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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 57719/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 10 December 2025
SIGNATURE
In the matter between:
M[...] A C[...] Applicant
And
C[...] p R[...] Respondent
JUDGMENT
Mahomed J
BACKGROUND
The applicant in the main application seeks an order for contempt of court, the
respondent has allegedly failed to pay over maintenance for the minor children . In
July 2009, the Central D ivorce Court granted and decree of divorce which
incorporated a settlement agreement.1, was granted by the Central Divorce Court in
July 2009.
THE ISSUE
1 CL 003-1 to 003-9
[1] The respondent raised a point in limine, regarding this court’s jurisdiction to
hear the contempt proceedings. T he parties agreed to separate the issue , I
was to determine the point in limine . The remaining issues are to be
postponed sine die for determination later.
Submissions
[2] Georgiou SC on behalf of the respondent submitted that this court does not
have the jurisdiction to hear th e application and argued that the applicant
should have instituted the application for contempt of court in the Regional
Magistrates’ Court in terms of s 106 of the Magistrates Court Act 32 of 1944
(:the Act”).
[3] Section 106 provides:
“ any persons wilfully disobeying, or refusin g to comply with any judgment or
order of a court with a notice lawfully endorsed on summons … shall be guilty
of contempt of court and shall upon conviction be liable to a fine, or to
imprisonment for a period not exceeding six months or to such period without
the option of a fine.”
[4] It was argued for the respondent, that the court which granted the order is
the court which should determine the issue of the contempt application .
Furthermore, the respondent argued that the applicant fails to set out why this
court should hear this application and why i t should enforce the order of
another court.
[5] Advocate C Bezuidenhout for the applicant, submitted that the High Court
enjoys inherent jurisdiction, it is the appropriate forum for her client to have
launched her application , she can elect which court to approac h.
Furthermore, counsel submitted that the applicant seeks declaratory relief
and the Magistrates ’ court does not have jurisdiction to grant such relief . It
was contended that the applicant seeks a civil order for contempt, the
Magistrates’ Court grants only a criminal order for contempt.
[6] Counsel for t he respondent relied on the judgment in Dreyer v Wiebols and
Others , where Coppin J stated that2:
“ the proceedings for committal for contempt of court ought to be
brought in the court that made the order which the respondent is
alleged to have disobeyed. When a high court entertains an
application in civil proceedings for committal for contempt of court, it
does so of its inherent jurisdiction to ensure that orders are complied
with. Process in aid is a remedy by mean s whereof a court enforces
the judgment of another court which cannot be effectively enforced
through that court’s own process and is also a means whereby a court
secures complianc e with its own procedure . … it is a discretionary
remedy which will not ordinarily be granted for the enforcement of a
judgment of another court if there are effective remedies in that other
court which can be used.” (own emphasis)
[7] Ms Georgiou referred to the full bench decision in MC v MJ3, where the court
set aside an order for civil contempt granted by the court a quo, and held that
a High Court will make an order in terms of its inherent jurisdiction only in
exceptional circumstances. This is a discretionary power which the High Court
holds, orders will be granted if good and sufficient reason is given to enforce
the order of another court.
[8] The applicant in casu contended that she required the committal order , but as
in a civil contempt order, and that imprisonment would be a last resort,
counsel submitted that s106 of the Magistrates’ Court Act provides only for
committal in the criminal sense.
[9] The applicant has not demonstrated as enunciated in Bannatyne,4 where the
SCA clarified, that there must exist “ the good cause and sufficient reason for
the high court to enforce the judgment of another court.”
2 2013 (4) SA 498 (GSJ) para 9
3
4 2003 (2) SA 363 (CC) (2003)(2) BCLR 111 para 20.
[10] Ms Bezuidenhout further argued that the respondent consented to jurisdiction
of the High Court when he obtained an order setting aside a writ of execution5
granted to her client. However, Ms Georgiou disagreed and submitted that in
fact the applicant approached the High Court for a warrant of execution and
her client was forced to approach the High court at the time to set it aside .
Counsel reiterated that the respondent did not consent to this court’s
jurisdiction and prayer 2 of that order cannot be read to mean that he
consented to the High Court’s jurisdiction. Ms Bezuidenhout submitted that
her client has an election on which court to approach and she has chosen the
High Court as the civil order for committal serves as a deterrent, it will not
serve her client to have the respondent imprisoned, she requires him to pay
over her children’s maintenance.
ANALYSIS AND JUDGMENT
[11] I find no reason to deviate from the judgments which I was referred to.
[12] The applicant (in the main application) offered no good and sufficient reasons
why the Magistrate’s Court is ineffective and the order cannot be enforced. In
my view the applicant’s holding an election is not the factor to focus on.
[13] The applicant must present the court with good and sufficient reasons why the
High Court is to enforce the order granted by another court. The applicant
fails to present any good reasons why the Magistrates Court is not suitable to
enforce its own order.
[14] Furthermore, the application for declaratory relief is not supported, nothing
was before me as to the purpose or need for this order. In the Dreyer
judgment I noted that Coppin J dismissed an application notwithstanding the
declaratory relief sought. I noted the approach adopted by Coppin J has been
followed and I am also bound by the approach by the Full Bench on this point
of jurisdiction.
5 CL 003-10 at para 2
[15] Accordingly, the point in limine is upheld.
I make the following order:
1. The issue regarding the court’s jurisdiction is separated.
2. The point in limine is upheld
3. The applicant’s application is dismissed with costs on scale C.
S MAHOMED
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
Date of Hearing: 27 August 2025
Date of Judgment: 10 December 2025
Appearances:
For Applicant (in main application) Adv Bezuidenhout
Instructed by:Paterson Attorneys
Email:kate@patersonattorneys.co.za
For Respondent (in main application) Adv S Georgiou
Instructed by: Christopher Bean Attorneys
Email: beanpole@global.co.za