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JUDGMENT
KEKANA AJ
Introduction
[1] On 28 October 2025, I gave an order in which I directed that:
1.1 The interlocutory application by the applicant is dismissed.
1.2 The applicant is ordered to pay the costs of this application on scale B.
[2] Before me was an interlocutory application, an application to amend brought by
the applicant in terms of Rule 28(4) of the Uniform Rules of the Court. The
application to amend only extends to the quantum claimed as stated in the
particulars of claim. The applicant is of the view that the quantum claimed in the
particulars of claim is not compatible with the actual prejudice suffered, hence
the application.
[3] The respondent opposes the application on the basis that the matter was settled
and finalised between the parties. The applicant disputes that the matter was
settled and finalised between the parties on the basis that the payment made by
the respondent was a part payment towards loss of income and benefits and
other heads of damages are not yet settled.
Background
[4] The a pplicant's names were wrongfully and unlawfully listed and recorded at
Criminal Record Centre as having a criminal record for armed robbery while she
was never arrested, charged nor convicted of same. Because of this wrongfully
recorded criminal record, the applicant could not secure permanent employment
from 2008 until 2016 . The applicant then instituted legal action against the
respondent for loss of income and benefits, inconvenience, loss of dignity
emotional stress and shock.
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[5] On the 14 November 2019 the matter was set down for trial and was allocated to
my brother Twala J. The matter did not proceed to trial, parties met and agreed
in chambers and from the agreement, it was ordered that:
1. The matter is postponed sine die;
2. The Plaintiff abandons her claim for the period from 2008 until March 2015;
and
3. The Defendant shall be liable for plaintiff’s proven or agreed damages arising
from the action for the period spanning 1 June 2015 to 31 December 2016.
4. Each party shall pay its own costs.1
[6] There was no engagement between the parties after the order by my brother
Twala J. The a pplicant brought an application to compel the respondent to
comply with the order by Twala J in 2020, this application was later removed from
the roll by the applicant. According to the applicant, i t was only then that the
respondent started to engage with the applicant. An actuary was appointed by
the applicant and same was done by the respondent and both experts concluded
that the applicant suffered loss of income in the sum of R223 018.00 (two
hundred and twenty-three thousand and eighteen rands).
[7] On or about 9 June 2021, the respondent's attorneys caused a letter to be issued
and sent to the applicant's attorneys with an offer of R223 018.00 (two hundred
and twenty-three thousand and eighteen rands). The respondent’s letter was
crafted as follows:
"The Defendant is desirous in settling this matter with the Plaintiff in order to save
unnecessary further costs.
We hereby offer R223 0l8.00 (Two Hundred and Twenty -Three Thousands and
Eighteen Rands) as “full and final settlement” of the matter.
We are further instructed to offer party and party costs on a magistrates' scale in this
respect.
1 Court Order by Twala J, 14 November 2019.
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We will await the Plaintiffs' response by the latest the 15th of July 2021"2.
[8] On 17 June 2021, the applicant’s attorneys send a letter whose content can be
summarised as follows:
[8.1] Paragraph 1 acknowledges the receipt, and the content of the
respondent’s letter dated 9 June 2021.
[8.2] Paragraph 2 advises the respondent that the offer has been accepted by
their client.
[8.3] Paragraph 3 advises the re spondent to note that the amount offered is
limited to loss of income and that the applicant will still pursue other
claims i.e. claims for inconvenience, loss of dignity and stress and
emotional shock in the sum of 1500 000,00 (One million five hundred
thousand rands) and that they have instruction to pursue these claims.
[8.4] Paragraph 4 reads that…” please find attached our Trust account
banking details in respect of your offer”3.
[9] The crisp issue is whether the amendment raises a triable issue since the
applicant accepted an offer in “full and final settlement”. Subserviently, whether
the claim by the applicant, the plaintiff in the main action, has been finalised in
law.
Contentions by the parties
[10] The applicant argues that the re was no written agreement between the parties
with regard to the full and final settlement of the matter , that there were no
negotiations held between the parties prior to the alleged settlement . The
applicant further argues that the offer that was made by the respondent was only
in respect of loss of income and benefits. That in accepting the said offer the
applicant made it clear that she was intending to proceed further with other claims
set out in the particulars of claim.
2 Letter by the respondent to the applicant (dated 9 June 2021).
3 Letter by the applicant to the respondent (dated 17 June 2021).
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[11] The respondent contends that there was an offer made to the a pplicant as per
the letter dated 9 June 2021 which enclosed an offer made in full and final
settlement. The offer made by the respondent was in full and final settlement of
the entire matter and it was not in relation to any head of damage. The said offer
was accepted by the applicant in a letter dated the 17 June 2021 and the amount
as accepted was paid by the respondent. Tritely this offer finalised the matter.
Legal principle and analysis.
[12] I wish to deal first with the application to compel which was launched by the
applicant, which sought to compel the respondent to comply with the order by my
brother Twala J. The applicant argues that the respondent failed to engage with
the applicant after the order and hence the application to compel. 4 The basis of
this application remains nebulous as upon the reading of the order by my brother
Twala J, there was no direction to the respondent except that the respondent
“shall be liable for plaintiff’s proven or agreed damages arising from the action
for the period spanning 1 June 2015 to 31 December 2016”. Reference to proven
damages means that the applicant is expected to present to the respondent such
damages as she is able to proof either with the assistance of an expert. It is only
once the expert has quantified the damages and same being present ed to the
respondent that the respondent will be obligated to comply with paragraph 3 of
the order by Twala J. Absent quantified damages there was no obligation on the
part of the respondent to engage the applicant. But it appears based on the
evidence before me that the applicant prematurely launched an application to
compel prior to having an expert quantify ing the damages as directed by
paragraph 3 of the Court order. The services of an expert were sourced after the
application to compel was already launched.
[13] I will deal with the crisp issue of whether the applicant in accepting the offer made
[13] I will deal with the crisp issue of whether the applicant in accepting the offer made
by the respondent extinguished any further claim by it and that the matter is
finalised. The result of which would mean that there are no triable issues and
consequently it would mean the application to amend as brought by the applicant
would be manifestly unfounded.
4 Para 14 of the applicant’s head of argument.
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[14] For one to say there was an agreement, or the matter was finalised, the debtor
must state clearly in writing: that the offer is made in full and final settlement and
if the creditor does not wish to accept the terms she must instead, communicate
her rejection and request full payment. In this case there was acceptance of the
offer made, reference is made to paragraph 2 of the letter by the applicant to the
respondent reads as follows:
“Kindly be advised that your offer of R 223 018 (Two Hundred and twenty -three
thousand and Eighteen Rands) in respect of loss of earnings is acceptance to our
client. (sic)
[15] Not only did the applicant accept the offer made but went further in the same
reply letter to provide the respondent with its trust account banking details
directing where the money is to be deposited. Counsel for the applicant could not
clearly explain why they provided trust account banking details if they were not
in agreement with the offer made.
[16] In determining t he existence of the intention to settle the dispute conclusively
(animus compromittendi) one will look at t he use of phrases like "full and final
settlement," "without prejudice," or "in settlement of your claim" as strong
evidence of this intention. The offer made was not in relation to any head of
damage as on the reading of the letter by the respondent the intention was to
finalise the matter in its entirety. This is clear from the wording in paragraph 1 of
the letter by the respondent which state that:
"The Defendant is desirous in settling this matter with the Plaintiff in order to save
unnecessary further costs.
[17] It is clear on the reading of the above paragraph that ‘unnecessary further costs’
can be saved only if the matter is finalised in its entirety , as the pursuance of
other head of damages would trigger further costs. Again, the phrase “ full and
final settlement” was used by the respondent to accentuate its intentions.
final settlement” was used by the respondent to accentuate its intentions.
[18] Didcott J in the Andy's Electrical 5 case appropriately reasoned that the
objective should be to determine the real intention of the debtor. The enquiry to
5 Andy's Electrical v Laurie Sykes (Pty) Ltd 1979 3 SA 341 (N) para 42.
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be whether the debtor intended to settle the whole claim by paying a particular
amount, or whether payment was made with the intention that the rest of the
claim remains in issue. If the debtor’s intention was (animo contrahendi ), the
acceptance thereof by the respondent would give rise to the conclusion of a new
contract should the offer be accepted by the respondent.
[19] From the evidence before me, the applicant does not dispute that she accepted
the offer, the applicant’s argument is that she added conditions when accepting
the offer. In the case of Tractor & Excavator Spares (Pty) Ltd v Lucas J Botha
(Pty) Ltd it was held that “a ny conditions attached to the acceptance are
irrelevant6. There was no express nor unequivocal rejection of the offer by the
applicant instead there was an acceptance. There was no evidence before me
of any attempt to return the money neither was there any evidence that the
money was preserved and unused pending the finalisation of the dispute
assuming the applicant was of the view that there were still further claims to
pursue. By re taining the proceeds of the [money] and appropriating it the
applicant became bound by the terms of the offer.7
[20] I agree with the submission made by counsel for the respondent and the authority
relied on that: if the debtor’s payment constitutes an offer of compromise which
the creditor accepts, the creditor generally cannot make any further claim against
the debtor. 8 Also that i t does not help the creditor to accept the offer of
compromise "without prejudice" or to add terms and conditions to the debtors'
offer of compromise, the reason being that the offer of compromise (made in full
and final settlement) is generally accepted based on the implied (if not express)
condition that the creditor abandons the balance of his claim9.
[21] Again, one must make a distinction between a payment for admitted liability and
payment to effect a compromise (offer). The respondent in its letter uses the
payment to effect a compromise (offer). The respondent in its letter uses the
words ‘offer’ and applicant in its acceptance (reply letter) uses the words ‘your
offer’ from which conclusion can be drawn that both parties understood it to be a
payment to effect a compromise and not a payment of admitted liability. The
6 Tractor & Excavator Spares (Pty) Ltd v Lucas J Botha (Pty) Ltd 1966 (2) SA 740 (T) 743 D-E.
7 Burt v National Bank of SA Ltd 1921 AD 59.
8 Contentious Issues Arising from Payments made in Full and Final Settlement" [2008] PER 24.
9 Andy’s Electrical v Laurie Sykes 1979 3 SA 341 (N) 343A-B.
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words ‘offer’ can only be used when one intends to effect a compromise. From
the reading of the letter by the respondent, it is clear that the intention was to
effect a compromise, bring the entire matter to finality and this could also be
supported by paragraph 3 of its letter which seeks to with the legal costs to the
matter.
[22] Another aspect worth mentioning though not central towards the determination
of the application before me is that the particulars of claim which the applicant
wishes to amend in bringing this application, is about increasing the quantum10.
But of importance is that paragraph 10 cannot be read independent from its
precursor.11 Paragraph 9 attempts to give a background to justify for the amounts
claimed in paragraph 10. It states on how since 2008 the applicant applied for
more than 15 positions in government but was unsuccessful due to the criminal
record. It is an ironic parad ox, a contradiction in terms that the applicant brings
this application to amend what was initially R5 000 000 00 (five million rands) to
R7 000 000 00 (seven million rands) when the very purpose of the R5 000 0000
initially claimed was the alleged loss of income, inconvenience, loss of dignity,
emotional stress and shock as of 2008 till 2015 while in fact the ineluctable
consequence of the order by Twala J, is directing otherwise. Paragraph 2 of the
order states that:
The Plaintiff abandons her claim for the period from 2008 until March 2015.
[23] With the applicant having abandoned her claims for the period from 2008 until
2015, the only liability that will arise on the part of the respondent as far as this
matter is concerned will be for damages as directed by paragraph 3 of the order.
The order by my brother Twala J, in para 3 thereof, refers to plaintiff’s proven
damages spanning from 1 June 2015 to 31 December 2016.
Conclusion
[24] The offer came on a specific character that of a “full and final settlement” and if
[24] The offer came on a specific character that of a “full and final settlement” and if
the applicant was not happy with the character the offer came with, she should
have rejected it. The applicant cannot accept the money and not the character
10 Paragraph 10 of the plaintiff’s particulars of claim.
11 Paragraph 9 of the plaintiff’s particulars of claim.