By Sanette Viljoen
Legal circles or attorneys regularly refer to a settlement or a court order. What is the difference between them? What happens if a party does not comply with a settlement or a court order?
If two parties enter into a settlement contract that is later not complied with, the parties will sue on the basis of the settlement contract if one of the provisions of the contract is not complied with. It is therefore an ordinary summons based on a settlement that was not complied with. The settlement contract is not immediately enforceable and the parties need to sue first to enforce it.
A court order is something quite different. It is an ordinary court order and not a contract. A court order is an immediately enforceable order. It can be enforced in several ways. For example, if the court order concerns the payment of money and it is not paid, a writ of execution can be issued immediately and the assets of the party concerned may be attached as payment. If the court order does not concern money – for instance, the party concerned must do something within a certain period of time and fails to do so – an order can be obtained for specific compliance or for contempt of court, which can send the person to prison for not complying with a court order.
Settlement of a court case
What often happens, however, is that while the parties are engaged in civil litigation, i.e. busy with a court case, the two parties enter into a settlement to settle the matter. This settlement differs from the above-mentioned normal settlement contract. In this case, where a court case is settled, the settlement will be embodied in a court order. When this settlement is made an order of the court, it has the same power as an ordinary court order, which is immediately enforceable.
It will therefore be wise always to embody a settlement between two parties so that it is immediately enforceable.