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[2015] ZACC 30
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Eke v Parsons (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29 September 2015)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 214/14
In the matter
between:
KEVIN JOHN
EKE
Appellant
and
CHARLES HENRY
PARSONS
Respondent
Neutral
citation:
Eke
v Parsons
[2015] ZACC 30
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Judgments:
Madlanga J (main): [1] to [52]
Jafta J (concurring): [53] to [76]
Heard on:
26 May 2015
Decided on:
29 September 2015
Summary:
Settlement agreement — status of
orders made pursuant to settlement agreements — terms become an
enforceable court order
— finality of court orders
Summary
judgment — Rule 32 of Uniform Rules of Court — rules
governing the court process should not be disregarded —
courts
may depart from a strict observance of the rules in the interests of
justice — substance ahead of form
Section
34 of the Constitution — access to court — settlement
orders that exclude raising defences — defences
were
effectively raised — unsatisfactory assessment of defences does
not amount to denial of right of access to court
ORDER
On appeal from
the Eastern Cape Local Division of the High Court, Port Elizabeth:
The appeal is dismissed with costs, including the costs of two
counsel.
JUDGMENT
MADLANGA J (Mogoeng
CJ, Moseneke DCJ, Cameron J, Froneman J, Molemela AJ and Tshiqi
AJ concurring):
[1]
This is an appeal against the judgment and
order of Nhlangulela ADJP in the Eastern Cape Local Division of the
High Court, Port
Elizabeth (High Court).
[1]
It concerns a settlement agreement that was made an order of court.
In the main, it raises questions as to the status
of settlement
agreements that have been made orders of court and what terms may or
may not be contained in those agreements.
[2]
In 2010 Mr Kevin John Eke, the appellant,
agreed to purchase the membership interest of Mr Charles Henry
Parsons, the respondent,
in a close corporation, Chezel Trading No 4
CC, for R7 775 000 (sale agreement). Acting in terms
of the sale agreement,
Mr Eke nominated the Kevin Eke Family Trust
(Trust) as purchaser. He bound himself as surety and
co-principal debtor for
the obligations of the Trust.
[3]
Mr Eke defaulted on his payments under the
sale agreement. He did not remedy this breach even after Mr
Parsons had sent a
letter of demand. On 14 May 2013
Mr Parsons instituted proceedings in the High Court claiming the
balance of the
purchase price in the sum of R5 million.
When Mr Eke entered an appearance to defend the action, Mr Parsons
applied
for summary judgment. On the doorstep of the Court, the
parties entered into a settlement agreement. That agreement
was
made an order of court by Schoeman J on 16 July 2013 (settlement
order). The settlement order reads:
“
IT
IS ORDERED
: (By Agreement)
1.
That, in reaching the agreement set out herein, the Defendant acted
both in his
personal capacity as well as in his representative
capacity as trustee and duly authorised representative of the Kevin
Eke Family
Trust (the ‘Trust’).
2.
That the application be and is hereby postponed
sine die
.
3.
That the Plaintiff is granted leave to amend the particulars of claim
within
twenty one days of date hereof, to introduce the Trust (duly
represented by its trustees for the time being), as a further
Defendant
in the matter; and to increase the sum claimed to the sum
of Rl0.3 Million Rand, referred to below, together with interest at
the
rate of 9% per annum from date hereof.
4.
That in settlement hereof the Defendant agrees to pay to the
Plaintiff the sum
of R10.3 million Rand (Ten Million, Three Hundred
Thousand Rand) in the manner set out below, together with interest
thereon at
9% (nine percent) per annum from date hereof, plus the
Plaintiff’s cost hereof, as taxed or agreed.
5.
That the Defendant shall pay to the Plaintiff the sum of R500 000.00
(Five
Hundred Thousand Rand) within ten days of date hereof, such
payment to be effected into the trust account of the Plaintiff’s
Johannesburg attorneys . . .
6.
That the Defendant shall effect payment of a further sum of
R500 000.00
(Five Hundred Thousand Rand), in the aforesaid
manner, within thirty days of date hereof.
7.
That the Defendant shall make a further payment of R1 500 000.00
(One
Million Five Hundred Thousand Rand), in the aforesaid manner,
within sixty days of date hereof.
8.
That the balance of the Defendant’s outstanding indebtedness .
. . shall
be paid at a rate of R500 000.00 (Five Hundred
Thousand Rand) per month. The first instalment thereof shall be
paid
on the last day of the month following the due date for payment
of the R1.5 million in terms of paragraph 7 above; thereafter,
in the aforesaid manner, with each payment to be made before or on
the last day of every successive month.
. . .
16.
That should the Defendant fail to comply timeously with any of his
obligations set out herein,
both in respect of the payments to be
made and in respect of the securities to be supplied and registered,
the Plaintiff will be
entitled to enrol the summary judgment
application for hearing forthwith, claiming from both the Defendant
and the Trust, then
the outstanding balance, interest and costs.
17.
That the outstanding sum payable for purposes of the said application
shall be proven by
way of a supplementary affidavit by the Plaintiff,
indicating the outstanding balance at the time.
18.
That the Defendant agrees, in both aforesaid capacities, not to
oppose the said application
for summary judgment.
19.
That the parties agree that neither the Plaintiff’s amendment
of the particulars of
claim, nor this settlement (which shall not
constitute a novation), nor the filing of the further supplementary
affidavit referred
to above, will compromise the Plaintiff’s
entitlement to seek the order for summary judgment in terms of clause
16 above.”
[4]
In the event, Mr Eke breached the payment
terms under the settlement order. Mr Parsons enrolled the
summary judgment application
in terms of clause 16 of the settlement
order. He sought payment of the balance outstanding under the
settlement order in
the sum of R7.3 million, plus interest totalling
some R440 000.00. He filed a supplementary affidavit, as
contemplated
in paragraph 17 of that order. Mr Eke, who had
since replaced the legal representatives who were assisting him when
he agreed
to the terms of the settlement, opposed this application.
He raised the following defences:
(a)
The settlement order was an agreement governed by the National Credit
Act
[2]
(NCA). That being the case, a notice ought to have been issued
in terms of section 129 of the NCA. Since it was not
issued,
the application was premature.
(b)
The sale agreement was the
causa
(underlying reason or cause)
[3]
for the settlement agreement. As he had bound himself as surety
for the Trust’s obligations, there was no underlying
causa
against him in his personal capacity to pay the amount owing under
the subsidiary settlement agreement, which more than doubled
the
amount of R5 million allegedly owing by him as surety.
(c)
“The contents of the [settlement] order, in so far as it [was]
a subsidiary agreement
to the [sale agreement],”
[4]
disclosed no cause of action against him in his capacity as trustee
of the Trust. In the alternative, the increased liability
under
the settlement order amounted to an unenforceable penalty in terms of
section 2(2) of the Conventional Penalties Act.
[5]
(d)
The clause of the settlement order that barred him from opposing the
summary judgment application
was
contra
bonos mores
(contrary to good morals) and unenforceable.
(e)
Despite not being entitled to do so in terms of either the Uniform
Rules of Court (Uniform
Rules) or the settlement order, Mr Parsons
had delivered a further affidavit. A related point was that, in
addition to Mr Parsons’
perceived lack of competence to
file it, the further affidavit verified only the amount owing and
not, as the Uniform Rules require,
also the cause of action.
[6]
[5]
Nhlangulela ADJP who heard the application
rejected all these defences.
[6]
As his grounds of appeal to us, Mr Eke
raised the defences to the summary judgment application set out
above.
[7]
There were some additional arguments. I need mention only one,
which is one of the issues on appeal. Mr Eke argues
that rule
32 of the Uniform Rules does not permit a second summary judgment
application and that the parties could not have validly
bypassed this
legal bar by means of a settlement agreement. It is not
necessary to detail the other contentions because of
the approach
this Court adopted. The Court granted leave to appeal only on
certain limited issues. These are—
(a)
the status and effect of making a settlement agreement an order of
court;
(b)
the permissibility in terms of rule 32 of the Uniform Rules to have
brought a second summary
judgment application based on the settlement
agreement; and
(c)
whether the provision in the settlement agreement that Mr Eke was not
to oppose the second
summary judgment application is enforceable
having regard to section 34 of the Constitution.
[7]
I address these issues in turn.
The status of the
settlement agreement
[8]
It becomes necessary to resolve this issue
because – in part – the stance adopted by Mr Eke seeks to
question the very
essence of the settlement order. Let me
preface the discussion with this. The practice of making
settlement agreements
is well-established and has existed for a long
time in South Africa. In
Van
Schalkwyk
the Court said “[t]he
tradition of such orders is very strong in our legal system”.
[8]
[9]
The crux of Mr Eke’s submission is:
“
In
the present instance, the intention of the parties is clear, namely
that the agreement which was reached did not constitute a
final
judgment or order upon being recorded in an order of court, more
especially since the respondent, upon any breach of the
agreement by
the appellant, was entitled to do no more than proceed with his
application for summary judgment which had been postponed
sine
die
. The respondent was not
entitled to execute on the order as same constituted no more than a
recordal of their settlement.”
[9]
[10]
Mr Parsons argues the opposite: the effect
of the settlement order is to vest the terms of the settlement
agreement with the status
of an order of court. He concedes
that there may be instances where this does not hold true, but that
it is patently clear
that this particular settlement order is not
such an instance. In fact, he contends, the summary judgment
application was
settled on the basis that the settlement agreement
between him and Mr Eke would be made an order of court.
[11]
Mr
Eke relies heavily on the judgments of
Thutha
[10]
and
Tasima
.
[11]
Thutha
concerned a divorce settlement that had been made an order of Court
by the Eastern Cape High Court, Mthatha. Its terms dealt
with a
variety of matters, notably: the award of custody of the minor
children to the wife; provision for the children’s
maintenance
by the husband; a specified contribution towards the expenses of the
wife’s household; a requirement for the
transfer of ownership
of two motor vehicles by the husband to the wife; and that the
husband should transfer a residential property
to the minor
children. The wife brought an application asking that the
husband be held to be in contempt of an order of Court.
The
basis was that he had failed to comply with his obligations under the
divorce settlement. For his part, the husband denied
non-compliance.
[12]
The Court dismissed the application because
the terms of the settlement that were at issue were incapable of
performance.
The reason given was that “a court order
must be effective, enforceable and immediately capable of execution
by the sheriff,
his deputy or members of the South African Police
Service”.
[12]
The Court continued: only an order
ad
pecuniam solvendam
(for the payment of
a sum of money) or
ad factum praestandum
(for the performance of a specific act) satisfies this
requirement.
[13]
Depending on the nature of the order, enforcement for non-compliance
may take the form of execution or contempt proceedings.
[14]
As a rule, terms of settlement agreements that may be enforced as
orders in one of these two ways only after the success
of some
subsequent antecedent litigation must not be incorporated in a court
order.
[15]
[13]
For its approach,
Thutha
relies on the practice in
KwaZulu-Natal. Its essence is captured in
Claassens
:
“
Here,
as a rule, the Court simply orders the parties on request to do what
they have promised, to the extent that such lends itself
to a
command, falls within its jurisdiction, and is otherwise
unobjectionable. It spells this out, by and large choosing
its
own words. Seldom does it even mention the agreement. But
the parts used as material for its order are converted
into one in
that way, no less surely and much more precisely. For the rest,
the litigants must look to their contractual
rights, which hold no
immediate interest for it.”
[16]
[14]
There is nothing wrong with taking the
terms of a settlement agreement and casting them in the form of an
order. Questions
arise though. Must a court be this
formalistic; why must it cut the terms out of the agreement and paste
them onto its order?
Why can’t it simply say the
agreement, or those of its terms that do lend themselves to being
part of a court order,
are made an order of court? Insofar as
one is aware, the less formalistic option is the usual practice in
most divisions
of the High Court of South Africa. Of
course, if a court sanctions only some of the terms of a settlement
agreement,
it would have to identify them clearly. I return to
all this later.
[15]
Thutha
expresses
an aversion to courts being used as registries for what in essence
are parties’ contractual obligations. On
this it calls in
aid another KwaZulu Natal case. That case,
Mansell
,
[17]
concerned a request by parties in divorce
proceedings that a settlement agreement be made an order of Court.
One of the terms
of the settlement agreement stipulated that, post
the divorce, the husband was to pay maintenance to the wife.
The Court
held:
“
For
many years this Court has set its face against the making of
agreements orders of Court merely on consent. We have
frequently
pointed out that the Court is not a registry of
obligations. Where persons enter into an agreement, the
obligee’s remedy
is to sue on it, obtain judgment and execute.
If the agreement is made an order of Court, the obligee’s
remedy is to
execute merely. The only merit in making such an
agreement an order of Court is to cut out the necessity for
instituting
action and to enable the obligee to proceed direct to
execution. When, therefore, the Court is asked to make an
agreement
an order of Court it must . . . look at the agreement and
ask itself the question: ‘Is this the sort of agreement upon
which
the obligee (normally the plaintiff) can proceed direct to
execution?’ If it is, it may well be proper for the Court
to make it an order. If it is not, the Court would be
stultifying itself in doing so. It is surely an elementary
principle
that every Court should refrain from making orders which
cannot be enforced. If the plaintiff asks the Court for an
order
which cannot be enforced, that is a very good reason for
refusing to grant his prayer. This principle appears . . . to
be
so obvious that it is unnecessary to cite authority for it or to
give examples of its operation.”
[18]
[16]
The Court in
Mansell
then concluded that, for two reasons, it could not grant the parties’
request. First, on the authority of
Hodd
,
[19]
the Court lacked competence to make an order in
respect of the provision for maintenance as, to do so, would have
meant that the
Court was being a mere “registry of
obligations”.
[20]
As will become clear shortly, the underlying
reason for this was that at that time there was no rule of
substantive law –
whether statutory or in terms of the common
law – that made it possible for a spouse to claim maintenance
from the other
after their divorce. Second, the granting of the
order would be of “no practical or legitimate advantage”
as
it could not be enforced.
[21]
In context, “enforcement” meant being
able to “proceed direct to execution”.
[22]
In the Court’s view, this was not the case
with the proposed order.
[17]
As the Court observes in
Le
Grange
, the contexts in which
Mansell
and
Thutha
were
decided are different.
[23]
As a result,
Thutha
should not have been decided without paying due regard to the context
in which
Mansell
was
decided.
[24]
Van Zyl ADJP sets out this context
well. I can do no better than to recite his words:
“
[T]
he
source of the Court's authority to make a settlement agreement an
order of court in divorce proceedings, regulating the proprietary
consequences of the divorce and the payment of maintenance to a
former spouse, is now to be found in the provisions of section
7(1)
of the Divorce Act [70 of 1979].
The purpose and
importance of this subsection are locked up in its history and the
reason for its existence as part of the Divorce
Act.
It replaced
section 10(1)(b) of the Matrimonial Affairs Act [37 of 1953] which
was enacted with the aim of removing the uncertainty
that had been
caused by the full bench decision in the then Natal Provincial
Division in
Hodd
,
and an earlier decision in the Free State in
Schultz
v Schultz
.
In
Hodd
the Court held that an
agreement between spouses in a divorce action which provided for the
maintenance of a former spouse could
not be made part of the decree
of divorce. This finding was based on the view that at common
law the reciprocal duty of support
which exists between spouses
during the existence of the marriage comes to an end upon the
dissolution thereof.
As
a result the Court in
Hodd
held
that any agreement relating to the payment of such maintenance was
not based on any antecedent right to receive maintenance
after the
divorce, and that as such it was not capable of representing any
agreed settlement or compromise of any claims arising
from the
action:
‘
although
it will undoubtedly give effect by way of orders to rights recognised
by the law, and to agreed settlements and compromises
based upon
those rights . . . some cause of action, or recognised legal right to
invoke the assistance of the Court, must exist
before the Court will
make any order, except, perhaps dismissing the proceedings.’
This finding is
premised on the adversarial model on which dispute resolution is
based in our law, namely, that the Court's mandate
or jurisdiction is
determined by the
lis
[lawsuit]
between the parties. The Court's authority in other words does
not extend beyond the issues which the action is
capable of raising,
and which the parties themselves have raised in their pleadings.
It follows that if there
exists no duty to maintain, and therefore no antecedent right to
claim maintenance after the marriage has
been dissolved, it is not an
issue which the Court may competently decide and rule on in its
judgment and the order issued pursuant
thereto.
To do so would mean
that the Court, in the words of Selke J, adopted by Broome JP in
Mansell
,
would act as ‘a mere registry of documents or agreements’.
The
result of this was that the courts refused to make settlement
agreements which provided for maintenance after the dissolution
of
the marriage an order of the court, unless it could be found to
constitute an agreement ‘on a claim relating directly
or
indirectly, wholly or in part, to proprietary rights by one or other
of the spouses.’”
[25]
(Footnotes omitted.)
[18]
In sum,
Thutha
and
Mansell
turned on the fact that at the time, there was no rule of substantive
law that required a spouse to provide maintenance for the
other after
the marriage had been dissolved. By the time
Thutha
was decided, in terms of section 7(1) of the Divorce Act a court
granting a decree of divorce could now “in accordance with
a
written agreement between the parties make an order with regard to
the division of the assets of the parties or the payment of
maintenance by the one party to the other”.
[26]
Thus the fundamental basis for the decision
in
Hodd
and
Mansell
had fallen away. It is this that the Court in
Thutha
did not take into account in deciding as it did. It is so that
Thutha
does touch on the effect of section 7(1) of the Divorce Act.
[27]
But the judgment does not seem to appreciate the
importance of the different earlier legal position to the conclusion
reached in
Mansell
.
[19]
The
Thutha
approach is formalistic and takes a narrow view of the efficacy and
value of court orders granted as a result of settlement agreements.
In certain instances, agreement – or lack of it – on
certain terms may mean the difference between an end to litigation
and a protracted trial. Negotiations with a view to settlement
may be so wide-ranging as to deal with issues that, although
not
strictly at issue in the suit, are related to it – whether
directly or indirectly – and are of importance to the
litigants
and require resolution. Short of mere formalism, it does not
seem to serve any practical purpose to suggest that
these issues
should be excised from an agreement that a court sanctions as an
order of court.
[20]
That formalistic approach may have at least
two consequences. The parties may be forced to have a separate
agreement containing
the rejected terms which is not part of the
court order.
[28]
Worse still, the settlement agreement may have
been conditional upon being made an order of court. Upon the
rejection of some
of its terms by the court, the entire agreement may
crumble. The result may well be the resumption of contested
litigation.
Does that benefit anybody? Not the parties
and not the court.
[21]
Claassens
[29]
captures the essence of a settlement and what may
inform it well:
“
Agreements
governing maintenance often cover other topics too. They are
frequently compromises over hotly contested issues
of all sorts, and
the product of hard and protracted bargaining. Everyone with
experience of negotiations in matrimonial
cases is well aware of
that. Questions of ‘guilt’ and ‘innocence’,
fundamental to the wife’s
claim for alimony while the 1953 Act
lasted and not entirely irrelevant to it since then, may have been
disputed. So may
the amount she needed, and how much of that
the husband could afford. Property had perhaps to be settled or
divided, maintenance
for children to be resolved. The alimony
eventually agreed can seldom be isolated from such surroundings.
Like the
rest of the compromise, it is the result of give and
take. Sometimes it is more than the Court is likely to have
awarded
the wife had there been none and, in return for a concession
elsewhere, she has won by contract what she could not have expected
from the litigation. On other occasions it is less, but some
contractual benefit the Court would never have decreed has
compensated her for the difference.”
[30]
Although this was
said in the context of maintenance in matrimonial disputes, it
applies with equal force to other types of suits.
[22]
Surely then, an expedited end to litigation
may not only be in the parties’ interest, it may also serve the
interests of the
administration of justice. This finds support
at common law.
Le Grange
quotes Huber with approval:
“
A
compromise once lawfully struck is very powerfully supported by the
law, since nothing is more salutary than the settlement of
lawsuits.”
[31]
[23]
Le Grange
says:
“
[T]he
policy underlying the favouring of settlement has as its underlying
foundation the benefits it provides to the orderly and
effective
administration of justice. It not only has the benefit to the
litigants of avoiding a costly and acrimonious trial,
but it also
serves to benefit the judicial administration by reducing overcrowded
court rolls, thereby decreasing the burden on
the judicial system.
By disposing of cases without the need for a trial, the case load is
reduced. This gives the Court
capacity to conserve its limited
judicial resources and allows it to function more smoothly and
efficiently.
. . .
If
one is then to proceed from the premise that the wider interests
under consideration [are those] of the administration of justice,
then the Court is required, when exercising its discretion whether to
make a settlement agreement an order of the court, to give
consideration not only to the need to make orders that are readily
enforceable, but also to assess the wider impact which its order
may
potentially have.”
[32]
[24]
Whilst ordinarily the purpose served by a
settlement order is that, in the event of non-compliance, the party
in whose favour it
operates should be in a position to enforce it
through execution or contempt proceedings, the efficacy of settlement
orders cannot
be limited to that.
[33]
A court may choose to be innovative in ensuring adherence to the
order. Depending on the nature of the order, it may
– for
example – first issue a
mandamus
for compliance. Failing compliance, it may then consider
committal for contempt.
[34]
Both the
mandamus
and order for committal may be sought by merely supplementing the
papers already before court. On the
Thutha
approach, the terms of the settlement agreement not incorporated by
the court in the settlement order can only be enforced by means
of a
full-blown fresh suit.
[35]
The disadvantages of this need no elaboration.
[25]
This in no way means that anything agreed
to by the parties should be accepted by a court and made an order of
court. The
order can only be one that is competent and
proper.
[36]
A court must thus not be mechanical in its adoption of the terms of a
settlement agreement. For an order to be competent
and proper,
it must, in the first place
“
relate
directly or indirectly to an issue or
lis
between the parties”.
[37]
Parties contracting outside of the context of litigation may not
approach a court and ask that their agreement be made an
order of
court. On this
Hodd
says:
[38]
“
[I]f
two merchants were to make an ordinary commercial agreement in
writing, and then were to join an application to Court to have
that
agreement made an order, merely on the ground that they preferred the
agreement to be in the form of a judgment or order because
in that
form it provided more expeditious or effective remedies against
possible breaches, it seems clear that the Court would
not grant the
application.”
[39]
That is so because
the agreement would be unrelated to litigation.
[26]
Secondly, “the agreement must not be
objectionable, that is, its terms must be capable, both from a legal
and a practical
point of view, of being included in a court
order”.
[40]
That means, its terms must accord with both the Constitution and the
law. Also, they must not be at odds with public
policy.
[41]
Thirdly, the agreement must
“
hold
some practical and legitimate advantage”.
[42]
[27]
The less restrictive approach adopted in
this judgment is in line with the wide power that courts have to
regulate their process.
This power is expressed in section 173
of the Constitution, which provides:
“
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.”
[28]
This is what this Court has said about the
inherent power:
“
[T]he
power conferred on the High Courts, Supreme Court of Appeal and this
Court in section 173 is not an unbounded additional instrument
to
limit or deny vested or entrenched rights. The power in section
173 vests in the judiciary the authority to uphold, to
protect and to
fulfil the judicial function of administering justice in a regular,
orderly and effective manner. Said otherwise,
it is the
authority to prevent any possible abuse of process and to allow a
Court to act effectively within its jurisdiction.”
[43]
[29]
Once a settlement agreement has been made
an order of court, it is an order like any other. It will be
interpreted like all
court orders. Here is the well-established
test on the interpretation of court orders:
“
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s
intention is to
be ascertained primarily from the language of the judgment or order
in accordance with the usual well-known rules
relating to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons
for giving it must be
read as a whole in order to ascertain its intention.”
[44]
[30]
This is equally true of court orders
following on settlement agreements, of course with a slant that is
specific to orders of this
nature:
“
The
Court order in this case records an agreement of settlement and the
basic principles of the interpretation of contracts need
therefore be
applied to ascertain the meaning of the agreement. . . .
The
intention of the parties is ascertained from the language used read
in its contextual setting and in the light of admissible
evidence.
There are three classes of admissible evidence. Evidence of
background facts is always admissible.
These facts, matters
probably present in the mind of the parties when they contracted, are
part of the context and explain the
‘genesis of the
transaction’ or its ‘factual matrix’. Its aim
is to put the Court ‘in the armchair
of the author(s)’ of
the document. Evidence of ‘surrounding circumstances’
is admissible only if a contextual
interpretation fails to clear up
an ambiguity or uncertainty. Evidence of what passed between
the parties during the negotiations
that preceded the conclusion of
the agreement is admissible only in the case where evidence of the
surrounding circumstances does
not provide ‘sufficient
certainty’.”
[45]
(Footnotes omitted.)
[31]
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
lis
between the parties; the
lis
becomes
res judicata
(literally, “a matter judged”).
[46]
It changes the terms of a settlement agreement to an enforceable
court order. The type of enforcement may be execution
or
contempt proceedings. Or it may take any other form permitted
by the nature of the order.
[47]
That form may possibly be some litigation the nature of which
will be one step removed from seeking committal for contempt;
an
example being a
mandamus
.
[48]
[32]
Litigation antecedent to enforcement
[49]
is not necessarily objectionable. That is so because ordinarily
a settlement agreement and the resultant settlement order
will have
disposed of the underlying dispute. Generally, litigation
preceding enforcement will relate to non-compliance with
the
settlement order, and not the merits of the original underlying
dispute. That means the court will have been spared the
need to
determine that dispute, which – depending on the nature of the
litigation – might have entailed many days of
contested
hearing.
[33]
Does the mere fact of coming back to court
for the determination of issues arising from alleged non-compliance
with a settlement
order duplicate the use of court resources?
No. Not all settlements where enforcement has to be preceded by
litigation
result in the envisaged antecedent litigation. In
fact, according to
Le Grange
,
the truth is that fewer matters settled in these terms end up in
litigation. In
Le Grange
the Court held:
“
From
experience, and having discussed the matter with my colleagues at the
other courts in this division, I hold the view that considering
the
large number of divorce matters which are finalised by the granting
of consent judgments, it is only in a very small percentage
of cases
where parties do return to court to complain of non compliance
with the terms of their settlement agreements.”
[50]
Even though this was
said in the context of divorce settlements, it would seem to be true
of other settlements as well. Also,
the Eastern Cape Division
of the High Court that the Court is referring to cannot possibly be
an outlier not representative of
what is happening elsewhere in the
country. What this tells us then is that even settlement orders
that envisage litigation
that precedes enforcement are still to the
benefit of courts.
[34]
The less restrictive approach that I prefer
does not mean any settlement order proposed by the parties should be
accepted.
The court must still act in a stewardly manner that
ensures that its resources are used efficiently. After all, its
“institutional
interests . . . are not subordinate to the
wishes of the parties”.
[51]
Where necessary, it must “insist that the parties effect the
necessary changes to the proposed terms as a condition
for the making
of the order”.
[52]
It may even reject the settlement outright.
[35]
A settlement order that makes provision for
payment of a judgment debt by instalments does not become
unacceptable only because
payment is to be in instalments. With
an order of this nature, proceeding straight to execution may not be
practical because
what remains owing may first have to be
quantified. That is what necessitates another approach to
court. Is that objectionable?
I think not.
[36]
In sum, what all this means is that even
with the possibility of an additional approach to court, settlements
of this nature do
comport with the efficient use of judicial
resources. First, the original underlying dispute is settled
and becomes
res judicata
.
Second, what litigation there may be after the settlement order will
relate to non-compliance with this order, and not the
original
underlying dispute. Third, matters that culminate in litigation
that precedes enforcement are fewer than those that
don’t.
[37]
Turning to the present matter, the
appellant’s attempt to undo the settlement agreement, in the
main, on the authority of
Thutha
[53]
and
Tasima
[54]
cannot succeed. The terms of the settlement order
[55]
created clear obligations with which Mr Eke had to comply. The
terms also unambiguously spelt out consequences for non compliance
with these obligations: Mr Parsons would be entitled to claim the
full outstanding amount by re-enrolling the summary judgment
application. This step was necessitated by the nature of what
the parties had agreed upon. Had the settlement simply
provided
for the payment of a lump sum, Mr Parsons would have been entitled
immediately to execute upon Mr Eke’s failure
to satisfy the
judgment debt. The underlying basis for Mr Eke’s
liability under these obligations is
res
judicata
; Mr Eke cannot seek to re-open
it.
[38]
Accordingly, I can find no basis to
disagree with the High Court’s finding that the settlement
agreement is final in its terms
and that Mr Parsons is entitled to
approach a court for enforcement of that order in accordance with the
procedure set out in it.
Rule 32 of the Uniform
Rules
[39]
This issue concerns Mr Eke’s
complaint that the re-enrolled summary judgment application
[56]
was legally incompetent; this, because rule 32 of the Uniform Rules
allows the filing of only one summary judgment application.
Mr
Eke argues that the
causa
for the re-enrolled summary judgment application was not the same as
that of the earlier summary judgment application. As
a result,
he continues, the re-enrolled application was essentially a second
summary judgment application. Without doubt,
rules governing
the court process cannot be disregarded. They serve an
undeniably important purpose. That, however,
does not mean that
courts should be detained by the rules to a point where they are
hamstrung in the performance of the core function
of dispensing
justice. Put differently, rules should not be observed for
their own sake. Where the interests of justice
so dictate,
courts may depart from a strict observance of the rules. That,
even where one of the litigants is insistent that
there be adherence
to the rules.
[57]
Not surprisingly, courts have often said “[i]t is trite that
the rules exist for the courts, and not the courts for
the
rules”.
[58]
[40]
Under
our constitutional dispensation, the object of court rules is
twofold. The first is to ensure a fair trial or hearing.
[59]
The second is to “secure the inexpensive and expeditious
completion of litigation and . . . to further the administration
of
justice”.
[60]
I have already touched on the inherent jurisdiction vested in the
superior courts in South Africa.
[61]
In terms of this power, the High Court has always been able to
regulate its own proceedings for a number of reasons,
[62]
including catering for circumstances not adequately covered by the
Uniform Rules,
[63]
and generally ensuring the efficient administration of the courts’
judicial functions.
[64]
[41]
Where the parties themselves, through a
settlement agreement reached with legal representatives present on
each side, prefer to
dispense with the strictures of a rule and
request that the court recognise this preference by means of a
consent order, for one
party suddenly to perform a
volte-face
and demand strict adherence with that self-same rule borders on the
ludicrous. Justice between the two litigants demands
that their
settlement agreement, which was made an order of Court, must be given
effect. After all, a court’s duty
is to do justice
between litigants.
[65]
In this instance, justice demands that Mr Eke be held to his bargain.
[42]
In the circumstances of this case, it
matters not that rule 32 does not provide for the enrolment of a
second summary judgment
application. Mr Eke’s contentions
in this regard cannot succeed. Substance must be put ahead of
form.
Undertaking not to
oppose
[43]
This last issue relates to paragraph 18 of
the settlement agreement where Mr Eke “agrees . . . not to
oppose the . . . application
for summary judgment”. The
complaint is that – in the face of section 34 of the
Constitution – this is
unenforceable. Section 34,
entitled “Access to courts”, provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[44]
Our courts have long recognised the
detrimental effect of parties, by way of agreement, preventing each
other from having a dispute
heard by a court of law.
[66]
The common law rightfully recognises that agreements of that nature
may offend public policy.
[67]
This was expressed thus by the Appellate Division in
Schierhout
:
“
If
the terms of an agreement are such as to deprive a party of his legal
rights generally, or to prevent him from seeking redress
at any time
in the Courts of Justice for any future injury or wrong committed
against him, there would be good ground for holding
that such an
undertaking is against the public law of the land.”
[68]
[45]
On the right of access to court, this Court
has said in
Lesapo
:
“
The
right of access to court is indeed foundational to the stability of
an orderly society. It ensures the peaceful, regulated
and
institutionalised mechanisms to resolve disputes, without resorting
to self-help. The right of access to court is a bulwark
against
vigilantism, and the chaos and anarchy which it causes.
Construed in this context of the rule of law and the principle
against self-help in particular, access to court is indeed of
cardinal importance.”
[69]
(Footnote omitted.)
[46]
In
Barkhuizen
Ngcobo J said that “[s]ection 34 . . . not only reflects the
foundational values that underlie our constitutional order,
it also
constitutes public policy”.
[70]
Is this an appropriate case in which these principles can be
invoked? Although, on their face, the terms of the settlement
agreement prevented Mr Eke from raising even
bona
fide
defences to the re-enrolled
summary judgment application, the factual reality is that he did
raise defences.
[71]
Mr Parsons, in turn, has not attempted to enforce paragraph 18
of the settlement order. It is manifest from the High
Court
judgment that Mr Eke was afforded the full opportunity to ventilate
his disgruntlement before that Court. He raised
the full gamut
of defences. The High Court considered and dismissed them all.
[47]
While it may be said that some of the
defences were not dealt with in any detail, there is no basis to say
the High Court did not
apply its mind to Mr Eke’s contentions.
What disagreement Mr Eke has amounts to no more than a complaint
against
what he perceives to be an unsatisfactory assessment of his
defences. That is a far cry from being denied access to court.
[48]
After all, the right of access to court is
about being afforded an opportunity for a legal dispute to be
determined fairly and in
accordance with the court process.
Although a party exercising this right may be hoping for what she or
he believes to be
the correct outcome, the right is not about, nor
does it guarantee, a correct outcome.
[72]
[49]
In the circumstances, the complaint that
the settlement agreement denied Mr Eke access to court has no
merit.
Conclusion
[50]
The upshot is that Mr Eke has not succeeded
on any of the three grounds on which leave to appeal was granted.
In the result,
his appeal must fail.
Costs
[51]
Nothing militates against the rule that
costs should follow the result.
Order
[52]
The following order is made:
The
appeal is dismissed with costs, including the costs of two counsel.
JAFTA J (Nkabinde J
and Theron AJ concurring):
Introduction
[53]
I have read the judgment prepared by my
colleague Madlanga J (main judgment). I agree with most of
what is said in it
and the order it proposes. In particular I
agree with the conclusion that a “settlement order”
brings about finality
to litigation and gives rise to
res
judicata
. I also agree that such
an order is enforceable just like any order issued by a court and
that the route followed to enforce
it depends on the nature of the
order granted. But my approach differs from the main judgment
in relation to the applicability
of rule 32 of the Uniform Rules to
the present proceedings as well as on whether the provision that Mr
Eke was prohibited from
opposing the application was enforceable
against him.
[54]
But before I set out my reasons for a
different approach, it is necessary to outline the background against
which this case must
be decided. The crisp question raised here
is whether the application that served before Nhlangulela ADJP
amounted to a fresh
summary judgment or whether it was a re-enrolment
of the summary judgment proceedings that were postponed by Schoeman J
in terms
of the order granted on 16 July 2013. Bearing this
issue in mind helps in placing the contentions advanced by Mr Eke in
proper
context.
Context
[55]
Forming part of that context is the nature
and effect of the order of 16 July 2013 and the terms of
that order.
[73]
To appreciate the nature and effect of that order, we must trace the
origins of the power to make it. In this regard,
the judgment
of Nhlangulela ADJP is instructive.
[74]
It traces the judicial power to convert settlement agreements into a
court order to the common law inherent power of superior
courts.
Presently that power is located in section 173 of the
Constitution.
[75]
[56]
As observed by this Court in
South
African Broadcasting Corp
,
[76]
the exercise of that inherent power may be interfered with on appeal
on narrow grounds only. The Court described the power
conferred
by section 173 as a “discretion in the strict sense” and
held that it may interfere with the exercise of
that power if the
court that exercised it did not act judicially, based its decision on
wrong principles of law or misdirected
itself on material facts.
[77]
[57]
It is the inherent power sitting in section
173 which enables superior courts to convert settlement agreements of
litigants into
court orders. As stated in the main judgment,
such orders have a status equal to every court order and have legal
force equivalent
to that of other orders of court. This means
that the High Court was wrong to hold in cases like
Thutha
[78]
and
Tasima
[79]
that there is a class of court orders, based on settlement
agreements, which are not enforceable as court orders and are
regarded
as nothing more than a recordal of the parties’
agreement.
[58]
Therefore the order issued on 16 July 2013
must be examined in the context that it did not amount to a recording
of the parties’
settlement agreement. It was a court
order clothed with legal force which did not depend on the parties’
contractual
obligations. Nor could it be taken as merely
reinforcing those obligations.
[59]
Since finality to litigation is the main
purpose of a court order, court orders must not be expressed in
ambiguous and contradictory
terms. For a court order to be
complied with, parties on whom the order applies must know what it
requires them to do.
Clarity in framing a court order also
helps the process of enforcing it. Execution is one of the
methods of enforcing court
orders and it applies to orders for the
payment of money or delivery of a particular object. If the
court order is not clear,
execution cannot be effected. The
order granted on 16 July 2013 is a classic example of an order that
has contradictory terms.
Effect of the order of
16 July 2013
[60]
It will be recalled that what was placed
before the High Court on 16 July 2013 was a summary judgment
application. Mr Parsons
sought an order directing Mr Eke to pay
a fixed sum of money which was a debt owing in terms of the parties’
sale agreement.
Mr Parsons launched the summary judgment
application because in his view, Mr Eke did not have a valid defence
on the basis of which
he could oppose the claim. Indeed the
parties’ settlement agreement that was made an order of court
confirmed this.
[61]
In the agreement, Mr Eke consented to the
claim being increased to R10.3 million which he promised to pay
in instalments.
The first instalment of R500 000 was to be
paid to Mr Parsons’ attorneys within 10 days from 16 July
2013. He
further promised to pay a sum of R500 000 within
30 days and a further amount of R1.5 million within 60 days.
Mr
Eke bound himself to pay the balance in monthly instalments of
R500 000, after the expiry of 60 days from the date of the
order.
[62]
As was anticipated by the parties, he
failed to make the necessary payments. This being an order for
payment of money, ordinarily
it should have been enforced by means of
execution which is a step taken after the finalisation of
litigation. This could
not happen because the order itself
spelt out that Mr Parsons had to re-enrol the summary judgment
application in the event of
a failure to pay, as if there was no
order directing payment. It is not apparent from the papers why
the High Court granted
such an unusual order. The peculiarity
of this order was exacerbated by the term that precluded Mr Eke from
opposing the
re-enrolled summary judgment.
[63]
An objective reading of the order
illustrates that the High Court had accepted that the dispute between
the parties had been settled.
If Mr Eke had complied with the
order and made all the payments timeously, there could have been no
case to consider later.
But, if the order did not require Mr
Parsons to re-enrol the summary judgment in the event of a failure to
pay, he could have enforced
it by means of execution. It is
therefore not clear to me what the purpose of postponing the summary
judgment was and requiring
Mr Parsons to re-enrol it should Mr Eke
fail to pay. This is more so because the order represented the
intention of the High
Court and not that of the parties, hence when
interpreting a court order, the purpose is to ascertain the intention
of the Court.
[80]
A court may not grant an order with an obscure purpose.
[64]
The rule of law requires not only that a
court order be couched in clear terms but also that its purpose be
readily ascertainable
from the language of the order. This is
because disobedience of a court order constitutes a violation of the
Constitution.
[81]
Furthermore, in appropriate circumstances non-compliance may amount
to a criminal offence with serious consequences like
incarceration.
[82]
In
Pheko
Nkabinde J remarked:
“
The
term civil contempt is a form of contempt outside of the court, and
is used to refer to contempt by disobeying a court order.
Civil
contempt is a crime, and if all of the elements of criminal contempt
are satisfied, civil contempt can be prosecuted in criminal
proceedings, which characteristically lead to committal. Committal
for civil contempt can, however, also be ordered in civil
proceedings
for punitive or coercive reasons. Civil contempt proceedings
are typically brought by a disgruntled litigant
aiming to compel
another litigant to comply with the previous order granted in its
favour. However, under the discretion
of the presiding officer,
when contempt occurs a court may initiate contempt proceedings
mero
motu
.”
[83]
(Footnotes omitted.)
[65]
The order of 16 July 2013 lacked the
hallmarks of a court order. It did not bring the case to
finality. Nor was it capable
of enforcement. Instead, it
required litigation to continue in circumstances where no discernible
purpose was to be attained
by the continuation of the specific
litigation. The order itself demonstrated beyond doubt that Mr
Eke had no defence to
the claim. Over and above that the order
prohibited him from opposing the re-enrolled application. What
was done here
did not constitute an efficient use of scarce judicial
resources. A case that could have been finalised by one judge
ended
up being decided by two judges. Moreover, every case that
is set down for hearing in our courts blocks out other cases which
could have been set down for hearing in its place.
[66]
In the circumstances the order of 16 July
2013 did not accord with an efficient case flow management. It
fell within the High
Court’s inherent power to determine the
terms of the order it wished to grant and to ensure that it was
couched in clear
language and was enforceable. There appears to
be no reason why the order did not bring this litigation to
finality.
Had Mr Eke made full payment of the judgment debt, it
is not clear what could have happened to the postponed summary
judgment application.
But despite these shortcomings, the High
Court issued a court order on 16 July 2013 which was binding on the
parties. This
answers the first question on which leave to
appeal was granted.
Rule 32
[67]
The question whether under rule 32 it was
permissible for Mr Parsons to bring a second summary judgment
application did not arise
because Mr Parsons did not institute a
second application. Therefore, the contention by Mr Eke that
rule 32 does not permit
a second summary judgment is misguided.
What occurred here is that Mr Parsons acted in terms of the
order of 16 July
2013 and re-enrolled the summary judgment when Mr
Eke defaulted. What was enrolled before Nhlangulela ADJP was
not a second
summary judgment application. Accordingly rule 32
did not apply to a course of action undertaken in terms of the court
order
of 16 July 2013.
Enforceability of
settlement agreement
[68]
Mr Eke further argued that the settlement
agreement was not enforceable because the clause that prohibited him
from opposing the
summary judgment was inconsistent with section 34
of the Constitution. This argument too was misconceived.
When Mr
Parsons re-enrolled the summary judgment he did not act in
terms of the parties’ settlement agreement. Instead he
acted
in terms of the court order. The parties’ agreement
had been converted by the High Court into its own order when the
order was issued. The parties’ settlement was novated by
operation of law.
[84]
[69]
The wide inherent power vested in superior
courts includes the power to prohibit litigants from having access to
courts under certain
circumstances. For example, where the
litigant institutes vexatious proceedings or abuses the court
process. It can
never be contended that an order that forbids
an abusive litigant from having access to court is against public
policy. In
Barkhuizen
[85]
this Court was concerned with a constitutional challenge on a
contractual clause that limited one of the parties’ right of
access to courts.
[70]
Here it is apparent that Mr Eke
misconstrued the basis on which Mr Parsons re enrolled the
summary judgment application.
Mr Parsons acted in terms of the
court order and not the underlying settlement agreement which had
been novated by the order of
16 July 2013.
[71]
It must be emphasised here that the High
Court was concerned with summary judgment proceedings which are an
extraordinary procedure,
specifically designed for an expeditious
finalisation of litigation. A summary judgment may be granted
only where the court
is satisfied that the defendant has no defence
to the claim. Even so, the granting of the judgment is
discretionary.
For the defendant to resist judgment, she may
give security or file an affidavit, disclosing her defence and
material facts relied
upon.
[86]
[72]
Summary judgment is limited to claims of
the nature specified in rule 32(1).
[87]
Notably, orders issued in respect of each of those claims are
enforceable by means of execution, carried out by the sheriff.
In these circumstances, it is difficult to see any value in the
approach followed here by the High Court. All that the
Court needed to do was to grant summary judgment if it was satisfied
that the defendant had no defence or refuse it if he had a
defence.
If the Court was minded to postpone the case, then it should not have
granted an order that directed Mr Eke to pay
the judgment debt.
What was done here does not accord with rule 32.
Essential features of an
order
[73]
A court order must bring finality to the
dispute or part of it, to which it applies. The order must be
framed in unambiguous
terms and must be capable of being enforced, in
the event of non-compliance. In cases where, as here, the order
deals with
the parties’ property rights which are subject to
protections guaranteed by section 25 of the Constitution, a
court
granting the order is duty bound to issue an appropriate and
effective order.
[88]
The order of 16 July 2013 was not effective because it was not
enforceable. In the event of non-compliance Mr Parsons
was
required to re enrol the application for another order. It
was also not appropriate to postpone the summary judgment
application
in circumstances where Mr Eke had conceded liability to pay and had
promised to pay the debt in instalments.
It was apparent from
the circumstances of the case that Mr Eke had no defence against the
claim. Moreover, the order itself
forbade him from opposing the
re-enrolled application
[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
[89]
Molahlehi AJ said:
“
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 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.”
[90]
(Footnotes omitted.)
[75]
Therefore, when a court considers granting
an order based on the parties’ settlement agreement, it must
ensure that the order
it issues has all the necessary features of a
court order. If the order issued does not have the key elements
of an order,
the court would have failed to exercise its discretion
properly. But the improper exercise of the discretion does not
free
parties on whom the order applies from complying with it, to the
extent that they may ascertain what it requires them to do.
[76]
It is for these reasons that I support the
order dismissing the appeal with costs, including the costs of two
counsel.
For the Appellant:
For the Respondent:
P Scott SC instructed by
Liston & Brewis Attorneys.
J Huisamen SC
instructed
by Kaplan Blumberg Attorneys.
[1]
Charles Henry Parsons v Kevin John Eke and
Others
Case no 1324/2013 (High Court
judgment).
[2]
34 of 2005.
[3]
Hutchison and Pretorius (eds)
The
Law of Contract in South Africa
(OUP,
Cape Town 2010) at 447.
[4]
High Court judgment above n 1 at para 10(c).
[5]
15 of 1962.
[6]
High Court judgment above n 1 at para 10(a)-(e).
[7]
Mr Eke approached this Court after his
applications for leave to appeal brought before the High Court and
Supreme Court of Appeal
were unsuccessful.
[8]
Van Schalkwyk v Van Schalkwyk
1947 (4) SA 86
(O) at 95.
[9]
Appellant’s Written Submissions at para 14.
[10]
Thutha v Thutha
2008 (3) SA 494 (TkH).
[11]
Tasima (Pty) Ltd v Department of Transport and
Others
[2013] ZAGPPHC 69;
2013 (4) SA
134
(GNP) (
Tasima
).
[12]
Thutha
above n
10 at para 15.
[13]
Id at para 53(5).
[14]
Id at para 53(5)-(6).
[15]
Id at para 54.
[16]
Claassens v Claassens
1981 (1) SA 360
(N) at 363E-F.
[17]
Mansell v Mansell
1953 (3) SA 716 (N).
[18]
Id at 721B-F.
[19]
Hodd v Hodd; D’Aubrey v D’ Aubrey
1942 NPD 198
(
Hodd
).
[20]
Mansell
above n
17 at 721B-C.
[21]
Id at 721H.
[22]
Id at 721C-D.
[23]
Ex Parte Le Grange and Another In re: Le
Grange v Le Grange
[2013] ECGHC 75 (
Le
Grange
) at para 22. In the South
African Law Reports, this is reported as
PL
v YL
2013 (6) SA 28 (ECG).
[24]
Id.
[25]
Id at paras 23-5. For completeness, the
citation of
Schultz
,
which is one of the two cases within the quote, is
Schultz
v Schultz
1928 OPD 155.
The
second case,
Hodd
,
appears above n 19.
[26]
70 of 1979.
[27]
Above n 10 at para 38.
[28]
The effect would be the same even if the
agreement remains exactly the same as that presented to court, with
some of its terms
not having been accepted.
[29]
Above n 16.
[30]
Id at 371A-C.
[31]
Le Grange
above
n 23 at para 34 quoting the English translation of Huber by Gane
The
Jurisprudence of My Time
5 ed
(Butterworth & Co (Africa) Ltd, Durban 1939) vol 1 at 481, para
3.15.15. In Hutchison and Pretorius above n 4 at
447 the
authors say a
“
compromise [is] the
settlement of a disputed claim by agreement between the parties”.
[32]
Le Grange
id at
paras 36 and 38.
[33]
Id at para 39.
[34]
Id at paras 39-40.
[35]
See id.
[36]
Id at para 15.
[37]
Id.
[38]
Above n 19 at 204.
[39]
Id.
[40]
Le Grange
above
n 23 at para 15.
[41]
Id. On what we
measure public policy against, see
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC)
(
Barkhuizen
)
at paras 28-9;
Carmichele
v Minister of Safety and Security
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 56;
Du
Plessis and Others v De Klerk and Another
[1996]
ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 110;
and
Brisley
v Drotsky
[2002]
ZASCA 35
;
2002 (4) SA 1
(SCA) at para 91.
[42]
Le Grange
above
n 23 at para 15.
[43]
South African Broadcasting Corp Ltd v National
Director of Public Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) (
South
African Broadcasting Corp
) at para 90.
[44]
Finishing Touch 163 (Pty) Ltd v BHP Billiton
Energy Coal South Africa Ltd and Others
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA) (
Finishing
Touch 163
) at para 13. See also
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298 (A).
[45]
Engelbrecht and Another v Senwes Ltd
[2006]
ZASCA 138
;
2007 (3) SA 29
(SCA) at paras 6-7.
[46]
The principle is that generally parties may not
again litigate on the same matter once it has been determined on the
merits.
[47]
Above at [23].
[48]
Le Grange
above
n 23 at para 21.
[49]
That is, enforcement either in the form of
execution or proceedings for committal for contempt of court.
[50]
Le Grange
above
n 23 at para 47.
[51]
Id.
[52]
Id.
[53]
Above n 10.
[54]
Above n 11. The Court in
Tasima
at para 69 said – in so many words – that it was placing
a lot of reliance on
Thutha
.
That means, to the extent that the reasoning in
Tasima
is similar to that in
Thutha
,
it too must be dismissed on the same basis on which
Thutha
has been rejected.
[55]
Set out at [3].
[56]
This application was re-enrolled in terms of para
16 of the settlement order.
[57]
See, for example,
Leibowitz
and Others v Schwartz and Others
1974
(2) SA 661
(T) and
Mostert NO v Sable
Group Holdings (Pty) Ltd In re: Mostert
NO v Sable Group Holdings (Pty) Ltd and
Others
[2013] ZAGPJHC 143 (
Mostert
).
[58]
Arendsnes Sweefspoor CC v Botha
[2013] ZASCA 86
;
2013 (5) SA 399
(SCA) (
Arendsnes
)
at para 18, citing
Republikeinse
Publikasies (Edms.) Bpk. v Afrikaanse Pers Publikasies (Edms.) Bpk.
1972 (1) SA 773
(A) at 783A-B;
Mynhardt v Mynhardt
1986 (1) SA 456
(T); and
Ncoweni v
Bezuidenhout
1927 CPD 130
(
Ncoweni
).
[59]
Arendsnes
id at
para 19.
[60]
Id, relying on
Kgobane
and Another v Minister of Justice and Another
1969 (3) SA 365
(A), which dealt with this concept in the context of
the number of condonation applications that were being received by
the Appellate
Division at the time, which Rumpff JA decried at 369H
as a “tendency [which] must be reduced in order to ensure that
the
administration of justice is maintained on a proper level”.
[61]
At [28].
[62]
See generally Taitz
The
Inherent Jurisdiction of the Supreme Court
(Juta and Co Ltd, Cape Town 1985) at 14 8.
[63]
See, for example,
De
Wet and Others v Western Bank Ltd
1977
(2) SA 103
(W), which identified the ability of courts in the then
Natal Province to order rescission of judgments even though no
relevant
rule allowing for such an order existed at the time.
[64]
Taitz above n 62 at 14. This principle
appears to date to
Ncoweni
above n 55, where Gardiner JP remarked at 130 that “[t]he
Rules of procedure of this Court are devised for the purpose
of
administering justice and not of hampering it, and where the Rules
are deficient I shall go so far as I can in granting orders
which
would help to further the administration of justice”. It
was referred to recently in, amongst others,
Arendsnes
above n 55 at para 19;
ABSA
Bank Limited v Lekuku
[2014] ZAGPJHC
274 at para 22; and
Mostert
above
n 57 at para 13.
[65]
Compare
Federated
Employers Fire & General Insurance Co. Ltd. and Another v
McKenzie
1969 (3) SA 360 (A).
[66]
Schierhout v Minister of Justice
1925 AD 417
(
Schierhout
)
at 424 and
Nino Bonino v De Lange
1906
TS 120
at 123-4.
[67]
Barkhuizen
above
n 41 at para 34.
[68]
Schierhout
above
n 66 at 424.
[69]
Chief Lesapo v North West Agricultural Bank
and
Another
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at
para 22.
[70]
Above n 41 at para 33.
[71]
In the context of the settlement order, examples
of
bona fide
defences that could have been available are that Mr Eke had not in
fact breached the terms of the settlement order; or that the
amount
owing stated on affidavit by Mr Parsons was incorrect.
[72]
See
Lane and Fey NNO
v Dabelstein and Others
[2001] ZACC
14
;
2001 (2) SA 1187
(CC);
2001 (4) BCLR 312
(CC) at para 4 where
this Court held:
“
Even
if the [Supreme Court of Appeal] erred in its assessment of the
facts, that would not constitute the denial of the [‘right
to
a fair trial and to fair justice’]. The Constitution
does not and could hardly ensure that litigants are protected
against wrong decisions. On the assumption that section 34 of
the Constitution does indeed embrace that right, it would
be the
fairness and not the correctness of the court proceedings to which
litigants would be entitled.”
It is the applicants
themselves who had characterised the right as a right to “a
fair trial and to fair justice”.
See also
Van
der Walt v Metcash Trading Limited
[2002] ZACC 4
;
2002 (4) SA 317
(CC);
2002 (5) BCLR 454
(CC) at para 14
.
[73]
The full order is reproduced in para 3 of the
main judgment.
[74]
High Court judgment above n 1 at para 6, which
refers to
Van Schalkwyk
above n 8.
[75]
Section 173 provides:
“
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into
account the interest of justice.”
[76]
South African Broadcasting Corp
above n 43 at para 39.
[77]
Id at para 40-1.
[78]
Thutha
above n
10 at para 31.
[79]
Tasima
above n
11 at para 54.
[80]
Finishing Touch 163
above
n 44 at para 13.
[81]
Section 165(5) provides:
“
An
order or decision issued by a court binds all persons to whom and
organs of state to which it applies.”
[82]
Pheko and Others v Ekurhuleni Metropolitan
Municipality
(No 2)
[2015] ZACC 10
;
2015 (6) BCLR 711
(CC) (
Pheko
)
at para 28. See also
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA
52
;
2006 (4) SA 326
(SCA) at para 6.
[83]
Pheko
id at para
30.
[84]
Swadif (Pty) Ltd v Dyke
NO
1978
(1) SA 928
(A);
[1978] 2 All SA 121
(A) and
Mv
Tirupati
:
Mv
Ivory Tirupati and Another v Badan Urusan Logistik
(
aka Bulog
)
[2002] ZASCA 155; 2003 (3) SA 104 (SCA).
[85]
Barkhuizen
above
n 41.
[86]
Rule 32 of the Uniform Rules.
[87]
Rule 32(1) provides:
“
Where
the defendant has delivered notice of intention to defend, the
plaintiff may apply to court for summary judgment on each
of such
claims in the summons as is only—
(a)
on a liquid document;
(b)
for a liquidated amount in money;
(c)
for delivery of specified movable property; or
(d)
for ejectment,
together
with any claim for interest and costs.”
[88]
Fose v Minister of Safety and Security
[1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7)
BCLR 851.
[89]
Lujabe v Maruatona
[2013] ZAGPJHC 66.
[90]
Id at para 17.