is the application that served before Koevertjie J. Thereafter the
first respondent lodged the application which resulted in the order of Molopa-
Sethosa J. The applicant then lodged the present application.
[96] Whatever the merit of the applications, I am not satisfied that the first
respondent has established that the proceedings were simply frivolous,
improper, or instituted for the sole purpose of annoying the first respondent,
as he contends, nor that it constitutes a mala fide use of the proceedings, for
an ulterior motive55. In my view, even if she may have misconstrued aspects
of her rights and remedies, her applications were evidently aimed at
obtaining a court order in terms of which she can enforce payment of amount
what she believes are owing to her.
[97] The first respondent in any event did not file a proper formal application for
such relief. I am not satisfied that the first respondent has demonstrated that
the applicant should be declared a vexatious litigant. Such relief is refused.
Costs
[98] I exercise my discretion to order that each party will pay his/her own costs . I
do so in view of the fact that two decades have elapsed since the parties’
55 Fisheries Development Corporation of SA Ltd v Jorgensen & Another; Fisheries Corporation of SA
Ltd v AW Investments (Pty) Ltd & Others 1979 (3) SA 1331 (W) at 1339E – F
divorce, and it is in my view undesirable to burden any of the parties with the
other’s costs.
ORDER
1. The first respondent’s application to declare the applicant a vexatious liti gant is
dismissed.
2. The order of Molopa -Sethosa J incorporating a settlement agreement dated 31
October 2023. is amended to read as follows:
2.1 “It is recorded that the Plaintiff is a member of the Government Employees
Pension Fund (GEPF) with identity number 6412185401081, and with
membership number 9[…]. It is ordered that in terms of section 7(8)(a) of
the Divorce Act 70 of 1979, R360 000.00 of the Plaintiff’s pension interest
in the GEPF as at date of divorce, is assigned to the Defendant.
2.2 An endorsement is to be made in the records of the GEPF that the
amount or R360 000.00 (three hundred and sixty thousand rand) is
payable to the defendant within sixty days of being informed of how the
amount must be dealt with in accordance with the Defendant’s election,
and the GEPF shall make payment to the defendant accordingly.”
3. In the event that the GEPF should fail to comply with paragraph 2.2 of this order,
any party will be entitled to set this application down for further relief, on the same
papers, with such supplementary affidavits as may be required.
4. Each party will pay his/her own costs of this application.
____________________________
STONE AJ
ACTING JUDGE OF THE HIGH COURT
___________________________________________________________________
Counsel for the Applicant: Adv Mkheeva
Counsel for the First Respondent: Adv Netravali