Metropolitan Industrial Corporation (Pty) Ltd v Hughes

• Jurisdiction: South Africa

Metropolitan Industrial Corporation (Pty) Ltd v Hughes
1969 (1) SA 224 (T)

1969 (1) SA p224

Citation	1969 (1) SA 224 (T)
Court	Transvaal Provincial Division
Judge	Claassen J, Marais J and Colman J
Heard	September 26, 1968
Judgment	November 7, 1968

Flynote : Sleutelwoorde

Contempt of Court — Committal for — Order to discharge a H commercial debt by instalments — Such an order ad pecuniam solvendam — Breach thereof cannot be penalised by imprisonment for contempt — Execution — Investigation under Rule 45 — Whether sub-rule (12) ultra vires — Raised but not decided.

Headnote : Kopnota

An order of Court directing the payment of money (whether it be made after a judicial investigation or by consent) is not an order ad factum praestandum merely by reason of the fact that it provides for a series of payments on specified dates. An order whereunder the common law obligation to maintain

1969 (1) SA p225

is to be carried out by means of periodical payments of money is of that character, but an order to discharge a commercial debt by instalments is an order ad pecuniam solvendam and a breach thereof cannot be penalised by an order for imprisonment for contempt of Court.

The question whether Rule of Court 45 (12) is ultra vires or not raised but not decided. A

Case Information

Application for committal for contempt of Court. The facts appear from the reasons for judgment.

L. P. Lewis, for the applicant: The cases supporting the application are Singer's Estate v Kotze, 1960 (2) SA 304; Stellenbosch Farmers' Winery (Edms.) Bpk v Goldberg, 1968 (2) SA 728. A contrary B conclusion was reached in Suidwestelike Landboukoöperasie v Stolz, 1966 (4) SA 14; Knott v Tuck, 1968 (2) SA 495. An order made after a financial enquiry is one ad factum praestandum and the common law right to commit a debtor to gaol is not excluded; see Singer's case, supra at p. 307F. Without such power, which is necessary where, as in this case, the debtor is self-employed, an order under Rule 45 is a C pointless remedy. The debtor can wilfully and with impunity disobey it. This is not in the public interest as it affects the prestige of the Courts. As to the purpose of contempt proceedings, see Herbstein & van Winsen, 2nd ed., p. 583; Verkouteren v Savage, 1918 T.P.D. 62 at p. 68. D When the old Cape Rule was introduced into the rest of the Republic, the law-maker must have been aware of the decision in Singer's case, see Welgelegen Estates (Pty.) Ltd v Matzner, 1967 (4) SA 635 at p. 638. There is a distinction between civil imprisonment and committal for contempt, see Forms 'F' and 'G' in the Second Schedule to the Rules of E Court. Prison regulations also contain special provisions relating to civil imprisonment, e.g. a civil imprisonment debtor can obtain his release in certain circumstances. For matrimonial cases in which committal orders have been made, see Swanepoel v Bovey, 1926 T.P.D. 458; Hankin v Hankin, 1932 W.L.D. 190; Snyman v Snyman, 1937 W.L.D. 62; Williams v Carrick, 1938 T.P.D. 147; Comerma v Comerma, 1938 F T.P.D. 221. In the Stellenbosch Farmers' Winery case, supra, matrimonial cases were equated with the instant case.

No appearance for the respondent.

Cur adv vult.

Postea (November 7th).

Judgment

G Colman, J.:

This is an application for committal for contempt of Court, which was referred by a single Judge, sitting in the Witwatersrand Local Division, for hearing, in terms of sec. 13 (1) (b) of the Supreme Court Act, 59 of 1959, by a full Bench of this Court.

The present applicant was the plaintiff in an action in the H Witwatersrand Local Division wherein it claimed, from the present respondent and others, payment of a sum of money which it alleged was due and owing to it in consequence of a commercial contract, the details of which are immaterial to the present enquiry. In that action default judgment was granted against the present respondent and others, jointly and severally, in the sum of R2,475.71 together with certain interest and costs.

1969 (1) SA p226

Colman J

The judgment debt was not satisfied, wholly or in part, and to writs of execution issued on the basis thereof nulla bona returns were made. The applicant then issued a notice in terms of Rule of Court 45 (12) (i), A and in pursuance thereof the applicant appeared by counsel, and the respondent in person, before RABIE, J., on 12th December, 1967, in order that the financial position of the respondent might be investigated, in terms of the sub-rule. The upshot of that was that RABIE, J., made an order under Rule 45 (12) (j), directing the respondent to pay the B applicant the sum of R50 per month in respect of the judgment debt, interest and costs. The first monthly payment was to be made on 1st January, 1968.

There is an indication in the papers before us that this order may have been made by consent. But whether that is so or not is not clear, and, in my view, it is immaterial to the question which this Court has to decide.

C The respondent failed to make any payments in compliance with the order of RABIE, J., and in April of this year the applicant applied to the Witwatersrand Local Division for an order committing the respondent to imprisonment for contempt of Court, by reason of his failure to D comply with the order of RABIE, J. The contempt application came before SNYMAN, J., on 4th July, 1968, and he, being faced with conflicting decisions on the question whether contempt proceedings would lie in respect of the breach of an order made under Rule 24 (12) (j), referred the matter to a full Bench of this Court for decision.

At the hearing before us there was no appearance on behalf of the E respondent, but we have had the benefit of a fair and candid argument by Mr. Lewis, who appeared for the applicant.

He referred us to two authorities which supported his client's application, and to two which...