Du Plessis v Du Plessis (1531/2010) [2010] ZAFSHC 46 (6 May 2010)

Du Plessis v Du Plessis (1531/2010) [2010] ZAFSHC 46 (6 May 2010)

The court finds that, on the papers before it, it cannot determine whether the settlement agreement was validly entered into and remains binding on the applicant. Both parties' conduct is inconsistent with a fully settled matter, as neither has consistently referred to the settlement in their pleadings. The applicant is granted leave under Rule 43(5) to file a further affidavit setting out the grounds on which she claims not to be bound by the settlement agreement, including her reasons for registering the agreement at the Sasolburg Magistrate's Court and when she decided she was no longer bound. The respondent is likewise granted leave to respond. The Rule 43 application is postponed...

Citation
[2010] ZAFSHC 46
Parties
Applicant: Roelien Du Plessis; Respondent: Petrus Johannes Du Plessis
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 May 2010
Case Number
1531/2010
Procedural Posture
Urgent Application / Rule 43 Application; Interlocutory Stage in Divorce Proceedings
Outcome
The Rule 43 application is postponed sine die. Both parties are granted leave to file further affidavits regarding the binding effect of the settlement agreement. Costs are reserved.
Judges
Kruger, R
Legal Topics
Rule 43 Interim Relief, Divorce Settlement Agreement, Binding Effect of Settlement, Affidavit Evidence
Family and Children Civil Procedure Rule 43 Interim Relief Divorce Settlement Agreement Binding Effect of Settlement Affidavit Evidence

Case Brief

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Parties

Roelien Du Plessis

Applicant

Petrus Johannes Du Plessis

Respondent

Procedural Posture

Urgent Application / Rule 43 Application; Interlocutory Stage in Divorce Proceedings

Legal Issues

  1. 1 Whether the divorce action between the parties was fully settled by the signed settlement agreement.
  2. 2 Whether the applicant is bound by the terms of the settlement agreement attached by the respondent.
  3. 3 Whether there is scope for a Rule 43 application in light of the alleged settlement.

Ratio Decidendi

The court finds that, on the papers before it, it cannot determine whether the settlement agreement was validly entered into and remains binding on the applicant. Both parties' conduct is inconsistent with a fully settled matter, as neither has consistently referred to the settlement in their pleadings. The applicant is granted leave under Rule 43(5) to file a further affidavit setting out the grounds on which she claims not to be bound by the settlement agreement, including her reasons for registering the agreement at the Sasolburg Magistrate's Court and when she decided she was no longer bound. The respondent is likewise granted leave to respond. The Rule 43 application is postponed...

Court Disposition

The Rule 43 application is postponed sine die. Both parties are granted leave to file further affidavits regarding the binding effect of the settlement agreement. Costs are reserved.

Orders

  • The Rule 43 application is postponed sine die.
  • The applicant is granted leave under Rule 43(5) to file a further affidavit setting out the grounds on which she claims not to be bound by the settlement agreement attached to the respondent's answering affidavit.