Msiza v Msiza and Another (M271/15) [2016] ZANWHC 23; 2017 (1) SACR 42 (NWM) (26 May 2016)

Msiza v Msiza and Another (M271/15) [2016] ZANWHC 23; 2017 (1) SACR 42 (NWM) (26 May 2016)

The court found that the High Court order only required the police to assist the sheriff if requested, and no such request was made. The applicant failed to enlist the sheriff's services, which was a prerequisite for police involvement. The police did not act in contempt, as they rendered assistance once the Station Commander was contacted and did not wilfully refuse to comply with the order. The application for contempt was therefore without merit and had to be dismissed.

Citation
[2016] ZANWHC 23
Parties
Applicant: Harold Msiza; Respondent: Dikeledi Msiza; Respondent: Abraham Paulus Bisshoff N.O.; Respondent: T L Rampe N.O.; Respondent: The Sheriff of the High Court Rustenburg; Respondent: Minister of Police; Respondent: Station Commander, South African Police Service Rustenburg
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
26 May 2016
Case Number
M271/15
Procedural Posture
Urgent Application / Application for Committal for Contempt of Court Order
Outcome
Application dismissed as regards the fourth and fifth respondents, with costs awarded against them for wasted costs incurred on 29 October 2015.
Judges
Landman
Legal Topics
Contempt of Court, Execution of Court Orders, Child Abduction, Role of Sheriff, Urgent Interdict
Civil Procedure Family and Children Contempt of Court Execution of Court Orders Child Abduction Role of Sheriff Urgent Interdict

Case Brief

Summary, issues, holding and outcome

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Parties

Harold Msiza

Applicant

Dikeledi Msiza

Respondent

Abraham Paulus Bisshoff N.O.

Respondent

T L Rampe N.O.

Respondent

The Sheriff of the High Court Rustenburg

Respondent

Minister of Police

Respondent

Station Commander, South African Police Service Rustenburg

Respondent

Procedural Posture

Urgent Application / Application for Committal for Contempt of Court Order

Legal Issues

  1. 1 Whether the police were in contempt of the High Court order dated 21 July 2015.
  2. 2 Whether the police were obliged to execute the civil order without the sheriff's involvement.
  3. 3 Whether the applicant was entitled to relief against the police for alleged non-compliance with the court order.

Ratio Decidendi

The court found that the High Court order only required the police to assist the sheriff if requested, and no such request was made. The applicant failed to enlist the sheriff's services, which was a prerequisite for police involvement. The police did not act in contempt, as they rendered assistance once the Station Commander was contacted and did not wilfully refuse to comply with the order. The application for contempt was therefore without merit and had to be dismissed.

Court Disposition

Application dismissed as regards the fourth and fifth respondents, with costs awarded against them for wasted costs incurred on 29 October 2015.

Orders

  • The application as regards the fourth and fifth respondents is dismissed with costs.
  • The fourth and fifth respondents are to pay the wasted costs incurred on 29 October 2015.