L.L v H.L (DIV210/2011) [2018] ZANWHC 29 (15 February 2018)

L.L v H.L (DIV210/2011) [2018] ZANWHC 29 (15 February 2018)

The court held that a settlement agreement made an order of court is final and enforceable unless rescinded or varied. The applicant did not seek rescission or variation of the order, and thus the order stands and must be complied with. The alleged repudiation by the respondent was not proven on the facts; her conduct demonstrated an intention to enforce the agreement and not to repudiate it. The requirements for an interim interdict were not met, as no prima facie case for termination of the agreement was established and the balance of convenience did not favour the applicant. The application to set aside the writ of execution and stay execution was dismissed, and costs were awarded to...

Citation
[2018] ZANWHC 29
Parties
Applicant: L L; Respondent: H L
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
15 February 2018
Case Number
DIV210/2011
Procedural Posture
Stay Application / Application to Set Aside Writ of Execution and Stay Execution of Court Order Pending Outcome of Action Regarding Status of Settlement Agreement
Outcome
Application dismissed with costs.
Judges
R D Hendricks
Legal Topics
Divorce Settlement, Specific Performance, Repudiation, Enforcement of Court Order
Family and Children Civil Procedure Divorce Settlement Specific Performance Repudiation Enforcement of Court Order

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Parties

L L

Applicant

H L

Respondent

Procedural Posture

Stay Application / Application to Set Aside Writ of Execution and Stay Execution of Court Order Pending Outcome of Action Regarding Status of Settlement Agreement

Legal Issues

  1. 1 Whether the terms of a deed of settlement made an order of court can be repudiated by a party after it is made an order of court.
  2. 2 Whether such repudiation can be accepted by the other party when the court order embodying the settlement agreement is not rescinded or varied.
  3. 3 Whether the applicant is entitled to an interim interdict staying execution of the court order pending further action.

Ratio Decidendi

The court held that a settlement agreement made an order of court is final and enforceable unless rescinded or varied. The applicant did not seek rescission or variation of the order, and thus the order stands and must be complied with. The alleged repudiation by the respondent was not proven on the facts; her conduct demonstrated an intention to enforce the agreement and not to repudiate it. The requirements for an interim interdict were not met, as no prima facie case for termination of the agreement was established and the balance of convenience did not favour the applicant. The application to set aside the writ of execution and stay execution was dismissed, and costs were awarded to...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs on a party and party scale.
  • Such costs to include the costs consequent upon the employment of two counsel (senior and junior).