Thutha v Thutha
| Jurisdiction | South Africa |
| Judge | Alkema J |
| Judgment Date | 14 September 2007 |
| Citation | 2008 (3) SA 494 (TkH) |
| Docket Number | 1838/2004 |
| Hearing Date | 14 September 2007 |
| Counsel | JL Hobbs for the applicant. NZ Mtshabe (attorney) for the respondent. |
| Court | Transkei High Court |
Alkema J:
C [1] This application raises two issues: first, the enforcement of a court order; and, secondly, the wisdom of the rule of practice in this division, following the rules of practice in the Eastern Cape Division and in other divisions of the High Court of South Africa, to make a deed of settlement an order of court.
D [2] The facts of this case can be summarised as follows.
During 2002 the plaintiff wife, the applicant in these proceedings, instituted a divorce action against her husband, the respondent. The action was settled, and on 19 September 2002 this court granted a E decree of divorce, and ordered:
The Deed of Settlement being Exhibit B annexed hereto be and is hereby made an Order of Court.
[3] The deed of settlement makes provision for the custody of the minor children, the payment of maintenance, the distribution of the assets, the F settlement of proprietary rights and the payment of legal costs. The relevant paragraphs of the deed, for purposes of this application, read, and I quote verbatim:
Custody of the minor children
The defendant shall have the custody and care of the three G minor children born of the parties, marriage (sic).
The plaintiff shall have reasonable rights of access to the said minor children at all reasonable times.
Maintenance
Plaintiff shall assume full responsibility of the maintenance of the minor children born of the marriage.
H Without derogating from the generality of the provisions of clause 3.1 hereof the plaintiff shall pay all school fees for the children up to tertiary level; buy them food/groceries on a monthly basis, buy them clothes as and when required, pay the salary of the person employed by the defendant to assist with I household chores, pay for the entertainment expenses of the minor children and their holiday expenses.
The plaintiff will also pay a contribution of R5 000 per month to the defendant for household expenses.
Property
The plaintiff hereby agrees to transfer ownership of the undermentioned J motor vehicles into defendant's name, namely:
Alkema J
One 1995 A4Audi Sedan with registration letters A and numbers BZK 264 EC.
One 1995 Jetta CSL Sedan with registration letters and numbers BYT 020 EC.
The plaintiff undertakes to replace the aforementioned motor vehicles with (sic) motor vehicle of the same and/or similar class and capacity when the existing vehicles due to age have become B uneconomical to repair.
The plaintiff also undertakes to make available, when requested to do so, one of the big vehicles being, one \x (sic) Ford Blazer or Chrysler Voyager or alternatively vehicles of the same or similar class and/or capacity.
The plaintiff undertakes to transfer the house being 135 Chief C Nkwenkwezi Drive, Southridge Park, into the name of the minor children born of the marriage who will become joint owners thereof in equal undivided shares.
To this end the plaintiff hereby acknowledges that upon signature hereof by him this Deed of Settlement shall operate as an irrevocable Power of Attorney empowering D and authorising the defendant or her duly authorised agent to sign the requisite Power of Attorney to make transfer (sic) in favour of the parties' minor children.
The plaintiff also undertakes to effect alterations to the building as it exists on the date of signature hereof by him and to extend the building by addition of a new E bedroom with en-suite and one living room, such extension to be effected within the course of the next eighteen (18) months from date of signature hereof.
Save for the aforegoing the parties hereby agree that they shall retain all movable and immovable assets presently registered in their names and/or in their possession as their own and F absolute property upon signature hereof.
[4] During 2004 the applicant instituted the present application, alleging that the respondent had failed to comply with his obligations under the deed of settlement and asking 'that the respondent be held to be in contempt of the order of the above Honourable Court issued on G 19 September 2002 and be dealt with accordingly'. In addition the applicant seeks various orders, the effect of which is to compel the respondent to perform his duties under the court order of 19 September 2002 by complying with his obligations under the deed of settlement.
[5] The papers are voluminous and the affidavits lengthy and repetitive, H resulting in confusion and obscurity of the issues. Further sets of answering and replying affidavits were filed pursuant to a court order of 29 November 2006 directing the parties to set out the respects in which the order of 19 September 2002 has or has not been complied with.
[6] The matter is further complicated by an order of this court of I 19 October 2005 directing the respondent to pay maintenance for the children in an amount of R5 000.
[7] Mr Hobbs, who appeared on behalf of the applicant, was unable to tell me whether the order of 19 October 2005 was intended to vary the order of 19 September 2002, or whether it was intended to operate in addition J
Alkema J
A to the order of 19 September 2002. He submitted that, for purposes of this application, the court should treat the order of 19 October 2005 'as a quantification' of paras 3.1 and 3.2 of the deed of settlement mentioned above.
[8] Finally, the applicant instituted two separate applications for contempt B of court, each arising from different paragraphs of the deed of settlement. The application before this court, when this matter was heard, was a consolidation of the two applications.
[9] The factual issues are further complicated by a counter-application by the respondent to amend the deed of settlement and for an order that C 'all issues relating to maintenance be dealt with by the magistrate's court under the Maintenance Act 99 of 1998'. The 'amendment' is alleged to arise from a subsequent settlement agreement, and further lengthy answering and replying affidavits were filed in support and in defence of such counter-application.
D [10] Essentially the respondent's defence may be summarised as follows:
In exchange for settling the applicant's debts for R22 850,51 and for paying the outstanding bond of R150 000 in respect of the Northcrest home where the applicant was living, the applicant agreed to waive the maintenance payment of R5 000 per month.
E Prior to the institution of the present proceedings, the applicant had instituted an action out of the magistrates' court claiming arrear maintenance from respondent which action is still pending, rendering the present proceedings lis pendens.
After the institution of the present proceedings, the parties reached a F settlement agreement in the offices of respondent's attorneys of record, which had the effect of settling the entire dispute between them on the terms and conditions set out in one of the respondent's answering affidavits.
The contractual obligations for the payment of moneys or salaries G simpliciter are orders ad pecuniam solvendam and cannot be enforced by a committal for contempt; and
the respondent in any event had fully complied with all his other contractual obligations under the settlement agreement which was made an order of court on 19 September 2002, insofar as those H obligations were not compromised by subsequent settlement agreements.
[11] In view of the conclusion I have arrived at, I do not consider it necessary to deal with the factual issues or with the merits of any of the defences set out above. For the reasons which follow I believe the application should be dismissed on the ground that the terms of I the court order of 19 September 2002 are incapable of enforcement.
[12] As is so often the case, the best place to start is the beginning.
[13] The applicant seeks an order enforcing the terms of a court order, not the terms of a contract. This application is therefore approached J dogmatically, and by its very nature [is] not concerned with the law of
Alkema J
contract. (As I will shortly indicate, practical considerations dictate A otherwise.) Mr Hobbs, for the applicant, submitted that, in the event of the applicant being successful in her application, a term of imprisonment should be imposed, suspended for a fixed period of time, pending fulfilment by the respondent of his obligations under the court order.
[14] This is of course the usual remedy in proceedings of civil contempt B of court. This remedy is a far cry from any of the remedies available to an innocent party claiming a breach of contract. In the latter case, the remedy is either specific performance or a claim for damages, with or without a cancellation of the contract. The case before me is only concerned with the alleged wilful refusal or failure to comply with an C order of court, and with the imposition of a penalty in order to vindicate the court's honour consequent upon the alleged disregard of its order, and to compel performance in accordance with the order. (Protea Holdings Ltd v Wriwt and Another 1978 (3) SA 865 (W) at 868B; Naidu and Others v Naidu and Another 1993 (4) SA 542 (D) at 544H - J. See also Coetzee v Government of the Republic of South Africa; Matiso and Others v D Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at 643B - C.)
[15] The mere stating of the above obvious propositions demonstrates the inherent and potential difficulties, if not dangers, of clothing a E contract, albeit a settlement agreement, in the terms of a court order. It is trite law that a court order must be effective, enforceable and immediately capable of execution by the sheriff, his deputy, or members of the South African...
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Tasima (Pty) Ltd v Department of Transport and Others
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Eke v Parsons
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Zerga v T T Empowerment CC
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