Asked by the Customer on 03-06-2019 08:34:14
Question posted in the Family Law category relating to Gauteng

We had an interim protection order which has subsequently been made a final protection order of the court, valid for 5 years. However the day before the hearing the parties agreed to a settlement, however the respondenct did not sign the settlement and someone else signed on his behalf and a power of attorney authorization was not attached to the settlement.  At court the magistrate did not agree to parts of the settlement and just said he would put the document in the file, the respondent or his attorney also did not arrive to court. The magistrate then awarded the final protection order, which we the complainant are happy with.  The final protection order has been served by the Police to the respondent.  Does this mean that the settlment agreement is no longer in place or valid? 

Posted by Att. Patrick on 04-06-2019 11:04:53

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Q: Does this mean that the settlment agreement is no longer in place or valid? -->

No, not really. I would say that the settlement agreement is in place and valid as between the parties. The settlement agreement contains all of the terms upon which the parties agreed to settle the dispute. And, the settlement agreement was signed by somebody with a power of attorney. The settlement agreement is therefore binding on the parties.

BUT, the settlement agreement has not been made an order of court.

That means that in the court's eyes the settlement agreement does not YET form part of a court order. It only binds the parties themselves.

If the parties wanted to enforce the terms of the settlement agreement, one of them would need to apply to court to have the settlement agreement made an order of court. This is unfortunately an additional hurdle.

But, I don't think that this is a problem. Not only do you have a settlement agreement which you can enforce, but you've also got the final protection order which the SAPS can enforce.

I hope that I've explained myself clearly?

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Thank you for your response. The magistrate was not happy with two of the items in the settlement agreement, and to be honest we were also not comfortable with the same items as well as another paragraph in the agreement. We also do not know whether the signature obo on the respondent on the agreement is acceptable as it is not the signature of the respondent. The last paragraph of the settlement agreement is a confidentiality clause indicating that the parties would not divulge the contents of the settlement agreement (which we are not happy with). The settlement agreement also indicates that it would only be in force if made an order of the court, which it was not.

The magistrate was clear that he could not accept the agreement, and copied sections of the agreement that he did agree with and wrote them out on the protection order. Hence our understanding that the settlement agreement is no longer valid only the final protection order.

Posted by Att. Patrick on 05-06-2019 10:24:48

The settlement agreement also indicates that it would only be in force if made an order of the court, which it was not. --> Then unfortunately the settlement agreement is not enforceable.

You never told me this at the start. It does change things!