Thomas v Thomas (15322/2010) [2012] ZAKZDHC 73 (12 November 2012)

Thomas v Thomas (15322/2010) [2012] ZAKZDHC 73 (12 November 2012)

The court found that the proposed amendment to include investigative costs as an implied or tacit term of the written settlement agreement would render the pleadings excipiable. The written agreement contained a non-variation clause, which prohibits any variation unless reduced to writing and signed by both parties. The applicant's attempt to introduce a new term by way of amendment conflicts with this clause and is not permissible under South African contract law, as confirmed by the Shifren principle. Furthermore, the claim for investigative costs, in addition to the penalty already provided for in the agreement (entitlement to 75% of undisclosed assets), would contravene section 2 of...

Citation
[2012] ZAKZDHC 73
Parties
Plaintiff: Jill Cecilia Thomas; Defendant: Ian Trevor Llewellyn Thomas
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
12 November 2012
Case Number
15322/2010
Procedural Posture
Civil Application / Application for Amendment of Pleadings Under Rule 28
Outcome
Application for amendment dismissed with costs, including costs of senior counsel.
Judges
Steyn
Legal Topics
Amendment of Pleadings, Non Variation Clause, Conventional Penalties Act, Divorce Settlement Agreement
Civil Procedure Family and Children Amendment of Pleadings Non Variation Clause Conventional Penalties Act Divorce Settlement Agreement

Case Brief

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Parties

Jill Cecilia Thomas

Plaintiff

Ian Trevor Llewellyn Thomas

Defendant

Procedural Posture

Civil Application / Application for Amendment of Pleadings Under Rule 28

Legal Issues

  1. 1 Whether the proposed amendment to the pleadings would render them excipiable due to conflict with the non-variation clause in the written agreement.
  2. 2 Whether the inclusion of investigative costs constitutes a penalty or damages under the Conventional Penalties Act.
  3. 3 Whether the amendment would cause injustice or prejudice to the respondent.

Ratio Decidendi

The court found that the proposed amendment to include investigative costs as an implied or tacit term of the written settlement agreement would render the pleadings excipiable. The written agreement contained a non-variation clause, which prohibits any variation unless reduced to writing and signed by both parties. The applicant's attempt to introduce a new term by way of amendment conflicts with this clause and is not permissible under South African contract law, as confirmed by the Shifren principle. Furthermore, the claim for investigative costs, in addition to the penalty already provided for in the agreement (entitlement to 75% of undisclosed assets), would contravene section 2 of...

Court Disposition

Application for amendment dismissed with costs, including costs of senior counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs of senior counsel.