M v M (A3076/2016) [2017] ZAGPJHC 279 (28 March 2017)

M v M (A3076/2016) [2017] ZAGPJHC 279 (28 March 2017)

The Regional Divorce Court, as a creature of statute, does not possess inherent jurisdiction and cannot be vested with such powers by statute. Section 29(1B)(a) and (b) of the Magistrates' Courts Act does not extend the High Court's inherent jurisdiction to the Regional Divorce Court, nor does it confer the power to grant civil contempt orders. The only contempt jurisdiction conferred upon Magistrates' Courts is criminal contempt under section 106 of the Magistrates' Courts Act. Therefore, the order of civil contempt granted by the Regional Divorce Court was invalid and must be set aside. The proper remedy for enforcement of the divorce order in the Magistrates' Court is criminal contempt...

Citation
[2017] ZAGPJHC 279
Parties
Appellant: M C; Respondent: M J
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 March 2017
Case Number
A3076/2016
Procedural Posture
Civil Appeal / Appeal From Regional (divorce) Court, Roodepoort
Outcome
Appeal upheld; contempt order set aside; costs awarded to appellant excluding counsel's fees.
Judges
Modiba, Carelse
Legal Topics
Civil Contempt of Court, Jurisdiction of Regional Courts, Divorce Order Enforcement
Family and Children Civil Procedure Civil Contempt of Court Jurisdiction of Regional Courts Divorce Order Enforcement

Case Brief

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Parties

M C

Appellant

M J

Respondent

Procedural Posture

Civil Appeal / Appeal From Regional (divorce) Court, Roodepoort

Legal Issues

  1. 1 Does the Regional Divorce Court have jurisdiction to grant an order for civil contempt of court?
  2. 2 Can inherent jurisdiction of the High Court be extended to the Regional Divorce Court by statute?
  3. 3 Was the contempt order granted by the Regional Divorce Court valid?

Ratio Decidendi

The Regional Divorce Court, as a creature of statute, does not possess inherent jurisdiction and cannot be vested with such powers by statute. Section 29(1B)(a) and (b) of the Magistrates' Courts Act does not extend the High Court's inherent jurisdiction to the Regional Divorce Court, nor does it confer the power to grant civil contempt orders. The only contempt jurisdiction conferred upon Magistrates' Courts is criminal contempt under section 106 of the Magistrates' Courts Act. Therefore, the order of civil contempt granted by the Regional Divorce Court was invalid and must be set aside. The proper remedy for enforcement of the divorce order in the Magistrates' Court is criminal contempt...

Court Disposition

Appeal upheld; contempt order set aside; costs awarded to appellant excluding counsel's fees.

Orders

  • The order granted by the Regional Divorce Court on 6 May 2016, holding the appellant in contempt of the order granted on 15 June 2011, is set aside.
  • The respondent shall pay the appellant's costs of appeal, excluding the costs of counsel.