If you are practicing in Gauteng the procedure for getting a settlement agreement made an order of court is something like the extract from the Gauteng High Court's practice manual at this link:
https://johannesburgbar.co.za/wp-content/uploads/008-6-14-SETTLEMENT-AGRS-DRAFT-ORDERS-21-08-15.pdf
According to our Court Rules the circumstances under which a settlement agreement can be made an order of court are the following:
" (3) If in any proceedings a settlement or an agreement to postpone or withdraw is reached, it shall be the duty of the attorney for the plaintiff or applicant immediately to inform the registrar accordingly. (4) Unless such proceedings have been withdrawn, any party to a settlement which has been reduced to writing and signed by the parties or their legal representatives but which has not been carried out, may apply for judgment in terms thereof on at least five days' notice to all interested parties."
Here in Mpumalanga, however, we have found that on 24 June 2019 one of our Judges has remarked in the course of hearing the matter under Mbombela High Court Case Number 765/2018 that after that date settlement agreements shall only be made an order of court on application when one of the parties are in breach of the agreement.
This particular matter- Magagula v The Road Accident Fund is one of an immensely large number of matters in our Courts where the Road Accident Fund was the Defendant. This new rule, which has since become a new practice directive in our courts, applies to defendants in the private sector as well.
You only need to litigate against the Road Accident Fund or any organ of state a few times to learn that the only time these institutions ever do pay in accordance with settlement agreements into which they enter is on the day on which the writ for execution gets carried out. For readers who are not in the legal profession- the writ for execution is a document that can only be obtained after one has obtained an order of the court and it is an instruction to the Sheriff to seize a party's assets if he has a judgment against him.
The current situation means that- if you have been in the habit of stipulating in an agreement that money is to be paid, but never a time by which it has to be paid you shall have to get into the habit of stipulating a time for payment so that you can clearly show that a breach of the agreement has been committed after that time expires.
What it also means is that defaulters in the private sector now get roughly 3 months from when they sign settlement agreements to relocate, hide assets or voluntarily surrender their estates. In the public sector it just means that time for an organ of state to default on a settlement agreement has been extended with another 2 months at least.
I remember a time when our courts have actually welcomed settlements and have not hesitated to make them as orders of court because it reduced the matter of litigious matters on the court roll.
Now, however, you may find that you may be quicker at getting a court order if you just proceed with the trial or with argument on the opposed motion.
Ironically- there is still a penalty in place for parties who either delay a settlement being reached or who refuse to enter into a settlement agreement. If a matter is of such a nature, however, that the conducting of a trial and presenting of arguments would take less time than the time you would have to wait for the Defendant to be in breach, wait for a new court date for your application to get the settlement made an order of court and perhaps get sent away by the Judge for whatever reason to come back another month later just to get your court order confirmed (let alone signed by the Registrar) I am certain that it would be clear that reaching a settlement would only be of benefit to the party that has to pay.
As I will show in a later blog post, however, these practice directives get issued and amended in response to events that take place in the courts and it is only a matter of time until our courts shall find that they shall have to change this rule as well...
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