PL v YL

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: Van Zyl ADJP, Majeke AJ and Mey AJ
• Judgment Date: 01 August 2013
• Citation: 2013 (6) SA 28 (ECG)
• Hearing Date: 18 March 2013
• Docket Number: 984/2011
• Counsel: L Crouse for the appellant. TJM Paterson SC (with KL Watt) as amici curiae.

Van Zyl ADJP (Majeke AJ and Mey AJ concurring):

F [1] It has always been the trend in divorce proceedings, more so than in other civil actions, for parties to elect to resolve their disputes in a non-adjudicatory manner. Through the use of dispute-resolution mechanisms designed to foster the amicable settlement of disputes, such as conciliation or mediation, parties arrive at a negotiated settlement of the G issues raised in an action for the dissolution of their marriage relationship. The usual outcome of such a negotiated settlement is the conclusion of an agreement, for the terms of the settlement to be recorded in a written document, and for it to be made an order of the court. The record of this agreement or contract is commonly referred to as a H settlement agreement, a deed of settlement or a consent paper. The agreement usually deals with matters such as the division of the assets of the parties, the payment of maintenance, custody of and contact with the children, and the payment of the costs of the proceedings.

[2] In divorce proceedings a negotiated settlement can only take place in I the context of existing legal proceedings. The reason for this is the fact that only the court can dissolve the marriage and has to approve any agreement in relation to the custody and maintenance of the children born of the marriage. This has two consequences: The first is that as a rule negotiated settlements in divorce proceedings also deal with other issues arising from the consequences of the dissolution of the marriage, J such as the proprietary rights of the parties and the payment of

Van Zyl ADJP (Majeke AJ and Mey AJ concurring)

maintenance by the one party to the other. Secondly, like any other A negotiated settlement, the parties will inevitably also give consideration to the question of the enforcement of the terms thereof in the event of any future non-compliance therewith by any of the parties thereto. As the agreement has been reached in the context of an existing action, the parties as a result more often than not seek enforcement through the B machinery of the court by agreeing that the settlement agreement be made an order of the court.

[3] This appeal is in broad terms concerned with the question of when the court will be entitled to make a settlement agreement between parties C in divorce proceedings an order of court, and when to comply with a request by the parties to do so. The facts of the case can be summarised as follows. The two appellants were husband and wife. Their marriage was in community of property. In April 2011 the first appellant commenced divorce proceedings against the second appellant. The relief sought in para 2 of his particulars of claim was for an order declaring the D two appellants to be the co-holders of parental responsibilities in respect of their two minor children as envisaged in s 18(2)(a) of the Children's Act. [1] The relief claimed with regard to the respective rights and obligations of the parties in the exercise of their parental duties was set out in some detail. The first appellant's claim in para 3 further included an order that the second appellant forfeit the benefits arising from their marriage in community of property. E

[4] The appellants chose to resolve the issues arising from the action and entered into a settlement agreement. It was agreed that the divorce would proceed on an unopposed basis with the incorporation of the F terms of the settlement agreement into the order of the court. The agreement further provided that the second appellant would retain certain movables and that the first appellant would retain the remainder. The agreement then proceeded to deal with the immovable property and provided that the second appellant would receive a sum of cash money, together with certain purchased items, all amounting to R50 000. In G return the second appellant would transfer her half-share in the immovable property to the first appellant, and both parties undertook to do what was necessary to achieve this, such as the signing of the required documentation.

[5] With regard to the children, the agreement recorded an arrangement H which differed in several respects from the relief initially claimed by the first appellant in para 2 of his particulars of claim. It provides for the parties to be co-holders of parental responsibilities and rights and determines matters such as the place of residence of the children and their maintenance. The family advocate, who was ordered by the court in terms of s 4 of the Mediation in Certain Divorce Matters Act [2] to I investigate and report on the interests and welfare of the children, considered this part of the agreement against the 'best interest of child

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A standard' in s 7 of the Children's Act. She concluded that she was satisfied that the agreed arrangements would serve the best interests of the two children. This report formed part of the documentation placed before the court a quo at the hearing of the matter.

[6] The action then proceeded on an unopposed basis. At the hearing of B the matter and after receiving the evidence of the first appellant, the court granted a decree of divorce together with orders in terms of paras 2 and 3 of the particulars of claim. In its reasons in the application for leave to appeal the court a quo explained its refusal to incorporate the C terms of the settlement agreement into its order by stating that it followed the principle in the judgment of Thutha v Thutha, [3] where the court in essence set its face against the practice of the different courts in this division of making or incorporating settlement agreements into the judgment or order of the court. The court a quo granted the appellants D leave to appeal on the limited issue of the correctness of the Thutha judgment, and —

'whether or not the guidelines in that decision on when to make a settlement agreement an order of court are a proper exercise of the discretion, and should be followed in this division'. [4]

E [7] The Supreme Court of Appeal subsequently, on application to it, extended that ground of appeal in accordance with paras 1.1 and 1.2 of the appellants' notice of motion to also include:

'1.1

That the court had erred in granting orders in terms of the first applicant's particulars of claims, not requested by the parties F despite the issues having been agreed on [different] terms between the parties in a deed of settlement.

1.2

That the court had erred in not granting an order as requested by the applicants as set out in their deed of settlement at least in respect of the immovable property.'

G [8] At the hearing of the appeal the appellants were represented by Ms Crouse, while Mr Paterson SC and Ms Watt acted as amici curiae at the request of the court. They are thanked for their assistance. By way of introduction it must be said that although some of the aspects which I intend to deal with in this judgment may apply with equal force to H agreements to settle issues in other actions, it must be made clear at the outset that this judgment deals with, and is limited to settlement agreements in the context of divorce proceedings where the parties have agreed that the terms of their agreement be made an order of the court. The order in other words presupposes the existence of an agreement by I the parties as the basis for it. It is in this sense that the terms 'judgment

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by consent' or simply 'consent judgment' are used in this judgment. [5] A

[9] When a settlement agreement is concluded in the context of a civil action its aim is to relieve the court of its duty to decide the issues in the action. Where it has the effect of disposing of the issues between the parties as raised by the action itself, it would in most instances constitute a compromise (transactio). [6] A compromise is subject to the common-law B principles of contract. [7] The implication is that the agreement may be enforced by any party thereto or resiled from by any party on the same grounds as those applicable to contracts in general. [8] Where the parties agree to resolve their dispute in this manner one of two things may happen. They may agree to withdraw the action, in which event any C dispute regarding compliance with the settlement agreement must be dealt with as constituting a breach of contract. The enforcement of any remedy available to the aggrieved party, such as specific performance, can only be achieved by the commencement of a new action. Because the original action had been terminated, the court cannot, and does not play any active role in the supervision of the enforcement of the settlement D agreement.

[10] The parties may, however, choose to agree to ask the court to give judgment on the issues raised by the action in accordance with the terms of their settlement agreement. One of the advantages of this arrangement E is that the court retains jurisdiction over the matter in the sense that it has the inherent power or authority to ensure compliance with its own orders. [9] This enables the parties, in the event of a failure by any one of them to honour the terms of the order, to return directly to the court that made the order, and to seek the enforcement thereof without the necessity of commencing a new action. It is this second method which is F

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A preferred in divorce proceedings, no doubt as stated by counsel in argument, for the simple reason that it is the more attractive option. Why that is so will be dealt with later in this judgment.

[11] As we are concerned with a divorce action, it is necessary to point out that a distinction must be made between settlement agreements in B such proceedings and those...