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[2018] ZACC 5
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S S v V V S (CCT247/16) [2018] ZACC 5; 2018 (6) BCLR 671 (CC) (1 March 2018)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 247/16
In the matter
between:
S
S
Applicant
and
V
V-S
Respondent
Neutral citation:
S S v V V-S
[2018] ZACC 5
Coram:
Zondo
ACJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ,
Kollapen AJ, Madlanga J, Mhlantla J and Zondi AJ
Judgments:
Kollapen AJ (unanimous)
Heard on:
29 August 2017 / 8 November 2017
Decided on:
1 March 2018
Summary:
non-compliance with maintenance obligations —
rule
46(1)(a)(ii)
—
writ of execution against immovable property — non compliance
with court orders.
Proceedings
analogous to formal contempt —
Biowatch
principle on
costs not applicable — costs on attorney client scale —
punitive cost order.
ORDER
On appeal from the
Supreme Court of Appeal:
1. The application
for leave to appeal is dismissed.
2. The applicant is
to pay the respondent’s costs in this Court on an attorney and
client scale, excluding costs relating
to the 29 August 2017
postponement.
JUDGMENT
KOLLAPEN AJ (Zondo
ACJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ,
Madlanga J, Mhlantla J, and Zondi AJ concurring):
Introduction
[1]
This is an application for leave to appeal
against the judgment and order of the High Court of South Africa,
Gauteng Division, Pretoria,
(High Court) per Magardie AJ.
The
High Court granted an order authorising the issue of a warrant of
execution against the applicant’s immovable property.
The
warrant issued was in respect of maintenance obligations due by the
applicant to the respondent in respect of the minor
child born of the
erstwhile marriage between the parties.
Parties
[2]
The applicant is the former husband
of the respondent.
Background facts
[3]
The applicant and respondent were married in 2007 and a child,
K, was born during that marriage in September 2008.  The
marriage
was of limited duration as divorce proceedings were
initiated in March 2008.  On 29 October 2010, an order of
divorce was
granted by the High Court which incorporated the terms of
a settlement agreement between the applicant and respondent (Order).
That agreement deals substantially with the interests of the
minor child including matters relating to guardianship, care
and
contact, and maintenance.  The terms of the Order in so far as
maintenance is concerned, provide that:
“The
[applicant] shall pay the [respondent] the sum of R2500 (two thousand
five hundred rand) per month for the maintenance
of [K] (the basic
maintenance payment);
a)   The above amount will be paid monthly in advance of
the last day of each month.  The basic maintenance payment
will
be deposited into the [respondent’s] bank account;
b)   The basic maintenance payments shall increase by the
consumer price index on the anniversary of the signing of this

agreement and on all subsequent anniversaries thereafter;
c)   In addition to the basic maintenance payments, the
[applicant] shall be liable for half (50%) of [K’s] crèche

/ school fees and the [respondent] shall be liable for the remaining
half (50%);
d)   Each party will be liable for half (50%) of all costs
of [K’s] text books, school uniforms, reasonably required
extra
lessons, extra mural activities and uniforms, equipment, school
outings and tours and other necessarily related educational
expenses
and the like;
e)   The [applicant] will be liable for 50% of [K’s]
medical, dental, pharmaceutical, ophthalmic, specialist and
other
related medical expenses reasonably incurred that are not covered by
the [applicant’s] medical aid scheme.”
[4]
The agreement clearly distinguishes between what it describes
as the basic maintenance amount and then what may be described as the

additional amounts, the latter relating to the educational and
medical expenses in respect of the minor child.  The dispute

which arose relates to the applicant’s alleged failure to
honour his maintenance obligations under the Order’s terms.

The precise extent of his default was unclear from the record
but some clarity, though not sufficient, emerged during the
course of
this Court’s first hearing of the matter.
[5]
The respondent and K moved temporarily to the United States of
America (United States) and resided there from May 2010 to January

2014.  On 18 February 2014, and upon her return from
the United States, the respondent caused a warrant of execution
to be
issued out of the High Court against the applicant in the sum of
R 306 550.18.  The warrant issued was in
respect of the
movable goods of the applicant.
[6]
The issue of the warrant was supported by an affidavit filed
with the Registrar by the respondent in which she purported to
particularise
the applicant’s default in the sum of R306 550.18
under the different heads of maintenance.  The respondent
detailed
that maintenance owing was the “increase [in] the
maintenance by [6%] in October 2011” and subsequently “the
maintenance again increased by 5.6% in October 2012 [and] . . . [t]he
[applicant] has failed, since November 2005 to February 2014,
to
pay any maintenance whatsoever”.  She annexed various
lists to the affidavit which provided a monthly breakdown of
what she
alleged was in arrears and detailed the non-payment of maintenance,
school fees, medical expenses, and extra mural activities.
The
respondent provided no corroborative evidence for the school fees,
medical expenses, and extramural activities in the
form of receipts,
vouchers, invoices, tax returns or bank statements.
[7]
The Sheriff of the High Court, Pretoria East (Sheriff),
attempted to execute the warrant issued by the Registrar and on 22
February
2014 issued a
nulla bona
(no goods) return,
thereby confirming that the applicant had no movable assets to
satisfy the amount set out in the warrant.
[8]
The applicant disputes the correctness of the
nulla bona
return and offers a different account of what transpired during the
attempt by the Sheriff to execute upon the warrant, but nothing
turns
on that dispute and no more need be said about it.
Litigation history
[9]
The applicant brought an application before the High Court to
set aside the warrant of execution issued during February 2014.  That

application was dismissed with costs on 11 November 2014.
[10]
In
January 2015, the respondent
proceeded with an application in terms of rule
46(1)(a)(ii)
of the Uniform Rules of Court,
[1]
seeking to execute against the applicant’s immovable property.
[11]
The application was opposed by the
applicant who raised two preliminary points, the first being the
non-joinder of the bondholder
in respect of the property against
which execution was sought and the second that a proper case had not
been made out in terms
of rule 46(1).  In particular, the
applicant contended that the respondent had not set out all the
material and relevant considerations
that the Court was obliged to
consider in the granting of the relief sought.
[2]
[12]
On the key question of the
maintenance arrears which was central to the respondent’s case,
the stance of the applicant was
somewhat ambivalent.  In
paragraph
2.3 of the applicant’s
answering affidavit, he conceded that:
“
The
application is aimed at recovering maintenance arrears which I
currently owe to the [respondent].  I have fully acknowledged
my
indebtedness to the [respondent] in this regard.”
However,
when one considers the tenor of his stance taken throughout the
dispute then it may be fair to say that, while the applicant
does not
dispute his legal obligation to pay both the basic and additional
maintenance, his view was that the additional maintenance
amounts
were not properly quantified by reference to vouchers and proof of
payment.  The latter approach is more in accord
with what I
would describe as the applicant’s general basis of opposition
and his admission in paragraph 2.3 of his answering
affidavit must be
considered in this broader context.  Fairness and justice would
certainly support such an approach.
[13]
On 19 August 2015, the High Court
ordered execution against the applicant’s immovable property
and, in doing so, made reference
to what she regarded as the
“revolting attitude towards the [respondent] and the minor
child as well as his elaborate efforts
aimed at frustrating
compliance with his maintenance obligations”.
[14]
An application for leave to appeal was dismissed with costs on
2 March 2016 and a similar fate befell the application for leave to

appeal to the Supreme Court of Appeal.
In this Court
[15]
The applicant applied for leave to appeal, which was opposed
by the respondent.  This Court requested written submissions
and,
following receipt of these  from the parties, this Court
issued further directions on 10 May 2017 in the following terms:
“1.       The application for
leave to appeal is set down for hearing on Tuesday, 29 August

2017 at 10h00 in regard to the following issues:
a) Leave to appeal.
b) Appeal:
i)          whether the
amount of R306 550.18 was a judgment debt and whether,

therefore, the applicant and the respondent had a judgment
debtor-judgment creditor relationship in respect of that amount; and
ii)         whether the High
Court used the Rule 46(1)(a)(ii) execution process as a measure
of
last resort.”
[16]
The matter proceeded to hearing on 29 August 2017.  During
the course of the hearing it emerged that the applicant, even though

he disputed the quantification of the additional maintenance amounts,
was in substantial arrears with his basic maintenance obligations.

In particular, he did not pay maintenance for the period since
the respondent returned to South Africa from the United States
in
early 2014, right up to and including August 2017 when the matter was
first before this Court – a period of almost four
years.
[17]
This concession inevitably led to a discussion as to whether
the applicant’s conduct in failing to pay the undisputed
maintenance
obligation warranted this Court to proceed with the
hearing of the matter.
[3]
There was a live and open question whether it would undermine
this Court’s integrity to hear the dispute while the
applicant
remained in default with his admitted maintenance obligations.
[18]
While it is so that the proceedings in this Court on 29 August
2017 were not contempt proceedings, the concession of non-payment
of
the basic maintenance obligations, which was never in dispute, cannot
simply pass without consequence.  The judicial authority
vested
in all courts,
[4]
obliges courts to ensure that there is compliance with court orders
to safeguard and enhance their integrity, efficiency, and effective

functioning.  To this extent, the views expressed by our courts
on compliance with court orders remain relevant in these proceedings.
[19]
In
Matjhabeng
, this Court expressed itself on the
matter in the following terms:
“Section 165
of the Constitution, indeed, vouchsafes judicial authority.
This section must be read with the supremacy
clause of the
Constitution.  It provides that courts are vested with judicial
authority, and that no person or organ of state
may interfere with
the functioning of the courts.  The Constitution enjoins organs
of state to assist and protect the courts
to ensure, among other
things, their dignity and effectiveness.
To ensure that
courts’ authority is effective, section 165(5) makes orders of
court binding on ‘all persons to whom
and organs of state to
which it applies’.  The purpose of a finding of contempt
is to protect the fount of justice by
preventing unlawful disdain for
judicial authority.  Discernibly, continual non-compliance with
court orders imperils judicial
authority.”
[5]
(Footnotes omitted.)
[20]
Further in
Fakie,
the Supreme Court of Appeal, per
Cameron JA, held:
“
It
is a crime unlawfully and intentionally to disobey a court order.
This type of contempt of court is part of a broader offence,
which
can take many forms, but the essence of which lies in violating the
dignity, repute or authority of the court.  The
offence has, in
general terms, received a constitutional ‘stamp of approval’,
since the rule of law – a founding
value of the Constitution –
‘requires that the dignity and authority of the courts, as well
as their capacity to carry
out their functions, should always be
maintained’.”
[6]
(Footnotes omitted.)
[21]
The applicant does not face the consequences of either a
finding of civil or criminal contempt but his conduct, if left
unaddressed
by this Court, would undermine judicial integrity.
Analogous considerations to formal contempt proceedings arise.
In
this regard, counsel for the applicant was certainly amenable to
the matter being postponed to enable the applicant to remedy the

consequences of his failure to pay.  It was a stance which was
wisely and correctly taken given the significant and ongoing
nature
of the failure by the applicant to comply with his maintenance
obligation towards his minor child.  A court’s
role is
more than that of a mere umpire of technical rules, it is “an
administrator of justice . . . [it] has not only to
direct and
control the proceedings according to recognised rules of procedure
but to see that justice is done”.
[7]
[22]
A further factor which fortifies the conclusion that this
Court was not only entitled but obliged to have raised and dealt with
the non-compliance with the Order by the applicant, lies in the
nature of the obligations that the Order and the settlement agreement

which accompanied it evidenced.
[23]
All court orders must be complied with diligently, both in
form and spirit, to honour the judicial authority of courts.  There

is a further and heightened obligation where court orders touch
interests lying much closer to the heart of the kind of society
we
seek to establish and may activate greater diligence on the part of
all.  Those interests include the protection of the
rights of
children and the collective ability of our nation to “free the
potential of each person”
[8]
including its children, which ring quite powerfully true in this
context.
[24]
Thus, when courts act as the upper guardian of each child they
do so not only to comply with the form that the Constitution enjoins

us to be loyal to,
[9]
but with the very spirit that is encapsulated in the provisions of
section 28(2) of the Constitution that “a child’s
best
interests are of paramount importance in every matter concerning the
child”.
[25]
This is precisely such a matter.  The Order was about
ensuring the best means of protecting and enhancing the interests of
the minor child, and the scope and the breadth of the provisions of
the settlement agreement appear to compellingly underscore that

objective.  The High Court, when it granted the decree of
divorce, must then have been satisfied that the interests of the

minor child were well catered for.
[26]
When those interests are imperilled or when the obligation
undertaken by either parent to the child is not diligently complied
with,
then courts are enjoined to interfere in a manner that best
protects those interests.  In
Bannatyne
, this Court dealt
with the significance of maintenance obligations and the duty of
courts to ensure compliance therewith.
The Court articulated
itself on the matter in the following terms:
“Systemic
failures to enforce maintenance orders have a negative impact on the
rule of law.  The courts are there to
ensure that the rights of
all are protected.  The judiciary must endeavour to secure for
vulnerable children and disempowered
women their small but
life-sustaining legal entitlements.  If court orders are
habitually evaded and defied with relative
impunity, the justice
system is discredited and the constitutional promise of human dignity
and equality is seriously compromised
for those most dependent on the
law.
It is a function of
the state not only to provide a good legal framework, but to put in
place systems that will enable these frameworks
to operate
effectively.  Our maintenance courts and the laws that they
implement are important mechanisms to give effect to
the rights of
children protected by section 28 of the Constitution.  Failure
to ensure their effective operation amounts to
a failure to protect
children against those who take advantage of the weaknesses of the
system.”
[10]
[27]
Reverting to the proceedings of 29 August 2017, this Court,
presented with the common cause evidence of the non-compliance with
the basic maintenance obligations that the applicant had undertaken
to pay, made the following order:
“1.       The matter is postponed
to Wednesday 8 November 2017 at 10h00.
2.         The applicant must
pay the respondent’s costs of postponement.
3.         The applicant must
pay to the respondent’s attorneys, for the benefit
of the minor
child, an amount of at least R150 000 on or before 30 September
2017.
4.         In addition to
this payment, the applicant must make monthly payments in respect
of
the maintenance obligations and other expenses of the minor child in
accordance with the order of the High Court.”
[28]
This 29 August 2017 order (August Order) responded to the
pressing need both to respect K’s best interests and safeguard
against
potential damage to this Court’s integrity.  This
Court’s integrity would be jeopardised if it failed to uphold

its solemn constitutional obligation under section 28, to protect the
best interests of children.
The proceedings in
this Court of 8 November 2017
[29]
When the hearing of the matter resumed on 8 November 2017, a
necessary and anterior issue to be determined was whether the
applicant
had complied with the August Order.  It was
particularly important that this Court was satisfied that he had,
especially
given that the matter had previously not proceeded on
account of the failure by the applicant to pay his basic maintenance
obligations.
The paramount question was whether the applicant
had remedied his default and allayed this Court’s earlier
concerns
that continuing to resolve this dispute while the basic
maintenance remained unpaid, would undermine judicial integrity by
ignoring
K’s best interests.
[30]
The question raised was important in the context of
determining what sanction, if any, this Court would consider in the
event of
failure by the applicant to establish that he had remedied
his conduct.
[31]
In
Burchell
, the High Court, upon finding that a
party was in contempt of an order of court, ordered as part of the
relief it granted that,
unless the offending party purged his
contempt, he faced the risk of being precluded from continuing with
any litigation in the
High Court.
[11]
Such a sanction, which may at first sight appear to run counter
to the right of access to courts enshrined in section 34
of the
Constitution,
[12]
is in my view wholly appropriate in circumstances when one is dealing
with conduct that may be described as contemptuous of the
authority
of the order issued by a court.  It can only be described as
unconscionable when a party seeks to invoke the authority
and
protection of this Court to assert and protect a right it has, but in
the same breath is contemptuous of that very same authority
in the
manner in which it fails and refuses to honour and comply with the
obligations issued in terms of a court order.  The
High Court,
in
Di Bona
,
supports the view that a court may refuse to hear a party until they
have purged themselves of the contempt by coming to the following

conclusion:
“The
consequences of the rule are that anyone who disobeys an order of
[c]ourt is in contempt of [c]ourt and may be punished
by arrest of
his person and by committal to prison and, secondly, that no
application to the [c]ourt by a person in contempt will
be
entertained until he or she has purged the contempt.”
[13]
[32]
In his response to the question whether he had complied with
the August Order, the applicant offered, through his counsel, an
explanation
from the Bar of the steps he had taken in furtherance of
the order.  No affidavit was filed by the applicant setting out
the
manner of compliance with the August Order and in any event the
explanation offered from the Bar was the subject of contestation
from
the side of the respondent.  The applicant’s counsel
submitted that the applicant paid R150 000, the minimum
amount
prescribed in the August Order.  Counsel conceded that the
applicant failed to honour the term that he “must
make monthly
payments in respect of the maintenance obligations and other expenses
of the minor child in accordance with the order
of the High Court”.
The applicant’s counsel sought to postpone the hearing a second
time to allow the applicant
to depose to an affidavit explaining the
non-compliance.  The reason for non-compliance offered, advanced
from counsel, was
that the R150 000 was more than the calculated
amount of basic maintenance owing, and that the respondent had agreed
to allow
a portion of the R150 000 as a set off for the monthly
payments owing since the August Order.  Respondent’s
counsel
disagreed that any agreement had been concluded.
[33]
Notwithstanding the existence or otherwise of any agreement,
this was not an adequate and proper reason for non-compliance with
the August Order.  Given the serious nature of the conduct that
was conceded, it is hardly acceptable or appropriate for this
Court
to engage in speculation or an oral contestation from counsel in
respect of such a significant issue.  Further, considering
the
relief that the applicant was seeking, he should have proceeded with
greater care in ensuring that he was in compliance with
the August
Order.  As mentioned earlier, this matter does not deal with
formal contempt proceedings and the requirement of
purging related
contempt.  However, the principle need to preserve the integrity
of justice is present here, and there is
an undoubted need to assess
whether conduct that could compromise that integrity is remedied.
[34]
Under the circumstances and for the reasons given, I conclude
that on what is before us, there is no evidence that the applicant

had remedied his conduct.  This conclusion then leads to the
question as to whether the interests of justice are served by

allowing the applicant to ventilate his argument in respect of the
merits of the appeal.
[35]
Those interests will not be best served and will be undermined
if the applicant is allowed to proceed and deal with the merits of

the appeal in the absence of him remedying his conduct by complying
with the August Order.  It will dilute the potency of
the
judicial authority and it will send a chilling message to litigants
that orders of court may well be ignored with no consequence.
At
the same time, it will signal to those who are the beneficiaries of
such orders that their interests may be secondary
and that the value
and certainty that a court order brings counts for little.  For
all these reasons, and in particular that
the subject matter of this
litigation involves the best interests of the child, the interests of
justice strongly militate against
the applicant’s pursuing his
application.  Proceeding with the hearing of this matter, where
adequate compliance with
the August Order, which sought to ensure
payment of the basic maintenance for K, is in doubt, would create
“[c]ontinued uncertainty
. . . [which] cannot be in the
interests of the child”
[14]
and does not further the interests of justice.
[36]
This Court enjoys wide jurisdiction to hear matters involving
a constitutional issue or where an issue is connected with a decision

on a constitutional matter.
[15]
Notwithstanding the significance or otherwise nature of the
constitutional issue raised, an overriding consideration must
always
remain whether the interests of justice dictate that a matter be
heard.
[16]
Those interests are not confined to those of the applicant but
extend and include all the parties before this Court as well
as those
of the public at large.  Those interests, properly
contextualised and considered, also stand against leave to appeal

being granted.
[17]
This Court granting leave to appeal in this matter would
clearly run counter to the interests of justice, given the cumulative

effect of the applicant’s failure to respect K’s best
interests by paying the basic maintenance and his continued failure

to respect this Court’s integrity by flouting the August Order.
Costs
[37]
While it was submitted on behalf of the applicant that the
Court should not make any order as to costs in the event of the
application
being dismissed, the principle in
Biowatch
should
not apply.
[18]
This is precisely the kind of case that should invoke the
exception to
Biowatch
for litigation that is “frivolous
or vexatious, or in any other way manifestly inappropriate”.
[19]
In light of the totality of circumstances at the two hearings before
this Court, and the applicant’s wanton conduct,
my view is that
the litigation was “manifestly inappropriate”.
Given the applicant’s conduct compromising
K’s best
interests and this Court’s integrity, his continued application
can be viewed as “so unreasonable or
out of line that it
constitutes an abuse of process”.
[20]
As this Court aptly stated in
Limpopo Legal Solutions,
“although
Biowatch
changed the costs landscape for
constitutional litigants, it gives no free pass to cost-free,
ill-considered, irresponsible litigation”
and applicants
“seeking to vindicate constitutional rights must respect court
processes”.
[21]
Accordingly, the applicant is directed to pay the respondent’s
costs in this Court for the application.
[38]
What remains to be determined is the scale of such costs.
Counsel for the respondent urged the Court to impose a punitive cost

order as a measure and indication of its displeasure at the manner in
which the applicant has conducted this litigation.
[39]
In
Nel
, the High Court held the following in relation
to punitive cost orders:
“A costs order
on an attorney and client scale is an extraordinary one which should
not be easily resorted to, and only when
by reason of special
considerations, arising either from the circumstances which gave rise
to the action or from the conduct of
a party, should a court in a
particular case deem it just, to ensure that the other party is not
out of pocket in respect of the
expense caused to it by the
litigation.
As such, the order should not be granted lightly, as courts look upon
such orders with disfavour and are loath to penalise a person
who has
exercised a right to obtain a judicial decision on any complaint such
party may have.”
[22]
(References omitted.)
[40]
The Labour Appeal Court, in
PCASA,
emphasised the view
that punitive cost orders are “extraordinary” in nature
and they will not be easily granted:
“The scale of
attorney and client is an extraordinary one which should be reserved
for cases where it can be found that a
litigant conducted itself in a
clear and indubitably vexatious and reprehensible conduct.  Such
an award is exceptional and
is intended to be very punitive and
indicative of extreme opprobrium.”
[23]
[41]
This is the kind of matter where a punitive order of costs
would be justified.  Neglecting to respect K’s best
interests
and the failure to honour the August Order, that sought to
ensure those interests are protected and preserve this Court’s

core integrity, is precisely the kind of “extraordinary”
conduct worthy of a court’s rebuke with punitive sanctions.

Adding to those transgressions, the manner in which the applicant
failed to apprise this Court of any efforts to remedy his conduct
and
sought to improperly admit oral evidence on these efforts from
counsel, disregarding the appeal process and transforming the
hearing
into a factual inquiry – absent appropriate leave – is a
further basis warranting punitive costs in this matter.
The
applicant must accordingly pay the costs of the respondent in this
Court on an attorney and client scale.  However, this
cost order
is applicable only to the proceedings that took place on 8 November
2017, the earlier cost order in respect of the August
Order still
stands.
A concluding
observation
[42]
This case involves, in the narrowest sense, a dispute about
the payment of a maintenance obligation.  There is little doubt

that the payment of maintenance is an important factor in the ability
of a custodian parent to provide for the needs and interests
of a
minor child.  Those needs and interests are, however, best
served when a child is able to enjoy the recognition of its
parents
and the love and care that is almost symptomatic of being a parent.
When that is missing, one can only speculate
about the manner in
which it redounds on the wellbeing of a young child.  It was,
accordingly, with some dismay that this
Court noted a request in
October 2017 by the applicant to have the child undergo a paternity
test.  This coming some seven
years after the divorce was
finalised and following two paternity tests conducted by independent
pathologists, which showed with
99.999994% certainty that the
applicant is K’s father, raises in the sharpest and most
concerning of terms the attitude of
the applicant towards the minor
child rooted, as it appears to be, in a belief that the child is not
his.
[43]
Impressive as its powers are, no court can direct a parent to
love and recognise a child, critical as that may be to the full
development
of a child.  What we can do and are enjoined to do,
is to point out that every child is deserving of the love and care
that
is necessary for their development and that the duty to provide
that rests primarily on the parents of the child.  We can only

hope that in the young life of the minor child whose interest is the
subject of this litigation, that that transpires in the fullness
of
time.
Order
[44]
The following order is made:
1. The application for leave to appeal is dismissed.
2. The applicant is to pay the respondent’s costs in this Court
on an attorney and client scale, excluding costs relating
to the 29
August 2017 postponement.
For the Applicant: D
Z Kela instructed by Ndumiso Voyi Inc
For the Respondent:
G T Avvakoumdies and T Mogale instructed by Snyman De Jager Inc
Attorneys
[1]
Rule 46 reads:
“(1)(a)    No writ of execution against the
immovable property of any judgment debtor shall issue until—
. . .
(ii)        such immovable
property shall have been declared to be specially executable by
the
court or, in the case of a judgment granted in terms of rule 31(5),
by the registrar: Provided that, where the property
sought to be
attached is the primary residence of the judgment debtor, no writ
shall issue unless the court, having considered
all the relevant
circumstances, orders execution against such property.”
[2]
The material and relevant points being those articulated in
Jaftha
v Schoeman
,
Van Rooyen v Stoltz
[2004] ZACC 25
;
2005 (2)
SA 140
(CC);
2005 (1) BCLR 78
(CC) at paras 59-60 and
Gundwana v
Steko Development CC
[2011] ZACC 14
;
2011 (3) SA 608
(CC);
2011 (8) BCLR 792
(CC) at para 54.
[3]
Section 173 of the Constitution affords this Court, the Supreme
Court of Appeal, and the High Court of South Africa the

“inherent power to protect and regulate their own process, and
to develop the common law, taking into account the interests
of
justice”.
[4]
Section 165 of the Constitution provides that “[t]he judicial
authority of the Republic is vested in the courts”.
[5]
Matjhabeng Local Municipality v Eskom Holdings Limited; Mkhonto v
Compensation Solutions (Pty) Limited
[2017] ZACC 35
;
2017 (11)
BCLR 1408
(CC) (
Matjhabeng
) at paras 47-8.
[6]
Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA) (
Fakie
) at para 6.
[7]
Take & Save Trading CC v The Standard Bank of SA Ltd
[2004]
ZASCA 1
;
2004 (4) SA 1
(SCA) at para 3, referencing
R v Hepworth
1928 AD 265.
[8]
See Preamble of the Constitution.
[9]
H v Fetal Assessment Centre
[2014] ZACC 34
;
2015 (2) SA 193
(CC);
2015 (2) BCLR 127
(CC) at para 64 states that:
“
In
South Africa, in addition to section 28(2) of the Constitution, the
common law principle that the High Court is the upper guardian
of
children obliges courts to act in the best interests of the child in
all matters involving the child.  As upper guardian
of all
dependent and minor children, courts have a duty and authority to
establish what is in the best interests of children.”
The Children’s
Act 38 of 2005 at section 45(4) further states that “[n]othing
in this Act shall be construed as limiting
the inherent jurisdiction
of the High Court as upper guardian of all children”.
[10]
Bannatyne v Bannatyne
[2002] ZACC 31
;
2003 (2) SA 363
(CC);
2003 (2) BCLR 111
(CC) at paras 27-8.
[11]
Burchell v Burchell
[2005] ZAECHC 35
at para 35.
[12]
Section 34 of the Constitution provides that “[e]veryone has
the right to have any dispute that can be resolved by the

application of law decided in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal
or
forum”.
[13]
Di Bona v Di Bona
1993 (2) SA 682
(C) at 688F-G.
[14]
Fraser v Naude
[1998] ZACC 13
;
1999 (1) SA 1
(CC);
1998 (11)
BCLR 1357
(CC) at para 9.
[15]
Section 167(3)(c) of the Constitution.
[16]
Paulsen v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at paras 29-30.
[17]
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at para 12.
[18]
Biowatch Trust v Registrar Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
) at
paras 26-7 referencing
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) and
Campus Law
Clinic (University of KwaZulu-Natal Durban) v Standard Bank of
South Africa Ltd
[2006] ZACC 5; 2006 (6) SA 103 (CC), 2006
(6) BCLR 669 (CC).
[19]
Biowatch
id at para 24.
[20]
Lawyers for Human Rights v Minister in the Presidency
[2016]
ZACC 45
;
2017 (1) SA 645
(CC);
2017 (4) BCLR 445
(CC) at para 20.
[21]
Limpopo Legal Solutions v Eskom Holdings SOC Limited
[2017]
ZACC 34
at para 41.
[22]
Nel v Davis SC N.O
.
[2017] JOL 37849
(GP) at paras 25-6.
[23]
Plastic Converters Association of South Africa (PCASA) obo
Members v National Union of Metalworkers Union of South Africa
[2016] JOL 36301
(LAC) (
PCASA
) at para 46.