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[2017] ZAGPJHC 279
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M v M (A3076/2016) [2017] ZAGPJHC 279 (28 March 2017)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER:
A3076/2016
Reportable
Of
interest to other judges
Revised.
28
March 2017
In
the matter between:
M
C Appellant
and
M
J
Respondent
JUDGMENT
MODIBA
J (CARELSE J CONCURRING)
[1] This is an appeal
against the judgment of the Regional (Divorce) Court for the Division
of Gauteng held at Roodepoort who held
the appellant in contempt of a
court order granted on 15 June 2011.
[2] The appellant
(respondent
a quo
) is J M (Mr. M). The respondent (applicant
a
quo
) is Ms C M (Ms M). Ms. M is Mr. M’s erstwhile wife. The
parties’ marriage was terminated by a decree of divorce
incorporating
a settlement agreement. This is the order granted by
the court
a quo
on 15 June 2011. Ms M opposes the appeal.
[3] The court
a quo
granted the contempt order on 6 May 2016 in the following terms:
“
Accordingly,
I make the following order:
1.
That the respondent is guilty of contempt of court.
2.
That the respondent is sentenced to a period of 3 (three) months
imprisonment wholly suspended for a period of 3 (three) years
on the
following conditions:
(i)
That he is not again found guilty of contempt of court committed
during the period of suspension.
(ii)
That the respondent complies with the provisions of the court order
granted by this court on 15 June 2011 under case number
GP/RDP/RC
624/2011 (“the order”) within 10 days of the granting of
this order.
3.
That the sheriff of this court is instructed to sign all documents
necessary to give effect to the transfer of the immovable
property on
behalf of the respondent in compliance of section 5.2.1 of the
settlement agreement which was made an order of this
court 15 June
2011, should the respondent fail to do so.
4.
That the respondent is directed to pay the applicant the costs of
this application on attorney-and-client scale.
[4] Mr. M had counter
applied for the variation of the divorce order in the court
a
quo
.”
POINT
IN LIMINE
ON JURISDICTION
[5] At the outset of the
hearing, this court raised a point
in limine,
mero muto,
on
whether the court
a quo
being a creature of statute, has the
jurisdiction to grant an order for civil contempt of court. We stood
the matter down until
Friday 3 February 2017 to give the parties an
opportunity to settle the merits in respect of their dispute; failing
which the court
would hear argument on the point
in limine
. In
the afternoon of 2 February 2017, my sister Carelse J and I received
Ms M’s heads of argument on the point
in limine
,
signaling that the parties had not settled the merits and that the
parties will present argument on the point
in limine
on 3
February 2017. That is indeed what transpired.
[6]
Mr. M did not file heads of argument. He is an admitted advocate of
this court. He appeared in person and argued the appeal.
His attorney
of record was present in court. He contended on the basis of the
judgment in
Dreyer
v Wiebols
and
Others
[1]
that the Magistrate’s Court lacks jurisdiction to grant an
order for civil contempt of court because such a remedy falls
within
the exclusive and inherent jurisdiction of the High Court.
[7]
Counsel for the respondent contended that
Dreyer
was correctly
decided in so far as it relates to orders in respect of causes of
action based on contracts and delict. It is distinguishable
in
respect of divorce matters. In respect of divorce matters, he further
contended, Regional Divorce Courts have the jurisdiction
to grant an
order for civil contempt of court. He relied on the following
provisions:
[7.1]
Section 10 of the Native Administration Act 9 of 1929 (as
amended).
[2]
[7.2]
Section 9
of the
Jurisdiction of Regional Courts Amendment Act 31 of
2008
.
[3]
[7.3]
Section 29(1B) (a) and (b) of the Magistrates’ Courts Act 32 of
1944 (as amended).
[4]
[8] Act 9 of 1929 is the
enabling legislation for the establishment of Divorce Courts at the
level of Regional Courts in the Magistrates
Court. It gives the
President (of the Republic) the power to proclaim the establishment
of these courts in the Government Gazette.
This legislation has since
been repealed. The wording of section 10 of that Act is analogous to
that of
section 29(1B)
(a) and (b) of the
Magistrates’ Courts
Act. However
, section 1(a) (i) and (ii) of Act 9 of 1929 as
amended is excluded from
section 29(1B)
(a) and (b) of the
Magistrates’ Courts Act. Section
9 of the
Jurisdiction of
Regional Courts Amendment Act 31 of 2008
deals with transitional
arrangements consequent upon the establishment of the Regional
Divorce Courts.
[9] The hallmark of the
respondent’s contention is
section 29(1B)
(a) and (b) of the
Magistrates’ Courts Act. This
section grants the Regional
Divorce Courts jurisdiction to hear and determine matters relating to
the nullity of a marriage or
a civil union and relating to divorce
between persons
and to decide upon any question arising therefrom
.
Ms M’s counsel elucidated that the contempt proceedings arise
from the divorce action that was instituted in the Regional
Divorce
Court. Therefore in terms of
section 29(1B)
(a) and (b), the latter
court has jurisdiction to hear such proceedings.
(My emphasis)
[10]
Section 29
(1B) (a)
clearly gives the Regional Court jurisdiction over divorce matters.
In terms of
section 29(1B)
(b), the Regional Divorce Court has the
same jurisdiction as the High Court in respect of matters referred to
in
section 29
(1B)(a).
[11] The question to be
determined is whether
section 29
(1B) (a) and (b) gives the Regional
Divorce Court jurisdiction in respect over civil contempt
proceedings.
[12] It is trite that
there is no statute that grants the High Court jurisdiction to grant
an order for civil contempt of court
– even in respect of
divorce orders. To grant an order for civil contempt of court, the
High Court invokes its inherent jurisdiction.
Counsel for Ms M argued
that
section 29
(1B) (a) and (b) extends the inherent jurisdiction of
the High Court to the Regional Divorce Court. For the reasons set out
in
paragraphs 13 to 19 below, I find that it does not.
[13]
Inherent jurisdiction is an English common law doctrine in terms of
which a superior court has the jurisdiction to hear any
matter that
comes before it, unless a statute or rule limits that authority or
grants exclusive jurisdiction to some other tribunal.
In the English
case of
Bremer
Vulkan Schiffbau und Maschinenfabrik v South India Shipping
Corporation Ltd
[5]
,
Lord Diplock described the court’s inherent jurisdiction as a
general power to control its own procedure so as to prevent
being
used to achieve injustice. It applies to an almost limitless set of
circumstances. There are four general categories for
its use, namely
to:
[13.1] ensure convenience
and fairness in legal proceedings.
[13.2] prevent steps
being taken that would render judicial proceedings ineffective;
[13.3]
prevent abuses of process; and
[13.4] act in aid of
superior courts and in aid or control of inferior courts and
tribunals.
[14]
In
Ex
Parte Millsite Investments Co (Pty) Ltd,
[6]
the court per Vieyra J said the following about inherent
jurisdiction.
“…
apart
from powers specifically conferred by statutory enactments and
subject to any deprivation of power by the same source, a Supreme
Court can entertain a claim or give any order which at common law it
would be entitled so to entertain or give. It is to that reservoir
of
power that reference is made where in various judgements courts have
spoken of the inherent power of the Supreme Court. The
inherent power
is not merely one derived from the need to make the court order
effective, and to control its own procedure, but
to
hold the scales of justice where no law provides directly for such a
given situation
.”
(My
emphasis)
[15] Pollak described it
as follows:
“
In
short, therefore, the position is that unlike, say, the magistrates’
courts or the industrial court, the power of the Supreme
Court is not
spelled out in a legislative framework and limited by its creating
statute: it inherently has all such power as entitles
it to entertain
to hear ‘all causes arising’ within the area over which
it exercises jurisdiction.
[7]
”
[16] The Constitution of
the Republic of South Africa, 1996 has codified the doctrine of
inherent jurisdiction. Section 173 of the
Constitution reads:
“
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.”
[8]
[17] When one considers
the meaning and purpose of ‘inherent jurisdiction’ in
light of the above authorities, it can
never be conferred upon a
court by statute. The Magistrate’s Court and in this instance
the Regional Divorce Court, being
a creature of statute, does not
have inherent jurisdiction. Inherent jurisdiction is exclusively
borne by the High Court. Such
jurisdiction can never be conferred by
statute. It may only be excluded by statute. By enacting section 29
(1B) (a) and (b), the
legislature could not have intended to extend
the High Court’s inherent jurisdiction to grant an order for
civil contempt
to the Regional Divorce Court as contended by Ms M’s
counsel. If the legislature intended to give the Regional Divorce
Court
jurisdiction to grant an order for civil contempt of court in
respect of orders granted by that court, it may only do so through
a
specific legislative provision. The legislature may not extend the
exclusive inherent jurisdiction of the High Court to the Regional
Divorce Court. By its very nature, the doctrine of inherent
jurisdiction excludes such a postulation.
[18] Therefore any
suggestion that section 29(1B) (a) and (b) gives the Regional Court
jurisdiction to grant an order for civil
contempt of court lacks any
legal basis.
[19] The respondent was
not without a remedy in the Magistrate’s court. The
Magistrate’s jurisdiction to hear an application
for and to
grant an order for contempt of court is set out in
section 106
of the
Magistrates’ Courts Act. This
section gives the Magistrates’
Court jurisdiction over criminal contempt of court matters. This is
the procedure that Ms
M ought to have followed to enforce the divorce
order. The remarks of my brother Coppin J in
Dreyer
are
pertinent. He stated as follows at para 6:
“
The
Magistrates’ Court does not have the jurisdiction to grant the
relief claimed in prayers 4, 5, and 6 by virtue of the
limitation of
its jurisdiction imposed by section 46(2)(c) of the Act, and the
Magistrates’ Court is limited to imposing
a criminal sanction
in terms of section 106 of the Act. It was further submitted on
behalf of the applicant that the procedure
in the Magistrates’
Court entailed the laying of a charge with the police, where-after
the matter would then be in the hands
of the police and the
prosecuting authorities, whereas the procedure in the High Court
allowed the applicant to be in control of
the process.”
[20]
Only the High Court, exercising its inherent jurisdiction may grant
an order for civil contempt of court. Therefore if Ms.
M desires to
obtain an order for civil contempt of court, she ought to launch such
proceedings in the High Court. An order for
civil contempt of court
is a discretionary remedy that will not ordinarily be granted for the
enforcement of a judgment of another
court if there are effective
remedies in that other court at the disposal of a party seeking such
an order.
[9]
The High Court will
only grant such an order in exceptional circumstances. To succeed in
the High Court, Ms M will have to show
that there is good and
sufficient reason for the High Court to enforce the divorce order,
being an order of another court.
[21] In the premises, the
order granted by the court
a quo
on 6 May 2016, holding Mr. M
in contempt of an order that court granted on 15 June 2011, stands to
be set aside.
COSTS
[22] It is appropriate
that costs follow the costs of the appeal. However, such costs are to
exclude the costs of the appellant’s
counsel as Mr. M did not
brief counsel but argued the appeal in person.
[23] Therefore the
following order is made:
ORDER
1.
The order granted by the court
a
quo
on 6 May 2016, holding the
appellant (respondent
a quo
)
in contempt of an order that court granted on 15 June 2011 is set
aside.
2.
The respondent shall pay the appellant’s
costs of appeal which costs shall exclude the costs of counsel.
________________________________
MODIBA J
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL DIVISION
I
agree and it is so ordered
.
________________________________
CARELSE J
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL DIVISION
APPEARANCES:
Appellant’s
Counsel: In person
Appellant’s
attorneys: Ndlovhu A.J. Inc
Respondent’s
Counsel: Mr. M Miller
Instructed
by: Saders Attorneys
Date heard: 30 Jan - 03
Feb 2017
Date Judgment delivered:
28 March 2017
[1]
2013
(4) SA 498 (GSJ).
[2]
Section
10
(1)
Notwithstanding
anything in any other law contained, the Governor-General may by
proclamation in the Gazette establish native
divorce courts which
shall be empowered and have jurisdiction to hear and determine suits
of nullity, divorce and separation
between natives domiciled within
their respective areas of jurisdiction in respect of marriages and
to decide any question arising
out of any such marriage which is not
cognizable by a native commissioner’s court established under
section
ten
of the principal Act
(2)
The area of
jurisdiction of any court established under sub-section (1) shall
coincide with that of a native appeal court established
under
section
thirteen
of the principal Act.
(3)
Every such court
shall be a court of law and shall consist of the person for the time
being acting as president of the native
appeal court exercising
jurisdiction in the same area. The president may in his discretion
summon to his assistance two persons
holding the office of
magistrate to sit and act with him as assessors in an advisory
capacity on question of fact.
(4)
The provisions of
sub-sections (5) and (6) of section
thirteen
and sub-section (1) of section
sixteen
of the
principal Act in relation to native appeal courts shall
mutatis
mutandis
apply in respect of native divorce courts established under this
section.
(5)
An appeal from the
judgment of a native divorce court shall lie to the provincial or
local division of the Supreme Court having
jurisdiction.
(6)
Such appeal shall be
noted and prosecuted as if it were an appeal from a judgment of a
magistrate’s court in a civil matter,
and all rules applicable
to such last mentioned appeal whether in respect of the hearing
thereof or of the confirmation or setting
aside of the proceedings
appealed against, or otherwise, shall
mutatis
mutandis
apply to an appeal under this section.
(7)
Nothing in this
section shall be construed as in any manner divesting the Supreme
Court of jurisdiction in respect of any matter
specified in
sub-section (1).
[3]
9
Transitional provisions
(1)
Any proceedings instituted in a court established under section 10
of the Administration Amendment Act, 1929 ( Act 9
of 1929 ),
before the commencement of this section and which are not concluded
before the commencement of this section must be
continued and
concluded in all respects as if this Act had not been passed.
(2)
On the date of the commencement of this section-
(a)
each court established under section 10 of the Administration
Amendment Act, 1929 ( Act 9 of 1929 ), becomes a court of the
regional division designated by the Minister in respect of that
court;
[4]
“
29
Jurisdiction in respect of causes of action
(1B)
(a) A court for a regional division, in respect of causes of action,
shall, subject to section 28 (1A), have jurisdiction
to hear and
determine suits relating to the nullity of a marriage or a civil
union and relating to divorce between persons and
to decide upon any
question arising therefrom, and to hear any matter and grant any
order provided for in terms of the Recognition
of Customary
Marriages Act, 1998 (Act 120 of 1998).
(b)
A court for a regional division hearing a matter referred to in
paragraph (a) shall have the same jurisdiction as any High
Court in
relation to such a matter.”
[5]
[1981]
AC 909,
[6]
1965 (2) SA 582
(T) at 585 G-H
[7]
Pistorius
Pollak
on Jurisdiction
2 ed (1993) 28.
[8]
S.
173 substituted by s. 8 of the Constitution Seventeenth Amendment
Act of 2012 (wef 23 August 2013).
[9]
See Dreyer at paragraph 9.