The regional court’s jurisdictional limitation to grant contempt of court in divorce matters

December 1st, 2019
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The former divorce court established under s 10(4) of the Administration Amendment Act 9 of 1929 was repealed on 15 October 2010. Consequently, regional courts were seized with jurisdiction. The enabling legislation is the Jurisdiction of Regional Courts Amendment Act 31 of 2008, which directed for the amendment of the Magistrates’ Courts Act 32 of 1944 to confer the necessary jurisdiction on the regional courts.

However, despite the regional courts having jurisdiction extended to grant divorce orders, the jurisdiction does not include the application for the contempt of court of such an order. This might be a drawback when it comes to the enforcement of the orders granted in divorce matters.

Different court orders

Before proceeding with this topic, it is important to note that only the breach of certain court orders will constitute contempt of court. Common law differentiates between two different forms of court orders namely, ad pecuniam solvendam, and ad factum praestandum. The former relates to monetary payments whereas the latter is to call on a person to perform a certain act or to refrain from doing so (L Jordaan ‘The “gagging writ” and contempt of court – the correct means to the correct end? A comparative analysis of South African and English law’ (1990) 23 CILSA 219 at 220). Failure to comply with an order to pay money does not constitute contempt of court, whereas insubordination of the latter does (Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at 665).

Contempt of court

Contempt of court is a criminal law remedy, which has been derived from English law (C Marumoagae ‘Recognition of the concept of contempt of “determination” of the Pension Fund Adjudicator’s determination: A missed opportunity – with particular reference to Mantsho v Managing Director of the Municipal Employee Pension Fund and Others (37226/14) [2015] ZAGPPHC 408 (26 June 2015)’ (2017) 50 De Jure at 175 – 185). In South Africa, this remedy makes provision for both criminal and civil contempt of court (CR Snyman Criminal Law 5ed (Durban: LexisNexis 2008) at 325). This remedy is defined by Snyman as to ‘unlawfully and intentionally … violating the dignity, repute or authority of a judicial body or a judicial officer in his judicial capacity’. In the case of S v Beyers 1968 (3) SA 70 (A) at 80C – H the court more directly stated: ‘The crime of contempt of court arises from unlawful and intentionally disobeying an order of court’.

Contempt of a civil court order

In the case of Dreyer v Wiebols and Others 2013 (4) SA 498 (GSJ), the High Court reiterated that magistrates’ courts (district and regional courts) do not have jurisdiction to entertain applications for contempt of court in civil matters. However, there has been uncertainty on whether this jurisdictional limitation includes contempt of divorce orders granted by regional courts.

The uncertainty is substantiated as the regional courts have been granted concurrent jurisdiction with the High Courts to adjudicate divorce matters. One could, therefore, fairly draw the inference that regional courts would also have jurisdiction in contempt of court applications pertaining to divorce matters.

The case of MC v MJ

The uncertainty has been resolved in the appeal case of MC v MJ (GJ) (unreported case no A3076/2016, 28-3-2017) (Modiba J (Carelse J concurring)). The respondent, in this case, agreed with the position held in the case of Dreyer pertaining to civil matters. However, the respondent argued that the regional courts should have jurisdiction based on s 29(1B)(a) and (b) of the Magistrates’ Courts Act, which states:

‘(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.’

However, Modiba J, disagreed with the respondent’s argument. The court held that the jurisdiction conferred to the regional courts in divorce matters cannot include jurisdiction in contempt of court proceedings. The court motivated its reason by emphasising that when a High Court grants an order for contempt of court, including in divorce matters, the court does so by invoking its inherent jurisdiction and not in accordance with statute.

Furthermore, the court held that the magistrates’ courts and, in this regard, the regional (divorce) court is a creature of statute and consequently does not have inherent jurisdiction. The doctrine of inherent jurisdiction, which has been codified in s 173 of the Constitution, is exclusively borne by the High Court. This doctrine evidently excludes a postulation of its inherent jurisdiction to a creature of statute.

Consequently, the legislature could not have intended to extend the High Court’s inherent jurisdiction to grant an order for civil contempt to regional (divorce) courts. If that was indeed the intention of the legislature, it should have been done through a specific legislative provision (see para 17).

How to proceed with a contempt application?

Despite the jurisdictional limitation to enforce a divorce order in the regional court, the applicant is not entirely left without a remedy. A party who wishes to bring such an application may approach the criminal magistrate’s court or the High Court.

The criminal magistrate’s court has the requisite jurisdiction by virtue of s 106 of the Magistrates’ Court Act, which specifically affords the Criminal Court such jurisdiction. However, the procedure in this court involves the laying of a charge with the police. Therefore, the matter would be in the hands of the prosecuting authorities, whereas, the application in the High Court is a normal motion proceeding.

Interesting points to note

As a side note, it is worth noting that civil contempt of court has survived tremendous constitutional scrutiny over the years which brought about interesting changes, for example, the respondent may not be referred to as an ‘accused’ despite the matter being before a Criminal Court. The parties must be referred to as they would be in motion proceedings (Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)).

Also, the onus of proof rests on the applicant who must prove contempt of court beyond a reasonable doubt and not on a balance of probabilities. However, there is an evidential burden on the respondent to prove that their non-compliance was not wilful and mala fide.

Conclusion

Contempt of court may be an effective remedy to enforce an order of the regional divorce court. However, as the regional divorce courts lack jurisdiction, one should be mindful that another court will normally not grant civil contempt of court for the enforcement of another court’s judgment. Thus, the court will only do so at its discretion and provided all other remedies available to the applicant had been depleted.

Vernon Fortune LLB (UJ) is a legal practitioner at Warren-Tangney Attorneys in Johannesburg.

This article was first published in De Rebus in 2019 (Dec) DR 10.