L.S.H v N.E.H (71371/2018) [2020] ZAGPPHC 710 (7 December 2020)

L.S.H v N.E.H (71371/2018) [2020] ZAGPPHC 710 (7 December 2020)

The objective facts demonstrate that both parties signed a second settlement agreement on 18 September 2019, which was intended to replace the first agreement dated 12 July 2019. The second agreement was prepared by the respondent's attorney at the applicant's request for amendments. The first agreement was erroneously made an order of court on 15 January 2020. The applicant's application for variation under Rule 42(1)(a) is not barred by res judicata, as it is based on a different cause of action—the erroneous granting of part of the order. The matter is not moot, as there is a live dispute regarding which agreement should have been made an order of court. The respondent's application to...

Citation
[2020] ZAGPPHC 710
Parties
Applicant: L.S.H; Respondent: N.E.H
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 December 2020
Case Number
71371/2018
Procedural Posture
Variation Application / Application to Vary Previous Divorce Order Under Rule 42(1)(a)
Outcome
Applicant's application to vary the divorce order is granted; respondent's application to strike out is dismissed with costs.
Judges
D S Fourie
Legal Topics
Variation of Court Order, Settlement Agreement, Rule 42, Divorce Proceedings
Family and Children Civil Procedure Variation of Court Order Settlement Agreement Rule 42 Divorce Proceedings

Case Brief

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Parties

L.S.H

Applicant

N.E.H

Respondent

Procedural Posture

Variation Application / Application to Vary Previous Divorce Order Under Rule 42(1)(a)

Legal Issues

  1. 1 Was the incorrect settlement agreement erroneously made an order of court on 15 January 2020?
  2. 2 Is the applicant entitled to a variation of the divorce order under Rule 42(1)(a)?
  3. 3 Are the respondent's points in limine of res judicata and mootness sustainable?

Ratio Decidendi

The objective facts demonstrate that both parties signed a second settlement agreement on 18 September 2019, which was intended to replace the first agreement dated 12 July 2019. The second agreement was prepared by the respondent's attorney at the applicant's request for amendments. The first agreement was erroneously made an order of court on 15 January 2020. The applicant's application for variation under Rule 42(1)(a) is not barred by res judicata, as it is based on a different cause of action—the erroneous granting of part of the order. The matter is not moot, as there is a live dispute regarding which agreement should have been made an order of court. The respondent's application to...

Court Disposition

Applicant's application to vary the divorce order is granted; respondent's application to strike out is dismissed with costs.

Orders

  • The respondent's application in terms of Rule 6(15) is dismissed with costs.
  • The applicant's application is granted: the court order dated 15 January 2020, case number 71371/2018, is varied by replacing the settlement agreement referred to in paragraph 2 of the order with the settlement agreement dated 18 September 2019 (annexure 'LSH1').