PL v YL

• Jurisdiction: South Africa

PL v YL
2013 (6) SA 28 (ECG)

2013 (6) SA p28

Citation	2013 (6) SA 28 (ECG)
Case No	984/2011
Court	Eastern Cape High Court, Grahamstown
Judge	Van Zyl ADJP, Majeke AJ and Mey AJ
Heard	March 18, 2013
Judgment	August 1, 2013
Counsel	L Crouse for the appellant.; TJM Paterson SC (with KL Watt) as amici curiae.

Flynote : Sleutelwoorde E

F Marriage — Divorce — Order of court — Incorporating settlement agreement — Practice of incorporation of settlement agreements into divorce orders salutary and in line with judicial policy — Arrangements concerning welfare of children cannot be disposed of without intervention of court — Divorce Act 70 of 1979, s 7(1).

Headnote : Kopnota

G The practice of incorporating settlement agreements into divorce orders is salutary and in line with judicial policy. It benefits the parties and the administration of justice by encouraging negotiation over litigation to sort out financial and proprietary issues. The practice has legislative support in s 7(1) of the Divorce Act 70 of 1979, which empowers the court to give H effect to agreements between the parties regarding the division of assets and inter-spouse maintenance. Also, arrangements concerning the welfare of children born of the marriage cannot be disposed of without the intervention of the court. (Paragraphs [13], [22], [28] and [34] – [37] at 35B – H, 40E – H, 44D – H and 47I – 49I.)

The contrary view expressed in Thutha v Thutha 2008 (3) SA 494 (TkH) — I namely that the practice of incorporation should be eschewed since an agreement should only be made an order of court if the parties could on its strength proceed directly to execution 'without redress to further litigation' — is unduly inflexible and restrictive, not only of the powers of the court under s 7(1) of the Divorce Act, but also in relation to the inherent power of the court to compel the observance of its own orders. (Paragraph [38] at 49I – 50F.) J

2013 (6) SA p29

Cases Considered

Annotations A

Case law

Southern Africa

Atmore v Atmore 1932 TPD 154: referred to

Benefeld v West 2011 (2) SA 379 (GSJ): referred to B

Berkowitz v Berkowitz 1956 (3) SA 522 (SR): referred to

Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T): referred to

Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others 1956 (1) SA 105 (N): referred to

Claassens v Claassens 1981 (1) SA 360 (N): not followed

Cloete v Cloete 1953 (2) SA 176 (E): referred to C

Copelowitz v Copelowitz and Others NO 1969 (4) SA 64 (C): referred to

Corporate Liquidators (Pty) Ltd and Another v Wiggill and Others 2007 (2) SA 520 (T): referred to

Eksteen v Eksteen 1920 OPD 195: referred to

Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T): referred to

Ex parte Naude 1964 (1) SA 763 (D): referred to D

Ex parte Stein and Another 1960 (1) SA 782 (T): referred to

Ex parte Venter and Spain NNO: Fordom Factoring Ltd and Others Intervening; Venter and Spain v Povey and Others 1982 (2) SA 94 (D): referred to

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA): referred to

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A): referred to E

Fluxman v Fluxman 1958 (4) SA 409 (W): referred to

Frazer v Frazer 1922 EDL 85: referred to

Geard v Geard 1943 EDL 322: referred to

Georghiades v Janse van Rensburg 2007 (3) SA 18 (C): referred to

Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others 1978 (1) SA 914 (A): referred to F

Harris v Harris 1949 (1) SA 254 (A): referred to

Hermanides v Pauls 1977 (2) SA 450 (O): referred to

Hodd v Hodd; D'Aubrey v D'Aubrey 1942 NPD 198: discussed

Hoogendoorn v Hoogendoorn 1937 CPD 123: referred to

Horne v Horne 1928 WLD 350: referred to

Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) ([2000] 2 All SA 161): referred to G

Karson v Minister of Public Works 1996 (1) SA 887 (E): referred to

Keshavjee v Ismail 1956 (4) SA 90 (T): referred to

Kotze v Kotze 2003 (3) SA 628 (T): referred to

Maartens v Maartens 1964 (2) SA 104 (N): not followed

Mansell v Mansell 1953 (3) SA 716 (N): discussed and not followed H

McCall v McCall 1994 (3) SA 201 (C): referred to

MEC for Economic Affairs, Environment and Tourism v Kruisenga and Another 2008 (6) SA 264 (Ck): referred to

Moipolai v Moipolai and Others 1992 (4) SA 228 (BG): referred to

PL v YL 2012 (6) SA 29 (ECP): reversed on appeal

Rossouw v Haumann 1949 (4) SA 796 (C): referred to I

Rowe v Rowe 1997 (4) SA 160 (SCA): referred to

S v Loubser 1969 (2) SA 652 (C): referred to

Sanan v Sanan 1978 (1) SA 98 (W): referred to

Schierhout v Minister of Justice 1925 AD 417: dictum at 423 applied

Schultz v Schultz 1928 OPD 155: referred to

Schutte v Schutte 1986 (1) SA 872 (A): applied J

2013 (6) SA p30

A Schwartz v Schwartz 1984 (4) SA 467 (A): referred to

Shields v Shields 1946 CPD 242: referred to

Smith v Smith 1925 WLD 183: referred to

Strauss v Strauss 1974 (3) SA 79 (A): referred to

Swadif (Pty) Ltd v Dyke NO 1978 (1) SA 928 (A): referred to

B Swart v Swart 1960 (4) SA 621 (C): referred to

Thutha v Thutha 2008 (3) SA 494 (TkH): discussed and not followed

Trust Bank of Africa Ltd v Dhooma 1970 (3) SA 304 (N): referred to

Van Schalkwyk v Van Schalkwyk 1947 (4) SA 86 (O): referred to

Westmacott v Johannesburg Motor Mart Ltd 1921 NPD 202: referred to

Wijker v Wijker 1993 (4) SA 720 (A): referred to.

England C

Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 (CA) ([1895 – 9] All ER Rep 868): referred to

Minton v Minton [1971] 1 All ER 79 (HL): considered.

Statutes Considered

Statutes

The Divorce Act 70 of 1979, s 7(1): see Juta's Statutes of South Africa D 2012/13 vol 7 at 4-200.

Case Information

L Crouse for the appellant.

TJM Paterson SC (with KL Watt) as amici curiae.

E Appeal against a decision of a single judge, leave to appeal having been granted on the limited issue of the correctness of the judgment in Thutha v Thutha 2008 (3) SA 494 (TkH). The order of the court a quo was partially set aside in para [53] of the judgment.

Judgment

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

2013 (6) SA p31

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...