How To Enforce A Settlement Agreement In South Africa

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A technical problem arises in the legislation that transforms an IMSA into an arbitral award (usually through the appointment of an arbitrator confirming the IMSA). Most commentators agree that the New York Convention requires that there be a dispute at the time of appointment; Therefore, if an arbitrator is appointed after the settlement, the converted IMSA will likely not be enforceable as an arbitral award under the New York Convention. [31] The third implication concerns the existence of a tacit waiver of a party`s right to request an amendment to an agreement with respect to its property rights, in the provisions of Section 7(1) in conjunction with Section 8(1) of the Divorce Act. The reason for this is that section 8 of the Divorce Act provides for the amendment of a maintenance order, but not an order that deals with an allocation of the property of the parties. This means that the Court is excluded from the order to modify a transaction concerning the parties` assets and that, unless otherwise agreed, the parties may apply for such an injunction.67 This is consistent with the policy underlying the notion of “own breakdown” or a “one-off” regime of the consequences of the ownership of a divorce. with the aim of bringing a definitive character to all the questions that arise from it, which allows the parties to “turn the page of the past and begin a new life that is not overshadowed by the broken relationship”. 68 It is also consistent with Article 7(1). 3 of that law authorizing the court granting a divorce for a marriage outside the community of property to order, “in the absence of agreement between them on the division of their property”, that the property that the court considers fair be transferred to one of the parties. As in Article 7(1), in conjunction with Article 8(1), the wording of that section reflects a deliberate decision by the legislature to respect the contractual freedom of the parties in divorce proceedings with regard to their property rights. Where an IMSA can be transformed into a judgment, this method encounters the same difficulties of enforcement by parties outside the court of origin.

[6] The action then continued without an opposing candidate. During the hearing and after receiving the evidence from the first applicant, the Tribunal issued a divorce decision accompanied by decisions within the meaning of paragraphs 2 and 3 of the claims. In the statement of reasons for the application for leave to appeal, the General Court justified its refusal to include the provisions of the settlement agreement in its order by the fact that it followed the principle set out in Thutha v Thutha3 (Thutha), in which the General Court, in essence, opposes the practice of the various courts of that division to conclude settlement agreements or to include them in the judgment or order of the General Court; He surrendered. The Tribunal gave the applicants the opportunity to appeal the limited issue of the accuracy of Thutha and “whether, in that decision, the guidelines on the date on which a settlement agreement is to be made to a court order constitute or not a proper exercise of discretion and should be followed in that division”. 4 In order to avoid this problem, parties considering mediation should first initiate arbitration proceedings under which they can immediately stay arbitration in favour of mediation. . . .