E.K v P.K and Others (Leave to Appeal) [2023] ZAGPPHC 257; - (4 April 2023)
- Citation
- [2023] ZAGPPHC 257
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- M Mojapelo
- Case number
- 53105/2021
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- M Mojapelo
- Case number
- 53105/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the applicant's reliance on Coetzee v Government of the Republic of South Africa and Riley v Riley was misplaced, as those judgments did not address the enforcement of maintenance orders. The Constitutional Court in Bannatyne v Bannatyne established that maintenance orders are a special category and can be enforced through contempt proceedings, including incarceration. The applicant did not argue that Bannatyne has been overruled. Therefore, there are no reasonable prospects of success on appeal, and leave to appeal must be refused.
Court disposition
Leave to appeal is refused. Costs awarded against the applicant.
Orders
- Leave to appeal is refused.
- The applicant is ordered to pay the costs of this application for leave to appeal.
02
Material facts
Parties
E[...] K[...]
Applicant Counsel: Adv. Juan SchoemanP[...] K[...] & OTHERS
Respondent Counsel: Adv. F Botes SC03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Contempt Finding and Conditional Incarceration Order.
04
Questions and positions
Legal issues
- 01
Whether the finding of contempt and conditional incarceration for failure to pay maintenance is unconstitutional.
- 02
Whether the applicant has reasonable prospects of success on appeal regarding the contempt and incarceration order.
Party arguments
- Applicant
- The applicant contended that the finding of contempt and the resulting conditional incarceration for failure to pay maintenance is unconstitutional. Counsel relied on Coetzee v Government of the Republic of South Africa and Riley v Riley, arguing that incarceration for failure to pay a debt is unconstitutional.
- Respondent
- The respondent argued that the cited Constitutional Court judgments do not address maintenance obligations. The respondent relied on Bannatyne v Bannatyne, where the Constitutional Court confirmed that maintenance orders are a special category and can be enforced by contempt proceedings.
05
Court’s reasoning
Legal principles
- 01
Bannatyne v Bannatyne (Commission of Gender Equality, as Amicus Curiae) 2003 2 (2) SA 363
Although money judgments cannot ordinarily be enforced by contempt proceedings, maintenance orders are a special category in which such relief is competent.
- 02
Coetzee v Government of the Republic of South Africa [1995] ZACC 7; 1995 (4) SA 631 CC
Incarceration for failure to pay a debt is generally unconstitutional unless exceptions apply.
- 03
Riley v Riley [2023] ZACC 5
Recent Constitutional Court judgments did not deal with maintenance obligations in the context of contempt and incarceration.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the applicant's reliance on Coetzee v Government of the Republic of South Africa and Riley v Riley was misplaced, as those judgments did not address the enforcement of maintenance orders. The Constitutional Court in Bannatyne v Bannatyne established that maintenance orders are a special category and can be enforced through contempt proceedings, including incarceration. The applicant did not argue that Bannatyne has been overruled. Therefore, there are no reasonable prospects of success on appeal, and leave to appeal must be refused.
Obiter and limits
- The court noted that the Constitutional Court has specifically addressed maintenance orders as an exception to the general rule against enforcing money judgments by contempt.
- Other grounds of appeal were considered but found to lack reasonable prospects of success.
Court disposition
Leave to appeal is refused. Costs awarded against the applicant.
- Leave to appeal is refused.
- The applicant is ordered to pay the costs of this application for leave to appeal.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO:53105/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 04/04/2023
SIGNATURE:
In the matter between:
E[...] K[...]
Applicant
(Identity Number: 7[...])
And
P[...] K[...] &
OTHERS
Respondents
JUDGMENT:
LEAVE TO APPEAL
MOJAPELO AJ
1. This is an application for leave to appeal against the judgment that I handed down and which was transmitted through caselines to the parties on 09 February 2023. I will refer the parties as they appear in the main application.
2. Following a finding that the first respondent was in contempt of an order of this Court that was granted by Molefe J on 11 May 2022, the first respondent was conditionally incarcerated provided he complies with that Court Order of Molefe J within 72 hours. This is an application for leave to appeal that judgment and order.
3. The main grounds upon which the first respondent relied on for its application for leave to appeal was that the finding of contempt and the incarceration of the first respondent based on his failure to pay for, amongst others, maintenance is unconstitutional. In that regard the first respondent’s Counsel relied on two Constitutional Court judgments, that is, Coetzee v Government of the Republic of South Africa [1995] ZACC 7; 1995 (4) SA 631 CC and Riley v Riley [2023] ZACC 5 to support the contention that an incarceration of this nature is unconstitutional.
4. Unfortunately, the abovementioned two judgements did not deal with the obligation to pay maintenance. The Constitutional Court has dealt with contempt application in relation to the obligation to pay maintenance in the matter of Bannatyne v Bannatyne (Commission of Gender Equality, as Amicus Curiae) 2003 2 (2) SA 363. In that judgment the Constitutional Court confirmed that; “Although money judgments cannot ordinally be enforced by contempt proceedings, it is well established that maintenance orders are in a special category in which such relief is competent”.
5. It is not the first respondent’s case that the Constitutional judgment in Bannatyne has been overruled. Under the circumstances I am of the view that there are no reasonable prospects of success in the Court of Appeal. I have considered the other grounds of appeal and I have unfortunately, come to the same conclusion that there are no reasonable prospects of success in the Court of Appeal.
6. I therefore make the following order.
(a) Leave to appeal is refused.
(b) The first respondent (the applicant in this application for leave to appeal) is ordered to pay the costs of this application for leave to appeal.
MM
MOJAPELO AJ
ACTING
JUDGE
HIGH COURT GAUTENG DIVISION, PRETORIA
Counsel for the Applicant: Adv. Juan Schoeman Attorneys for the Applicant: Waldick Inc Counsel for the First Respondent: Adv. F Botes SC Attorneys for the Respondent: Manley Incorporated
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.