Botha v Botha

The parties, formerly married out of community of property with the accrual system, concluded a settlement agreement during divorce proceedings. The agreement, made an order of the Regional Court on 9 March 2021, fixed the respondent’s accrual liability at R2 650 000 and provided that each party would retain their own policies, investments and pension interests. Several months later, the respondent applied to vary the settlement agreement, alleging that the accrual amount had been incorrectly calculated due to a common mistake, resulting in an overstatement of more than R1.2 million. The Regional Court granted a variation and appointed a liquidator to determine the accrual. The appellant successfully challenged this order in the Supreme Court of Appeal after the High Court had dismissed her appeal on the basis that the Regional Court’s order was interlocutory and not appealable.

Special leave to appeal was granted. The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order upholding the appeal and dismissing the respondent’s application for variation with costs.

The case reinforces the strong finality of settlement agreements in divorce proceedings and clarifies the narrow circumstances under which such agreements may be set aside or varied on the basis of mistake. It confirms that unilateral errors, even if based on incorrect legal advice, do not justify variation. The judgment also reiterates the test for appealability of orders and limits judicial intervention where relief was not sought by the parties.