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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A81/2025
In the matter between:
JERSEY ADVERTISING CC FIRST APPELLANT
HELEN TERRY REES SECOND APPELLANT
and
NEDBANK LIMITED RESPONDENT
Neutral citation: Jersey Advertising CC and Another v Nedbank Limited (A81/2025)
[2026] ZAFSHC 330 (9 June 2026)
Coram: MBHELE DJP, DANISO J et CRONJÉ AJ
Heard: 17 APRIL 2026
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 14h00 on 9 June 2026.
Summary: Appeal against a n order of the high court – settlement agreement
encapsulates interim provisions and provides that the parties will eventually conduct a
reconciliation of accounts – respondent dissatisfied with appellants’ performance and
sought relief not in all respects aligned with the provisions of the agreement – court
granted well-intended relief but going beyond the terms of the agreement and the relief in
the notice of motion – appeal succeeds.
______________________________________________________________________
ORDER
______________________________________________________________________
1 The appellants' application for condonation for the late filing of the heads of
argument is granted.
2 The appeal succeeds, and the order granted on 18 November 2022 is set aside.
3 Each party pays its own costs.
______________________________________________________________________
JUDGMENT
_______________________________________________________________________
Cronjé AJ
[1] The appellants appeal against an order by a single judge of this Division (the
court a quo), delivered on 18 November 2022, with the reasons provided on 4 August
2023. The essence of the application in the court a quo was the correct interpretation of
a settlement agreement (the agreement) concluded between the parties and was made
an order of court. The appellants’ heads of argument were filed late, and the reasons
were addressed. The respondent did not oppose the application, and condonation
should be granted.
The settlement agreement
[2] The parties concluded the agreement on 4 June 2018. The essential terms of
the agreement, for purposes of the appeal, are as follows:
‘
8. The parties agree that they will deal with the immovable properties situated at the below as
follows.
8.1. 1[...] A[...] V[...] Street, Deneysville - property bonded under loan number 848 [… ] will, as
soon as reasonably possible, be placed in the open market with a view to selling the property as
expeditiously as possible. The Defendants will also after the property has been on the market for
two months, and has not been sold yet, immediately be in contact with the Plaintiff’s assisted
sale division and sign all mandates needed to enable the Plaintiff’s assisted sale division to
assist with the sale of this property;
. . .
8.3. 2 [… ] and 2[ …] A[...] V[...] Street, Deneysvllle – property bonded under account number
800[…] – it is recorded that as a result of the recent tornado that hit the Deneysville area, some
remedial work is to be performed to this property. In the event that the remedial work is not
commenced with within two months from date hereof, the Defendants will service the bond from
the 1
st day of the next month.
9. The parties agree that this settlement agreement may be made an order of Court by any of the
parties.
. . .
11. The parties agree that the above matters will be pended until all the properties have been
sold as listed above, whereafter a reconcilement will be done of all bond and loan accounts of
the Defendants, to calculate what amount remains outstanding by the Defendant or Defendants
towards the Plaintiff. This paragraph does not detract from or amend in any way the contents of
paragraph 8.3.’
The notice of motion
[3] Not being satisfied with the appellants’ alleged failure to perform in terms of the
agreement, the respondent brought an application wherein the following relief was
sought:
‘2. Directing the Respondents to comply fully with their obligations in terms of the
settlement order, and in particular to do the following:
2.1. The Second Respondent:
2.1.1. in respect of account number 848[…] (1[...] A[...] V[...]), to sign all mandates needed . . .
2.2. The First Respondent:
2.2.1. In respect of account number 800[…] (2[… ] and 2[…] A[...] V[...]) to pay to the Applicant
the amount of R675,973.17, being the amount of the accumulated arrears up to and including 1
August 2020, together with interest thereon at the rate applicable in terms of relevant agreement,
by no later than 30 days after the granting of this order; and
2.2.2. Thereafter, and on a monthly basis, continuing to service the bond in respect of the
property situated in 2[ … ] and 2[…] A[...] V[...] Street, Deneysville, mortgaged to the Applicant
under mortgage account number 800[…] .
. . .
4. Directing the Respondents to take all such steps, including the timeous passing of
. . .
4. Directing the Respondents to take all such steps, including the timeous passing of
resolutions and timeous submission of applications for approvals and/or registrations, as shall be
necessary and/or reasonably required to conclude, execute and/or implement the agreements as
well as the transactions contemplated in the settlement order.’
The order of the court a quo
[4] After hearing the application, the following relief was granted:
‘1. The Respondents shall take all necessary steps to fully comply with their full obligations
in terms of the settlement order handed down by the Honourable Acting Judge Snellenburg on
20 September 2018 in particular do the following:
1.1 In respect of account number 848[…] (1[...] A[...] V[...]), the Second Respondent shall sign all
mandates needed to enable the Applicant's Sales Division to market and sell the property;1
1.2 In respect of 11 [sic] above, the Second Respondent 2 shall update3 the mandate should it
expire before the said property is sold and to keep updating the mandate until the property is
successfully sold;
1.3 The Applicant shall ensure that its sales division is always in contact with the 2nd Respondent
in order to enable the successful sale of property 1[...] A[...] V[...].4
2. In respect of account 800[ …] (2[… ]/2[… ] A[...] V[...]), the Respondents5 shall bring the
account up to date by paying the Applicant the arrears owed on this account.’6 (My emphasis.)
The attack on the order
[5] It is stated that, considering the discrepancies between the terms of the
agreement, the relief sought in the notice of motion, and the order, the court a quo erred
in adding the words: ‘Second Respondent shall sign all mandates needed to enable the
Applicant's Sales Division to market and sell the property.’ (Own emphasis.) The
settlement agreement referred to the ‘respondents’, not the second appellant.
Furthermore, the court erred in ordering the appellants to bring the account in respect of
2[…] /2[…] A[...] V[...] up to date by paying the respondent the arrears owed on this
account. The court made the order against the second appellant, without considering
that the respondent had sought relief against the first appellant.
[6] The respondent made no case for payment of the pleaded amounts and
[6] The respondent made no case for payment of the pleaded amounts and
admitted in its replying affidavit that some payments were in fact made. The settlement
agreement provides that arrears must be paid after tornado damage is repaired. I pause
1 This does not accord with the exact provisions in the agreement but the last portion of the
clause in the agreement is the same. However, there is an incorrect referral to the second
appellant in the notice of motion.
2 This is captured in the notice of motion but not provided for in the settlement agreement.
3 The notice of motion stated that she should ‘sign’.
4 This does not find expression in the notice of motion or the settlement agreement.
5 The notice of motion limited it to the first appellant only.
6 This is not provided for in the notice of motion or the settlement agreement.
to state that this is not correct. Clause 8.3 of the agreement provides that if the remedial
work is not commenced within two months, the appellants will service the bond from the
first day of the next month. No payments are thus due, and paragraph 11 of the
agreement provides that the matters will be held in abeyance until all the properties are
sold, after which a reconciliation of all outstanding bond and loan accounts will be
performed.
The appellants’ submissions
[7] Mr Roux referred to Fischer and Another v Ramahlele and Others
7 where the
court held that:
‘It is not for the court to raise new issues not traversed in the pleadings or affidavits, however
interesting or important they may seem to it, and to insist that the parties deal with them. . . . If
they wish to stand by the issues they have formulated, the court may not raise new ones or
compel them to deal with matters other than those they have formulated in the pleadings or
affidavits.’8 (Footnotes omitted.)
[8] The orders in paragraphs 1.1 and 1.2 of the order fell outside the ambit of what
the court had to determine. Similarly, the court made orders in respect of 2[…] /2[…] A[...]
V[...], but did not specify the amount or the period in which it had to be done. This makes
the order vague. In Eke v Parsons9 (Eke), the court held:
‘
[74] If an order is ambiguous, unenforceable, ineffective, inappropriate, or lacks the element of
bringing finality to a matter or at least part of the case, it cannot be said that the court that
granted it exercised its discretion properly. It is a fundamental principle of our law that a court
order must be effective and enforceable, and it must be formulated in language that leaves no
doubt as to what the order requires to be done. The order may not be framed in a manner that
affords the person on whom it applies, the discretion to comply or disregard it.
In Lujabe Molahlehi AJ said:
“The issue that arises in a case where the settlement agreement has been made an order of
“The issue that arises in a case where the settlement agreement has been made an order of
[c]ourt and in the context of contempt proceedings is whether such an order is executable or
7 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA);
[2014] 3 All SA 395 (SCA).
8 Ibid para 14.
9 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC).
enforceable. The basic principle is that for an order to be executable or enforceable its wording
must be clear and unambiguous. An order that lacks clarity in its wording or is vague is incapable
of enforcement. The other basic principle is that the order should as soon as it is made, be
readily enforceable. In other words, the order must give finality to the dispute between the parties
and not leave compliance therewith to the discretion of the party who is expected to comply with
such an order.”’ (Own emphasis and footnotes omitted.)
[9] In Public Protector v South African Reserve Bank 10 (Public Protector ), it was
held that the purpose of pleadings is to define the issues for the other party and the
court, and for the court to adjudicate those issues in dispute.
11 The order is at variance
with the court a quo’s own view that it is well established that clauses in a contract must
be interpreted having regard to the language used in the light of the ordinary rules of
grammar and syntax, the context and purpose of the clauses in order to give the
agreement a commercially sensible meaning. The court reasoned that, to break the
stalemate, a decision had to be made to preserve the spirit of the settlement agreement.
Had the respondent believed that the appellants were delaying the matter, it would have
launched its application or any other action sooner than it had.
[10] In respect of 1[...] A[...] V[...], the court incorrectly reasoned that the frustration of
the agreement arises from the appellants. The only obligations imposed on the
appellants were to place the property on the market as soon as possible and, if it was not
sold after two months, to contact the respondent's assisted sales division to sign
mandates. This was done. The mandate does not stipulate who is responsible for
renewing it. There are contradictions in the mandate. On the one hand, it states that it
remains in effect until the respondent provides written confirmation of cancellation and
remains in effect until the respondent provides written confirmation of cancellation and
otherwise terminates 100 days after the date of signing. The two scenarios are
contradictory. The respondent elected the 100-day provision, which failed to consider the
other provision.
[11] The court correctly reasoned that the respondent did not address whether the
bond for 2[…] /2[…] A[...] V[...] is serviced, and that the issue was not before her. Yet, she
reasoned that, to break the stalemate, a decision had to be made to ensure the spirit of
10 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (9) BCLR 1113 (CC);
2019 (6) SA 253 (CC).
11 Ibid para 234.
the settlement agreement was preserved. This was inadmissible with reference to in
Public Protector.
The respondent’s arguments
[12] Mr Reinders submits that on a proper reading of the order of the court a quo, the
appellants had to comply with their obligations in the agreement. The order remains an
interim order and is therefore not appealable. Reference is made to United Democratic
Movement and Another v Lebashe Investment Group (Pty) Ltd and Others
12 (Lebashe)
where the Constitutional Court held:
‘[45] What is to be considered and is decisive in deciding whether a judgment is appealable,
even if the Zweni requirements are not fully met, is the interests of justice of a particular case and
whether or not an order lacking one or more of the factors set out in Zweni constitutes a
“decision” for the purposes of section 16(1)(a) of the Superior Courts Act. Over and above the
common law test, it is well established that an interim order may be appealed against if the
interests of justice so dictate. It is thus in the interests of justice that the impugned interim
interdict is appealable on the allegation that the interdictory relief in question resulted in the
infringement of the right to freedom of expression.
[46] . . . The Supreme Court of Appeal in Health Professions Council of South Africa held
that, where a litigant may suffer prejudice or even injustice if an order or judgment is left to stand,
leave to appeal against orders or judgments made during the course of the proceedings should
be granted. In determining whether the impugned interim interdict was appealable, the
Supreme Court of Appeal was not exercising a discretionary power; it was making a value
judgment. Accordingly, this Court is entitled to make its own assessment and conclude that the
impugned interim interdict was a “decision” and thus within the Supreme Court of Appeal’s
jurisdiction.’ (Footnotes omitted.)
[13] The parties committed in the agreement to place the properties at 2[ …] /2[… ]
[13] The parties committed in the agreement to place the properties at 2[ …] /2[… ]
A[...] V[...] on the market as soon as possible, and it was recorded that some remedial
work was required; therefore, the bond had to be serviced. The court a quo was correct
to consider the period of stalemate ( four years) and that something had to be done to
keep the spirit of the agreement intact. Reference is made to Roazar CC v Falls
12 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others
[2022] ZACC 34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC).
Supermarket CC13 (Roazar). The principles stated therein align with what was stated in
Public Protector.14
[14] In The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners
Association15 (City of Tshwane) the Court held:
‘[61] It is fair to say that this court has navigated away from a narrow peering at words in an
agreement and has repeatedly stated that words in a document must not be considered in
isolation. It has repeatedly been emphatic that a restrictive consideration of words without regard
to context has to be avoided. It is also correct that the distinction between context and
background circumstances has been jettisoned. This court, in Natal Joint Municipal Pension
Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA), stated that the
purpose of the provision being interpreted is also encompassed in the enquiry. The words have
to be interpreted sensibly and not have an un- business-like result. These factors have to be
considered holistically, akin to the unitary approach.’ (Footnotes omitted.)
[15] It is submitted that no proof was placed before the court that the appellants
provided the respondent with a mandate in respect of 1[...] A[...] V[...]. The court did not
amend the agreement without hearing the parties. It attempted to break the stalemate,
granted orders that had a good and practical effect, and the appellants are not
prejudiced in complying with the orders.
Discussion
[16] In Lebashe it was held that an interim order may be appealed against if the
interests of justice so dictate. Although the order of Snellenburg AJ was interim, the
order of the court a quo was not. The court granted final relief. The appellants may suffer
prejudice or even injustice if an order or judgment is left to stand.
[17] In Roazar, the court held that the court in Southernport Developments (Pty) Ltd v
Transnet Ltd
16 approved the principle that a promise to negotiate in good faith occurring
Transnet Ltd
16 approved the principle that a promise to negotiate in good faith occurring
13 Roazar CC v Falls Supermarket CC [2017] ZASCA 166; [2018] 1 All SA 438 (SCA); 2018 (3)
SA 76 (SCA).
14 Op cit fn 10.
15 The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2018]
ZASCA 176; [2019] 1 All SA 291 (SCA); 2019 (3) SA 398 (SCA).
16 Southernport Developments (Pty) Ltd v Transnet Ltd 2005 (2) SA 202 (SCA).
in a context where the arrangement makes it clear that the promise is too illusory or too
vague and uncertain to be enforceable is not enforceable. The determination of whether
a promise is too illusory or too vague and uncertain must be made against the backdrop
of an understanding that good faith should be encouraged in contracts and that a party
should be held to its bargain. When two contracting parties conclude a bargain that a
certain state of affairs will come into existence between them, provided only that the
terms of a necessary condition shall be agreed, a court called upon to interpret that
provision may find itself required to develop the common law.
[18] The court a quo found that the respondent did not address whether the bond for
2[…] /2[…] A[...] V[...] was serviced, because it was not before her. That should have
been fatal to any relief in respect of those properties. When the court thereafter made the
orders in respect of those properties, those orders cannot stand.
[19] With respect to the 1[...] A[...] V[...] property, the court also erred in expanding
the relief. The record shows that the second appellant provided the respondent with a
mandate on 8 January 2020. Yet, she reasoned that, to break the stalemate, a decision
had to be made to preserve the spirit of the settlement agreement. This was,
respectfully, impermissible.
[20] In City of Tshwane, the court held that in the interpretation exercise, the point of
departure is the language of the document in question. Without the written text, there
would be no interpretive exercise. The written text is what is presented as the basis for a
justiciable issue. No practical purpose is served by further debate about whether
evidence by the parties about what they intended or understood the words to mean
serves the purpose of properly arriving at a decision on what the parties intended as
contended for by those who favour a subjective approach. Nor is it helpful to continue
contended for by those who favour a subjective approach. Nor is it helpful to continue
debating the correctness of the assertion that it will only lead to self -serving statements
by the contesting parties. Courts are called upon to adjudicate in cases where there
is dissensus.
[21] Although one can appreciate that a party to an agreement may be dissatisfied
with the other party's compliance, a court should be cautious not to attribute fault or to
venture in devising mechanisms to break deadlocks outside the agreement’s wording
and the relief sought. The caution in City of Tswane regarding the interpretation of
agreements must be heeded.
[22] Similarly, Eke warned that i f an order (also read ‘agreement’), is ambiguous,
ineffective, inappropriate, or lacks the element of bringing finality to a matter or at least
part of the case, a court cannot exercise discretion to give effect to it where the parties
realise ex post facto that there may be deficiencies. It is for the parties to conclude
agreements that are effective and enforceable. They should formulate the agreement in
language that leaves no doubt as to what needs to be done.
Conclusion
[23] On the basis of the above, the order of the court a quo cannot stand and must be
set aside. Where a party is not satisfied with the bona fides of the other contractual party
or wishes to hold a party to specific terms, other avenues may be available. The court a
quo granted final orders that were not competent.
[24] The court a quo ordered each party to pay its own costs. Molitsoane J granted
leave to appeal against the order and ordered that the costs will be costs in the appeal.
There can be no doubt that the court a quo went beyond what the respondent sought
and devised mechanisms that were, on their face, well -intentioned but unsustainable. In
my view, an order that each party shall pay its own costs would accord with fairness and
would place the parties in the position they were in before the order was granted.
Order
[25] In line with existing practice, the following order is made:
1 The appellants' application for condonation for the late filing of their heads of
argument is granted.
2 The appeal succeeds, and the order granted on 18 November 2022 is set aside.
3 Each party pays its own costs.
__________________________
P R CRONJÉ
ACTING JUDGE
I concur:
__________________________
N M MBHELE
DEPUTY JUDGE PRESIDENT OF THE HIGH
COURT
I concur:
__________________________
N S DANISO
JUDGE OF THE HIGH COURT
Appearances
On behalf of Appellants: A Roux
JNS Attorneys, Randburg
Spangenberg, Zietsman & Bloem, Bloemfontein
On behalf of Respondent: S J Reinders
Cliffe Dekker Hofmeyer, Sandton
McIntyre Van Der Post, Bloemfontein