The Issue: Enforcing Settlements Without Litigation

Ordinarily, when parties settle a dispute that is already in court, they can ask the court to make their settlement agreement an order of court. Once a settlement is an order of court, it gains teeth: if one side breaches it, the other can enforce it like any court judgment (even through contempt of court in extreme cases).

However, what if no case was ever filed? Perhaps a creditor and debtor negotiate a payment plan and want it sanctioned by a court immediately, without formally suing. The idea is tempting—skip straight to an enforceable order and avoid litigation. But South African courts have increasingly frowned upon this. They insist on having a concrete dispute before them and caution that courts are “not a registry of obligations” meant for rubber-stamping private contracts.

Recent Judgments Shaping the Legal Position

Several key decisions over the past decade have shaped the current understanding:

• PL v YL (Eastern Cape High Court, 2013 (Full Bench))[1]: In this divorce-related case, a full bench (three judges) discussed courts’ discretion to incorporate agreements into orders. The court stressed that a court order must be “competent and proper”, meaning it should relate to issues actually before the court. This implies a court should not mechanically grant orders that have no pending lis (dispute) underpinning them.
• Eke v Parsons (Constitutional Court, 2016)[2]: South Africa’s Constitutional Court approved the practice of making consent orders in genuine lawsuits, but Madlanga cautioned that “parties contracting outside the context of litigation may not approach a court and ask that their agreement be made an order of court”. In other words, if two people make a normal commercial agreement and go to court solely for an order, the court would refuse. This statement, though not a direct ruling on the issue, set a clear tone: courts won’t lend their authority where they have no dispute to resolve.
• Avnet South Africa (Pty) Ltd v Lesira Manufacturing (High Court – Gauteng Local Division, 2019)[3]: This Johannesburg High Court decision squarely addressed the question. The parties had settled a debt and even agreed not to oppose making the settlement an order of court, before any summons was issued. After reviewing conflicting High Court decisions, Budlender AJ concluded that where no litigation has commenced, a settlement cannot be made an order. The judgment reasoned that courts’ primary function is to resolve actual disputes, not to serve as a “debt collector” or a registration office for every contract. If courts allowed this, any breach of a privately reached agreement (made a court order) could unfairly be punished as contempt of court – a serious consequence usually reserved for violating judicial orders. The Avnet case firmly shut the door on bypassing the normal litigation process: the High Court lacked jurisdiction to grant an order absent an existing case.

• Alana v Monoline Investments 8 Trust (High Court – Gauteng Local Division, 2025)[4]: Fast-forward to January 2025, and this Gauteng High Court decision confirmed that the above stance remains the law. The application before the court was to enforce a settlement agreement (from outside court) by making it an order. In a terse judgment, the court refused, echoing that it had no power to do so without pending litigation. Judge Dlamini, citing Eke and Avnet, held that those precedents “bind” the court and declined to make the settlement an order. This ruling – the latest authority as of 2025 – aligns with the principle that **a court *will not entertain* an application to make an out-of-court settlement an order**. It solidifies the approach likely to be adopted by South African courts going forward.

All these cases collectively reinforce a clear message: unless your settlement stems from an active case, you cannot simply have it stamped as a court order. The proper course, if a party reneges on a settlement reached out of court, is to institute action for breach of contract (or the underlying cause of action) and obtain judgment through the normal judicial process. You might not save time by shortcutting to an order – in fact, you’d be sent back to square one, as these rulings illustrate.

Because Namibian jurisprudence is often in dialogue with South Africa’s, and South African courts have uniformly taken a restrictive stance, Namibian courts are likely to continue in parallel. Should a novel situation arise here – for instance, an attempt to make a settlement an order of court – one can expect the reasoning to mirror what has been seen: insistence on an existing lis (dispute) and caution against turning the court into a “debt collector” for agreements that never went through a court process.

[1] PL v YL 2013 (6) SA 28 (ECG)

[2] Eke v Parsons 2016 (3) SA 37 CC

[3] Avnet South Africa (Pty) Ltd v Lesira Manufacturing (Pty) Ltd & Another 2019 (4) SA 541 (GJ)

[4] Alana v Monoline Investments 8 Trust 2025 JDR 0369 (GJ)