REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT
JOHANNESBURG

CASE NO:   11/45575

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

DREYER, JOHAN LOUIS						            Applicant

and

WIEBOLS, ROSALIND MARGARET			          First Respondent

WIEBOLS, GERHARD ALEXANDER			     Second Respondent 

CITY OF JOHANNESBURG 
METROPOLITAN MUNICIPALITY		                    Third Respondent
______________________________________________________________ 

J U D G M E N T
______________________________________________________________ 

COPPIN, J:
[1] 	On 16 May 2008 the Johannesburg Magistrate’s Court made the following order in favour of the applicant against the first and second respondents, who were the first and second defendants, respectively, in the proceedings in that court:

“Judgment is given as follows against the first and second defendants, jointly and severally:-

1.	The defendants are ordered:

1.1	To allow the plaintiff to cause to have a 1.8 meter high precast wall, with clinker brick finishing on both sides, erected on the north-eastern side of the retaining wall, between the remaining extent of Erf 98, Linden, situated at 91 Third Street, Linden, Johannesburg and Portion 3 of Erf 98 Linden, situated at 89 Third Street, Linden, Johannesburg; and

1.2	To allow the building contractors instructed to erect the pre-cast wall referred to in paragraph 1.1 above, access to enable them to do the work.

2.	In the alternative, and in the event of the defendants failing to perform in terms of paragraph 1 above, the plaintiff may acquiesce and claim the damages awarded, for an amount of R28 272,00 plus R7 000,00 less R1 750,00, plus interest thereon from the 14th September 2005 to date of payment.

3.	Payment of the sum of R4 712,00 plus interest at 15,5% per annum from 14 September 2005 less R4 712,00 paid on 24 July 2007.

4.	Payment of the sum of R1 131,00 plus interest at 15,5% per annum from 14 September 2005, less R1 131,00 paid on 24 July 2007.

5.	Payment of the sum of R912,00 plus interest at 15,5% per annum from 14 September 2005, less R912,00 paid on 24 July 2007.

6.	The defendants are to pay the plaintiff’s costs up, and unto the judgment on the merits on the attorney and client basis and the costs in respect of the quantum portion, each party to pay his own costs.”

[2] 	In this application the applicant is seeking, in essence, an order that the first and second respondents be committed for contempt of that order, for an order that the respondents be directed to comply with that order, related relief and costs.

[3] 	At the hearing of the application I, mero motu, raised the issue of jurisdiction and requested the parties to make submissions on that point at the outset. The parties were agreed that would be the only point to be dealt with in the hearing before me.

[4] 	On behalf of the respondents it was submitted that this Court does not have jurisdiction to entertain the application for the following reasons. Firstly, the applicant has not pursued his remedies under the Magistrate’s Court Act No 32 of 1944 (“the Act”).  In terms of section 106 of the Act a wilful failure to comply with an order, ad factum praestandum, of the Magistrate’s Court, is a criminal offence punishable by a fine, or imprisonment, or both. Secondly, the “process-in-aid” remedy, whereby a court enforces a judgment of another court which cannot be effectively enforced through its own process, is not an appropriate remedy in this instance, because the Magistrate’s Court is capable of securing compliance with its own process. Thirdly, if the High Court is entitled to hear an application for committal for contempt of an order of the Magistrate’s Court, then it is a matter which falls within the High Court’s discretion. The High Court must exercise that discretion sparingly and only in exceptional circumstances. It is for the applicant to show that there are good and sufficient reasons for the High Court to enforce the judgment of another court. What constitutes “good and sufficient reasons” will depend on the facts of the case at hand and whether the legislative remedies, that are available, are effective in protecting the rights of the parties. It is for the applicant to make out a case that the High Court should exercise its discretion in favour of entertaining the application and in this regard the applicant must aver facts, including facts to show, or motivate, that the legislative remedy that is available to it in the Magistrate’s Court, is not effective in protecting its rights. In this case there has been no attempt by the applicant “to acquit himself of this onus”. It was further submitted on behalf of the first and second respondents that neither the Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001, nor Uniform Rule 39(22) were applicable in this instance and that the application ought to be dismissed with costs.

[5] 	It was submitted on behalf of the applicant that the only remedy provided in the Magistrate’s Court was a purely criminal sanction by way of section 106 of the Act and that the Magistrate’s Court did not have a procedure similar to that of the High Court in terms of which an application could be brought in the Motion Court for a person’s committal for contempt of court in order to compel compliance with an order ad factum praestandum;   that the question that arises is whether there are “good and sufficient circumstances” in the present case warranting an application in the High Court; that the relief claimed by the applicant in prayers 4, 5 and 6 of the notice of motion were, in essence, claims for specific performance based on the first and second respondents’ failure to comply with the court order, without an alternative claim for the payment of damages and that in terms of section 46(2)(c) of the Act the Magistrate’s Court has no jurisdiction in matters in which an order for specific performance is sought without an alternative claim for the payment of damages, except in certain specified instances which do not apply in casu. 

[6]      It was further submitted on behalf of the applicant that the Act does not provide an effective remedy for the applicant in the Magistrate’s Court for the following reasons:  The Magistrate’s Court does not have the jurisdiction to grant the relief claimed in prayers 4, 5 and 6 by virtue of the limitation of its jurisdiction imposed by section 46(2)(c) of the Act and the Magistrate’s Court is limited to imposing a criminal sanction in terms of section 106 of the Act.  It was further submitted on behalf of the applicant that the procedure in the Magistrate’s Court entailed  the laying of  a charge with the police, whereafter the matter would then be in the hands of the police and the prosecuting authorities, whereas the procedure in the High Court allowed the applicant to be in control of the process.

[7] 	It is apparent that in paragraphs 1, 2 and 3 of the notice of motion the applicant seeks the first and second respondents’ committal for contempt of the Magistrate’s Court order and the imposition of a penalty in the terms stated in paragraphs 2 and 3.

[8] 	The relief sought in paragraph 4 of the notice of motion is, essentially, already covered by the Magistrate’s Court order, save for the fact that the applicant now stipulates the times at which the applicant’s agents and builders ought to be allowed to erect the boundary wall. Paragraphs 5 and 6 of the notice of motion is relief that anticipates that the first and second respondents, may, notwithstanding this Court  granting the relief sought in paragraphs 1,2,3 and 4, refuse to allow applicant the access sought.  No authority has been cited by the applicant to the effect that the Magistrate’s Court dealing a charge of contempt in terms of section 106 of the Act, cannot grant relief                      similar to the relief sought in paragraphs 5 and 6.

[9] 	The legal position regarding the issue of jurisdiction, briefly, is as follows. 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 in the exercise of its inherent jurisdiction to ensure that its orders are complied with. Process-in-aid is a remedy by means whereby a court enforces a judgment of another court which cannot be effectively enforced through that court’s own process and it is also a means whereby a court secures compliance with its own procedure.  Although it is sometimes sanctioned by a statutory provision, or a rule of court, it is an incident of a Superior Court’s ordinary jurisdiction. It is a discretionary remedy that 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.  It was held by the Constitutional Court in Bannatyne that it is for the applicant to show that there is good and sufficient reason for the High Court to enforce the judgment of another court. It held that “what constitutes ‘good and sufficient circumstances’ warranting a contempt application to the High Court will depend upon whether or not in the circumstances of a particular case the legislative remedies available are effective in protecting the rights” of the applicant.

[10] 	In this case the applicant clearly has not made out a case in his papers for the ‘process-in-aid’ remedy to be invoked. The applicant seemingly took it for granted, until raised by the court mero motu, that the High Court had jurisdiction to commit the first and second respondents for contempt of the Magistrate’s Court order. Counsel for the applicant submitted from the bar that the process in the High Court, whereby an application for committal for contempt is brought on motion, is more effective than the procedure envisaged in the Magistrate’s Court in terms of section 106 the Act, because there, the matter would essentially be in the hands of the police and the prosecuting authorities after the charge has been laid.

[11] 	The applicant has several difficulties. Firstly, he never made, or purported to make out a case at all, on his papers, that the Magistrate Court’s remedy for contempt of its orders, i.e. section 106 of the Act, was not effective, or as effective as the High Court procedure. Secondly, the applicant never made out a case in terms of which he requested this Court to exercise its jurisdiction as a ‘process-in-aid’, to supplement what is lacking in the contempt procedures provided for by the Act.  Thirdly, the applicant has not made out a case (even in argument) that the remedy in the Magistrate’s Court, i.e. section 106 of the Act, is, in fact, less effective in protecting his rights than the remedy in the High Court.  There is no averment at all that the applicant has ever attempted to invoke section 106 of the Act, or that the procedure in terms of the Act has proved to be ineffective in protecting his rights. In my view, prima facie, the criminal prosecution envisaged in section 106 of the Act with all its implications for the accused person, could be very effective. Fourthly, the submissions made by the applicant’s counsel from the Bar regarding the effectiveness of section 106 of the Act as opposed to the procedure in the High Court, are contentions of fact and not of law.  Whether the remedy presented by section 106 is rendered less effective, because it envisages a criminal prosecution that is driven, in essence, by the police and the prosecution, is a factual issue.  Factual averments must be made in the appropriate affidavits and it is not enough, or even permissible to, as it were, supplement the affidavits with factual averments, made under the guise of submissions, from the Bar.

[12] 	In sum, the applicant has failed to make out a case that this Court has jurisdiction, or that it ought to exercise its jurisdiction in this matter. It is trite that an applicant has to make out a proper case on its papers and that includes making the necessary averments in its (founding) papers concerning the jurisdiction of the court in which it is seeking relief.

[13] 	In the result the application is dismissed with costs.

						_____________________________
                                                                  P COPPIN
			          			JUDGE OF THE SOUTH GAUTENG
						 HIGH COURT, JOHANNESBURG

COUNSEL FOR THE APPLICANT		E M VAN WYK

INSTRUCTED BY					DREYER AND NIEUWOUDT

COUNSEL FOR THE FIRST AND
SECOND RESPONDENTS			J F ROOS SC

INSTRUCTED BY					ANTHONY PERLOWITZ
							ATTORNEYS