W v W and Another (2000/21991) [2010] ZAGPJHC 153; 2011 (6) SA 237 (GSJ) (10 December 2010) (2024)

REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 2000/21991

DATE:10/12/2011

In the matter between:

W,J CP...............................................................................................Applicant

and

W,H (bornV)..........................................................................FirstRespondent

THEACTING SHERIFF OF SANDTON............................SecondRespondent

J U D G M E N T

WEPENER, J:

[1] The applicant seeks the setting aside of a writ and in thealternative a stay of execution of the writ until a determinationofthe applicant’s maintenance liability to the first respondentby the Maintenance Court in Randburg.

[2] First respondent issued awrit pursuant to a divorce settlement agreement which was declaredbinding by the court when issuingan order of divorce between theparties. The applicant correctly states that a writ can only followupon a valid court order. Hecontends that a writ cannot be issuedpursuant to a declaration issued by the court at the time of issuingthe decree of divorce. In addition, it is argued that the settlementagreement was conditional upon an order of divorce being granted andthe deed ofsettlement being made a court order. These two points gohand in hand. If the declaration is indeed an order of court, theconditionwas met and the writ can be issued based on the courtorder.

[3]Mr Cook, on behalf of theapplicant, abandoned the first point inlimine taken in theaffidavit, namely, that the warrant of execution was not signed bythe Registrar of the High Court and accordinglyfatally defective. He, however, relied on Thuthav Thutha 2008 (3) SA494 (TkH) for the argument that the declaration is not sufficient forthe agreement of settlement to be regarded as an order of court. Thelearned Judge referred to a number of problems that he could foreseeif the settlement agreement is to be regarded as a courtorder. He,however, made no reference to the case of Butchartv Butchart 1996 (2) SA581 (W) where a practical manner was found to deal with problem areasarising from settlement agreements, should they arise.

[4]The applicant further reliedon Brandtner vBrandtner 1999 (1) SA866 (W) where Boruchowitz J held that adeclaration asreferred to above does not have the effect of converting thesettlement agreement into a court order.

[5] However, in Tshetlov Tshetlo 2000 (4) SA673 (T), Shongwe AJ (as he then was) disapproved of the Brandtnercase and said at 674G:

“Thepurpose of a divorce order is to regulate the consequences of thedissolution of the marriage. It would be an absurdity forthe Courtdissolving a marriage to leave certain important aspects of theconsequences of the marriage (andits dissolution, I may add) tochance. Therefore,although the Court used the words 'declared binding', it is my viewthat it meant and intended the usual well-known expressionthat the'deed of settlement shall be incorporated in the decree of divorce'or 'the deed of settlement is made an order of Court'.”

[6] Also in Lebeloanev Lebeloane 2001 (1)SA 1079 (W), Wunsh J after considering the Brandtnerand Tshetlomatters held that the intention by declaring an agreement binding isto comply with section 6 of the Divorce Act 70 of 1979. Wunsh J saidat paragraphs [21] and [22] as follows:

“[21]If the Registrar's order in the Brandtnercase was incorrectin that its effect was not to make the settlement agreement an orderof Court, it should have been correctedby the Court, which it hadthe power to do (Roopnarainv Kamalapathy and Another 1971(3) SA 387 (D)at 389;Isaacs v Williamsen Andere 1983(2) SA 723 (NC)). Itwas clearly the intention of the parties that the agreement be madean order of Court and that was also the intention of theJudge whodealt with the matter. The defendant could also have been in no doubtas to the status of the agreement which he hadentered into with theplaintiff and that it was to have the force of an order of Court. Hehad agreed to that being the case.

[22] With respect, anorder setting aside the writ, such as the one granted in theBrandtner case,should not have been granted on a highly technical ground which wasin conflict with the substance of the case. The Courtin theBrandtner casesaid that the plaintiff had a remedy under Rule 41(4) of the UniformRules of Court, which entitled her to apply to Court tohave thesettlement agreement made a judgment. But there is no reason why sheshould, on the basis that the wording of the orderissued by theRegistrar did not make the settlement agreement an order of Court,have been put to the cost and trouble of an applicationand why theCourts should now be faced with numerous applications which may arisein similar circ*mstances. Furthermore, therecould be opposition andquite unnecessary litigation.”

[7] That the parties alsointended the agreement of settlement to operate as a court order, isalso so in this matter having regardto the fact that the agreementof settlement itself “…is conditional upon the order of divorce being granted and this Deedof Settlement being made an order of Court”. I respectfully follow the decisions in this and the North GautengDivision which held that the settlement agreement indeedforms partof the court order and I cannot find these judgments to be clearlywrong and indeed am of the view that they set outthe law correctlyand reject the applicant’s contention that the applicant’sobligation to pay maintenance was notimposed by an order of court.

[8] The applicant’scounsel argued that in the event of my coming to the conclusionregarding the court order as I have,that I have a discretion to staythe execution of the writ primarily based on the fact that theapplicant attempted to settle thematter with the respondent and thathe has now approached the Maintenance Court – the latter factwhich was only disclosedin the replying affidavit. Mr Bunn, onbehalf of the respondent, argued that the discretion should beexercised against the applicantby virtue of the four followingfactors: The applicant has been paying maintenance in terms of thecourt order since 2001 withoutobjection; the applicant has set outno grounds which would entitle him to a reduction of the maintenanceamount; the applicationis not premised on the basis that theapplicant cannot afford to pay the outstanding maintenance; theapplicant has been advisedrepeatedly since March 2010 that should hewish to obtain a reduction of the amount of maintenance specified inthe settlementagreement, he would have to approach a competent courtto do so. This he did not do until faced with the writ in October2010.

[9] The applicant furthercontends as follows:

“Ihumbly submit that I will suffer irreparable harm if the HonourableCourt does not stay the writ. It is submitted that the FirstRespondent will receive monies that she is not entitled to receive byway of the writ, and that the costs of recovering such monieswouldbe prohibitive in the circ*mstances due to the quantum. Furthermore,if the Sheriff attaches and sells my household goodsat an auction,they will not realise the true value, which will be highlyprejudicial to myself, as I will be forced to replacethe goods atnew prices which will be financially devastating.”

The generalised statement is notsupported by facts. I may add that the writ is for a nominal amountof R5 342,19 and the applicantwill act to his own peril to have hisgoods sold on auction. The amounts owing by him are made up of shortpayments over a periodof 12 months i.e. an average short payment ofapproximately R444,00 per month. The applicant describes himself asan adult maledirector and has not, premised the application on thebasis that he cannot afford to pay the maintenance for his son.

[10] In all the circ*mstances Idecline to exercise my discretion in favour of the applicant and theapplication to set aside orstay the writ is dismissed with costs.

____________________________

WL WEPENER

JUDGE OF THE SOUTH GAUTENG

HIGH COURT, JOHANNESBURG

COUNSEL FOR THE APPLICANT:ADV A L COOK

INSTRUCTED BY:LIVINGSTONE CRICHTON

COUNSEL FOR THE RESPONDENT:ADV S BUNN

INSTRUCTED BY:T G FINE