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[2013] ZAWCHC 177
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M v M and Another (9179/2013) [2013] ZAWCHC 177; 2014 (2) SA 403 (WCC) (20 November 2013)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION)
REPORTABLE
Case
no: 9179/2013
In
the matter between:
J[…]
J[…]
M[…]
......................................................................
Applicant
and
LINDA
M[…]
....................................................................
1st
Respondent
THE
SHERIFF OF THE HIGH COURT
STELLENBOSCH
..........................................................
2nd
Respondent
Heard:
13 November2013
JUDGMENT:
20 NOVEMBER 2013
SAVAGE
AJ
Introduction
[1]
This is an opposed urgent application instituted by the
applicant, J[…] M[…], in terms of which a writ of
execution
issued out of this Court at the instance of the first
respondent, L[…] M[…], is sought to be set aside,
alternatively
suspended with costs to stand over for later
determination.
[2]
The issue to be determined is whether a High Court writ of
execution may be obtained to enforce a maintenance order granted by
the
High Court when Ch 5 of the Maintenance Act 99 of 1998 (as
amended) provides for the enforcement of a maintenance order, which
includes a maintenance order made by the High Court, by the
maintenance court.
[3]
At the outset of proceedings, counsel for the first respondent
disputed that the application was urgent but accepted given the
importance
of the issue raised that the matter should nevertheless be
determined.
Background
[4]
The background to the matter is as follows. The parties,who
have three young daughters, are currently embroiled in acrimonious
divorce
proceedings. On 28 August 2013, following an opposed rule 43
application, the applicant was ordered by this Court to pay
maintenance
pendente lite
in the amount of R11 000 per month to
the first respondent in respect of the children and further monthly
payments detailed in the
order. In spite of the order granted, the
following month the respondent failed to paythe maintenance amountand
the first respondent
obtained a writ of execution issued by the
registrar of the High Court in respect of the arrear maintenance
outstanding. In addition,
the applicant approached the magistrate’s
court for an emoluments attachment order, which was granted on 30
September 2013
in terms of which the applicant’s employer was
ordered to deduct R11 000 per month plus the arrear maintenance at a
rate
of R500 per month from the applicant’s salary.
[5]
At the time that this application was argued, the applicant’s
trailer valued at approximately R10 000,00 had been attached
by the
second respondent to cover the arrear amount of R3825,00 outstanding
and the applicant had applied on 7 October 2013 to
the maintenance
court for a variation of this Court’s order made in terms of
rule 43.
Enforcement
of order
[6]
A maintenance order isdefined in
s1(1)
of the
Maintenance Act
99 of 1998
as –
‘
any
order for the payment, including the periodical payment, of sums of
money towards the maintenance of any person issued by any
court in
the Republic…
’.
[7]
S26(1)
provides that a maintenance order –
‘
shall
be enforceable in respect of any amount which that person has so
failed to pay, together with any interest thereon –
(i)
by execution against property as contemplated in
section 27
;
(ii)
by the attachment of emoluments as contemplated in
section 28
;
or
(iii)
by the attachment of any debt as contemplated in
section 30
’.
[8]
Such warrant of execution, emolument attachment or debt
attachment order may be obtained in terms of
s26(2)
if the
maintenance order remains unsatisfied for a period of 10 days from
the day on which the relevant amounts became payable.
[9]
Following an amendment to
s26
in terms of
s18(1)
of the
Judicial Matters Second Amendment Act 55 of 2003
, effective from 31
March 2005, a maintenance order of the High Court order became
enforceable through the maintenance court. This
was so consequent to
the removal in
s26
of the words ‘made under this Act’
after ‘maintenance order’ having the effect that a
maintenance order
granted in the High Court was enforceable by way of
the mechanisms provided in the
Maintenance Act.
[10
]
Since the writ of execution in this matter was issued in
respect of a maintenance order, Ms Pratt for the applicant submitted
that
the first respondent was obliged to adhere to the procedures
contained in chapter 5 of the
Maintenance Act to
obtain civil
execution and execute any debt out of the magistrate’s court as
opposed to the High Court.Ms De Wet for the
first respondent disputed
this on the basis of
Thomson v Thomson
2010 (3) SA 211
(W) at
218C-D in which a full bench of the Witwatersrand Local Division held
that the provisions of the
Maintenance Act do
not preclude a party
from obtaining a writ of execution out of the High Court for failure
to pay maintenance and accordingly that
this procedure remains
competent and available to the first respondent.
[11]
The decision of
PT v LT and another
2012 (3) SA 623
(C),to which I was referred by counsel, does not follow
Thomson
(supra)
. In
PT
an order was sought setting aside a writ of
execution obtained from the registrar of the High Court in respect of
an unpaid arrear
maintenancedebt. This debt had arisen subsequent to
a maintenance order granted by the High Court.Binns-Ward J at
628G-Hof the
judgment found that the
Maintenance Act expressly
dealt
with the recovery of arrear maintenance by civil execution and that
at the time
Thomson
had been decided the provisions of Ch 5
were applicable only in respect of orders of the maintenance court.
[12]
At 630A-D Binns-Ward J stated that the amendments to the
Maintenance Act brought
maintenance orders made by the High Courts
within the embrace of
s26
of that Act and noted that s26(2), read
with s27, permits any person against whom a writ of execution is
issued the right to apply
for the holding of an enquiryand the
maintenance court may suspend the writ (or attachment of emoluments
or debt order) pending
conclusion of such enquiry. In considering the
intention of the legislature when it amended s26(1) to make High
Court maintenance
orders susceptible to Ch 5 of the
Maintenance Act,
the
judgefound that –
‘
(i)
t
is unlikely to have been the legislature's intention that there
should be two different systems of civil enforcement of High Court
maintenance orders in existence parallel to each other; the one with
a 10 day moratorium on enforcement, the other having no such
moratorium; the one providing for a statutory procedure to convert
the enforcement process into an enquiry; the other attended
by no
statutory restraints. An ability by a maintenance creditor to choose
between such alternative enforcement procedures, if
the choice were
available, would introduce an arbitrariness in respect of the
consequences for the debtor that would be difficult
to reconcile with
rationality and equality before the law. Moreover, having regard to
the expressed intention of the Act, being
the creation of a fair and
equitable maintenance system under the framework of the statute, the
achievement of that object it would
not be assisted if s26(1) were
read as merely permissive or enabling in nature, and as allowing for
disparate but parallel means
of enforcement of High Court maintenance
orders - the one under the Act, and the other outside it’
(at 632 F-H).
[13]
It was further concluded in
PT
that the unified system of
enforcement provided did not derogate from the existing authority of
any court to make a maintenance
order and that the
Maintenance Act is
of a character such as to assist the accessibility and effectiveness
of the courts and to provide for their functions and procedures
as
contemplated by s 165(4) and s171 of the Constitution (at 634A-B).
Accordingly, a system different to the ordinary enforcement
of High
Court orders does not derogate from or oust the High Court’s
jurisdiction.
Evaluation
[14]
The enforcement of court orders is a critical component of the
exercise of judicial authority. The unlawful and intentional
disobedience
of a court order not only violates the dignity, repute
or authority of the court (
S v Beyers
1968(3) SA 70(A) per
Steyn CJ) but also undermines the effect of the order. Orders are
enforced primarily although not exclusively
through the issuance of a
writ of execution in the High Court (a warrant in the magistrate’s
court) or by way of contempt
proceedings. In
Fakie NO v CCII
Systems (Pty) Ltd
2006 (4) 326 (SCA)Cameron JA at para 7 held
that a private litigant who has obtained a court order requiring an
opponent to do or
not do something (
ad factum praestandum
) is
entitled to approach the court again, in the event of non-compliance,
for a further order declaring the non-compliant party
in contempt of
court, and imposing a sanction. This is a civil proceeding that
invokes a criminal sanction or its threat and the
court grants
enforcement -
‘…
because
of the broader public interest in obedience to its orders, since
disregard sullies the authority of the courts and detracts
from the
rule of law’ (at para 8)
.’
[15]
S42
of the
Superior Courts Act 10 of 2013
, which came into
operation on 23 August 2013, provides that –
…
(2)
The civil process of a Division runs throughout the Republic and
may be served or executed within the jurisdiction of any Division’.
(3) Any
warrant or other process for the execution of a judgment given or
order issued against any juristic person, partnership
or firm may be
executed by attachment of the property or assets of such juristic
person, partnership or firm
.
[16]
In terms of
s43(1)
the sheriff –
‘
must,
subject to the applicable rules, execute all sentences, judgments,
writs, summonses, rules, orders, warrants, commands and
processes of
any Superior Court directed to the sheriff and must make return of
the manner of execution thereof to the court and
to the party at
whose instance they were issued
.’
[17]
Similar provisions existed in the now
repealed Supreme Court Act 59 of 1959.
[18]
As a general rule the Court that grants
an order retains jurisdiction to ensure that its order is complied
with, although that jurisdiction
is not exclusive.
In
Els v
Weideman
2011 (2) SA 126
(SCA) at para 37 it was stated in the
context of contempt proceedings that -
‘…
(g)
iven
the common constitutional foundation and mutual duty of enforcement
among the High Courts of South Africa it makes no sense
to insist
that the court which issued the order is the only one to feel the
insult to its dignity and, therefore the only proper
court to try
such an issue. None of the countervailing arguments carries
persuasion
.’
[19]
Distinct remedies available to a party that seeks to enforce a
Court order entitle the party seeking enforcement to choose the
remedy
which is considered the most efficacious (
Martin v Martin
1997 (1) SA 491
(N) at 496);
Duncan v Duncan
1984 (2) SA 310
(C)).
[20]
The fact that a party is permitted to seek the
magistrate’s court to enforce a maintenance order of this Court
does not lead
to a necessary implication that the High Court is
prevented from enforcingits own maintenance order. To find this be
so, a conclusion
would have to be drawn that
ss42(2)
, (3) and
43
(1)
of the
Superior Courts Act had
by necessary implication been amended
to exclude the enforcement of maintenance orders granted by the High
Court.Corbett JA in
Rennie NO v Gordon and another NNO
1988
(1) SA 1
(A) at 22E-G stated that –
‘
Over
the years our Courts have consistently adopted the view that words
cannot be read into statute by implication unless the implication
is
a necessary one in the sense that with out it effect cannot be given
to the statute as it stands
(see e.g.
Germiston Municipality v
Rand Cold Storage Co
Ltd
1913 TPD 530
at 539;
Taj Properties
(Pty) Ltd v Bobat
1952 (1) SA 723
(N) at 729 E-H;
S v Van
Rensburg
1967 (2) SA 291
(C) at 294C-D;
The Firs investments
(Pty) Ltd v Johannesburg City Council
1967 (3) SA 549
(W) at
557B-C;
DEP Investments (Pty) Ltd v City Council, Pietermaritzburg
1975 (2) SA 261
(N) at 265G-H;
Hamman en ‘n ander v
AlgemeneKomitee, JohannesburgseEffektebeurs en ‘n ander
1984 92) SA 383
(W) at 391 H…’
[21]
It is presumed that a statutory provision is not aimed at
altering or abrogating the existing law more than necessary, although
a statutory provision clearly inconsistent and irreconcilable with
its preceding, hierarchically equal or subordinate counterparts
in
parimateria
revokes them to the extent of such inconsistency
and irreconcilability as per the maxim
lex posterior priori
derogate
(LAWSA 25
part 1
at para 305).
[22]
In
Ntuli v Benoni Town Council and another
1957 (3) SA
597
(W) at 601 G-H, Ramsbottom J stated that –
‘
(t)he
rule of construction where two statutes deal with the same subject
matter has often been stated. In Rex v Carson
1926 AD 419
at 423,
Innes CJ said that:“if a later statute is clearly inconsistent
with an earlier one the latter must be regarded as
pro tanto
repealed.”But the inconsistency must be clear. In New
Modderfontein Gold Mining Co v Transvaal Provincial Administration
1919 AD 367
, Sir John Kotze referred with approval to Bishop on the
Written Law who summed up the result of the authorities in these
terms:“Hence
in principle, and equally on the better American
authorities and on the English, the just doctrine is, that, without
exception,
a statute in affirmative terms, with no intimation of an
intent to repeal prior laws, does not repeal them, unless the new and
the old are irreconcilably in conflict
.”’
[23]
In
Ntuli
at 602 A-B,the judge quotedCraies on
Statute
Law
, 5
th
Ed at 339:
‘ …
Where
a new Act is couched in general affirmative language and the previous
law is all in the affirmative, there is nothing to say
that the
previous law shall be repealed, and therefore the old and the new
laws may stand together.
’
[24]
No clear inconsistency exists between the provisions of the
Maintenance Act and
those of the
Superior Courts Act and
such
provisions are not irreconcilable with each other. Rather, the
statutes entitlean election on the part of a party seeking
to enforce
a High Court maintenance order as to the court out of which such
order is to be enforced. The fact that in terms of
the
Maintenance
Act a
10-day moratorium on enforcement and a statutory procedure to
convert the enforcement process into an enquiry arise, neither of
which are available where enforcement occurs under the
Superior
Courts Act, does
not lead to a necessary implication being drawn that
the legislature in enacting the
Maintenance Act intended
that
enforcement remedies under High Court machinery were to be
unavailable. This is so given that the twostatutes are capable
of
standing together. The fact that a choice is introduced into
enforcement does not introduce an arbitrariness that is difficult
to
reconcile with rationality and equality before the law. The
distinctions that exist in the enforcement mechanisms available
between the courts in this regard, rather that introducing
arbitrariness, rationality and inequality, are factors to be taken
into account by a party in the exercise of their election.
[25]
Were no such choice available, this would have the necessary
consequence that all High Court maintenance orders would in all
circumstances
be subject to the moratorium and enquiry provisions
contained in the
Maintenance Act upon
steps being taken to enforce
such orders. Not only would this necessarily diminish the value of
the order obtained but it would
have the potential to cause prejudice
to the persons that such an order for maintenance seeks by its nature
to protect where enforcement
is pursued. Such a consequence could not
have been intended by the legislature.
[26]
A litigant in terms of the law may exercise an election in
seeking interim relief
pendente lite
in a matrimonial matter
either from the High Court or from the applicablemagistrate’s
court. The reliefgranted in such an
order is in many instances wider
than maintenance only and includes that relating to the care of and
contact with minor children.
Were it to be the case that the
maintenance component of a High Court order
pendente lite
was
only capable of enforcement in the maintenance court, whilst other
aspects of the same order required enforcement in the High
Court,
this would result in unduly complex enforcement mechanisms arising
that could not have been intended by the legislature.
The same
applies to the varied relief that may be granted by the High Court in
divorce proceedings in respect of which it cannot
have been intended
that the maintenance component be severed from the remainder of the
order for purposes of enforcement.
[27]
The
Superior Courts Act was
signed into law in 2013, many
years after the amendments to the
Maintenance Act came
into effect.
This further supports the conclusion that the two statutes are
capable of standing together and that the legislature,
although
seeking to advance effectiveness and accessibility in the maintenance
system through the
Maintenance Act, did
not intend to limit the right
of the High Court to enforce orders granted by it. Had the contrary
been intended, the enforcement
provisions contained in the
Superior
Courts Act would
reasonably have reflected this restriction on
enforcement, which they do not.
[28]
For all of these reasons it follows that had the legislature
intended that the maintenance court provide the only mechanism for
the enforcement of maintenance orders, as much would have been
apparent from the relevant statutes. Accordingly, with great respect
to my colleague and for all the reasons set out above, I am unable to
reconcile myself with the conclusions reached in
PT
and the
view I take of the matter is that that decision is wrong.
[29]
Consequently, the first respondent was entitled to enforce a
maintenance order granted by the High Court by way of a writ issued
by the registrar of this Court. It follows therefore that the
application to set such writ aside must fail.
Emoluments
attachment order
[30]
Counsel for the applicant raised a further ground on which it
was argued that the writ obtained by the first respondent fell to be
set aside. This related to the fact that the first respondent had
obtained an emoluments attachment order out of the magistrate’s
court against the applicant’s employer. It was argued that in
such circumstances the first respondent had elected to enforce
the
order by way of the maintenance court and could therefore not, in
addition, obtain a writ from the High Court in order to enforce
the
maintenance order.
[31]
The first respondent’s counsel disputed this to be so on
the basis that the first respondent was entitled to use whatever
avenues were available to her to enforce the recovery of the arrear
maintenance amount, subject to each of these avenues falling
away
once the arrears had been paid.
[32]
There is no provision in either the
Maintenance Act or
Superior Courts Act to
prevent a writ being obtained from the High
Court in respect of arrear maintenance even in circumstances in which
an emoluments
attachment order has been obtained in respect of future
and arrear maintenance through the maintenance court. In this regard
I
am in agreement with Ms De Wet for the first respondent that the
first respondent is permitted to make use of the enforcement
mechanisms
available to her until the full amount of the maintenance
debt is extinguished.
[33]
There are compelling reasons why this is so. A maintenance
order is granted to protect the vulnerable and ensure their support.
The
Maintenance Act makes
it clear that the law seeks to promote an
effective and accessible maintenance scheme. An effective maintenance
scheme exists where
maintenance ordered is paid and received without
undue delay. Accordingly, the fact that an emoluments attachment
order has been
obtained in respect of both future and arrear
maintenance does not bar the first respondent from obtaining a writ
of execution
issued out of the High Court against the applicant in an
attempt to secure a speedy settlement of the arrear amount
outstanding.
[34]
It follows for the reasons set out above that the application
falls to be dismissed. There is no reason as to why costs should not
follow the result.
Order
[35]
In the result, I make the
following order:
The
application is dismissed with costs.
K M Savage
Acting Judge of the High Court
Appearances
:
For applicant: Ms T Pratt
Instructed by: HanlieVisser
Attorneys
For respondent:Ms A de Wet
Instructed by: Marieke Van Rooyen
Attorneys