Kaymak and Another v Ralushai (2016/21096) [2023] ZAGPJHC 60 (26 January 2023)

Kaymak and Another v Ralushai (2016/21096) [2023] ZAGPJHC 60 (26 January 2023)

The application to make the settlement agreement an order of court was dismissed because clause 21, which sought to prohibit defamation and derogatory statements by the respondent, was too vague and incapable of meaningful implementation. The clause did not specify the defamatory material to be interdicted, making it impossible for the court to evaluate or enforce. Defamation is a recognised delict and is actionable whether or not the agreement is made an order of court. The refusal of the application rendered the counter-application moot, as there were no grounds to declare the agreement or clause unlawful. The striking out application was also dismissed due to lack of substantiated...

Citation
[2023] ZAGPJHC 60
Parties
Applicant: Kaymak, Selim; Applicant: Caliskan, Semsettin; Respondent: Ralushai, Tshivhe
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
26 January 2023
Case Number
2016/21096
Procedural Posture
Civil Application / Application to Make Settlement Agreement an Order of Court; Counter Application to Declare Agreement or Clause Unlawful
Outcome
Application to make the settlement agreement an order of court dismissed; counter-application and striking out application dismissed; each party to pay own costs.
Judges
Moorcroft
Legal Topics
Rule 41 Settlement Agreements, Interdicts, Defamation, Vagueness of Orders
Civil Procedure Delict Rule 41 Settlement Agreements Interdicts Defamation Vagueness of Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Kaymak, Selim

Applicant

Caliskan, Semsettin

Applicant

Ralushai, Tshivhe

Respondent

Procedural Posture

Civil Application / Application to Make Settlement Agreement an Order of Court; Counter Application to Declare Agreement or Clause Unlawful

Legal Issues

  1. 1 Whether the settlement agreement, specifically clause 21, can be made an order of court under Rule 41(4).
  2. 2 Whether clause 21 of the agreement is sufficiently clear and enforceable to warrant court order.
  3. 3 Whether the counter-application to declare the agreement or clause unlawful should succeed.

Ratio Decidendi

The application to make the settlement agreement an order of court was dismissed because clause 21, which sought to prohibit defamation and derogatory statements by the respondent, was too vague and incapable of meaningful implementation. The clause did not specify the defamatory material to be interdicted, making it impossible for the court to evaluate or enforce. Defamation is a recognised delict and is actionable whether or not the agreement is made an order of court. The refusal of the application rendered the counter-application moot, as there were no grounds to declare the agreement or clause unlawful. The striking out application was also dismissed due to lack of substantiated...

Court Disposition

Application to make the settlement agreement an order of court dismissed; counter-application and striking out application dismissed; each party to pay own costs.

Orders

  • The application to make the settlement agreement an order of court is dismissed.
  • The counter-application is dismissed.