Butchart v Butchart
Jurisdiction | South Africa |
Citation | 1997 (4) SA 108 (W) |
Butchart v Butchart
1997 (4) SA 108 (W)
1997 (4) SA p108
Citation |
1997 (4) SA 108 (W) |
Case No |
A5008/96 |
Court |
Witwatersrand Local Division |
Judge |
Cameron J, Wepener AJ and Pretorius AJ |
Heard |
November 19, 1996 |
Judgment |
November 21, 1996 |
Counsel |
S P Pincus for the appellant |
Flynote : Sleutelwoorde E
Execution — Writ of execution — What may be recovered by — Writ of execution may be validly issued based on 'expenses clause' contained in maintenance order on condition that amount easily ascertainable and ascertained in affidivit filed on behalf of judgment creditor. F
Headnote : Kopnota
In an appeal against a decision dismissing an application to set aside a writ of execution issued against the appellant to recover amounts payable in terms of a settlement agreement incorporated in a divorce order, it was held that a writ may be validly issued based on an 'expenses clause' (in respect of medical, dental, pharmaceutical, hospitalisation, ophthalmic, G orthodontic and related expenses) contained in a maintenance order on condition that the amount was easily ascertainable and was ascertained in an affidavit filed on behalf of the judgment creditor. (At 115F–G.)
The decision in Butchart v Butchart 1996 (2) SA 581 (W) confirmed.
Cases Considered
Annotations:
Reported cases H
Bam v Badha (II) 1947 (1) SA 399 (N): referred to
Bennett v Bennett's Executrix 1959 (1) SA 876 (C): distinguished
Butchart v Butchart 1996 (2) SA 581 (W): confirmed on appeal
De Crespigny v De Crespigny 1959 (1) SA 149 (N): considered
Du Preez v Du Preez 1977 (2) SA 400 (C): considered I
Jeanes v Jeanes and Another 1977 (2) SA 703 (W): referred to
Manley v Manley 1941 CPD 95 : referred to
McNutt v Mostert 1949 (3) SA 253 (T): referred to
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634H–I applied
Strime v Strime 1983 (4) SA 850 (C): referred to
Williams v Carrick 1938 TPD 147: considered. J
1997 (4) SA p109
Statutes Considered
Statutes
The Uniform Rules of Court, Rule 45: see Erasmus and Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 11th ed (1997) Part A at 78–82. B
Case Information
Appeal against a decision of a single Judge (Wunsh J). The facts and the nature of the issues appear from the judgment of Wepener AJ.
S P Pincus for the appellant.
J A Woodward for the respondent.
Cur adv vult. C
Postea (November 21).
Judgment
Wepener AJ:
This matter comes on appeal before us with leave from the Court below. Whatever the issues were that were raised in the affidavits in that Court, the issue to be decided now is whether a writ of execution ought to have been set aside on the basis that it was not D competent in law for it to have been issued by the Registrar. The Court below found that the writ was competent and dismissed the application to set it aside: Butchart v Butchart 1996 (2) SA 581 (W).
The facts relevant to the appeal are: the appellant (applicant in the Court below) was married to E the respondent and the marriage was dissolved during 1987. The order incorporated a settlement agreement which, inter alia, contained the following clause:
In addition to what is contained hereinbefore, the defendant will be liable for and shall pay on demand:
all medical, dental, pharmaceutical, hospitalisation, ophthalmic, orthodontic and related expenses incurred for and in respect of the F plaintiff and the three minor children awarded to her;
. . .
all or any fees, levies, books, stationery, uniforms, shoes and other apparel in connection with the schooling activities or any higher or G further education of the children.'
Although previously in dispute, it can be accepted for purposes of this judgment that the respondent incurred expenses which fell into the category defined in clause (e)(i) of the agreement. (By agreement between the parties, the quantum of the appellant's indebtedness was not an issue which fell to be decided by the Court below.) H
As a consequence, the respondent applied for a writ. She filed an affidavit with the Registrar in which she stated:
In terms of clause 3(e)(i) of the agreement of settlement which was made an order of the above honourable Court on 27 March 1987 the defendant was ordered to pay on demand all medical, dental, pharmaceutical, hospitalisation, ophthalmic, I orthodontic and related expenses incurred for and in respect of the ''plaintiff'' (and) ''the three minor children awarded to her''.
Defendant has failed to pay certain medical costs in respect of the plaintiff and the minor child, Oliver, which accounts total the sum of R25 572,69.'
Annexed to the affidavit were invoices substantiating the respondent's claim. Although some dispute in the Court below arose in relation to J
1997 (4) SA p110
Wepener AJ
whether these invoices sufficiently substantiated the respondent's claim, the appellant concedes A that as it sought final relief on motion proceedings, the test as enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H–I is applicable. In that case Corbett JA said: B
'It is correct that, where in proceedings on notice of moton disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.'
The result is that the version of the respondent should be accepted. The Registrar issued the C writ. Pursuant thereto the sheriff (whose return indicates that he was unable to attach movable property) rendered a nulla bona return and attached immovable property of the appellant. The appellant then launched the application to set the writ aside.
Rule 45 of the Rules of Court reads: D
'45 Execution - General and Movables.
The party in whose favour any judgment of the Court has been pronounced may, at his own risk, sue out of the office of the Registrar one or more writs for execution thereof as near as may be in accordance with Form 18 of the First Schedule: . . .' E
Erasmus in Superior Court Practice states at B1-323 (the authorities cited in the footnotes to this passage appear in square brackets):
'The provisions of this subrule contemplate a judgment liability in which the debt or other obligation of the judgment debtor and the matter which is to be enforced by the sheriff are specifically and with certainty described. [See Muniamma v Ramalingam F 1932 NPD 29 at 37; De Crespigny v De Crespigny 1959 (1) SA 149 (N).] A writ may be issued in respect of a judgment which is conditional in the sense of being dependent upon the performance of some act by the judgment creditor. [See McNutt v Mostert 1949 (3) SA 253 (T) at 255; Du Preez v Du Preez 1977 (2) SA 400 (C) at 403.] There must nevertheless be certainty as to what the creditor is entitled to under the G judgment, and a writ may be set aside if the judgment in respect of which it had been issued is not definite and certain . . . [De Crespigny v De Crespigny 1959 (1) SA 149 (N); Ras v Sand River Citrus Estates (Pty) Ltd 1972 (4) SA 504 (T) at 510E; Le Roux v Yskor Landgoed (Edms) Bpk en Andere 1984 (4) SA 252 (T) at 257G; Van Dyk v Du Toit 1993 (2) SA 781 (O) at 783D].'
Whether or not the judgment obligation in this matter is so 'specifically and with certainty' H described is to be resolved by having regard to the wording and nature of the order (or more particularly that part of it dealing with the expenses) and its consequences.
Court orders have traditionally been regarded as either containing an obligation to pay (ad pecuniam solvendam) or an obligation to do something (ad factum praestandum). The I difference in the nature of the orders is set out in Claassen Dictionary of Legal Words and Phrases vol 1 at 45 and 46. An order ad factum praestandum is an order obliging the performance of an act. An order ad pecuniam solvendam is an order to pay a certain sum of money. The distinction has further consequences. Following upon an order to pay money, a writ may be issued. Following upon an order to perform an act, the appropriate relief for non- J
1997 (4) SA p111
Wepener AJ
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