Thutha v Thutha

• Jurisdiction: South Africa
• Citation: 2008 (3) SA 494 (TkH)

Thutha v Thutha
2008 (3) SA 494 (TkH)

2008 (3) SA p494

Citation	2008 (3) SA 494 (TkH)
Case No	1838/2004
Court	Transkei High Court
Judge	Alkema J
Heard	September 14, 2007
Judgment	September 14, 2007
Counsel	JL Hobbs for the applicant.; NZ Mtshabe (attorney) for the respondent.

Flynote : Sleutelwoorde B

Practice — Judgments and orders — Enforcement — Deed of settlement — Incorporation into order of court for purpose of enforceability — Applicable principles set out — Though some terms of settlement may be incorporated into order, practice of making deeds of settlement court orders deemed C undesirable — Incorporated terms to be capable of ready enforcement by execution without recourse to further litigation.

Headnote : Kopnota

The principles applicable in deciding whether a deed of settlement should be incorporated into a court order and be enforceable are well established in all divisions of the High Court of South Africa.

1.

D The purpose of a court order, as a final judgment, is, among other things, to allow a party to proceed directly to execution. If the order cannot or should not be enforced for whatever reason, it should not be made an order of court.

2.

The wording of judgments and orders should be clear and unambiguous. If not, the order is incapable of enforcement.

3.

E Court orders should not be formulated in such a way that compliance is left to the discretion of the person who is bound thereby and to the discretion of the sheriff or his deputy (or any other enforcement officer). Such a discretion would offend against the elementary principle that orders should be capable of ready enforcement.

4.

As a matter of principle if a consent order does not comply with the F above requirements it should not be made an order of court. The purpose of a court order is not to record the terms of an agreement between the parties, but to give final effect to the judgment which brings the dispute to closure.

5.

It is now established law that the order must be one ad factum praestandum before it can be enforced. When the order is for the G payment of money simpliciter (ad pecuniam solvendam) it cannot be enforced by a committal for contempt, and the remedy is execution.

6.

For reasons of public policy, the payment of maintenance is regarded as an order ad factum praestandum which may be enforced, under certain circumstances, by a committal for contempt.

7.

For the same reasons, and also by virtue of the operation of s 6 of the H Divorce Act 70 of 1979, issues such as custody of children and the payment of maintenance should expressly be dealt with in a court order, and not left to the terms of a settlement agreement.

8.

Conversely, issues relating to the division of assets in a divorce action, the settlement of the parties' proprietary rights, and incidental matters arising from the dissolution of a marriage should best be left to the I terms of a settlement agreement upon which an aggrieved party may sue, rather than incorporating those issues into an order of court readily capable of execution. This principle is collateral to the principle that court orders which cannot be enforced should not be made.

9.

If a court is asked to enforce its order, the first question is, as stated above, whether the court is faced with a valid court order. If not, and if J found that it is merely a recording of a settlement agreement between

2008 (3) SA p495

the litigants, without an element of a court requiring obedience with its A terms as a court order, it cannot and should not be treated as a court order. In such a case the remedy of an applicant/plaintiff is to sue on the contract and for the court to decide the matter on contractual principles. If the applicant elects to treat the contract as an order of court and asks for enforcement of the order, the application will fail simply on the ground that 'the order' which the applicant seeks to enforce is not B an order of court, but a contract.

10.

Finally, a rule of practice can never reign supreme over substantive law. (Paragraphs [52] - [53] at 506H/I - 508G.)

The practice of making or incorporating deeds of settlement into a court order should not be followed. The rules of practice, or the proposed joint rules of the Transkei Division or of the Eastern Cape do not compel a court to do C so, and nor do the decided judgments in those divisions constitute authority for this proposition. This does not mean that a court should not, in appropriate circumstances, embody certain terms of a settlement relating to custody, maintenance and the settlement of certain proprietary rights, in a court order. However, when it does so, those terms must be capable of ready enforcement by execution without redress to further litigation. It is inevitable D that a court will nevertheless, from time to time, be asked to enforce a court order which incorporates a deed of settlement. In such event it can only do so if it is satisfied that those terms it is asked to enforce constitute terms of a court order intended to carry the authority of the court. If not, the application should be dismissed. (Paragraphs [54] - [56] at 508G - 509A.) E

Cases Considered

Annotations

Reported cases

Southern African cases

Banco Standard Toita de Moçambique v Corbett Enterprises (Pty) Ltd 1975 (3) SA 300 (D): F dictum at 305B - C applied

Brandtner v Brandtner 1999 (1) SA 866 (W): not approved

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC): referred to

Consolidated Fish Distributors (Pty) Ltd v Zive and Others 1968 (2) SA 517 (C): G dictum at 522 applied

Culverwell v Beira 1992 (4) SA 490 (W): dictum at 493D applied

Du Toit v Du Toit 1991 (3) SA 856 (O): applied

Johannesburg Taxi Association v Bara-City Taxi Association and Others 1989 (4) SA 808 (W): applied

Joss v Barclays Western Bank Ltd 1990 (1) SA 575 (T): considered H

Lebeloane v Lebeloane 2001 (1) SA 1079 (W) ([2000] 4 All SA 525): applied

Mansell v Mansell 1953 (3) SA 716 (N): approved and applied

Naidu and Others v Naidu and Another 1993 (4) SA 542 (D): referred to

Protea Holdings Ltd v Wriwt and Another 1978 (3) SA 865 (W): referred to

Rossouw v Haumann 1949 (4) SA 796 (C): dictum at 801 applied I

Tshetlo v Tshetlo [2000] 4 All SA 375 (W): discussed

Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE): applied

Weiner NO v Broekhuysen 2001 (2) SA 716 (C) ([2000] 3 All SA 231): dictum at 722J - 723A (SA) applied.

Foreign cases

Biba Ltd v Stratford Investments Ltd [1972] 3 All ER 1041 (Ch): referred to. J

2008 (3) SA p496

Statutes Considered

Statutes A

The Divorce Act 70 of 1979, s 6: see Juta's Statutes of South Africa 2006/7 vol 5 at 2-204.

Case Information

Application for an order declaring that the respondent was in contempt of the order of the court. The facts appear from the reasons for B judgment.

JL Hobbs for the applicant.

NZ Mtshabe (attorney) for the respondent.

Judgment

Alkema J:

C [1] This application raises two issues: first, the enforcement of a court order; and, secondly, the wisdom of the rule of practice in this division, following the rules of practice in the Eastern Cape Division and in other divisions of the High Court of South Africa, to make a deed of settlement an order of court.

D [2] The facts of this case can be summarised as follows.

During 2002 the plaintiff wife, the applicant in these proceedings, instituted a divorce action against her husband, the respondent. The action was settled, and on 19 September 2002 this court granted a E decree of divorce, and ordered:

The Deed of Settlement being Exhibit B annexed hereto be and is hereby made an Order of Court.

[3] The deed of settlement makes provision for the custody of the minor children, the payment of maintenance, the distribution of the assets, the F settlement of proprietary rights and the payment of legal costs. The relevant paragraphs of the deed, for purposes of this application, read, and I quote verbatim:

2.

Custody of the minor children

2.1

The defendant shall have the custody and care of the three G minor children born of the parties, marriage (sic).

2.2

The plaintiff shall have reasonable rights of access to the said minor children at all reasonable times.

3.

Maintenance

3.1

Plaintiff shall assume full responsibility of the maintenance of the minor children born of the marriage.

3.2

H Without derogating from the generality of the provisions of clause 3.1 hereof the plaintiff shall pay all school fees for the children up to tertiary level; buy them food/groceries on a monthly basis, buy them clothes as and when required, pay the salary of the person employed by the defendant to assist with I household chores, pay for the entertainment expenses of the minor children and their holiday expenses.

3.3

The plaintiff will also pay a contribution of R5 000 per month to the defendant for household expenses.

4.

Property

4.1

The plaintiff hereby agrees to transfer ownership of the undermentioned J motor vehicles into defendant's name, namely:

2008 (3) SA p497

Alkema J

(a)

One 1995 A4Audi Sedan with registration letters A and numbers BZK 264 EC.

(b)

One 1995 Jetta CSL Sedan with registration letters and numbers BYT 020 EC.

4.2

The plaintiff undertakes to replace the aforementioned motor vehicles with (sic) motor vehicle of the same and/or similar class and capacity when the existing vehicles due to age have become B uneconomical to repair.

4.3

The plaintiff also undertakes to make available, when requested to do so, one of the big vehicles being, one \x (sic) Ford Blazer or Chrysler Voyager or alternatively vehicles of the same or...