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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: 2025-060213
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
DATE 30/1/2026
SIGNATURE
In the matter between:
N[...] M[...] S[...] Applicant
and
R[...] I[...] S[...] Respondent
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JUDGMENT
______________________________________________________________
VAN NIEKERK, N, AJ:
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Application for the variation o f a divorce court order granted in this court on
the 30th of March 2023.
INTRODUCTION
[1] The applicant brought an application in April of 2025 , which application
was served on the respondent on the 22nd of May 2025 for an order that
the divorce order be varied and specifically by:
1.1 deleting paragraphs 3.1 to 3.6 of the settlement agreement which
was incorporated in the divorce decree and be substituted with the
following:
“Each party to pay for their own medical aid”.
1.2 Deleting paragraphs 6.1 to 6.7 of the settlement agreement that
was incorporated into the divorce decree and substituting with the
following:
“The parties shall sell the immovable property, the pro ceeds shall settle
the outstanding home loan debt, all rates and taxes, should there be any
surplus it shall be divided between the parties in equal shares”.
[2] The applicant sought costs if the matter was defended.
[3] The respondent opposed the application and served her answering
affidavit on the 7th of August 2025.
[4] A replying affidavit was filed by the applicant and which was deposed to
on the 25th of August 2025.
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[5] This matter came before me as an opposed application in the family
court and was enrolled for 19 January 2026 and allocated to be
adjudicated upon on Thursday, the 22nd of January 2026.
COMMON CAUSE FACTS
[6] The specific paragraphs of the court order that the applicant wishes to
be varied by this court are provisions relating to medical aid, life
insurance policy and an immovable property. It is noted that in the
prevailing court order reference to the Defendant is reference to the
Applicant in this application before court and reference to the Plaintiff is
reference to the Respondent in this application before court.
6.1 The prevailing court order provides in paragraph 3 thereof the
following:
“3.1. It is recorded that there is no maintenance payable between the
parties apart from 3.2 and 3.5 thereunder:
3.2 The defendant will keep the plaintiff on his medical aid namely
Discovery Health Medical Aid No. 3[...] and will pay the premiums
thereof. Should the medical aid or any details change the defendant
must keep the plaintiff on a medical aid equal to the current medical
aid and is liable for the monthly premiums.
3.3 The medical aid as stipulated in 3.2 above shall be implemented
until the plaintiff remarries or is in a long -term relationship of more
than 12 months.
3.4 The defendant must inform the plaintiff if there is any issue relating
to the payment of the monthly premiums.
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3.5 The plaintiff is a beneficiary on the defendant’s life insurance policy
and the plaintiff will stay on the defendant’s life policy and the
defendant will pay the premium thereof. Defendant will arrange that
the plaintiff have full access to the policy and that she receives
monthly confirmation that the policy is active, and the defendant
must inform the plaintiff if there is any issue relating to payment of
the monthly premiums.
3.6 The medical aid as stipulated above is binding on the defendant’s
estate should the defendant pass away until the life insurance is
paid out to the plaintiff.”
6.2 It is the above clauses of the settlement agreement from paragraph
3.1 to 3.6 that the applicant wishes to vary by deleting same and
substituting it with “each party to pay for their own medical aid”.
6.3 The settlement agreement provides in paragraph 6 , under the
heading “immovable property” thereof:
“6.1 It is recorded that the plaintiff and the defendant are joint owners of
the immovable property situated at 3[...] B[...] Crescent, Midstream
Estate (hereinafter ‘the property’).
6.2 The parties agree and is it recorded that the defendant would reside
in the property and the defendant is fully liable to pay the bond with
FirstRand Bank Limited and all expenses on the property.
6.3 The parties further agree and is it herewith recorded that the
Plaintiff would purchase another property on her own name after
the divorce order and the plaintiff may access the funding for a
deposit on a new property from the existing bond account at
FirstRand Bank as will be required by the financial institution on the
deposit. The defendant will cover the transfer costs of the purchase
of the new property in favour of the plaintiff. Should the plaintiff not
be in a position for any reason to purchase a property the
defendant will pay out an amount of R500 000.00 out of the existing
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bond account to the plaintiff to assist her in renting and setting up
her own home.
6.4 It is recorded that the defendant has the intention to pay and clear
the existing bond on the property at FirstRand Bank by December
2023 and is the following then applicable:
6.4.1 Should the existing bond be fully paid by December 2023
the parties will register a family trust whereby the parties
will be trustees and the major children will be beneficiaries
and the parties will register the property that includes their
undivided half shares in the property to the trust within a
year after the existing bond is fully paid . At the end of
December 2023 the defendant will have the right to always
reside in the property.
6.4.2 Should the defendant not be able to pay the outstanding
bond at the end of December 2023 or should the
Defendant and the Plaintiff fail to register the property to
the trust for any reason, then the property must be placed
on the open market and sold for the highest price
whereafter the profit on the property must be divided
equally between the parties after deductions of any
outstanding loan / bond on the property and, in the case
the defendant paid the full bond of the property, the
outstanding bond amount as at date of divorce and after
deduction of any estate agent’s commission.
6.4.3 Should 6.4.2 above come into effect the parties may not
unreasonably withhold consent for the sale of the property
when receiving reasonable offers and should there be a
conflict by the parties to accept the reasonable offer, the
property must be placed on a private auction to ascertain
the reasonable market value and to sell or to accept a
reasonable offer.
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6.4.4 Should 6.4.2 above come into effect and should one of the
parties want full ownership of the property at that time,
same may be done on the value of the property, as
valuated by two estate agents and a sworn valuation by
paying half of the profit amount by the party wanting the
property after deductions as stipulated in 6.4.2 above.
6.5 Whatever the parties decide to do regarding the property do they
agree that NW Nothnagel Attorneys would proceed with the transfer
to remove a party from the title deed on the property or transfer to
the trust or to a purchaser.
6.6 The parties undertake to sign all documentation to effect transfer to
either the other party wanting the property or to new purchasers on
request by the transferring attorneys.
6.7 The parties record that they will include in their separate will and
testaments that the property will be transferred to a trust for the
benefit of the children but the defendant will be responsible for the
full bond as stipulated above and the defendant will uphold any and
all life policies for the bond to be settled should he pass away
before the property is transferred to the trust or sold, whatever the
case may be”.
6.4 It is the above clauses of the settlement agreement from paragraph
6.1 to 6.7 that the applicant wishes to vary by deleting same and
substituting it with “The parties shall sell the immovable property,
the proceeds shall settle the outstanding home loan debt, all rates
and taxes, should there be any surplus it shall be divided between
the parties in equal shares”.
[7] In the founding affidavit the only allegation made by the applicant as to
the basis for the variation application is found in paragraph 4 where he
states that:
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“The respondent and I are desirous of amending the settlement agreement as
follows:
4.1 By deleting paragraphs 3.1 to 3.6 of the settlement agreement and
substituting same with the following:
‘Each party to pay for their own medical aid fees.’
4.3 The respondent and I are further desirous of amending the settlement
agreement as follows:
4.4 By deleting paragraph 6.1 to 6.7 of the settlement agreement and
substituting same with the following:
‘The parties shall sell the immovable property the proceeds shall settle
the outstanding home loan debt, all rates and taxes, should there be any
surplus it shall be divided between the parties in equal shares’.”
[8] In opposition the Respondent denies any such agreement that the
specific paragraphs be varied at all and in reply the applicant admits that
the parties did not reach an agreement on the variation of the specific
paragraphs.
[9] In the premises it is clear that the allegation made by the applicant in his
founding affidavit, which formed the basis of his application, was not the
true position and there was no agreement between the parties to vary
the prevailing court order, at any stage.
ARGUMENT BEFORE COURT:
FOR APPLICANT:
[10] In argument the representative for the applicant conceded that the
applicant made out no case for the variation of the court order in the
founding affidavit.
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[11] She contended that at the time of the filing of the founding affidavit the
applicant was envisaging that the matter will become settled and it
was on that basis that he deposed to his founding affidavit.
[12] She confirmed that a t the time of the deposition of the founding
affidavit there was no agreement between the applicant and the
respondent.
[13] She conceded that a t the time of the hearing of this matter there was
no agreement between the applicant and the respondent to vary the
prevailing court order.
[14] She submitted that the basis of the applicant ’s allegation that the
parties agreed to vary the order, was his believe that it would have
become settled and then the variation would proceed.
[15] She conceded that the applicant gave no facts to court to verify his
allegation in his replying affidavit that his circumstances have
changed since the granting of the order, which he attempted in his
reply to use as a basis for the variation of the court order.
[16] She conceded that the applicant did not make out a case and/or place
any facts before court to enable the court to find in his favour.
[17] The applicant’s representative conceded that in respect of the
variation sought with regards to the immovable property the possibility
of the sale of the property was already included in the prevailing court
order and if the respondent was not complying with those terms of the
order the applicant had other remedies available and he did not have
to come to court for a variation of the court order.
[18] The applicant’s representative submitted that in respect of the life
policy the parties agreed that th ose terms of the court order should
remain in place and not be varied.
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FOR RESPONDENT:
[19] On behalf of the respondent it was submitted that the settlement
agreement (which was made an order of court) in paragraph 7.3
thereof contains a Shifren clause indicating that any amendment must
be in writing and signed by both parties. No such agreement existed
and therefore there is no agreement to amend the court order. The
court order stands.
[20] He referred the court to the allegation by the applicant that the
respondent and the applicant wanted to amend the court order and
referred the court to the numerous denials of this allegation by the
respondent in her answering affidavit.
[21] He argued that the founding affidavit was only 2 pages and that no
case was made out in the founding affidavit. The applicant attempted
to make out a case in the replying affidavit which consisted of 39
pages.
ANALYSIS:
[22] From a reading of the documents before court it is clear that the
applicant did not make out a case on any known legal basis for the
variation of the court order.
[23] The allegation whereupon he based the whole of his application in his
founding affidavit, that the parties both wanted the court order to be
varied, was not factually correct as there was no such agreement
between the parties.
[24] Even on the applicant’s own version there was no such agreement
when he deposed to his founding affidavit.
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[25] The applicant’s version is factually incorrect and untenable. The
contentions by his legal representative unpersuasive and her
unavoidable concessions dooming to the applicant’s case.
APPLICATION OF THE LEGAL PRINCIPLES:
[26] A court order becomes final and un alterable by that court at the
moment of its pronouncement by the judicial officer whereafter it
becomes functus officio. Save in exceptional circumstances the order
can thereafter not be varied or rescinded.
[27] The Divorce Act 70 of 1979 makes provision for court orders relating
to maintenance and to the division of assets. It provides that a court
granting a decree of divorce may in accordance with a written
agreement between the parties make an order with regard to the
division of assets of the parties or the payment of maintenance by one
party to the other.1
[28] In the present application the only possible remedy at the disposal of
the applicant could have been section 8(1) of the Divorce Act 70 of
1979 and only in relation to the maintenance obligation pertaining to
the medical aid as stipulated in paragraph 3 of the settlement
agreement. In terms of section 8(1) of the Divorce Act, 70 of 1979:
“1. A maintenance order or an order in regard to the custody or
guardianship of, or access to, a child, made in terms of this act may
at any time be rescinded or varied or in the case of a maintenance
order or an order with regard to access to a child be suspended by
a court if a court finds that there is sufficient reason therefore…”
[29] This court has , however, found that section 8 of the Divorce Act
relates to orders given in respect of children and not to orders in
respect of spouses and that when a former spouse wishes to apply for
1 Section 7(1) of the Divorce Act.
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the variation of a maintenance order in respect of maintenance
payable to her the appropriate forum is the Maintenance Court. 2 On
this premise it would seem that Section 8(1) is not a remedy available
to the applicant.
[30] Even if it was possible for the applicant to approach this court in terms
of section 8(1) of the Divorce Act , the applicant would have had the
onus to show sufficient reason for the variation of the order. In the
present matter there is absolutely no reasons provided for the
variation of the order and no facts provided to the court to adjudicate
upon this question.
[31] The applicant provided the court with conclusions drawn by him, in his
replying affidavit, as to why the court order should be varied without
providing the factual basis for these conclusions to the court so that
the court can determine whether or not there exists sufficient reasons
for the variation of the order.
[32] The principle of res judicata is well-established in our law . Essentially
it means that parties to a dispute cannot re -litigate the same dispute
already litigated. It is meant to ensure the finality of judgments.
Section 8(1) of the Divorce Act relating to the rescission , suspension
or variation of amongst other things maintenance orders m ade under
that Act should be construed so as to effect the operation of res
judicata as little as possible.3
[33] A court may order variation of its own order only on the limited
grounds available at common law or in terms of the uniform rule s of
court, rule 42(1) and Section 8(1) which relaxes the principle of the
immutability of judgments. The Applicant has not made out a case for
the variation of the court order based on any of the known grounds.
2 See Botha v Botha 2005 (5) SA 228 (W).
3 See Reid v Reid 1992 (1) SA 443 (E) at 447.
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[34] The court must also take into account the principle that agreements
must be kept – pacta sunt servanda . A man who has solemnly
entered into an agreement must, as far as possible be held to his
agreement.4
[35] The court cannot ignore the principle of pacta sunt servanda which is
generally translated in English as meaning “agreements must be
observed”. An order of the court obliging the applicant to pay
maintenance for the respondent has its origin in an agreement
solemnly entered into between the parties in contemplati on of the
divorce.5
[36] A settlement agreement in a divorce matter which does not only
provide for the payment of maintenance by the one party to the other
but also for inter alia the division of assets of the parties, constitutes a
final agreement entered into between the parties, purporting to
regulate all their rights and obligations upon divorce. For the court to
interfere in that arrangement by varying one component of the
agreement but leaving the balance of the agreement in tact would fly
in the face of the time-hallowed principle that the court cannot make
new contracts for parties. It must hold them to agreements into which
they have deliberately entered.6
[37] According to me, t he principle of pacta sunt servanda is relevant and
further supports the conclusion that the applicant’s application cannot
succeed.
[38] It is clear that in respect of the immovable property there is no basis
upon which the applicant can approach this court for the variation of
the court order.
4 See Pieterse v Pieterse 1965 (4) SA 344 (T) at 345F.
5 See Botha v Botha 2005 (5) SA 228 (W).
6 See Georghiades v Janse van Rensburg 2007 (4) SA 18 (C) at 23 (16).
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ORDER
[39] The applicant cannot succeed with his application for the variation of
this court’s order. The court has already granted an order o n
Thursday the 22 nd of January 2026, dismissing the applicant’s
application with costs on Scale B.
____________________________
Acting Judge Van Niekerk, N
In The High Court of South Africa
Gauteng Division, Pretoria
This judgment was handed down electronically by circulating to the parties
and the parties’ representative by email and by being uploaded to CaseLines.
Date of hearing: Thursday, 22 January 2026
Date of order: Thursday, 22 January 2026
Date of judgment: Friday, 30 January 2026
Appearance
For the applicant: Mrs NA Dubazana
Dubazana Attorneys Inc.
47 Harley Street
Ground floor
Ferndale
Randburg
087 265 8010 / 064 544 9302
dubazanan@dubazanaattorneys.co.za
Counsel for the respondent: Adv JD van der Westhuizen
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Instructed by: Chris de Jager Attorneys
Benchmark Office Park
Ground floor
Unit 4BII
1 Larch Nook Street
Centurion
012 663 5200
lchris@chrisdejager-attorneys.co.za