UDGMENT

In the matter between:

and

Applicant further applied for an  order setting  aside,  or suspending the warrant of execution issued pursuant to the said clause, pending the outcome of the application for rectification.

	
[2] In terms of paragraph 4 of the consent paper the applicant agreed to make payment to the first respondent in the sum of R8 200 000 as follows;
4.1.1.	By payment of the sum of R300 000 (Three Hundred Thousand) by 30 September 2006, directly to the plaintiff's attorney of record, Baumann, Gilfillan Incorporated;
4.1.2.	By payment to the plaintiff of the sum of Rlmillion, by no later than 30 September 2006, directly into such bank account as nominated by the plaintiff;
4.1.3.	By payment of Rlmillion upon the registration of Transfer   of   ownership   of  the   Franskraal   property (referred to in paragraph 4.5.1  of the deed) in the event that the property is sold or by no later than 31 January 2007, whichever occurred first;
4.1.4.	By payment of the sum of R5 900 000 upon the date upon which the Gabriel Rossouw Trust effects transfer of ownership of the farm Morgenzon to the purchaser or by 1 August 2007, whichever occurs first;"

[3] It is common cause that the applicant met his obligations in terms of clause 4.1.1, 4.1.2, 4.1.3 only. Though, I must add, that the first respondent alleged that the amount in 4.1.3 was only paid on 13 March 2007 and not on 1 January 2007 as was provided for in the consent paper. She further sought interest on the Rlmillion at the rate of 15.5% for the period 1 February 2007 to 13 March 2007 in an amount of R17 410,96.

[4] It was further not in dispute that the amount of R5 900 000, as provided for in clause 4.1.4 had not been paid. First respondent sought interest on the amount aforesaid for the period 2 August 2007 to 28 August 2007 in the sum of R67 467,95.

[5] In terms of clause 3 of the consent paper applicant agreed, and undertook to contribute to first respondent maintenance as follows;

3.1.3        In the event that first defendant has for any reason not complied with his obligations in terms of paragraph 4.1.3 and 4.1.4 of the consent paper by 1 September 2007, the maintenance payable by him in terms of paragraph 3.1.1 and 3.1.2 above shall increase in accordance with the percentage increase in the Consumer Price Index as determined by the Director of Statistics for the middle income group during the preceding year calculated for the period 30 June 2007 and thereafter shall increase annually on 1 September of each succeeding year on the aforesaid basis for 12 months period ending 30 June of the year.

[6] On 31 August 2007 first respondent took out a warrant of execution against the applicant for the sum of R5 985 058,91, which amount she detailed in the affidavit as follows; R5 900 000 plus R17 410,96, being interest due on the amount of Rlmillion, which was due and payable on 31 January 2007 plus R67 467,95 being interest due on the amount of R5 900 000 from 2 August to 28 August 2007.

The applicant accordingly claimed rectification of paragraph 4.1.4 of the consent paper by deleting the words "by 1 August 2007 whichever occurs first" and by substituting then with the words "within a reasonable time". Applicant maintained that the Court should exercise its discretion to suspend the warrant as first respondent does not run any real risk of not getting her capital amount. She may run such a risk if the applicant's moveables are sold in execution and his only source of income, being the farming operations, are disrupted.
	
It was further submitted that even if the warrant was executed first respondent would receive a fraction of the capital amount owed to her, whilst severely crippling the applicant's earning ability, and ability to pay the monthly maintenance for the first respondent and their minor child. Applicant had taken steps to sell his farm properties to pay his debts but was hampered by external economic factors. As at the date of the argument he had already concluded a deed of sale for Morgenzon for R3.5million and also Langkloof and Franskraal, which would cover a major part of the first respondents remaining indebtedness. He even went an extra mile by disposing of the trust shares in order to meet his obligation towards the first respondent. He had also tried to secure mortgage bonds over his property, but unfortunately did not succeed due to the National Credit Act. Applicant further asked that the issue of rectification be referred for oral evidence.

[8] First respondent premises her claim on the ground that applicant successfully raised a bond over Franskraal in an amount of Rlmillion and sold Morgenzon farm for R3.5million and did not make payments to her, which was not the case.  In the alternative first respondent claimed that more than six months, a date which applicant contended, was reasonable, had elapsed since the date of the application. According to her, even on applicant's own version, the payment was due. She further contended that she would never have agreed to an indefinite period of time for the sale of Morgenzon without making provision for the payment of interest on the sum of R5.9million.

Furthermore, at a glance, clause 4.1.4 of the deed of settlement does not seem to be meticulously worded. The first respondent's claim for interest in respect of the amounts owing is clouded with uncertainty if one has regard to clauses 3.1.1 and 3.1.2 of the consent paper.

[11] The court makes the following order:
11.1	
11.2	
11.3	The costs incurred in the application up to this stage are reserved for decision by the Court deciding the application.
NGEWU, AJ