REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 20466/2009
In the matter between:

and

SHOLTO-DOUGLAS, AJ

[1] This is an application for summary judgment. It concerns the computation of days referred to in a deed of settlement made an order of court.

[2] Between 19 June 2002 and February 2007 the defendant was employed by the plaintiff as a bookkeeper. It is alleged in the particulars of claim that between December 2002 and January 2007 the defendant misappropriated Rl 183 950,70 from the plaintiff. Relying on this indebtedness, the plaintiff commenced sequestration proceedings against the defendant and her husband. These proceedings were settled and the parties concluded a written settlement agreement, which was dated 18 April 2007.

[3] In terms of the settlement agreement the plaintiff agreed to accept payment of the sum of R600 000,00 in full and final settlement of its claim against the defendant on the basis, however, that in the event that the defendant breached the settlement agreement in any respect, the plaintiff would be entitled to recover all funds allegedly misappropriated by the defendant over and above the R600 000,00 referred to in the settlement agreement. Although no mention was made of this in the particulars of claim, it is apparent from the affidavit filed opposing the summary judgment sought by the plaintiff that the settlement agreement was made an order of court. This was accepted as common cause before me and the matter proceeded on that basis. The settlement agreement recorded that the parties intended to have their agreement made an order of court.

[5] As I have said, the date of signature was 18 April 2007. It is common cause that the undertaking referred to was furnished on 26 April 2007. This was more than seven calendar days after signature of the settlement agreement, but less than seven court days thereafter.

[6] What is to be determined in this matter is the method of computation of days that is appropriate in the circumstances. The defendant, who resisted the granting of summary judgment, contended that as the settlement agreement had been made an order of court, the time had to be computed in accordance with the rules of court. The plaintiff contended that the settlement agreement should be interpreted as referring to calendar days.

[9] In holding that the reference to the period of thirty days was a reference to calendar days, the court held as follows:

"It is to be noted that the Court order in the present case is that the agreement is made an order of Court. The view I take of the matter is that the period of 30 days was not fixed' by the order of court but agreed upon by the parties on 3 May 1978. The Court did no more than make that which the parties had agreed upon an order of Court. At common law the words 'within the period of 30 days' mean 30 calendar days. This meaning is also prescribed by s4 of the Interpretation Act 33 of1957... ".

[10] The court found that the time period referred to could reasonably mean either thirty court days or thirty calendar days. The provision was accordingly regarded as ambiguous and the matter referred for the hearing of evidence.

[12]   The court expressed itself as follows (at 100A-C):

"Given its essentially contractual nature and origins, and the fact that its provisions derive not from the will of the court but from the common intention of the parties, a judgment by consent should logically and sensibly be interpreted as a contract rather than as a judgment".

[16] I would not quibble with the general proposition that the interpretation of settlement agreements should be undertaken on the basis that they are, after all, agreements. In my view, however, when computing a period of time expressed in days either in a consent order or in a settlement agreement which has, by agreement between the parties, been made an order of court, it is neither illogical nor lacking in common sense to apply the definition of court day in rule 1 to that computation. Indeed, I find it difficult to escape the conclusion that that is precisely what the court rule requires. While it is obviously correct to say that the parties have agreed to the terms of their settlement agreement, once it becomes an order of court, the definition of court days, where applicable, is imported into their agreement absent a contrary expression.

[18]   In the circumstances I order that the application for summary judgment is refused, costs to stand over for later determination.