THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 896/2021
In the matter between:
RUTH EUNICE SECHOARO APPLICANT
and
PATIENCE KGWADI RESPONDENT
Neutral citation: Ruth Eunice Sechoaro v Patience Kgwadi (896/2021) [2023]
ZASCA 46 (4 April 2023)
Coram: DAMBUZA AP, SCHIPPERS and NICHOLLS JJA and KATHREE-
SETILOANE and SIWENDU AJJA
Heard: 1 March 2023
Delivered: 4 April 2023
Summary: Application for leave to appeal – whether respondent’s unilateral mistake
in signing agreement is reasonable – under misapprehension as to its contents -
agreement wholly inconsistent with prior agreement with ex -husband – mistake
reasonable and excusable - proposed appeal enjoying no prospects of success.
2
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ORDER
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Application for leave to appeal from: Gauteng Division of the High Court, Pretoria
(Vorster AJ sitting as court of first instance):
1 Paragraph 2 of the order of the high court is set aside and replaced wit h the
following order:
‘The first respondent , Rorich Wolmarans Luderitz , is directed to pay the
applicant 50% of the proceeds of the sale of the property held in its trust
account within 30 days of finalisation of the deceased’s estate.’
2 Save as aforesaid, the application for leave to appeal is dismissed with costs.
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JUDGMENT
___________________________________________________________________
Kathree-Setiloane AJA ( Dambuza AP, Schippers and Nicholls JJA and
Siwendu AJA concurring):
[1] This is an application for leave to appeal the decision of the Gauteng Division of
the High Court, Pretoria (the high court), in terms of which it declared that the
agreement signed by the respondent, Ms Patience Kgwadi, and her ex -husband, Mr
Israel Kgwadi, on 18 July 2012 (the 2012 agreement) is unenforceable. The
application wa s referred for oral argument in terms of s 17(2) (d) of the Superior
Courts Act.1
[2] The respondent married the deceased on 14 May 1987 in community of
property. Their marriage was dissolved on 25 October 1991. They concluded a
settlement agreement which was made an order of court on the same day. The court
order afforded Mr Kgwadi a period of 14 days to apply to court for variation of the
settlement agreement.
1 10 of 2013.
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[3] At the time of their divorce, the respondent and the deceased were joint owners
of an imm ovable property in Boksburg (the property) . Since the settlement
agreement did not deal with the division of the property, they verbally agreed that
each of them would be entitled to half of the value of the property. It was specifically
agreed that Mr Kgwadi would pay the respondent half the value of the property. He,
however, never did.
[4] On 25 September 201 0, Mr Kgwadi married the applicant , Ms Ruth Eunice
Sechoaro. Thereafter, on 2 October 2010, he made a will in which he, inter alia ,
bequeathed 50% of his estate to his fiancée, the applicant at the time, provided she
survived him by a period of seven days, and they were still married at the date of his
death. Mr Kgwadi appointed First National Bank Trust Services (Pty) Ltd (FNB) as
the executor of his estate.
[5] On 28 March 2012, the respondent was seriously injured in a motor vehicle
accident and was admitted to Charlotte Maxeke Hospital in Johannesburg (the
hospital). She remained in hospital until September 2012. On 18 July 2012, a
messenger from the law firm Denoon Sampson Ndlovu Inc, whom she assumed to
be representing Mr Kgwadi , called at the hospital to get the respondent to sign a
document, entitled ‘variation agreement’, in terms of which she would award the joint
property solely to Mr Kgwadi, which she did. The applicable provisions of the
agreement are these:
‘2. The parties have now agreed to amend the settlement agreement in so far as it relates to
the Property.
3. The parties hereby agree that:
3.1 The Property shall be awarded solely to [Mr Kgwadi].
…
3.5 They shall cooperate with each other and shall sign all and any necessary
documents as may be required by the conveyancers appointed by [Mr Kgwadi] to attend to
the transfer of the Property into his name, as and when called upon to do so.’
[6] Mr Kgwadi passed away on 29 September 2014. The Master of the High Court,
Johannesburg (the Master) appointed Ms Pr ishania Naidoo, FNB’s nominee , as the
executor of the estate. On 31 May 2017, the respondent as a seller, and Ms Naidoo,
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on behalf of FNB, signed an offer to purchase the property by a third party in the sum
of R550 000. On 22 January 2018 , Rorich Wolmarans Luderitz Inc, the attorneys
attending to the transfer of the property, informed the respondent by email that she
was not entitle d to 5 0% of the proceeds of the sale of the property, because the
variation agreement stated that the property was awarded solely to the deceased.
[7] On 19 February 2018, the respondent launched an application in the high court
challenging the enforceab ility of the 2012 agreement on two grounds. The first was
that it was entered into more than 20 years after the settlement agreement had been
made an order of court and not within the 14-day period stipulated in the order , and
that Mr Kwgadi did not apply to court for an order varying the settlement agreement .
The second ground was that she signed the agreement without any intention to be
bound by its terms. She alleged that she had been injured in a serious motor vehicle
accident and was admitted to hospital, where she spent six months . She was
diagnosed with an acetabulum hip fracture dislocation and had to undergo a skin
traction and surgery to her hip . She was ‘constantly in extreme pain ’ and ‘was
normally sedated to minimise the pain ’ she experienced. She signed the agreement
without reading it, as she did not have the strength to do so in the state that she was
in. She assumed that the agreement dealt with what she and the deceased had
agreed upon, ie, that he would pay her 50% of the value of property.
[8] The respondent furthermore alleged that the attorneys’ messenger did not
inform her of the nature and contents of the agreement, save to tell her that the
agreement dealt with the property which she and the deceased jointly owned. She
accepted that the messenger was not bound to inform her of the terms of the
agreement before she signed it. She, however, contended that given her condition at
the time, he should at least have explained them to her. The reason being that there
were terms she ‘could not have reasonably expected in the agreement, specifically
the term that [ she] was giving [her] 50% share in the property to the [Mr Kgwadi]
without any payment of the value of [her] half share in the property’. In the
circumstances, she contended that her m istake in signing the agreement without
reading it was reasonable and that she should not be bound by it.
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[9] The applicant disputed these allegations in her answering affidavit on the basis
that the respondent suffered a hip fracture dislocation , which did not affect her
mental functioning. She contended that the respondent was of ‘sound and sober
senses’ when she signed the variation agreement and was neither under duress nor
unconscious.
[10] The high court found that the ‘factual dispute whether the [respondent] knew
and intended to forfeit the undivided share in the immovable property by the
signature of the amendment agreement… is not a real dispute’, and ‘can be resolved
without oral evidence, looking purely at the evidence as a whole’. The high court held
that ‘[t]aking into account the surrounding common cause facts ’, the inference that
the respondent signed the agreement with the intention to be bound did not pass the
probability test as:
(a) The document was presented for signature to the respon dent 20 years after their
divorce;
(b) There was no evidence that the nature and importance of the document, which
was a binding agreement in terms of which she forfeited her 5 0% undivided share in
the property, was explained to the respondent or ever discussed with her;
(c) Had the nature and importance of the document been explained to the
respondent, then it would have been a simple matter for the applicant to have
adduced that evidence;
(d) Had she been told of the import and effect of the document , the respondent
would not have signed it;
(e) On the crucial aspect of whether she knew what she was signing, there is no
evidence apart from the respondent’s evidence that she was unaware of it; and
(f) It was improbable that the respondent would have disposed of her 50% undivided
share in the property without any apparent reason for doing so.
[11] The high court consequently found that the application must succeed and made
the following order:
‘1. That the Agreement signed by the [respondent] and her deceas ed husband [Mr Kgwadi]
on the 18th of July 2012 is not enforceable against the [respondent] and also not enforceable
against the deceased estate of [Mr Kgwadi].
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2. That the First Respondent Rorich Wolmarans Luderitz Inc be compelled to pay to the
[respondent] 50% [of the proceeds of the sale of the property held in its trust account
within 30 days of finalisation of the deceased’s estate].2
3. That the [ Master] be interdicted from approving and confirming the amendment of the
Liquidation and Distribution Account under Estate Number 034807/2014 to the effect that it
should be in accordance with the last will and testament of [Mr Kgwadi].
4. That, alternatively in the event that the [Master] has already amended the Liquidation and
Distribution Account to effe ct the contents of the last Will and Testament, an Order
interdicting [Rorich Wolmarans Luderitz Inc] from finali sing the Estate of [Mr Kgwadi] in
accordance with the contents of the last Will and Testament of [Mr Kgwadi];
5. The [applicant] is ordered to pay the [respondent’s] costs of suit.’
[12] The applicant, who is the deceased’s surviving spouse, applied to the high
court for leave to appeal , which was dismissed. She subsequently applied to this
Court for leave to appeal.
[13] It is essential to de al with nature of the 2012 agreement. This is because the
parties adopt the erroneous view that it is a variation agreement , which varied the
settlement agreement that was made an order of court on the date of th e divorce of
the respondent and Mr Kgwadi . Despite its title, the 2012 agreement is not a
variation agreement as it does not vary the settlement agreement. The settlement
agreement did not deal with the division of the joint property of the respondent and
Mr Kgwadi. As is apparent from its terms, the 2012 agreement is simply one in terms
of which the respondent purportedly disposed of her half share in the property to Mr
Kgwadi, for no value.
[14] The applicant’s primary ground in support of its application for leave to appeal
against the judgment and order of the high court, is that it failed to have regard to the
dispute of fact . The applicant contended, in this regard, that when the respondent
signed the 2012 agreement there was nothing wrong with her psychologically, hence
she was aware of, and intended to be bound by its terms. As correctly held by the
high court, the dispute concerning whether the applicant knew and intended to forfeit
the undivided share in the movable property by signing the 2012 agreement, is not a
2 Paragraph 2 of the high court’s order is incomplete.
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real dispute of fact as it could be resolved on the common cause facts on the papers.
It is significant, in this regard, that t he applicant did not challenge the respondent’s
version that she signed the 2012 agreement because it was reasonable to expect
that it would not contain a term that would require her to give up her 50% share in
the property to Mr Kgwadi for no value.
[15] The applicant merely contended, in her answering affidavit, that the injuries
sustained by the respondent were not psychologically related and that she d id not
sign the 2012 agreement under duress. The applicant’s contentions are unsurprising
as she has no personal knowledge of the circumstances under which th e agreement
was signed by the respondent. On th is crucial aspect, there is no other e vidence
apart from the respondent’s that she signed the 2012 agreement because she could
not have reasonably expected it to contain a term whereby, she would forfeit her
50% share in the joint property. Besides, this is entirely consistent with her allegation
of a verbal agreement between her and the deceased that each of them would be
entitled to half of the value of the property, which remains unchallenged.
[16] The only question remaining is whether, on the objective facts, by signing the
2012 agreement the respondent had bound herself to parting with her 50% share in
the property to Mr Kgwadi, for no value. Put differently, was her unilateral mistake
(error) in signing the agreement without reading it reasonable (justus)? In George v
Fairmead (Pty) Ltd,3 this Court held that:
‘When can an error be said to be justus for the purpose of entitling a man to repudiate his
apparent assent to a contractual term? As I read the decisions, our Courts, in applying the
test, have taken into account the fact that there is another party involved and have
considered his position. They have, in effect, said: Has the first party – the one who is trying
to resile – been to blame in the sense that by his conduct he has le d the other party, as a
reasonable man, to believe that he was bin ding himself? … If his mistake is due to a
misrepresentation, whether innocent or fraudulent, by the other party, then, of course, it is
the second party who is to blame and the first party is not bound.’4
3 George v Fairmead (Pty) Ltd [1958] 3 All SA 1 (A); 1958 (2) SA 465 (A) at 471B -C; See also Brink v
Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA); [2005] 2 All SA 343 (SCA).
4 Ibid.
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[17] In National and Overseas Distributors Corpor ation (Pty) Ltd v Potato Board ,
Schreiner JA stated the position thus:
‘Our law allows a party to set up his own mistake in certain circumstances in order to escape
liability under a contract into which he has entered. But where the other party has not mad e
any misrepresentation and has not appreciated at the time of acceptance that his offer was
being accepted under a misapprehension, the scope for a defence of unilateral mistake is
very narrow, if it exists at all. At least the mistake ( error) would have to be reasonable
(justus), and it would have to be pleaded.’5
[18] The respondent’s unchallenged evidence is that the settlement agreement
which was concluded in 1991 and made an order of court , did not deal with the
division of the property, because bot h she and Mr Kgwadi were under the
impression, consequent upon their marital regime, that each of them would be
entitled to half of the value of the property. They agreed that Mr Kgwadi would pay
the respondent the value of her share in the property. He, however, never did so.
[19] More than two decades later, knowing full well that the respondent was in
hospital recovering from serious injuries, Mr Kgwadi caused his attorney to present
the 2012 agreement, containing entirely different terms to those they had agreed
upon over 20 years earlier, to the respondent for her signature. It is clear on the
objective facts that Mr Kgwadi did so deliberately , and with intent to deceive the
respondent into forfeiting her half share in the joint property. This explains why the
applicant chose to adduce no evidence on how it came about that the respondent
and Mr Kgwadi decided to amend their prior agreement. These facts were peculiarly
within the knowledge of Mr Kgwadi and the applicant , who married him shortly
thereafter, and stood to inherit 5 0% of his estate on his death. Bearing in mind that
the respondent already had an agreement with Mr Kgwadi concerning her share of
the property, she had no reason to expect that she would be asked to sign an
agreement containing terms to the contrary.
5 National and Overseas Corporation (Pty) Ltd v Potato Board [1958] 3 All SA 13 (A); 1958 (2) SA 473
(A) at 479G-H.
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[20] Mr Kgwadi knew, or must have known, contrary to what is stated in the
agreement presented to the respondent for signatur e, that she had not consented to
amend their prior agreement that he would pay her 50 % of the value of the property;
that he was not entitled to sole ownership of the property; and that there was no
basis for depriving the respondent of her share of the property . Consequently, when
he received the agreement after the respondent had signed it, Mr Kgwadi knew of
her mistake as he was the cause of it. 6 In these circumstances, it cannot be
suggested that by signing the agreement, the respondent misled Mr Kgwadi, as a
reasonable person, to believe that she was binding herself to its terms and that he
was solely entitled to the property, for no value.7
[21] It is important to keep in mind that the respondent acted consistently with her
belief that the agreement did not contain a term to the effect that she gave up her
50% share in the property to Mr Kgwadi for no value. In May 2017, in her capacity as
a seller, she signed an offer by a third party to purchase the property for R550 000.
On enquiring with the transferring attorneys about payment of her 50% share of the
proceeds of the sale, they informed her that she wa s not entitled to any proceeds as
the ‘variation agreement’ stated that Mr Kgwadi was the sole owner of the property.
Shortly thereafter, she instituted the application in the high court claiming payment of
50% of the proceeds of the sale of the property.
[22] In the circumstances , I consider the respondent’s unilateral mistake to be
reasonable and excusable. Accordingly, the proposed appeal has no reasonable
prospects of success. The application for leave to appeal must , therefore, be
dismissed with costs . Paragraph 2 of the high court’s order is incomplete and must
be corrected.
[23] The following order is made:
1 Paragraph 2 of the order of the high court is set aside and replaced with the
following order:
6 GB Bradfield Christie’s Law of Contract in South Africa 8 ed (2022) at 385.
7 George v Fairmead fn 1 at 471B-C.
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‘The first respondent , Rorich Wolmarans Luderit z, is directed to pay the
applicant 50% of the proceeds of the sale of the property held in its trust
account within 30 days of finalisation of the deceased’s estate.’
2 Save as aforesaid, the application for leave to appeal is dismissed with costs.
________________________
F KATHREE-SETILOANE
ACTING JUDGE OF APPEAL
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Appearances
For the applicant: D Z Kela
Instructed by: Ndumiso Voyi Inc, Midrand
Webber Attorneys, Bloemfontein
For the respondent: W Smit
Instructed by: Schoeman Sejwane Grobler Inc,
Roodepoort
Lovius Block Attorneys, Bloemfontein.