K.V (previously T) v C.F.G.T (37420/13) [2015] ZAGPPHC 120 (18 February 2015)

K.V (previously T) v C.F.G.T (37420/13) [2015] ZAGPPHC 120 (18 February 2015)

The court found that the obligation to pay R30,000.00 under the divorce settlement agreement was a contractual obligation ad pecuniam solvendum, not an undertaking in facie curiae. Contempt proceedings are not competent to enforce payment of a contractual sum; the appropriate remedy is a civil claim for payment. Even if the proceedings were competent, the respondent's explanation for the short payment—his belief in entitlement to set off erroneous payments—created reasonable doubt as to wilful and mala fide non-compliance. The applicant failed to discharge the onus required for contempt. The application for committal and contempt was therefore dismissed, and no costs order was made.

Citation
[2015] ZAGPPHC 120
Parties
Applicant: K.V (previously T); Respondent: C.F.G.T
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 February 2015
Case Number
37420/13
Procedural Posture
Civil Application / Opposed Motion Court; Judgment After Hearing
Outcome
Application for contempt and committal dismissed; no order as to costs.
Judges
Van der Westhuizen
Legal Topics
Contempt of Court, Divorce Settlement, Ad Pecuniam Solvendum, Committal for Imprisonment
Family and Children Civil Procedure Contempt of Court Divorce Settlement Ad Pecuniam Solvendum Committal for Imprisonment

Case Brief

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Parties

K.V (previously T)

Applicant

C.F.G.T

Respondent

Procedural Posture

Civil Application / Opposed Motion Court; Judgment After Hearing

Legal Issues

  1. 1 Whether the respondent's failure to pay the full amount under the divorce settlement constitutes contempt of court.
  2. 2 Whether contempt proceedings for non-payment of a contractual sum are competent.
  3. 3 Whether the respondent acted wilfully and in bad faith in failing to comply with the court order.

Ratio Decidendi

The court found that the obligation to pay R30,000.00 under the divorce settlement agreement was a contractual obligation ad pecuniam solvendum, not an undertaking in facie curiae. Contempt proceedings are not competent to enforce payment of a contractual sum; the appropriate remedy is a civil claim for payment. Even if the proceedings were competent, the respondent's explanation for the short payment—his belief in entitlement to set off erroneous payments—created reasonable doubt as to wilful and mala fide non-compliance. The applicant failed to discharge the onus required for contempt. The application for committal and contempt was therefore dismissed, and no costs order was made.

Court Disposition

Application for contempt and committal dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • No order in respect of costs is made.