THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 343/2019

In the matter between:

LOMON MARÈ                                                                                 FIRST APPELLANT
HESTER ALETTA PAULINA MARÈ NO                                     SECOND APPELLANT
PP MARÈ (HOËVELD) BOERDERY (PTY) LTD                            THIRD APPELLANT

and

TRUDIE MARÈ                                                                                             RESPONDENT

Neutral citation:
Lomon Marè and Others v Trudie Marè (343/2019) [2020]
ZASCA 43 (21 April 2020)
Coram:
CACHALIA, WALLIS, SALDULKER, VAN DER MERWE AND
MAKGOKA JJA
Heard:

2 March 2020
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down
is deemed to be 10h00 on 21 April 2020.

Summary:   Contract – interpretation – undertaking to pay R5,5 million – provision that
payment be made from proceeds of sale of game – not condition for coming into
existence of obligation to make payment – failure of envisaged source of payment – no
effect on obligation to pay – payment due within reasonable time after failure.

_____________________________________________________________________

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Louw J sitting as court
of first instance):
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

Van der Merwe JA (Cachalia, Wallis, Saldulker and Makgoka JJA concurring)
[1] The first appellant, Mr Lomon Marè, and the respondent, Ms Trudie Marè, were
married to each other. Their marriage relationship broke down and the respondent
instituted an action in the Gauteng Division of the High Court, Pretoria, for an order of
divorce and ancillary relief. The second appellant, Ms Hester Aletta Paulina Marè, in
her representative capacity as the executrix of the estate of the first appellant’s late
father, and the third appellant, PP Marè (Hoëveld) Boerdery (Pty) Ltd, were
subsequently joined as the second and third defendants in the divorce action. The
parties to the action entered into a written settlement agreement, which was made an
order of the court, in terms whereof an amount of R5,5 million was payable to the
respondent on a basis, the failure of which has led to the present litigation. Payment
was not forthcoming and the respondent launched an application against the appellants
to enforce the settlement agreement. Louw J granted the application and refused leave
to appeal. In terms that I shall return to, this court granted limited leave to appeal to the
appellants.

[2] The first appellant and the respondent were married on 28 February 1997. Their
marriage was out of community of property, but subject to the accrual system specified
in Chapter 1 of the Matrimonial Property Act 88 of 1984. Two children were born of the
marriage. On 30 June 2010, the high court made an order in terms of the provisions of
Uniform rule 43. It awarded the primary care of the minor children to the respondent
and circumscribed the first appellant’s rights of access to them. It ordered the first

appellant to pay maintenance pendente lite to the respondent in the amount of R13 500
per month and for the minor children in the amount of R7 500 per child per month.

[3] The divorce action eventually proceeded to trial. The joinder of the second and
third appellants was effected during the trial. The second appellant, the mother of the
first appellant, also represented the third appellant. The basis of the joinder, so we were
informed from the bar by both counsel, was the respondent’s assertion that assets
nominally held by the second and third appellants, should, for purposes of her claims in
respect of the financial consequences of the dissolution of the marriage, be regarded
as the assets of the first appellant. The respondent thus laid claim to assets held by the
second and third appellants.

[4] It is against this background that the parties reached a settlement. The
settlement agreement was concluded on 18 January 2017. It recorded that the first
appellant and the respondent consented to a decree of divorce. The parties agreed that
the existing order in respect of the primary care, access to and maintenance of the
minor children would remain in force. It provided that the first appellant would pay
maintenance to the respondent until 31 December 2016, whereafter this obligation
would irrevocably come to an end.

[5] Clause 2 of the settlement agreement provided as follows:
‘The First, Second and Third Defendants pay, in full and final settlement of any and/or all claims
that the Plaintiff has and/or had, an amount of R5,5 million to the Plaintiff, which amount is
payable as follows:
2.1  The Plaintiff selects in cooperation with Messrs Dirk Maree, Killie Williams, Giep Stander
and Poon du Plessis, a parcel of game, consisting of sable antelope and buffalo which are kept
on the farm situated at Gravalotte, to the value of R5,5 million; and
2.2  Mr Killie Williams pays within a reasonable and fair period of time after the game, as referred
to in paragraph 2.1 above, were removed and/or moved from the farm situated at Gravalotte,
the amount of R5,5 million to the Plaintiff.’ (My translation.)1

1 ‘2.  Die Eerste-, Tweede- en Derde Verweerders betaal, in volle en finale vereffening van enige en/of
alle eise wat die Eiseres het en/of gehad het, ‘n bedrag van R5,5 miljoen aan die Eiseres, welke bedrag
soos volg betaalbaar is:
2.1  Die Eiseres kies in samewerking met Mnre Dirk Maree, Killie Williams, Giep Stander en Poon du
Plessis, ‘n pakket wild, bestaande uit swartwit-pense en/of buffels wat op die plaas geleë te Gravalotte
gehuisves word, ter waarde van R5,5 miljoen; en

[6] On 28 February 2017, after exactly 20 years of marriage, a decree of divorce
was issued and the settlement agreement made an order of the court. By November
2017, however, the respondent had not received payment of the amount of R5,5 million
and she instituted the application in the court a quo. She explained that sub-clauses 2.1
and 2.2 of the settlement agreement did not materialise, because Mr Williams and the
appellants, represented by the first appellant, had been unable to reach agreement on
the prices for the game in question. Mr Williams was of the view that the prices proposed
by the appellants were unrealistic and not market related and he therefore resolved not
to purchase the game. The respondent said that as a result, and because she no longer
received payment of maintenance, she had no income, found herself in dire financial
straits and had no option but to approach the court for an order obliging the appellants
to make payment of the amount of R5,5 million.

[7] The appellants elected not to file answering affidavits, but to raise questions of
law in terms of Uniform rule 6(5)(d)(iii). In formulating the questions, the appellants
stated that clause 2 of the settlement agreement provided for a specific method of
payment, namely that set out in sub-clauses 2.1 and 2.2. They proceeded to say that
the relief sought by the respondent was not in consonance with the provisions of the
settlement agreement and that the respondent therefore failed to establish any basis
upon which the appellants might be ordered to pay the amount of R5,5 million to the
respondent. After this the notice went further and alleged that ‘furthermore’ the failure
of the payment provisions amounted to supervening impossibility and that it rendered
the settlement agreement void.

[8] The court a quo determined the matter in favour of the respondent. It said that
the case brought before it was not about impossibility of performance but of the non-
compliance with the appellants’ contractual undertaking that the third party would render
performance to the respondent. It had regard to, inter alia, Voet 45 1 5 (P Gane’s
translation) and G B Bradfield Christie’s Law of Contract in South Africa 7 ed (2016) at
471 and concluded:
‘It therefore seems clear that the position in our law is that when a party contracts with another
that a third party will perform the obligation of the party who undertook the obligation, the party

2.2 Meneer Killie Williams betaal binne ‘n redelike en billike tydperk nadat die wild, soos na verwys in
paragraaf 2.1 hierbo, van die plaas geleë te Gravalotte verwyder en/of geskuif is die bedrag van R5,5
miljoen aan die Eiseres.’

who undertook the obligation will become liable to perform if the third party does not. In terms
of clause 2 of the settlement agreement, the respondents incurred the obligation to pay the
applicant the sum of R5,5 million. In light of the refusal by Mr Williams to give effect to clause 2
and to pay the said amount to the applicant, the respondents have become liable to make the
payment.’
It proceeded to hold that there was no basis for joint and several liability and ordered
the appellants to jointly make payment of R5,5 million to the respondent.

[9] As I have said, the court a quo refused leave to appeal, but this court granted
leave to appeal, limited to the following issue:
‘Whether clause 2 of the settlement agreement provided for payment out of a fund the coming
into existence and sufficiency of which was a pre-requisite to the obligation to make payment
(Van den Berg v Tenner 1975 (2) SA 268 (A) at 275G-H).’ (the issue)
This limitation caused the issues of impossibility of performance and resultant voidness
of the settlement agreement to fall away.

[10] The issue requires consideration of whether, as a matter of interpretation of the
settlement agreement, the coming into existence or continuation of the obligation to pay
R5,5 million to the respondent, was conditional upon compliance with sub-clauses 2.1
and 2.2 and, if not, of the effect of the failure of the intended method of payment.

[11] It is convenient, at this juncture, to analyse the decision in Van den Berg v Tenner
1975 (2) SA 268 (A). There the plaintiff had paid the amount of R10 000 to the defendant
in terms of a sale agreement that was subsequently cancelled by agreement between
them. The cancellation agreement provided that the defendant would repay the sum of
R10 000 to the plaintiff from the proceeds of the sale of the business of a company
controlled by the defendant and upon registration of transfer of immovable property that
he had sold. Its terms were that the sum of R10 000  ‘… shall be provided from the sale
… and … shall be paid … on date of finalisation of such sale and registration of transfer
of the property … .’  Both these agreements were, however, cancelled as a result of the
failure of the respective purchasers to comply with their obligations. When the plaintiff
sued the defendant for payment of the sum of R10 000, the defendant argued that these
provisions of the cancellation agreement had to be interpreted as suspensive
conditions. As they had not been fulfilled, so the argument went, the cancellation
agreement and the obligation to repay the sum of R10 000 did not come into existence.

[12] This court rejected this argument. It held that, on a proper construction of the
cancellation agreement, the obligation to repay was unconditional. It held that the only
effect of the provisions in respect of the source, manner and time of payment had been
to postpone compliance with the obligation to repay until after finalisation of the
transactions in question, or until it became clear that they would not take place. Thus,
so Botha JA said for the court, it was not a case where parties had agreed that payment
would exclusively be made out of a specific fund, and where the obligation to pay was
subject to the coming into existence and sufficiency of the designated fund.

[13] The decision of Gowan v Bowern 1924 AD 550 constitutes an example of the
latter type of case. Mr Gowan mandated Mr Bowern to sell his ship for commission.
As a result of the efforts of Mr Bowern, the ship was sold to Mr Nemazee for £140 000.
Mr Bowern claimed commission and the issue was what the terms of the contract
between Mr Gowan and Mr Bowern were. Wessels JA determined the issue by
ascribing the following to Mr Gowan (at 570):
‘I am willing that you should act as my agent to sell my ship and you can make out of it whatever
you can get provided I get £120 000. As you have got £140 000, I shall transmit to you £20 000
when I get the second instalment. I am quite willing to hide from Nemazee the fact that you are
getting £20 000, and will pretend that the whole £140 000 comes to me. I am also willing to
consider the second instalment as an instalment due to me, plus the £20 000 you are to get out
of the business and this latter amount I will send to you if, and when, I get it.’

[14] As Mr Nemazee never paid the second instalment, the claim had to fail.
De Villiers JA put the matter as follows (at 565):
‘If Bowern had been satisfied with the ordinary commission payable by the seller, he would have
been entitled to it when the contract with Nemazee was concluded, and the subsequent fate of
the contract would have been a matter of indifference to him. But he chose to make a special
contract under which he was to obtain a portion of the purchase price thereby linking up his
claim with the fate of the contract of sale, with the result that when the principal contract was
cancelled by the parties his claim of necessity, in the absence of an expressed provision to the
contrary, went with it.’

[15] It is trite that the interpretation of the settlement agreement entails giving
meaning to the words used in the context in which they were used, including the
apparent purpose of the agreement. As to the context, the first appellant and the

respondent were married for 20 years under the accrual system. There is no suggestion
of any dispute that the respondent was entitled to be paid something under the accrual
system. The evidence, as supplemented by the information about the course of the
proceedings described above in para 3, shows that the disputes related to the
identification of the assets that were to be taken into account in determining the claim
and ascribing a monetary value thereto. The purpose of the settlement agreement
included the final determination of the financial consequences of the dissolution of this
marriage and the claims to the assets of the second and third appellants. It did not
provide for payment of maintenance to the respondent after the divorce. Her evidence
that she was financially entirely dependent on the payment of the sum of R5,5 million
was not disputed. In this context, the settlement agreement contained a clear
recognition of the family law rights of the respondent to a financial award. Therefore, it
is highly improbable that the parties could have intended that the respondent’s right to
payment would be entirely dependent on whether Mr Williams would purchase the
game or not.

[16] The language of clause 2 also points to an unconditional obligation to pay. It will
be recalled that it provided that the appellants ‘pay, in full and final settlement of any
and/or all claims that the Plaintiff has and/or had, an amount of R5,5 million to the
Plaintiff, which amount is payable as follows …’. The existence of the obligation was
not in any terms subjected to an occurrence or event; and sub-clauses 2.1 and 2.2 were
not couched in the conventional language of conditions for the coming into existence of
the obligation. In the light of what I have said, clear wording to that effect would have
been required. And the obligation to ‘pay in full and final settlement’ strongly indicated
that the obligation would continue even if, contrary to the provision ‘which amount is
payable as follows’ that prefaced sub-clauses 2.1 and 2.2, payment by those means
would not be forthcoming. The latter expression is compatible with those clauses being
merely matters of manner and form rather than being fundamental to the obligation to
make payment and the context suggests that this was the case.  In the result, the failure
of the envisaged source of payment had no effect on the coming into existence or the
continued existence of their obligation to pay.

[17] The point of departure in Van den Berg was the common law right to repayment
of part of the purchase price following the cancellation of a sale. In this matter it was the

family law rights to a financial award following the dissolution of the marriage. It follows
that the matter is very different from Gowan and indistinguishable, in principle, from Van
den Berg.

[18] As to the effect of the impossibility of the agreed source, manner and time of
payment, Van den Berg provided two answers. In my view both are applicable here.
The first is that, as a result of the impossibility, the amount became payable within a
reasonable time after it had become evident that Mr Williams would not purchase the
game. See Van den Berg at 276B-F. I perceive this proposition to be founded on a
construction of the agreement and the application of the common law.

[19] Secondly, I entertain no doubt that had an officious bystander at the time of the
entering into the settlement agreement asked the parties ‘what would happen if
Mr Williams did not purchase the game?’, they would have answered that the appellants
would be obliged to make payment from another source within a reasonable time
thereafter. See Van den Berg at 276H-277C. In the circumstances, the respondent
could hardly be blamed for not pleading such a tacit term. And when, on the facts, such
a reasonable period had commenced, was not implicated by the issue.

[20] At best for the appellants, clause 2 is ambiguous. On this basis this court may
adopt an equitable construction of the settlement agreement. In Trustee, Estate
Cresswell & Durbach v Coetzee 1916 AD 14 at 19 Innes CJ said:
‘The expression therefore which occurs in paragraph 6 of this lease is capable of two
constructions, and if there is nothing in the context which points specially to one of them, it
would be proper to apply the meaning which would avoid a manifestly inequitable result.’
In Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA
451 (A) at 468G-H Corbett CJ similarly stated:
‘In a case such as this, where the meaning of the words used in the contract is not clear, there
is room for the rule of interpretation which puts an equitable construction on the contract and
does not adopt a meaning which gives one party an unfair or unreasonable advantage over the
other ...’
Corbett CJ inter alia referred to Wessels’ Law of Contract in South Africa 2 ed by
A A Roberts (1951) § 1974 to1977. At § 1977 the esteemed author said:
‘The Courts ought not to assume that the one party intended to get an unfair or unreasonable
advantage over the other, but should presume the contrary. Hence, if the language of the

promisor may be understood in more senses than one, the Court will interpret it in that sense
in which the promisor at the moment the contract was concluded knew, or had good reason to
believe, that the other party understood his words.’
In South African Forestry Co Ltd v York Timbers Ltd [2004] ZASCA 72; 2005 (3) SA 323
(SCA) para 32, Brand JA formulated this principle as follows:
‘While a court is not entitled to superimpose on the clearly expressed intention of the parties its
notion of fairness, the position is different when a contract is ambiguous. In such a case, the
principle that all contracts are governed by good faith is applied and the intention of the parties
is determined on the basis that they negotiated with one another in good faith.’
See also Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA
13; 2012 (4) SA 593 (SCA) para 26 and Bradfield 256-257.

[21] On the interpretation raised by the issue, the respondent would simply have to
walk away with nothing. This would be a most inequitable result, as counsel for the
appellants readily conceded. His attempt to soften this impact by saying that should the
appeal succeed, the divorce action would proceed as if it was not settled, is untenable.
The issue raised the interpretation of the settlement agreement and not the existence
thereof. On this basis, too, the issue must be answered in the negative.

[22] In the result I make the following order:
The appeal is dismissed with costs, including the costs of two counsel.

________________________
C H G VAN DER MERWE
JUDGE OF APPEAL

APPEARANCES

For appellants:

M C Erasmus SC
Instructed by:

Thys Cronje Inc., Pretoria

Van der Merwe & Sorour, Bloemfontein

For respondent:

F W Botes SC, with him J Janse van Rensburg
Instructed by:

Rorich, Wolmarans & Luderitz Inc., Pretoria

Pieter Skein Attorneys, Bloemfontein