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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 23109/17
In the matter between:
C[...] K[...] P[...] PLAINTIFF
and
R[...] A[...] P[...] DEFENDANT
Neutral citation:
Coram: Mgengwana; AJ
Heard: 26 March 2026
Delivered: 13 May 2026
Summary: Divorce – Decree incorporating terms of Settlement Agreement
– Alleged Breach of a term of the Settlement Agreement – Interpretation -
Enforcement of a term of the Settlement Agreement.
ORDER
[1] In the result, I grant the following order:
[1.1] The Registrar of this Court directed to issue a writ of execution
in favour of the Applicant for an amount of R55 786.65 plus interest
on this amount calculated from 28 December 2024 to date of final
payment.
[1.2] The Sheriff of Wynberg North is directed to attach and take into
execution the movable goods of the Respondent at Flat No. 4[...], The
R[...], B[...] Road, Rondebosch and cause to be realized by public
auction the sum of R55 786.65 plus interest on this amount at 11.75% per
annum calculated from the 28 th of December 2024 to date of final payment,
the costs of the application and costs of the execution of the order granted.
[1.3] The Sheriff of Wynberg North is directed to pay the Applicant
or her attorney the sum due in terms of the paragraph above with costs.
[1.4] The Respondent is ordered to pay the costs of this application
including the costs of counsel on Scale B.
JUDGEMENT
MGENGWANA; AJ
Judgement handed down: The judgement is handed down electronically by
circulating to the parties or legal representatives by email. The date for the
handing down of the judgment is deemed to be 13 May 2026.
Introduction
[1] This is an application in which the Applicant is seeking an Order on
the following terms:
(a) Directing the Registrar of this Court to issue a writ of execution in
favour of the Applicant for an amount of R55 786.65 plus interest on
this amount calculated from 28 December 2024 to date of final
payment.
(b) Directing the Respondent to pay the costs of this application.
(c) Directing and authorizing the Sheriff of Wynberg N orth to attach
and take into execution the movable goods of the Respondent at Flat
No. 4[...], The R[...], B[...] Road, Rondebosch and cause to be
realized by public auction the sum of R55 786.65 plus interest on this
amount at 15.5% per annum calculated from the 28 th of December
2024 to date of final payment , the costs of the application and costs of the
execution of the order granted.
(d) The Sheriff of Wynberg North is directed to pay the Applicant or
her attorney the sum due in terms of paragraph (c) above with costs.
Background
[2] On 21 August 2019 this Court granted a divorce decree dissolving the
marriage between the Applicant and the Respondent. The divorce decree
incorporated a Settlement Agreement which was signed by both the
Applicant and the Respondent on 15 July 2029.
[3] The material terms of the Settlement Agreement relevant to this
application are as follows:
(a) The Pla intiff, the Applicant in these proceedings, shall retain
the motor vehicle currently in her possession for which the Plaintiff will
be responsible for maintenance, including service, tyres and fuel.
(b) The Defendant, the Respondent in these proceedings, shall
make 50% of the monthly instalments in the amount of R2 657.00 (Two
Thousand Six Hundred and Fifty Seven Rand) on the vehicle referred
to above until the expiry of the finance agreement on the motor
vehicle, such amount to be paid monthly by the 28 th of each consecutive
month until expiry of the finance agreement.
[4] There is no allegation that the Respondent defaulted on any of the
R2 657.00 payments however, on 24 October 2024 and via her attorneys of
record at the time, the Applicant wrote to the Respondent to inform him of
his obligation to pay a final instalment of R55 786.65 which is 50% of a
“balloon payment” of R111 573.30 the Applicant is obliged to pay in terms
of the finance agreement. The Respondent neither responded to the
aforementioned letter nor made the payment of R55 786.65. Because of the
inaction of the Respondent, the Applicant approached the Registrar of this
Court on 21 January 2025 to obtain a writ of execution for the amount of
R55 786.65. However, the Registrar declined to issue the writ of execution
because according to the Registrar, the settlement agreement “does not
clearly make provision for the amount and reason for which the writ is
sought, as referred to in paragraphs 6.2 and 6.3.”
[5] Based on the Registrar’s response, the Applicant approached this
Court with an application that seeks the orders outlined in paragraph 1 of
this judgement. The application is opposed by the Respondent.
Issues to be determined
[6] This Court is being called upon to make a determination on what is
the meaning of the words “until the expiry of the finance agreement on the
motor vehicle ” within the c ontext of th is particular case. If the “balloon
payment” falls squarely within the four corners of the finance agreement,
then the Respondent will be liable for the payment of 50% of the “balloon
payment” but if it does not, then he will escape liability.
Submissions made by Applicant
[7] Applicant’s counsel seeks, in the main , to rely on an email sent by
Respondent to Applicant on 5 May 2025 wherein he said the following:
“Chantal, how much is the bubble payment on the car? I left the legal
papers in Cape Town. I’m going to pay it. I really don’t have money
or energy to spend on more lawyers’ bills, when I have parents and
kids who need support”
Applicant’s counsel submitted in his Heads of Argument that the contents of
the aforementioned email constitute an admission by the Respondent that he,
in fact, owes the Applicant the money for the “balloon payment”.
[8] In addition to the above , counsel for the Applicant submitted that the
test for “expiry of the finance agreement” turns on the ordinary meaning and
commercial context. The finance agreement “expires ” only when all
obligations under it are discharged, including any residual or “balloon
payment”.
[9] Counsel for the Applicant further submitted that Respondent’s
interpretation – limiting liability to the monthly instalments – ignores the
plain wording and defeats the evident purpose of the clause , which was to
ensure shared responsibility “until expiry”. The operative phrase “until the
expiry of the finance agreement” imports continuation of the Respondent’s
payment obligation until the finance contract is fully extinguished .
Removing the “balloon payment ” from the shared obligation renders the
phrase meaningless. The reference to “in the amount of R2 657.00”
identifies the monthly rate of performance, not ceiling on total liability . The
parties tied the Respondent’s obligation to the duration of the finance
contract, not to a fixed sum.
Submissions made by Respondent
[10] Mr. Nel, who appeared for the Respondent , strenuously objected to
the admission of the email of 5 May 20 25. He argued that the email was
only brought to the court’s attention in the Applicant’s Replying Affidavit
and is therefore a “new matter” , besides constituting a new matter, it was
never contextualized . Respondent submitted that this email was preceded
and followed by numerous emails which were never brought to the attention
of this Court.
[11] He also submitted that the Deed of Settlement explicitly and
unambiguously provided that the Respondent would only be liable for one
half of the monthly instalment s for the motor vehicle in a specified amount.
He further stated that the Respondent was not liable f or half of the residual/
balloon payment at the end of the finance terms , as is currently being
claimed.
[12] He also submitted that from the wording of clause 6.3 it was clear that
the Respondent had only undertaken to pay 50% of the monthly instalment s
in a specified amount of R2 657.00 until the expiry of the finance agreement
and nothing more. There was no reference in the Deed of Settlement that the
Respondent agreed to pay any p ortion of the final balloon/residual payment
of R111 642.20. He submitted further that the instalment sale agreement
clearly stated that there were seventy-one (71) monthly instalments of
R5 312.73 for which the Respondent was only liable for 50% thereof.
Applicable Law
[13] Madlanga J stated in in Eke v Parsons that once a settlement
agreement has been made a n order of court, it is an order like any other and
that it will be interpreted like all court orders. He further elaborated that this
is equally true of court orders following settlement agreements.1
[14] Wallis, JA stated the following when discussing the law with regards
to interpretation in Natal Joint Municipal Pension Fund v Endumeni
Municipality:
“ The present state of the 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 must be given to the language used in the light of the ordinary 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 weighed in the light of all these
factors. The process is objective, not subjective. A sensible meaning is to be preferred to one
1 Eke v Parsons 2016 (3) SA 37 (CC) at para 29 and 30
that leads to insensible or unbusinesslike results or undermines the apparent purpose of
the document. Judges must be alert to, and 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 background to the
preparation and production of the document.”2
[15] After citing the above passage with approval Khampempe J held as
follows in University of Johannesburg v Auckland P ark Theological
Seminary 2021 (6) SA 1 (CC):
“[65] This approach to interpretation requires that “from the outset one considers the
context and the language together, with neither predominating over the other”. In Chisuse,
although speaking in the context of statutory interpretation, this Court held that this “now
settled” approach to interpretation, is a “unitary” exercise. This means that interpretation is
to be approached holistically: simultaneously considering the text, context and purpose.
[66] The approach in Endumeni “updated” the previous position, which was that context
could be resorted to if there was ambiguity or lack of clarity in the text. The Supreme Court
of Appeal has explicitly pointed out in cases subsequent to Endumeni that context and
purpose must be taken into account as a matter of course, whether or not the words used in
the contract are ambiguous. A court interpreting a contract has to, from the onset, consider
the contract’s factual matrix, its purpose, the circumstances leading up to its conclusion, and
the knowledge at the time of those who negotiated and produced the contract.”3
the knowledge at the time of those who negotiated and produced the contract.”3
[16] In Capitec Bank Holdings Limited v Coral Lagoon Investments Ltd
194 Unterhalter AJA, as he then was , stated the following after making it
clear that the point of departure as was stated in the Endumeni case is the
language of the provision itself:
2 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at par 18 F
3 University of Johannesburg v Auckland Park Theological Seminary 2021 (6) SA 1 (CC)
“[26] None of this would require repetition but for the fact that the judgment of the High
Court failed to make its point of departure the relevant provisions of the subscription
agreement. Endumeni is not a charter for judicial constructs premised upon what a contract
should be taken to mean from a vantage point that is not located in the text of what the
parties in fact agreed. Nor does Endumeni license judicial interpretation that imports
meanings into a contract so as to make it a better contract, or one that is ethically
preferable.”4
[17] It is clear from the cases cited above that this Court is enjoined to take
context, purpose, the factual matrix and circumstances leading to the
conclusion of the agreement into cognizance when interpreting a settlement
agreement, irrespective of whether the wording of the agreement itself is
equivocal or not.
[18] Bam J briefly described a “balloon payment” as follows in BMW
Financial Services South Africa v Liebenber g which is a North Gauteng
High Court judgement delivered on 9 June 2025:
“[8] A balloon payment refers to a portion of a loan that is deferred until the end of the loan
term. The consumer typically does not make payment towards this portion . However, they
will be required to make one final payment which is usually significantly larger than the
installments paid during the term”. 5
Discussion and findings
[19] First and foremost , this Court deems it necessary to dispose of the
4Capitec Bank Holdings Limited v Coral Lagoon Investments Ltd 194 2022 (1) SA 100 (SCA)
5 BMW Financial Services South Africa v Liebenberg
issue of an alleged admission made by the Respondent in his electronic mail
of 5 May 2025. As stated previously in this judgement, this alleged
admission was only raised in the Replying Affidavit of the Applicant and
naturally, the Respondent objected to the introduction of th is email as he
submitted that it contained a new matter . To deal with the alleged “new
matter”, the Respondent prepared and filed an application to Strike Out the
alleged new matter and he also prepared and filed an application to file a
further affidavit in terms of Rule 6(5)(e) of the Uniform Rules of this Court.
However, on the morning of hearing this matter, counsel for the Applicant
indicated to Court that he will make no reference to the new matter raised in
the Replying Affidavit and that this Court does not have to make a ruling in
respect thereof. This Court shall therefore not make a pronouncement with
regards to the application to strike out and the application in terms of R ule
6(5)(e).
[20] The following facts are common cause:
(a) A Divorce Order incorporating the terms of a Settlement
Agreement of 15 July 2019 was granted on 21 August 2019.
(b) When this Settlement Agreement was entered into, the Applicant
had already entered into a finance agreement with regard to the
vehicle which is the subject of this case, such finance agreement
was entered into on 8 December 2018.
(c) The duration of the finance agreement was from 7 December 2018
to 25 December 2024.
(d) The finance agreement had 72 instalments consisting of 71
instalments of R5 312.73 each and one instalment of R111 642.20.
This Court therefore does not accept the submission made by the
attorney for the Respondent that the finance agreement had only
seventy instalments.
(e) Nothing was specified in the agreement with regard to the last
instalment of R111 642.00 and no explanation has been given by
either of the parties in connection with this omission.
(f) The words “until the expiry of the finance agreement” has been
used twice in paragraph 6.3 of the Settlement Agreement while the
amount of R2657.00 has only been used once.
(g) The central issue is whether the Respondent is liable for payment
of 50% of the amount of R111 642.20.
(h) Attorney for the Respondent made no attempt to furnish this Court
with his interpretation of the words “until the expiry of the finance
agreement”.
[21] The duration of the finance agreement, as previously stated , is
seventy-two months with the last instalment being a “balloon payment ”.
This must have been well known by both parties at the time the settlement
agreement was entered into as the finance agreement preceded the settlement
agreement and the divorce. Th erefore, the finance agreement is the context
within which clause 6.3 was negotiated and concluded. If there was ever an
intention to exclude any of the instalments of the finance agreement , this
would have been expressly stated at clause 6.3 as it would have been out of
sync with its tone. This tone placed an emphasis on the words “until the
expiry of the finance agreement” rather than the monthly amounts payable.
This is evidenced by the fact that the se words are use d twice in the same
clause. Based on the above, this Court finds that the drafters of the
settlement agreement resolved to place emphasis on the payment duration
rather than the monthly amount payable.
[22] Therefore, b ased on the plain and unequivocal language used in the
formulation of clause 6.3, the circumstances in existence at the time at was
negotiated and agreed to (the terms existing finance agreement) and the
purpose thereof (to pay 50% until the expiry of the finance agreement) , this
Court finds that the Respondent is indeed liable for 50% of the seventy
second instalment, being the balloon payment which is part and parcel of the
finance agreement.
[23] As previously stated, clause 6.3 of the settlement agreement does not
specifically exclude the seventy-second instalment. If Respondent believed
that he was only liable for seventy-one of the seventy -two instalments, then
he misled himself as clause 6.3 does not provide for payment of only
seventy-one instalments out of the seventy -two but it provides for payment
for the duration of the entire finance agreement which must mean all
seventy-two instalments regardless of the amount payable on the final
instalment.
[24] The Court has also noted that the text of the finance agreement itself
makes no mention of an “Additional “Balloon Payment” of R111 573.30” as
submitted by Mr. Nel , it only makes mention of a payment of R111 642.20
commencing on 25 December 2024. Therefore, the submission that the
payment of 50% of the aforementioned amount by the Respondent will be in
addition to his monthly amounts of R2 657.00 is unfounded and stands to be
rejected as it is not supported by either the texts of the finance agreement or
the settlement agreement.
[25] In the result, I grant the following order:
[25.1] The Registrar of this Court directed to issue a writ of execution
in favour of the Applicant for an amount of R55 786.65 plus interest
on this amount calculated from 28 December 2024 to date of final
payment.
[25.2] The Sheriff of Wynberg North is directed to attach and take
into execution the movable goods of the Respondent at Flat No. 4[...], The
R[...], B[...] Road, Rondebosch and cause to be realized by public
auction the sum of R55 786.65 plus interest on this amount at 1 1.75% per
annum calculated from the 28 th of December 2024 to date of final payment,
the costs of the application and costs of the execution of the order granted.
[25.3] The Sheriff of Wynberg North is directed to pay the Applicant
or her attorney the sum due in terms of the paragraph above with costs.
[25.4] The Respondent is ordered to pay the costs of th is application
including the costs of counsel on Scale B.
______________________________
TJ MGENGWANA
Acting Judge of the High Court
APPEARANCES:
For the Applicant: Mr. C. Burke
Instructed by: Kudo Law
Mr. R. Kudo
For the Respondent: Springler-Nel Attorneys
Per: Mr. A. Nel