Kairuz v Lewitton (29115/2013) [2014] ZAGPJHC 393 (12 December 2014)

Kairuz v Lewitton (29115/2013) [2014] ZAGPJHC 393 (12 December 2014)

The court found that clause 7 of the settlement agreement was clear and unambiguous, and that any alleged mistake was not mutual. The respondent failed to raise the issue of rectification for an unreasonable period after the divorce order and after the judgment of Makume J, which had already addressed the relevant clauses. The respondent's application for rectification was launched only two days before the contempt application, suggesting an attempt to frustrate the proceedings. The court held that the requirements for rectification were not met and refused the application. However, the court granted leave to file a further affidavit to address new issues raised in the applicant's...

Citation
[2014] ZAGPJHC 393
Parties
Applicant: Mary Therese Kairuz; Respondent: Derek Lewitton
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 December 2014
Case Number
29115/2013
Procedural Posture
Civil Application / Application for Rectification of Settlement Agreement and Leave to File Further Affidavit
Outcome
Application for rectification of clause 7 of the settlement agreement refused; leave to file further affidavit granted; costs awarded against the respondent.
Judges
N D Tshabalala
Legal Topics
Rectification of Settlement Agreement, Contempt of Court, Non Variation Clause, Costs Order
Civil Procedure Commercial and Corporate Rectification of Settlement Agreement Contempt of Court Non Variation Clause Costs Order

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Mary Therese Kairuz

Applicant

Derek Lewitton

Respondent

Procedural Posture

Civil Application / Application for Rectification of Settlement Agreement and Leave to File Further Affidavit

Legal Issues

  1. 1 Whether clause 7 of the settlement agreement should be rectified to reflect the alleged true intention of the parties.
  2. 2 Whether leave should be granted to file a further affidavit addressing new issues raised in the applicant's affidavits.
  3. 3 Who should bear the costs of the applications and postponement.

Ratio Decidendi

The court found that clause 7 of the settlement agreement was clear and unambiguous, and that any alleged mistake was not mutual. The respondent failed to raise the issue of rectification for an unreasonable period after the divorce order and after the judgment of Makume J, which had already addressed the relevant clauses. The respondent's application for rectification was launched only two days before the contempt application, suggesting an attempt to frustrate the proceedings. The court held that the requirements for rectification were not met and refused the application. However, the court granted leave to file a further affidavit to address new issues raised in the applicant's...

Court Disposition

Application for rectification of clause 7 of the settlement agreement refused; leave to file further affidavit granted; costs awarded against the respondent.

Orders

  • Leave to file the additional further affidavit is granted.
  • Leave to rectify clause 7 of the settlement agreement is refused.