Babich and Another v Babich (2810/2013) [2017] ZAGPPHC 744 (3 November 2017)

Babich and Another v Babich (2810/2013) [2017] ZAGPPHC 744 (3 November 2017)

The court found, on a balance of probabilities, that there was no mutual consensus between the parties regarding the inclusion of clause 7.4 in the settlement agreement. The first plaintiff credibly testified that he was unaware of the clause at the time of signing, and the inherent probabilities weighed against the likelihood that he would agree to pay his ex-spouse R60,000 per month in perpetuity, given that all other needs were catered for in the agreement. The clause was originally linked to the defendant's employment with the second plaintiff, which had ceased. The plaintiffs discharged the onus of proving lack of consensus and possible fraudulent insertion. Accordingly, clause 7.4...

Citation
[2017] ZAGPPHC 744
Parties
Plaintiff: Alexander Babich; Plaintiff: Alexander Babich & Associates (Pty) Ltd; Defendant: Candice Nicole Babich
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 November 2017
Case Number
2810/2013
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Plaintiffs succeeded in having clause 7.4 of the settlement agreement deleted. Costs awarded against the defendant.
Judges
Bam
Legal Topics
Settlement Agreement Rectification, Maintenance Obligations, Fraudulent Insertion, Contractual Consensus
Family and Children Civil Procedure Settlement Agreement Rectification Maintenance Obligations Fraudulent Insertion Contractual Consensus

Case Brief

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Parties

Alexander Babich

Plaintiff

Alexander Babich & Associates (Pty) Ltd

Plaintiff

Candice Nicole Babich

Defendant

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether clause 7.4 of the settlement agreement, providing for indefinite monthly payments of R60,000 to the defendant, was agreed upon by both parties.
  2. 2 Whether the clause was fraudulently inserted and if there was consensus between the parties regarding its inclusion.
  3. 3 Whether the payment under clause 7.4 constitutes maintenance or a contractual obligation.

Ratio Decidendi

The court found, on a balance of probabilities, that there was no mutual consensus between the parties regarding the inclusion of clause 7.4 in the settlement agreement. The first plaintiff credibly testified that he was unaware of the clause at the time of signing, and the inherent probabilities weighed against the likelihood that he would agree to pay his ex-spouse R60,000 per month in perpetuity, given that all other needs were catered for in the agreement. The clause was originally linked to the defendant's employment with the second plaintiff, which had ceased. The plaintiffs discharged the onus of proving lack of consensus and possible fraudulent insertion. Accordingly, clause 7.4...

Court Disposition

Plaintiffs succeeded in having clause 7.4 of the settlement agreement deleted. Costs awarded against the defendant.

Orders

  • Clause 7.4 of the settlement agreement is deleted in its entirety.
  • Defendant is ordered to pay the costs as between attorney and own client.