Khwela and Another v Dhlamini (AR 213/2013) [2013] ZAKZPHC 46 (23 September 2013)

Khwela and Another v Dhlamini (AR 213/2013) [2013] ZAKZPHC 46 (23 September 2013)

The court held that the only requirements for relief under Rule 27(9) are the prior recordal of a settlement agreement under Rule 27(6) and the failure of a party to comply with its stated conditions. The respondents’ sole defence—that the settlement agreement was not signed as required by Rule 27(8)—was irrelevant to the Rule 27(9) application, as the recordal had not been set aside and remained binding. The breach relied on by the applicant in paragraph 3 was not actionable, as it constituted an unenforceable pactum de contrahendo lacking statutory formalities and material terms. However, the respondents’ failure to vacate the property by 31 December 2011 was a clear breach of paragraph...

Citation
[2013] ZAKZPHC 46
Parties
Appellant: Fano Lucky Boy Khwela; Appellant: Zodwa Doreen Khwela; Respondent: Wellington Dhlamini
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
23 September 2013
Case Number
AR 213/2013
Procedural Posture
Civil Appeal / Appeal Against Two Judgments of the Durban Magistrates’ Court
Outcome
Appeal against the first judgment upheld in part; order amended to make only paragraphs 1, 2, and 4 of the settlement agreement orders of court. Appeal against the second judgment upheld; eviction order set aside and substituted with dismissal of the application and costs against the applicant. Respondents directed...
Judges
Gorven, Poyo-Dlwati
Legal Topics
Settlement Agreement, Magistrates Court Rules, Eviction, Prevention of Illegal Eviction Act, Compromise, Res Judicata
Civil Procedure Land and Property Settlement Agreement Magistrates Court Rules Eviction Prevention of Illegal Eviction Act Compromise Res Judicata

Case Brief

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Parties

Fano Lucky Boy Khwela

Appellant

Zodwa Doreen Khwela

Appellant

Wellington Dhlamini

Respondent

Procedural Posture

Civil Appeal / Appeal Against Two Judgments of the Durban Magistrates’ Court

Legal Issues

  1. 1 Whether the settlement agreement recorded in terms of Rule 27(6) of the Magistrates’ Court Rules was valid and enforceable.
  2. 2 Whether the failure to comply with paragraph 3 of the settlement agreement constituted an actionable breach.
  3. 3 Whether the respondents breached paragraph 1 of the settlement agreement by failing to vacate the property.

Ratio Decidendi

The court held that the only requirements for relief under Rule 27(9) are the prior recordal of a settlement agreement under Rule 27(6) and the failure of a party to comply with its stated conditions. The respondents’ sole defence—that the settlement agreement was not signed as required by Rule 27(8)—was irrelevant to the Rule 27(9) application, as the recordal had not been set aside and remained binding. The breach relied on by the applicant in paragraph 3 was not actionable, as it constituted an unenforceable pactum de contrahendo lacking statutory formalities and material terms. However, the respondents’ failure to vacate the property by 31 December 2011 was a clear breach of paragraph...

Court Disposition

Appeal against the first judgment upheld in part; order amended to make only paragraphs 1, 2, and 4 of the settlement agreement orders of court. Appeal against the second judgment upheld; eviction order set aside and substituted with dismissal of the application and costs against the applicant. Respondents directed...

Orders

  • Paragraphs 1, 2, and 4 of the settlement agreement recorded on 26 September 2011 are made orders of court.
  • The first and second respondents are to pay the costs of the Rule 27(9) application on the opposed scale, including costs of preparation.