HIGH COURT OF ZIMBABWE
HARARE, 02 June 2015 & 10 June 2015
In person, the applicant
D Halimani, for the 1st respondent
MUREMBA J: On 30 October 2013 the applicant obtained default judgment in the sum of $10 000-00 against the respondents.
In November 2013 the applicant proceeded to execute judgment. The Deputy Sheriff attached 9 cattle and other movable goods belonging to the first respondent.
The respondents successfully applied for stay of execution pending the determination of an application for rescission of the default judgment. Stay of execution was granted on 19 December 2013 under case number HC 10763/13.
On 24 March 2014 the respondents’ application for rescission of the default judgment was dismissed for want of prosecution under case number HC 765/14.
On 19 November 2014 the applicant wrote to the respondents reminding them that their application for rescission of judgment had been dismissed and that they should settle the debt. The respondents did not settle the debt and neither did they respond to the letter. This prompted the applicant to make the present application for contempt of court. It is the applicant’s prayer that the respondents be imprisoned for not complying with the court order that awarded him US$10 000-00 plus costs.
The applicant’s other argument is that on 19 December 2014 the respondents removed the cattle that were previously attached by the Deputy Sheriff to an unknown destination. He also argued that the first respondent had a house in Chiredzi town, house number 3527 Tsovani. He said that the first respondent went on to change ownership of that house into the name of his wife’s sister’s husband one Kujongoya. The applicant submitted that the respondents did all this to frustrate the satisfaction of the debt. The applicant argued that this conduct is contemptuous.
The second respondent did not file any notice of opposition to the application. The first respondent opposed the application on the basis that the applicant adopted the wrong procedure to enforce the judgment. The first respondent’s argument is that the court did not grant an order ad factum praestandam i.e. an order to do or to abstain from doing something against him and as such the applicant cannot sue him for contempt of court.
Herbstein and Van Winsen The Civil Practice of the High Courts of South Africa 5th ed Volume 2 at p 1020 states that execution of a judgment may be effected against the property or the person of the judgment debtor. It is further stated that what determines the judgment creditor’s choice in enforcing the judgment is the type of judgment and the nature of the debtor’s available assets. If the judgment is one ad pecuniam solvendam namely one in which the court has ordered the judgment debtor to pay a sum of money, the appropriate method with which to seek enforcement thereof is by way of a writ of execution. Examples of judgments ad pecuniam soluendam are given on p 1022 as an order to pay a sum of money by way of damages for breach of contract or delict, an order for the payment of the purchase price of property bought, an order to pay the costs of legal proceedings or an order to contribute towards costs.
If a judgment is one ad factum praestandum namely, in which the court has ordered the litigant to do something or not to do something and there is non-compliance, the judgment can be enforced by way of committal to prison of the judgment debtor for contempt of court, not by way of execution against his property. Not every court order can be enforced by committal for contempt. The order must be one ad factum praestandum before the court will enforce it. See Metropolitan Industrial Corporation (Pvt) Ltd v Hughes 1969(1) SA 224 (T) at 227; Stellenbocoh Farmers Winery (Edms) Bpk v Goldberg 1968 (2) SA 728 (T) at 729, Alison N.O v Nicholson 1970 (1) SA 121 (R) at 124; Hardy Ventures CC v Tshwane Metropolitan Municipality 2004 (1) SA 199 (T).
If the order is for the payment of money it generally cannot be enforced by a committal for contempt. This is so even if the judgment debtor has the means to pay but refuses. See Coetze v Government of the RSA 1995 (4) SA 631 @ 665 D-F.
A few exceptions exist to the general rule that judgments sounding in money may not be enforced by committal for contempt. For instance, firstly, when there has been a failure to pay maintenance in compliance with a court maintenance order. Secondly, when there has been a failure to pay costs de bonis propriis. See p 1022 of Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa 5th ed Volume 2.
In the present case the US$10 000-00 that the court ordered the respondents to pay to the applicant are for damages for pain, shock and suffering arising from an assault. It is clear that the court order is ad pecuniam solvendam. It is an order sounding in money. It is therefore enforceable by way of a writ of execution, not by way of committal for contempt of court.
It would have been a different case if upon granting the order for stay of execution pending the determination of the application for rescission of the default judgment had the court ordered the respondents not to dispose of the attached property (cattle and other immovable goods). If the respondents had then gone on to dispose of those goods and cattle in complete disregard of the court order it would have been appropriate for the applicant to make the present application for committal for contempt. The order not to dispose of the attached cattle would have been an order ad factum praestandum.
The order for stay of execution reads,
“1. Pending the determination of the matter on the return day, the execution by the second respondent of the order granted in favour of the first respondent under case number HC 6108/13 be and is hereby stayed.
2. The second respondent be ordered to forthwith return to the applicant all the items seized pursuant to the execution of the order granted under case number HC 6108/13.”
It is clear that the order says that the attached items should be returned to the judgment debtors. However, it does not say that upon being returned, the items will remain under attachment until the application for rescission of judgment has been determined. Neither does it say the judgment debtors should not dispose of the items until the application for rescission of judgment has been determined.
What the applicant ought to have done after the respondents’ application for rescission of the default judgment had been dismissed was to proceed with the writ of execution instead of taking the route that he took of instituting contempt of court proceedings.
The applicant is a legal practitioner by profession. He should have appreciated that he adopted the wrong procedure, more so when this was highlighted to him by the first respondent. As correctly stated by the first respondent, he ought to be punished with costs on a higher scale.
In the result, the application for contempt of court is dismissed with costs on a legal practitioner and client scale.
Chuma Gurajena & Partners, 1st respondent’s legal practitioners