TR v ZDR and Others (GP) (unreported case no 93454/2015, 20-12-2024) (Ramlal AJ)Settlement agreements in divorce proceedings are a welcome alternative to concluding matters in the courts. Instead of stretching out legal processes by trial, settlements have forced parties and legal practitioners alike to participate in the much-needed mediation processes, which saves time and costs especially for sensitive matters, such as divorces. However, dissatisfaction with the consented obligations does not give rise to the dismissal of such agreements.
The Gauteng Division of the High Court in Pretoria recently dismissed an appeal by an ex-wife to rescind a divorce order granted by the court wherein a settlement agreement was made an order of court in TR v ZDR. The application was based on a settlement agreement dated 1 February 2015, which was made an order of court on 9 March 2016 (para 9.1). The applicant was married to the first respondent out of community of property with the exclusion of the accrual system on 19 June 2012 (para 3). Among other terms, clause 7 of the settlement agreement provided that the first respondent would provide housing for the applicant in a security complex while the minor child was residing with her, subject to the condition that this obligation would cease if the applicant remarried or entered into a cohabitation relationship (para 3).
The first respondent complied with this term of the agreement and purchased immovable property for the applicant through the Family Trust on 10 February 2017 and the applicant occupied the property per the terms of the agreement. However, the applicant breached the terms of the agreement by remarrying and/or entering into a cohabitation relationship, from which a minor child was born (para 5). The first respondent and the Family Trust became aware of this in October 2020 and informed the applicant that the first respondent’s obligation under the agreement had lapsed. The applicant was given notice to vacate and eviction proceedings were instituted on 26 January 2021.
The applicant, thereafter, brought the appeal seeking relief from the court, inter alia that the –
The application was dismissed with costs and the applicant, being of the view, that the court erred in the dismissal of the rescission application, based among others, on gender discrimination and mischaracterisation of freedom of contract. The leave to appeal was dismissed with costs with the court confirming that there was no misrepresentation, undue influence and/or duress that induced the applicant to conclude the settlement agreement.
The facts of this matter highlight a key issue in settlement agreements in that they are still a binding and enforceable contract, and parties cannot negate the legal consequences of their agreements after the settlement is made an order of court. Dissatisfaction with the legal consequences does not create sufficient grounds for review. A similar precedent was set in a matter concerning the variation of a settlement agreement in MB v RB (SCA) (unreported case no 259/2023, 24-7-2024) (Nicholls, Mothle and Molefe JJA and Dawood and Mbhele AJJA) where it was emphasised that dissatisfaction or unilateral error are not sufficient grounds for the variation of a settlement agreement, which was made an order of court.
It must also be borne in mind that when presented with signed settlement agreements, the courts presume consensus between the parties in that they were aware of the contents of the agreement as well as the consequences thereof. The principle of pacta sunt servanda plays a huge role in the exercise of the court’s discretion in making settlement agreements orders of court. It also expected the signatories to settlements to honour their contractual obligations as the court in Barkhuizen v Napier 2007 (5) SA 323 (CC) reminds us. In some regional courts, the presiding officers may also require the parties, prior to granting the divorce order, to confirm the contents of the agreement, that they understand the consequences and confirm their signatures thereto.
In this matter, the applicant brought the application for rescission of the settlement agreement after she breached its terms and was dissatisfied with the legal consequences, by the first respondent exercising his rights in terms of the agreement. The court was correct in refusing to rescind the divorce order, as this would have encouraged similar contracting parties to disregard settlement terms simply due to a change in circumstances. The facts of this case, serve as a reminder to divorcing parties and legal practitioners alike to ensure that the terms of a settlement agreement and legal consequences thereof, are fully understood before signing same.
Tshiamo Mogotshane BA Law LLB (UP) is a legal practitioner at Mashau-Naledzani Attorneys in Johannesburg.
This article was first published in De Rebus in 2025 (April) DR 34.
