IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
JACOBUS MARX NO
JOHANETTE HELENA MARX NO
and
JAN JOACHIM NEL NO
JOYCE NEL NO
HANNES LOTTER NO
CORNELIUS JOHANNES HERCULAS VAN TONDER
t/a NJ KONSUL TANTE
In re the matter between:
JAN JOACHIM NEL NO
JOYCE NEL NO
HANNES LOTTER NO
CORNELIUS JOHANNES HERCULAS VAN TONDER
t/a NJ KONSUL TANTE
and
JACOBUS MARX NO
JOHANETTE HELENA MARX NO
Not reportable
Case no: 4094/2017
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIRST PLAINTIFF
SECOND PLAINTIFF
THIRD PLAINTIFF
FOURTH PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
Neutral citation: Marx NNO v Ne/ NNO and Another (4094/2017) [2025] ZAFSHC 369
(24 November 2025)
Coram: Daffue J
Heard: 3 November 2025
Delivered: This judgment was handed down electronically by circulation to the
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parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 12h00 on 24 November 2025.
Summary: Application for leave to appeal - court refused to grant amendment to a plea
after settlement agreement made an order of court - no agreement reached during
accounting and debatement process consequent upon court order - defendants resorted
to application to amend their plea for the court to adjudicate upon the legality of the
underlying agreement relied upon by the plaintiffs for the relief sought and obtained by
agreement- application for leave to appeal dismissed.
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ORDER
The application for leave to appeal is dismissed with costs, inclusive of the costs of senior
counsel on scale C.
JUDGMENT
Daffue J
[1] The defendants in the main action are the applicants in the application for leave to
appeal. It is their case that there are reasonable prospects of success on appeal, and a
compelling reason why leave to appeal should be granted to the full bench of this division.
I shall refer_herein later to the parties as in the main action to avoid confusion.
[2] The test for leave to appeal has recently been restated in Ramakatsa and others
v African National Congress and Another, 1 and I quote:
' ... Th~ test of reasonable prospects of success postulates a dispassionate decision based on
the facts and the law that a court of appeal could reasonably arrive at a conclusion different to
that of the trial court. In other words, the appellants in this matter need to convince this Court on
proper grounds that they have prospects of success on appeal. Those prospects of success must
not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis
for the conclusion that there are prospects of success must be shown to exist.'
[3) I do not intend to regurgitate what I have said in my judgment but shall merely
address the issues raised by Mr P Louw SC on behalf of the defendants. Mr Lauw was
not involved in the dispute b!:!tween the parties, the eventual settlement thereof and the
application to amend. The settlement agreement was incorporated in the court order of
31 October 2023. Mr Lauw submitted that if paragraph 6 of the court order is properly
1 Ramakatsa and Others v African National Congress and Another[2021] ZASCA 31 para 10.
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interpreted, the parties intended the door to be reopened for the adjudication of all
disputes between them, ie therefore also to allow the defendants to rely on the alleged
illegality of the underlying agreement. He submitted that another court would reasonably
come to such a conclusion,
[4] It is important to note that in their particulars of claim the plaintiffs claimed delivery
of an account, debatement of that account, payment of 66.6% of the nett proceeds so
determined as well as costs of suit. Nothing more and nothing less. On the proverbial
steps of the court building, and as the parties were to start with the trial, the matter was
settled. The plaintiffs obtained exactly what they claimed. The accounting and
debatement process has been agreed upon in paragraphs 1 to 5 of the court order. I do
not repeat same. Paragraph 6 of the court order reads as follows:
'If the parties are unable to agree upon the outcome, they shall, whether by pre-trial conference
or otherwise, formulate a list of the disputed issues that shall be set down for trial.'
The defendants now latch onto this paragraph in an endeavour to obtain an amendmen t.
The 'outcome' referred to cannot be anything else than the outcome of the accounting
and debatement process.
[5] I do not agree with Mr Louw that a reasonable court would come to a different
conclusion than the one arrived at by me if the settlement agreement, as contained in the
court order, is properly interpreted. The unitary approach in interpretation should be
followed. The wording of the text, the context of the order in totality and in which the
parties came to their agreement, as well as the purpose of the agreement must be
considered. The purpose was clearly to allow for the adjudication of possible disputes
relating to the accounting and debatement process and not anything else. No right was
provided to the defendants to ask for a re-opening of the case to deal with disputes
provided to the defendants to ask for a re-opening of the case to deal with disputes
relating to the legality of the underlying agreement and/or their contractual obligations;
the so-called merits of the plaintiffs' case have been settled by necessary implication.
The parties agreed to try reaching an agreement as to the amount - the quantum -
payable to the plaintiffs once the defendants have provided documentary proof in the
form of an accounting process as provided for in paragraph 1 of the court order.
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'
[6] I wish to repeat the dictum of Madlanga Jin Eke v Parsons:2
'The effect of a settlement order is to change the status of the rights and obligations between the
parties. Save for litigation that may be consequent upon the nature of the particular order, the
order brings finality to the /is between the parties; the /is becomes res judicata (literally, "a matter
judged").'
The defendants tried to impress upon me that a mere procedural agreement was entered
into between the parties insofar as the 'issue of liability' was not addressed at all. They
tried to differentiate the facts in casu from those in Eke v Parsons. I disagree. The
substantive relief claimed in the particulars of claim were granted as agreed upon.
[7] The only litigation that the parties foresaw when they entered into their settlement
agreement was the possibility that they would be unable to agree upon the outcome of
the accounting and debatement process. Nothing more than that. Just as the parties are
bound by an agreement to limit disputes in litigation, a settlement agreement has the
same effect. Harms JA stated it as follows in F & I Advisors (Edms) Bpk en 'n Ander v
Eerste Nasionale Bank van Suidelike Afrika Bpk:3
"n Party is gebonde aan 'n ooreenkoms gesluit ter beperking van geskilpunte in 'n geding ....
Soos met enige skikking ondervang dit die onderliggende dispute, oak die wat op die geldigheid
van 'n skuldoorsaak betrekking het. Daar mag omstandighede wees waar 'n hot 'n party nie aan
so 'n ooreenkoms gebonde sal hou nie, maar in die onderhawige geval is geen faktore aan ans
voorgehou waarom die appellante van hulle ooreenkoms verlos moet word nie.' (Emphasis
added.)
The Court confirmed in this dictum that parties are bound by their agreements, inclusive
of settlement of disputes relating to the validity of causes of debt. I am of the view that no
factors have been placed before me as to why the defendants should not be held by their
factors have been placed before me as to why the defendants should not be held by their
agreement. Therefore, I am also satisfied that there is no reasonable possibility that
another court would come to a different conclusion. There is also no compelling reason
why leave to appeal should be granted. The application has no merit.
2 Eke v Parsons [2015) ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 31.
3 F & I Advisors (Edms) Bpk en 'n Ander v Eerste Nasiona/e Bank van Suide/ike Afrika Bpk [1998]
ZASCA 65; 1999 (1) SA 515 (SCA); [1998] 4 All SA 480 (A) at 524 F.
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Order
[8] In the result, the following order is made :
The application for leave to appeal is dismissed with costs, inclusive of the costs of senior
counsel on scale C.
JP DAFFUE
JUDGE OF THE HIGH COURT
Appearances
For the Applicants (Defendants in the main action):
Instructed by:
For the Respondents (Plaintiffs in the main action):
Instructed by:
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P Louw SC with JW Steyn
Kramer Weihmann Attorneys,
Bloemfontein
N Snellenburg SC
Peyper Attorneys, Bloemfontein.