A Pretoria woman who wanted to continue living with her new partner in a house which was bought and maintained by her ex-husband, lost her leave to appeal. File Photo
Image: File Photo
A Pretoria woman who wanted to continue living with her new partner in a house that was bought and maintained by her ex-husband, lost her leave to appeal.
The ex-husband divorced his then-wife in March 2016 after almost four years of marriage.
Before their divorce was finalised, they signed a settlement agreement stating that the ex-husband would find the ex-wife a house in a suitable security complex where she would live with their child.
It stated that the ex-husband would be responsible for the levies, insurance, security, and consumer account in respect of the property.
However, the ex-husband's condition was that if the ex-wife married or cohabited with another person, he would no longer provide housing to the ex-wife.
In February 2017, he complied with the settlement agreement and bought his ex-wife a house.
Sometime in October 2020, the ex-husband became aware that his ex-wife had remarried or was in a cohabitation relationship, and a child was born of that relationship.
Through his attorneys, he informed his ex-wife that he was no longer obliged to provide her with accommodation. She was then given notice to vacate the property by the end of November 2020, and if she failed, she would be evicted.
She replied through her attorney and said in the absence of a court order, she would continue to occupy the property.
They continued to communicate and the ex-wife refused to vacate the property. The ex-husband brought an eviction application against the ex-wife in January 2021. The application is yet to be heard.
While the eviction application was pending, the ex-wife sought relief in the North Gauteng High Court in Pretoria.
Amongst other things, she wanted the court to rescind and set aside the settlement agreement they entered into prior to the divorce.
She claimed the ex-husband was dishonest and wanted his fraudulent conduct referred to the National Prosecuting Authority of South Africa (NPA) for criminal prosecution.
She also targeted his profession and said she wanted him to be investigated by the Legal Practice Council (LPC) for any possible misconduct.
She further argued that the settlement agreement was induced by misrepresentation, dishonest conduct, and fraudulent conduct.
She said she was made to believe that her ex-husband was buying the house for her, and she signed the settlement agreement in the absence of an attorney, and she was under duress.
The high court dismissed her application saying she dismally failed to place sufficient, credible, and compelling evidence to substantiate her application, despite being ably represented by counsel of her choice.
She was also ordered to pay the cost of the application.
Disenchanted, she appealed the decision in the same court and said she was discriminated against because of her gender.
She added that the court’s discretion in awarding punitive costs was based upon a wrong principle.
Acting Judge A.K. Ramlal, who heard the first application and the appeal, said the reasons for the dismissal were clearly stated in the previous judgment and it was not necessary to repeat those reasons as they would unnecessarily lengthen an already repetitive and voluminous record.
Judge Ramlal said the reasons provided adequate motivation for the dismissal of the application and the resultant costs order.
The judge said apart from the non-compliance in the ex-wife's application, it was unlikely, that another court would not agree with the finding made by the court that when she signed the settlement agreement there was no misrepresentation, undue influence or duress.
"Upon a thorough reflection of the grounds cited in the application for leave to appeal, and in light of the reasons given in my judgment I am not persuaded that another court would arrive at a different decision," the judge said.
"I stand by the reasons for the costs order that was granted when the application was dismissed as they are fully detailed in the judgment."
The application for leave to appeal was dismissed with costs.
sinenhlanhla.masilela@iol.co.za
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