Taljaard v Mulder and Another (5267/2006) [2009] ZAFSHC 5 (29 January 2009)

Taljaard v Mulder and Another (5267/2006) [2009] ZAFSHC 5 (29 January 2009)

The court found the plaintiff and his witnesses credible and accepted their version that the payment of R200,000.00 was made by bank cheque in accordance with the settlement agreement. The absence of documentary proof was explained by the passage of time and loss of records, and the defendant failed to present any evidence to rebut the plaintiff's case. The court held that the probabilities favoured the plaintiff's version, and that the writ of execution was issued without proper basis. The burden of proof shifted to the defendant, who failed to discharge it. Consequently, the writ was set aside and the defendant was ordered to pay costs.

Citation
[2009] ZAFSHC 5
Parties
Plaintiff: Johannes Bernardus Taljaard; Defendant: Sharon Margaret Mulder; Defendant: Sheriff for the District Wesselsbron
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 January 2009
Case Number
5267/2006
Procedural Posture
Civil Trial / Final Judgment After Hearing of Evidence
Outcome
Plaintiff's claim upheld; writ of execution set aside; first defendant ordered to pay costs.
Judges
P.U. Fischer
Legal Topics
Execution of Judgments, Settlement Agreements, Burden of Proof, Divorce Orders
Civil Procedure Family and Children Execution of Judgments Settlement Agreements Burden of Proof Divorce Orders

Case Brief

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Parties

Johannes Bernardus Taljaard

Plaintiff

Sharon Margaret Mulder

Defendant

Sheriff for the District Wesselsbron

Defendant

Procedural Posture

Civil Trial / Final Judgment After Hearing of Evidence

Legal Issues

  1. 1 Whether the plaintiff paid the outstanding balance of R200,000.00 to the first defendant as required by the settlement agreement.
  2. 2 Whether the writ of execution issued against the plaintiff's movable property should be set aside.

Ratio Decidendi

The court found the plaintiff and his witnesses credible and accepted their version that the payment of R200,000.00 was made by bank cheque in accordance with the settlement agreement. The absence of documentary proof was explained by the passage of time and loss of records, and the defendant failed to present any evidence to rebut the plaintiff's case. The court held that the probabilities favoured the plaintiff's version, and that the writ of execution was issued without proper basis. The burden of proof shifted to the defendant, who failed to discharge it. Consequently, the writ was set aside and the defendant was ordered to pay costs.

Court Disposition

Plaintiff's claim upheld; writ of execution set aside; first defendant ordered to pay costs.

Orders

  • The writ of execution against movable property in case number 858/1995 dated 17 August 2006 and issued on 12 September 2006 is set aside.
  • The first defendant is ordered to pay the costs of this action, including the costs of the application under case number 4742/2006 as per the court order dated 23 November 2006.