ZIYAMBI
JA:
On
19 May 2009, the High Court (BHUNU J) granted an order in favour of
the first respondent in the following terms:
“1.
The defendants, jointly and severally, the one paying the others to
be absolved deliver to the plaintiff 47,500 litres of fuel within
forty-eight (48) hours of service of this order, failing which the
Deputy Sheriff be and is hereby authorised to recover the fuel and
deliver it to the plaintiff.
2.
Costs of suit.”
The
defendants referred to in the Order were the two appellants and the
second, third and fourth respondents (“Macmillan”, “Finnigan”
and “Across Enterprises”). I shall refer to the two appellants
and the second to the fifth respondents collectively as “the
defendants” and, where the context requires, to the two appellants
as “the appellants”. The first respondent will be referred to as
“Surtee”.
When
the defendants failed to make delivery in terms of the Order made by
BHUNU J, the Deputy Sheriff was charged with the execution thereof.
He served the Order at 72 Eastern Road, Greendale, Harare, on the 22
July
2009 and made the following return:
“Attempt
to recover the fuel. Mrs Evans said they are no longer dealing in
fuel supplies and they do not have the fuel. Nulla
bona.
Return to Attorneys.”
This
prompted Surtee to file an application in the High Court seeking an
order that the defendants be held to be in contempt of court and
committed to gaol for 90 days.
Macmillan,
Finnigan and Across Enterprises did not file opposing papers and were
therefore in default. All five defendants were found to be in
contempt of court. Across Enterprises was sentenced to a fine of
US$55,000.00 while the remaining four defendants were sentenced each
to a term of 30 days imprisonment. The sentences imposed were
suspended on condition that the defendants jointly and severally the
one delivering the other to be absolved, deliver to Surtee 47,500
litres of fuel on or before the 30 November 2010.
The
appellants now appeal against the order of the court a
quo
on the grounds, inter
alia,
that the learned Judge erred:-
(i)
In finding that the appellants were in contempt of the order made by
BHUNU J;
(ii)
In finding that that order was one ad
factum
praestandum;
(iii)
In finding that the appellants intentionally disobeyed that Order
despite the Deputy Sheriff's nulla
bona
return the import of which was that the appellants did not have the
fuel.
The
main issues to be determined are whether the order by BHUNU J was an
order ad
factum
praestandum
and if so whether the court a
quo
correctly found the appellants to be in contempt of court by reason
of their disobedience of that order.
Orders
of court are, generally speaking, divided into two categories: orders
to pay a sum of money, namely, orders ad
pecuniam solvendam; and
orders
to
do, or abstain from doing, a particular act, or to deliver a thing,
namely, orders
ad factum praestandum.
The
remedy of committal for contempt is available only in the latter
category of cases.
These
definitions notwithstanding, the distinction between the two types of
orders is in practice not as clear cut as it may seem. Thus certain
orders for the payment of money, namely maintenance orders, (which
one would have regarded as orders ad
pecuniam solvendam)
have been classified by the courts as orders ad
factum praestandum.
The
principle was expressed by SCHREINER A.J. as follows:
“The
reason for holding maintenance orders...to be orders ad
factum praestandum
is that they are not really money orders at all.
In
their essential nature they are orders that the defendant do
something, namely, maintain the wife or the children.
This
duty might be performed in various ways, including the provision of
housing, clothing and food in kind, or the transfer of property; but
in practice the Court indicates how the defendant is to fulfil the
duty by the payment of a periodical sum of money fixed in relation to
the apparent capacity of the defendant and the needs of the party to
be maintained at the time of the making of the order.
This
direction by the Court does not convert the judgment from one
ordering the doing of an act by the defendant into one awarding a sum
of money to the Plaintiff.”
And,
in East
London Transitional Council v MEC for
Health,
Eastern Cape & Ors
2001 (3) SA 1133 (Ck), an order directing a public official to pay a
certain sum of money to the judgment creditor, was held to operate
against that official ad
factum
praestandum.
The
following extract from the judgment of EBRAHIM J at page 1140F-I of
the judgment is instructive:
“In
its strict sense the order that this Court issued on 28 July 2000 for
payment of the sum of R801,249 is an order ad
pecuniam solvendam.
But the crucial issue that falls to be considered is in what manner
such an order operates against the first and second respondents and
what the effect thereof is.
In
my view, its operation is similar to that of an order which indicates
the manner in which maintenance must be paid. See Carrick
v Williams
1937 WLD 76 at 83.
In
casu,
even though the order directs that the debt be paid, it is issued,
and operates, against the respondents in their nominal capacities. At
the same time, and because of their official capacities, it imposes
an obligation on them to take such steps as are necessary to enable
the relevant departmental procedures to be implemented so that
payment of the debt can be effected.
The
obligation it imposes is not of a financial nature but one that
requires them to carry out one or other function which forms an
integral part of their official duties. In this respect I consider
that the Court's order of 28 July 2000 operates against the first
and second respondents as an order ad
factum praestandum.”
On
this basis Mr OChieng
submitted that on the authorities, the key determinant is not the act
directed but the nature of the obligation to be enforced.
He
submitted that the true nature of the Order by BHUNU J was one for
the payment of a debt – albeit in kind - and that the fact that
the court ordered the delivery of fuel does not convert the order
from an order for payment of a debt into an order ad
factum praestandum in
the same way
that
an order for the payment of money by way of maintenance is not
converted from an order ad
factum praestandum
to an order ad
pecuniam
solvendam
by the fact that it is expressed in monetary terms.
He
further submitted that just as a maintenance order requires the
performance of an act in a specific way (and is therefore an order ad
factum praestandum),
so the order by BHUNU J required the payment of a debt in a specific
manner (and was therefore an order ad
pecuniam solvendam).
Mr
Uriri,
on the other hand, contended that the order was clearly one ad
factum
praestandum
since it directed the appellants to do something, namely, to deliver
47,500 litres of fuel.
The
learned Judge in the court a
quo
decided the first issue on the basis that:
“As
correctly acknowledged by both parties this court's order of 19 May
2009 was the type of order normally referred to as 'ad
factum praestandum'
(i.e. an order for specific performance or the performance of an act
– namely the delivery of 47,500 litres of fuel).”
I
can find no such acknowledgement by the appellants on the record.
On
the contrary, it is quite clear from the record that it was not
common cause between the parties that the order was one ad
factum
praestandum.
In
the supplementary heads of argument filed on behalf of the appellants
in the High Court the following appears:
“It
is submitted that the order sought to be enforced is not ad
factum.
The present case is very different from the one in Trevor
Batezat case SC49/09
in
that the appellant in that case was ordered to return an identified
triaxle trailer Registration Number 490-816V.… In the case before
this Honourable Court, the order arises out of a contractual
arrangement of which the applicant cannot say he has no other
remedy...to cover his losses.”
In
taking the parties to have agreed as to the nature of the order made
by BHUNU J, the learned Judge misdirected himself.
Three
factors persuade me to agree with Mr Ochieng's
submissions.
(i)
Firstly, the true nature of the order sought to be enforced is the
repayment of a commercial debt.
In
this connection: “I am disposed to take the word debt
in a wide and general sense as denoting whatever is due – debitum
– from any obligation.”
The
debt in question comprised of 40,000 litres of fuel as well as arrear
rentals expressed in litres of fuel to the amount of 7,500 litres.
In
terms of the contract between Surtee on the one hand and Across
Enterprises and the remaining defendants who were then its directors
on the other hand, Surtee, as I understand it, lent or made available
to Across Enterprises 40,000 litres of fuel which would be utilised
in the course of trading. At the end of the contract an equal
quantity of fuel was to be returned to Surtee by Across Enterprises.
That
much can be gathered from the judgment of the court
a quo.
A
copy of the contract does not form part of the record and no more is
known of the facts forming the background of the events leading up to
the grant of the order by BHUNU J despite the averment in paragraphs
3- 4 of the founding affidavit attested by Surtee that:
“3.
I instituted legal proceedings in this Honourable Court on the 4th
June 2008, under case number HC2926/08 against the 1st,
2nd,
3rd,
4th,
and 5th
Respondents claiming supply and delivery of forty-seven thousand five
hundred (47,500) litres of fuel from the 1st
2nd
3rd
4th
and 5th
Respondents, jointly and severally, within 48hrs of service of the
Court Order upon them.
4.
I beg leave of this Honourable Court to incorporate herein by
reference the averments as stated in Plaintiff's declaration filed
of record and abide by the same.”
Needless
to say, the record of those proceedings was not attached to the
record of proceedings in this appeal, but it was not disputed that
the arrears of rent were to be paid in fuel or that the defendants
were indebted to Surtee in the amount of 47,500 litres of fuel.
The
purpose of the order by BHUNU J was therefore to secure payment of
that debt.
(ii)
Secondly, it would appear that prior to the grant of the order in
question, no inquiry was conducted into the means of the appellants
to comply with it.
The
Deputy Sheriff's issuance of a nulla
bona
return would, without more, (for example, evidence that the fuel had
been available but was spirited away before his arrival at the
premises), appear to bear this out.
From
a reading of the authorities on this subject it appears that in each
case where an order ad
factum praestandum
was granted, the Court was satisfied that the defendant was able to
comply with it so that a refusal so to comply would be mala
fides and
therefore contemptuous of the court.
Thus
in the Batezat
case,
supra,
an order of committal to gaol was granted because there was clear
evidence that the defendant was in possession of an identified
tri-axle trailer and had given a number of excuses for failing to
deliver it.
In
Sabawu
v Harare West Rural Council
the defendant wilfully disobeyed an order to pull down certain
buildings which he had unlawfully erected.
In
view of the dire consequences attendant upon the failure to obey an
order ad
factum
praestandum,
namely, committal to gaol, it is my respectful view that before
granting an order which is ad
factum praestandum
a court ought to satisfy itself as to the ability of the defendant to
comply with the order otherwise it takes the risk of issuing a
'hollow and unenforceable' order. There is also an obligation on
the Court before whom an application for an order of committal for
contempt of an order of court is made to examine the order sought to
be enforced in order to ascertain its true nature and to determine in
which of the two categories the order falls.
(iii)
Thirdly, there were other remedies available to Surtee, for example,
an alternative order for the value of the fuel. Such an order would
have been enforceable in the usual manner, namely by a warrant of
execution over the appellants' property and, if necessary, a
warrant for civil imprisonment.
Orders
ad
factum praestandum
are usually granted only where there is no other remedy available to
the applicant the rationale being that the successful party has other
options to enforce an order ad
pecuniam solvendam.
I
therefore conclude that in its essential nature, the order by BHUNU J
was one for the repayment of a debt and therefore one ad
pecuniam solvendam.
The fact that the order was framed as it was did not convert that
order to one ad
factum praestandum.
In
any event the appellants, in my judgment, were wrongly found to be in
contempt of that order. While it is trite that disobedience by a
litigant of an order
ad factum praestandum
is punishable by committal to goal, it is also true that the
disobedience must be wilful and mala
fide.
Punishment for contempt of such an order by committal to gaol is
aimed at enforcing civil orders of court, and to bring to its logical
conclusion an order given by a judge, which the court finds has been
deliberately disobeyed.
The
principal object of the proceeding is to compel, by means of personal
attachment and committal to goal, the performance of the Court's
Order.
Thus
the Court has enforced by committal for contempt, inter
alia,
orders to give up possession of and quit a farm; to pass transfer of
a plot of ground; in the case of an executor, to file estate
accounts; to frame an account showing profits of a partnership
business; to give discovery.
Wilfulness
and mala
fides will
normally be inferred upon proof that the order sought to be enforced
was brought to the attention of the respondent and that he has either
disobeyed the order or neglected to comply with it.
The
onus then shifts to the respondent to rebut the inference on a
balance of probabilities. Proved inability to comply with the order
of Court will afford protection against a committal for contempt.
Thus
in Haddow v Haddow
1974 (2) SA 181 (R),
the Court did not grant an order of committal for contempt because
the defendant's disobedience of its order was not shown to be mala
fide.
See also Clement
v Clement
1961 (3) SA 861.
In
the court a
quo,
the appellants expressed their inability to comply with the order by
BHUNU J.
The
company (Across Enterprises) had stopped operations and they were not
able to comply with the order because they did not have the fuel.
Their
failure to comply with the order was due to inability to do so as
appears from the nulla
bona
return made by the Deputy Sheriff and not to wilfulness and mala
fides
on their part. They expressed their respect for the Court and averred
that their failure to deliver the fuel did not constitute contempt of
the court.
No
evidence was placed before the court a
quo
to contradict the averments by the appellants that they were unable
to comply with the order.
In
my view, the appellants rebutted, on a balance of probabilities, the
inference of wilfulness and mala
fides.
The
court a
quo
therefore erred in granting an order for committal to gaol in
circumstances where the appellants proved, on a balance of
probabilities, their inability to comply with the order and failure
to comply therewith was not due to mala
fides
on their part.
The
appeal is therefore allowed with costs.
The
judgment of the court a
quo
is set aside and substituted as follows:
“The
application is dismissed with costs.”
GARWE
JA: I agree
CHEDA
AJA: I agree
Mujeyi
Manokore Attorneys,
appellant's legal practitioners
Ahmed
& Ziyambi,
first respondent's legal practitioners
1.
Herbstein and Van Winsen – The Civil Practice of the Superior
Courts in South Africa, 3ed at 652-653
2.
Carrick v Williams 1937 WLD 76 at 83
3.
Per KOTZE J in Leviton & Son v De Klerk's Trustee 1914 CPD
691: see CJ Claasen, Dictionary of Legal Words and Phrases
4.
1989 (1) ZLR 47 (HC)
5.
Herbstein
and Van Winsen op cit at p653
6.
Herbstein & Van Winsen op cit at pp657-8
