Flowra Trading CC v Intozazi Trading (Pty) Ltd and Another (2227/08) [2009] ZAECPEHC 15 (28 April 2009)

Flowra Trading CC v Intozazi Trading (Pty) Ltd and Another (2227/08) [2009] ZAECPEHC 15 (28 April 2009)

The court found that the order in question, although involving payment of money, required the respondents to pay the amount to their own attorneys to be held in trust, not to the applicant. This did not vest any right in the applicant to the money and did not constitute an order ad pecuniam solvendam in favour of...

Source-derived case information.

Citation
[2009] ZAECPEHC 15
Parties
Applicant: Flowra Trading CC; Respondent: Intozazi Trading (Pty) Ltd; Respondent: Bradford Bown
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
28 April 2009
Case Number
2227/08
Procedural Posture
Civil Application / Application for Contempt and Ancillary Relief
Outcome
Application dismissed with costs.
Judges
Van der Byl
Legal Topics
Contempt of Court, Ad Factum Praestandum, Ad Pecuniam Solvendam, Interpretation of Court Orders, Trust Money, Counterclaim
Civil Procedure Commercial and Corporate Contempt of Court Ad Factum Praestandum Ad Pecuniam Solvendam Interpretation of Court Orders Trust Money Counterclaim

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Parties

Flowra Trading CC

Applicant

Intozazi Trading (Pty) Ltd

Respondent

Bradford Bown

Respondent

Procedural Posture

Civil Application / Application for Contempt and Ancillary Relief

Legal Issues

  1. 1 Whether the respondents are in contempt of the court order granted on 26 February 2008.
  2. 2 Whether the order in question is ad pecuniam solvendam or ad factum praestandum.
  3. 3 Whether the applicant is entitled to direct payment of the disputed amount given the respondents' failure to institute the envisaged action.

Ratio Decidendi

The court found that the order in question, although involving payment of money, required the respondents to pay the amount to their own attorneys to be held in trust, not to the applicant. This did not vest any right in the applicant to the money and did not constitute an order ad pecuniam solvendam in favour of the applicant. The applicant could not rely on remedies available for money judgments, and the order was interpreted as ad factum praestandum. However, the court was not persuaded that the respondents' non-compliance was wilful or mala fide, as there was a genuine misunderstanding of the order's requirements and legal advice that contempt proceedings were inappropriate....

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.