Brief Summary

Execution — Warrant of execution — Attachment of movables — Applicant sought to set aside warrant of execution issued for alleged arrear maintenance and school fees — Respondent delayed in filing answering affidavit and condonation application — Court granted condonation for late filing but ordered respondent to pay costs of condonation application — Main application granted in part, with court finding that settlement agreement required applicant to pay school fees, thus warrant upheld for school fees claim.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an application in the High Court to set aside, alternatively stay, a warrant of execution and the consequent attachment of movable property, arising from alleged arrear obligations said to flow from a divorce settlement agreement. The application also ultimately required determination of a related condonation application for the late filing of an answering affidavit, and the allocation of multiple costs consequences flowing from procedural delays.

The parties were formerly spouses. The applicant was the judgment debtor against whom the warrant of execution had been issued. The first respondent (referred to in the judgment as “the respondent”) was the former spouse who caused the warrant to be issued. The second respondent was the Sheriff, Johannesburg North, who took no active part in the proceedings and played no substantive role beyond the execution process.

The procedural history reflected that the parties were divorced in 2016 and concluded a settlement agreement regulating, among other matters, maintenance and the children’s expenses. Several years later, in mid-2022, the respondent procured a warrant of execution for alleged arrears. The applicant launched the main application on 8 July 2022. The respondent opposed late, leading to a first postponement with a wasted costs order against the respondent. A further postponement occurred in February 2023 because the respondent delivered a condonation application only shortly before the hearing; the costs of that postponement were reserved and then fell to be determined together with condonation, the merits, and costs.

The general subject-matter of the dispute concerned the enforceability of execution steps founded on alleged arrear maintenance and alleged arrear school fees claimed to be due under the settlement agreement, as well as whether execution should continue in circumstances where the papers suggested that the respondent may already have been reimbursed for the school fees.

Material Facts

The parties’ divorce occurred in 2016 and was accompanied by a settlement agreement dealing with their financial arrangements and responsibilities toward their minor children. The content and interpretation of one clause of that agreement (clause 3.5) became central to the dispute, particularly in relation to responsibility for the children’s 2016 school fees.

In mid-2022 the respondent caused a warrant of execution to be issued against the applicant for R172,222.97, comprising alleged arrear maintenance of R46,000.00 and alleged arrear school fees from 2016 in the amount of R129,222.97. Pursuant to the warrant, the sheriff attached a number of the applicant’s movables and prepared an inventory. It was, however, common cause that the movables were not removed after an arrangement between the parties; the goods remained attached but in the applicant’s possession, and the applicant had therefore not been deprived of the physical use of the property.

The applicant instituted motion proceedings seeking to have the warrant and attachment set aside, alternatively stayed, and sought referral to oral evidence in the alternative. The respondent opposed late and delivered her answering affidavit after the matter had originally been set down on an unopposed roll, resulting in postponement and an earlier wasted costs order against her. Although the respondent indicated in September 2022 that she would bring condonation for lateness, she only brought the condonation application in the week before the February 2023 hearing, providing the applicant with severely truncated time periods to respond.

By the time of argument, it was common cause that the arrear maintenance component of R46,000.00 was no longer in dispute due to a further payment made by the applicant and information that emerged from the respondent’s answering affidavit. The remaining live factual dispute concerned whether the warrant could properly be supported by an outstanding claim for the 2016 school fees, and, if not, whether the warrant and attachment should be set aside.

On the merits, the applicant’s case in founding was that the settlement agreement required the respondent to pay the school fees out of monies she received from the applicant’s ABSA pension funds, and that she had in fact done so; he therefore denied any indebtedness for school fees. The respondent disputed this interpretation, contending that the applicant’s obligation to pay school fees was additional to the pension proceeds due to her.

A further factual dimension emerged from the applicant’s replying affidavit, namely that even if he were liable for the 2016 school fees, he contended that the respondent had already recovered the school fees by deducting them from what she paid him from the proceeds of the sale of their matrimonial home. The applicant attached WhatsApp communications in which the respondent stated that she would deduct the 2016 school fees from the amount payable to the applicant from the property proceeds. The respondent did not, on the papers before the court, provide an explanatory response addressing the implication that she had already been reimbursed.

Legal Issues

The court was required to determine several central legal questions arising in motion proceedings.

A first set of issues was procedural and discretionary: whether the respondent should be ordered to pay the reserved wasted costs of the February 2023 postponement; whether condonation should be granted for the late filing of the respondent’s answering affidavit; and what costs order should follow the condonation application. These issues involved the application of established principles governing condonation, including assessment of explanation, prejudice, and prospects or merits, and they called for a value judgment in the exercise of a judicial discretion.

A second set of issues concerned the merits of the main application: whether the warrant of execution and attachment should be set aside, given the parties’ dispute about the proper interpretation of the settlement agreement (particularly clause 3.5) and the impact of subsequent conduct. This required the court to apply principles of contractual interpretation (text, context, purpose) to the settlement agreement, and to determine whether the warrant remained justified on the papers.

A further issue arose regarding motion procedure: whether the court should take account of material introduced in reply (the WhatsApp communications and the associated “deduction” contention), in light of the general rule that an applicant must make out its case in founding papers, and the discretionary exceptions permitting new matter in reply in appropriate cases.

Court’s Reasoning

The court first addressed the reserved costs of the February 2023 postponement. It reasoned that the postponement was caused by the respondent’s late delivery of the condonation application, despite her earlier indication (in September 2022) that she would file it. The respondent delayed for approximately five months and then sought to impose highly truncated time periods on the applicant to oppose the condonation application, without justifying that approach. Because the late condonation application precipitated the postponement and no adequate explanation was given for the delay, the court concluded the respondent should bear the wasted costs of the February 2023 postponement.

On condonation, the court applied the principle that courts have a discretion to condone late filing of affidavits where it is in the interests of justice. The respondent’s explanation was that she was a single mother running a business and was concerned about legal fees, hoping the parties could resolve matters. The court regarded this explanation as weak when placed in context, including that the respondent had acted promptly and incurred costs when she sought execution steps, while not acting timeously when she was required to respond as a litigant. The court also considered it unrealistic, against the history of the parties’ inability to resolve matters, to suggest that settlement was a sound explanation for non-compliance.

Despite the weak explanation, the court emphasised two countervailing considerations. First, the applicant conceded that there was no prejudice alleged from the delay, particularly because the attached movables had not been removed. Second, the court considered the merits of the respondent’s defence as part of the condonation enquiry and concluded that the respondent had a good defence to the case made in the founding affidavit of the main application. Weighing these factors, the court exercised its discretion to grant condonation.

The court also recorded an argument advanced on behalf of the respondent, relying on Ardnamurchan Estates (Pty) Ltd v Renewables Cookhouse Wind Farms 1 (RF) (Pty) Ltd and Others [2021] All SA 829 (ECG), to the effect that the applicant’s filing of a replying affidavit constituted a further procedural step amounting to abandonment of the right to oppose condonation. The court expressed doubt as to whether Ardnamurchan was correct, noting the generally strict approach to waiver of rights, but found it unnecessary to decide the point because condonation was granted on other grounds.

In relation to the costs of condonation, the court treated the respondent’s request as one for an indulgence and held that the respondent should ordinarily pay such costs. The court added that the respondent’s unexplained five-month delay and the prejudicially truncated timetable provided to the applicant further justified a costs order against her, even though condonation itself was granted.

Turning to the merits of the main application, the court identified that only the alleged arrear school fees remained live, because arrear maintenance was no longer in issue by common cause. The applicant’s principal contention was that, properly interpreted, the settlement agreement placed responsibility for school fees on the respondent to be paid from pension monies payable to her, meaning there could be no arrear school fees owed by him. The respondent contended that the agreement imposed a separate obligation on the applicant to pay the school fees, independent of the pension allocation.

The court approached interpretation by applying the established triad of text, context, and purpose. It held that the plain wording of clause 3.5 supported the respondent’s interpretation, because the clause stated that the defendant (the applicant) undertook to pay the school fees, and did not state that payment was to be made from the pension funds. The clause rather tied the timing of payment to the date of receipt of the pension funds. The court also took account of payment mechanics: it was common cause that amounts in clause 6 were payable from the applicant’s Investec account, reinforcing that the liability to pay the school fees rested on the applicant and not the respondent.

The court further treated the parties’ subsequent conduct as relevant context. It noted that in reply the applicant asserted that the 2016 school fees had in any event been deducted from his portion of the proceeds of the sale of the matrimonial home, and attached WhatsApp communications reflecting that the respondent intended to deduct those school fees. The court viewed this conduct as consistent with the respondent’s interpretation that the applicant was liable for the school fees, because it suggested the respondent had paid them initially and later recouped them from the applicant.

This interpretive conclusion meant the applicant could not succeed on his main founding case, which depended on his asserted non-liability. However, the court held that the matter did not end there because the same subsequent conduct also suggested that the respondent had already been reimbursed for the 2016 school fees. On that basis, the continued existence of the warrant could not be justified on the papers if the respondent had already recovered the claimed amount.

A critical procedural question then arose: whether the court should consider the WhatsApp communications and the “deduction” contention, which were not set out in founding but introduced in reply. The court accepted the general rule that applicants must make out their case in founding papers, but emphasised that it is not absolute and that, in exceptional circumstances, a court may allow new matter in reply. The court applied the guidance drawn from authority on the factors relevant to exercising that discretion.

The court concluded that the WhatsApp communications should be taken into account for two principal reasons. First, it was not clear that the material constituted a new case in reply; the court regarded it as responsive to the respondent’s interpretation advanced in answer and framed as an alternative contention (even if the applicant were liable, he had already paid). Second, even if it were new matter, the court held the circumstances justified admitting it: the reply containing the communications had been filed approximately eleven months earlier; the respondent had not sought leave to file a further affidavit addressing them and had not brought a striking out application; and she had in fact filed further affidavits in the condonation proceedings that dealt with merits but did not address the WhatsApp implication of reimbursement. The court also considered that setting aside the warrant would not be finally determinative of rights, because the respondent could seek a further warrant if she could substantiate an outstanding entitlement notwithstanding those communications, and counsel accepted there was no bar to that course.

Having admitted the WhatsApp material, the court concluded that, on the papers before it, the respondent had already been reimbursed for the 2016 school fees. It therefore held that the warrant and the attachment could not remain and had to be set aside.

On costs in the main application, the court reasoned that the applicant succeeded in setting aside the warrant, but not on the primary ground advanced in founding (non-liability under the settlement agreement). The respondent, in turn, successfully met the founding case, but the warrant was set aside due to facts raised in reply which she did not dispute for a substantial period. In these circumstances, the court considered the fairest result was that each party bear their own costs in the main application.

Outcome and Relief

The court ordered that the respondent pay the wasted costs occasioned by the postponement of 13 February 2023. The court granted condonation for the late filing of the respondent’s answering affidavit, but ordered the respondent to pay the costs of the condonation application.

In the main application, the court set aside the warrant of execution issued on 29 April 2022 under case number 6043/2016, and set aside the attachment of the applicant’s movable property pursuant to that warrant. The court made no order as to costs in the main application.

Cases Cited

Baron and Others v Claytile (Pty) Ltd and Another 2017 (5) SA 329 (CC)

United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A)

Darries v Sheriff, Magistrate's Court, Wynberg 1998 (3) SA 34 (SCA)

Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC)

Close-Up Mining and Others v Boruchowitz NO and Another 2023 (4) SA 38 (SCA)

Passenger Rail Agency of South Africa v Sbhahle Free Services CC (230/2019) ZASCA 90 (4 August 2020)

Mostert and Others v FirstRand Bank t/a RMB Private Bank and Another 2018 (4) SA 443 (SCA)

Shephard v Tuckers Land and Development Corporation (Pty) Ltd (1) 1978 (1) SA 173 (W)

Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others 2013 (2) SA 204 (SCA)

Ardnamurchan Estates (Pty) Ltd v Renewables Cookhouse Wind Farms 1 (RF) (Pty) Ltd and Others [2021] All SA 829 (ECG)

Scibit Scientific Bitware (Pty) Ltd v Potgieter 2021 JDR 2855 (FB)

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No specific rule of court was cited in the judgment.

Held

The court held that the respondent’s delay in bringing the condonation application caused the February 2023 postponement and warranted an adverse wasted costs order. It held further that condonation for the late answering affidavit should nevertheless be granted in the interests of justice, primarily because there was no prejudice to the applicant from the delay and because the respondent had a strong defence to the case as formulated in the applicant’s founding affidavit.

On the merits, the court held that the correct interpretation of the settlement agreement was that the applicant bore the obligation to pay the 2016 school fees, and the applicant’s founding contention to the contrary could not succeed. However, the court held that exceptional circumstances justified considering WhatsApp communications and related allegations introduced in reply, and that on the papers those communications indicated the respondent had already been reimbursed for the school fees. The warrant of execution and the attachment were therefore set aside. The court held that fairness required each party to bear their own costs in the main application.

LEGAL PRINCIPLES

The judgment applied the principle that condonation for the late filing of affidavits lies within a court’s discretion and depends on what the interests of justice require. In exercising that discretion, the court considered the adequacy of the explanation for delay, the presence or absence of prejudice, and the merits or prospects relating to the underlying dispute.

The judgment applied the interpretive approach that legal instruments are construed with reference to the triad of text, context, and purpose, and that the subsequent conduct of the parties may, where appropriate, form part of the relevant context informing interpretation.

In relation to motion proceedings, the judgment applied the general rule that an applicant must make out its case in founding papers, because affidavits serve as both pleadings and evidence. It also applied the principle that a court retains a discretion in exceptional cases to admit new matter raised in a replying affidavit, having regard to considerations including whether the relevant facts are before court, whether prejudice can be cured, whether the matter was known earlier, and whether exclusion would cause unnecessary cost and inefficiency.

Finally, the judgment reflected that costs orders involve a discretionary evaluative judgment, including where a party succeeds in part or succeeds for reasons different from those advanced as the primary basis of the case, and where procedural conduct has caused avoidable delay or expense.

J.M.G.W v M.J.W and Another (6034/2016) [2023] ZAWCHC 201 (11 August 2023)