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Amendment of an Intendit

Variation of a divorce settlement agreement in terms of the Uniform Rules of Court - Thomas v Thomas (15322/2010) [2012] ZAKZDHC 73.

The case of Thomas v Thomas (15322/2010) [2012] ZAKZDHC 73 (12 November 2012) involved the application for the amendment of an Intendit in terms of Rule 28 of the Uniform Rules of Court. The Plaintiff and the Defendant in this case were divorced on 23 October 2002. They had entered into a settlement agreement prior to the divorce. 

In this application on 24 October 2012, the Plaintiff applied to have clauses inserted in the settlement agreement that:

The Defendant opposed this application on the basis that there was a “No Variation” clause in the agreement, and that it also offends the Conventional Penalties Act No. 15 of 1962. 

In terms of Rule 28 of the Uniform Rules of Court, a party can bring notice of intention to amend a document by giving the other party ten days notice to object. The Court has the discretion to allow the amendment or not. An amendment which would render a pleading excipiable should not be allowed. 

Clause 13.2 and 13.3 of the original settlement agreement reads as follows:

“13.2 If Jill is able to prove that Ian owned, as at date hereof, any assets not disclosed by him in Annexure “A” then Jill shall be entitled to an amount equal to 75% of such assets as at the date of divorce.
13.3 If Ian is able to prove that Jill owned, as at date hereof, any assets not disclosed by her in Annexure “B” then Ian shall be entitled to an amount equal to 75% of such assets, as at date of divorce.”

Judge Steyn in this case was of the view that he failed to see how the Applicant derives at the conclusion that clauses 13.2 and 13.3 do not constitute a penalty clause. The Respondent being liable to pay an amount equal to 75% of the discovered assets clearly amounts to the Respondent being penalized. 

The Court was of the view that to include “investigative costs” as proposed by the amendment would entitle the Applicant to both a penalty and damages and would be in conflict with Section 2 of the Act. The Judge was not persuaded that the proposed amendment was not excipiable or that it would not cause injustice to the Respondent. The application was dismissed with costs.


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