Botha N.O and Another v Van Zyl and Another (A25 / 2021; 2996 / 2017) [2023] ZAMPMHC 32 (27 September 2023)

Botha N.O and Another v Van Zyl and Another (A25 / 2021; 2996 / 2017) [2023] ZAMPMHC 32 (27 September 2023)

The court held that the settlement agreement applied only to the seven cases expressly listed in clause 1, which were pending at the time of the agreement. Case No. 2996/17 was not included in the list, and the wording of clause 1 was intended to identify and isolate the cases covered, not merely the parties. The omission of Case No. 2996/17 was deliberate, as it had already reached judgment and payment of the principal amount, with only costs outstanding. The court found that the parties intended to exclude concluded matters from the settlement, and the costs order in Case No. 2996/17 remained enforceable. Accordingly, the application to set aside the writ of execution should have...

Citation
[2023] ZAMPMHC 32
Parties
Appellant: Deon Marious Botha N.O.; Appellant: Maryke Landman N.O.; Respondent: Willem Hendrik Van Zyl; Respondent: Embrenchia Marthina Van Zyl
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
27 September 2023
Case Number
A25 / 2021; 2996 / 2017
Procedural Posture
Civil Appeal / Appeal Against Judgment Setting Aside Writ of Execution and Awarding Costs
Outcome
Appeal upheld with costs, including costs of two counsel where employed. The order of the court a quo is set aside and substituted with dismissal of the application with costs.
Judges
TV Ratshibvumo, MB Langa, L Bam
Legal Topics
Interpretation of Settlement Agreement, Writ of Execution, Liquidation Costs, Finality of Proceedings
Civil Procedure Commercial and Corporate Interpretation of Settlement Agreement Writ of Execution Liquidation Costs Finality of Proceedings

Case Brief

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Parties

Deon Marious Botha N.O.

Appellant

Maryke Landman N.O.

Appellant

Willem Hendrik Van Zyl

Respondent

Embrenchia Marthina Van Zyl

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment Setting Aside Writ of Execution and Awarding Costs

Legal Issues

  1. 1 Whether the settlement agreement between the parties included the costs awarded in Case No. 2996/17.
  2. 2 Whether the writ of execution for costs was lawfully issued after the settlement agreement.
  3. 3 Whether the settlement agreement applied to concluded matters or only to pending cases.

Ratio Decidendi

The court held that the settlement agreement applied only to the seven cases expressly listed in clause 1, which were pending at the time of the agreement. Case No. 2996/17 was not included in the list, and the wording of clause 1 was intended to identify and isolate the cases covered, not merely the parties. The omission of Case No. 2996/17 was deliberate, as it had already reached judgment and payment of the principal amount, with only costs outstanding. The court found that the parties intended to exclude concluded matters from the settlement, and the costs order in Case No. 2996/17 remained enforceable. Accordingly, the application to set aside the writ of execution should have...

Court Disposition

Appeal upheld with costs, including costs of two counsel where employed. The order of the court a quo is set aside and substituted with dismissal of the application with costs.

Orders

  • The appeal is upheld with costs, including costs for two counsel where employed.
  • The order of the court a quo is set aside and substituted with: The application is dismissed with costs.