JUDGE(S): Jones and Chetty, JJ LEGAL REPRESENTATIVES – Appearances:
for the Applicant(s): Adv P.W.A. Scott
for the Respondent(s): Adv A. Beyleveld SC
Applicant(s): L. Pretorius @ Goldberg & De Villiers
Respondent(s): C. J Kerbel @ Cecil Kerbel Attorneys
CASE INFORMATION -
Nature of proceedings: Appeal
Key Words: Husband and Wife – Divorce – Unopposed - Southern Divorce Court granting order incorporating terms of consent paper – Wife applying for rescission on various grounds including misrepresentation – Application referred for hearing of oral evidence – Application dismissed – Appeal to High Court against refusal to grant rescission – Court of Appeal upholding lower court’s factual findings – Appeal allowed on basis that consent paper made reference to only one immovable property whereas in fact there were three- Consent paper ruled invalid – Husband instituting fresh action for divorce annexing same consent paper – Plea of res judicata raised – Plea upheld – Appeal to High Court on basis that order of court of appeal containing no reference to invalidity of consent paper – Appeal dismissed – Court order and reasons to be read conjunctively and not in isolation
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
CASE NO: CA 202/2009
In the matter between:
M A K Appellant
N F K Respondent
Coram: Jones and Chetty JJ
Date Heard: 5 February 2010
Date Delivered: 11 February 2010
Summary: Husband and Wife – Divorce – Unopposed - Southern Divorce Court granting order incorporating terms of consent paper – Wife applying for rescission on various grounds including misrepresentation – Application referred for hearing of oral evidence – Application dismissed – Appeal to High Court against refusal to grant rescission – Court of Appeal upholding lower court’s factual findings – Appeal allowed on basis that consent paper made reference to only one immovable property whereas in fact there were three- Consent paper ruled invalid – Husband instituting fresh action for divorce annexing same consent paper – Plea of res judicata raised – Plea upheld – Appeal to High Court on basis that order of court of appeal containing no reference to invalidity of consent paper – Appeal dismissed – Court order and reasons to be read conjunctively and not in isolation ________________________________________________________________
CHETTY, J  The appellant and respondent were married to each other in community of property on 22 August 1982. Desirous of terminating the relationship between them the appellant instituted an action for divorce in the Southern divorce court in Port Elizabeth wherein he sought a decree of divorce and ancillary relief including an order that a consent paper concluded between them be made an order of court. On 4 November 2003, a decree of divorce duly issued, custody of the minor children was awarded to the appellant, the respondent being granted access rights at all reasonable times and the deed of settlement was made an order of court pursuant to the provisions of s 7 (1) of the Divorce Act1which provides, inter alia, that a court granting a decree of divorce may, in accordance with a written agreement concluded between the parties concerning the division of their assets, make an order consonant therewith.  The consent paper is a fairly simple and innocuous document. One of its clauses has however ushered the parties through the portals of several courts including this court prior to this appeal hearing. The offending clause is clause 6 which under the rubric, Immovable Property, provides as follows –
“6. IMMOVABLE PROPERTY
6.1 It is recorded that the parties have an interest in the immovable property situate at 4 Ranunga Street, Kwa-Ford, Port Elizabeth, also known as Erf 3202 Kwa-Ford New Brighton. 6.2 The Defendant hereby consents to transfer her interest in the aforesaid property to Plaintiff and to sign any/all documents necessary to transfer the Defendant’s interest in the said property to the Plaintiff. 6.3 The transfer shall be attended to by Soni Incorporated Attorneys Notaries and Conveyancers of 50 PICKERING STREET, NEWTON PARK, PORT ELIZABETH.”  Whatever notion there may have been that the issue of a decree of divorce incorporating the terms of the deed of settlement concluded the litigation between the parties was soon dispelled. By notice of motion dated 13 February 2004, the respondent sought relief in the court below for rescission of the court order. In her founding affidavit she, inter alia, disputed the authenticity of her signature on the deed of settlement, denied having reached any agreement in the terms encapsulated therein but admitted having signed another consent paper, which she referred to as the original consent paper, under duress and without being aware of its true content. Those allegations were all denied by the appellant.  In her replying affidavit she once more reiterated and embellished her earlier allegations and for the first time alleged that she furthermore sought rescission of the court order on the basis that the appellant possessed other valuable assets including two immovable properties in Humansdorp.  The rescission application could not, given the serious dispute of fact which had arisen, be resolved on affidavit and the matter was referred for the hearing of oral evidence before the President of the court below. After the adduction of evidence which appears, from the record of the proceedings, to have endured for several days, judgment was reserved. In its judgment delivered shortly thereafter the trial court rejected the respondent’s version concerning the circumstances under which she signed the settlement agreement as false and dismissed the application with costs. The dismissal of the application engendered an appeal to this court, the gravamen of the respondent’s attack on the judgment of the Southern divorce court being that it’s factual findings were clearly wrong. This court, Froneman, J, (Leach, J, concurring) remained unpersuaded that the trial court’s assessment and evaluation of the evidence was wrong and that interference with its factual findings was warranted.  Notwithstanding its finding thereanent, this court upheld the appeal. It was, in my view, constrained to do so for juridically sound reasons. In a marriage in community of property all the assets and liabilities are merged in a joint estate, in which both spouses, irrespective of the value of their financial contributions, hold equal shares. However, the deed of settlement concluded between the parties made reference to only one immovable property viz. the matrimonial home at 4 Ranunga Street, New Brighton, Port Elizabeth whereas, as a matter of fact, the immovable properties in Humansdorp, on the appellant’s own admission during the oral hearing were registered in his name in the deeds office. Those assets as a matter of law were owned by the appellant and formed part of the joint estate of both spouses in equal undivided shares.  Froneman, J, thus correctly, in my view, held – “ Whatever the explanation for the registration only in the respondent’s name may be, it is common cause that the deed of settlement was signed by the appellant (and on his version, also by the respondent) in ignorance of the existence and registration in the respondent’s name of the two Humansdorp properties. The court order (incorporating the deed of settlement as part of the order) thus effectively precludes the appellant from pursuing whatever rights she may have in respect of those properties. For this reason, in my view, the original court order cannot be allowed to stand, and the rescission application should have been granted.  In Rowe v Rowe 1997 (4) SA 160 (SCA) it was held that a consent order in a divorce may be set aside where it was obtained by fraud. The same relief may follow upon a consent order being granted on the ground of reasonable mistake (Gollach & Gomperts v Universal Mills and Produce Co 1978 (1) SA 914 (AD) at 922 C-H). On the facts in this matter it is obvious that the deed of settlement is vitiated by the reasonable mistake that at least the appellant (and possibly both parties) laboured under, namely that there was only one piece of immovable property that formed part of the community of property, whilst in fact there were two more immovable properties.” This finding constituted the ratio of the judgment and was not a statement made in passing.  The appellant acquiesced in the judgment2. In her plea and in response to the claim that the parties had concluded a settlement agreement the respondent pleaded that it was declared “void” by order of this court. The appellant then amended his particulars of claim and in the alternative to the allegation that the parties had concluded a settlement agreement, alleged – “9. Alternatively, and in the event of this Honourable Court not giving effect to the consent paper entered into between the parties, the Plaintiff pleads that with regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof as set out in paragraph 7 above and the substantial misconduct on the part of the Defendant is set out in paragraph 7 above, the Defendant will be unduly benefitted vis-à-vis the Plaintiff if she is not ordered by this Honourable Court to forfeit the patrimonial benefits arising out of the marriage in community of property in terms of Section 9 (1) of the Divorce Act, No 70 of 1979, as amended.”
 In her consequential plea the respondent pleaded that “the issue as to whether or not the consent paper is valid and may be relied upon is no longer capable of determination and is res judicata”. At the ensuing trial, the parties requested the court to determine, as a preliminary matter, the aforementioned issue. The magistrate held that the issue raised had already been decided by this court and was in consequence res judicata. The issue in this appeal is whether the respondent’s plea was correctly upheld. The requisites for a plea of res judicata were stated as follows by Greenberg, J, in Boshoff v Union Government3 - “The civil authorities lay down two requirements for this plea, namely that the proceedings on which reliance is placed must be between the same parties and that the same question, edem quaestio, must arise. I need not refer to any other authority on that point than the case of Bertram v Wood (10 S.C. 180) where the then Chief Justice quotes a passage from Vinnis (4.13.5) which is to the effect that this exception only applies if there is the same question between the same persons”
See also African Towns and Townships Ltd v Cape Town Municipality4  It is not in issue that the parties are the same and that the order which the appellant sought in the initial action in 2003 viz. a decree of divorce incorporating the terms of a consent paper is not only the exact order sought in the fresh action instituted by him against the respondent in 2008 but that the consent paper is the same. Counsel for the appellant has however sought to persuade us that this court did not determine the validity or otherwise of the consent paper. He submitted that the validity of the consent paper was not the issue which the court of appeal was called upon to determine and that the court’s judgment clearly demonstrated that the question whether the immovable properties formed part of the joint estate was an issue to be resolved by the Southern divorce court. Ergo, so he argued, had the court of appeal “intended to issue a declaratory order relating to the validity or otherwise of the consent paper . . . such a declaratory order would have formed part of the order granted by such court”. Its omission from the court order, so he argued, vindicated his submission. In my view there is no substance in that argument. A judgment comprises both the underlying reasoning and the order, which Harms, JA, described in SA Eagle Versekeringsmaatskappy Bpk v Harford5 as the operative part of the judgment. It has to be read conjunctively. On the second leg of his argument Mr. Scott sought to persuade us that upon a proper interpretation of this court’s judgment, his submission was correct. I disagree. This court’s judgment is clear and unambiguous and the interpretation contended for self serving.  In Administrator, Cape, and Another v Ntshwaqela and Others6, the court was called upon to interpret the judgment of the court below. Nicholas, AJA, stated the following in regard to the interpretation of a judgment - In legal usage the word judgment has at least two meanings: a general meaning and a technical meaning. In the general sense it is the English equivalent of the American opinion, which is
' (t) he statement by a Judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based'.
( Black's Law Dictionary 5th ed sv opinion.) In its technical sense it is the equivalent of order . See Rule 42 of the Rules of Court, which deals with the rescission or variation of 'an order or judgment', and ss 20 and 21 of the Supreme Court Act 59 of 1959, which provide for appeals from a judgment or order. In Dickinson and Another v Fisher's Executors 1914 AD 424, it was explained at 427 that the distinction between a judgment and an order would probably be found to be this,
'... that the term judgment is used to describe a decision of a court of law upon relief claimed in an action, whilst by an order is understood a similar decision upon relief claimed not by action but by motion, petition or other machinery recognised in practice'.
When a judgment has been delivered in Court, whether in writing or orally, the Registrar draws up a formal order of Court which is embodied in a separate document signed by him. It is a copy of this which is served by the Sheriff. There can be an appeal only against thesubstantive order made by a Court, not against the reasons for judgment. See Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355. In Holland v Deysel 1970 (1) SA 90 (A) Wessels JA said at 93A - B:
'... (D)ie woorde "uitspraak", "bevel", "beslissing" en "vonnis" almal dui op die uitsluitsel wat 'n hof gee in verband met die bepaalde regshulp wat in gedingvoering deur 'n party aangevra is....'
The word judgment when used in the general sense comprises both the reasons for judgment and the judgment or order. Cf Holland v Deysel ( supra at 93E).
In Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) Trollip JA made some general observations about the rules for interpreting a Court's judgment or order. He said (at 304D - H) that the basic principles applicable to the construction of documents also apply to the construction of a Court's judgment or order: the Court's intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual well-known rules. As in the case of any document, the judgment or order and the Court's reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, in such a case not even the Court that gave the judgment or order can be asked to state what its subjective intention was in giving it. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the Court's granting the judgment or order may be investigated and regarded in order to clarify it.”
 In my view, Froneman, J’s, judgment is, upon a proper reading, clear and unambiguous. Although the appeal was directed at the refusal by the Southern divorce court to rescind the order for divorce on two main grounds the judgment was rescinded solely on the basis that the consent paper was vitiated by the reasonable mistake the parties laboured under. That conclusion rendered a specific order of invalidity tautologous given the form in which the application before the Southern divorce court was brought. The respondent’s plea of res judicata was thus properly raised and correctly upheld by the court below  In the result the following order will issue – The appeal is dismissed with costs.
JUDGE OF THE HIGH COURT
I agree. It is so ordered. _______________________
JUDGE OF THE HIGH COURT On behalf of the Appellant: Adv P.W.A Scott
Instructed by Goldberg & De Villiers
c/o N N Dullabh & Co
5 Bertram Street
Ref: L Pretorius
041-501 9800 On behalf of the Respondent: Adv A. Beyleveld SC
2 Although the appealability of the judgment was raised in argument before us, it is not necessary for purposes of this judgment to pronounce fully thereon, save to say that it prima facie is appealable.