Pretoria - The South Gauteng High Court in Johannesburg ruled that a former wife should not pay her ex-husband’s R416 300 rental after she found out that he has a house that he hid during their marriage.
The couple got divorced in July 2010 and a settlement agreement was reached providing for the ex-wife to pay for temporary rental accommodation for the ex-husband not exceeding an amount of R10 000 per month, inclusive of water and electricity, pending full division of the joint estate.
After discovering that her former partner had a house in Soweto, she brought a variation application in 2011, which the ex-husband did not oppose. After the application, they reached a different settlement in 2012.
However, in 2017, he brought an application against his ex-wife seeking to hold her in contempt of court for failure to comply with the initial settlement agreement and asking that she be ordered to pay him the sum of R416 300, which was for temporary accommodation.
In 2019, the ex-wife was ordered to pay her ex-husband R416 300 with further rentals at the rate of R7 300 per month from May 1, 2016 to the last day of the month when the joint estate was finally distributed.
She appealed against the decision, saying the court was wrong to order her to make payment in terms of the settlement agreement, because they had agreed during litigation (in the 2012 settlement) that the relevant term of the agreement would not be enforced.
During the appeal, Judge Francis J found that the previous court had rejected the ex-wife’s version despite the ex-husband not providing replying affidavits relating to the agreement reached in 2012 after it was discovered that he has a house.
In addition, Judge Francis said the previous court should have found that the dispute had been settled in 2011 after she had launched the variation application. For Judge Francis, the husband’s application demanding rental money should have been dismissed.
Judge Francis also said it was telling that the ex-husband waited until 2017 to launch the contempt of court application.
“It is also telling that he had decided not to refer to the variation application in the founding affidavit and the settlement that was reached between the parties. It is further telling that he had not filed a replying affidavit.”
Judge Francis said the previous court erred in its decision when it said the ex-wife did not pursue the variation application whereas after the application the two parties reached a settlement.
“If a party brings a variation application which results in a settlement of the dispute I simply do not understand why that party should still pursue the variation application.”
Francis granted the appeal with costs to be paid by the ex-husband, saying the previous court erred in granting the 2019 order in favour of the ex- husband.