SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: 2030/2024
In the matter between:
V[...] A[...] L[...] R[...] Applicant
and
J[...] L[...] R[...] 1st Respondent
THE SHERIFF OF THE HIGH COURT, UPINGTON 2nd Respondent
Neutral citation: V[...] A[...] L[...] R[...] v J[...] L[...] R[...] and Another (2030/2024)
12 June 2026.
Coram: Tyuthuza AJ.
Heard: 21 November 2025.
Delivered: 12 June 2026.
Summary: Specific performance – Deed of sale of immovable property – Whether
deed of sale could be concluded despite existing settlement order – Whether deed of
sale also concluded under duress and misrepresentation – Whether applicant
entitled to seek compliance with the terms of deed of sale – Having failed to fulfil her
reciprocal obligations – Application dismissed.
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3
ORDER
1. The application is dismissed with costs on a party and party scale including
counsel’s fees on Scale B.
JUDGMENT
Tyuthuza AJ
Introduction
[1] The applicant seeks a final mandatory interdict to compel the first respondent
to sign all relevant documents and take all necessary steps to effect the
transfer of the immovable property situated at 1[...] B[...] Street, Upington,
Northern Cape (the immovable property), into the name of the applicant within
7 days from the date of this Court’s order; failing which , the second
respondent be authorised to sign the necessary documents and take the
necessary steps to effect the transfer of the immovable property into the
applicant’s name. the applicant also seeks costs against the first respondent,
on an attorney and client scale.
[2] The applicant is a major female self -employed housewife, currently residing
at 1[...] B[...] Street, Upington, Northern Cape. The first respondent is J[...]
L[...] R[...] , a policeman, currently residing at 1[...] J[...] street, Die Rand,
Upington, Northern Cape. The second respondent is the Sherriff of the district
of Gordonia, with his main place of business situate at 8[...] A[...] Road,
Upington, Northern Cape. The second respondent is joined herein insofar as
he/she may have to execute the order sought, in the event that the first
respondent does not comply with prayer 1 of the notice of motion.
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[3] It is common cause that the applicant (plaintiff a quo) and the first respondent
(defendant a quo) were married to each other in community of property before
divorcing on 07 July 2022. It is also so that prior to the final decree of divorce,
on 17 May 2022, the parties concluded a settlement agreement which was
duly accepted and signed by both the applicant and the first respondent. The
settlement agreement was incorporated into the final decree of divorce on 7
July 2022. It is also further common cause that at the time of the divorce and
the settlement agreement being entered into , the applicant was legally
represented and the first respondent not.
The Settlement Agreement
[4] The settlement agreement inter alia dealt with the immovable property
situated at 1[...] B[...] Street, Upington, Northern Cape, which is the subject of
this application.
[5] The relevant parts of the settlement agreement , for purposes of this
application are recorded as follows:
‘Whereas the parties have reached a settlement and wish to record the following in
writing which they pray to be incorporated into the final decree of divorce;
2.1. The parties are joint owners of the immovable property situated at 1[...] B[...]
Street, Upington.
2.2. The plaintiff will remain in occupation of the premises and on condition that her
right will cease when she is involved in a cohabiting relationship with any third
party or remarries. In such an event, the defendant will retake occupation of the
premises and on condition that his right will also cease when he is involved in a
cohabiting relationship with any third party or remarries. The party that is in
occupation of the premises will be responsible for the payment of the bond
instalments.
2.3. Should any of the condition/s under clause 2.2 above present itself, the
premises will be let, and the net proceeds be split equally amongst the parties.
2.4. If i n the event the plaintiff should relocate, and the defendant not retake
2.4. If i n the event the plaintiff should relocate, and the defendant not retake
possession, the immovable property will be let and the net income will be split
5
equally between the parties. Any expenses involved regarding necessary
repairs on the property during this period will be borne equally between the
parties.
2.5. The parties will share the costs of insurance on the property.
2.6. The plaintiff will be responsible for continuing the bond repayments to the Bank
for as long as she is in sole possession of the property.
2.7. The defendant will be responsible for 50% (fifty percent) of the property rates
and taxes.
2.8. The immovable property will only be sold in the open market if both
parties come to an agreement to sell the property. In such an event, the net
proceeds will be split equally between the parties.
. . .
3.4. On receipt of the payment of [50% of] the defendant’s interest [in the pension
fund], the plaintiff will settle the outstanding bond with the current bond holder.
. . .
7. This settlement agreement constitutes the full agreement between the
parties, and no party will have any claim against the other party
whatsoever, except that which is contained in this agreement.’1
[6] It is further common cause that after the divorce, the parties concluded a deed
of sale in respect of the immovable property on 1 February 2023. The relevant
parts of the deed of sale are as follows:
‘NADEMAAL
Die Verkoper die geregistreerde eienaar is van een helfte van ondervermelde
eiendom en begerig is om dit aan die KOPER te verkoop, welke Koper gewillig is en
in staat is om te koop, op die voorwaardes hierin vervat;
NOU DERHALWE GETUIG DIE PARTYE AS VOLG:
1. EIENDOMSBESKRYWING
Die eiendom wat hierby verkoop word, word as volg omskryf: EEN HALWE
AANDEEL IN ERF 1[...] UPINGTONGELEË IN DIE UPINGTON
DORPSUITBREIDING 15DAWID KRUIPER PLAASLIKE
MUNISIPALITEITAFDELING GORDONIANOORD-KAAP PROVINSIEGROOT: 1 031
1 Emphasis supplied.
6
(EEN DUISEND EN EEN -EN-DERTIG) VIERKANTE METERGEHOU KRAGTENS
TRANSPORTAKTE T 1617/2002 (hierna die EIENDOM genoem)
2. KOOPPRYS
Die volle KOOPPRYS van die eiendom beloop die bedrag van R350 027.87 (DRIE
HONDERD EN VYFTIG DUISEND SEWE -EN-TWINTIG RAND EN SEWE -EN-
TAGTIG SENT) Betaalbaar deur die KOPER aan die VERKOPER as volg:
2.1 Bovermelde eiendom word nie op registrasie aan die VERKOPER uitbetaal nie,
maar betaal die KOPER die bestaande balans van die bestaande verband by
Standard Bank by wyse van substitusie ingevolge Artikel 57 van die Akteswet
aan die Bank terug ten einde VERKOPER uit die verband se werking te onthef
en die VERKOPER se halwe aandeel te bekom om gevolglik volle eienaar te
word van bovermelde eiendom.
. . .
7. OORDRAGKOSTE:
7.1 Die KOPER is aanspreeklik vir alle koste verbonde aan die transportering van
die eiendom in haar naam wat insluit transportbesorgersgelde, plaaslike
owerheids uitklaringskoste, beraamde voorsiening vir eiendomsbelasting en die
koste verbonde aan die opstel van hierdie ooreenkoms asook die koste ten
aansien van die substitusie van die bestaande verband. Sodanige koste is
betaalbaar op aanvraag daarvan deur die Aktebesorgers.
8. OORDRAG:
8.1 Oordrag van die EIENDOM sal alleenlik geregistreer word deur die
VERKOPER se Aktebesorger word by nakoming van die betalings verskuldig
ingevolge klousule 2 en 7 hiervan.
8.2 Die transportbesorger sal geregtig wees om die oordrag van die eiendom terug
te mag hou indien die betalings soos hierbo na verwys, nie ten volle vereffen is
nie.’
[7] Prior to the institution of these proceedings, the parties exchanged numerous
correspondence in respect of the aforesaid immovable property. After it
became clear that the parties could not find each other, the applicant
instituted the present proceedings.
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Applicant’s case
[8] The applicant’s case is the following: She remained in occupation of the
immovable property after the divorce and continued to make payments in
terms of the settlement agreement. The first respondent failed to honour the
settlement agreement and make full payment of his portion of costs
occasioned in respect of the property. The deed of settlement was
superseded by a deed of sale which they entered on or about 1 February
2023. The deed of settlement was amended by agreement in respect of
clause 2 thereof, to the effect that the first respondent would not receive any
portion of the proceeds , but that they would be used to settle the bond with
Standard Bank. She has fulfilled her obligations in terms of the deed of sale,
whilst the first respondent has failed to do so. The first respondent failed to
give his cooperation to sign all the necessary documents to enable the
transfer of the immovable property into her name.
Respondent’s case
[9] The first respondent in his answering affidavit raised two points in limine in
opposition to the application . The first point was abandoned at the hearing of
this matter, and counsel for the first respondent only persisted with the second
point, namely that the relief sought by the applicant is contrary to the court
order granted on 7 July 2022.
[10] It is the first respondent’s case that: The settlement agreement ma de no
provision for its variation or amendment in writing, and it constituted the full
agreement between the parties because paragraph 7 thereof is a non -
variation clause. Given that the applicant is not seeking an amendment or
variation of the settlement agreement, she is seeking an order that is contrary
to the settlement order , and that is legally untenable. Even if the applicant’s
case is construed as an application for the amendment /variation of the
settlement order, this Court is not empowered to grant such relief. This is
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because section 8 (1) of the Divorce Act ,2 only provides for the variation of
settlement orders relating to maintenance and the custody or guardianship of,
or access to, a child, but not the division of the parties’ assets. The Court
cannot order variation in the absence of an agreement between the parties to
seek such relief. The applicant ought to have approached the Regional Court
with an addendum to the deed of settlement to seek an amendment.
[11] In any event, t he applicant has breached the terms of the settlement
agreement in that , she has failed to pay the monthly bond instalment in
respect of the immovable property and the 50% of the insurance on the
property. Consequently, he paid the monthly bond instalment and the
insurance premiums in respect of the immovable property and as such , the
applicant is indebted to him.
[12] Furthermore, the deed of sale cannot be enforced for the following reasons:
(i) it improperly purports to amend a settlement order ; and (ii) he signed the
deed of sale under duress. At the time of the conclusion of the sale
agreement, he was not informed that the settlement agreement does not
make provision for its amendment, and that he would be responsible for
donation tax in the event the immovable property is transferred in the name of
the applicant for a value less than its market value.
Analysis
[13] The applicant seeks the relief sought on the basis of the deed of sale in
February 2023. She contends that the deed of sale amended paragraph 2 of
the settlement agreement and superseded the settlement agreement. It is
against this backdrop that t he applicant has approached this Court to enforce
compliance with the terms of the deed of sale agreement.
[14] On the other hand, the first respondent contends that the relief sought by the
applicant is contrary to the settlement agreement, which is a court order , and
2 70 of 1979.
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thus, still stands until it is set aside or varied. The first respondent disputes
that the settlement agreement was amended.
[15] It is trite law that once a settlement agreement between the parties is
incorporated into a divorce order, it acquires the status of a judgment 3 and, as
such, is recognised as an order of court which stands until set aside by a
court of competent jurisdiction. It is also trite that g enerally, once a court has
pronounced a final order, the matter is res judicata in so far as it relates to the
underlying lis in relation to which the parties reached a compromise. This
closes the door to the applicant from litigating on the same matter.
[16] A settlement agreement is an agreement which confers contractual rights and
obligations on the parties thereto. The effect of making a settlement
agreement an order of court is to change the status of the rights and
obligations between the parties. In Eke v Parsons4, the Court held as follows:
‘. . . Save for litigation that may be consequent upon the nature of the particular
order, the order brings finality to the lis between the parties; the lis becomes res
judicata (literally, “a matter judged”). [The principle is that generally , parties may not
again litigate on the same matter once it has been determined on the merits.] It
changes the terms of a settlement agreement to an enforceable court order.’
[17] In Moraitis Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd 5, the
Supreme Court of Appeal ( SCA) emphasised that once a settlement
agreement is made an order of court , it has a binding effect and cannot be
simply ignored. The Court held as follows at paragraph 10:
‘. . . For so long as that order stood, it could not be disregarded. The fact that it was a
consent order is neither here nor there. Such an order has exactly the same standing
and qualities as any other court order. It is res judicata as between the parties in
and qualities as any other court order. It is res judicata as between the parties in
regard to the matters covered thereby. The Constitutional Court has repeatedly said
that court orders may not be ignored. To do so is inconsistent with s 165(5) of the
Constitution, which provides that an order issued by a court binds all people to whom
it applies.’
3 PL v YL 2013 (6) SA 28 (ECG) para 32.
4 [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 31.
5 2017 (5) SA 508 (SCA).
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[18] Accordingly, t he settlement agreement in casu remains binding and valid
unless set asid e, varied or amended . Both the applicant and the first
respondent are also ad item on this aspect. What is in dispute is whether the
deed of sale purports to amend paragraph 2 of the settlement order, and if so,
whether that can or could be done by agreement between the parties or
whether they necessarily had to approach the court to seek such an
amendment.
[19] In light of the approach I adopt in this judgment, it is unnecessary to
determine whether the deed of sale purports to amend the settlement order
and whether that can or could be done by agreement between the parties ,
despite paragraph 7 of the settlement agreement and/or the fact that the
agreement was made an order of court . I am prepared to a ssume, without
deciding, that the parties could subsequently conclude a sale agreement in
respect of the immovable property.
[20] As already said, t he applicant’s alleged right to the first respondent’s share in
the immovable property and the transfer of the immovable property arises
from the deed of sale. In sum, t he first respondent raised three grounds to
sustain the argument that the deed of sale cannot be given effect to. First, he
argues common mistake on both parties in so far as they believed that they
could conclude further agreements in relation to the immovable property
despite the standing settlement order. Ancillary to this argument appears to
be the averment that the applicant breached the terms of the settlement
agreement by failing to pay the bond upon receipt of a share of the first
respondent’s pension fund. The first respondent seems to conclude that he
cannot still be paying the bond as envisaged in clause 2 of the deed of sale.
Second, in no clear terms, the first respondent seems to argue
misrepresentation by non-disclosure in that he was not informed that he would
be liable for the donation tax should the property be sold at a price that is
be liable for the donation tax should the property be sold at a price that is
lower than its market value. Finally, he averred that he was also under duress
to sign the deed of sale.
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[21] Having a ssumed, without deciding , that the parties could conclude further
agreements in relation to the immovable property, I deal only with the ancillary
argument relating to the applicant’s non -compliance with the settlement order
in so far as the first ground is concerned . The parties dispute whether each
party fulfilled its obligations under the settlement agreement. In terms of the
settlement agreement, the parties are joint owners of the immovable property.
Clause 2.8 made provision for the immovable property to be sold in the open
market, if both parties agreed to sell the property, and for the net proceeds of
the sale to be split equally between the parties.
[22] In terms of clause 3.4 of the settlement agreement, the applicant was ordered
to settle the outstanding bond with the bond holder upon her receipt of a
share of the respondent’s pension fund. On the papers, it is alleged that the
applicant received the pension interest in December 2022. Thus, there is an
expectation that that clause ought to have been complied with prior to the
conclusion of the deed of sale on 2 February 2023.
[23] The applicant baldly avers that she complied with the terms of the settlement
agreement. This is despite the fact that the first respondent has attached his
pay slips and bank statements evidencing the payments he has made from
July 2022 to September 2024. In response, the applicant merely notes the
allegations and denies breaching the terms of the settlement agreement.
[24] On the papers, I accept that the applicant failed to fulfil her obligations in
terms of the settlement agreement. However, this does not assist the first
respondent’s case because , on his own version, he signed the deed of sale
despite knowing that the applicant had not settled the bond. Needless to say,
the first respondent was fully aware that the applicant’s failure to settle the
bond was a breach of the settlement agreement and yet at no point did he
bond was a breach of the settlement agreement and yet at no point did he
seek to enforce the settlement order . The first respondent still did not make a
counter application seeking the enforcement of the settlement order in casu.
He also knew that the deed of sale made provision for the purchase price to
be used to settle the bond instead of being paid to him.
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[25] While the first respondent is free to live with the consequences of the
applicant’s non-compliance with the settlement order and not seek to enforce
the order, he cannot now try to get out of the deed of sale on the basis that he
should not still be paying the bond through clause 2 of the deed of sale . The
principles of contract law are such that , generally, a party who bound himself
contractually, despite his awareness of some unfavourable terms in the
contract, shall be held to those terms and cannot renege afterwards.6 The first
respondent, correctly so in my view, did not argue that the enforcement of the
sale agreement in the circumstances would be contrary to public policy.
[26] Regarding the second argument, it is settled that n on-disclosure or failure to
remove an existing impression is misrepresentation only if the party who is
said to have misrepresented the facts was under a duty to disclose the true
state of affairs. 7 Further, the non -disclosure must: be material8; be made by
the other party to the contract 9; with the intention of inducing the contract 10;
and induced the contract. The first respondent merely avers that he was not
informed that he would be liable for donation tax . He does not express who
had a duty to inform him about the donation tax and whether the non -
disclosure was fraudulent or otherwise . His argument is unsubstantiated and
nothing more needs to be said in this regard.
[27] In relation to the third argument, t he onus lay on the first respondent to
persuade the Court that there was no true consent on his part to entering into
the deed of sale because of improper pressure placed upon him, which would
render the contract voidable.11 He states as follows:
‘During October 2022, the applicant provided me with a deed of sale. At that stage, I
was not legally represented , I was under extreme pressure at work and emotionally
6 Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) paras 82 -
90.
90.
7 New Adventure Investments 193 (Pty) Ltd v Trustees for the time being of the SAS Trust 2002 3 All
SA 544 (C) 555 para 35.
8 Ibid; see also Orville Investments (Pty) Ltd v Sandfontein Motors 2000 (2) SA 886 (T) at 916.
9 Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) para 8.
10 New Adventure Investments 193 (Pty) Ltd v Trustees for the time being of the SAS Trust (supra fn
7) para 35.
11 Hohne v Super Stone Mining (Pty) Ltd 2017 (3) SA 45 (SCA) para 29.
13
pressured by the applicant to sign the agreement by using our daughter as a weapon
against me. I signed the agreement under duress on 13 October 2022. . . .’
[28] It is trite in our law that a contract may be vitiated by duress where improper
pressure or intimidation renders the consent of the party subject to duress no t
true consent at all. 12 In Arend and Another v Astra Furnishers (Pty) Ltd 13
(“Arend”), it was held as follows:
‘. . . Where a person seeks to set aside a contract , or resist the enforcement of a
contract, on the grounds of duress based upon fear, the following elements must be
established:
(i) The fear must be a reasonable one.
(ii) It must be caused by the threat of some considerable evil to the person
concerned or his family.
(iii) It must be the threat of an imminent or inevitable evil.
(iv) The threat or intimidation must be unlawful or contra bonos mores.
(v) The moral pressure used must have caused damage.’
[29] The first respondent goes no further to substantiate the allegations of duress .
He fails to explain with sufficient particularity exactly how he was emotionally
pressured by the applicant. This does not enable an evaluation of his defence
against the requirements of duress outlined in Arend. He fails to demonstrate
whether his fear w as reasonable, whether the threat w as unlawful and/or
contra bon os mores, or whether t he threat was imminent or inevitable. As
such, this Court is not placed in a position to establish whether these
allegations have any merit. Consequently, the argument of duress cannot be
sustained. What remains for determination is whether the applicant is entitled
to the specific performance she sought.
[30] On a contextual reading of the deed of sale, the applicant had an intention to
purchase the first respondent’s share of the immovable property and would
pay the purchase price into the bond holder’s account. In terms of clause 8 of
pay the purchase price into the bond holder’s account. In terms of clause 8 of
12 Arend and Another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 305H-306A.
13 Supra at 306A-B.
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the deed of sale, the transfer of the immovable property could only be effected
after there was compliance with clause 2 and clause 7 , i.e. payment of the
purchase price and transfer costs. Despite seeking compliance with the terms
of the deed of sale from the first respondent, the applicant has not shown that
she has fulfilled her reciprocal obligations14 in terms of the deed of sale or that
she has tendered compliance with the terms thereof. It is trite in our law that a
party wishing to claim specific performance in terms of a contract must not
only allege and prove the terms of the contract ; allege non -performance by
the defendant, but also compliance with the antecedent or reciprocal
obligations; tender to perform them.15
Conclusion
[31] The applicant was willing to resile from the terms of the deed of sale yet
launched this application to compel the first respondent to comply therewith.
Having failed to comply with the terms of the deed of sale , the applicant is
thus not entitled to the relief sought based on the terms of the deed of sale. 16
As such, I find that the applicant has failed to make out a case for the relief
sought.
Costs
[32] With regard to costs, I see no reason to depart from the general rule that
costs follow the result. In light of the dismissal of the application, I am inclined
to grant costs in favour of the first respondent.
Order
[33] Consequently, I make the following order:
14 Grand Mines (Pty) Ltd v Giddey 1999 (1) SA 960 (SCA) at 966; Man Truck & Bus (SA) (Pty) Ltd v
Dorbyl Ltd t/a Dorbyl Transport Products and Busaf 2004 (5) SA 226 (SCA) para 12.
15 RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980(1) SA 250(C).
16 Crispette and Candy Co Ltd v Oscar Michaelis NO and Leopold Alexander Michaelis NO 1947 (4)
SA 521 (A) at 537.
15
1. The application is dismissed with costs on a party and party scale
including counsel’s fees on Scale B.
___________________
T TYUTHUZA
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
16
Appearances
For the Applicant: Adv FG Janse van Rensburg
Instructed by: Hein Duvenhage Attorneys
c/o Engelsman Magabane Inc.
For the First Respondent: Adv AS Sieberhagen
Instruction by: Duncan & Rothman Inc.