Ferreira v Bezuidenhout

• Jurisdiction: South Africa
• Judge: De Villiers J
• Judgment Date: 27 November 1969
• Citation: 1970 (1) SA 551 (O)
• Hearing Date: 27 November 1969
• Court: Orange Free State Provincial Division

B De Villiers, J.:

This is an application for committal for contempt which arises from the following circumstances: Applicant successfully sued respondent for ejectment and obtained an order of costs in her favour. The costs were duly taxed at the sum of R2,191.79 but not paid by respondent Respondent was thereupon ordered in terms of Rule of Court 45 (12) (i) to pay the amount of the taxed bill in monthly C instalments at the office of applicant's attorneys. Save for one payment respondent has not complied with the Court's order. In the application for committal applicant alleges that respondent is able to comply with the Court's order and that his failure to do so is wilful. This allegation is not denied by respondent.

The first question which arises is whether it is legally competent for D the Court to grant the order sought in view of the provisions of sec. 4 of Act 21 of 1942.

In three recent cases, namely Suidwestelike Transvaalse Landboukooperasie Bpk v Stolz, 1966 (4) SA 14 (GW); Knott v Tuck, 1968 (2) SA 495 (D); Walpamur Co. (Pty.) Ltd v September, 1969 (1) SA 643 (E) E , it was held that the said section, although purporting to deal with civil imprisonment, in effect precludes a Supreme Court from making an order for committal for contempt in the circumstances of the present case. A contrary view was taken in Stellenbosch Farmers' Winery (Edms.) Bpk v Goldberg, 1968 (2) SA 728 (T), and Singer's Estate v Kotze, 1960 (2) SA 304 (C), whereas the point was left open in F Metropolitan Industrial Corporation v Hughes, 1969 (1) SA 224 (T). Mr. Kotze, who appeared on behalf of applicant, stenuously contended that the first-mentioned cases are wrongly decided. He claimed that the section in issue only deals with civil imprisonment which is a method of execution. The debtor is imprisoned at the expense of the creditor (sec. G 84 (1) (3) of Act 8 of 1959) in order to obtain payment of his debt (Herbstein and van Winsen. 2nd ed., p. 574). Imprisonment for contempt, on the other hand, is primarily imposed as a penalty (see S v Beyers, 1968 (3) SA 70 (AD), in order to vindicate the Court's honour and only incidentally has the effect of helping the creditor to obtain payment of his debt (cf. Herbstein and van Winsen, p. 583; Kotze v. H Kotze, 1953 (2) SA 184 (C) at p. 187). He pointed out further that in sec. 65 (9) of the Magistrates' Courts Act, 32 of 1944, a magistrate has the power to commit for contempt and contended...