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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 20030/2024
In the matter between:
S[...] E[...] W[...] Applicant
And
W[...] H[...] J[...] W[...] N.O. First Respondent
NICOLE PRINSLOO N.O. Second Respondent
R[...] W[...] N.O. Third Respondent
REGISTRAR OF DEEDS, CAPE TOWN Fourth Respondent
W[...] H[...] W[...] Fifth Respondent
BAREND FERREIRA N.O. Sixth Respondent
Coram: BARENDSE J
Heard: 3 August 2026
Delivered: 4 September 2026
Summary: Interpretation of settlement agreement -disputes arising
from-whether suited to motion proceedings -attorney and client
privilege-whether waived -filing of further affidavits without leave.
ORDER
1. The application is dismissed;
2. The Applicant shall pay the Respondent’s costs, with counsel’s fees
taxable on scale B.
JUDGMENT
Barendse J:
Introduction and factual setting
[1] These are opposed motion proceedings in which the Applicant s eeks the
following relief:
1. Confirmation of the cancellation of a deed of sale dated 18 June 2023;
2. Cancellation of the transfer of ownership of Erf 1[...] at Stilbaai East,
in the Hessequa Municipality Division Riversdale , held by d eed of
transfer no T[...] to the Respondent in terms of S6(1) of the Deeds
Registries Act no 47 of 1937;
3. Cancellation of the transfer of ownership of the aforesaid property to
the W[...] Merrie Familie Trust under Deed of Transfer number T[...];
4. An Order directing the Fourth Respondent to cancel the aforesaid
Deeds of Transfer;
5. An Order for the reinstatement of Deed of Transfer number T[...]
under which the Applicant previously held the said property.
6. Legal costs;
7. Alternative Relief.
[2] The Applican t was previously married to the Fifth Respondent . The
marriage was concluded on 1 September 2017 , out of community of
property, with the exclusion of the accrual system. The remaining
respondents (except for the Fourth Respondent) were cited in their capacities
as trustees of the W[...] Merrie Familie Trust with registration number
4204/2007 (“the trust”). The lis was between Applicant and Fifth
Respondent, who was the only respondent opposing these proceedings. The
Fifth Respondent will therefore be referred to as “the Respondent”.
[3] During 2020 and while the marriage subsisted, the Respondent
purchased a property, Erf 1[...] Stilbaai (“the property” ) and the property
was thereafter registered in the name of Applicant. Applicant’s case was that
the property was a gift to her . Respondent averred that acquisition of the
property was part of a broader estate planning exerc ise. This property forms
the subject of this dispute.
[4] The Respondent has two adult daughters from a previous marriage.
They are co-trustees of the trust and cited as Second and Third Respondents
respectively.
[5] During 2019 the Respondent also purchased three properties in
Albertinia, Western Cape. One of these properties was registered in the
name of the Applicant and as for the remaining two properties, one was
registered in each daughter’s name. During 2023 the Respondent purchased
a further property in Albertinia . This property was registered in the
Applicant’s name.
[6] In the Founding Affidavit (“FA”) the Applicant stated that during
May 2020, after the acquisition of the Stilbaai property the Respondent
drafted a Last Will and Testament for her. In ter ms thereof, and in the event
of the simultaneous death of Applicant and the Respondent, the properties at
Albertinia and Stilbaai, held by Applicant, would devolve upon
Respondent’s two daughters.
[7] Applicant was diagnosed with cancer on 25 April 2023 and
commenced with chemotherapy during May that year . She stated that
subsequent thereto, Respondent suggested that the Stilbaai property be
transferred to the trust as the trust would in the future look after her needs.
[8] According to the Applicant the Respondent insisted on the said
property being transferred to the trust and on 18 June 2023 she signed a deed
of sale under duress. In terms of this deed of sale, she sold the property to
the trust for R290 ,000.00. It appears that this was the price at w hich this
property was acquired during 2020. It was a vacan t plot which the parties
intended developing. The deed of sale provided that the purchase price was
payable upon registration of transfer.
[9] During July 2023, Respondent informed the Applicant that he wanted
a divor ce. A divorce summons was eventually issued out of the Regional
Court in Riversdale. Applicant intended opposing the divorce proceedings,
but through the fa ult of her then attorneys , a Divorce Order was granted on
an unopposed basis. At th at stage, the transfer of ownership of the Stilbaai
property to the trust was not yet registered . In the course of the divorce
proceedings the transferring attorney was instructed not to proceed with the
transfer thereof, pending the divorce proceedings.
[10] In the FA the Applicant further averred that she was the victim of a
misrepresentation by the Respondent. She was unaware that Respondent was
conducting an extramarital affair at the time, and that Respondent intended
divorcing her.
[11] The papers extensively refer to correspondence exchanged between
the parties’ attorneys in the divorce and with the transferring attorney. It is
not necessary to repeat thos e references here . Importantly, the Applicant
instructed her erstwhile attorneys to apply for rescission of the Divorce
Order.
[12] Both parties were legally represented. The Respondent opposed the
rescission application and settlement negotiations ensued. These
negotiations culminated into a settlement agreement which was made an
order of court. The settlement agreement was signed by Applicant on 15
March 2024 and by the Respondent on 26 March 2024. It was made an order
of court on 31 July 2024.
[13] The settlement agreement contained provisions relating to
rehabilitative maintenance for the Applicant , medical aid for her, movable
property and immovable property. The provisions relating to immovable
property confirmed that the va cant plot in Al bertinia would be retained by
the Applicant. This property was already registered in her name.
[14] The settlement agreement also contained express provision s
concerning the Stilbaai property and it is from these provisions that this
litigation ultimately arose. Clause 2.1.2.1 of the settlement agreement reads
as follows:
“2.1.2.1 It is recorded that Defendant is the owner of Erf 1[...] Stilbaai,
which will be transferred to the W[...] Merrie Famili e Trust in terms of a
deed of sale signed on 18 July (sic) 2023, as provided above (herein referred
to as the Stilbaai property”
[15] As mentioned earlier, the settlement agreement also deal s with
movable assets, particularly two motor vehicles. It then contains a clause
that provides for payment of a lumpsum of R350,000.00 by Respondent to
the Applicant. Importantly, it makes payment of the lumpsum subject to five
conditions, one of which was the transfer of the Stilbaai property from
Applicant to the trust.
[16] It is common cause that the settlement agreement was signed and
made an order of court. The Applicant declared in the FA that she was also
forced to sign the settlement agreement. It is further common cause that the
Applicant signed the transfer documents for the transfer of ownership of the
Stilbaai property to the trust and that the R350,000.00 was thereafter paid to
Applicant. The property was then transferred to the trust.
[17] The settlement agreement expressly reflect s that it was concluded in
settlement of the disputes in the rescission application and the divorce
action. As mentioned earlier, t he transfer of the Stil baai property was
previously held over, pending th e divorce proceedings. This property was
very much part of the dispute in the divorce too.
The disputes
[18] Shortly after the settlement agreement was concluded the Applicant
changed attorneys. I t appears that she was unhappy about the fees t hat her
previous attorneys charged her and with the ir level of service. Her new
attorney addressed a letter to the Respondent claiming the purchase price of
R290,000.00 for the Stilbaai property in terms of the deed of sale dated 18
June 2023. The appointment of this attorney, Mr de Lange, became a subject
of controversy in the papers. Respondent alleged that Mr de Lange is the ex -
husband of the Respondent’s current wife . Mr De Lange befriended the
Applicant after the divorce settlement was entered into and Respondent
believed that Mr de Lange was biased against him. Respondent attributes
these proceedings to this alleged bias. There was much atmosphere in the
Answering Affidavit (“AA”) and the Replying Affidavit (“RA”) around this.
The least said about this issue, the better.
[19] Applicant’s case is that it was not the intention behind the settlement
agreement that payment of the R350,000.00 by Respondent included the
purchase price for the property of R2 90,000.00. It was submitted on her
behalf that the trust was not a party to the settlement agreement and that its
obligation to pay the purchase price could not have been discharged by the
settlement agreement. Respondent on the other hand conten ds that the
divorce settlement was entered into in settlement of all the disputes between
them and that the lump sum payment included the said sum of R290,000.00
plus a “sweetener” of R60,000.00.
[20] Applicant states that because the breach notice dated 28 May 2024 in
which her attorney claimed payment of the amount of R290,000.00 was not
complied with, she was entitled to cancel the agreement of sale. It is also
clear from the FA that the fact that the property is worth substantially more
than the amount of R290,000.00 materially impacted the Applicant’s
decision to institute these proceedings. In fact, Applicant expressly stated
that the deed of sale for the Stilbaai property was a contenti ous matter in the
divorce proceedings from the outset. 1 This necessarily drew this property
into the dispute around the proprietary consequences of the divorce.
1 Founding Affidavit, record p17 paragraph 4.31
[21] To muddy the waters further, Respondent filed an affidavit by Mr
Twigge, the attorney who represented the Applicant during the divorce
proceedings, in the settlement negotiations and when the settlement
agreement was concluded. He made it clear that the amount of R350,000.00
payable to Applicant was in full and final settlement of all claims that she
had against the Respondent. He took exception to the allegations by
Applicant that she was forced to sign the settlement agreement , as this
reflected negatively on him and his law firm.
[22] The affidavit by Mr Twigge and another by Ms Strauss, a colleague of
his, were filed on 28 July 2026, just days before the hearing . Applicant’s
counsel objected to the admission of these affidavit s into the proceedings. It
was denied that they were served on Applicant’s attorneys, Applicant argued
that Respondent did not seek leave under Rule 6(5)(e) to file them and it was
claimed that attorney and client privilege attached t o the disclosures made
therein.
[23] In the AA, the Respondent acknowledged that the correspondence
between Applicant and Mr Twigge was privileged and for that reason he was
unable to obtain and attach such communications.2
Reasoning
2 Record p102 paragraphs 3.7 and 3.8
[24] While the Applicant stated in her FA that she signed the deed of sale
under duress 3 and that she signed the settlement agreement under duress 4
this line was not pursued during argument. Applicant’s argument centered
on the interpretation of the settlement agreement. The Court was referred to
paragraph 2.5 thereof, whic h contained the conditions precedent to the
R350,000.00 payment. Applicant also relied on paragraph 3 of the settlement
agreement which provides that “Except as otherwise provided in this
consent paper …the parties shall each retain such assets as are presently
held in his/her name…”
[25] Applicant’s case was further that the deed of sale of 18 June 2023
remained an agreement enforceable separately from the settlement
agreement. This was why the settlement agreement stipulated that the
Stilbaai property would be transferred to the trust in terms of the said deed
of sale. The reference in the settlement agreement to the deed of sale, meant
that the purchase price of R290,000.00 remained payable to Applicant, so
the argument went. The difficulty with this is that clause two of the deed of
sale provide d that the purchase price w as payable upon registration of
transfer. It is common cau se that the Applicant signed the transfer papers
and that the transfer to the trust was registered after Respondent paid the
amount of R350,000.00. Put differently , if the amount of R290,000 .00
remained payable, it would have been payable upon registration of transfer.
The settlement agreement , with which Applicant does not take issue
3 Record p15 paragraph 4.14
4 Record p20 paragraph 4.43
anymore, is therefore in direct conflict with the payment provisions of the
deed of sale. To compound matters, the settlement agreement was made an
order of court.
[26] It is so that the Stilbaai property featured in the divorce action and in
the rescission application . This is why the transfer thereof was pended,
subject to th ose proceedings. It is further so that the settlement agreement
stated that this property must be transferred to the trust as one of the
conditions precedent to payment of the amount of R350,000.00. After th is
property was transferred to the trust, the Respondent had it transferred to
himself. It appears from the papers that the latter step angered the Applicant.
[27] The Respondent’s version is that when the settlement was entered into
both the rescission application and the divorce action were settled. The
settlement agreement, at paragraph six thereof, recorded that the agreement
“...constitutes full and final settlement of all claims and disputes between
them, and between them and any entity or trust in which either party may
have any interest…”
[28] Our law on the interpr etation of documents is settled. In Endumeni5 it
was held that this process is objective, that regard must be had to the
language used, read in the context and with regard to the purpose and
background of the document’s production. The language used in the
5 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
settlement agreement can potentially be given the meaning contended for by
either party. That said, the context of the settlement negotiations and purpose
of the deed of s ettlement cannot readily be assessed on the papers. Oral
evidence on these two elements is indispensable for an interpretation on the
principles laid down in Endumeni.
[29] The Plascon Evans6 rule enjoins this Court to determine this matter on
the Respondent’s version of the disputed facts together with the facts
admitted by Applicant, or facts which Applicant cannot dispute , unless
Respondent’s version is so improbable, far -fetched or untenable that it falls
to be rejected outright on the papers. The Court considered the Respondent’s
version and concluded that it raised a genuine dispute of fact.
[30] Having regard to Wightman 7 this is not an instance where the
Respondent’s version contains denials without seriously and unambiguously
engaging with the disputed facts. The version put forward by the Respondent
is probable and is supported by the undisputed facts.
[31] The Respondent’s version of what the settlement agreement entailed
is consistent with inter alia, the following undisputed facts:
1. It was agreed that the Stilbaai property would be transfer red to the
trust;
6 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
7 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA)
2. The Applicant signed the deed of sale;
3. The Applicant signed the settlement agreement fully assisted by legal
representatives;
4. The settlement agreement contained a full and final settlement clause
which included the parties themselves and any other entity or trust in
which either of them may have an interest;
5. The Applicant signed the documents for the transfer of the Stilbaai
property even though this reflected that no balance was payable to
her;
6. The Applicant did not apply for the settlement agreement and court
order to be set aside;
7. The settlement agreement provided for the retention as Applicant’s
sole property, the Albertinia property which Respondent purchased.
8. On Applicant’s own version, Respondent had a Will drawn up for her
in the same year when the Stilbaai property w as acquired . The Will
included provisions around this property , fortifying Respondent’s
version that the acquisition was part of estate planning.
[32] As mentioned earlier, t he text of the settlement agreement can
potentially sustain the interpretation contended for by either party. A legally
correct interpretation must be informed by the context of the settlement
negotiations, the agreements reached and the purpose of the impugned
provisions of the settlement agreement. Given the finding that the
Respondent raised a genuine dispute of fact and upon application of the
Plascon Evans rule the Court cannot grant the relief being sought by the
applicant.
[33] On behalf of the Applicant it was argued, in the alternative, that th is
Court could refer the matter for oral evidence. While the Court has the
discretion to do so, it may dismiss an application if it was reasonably
foreseeable to the Applicant that a serious dispute of fact , incapable of
resolution on the papers may develop.8 In my view, this is such a matter. The
FA contained allegations of misrepresentations and that Applicant signed at
least two documents central to the dispute under duress. These are hardly
allegations that can be proven or deci ded on paper s if challenged. Although
Applicant eventually abandoned the above allegations, this does not augur
well for the manner in which she conducted this litigation. Also, after the
AA was filed the Applicant had a further opportunity to reconsider whether
to persist with the application. At that stage it should have become clear that
oral evidence around the settlement negotiations would be compelling.
[34] It is necessary to briefly deal with the contentious filing of affidavits
deposed to by two of Applicant’s previous attorneys and the submissions
made by the parties around that. First, I will deal with the Applicant’s
submission that the affidavit s by Mr Twigge and Ms Strauss violated the
attorney and client privilege. I do not agree with this supposition. In
Peacock v SA Eagle Insurance Company Ltd 9 and in Harksen v Attorney -
General, Cape and Others 10 the courts drew a distinction between implied
8 See Gounder v Top Spec Investments (Pty) Ltd 2008 (5) SA 151 (SCA) at para [11]
9 1991 (1) SA 589 (C) at 591-592
10 1998 (2) SACR 681 (C); (1999 (1) SA 718)
and imputed waiver of legal professiona l privilege. Implied waiver occurs
where a party so behaves that it can objectively be concluded that the
privilege was intentionally abandoned. Imputed waiver occurs where,
regardless of intention , fairness requires that the court concludes that the
privilege was abandoned. Wigmore11 concluded that it is a ‘fair canon of
decision’ that when a client alleges a breach of duty by the attorney, the
privilege is waived as to all communications relevant to that issue. The
attorney will have a righ t to defend himself/herself against such allegations.
The Applicant made allegations of impropriety against her previous
attorneys. For that reason, she cannot rely on attorney and client privilege
when the attorneys address the allegations levelled against them and matters
pertaining to the breaches alleged by her.
[35] It is common cause that the Respondent did not formally seek leave in
terms of Rule 6(5)(e) from this Court to file the additional affidavits . Leave
was sought from the bar only during argument. Given the nature of the
findings made earlier herein, it is in any event not necessary to have regard
to the contents of these affidavits. The Court therefore holds that the two
affidavits are inadmissible.
[36] There is no reason why costs should not follow the result. Both parties
argued for punitive costs. The atmosphere in this matter is not uncommon in
litigation between previous spouses. In this matter, the fact that Mr de Lange
entered the fray only inflamed matters more. In this Court’s view, he should
11 John Henry Wigmore Evidence in Trials at Common Law Volume 8 at para 2328
not have accepted a mandate to represent the Applicant , more so given his
previous marriage to Respondent’s current spouse. The ultimate reasons for
the dismissal of the application are such that punitive costs are not
warranted.
[37] In the result the following order is made:
1. The application is dismissed with costs;
2. The Applicant shall pay the Respondent’s costs, with counsel’s
fees taxable on scale B.
_____________________________
RD BARENDSE
JUDGE OF THE HIGH COURT
Appearances
For Applicant: L Bolt
Instructed by: Martins De Lange Attorneys
c/o Michalowsky Geldenhuys Attorneys
For Respondent: A De Wet
Instructed by: De Klerk and Van Gend Attorneys