Rohde v Rohde and Others (4966/09) [2011] ZAFSHC 157 (15 September 2011)

Rohde v Rohde and Others (4966/09) [2011] ZAFSHC 157 (15 September 2011)

The court held that the application for committal for contempt of court must fail because the orders sought to be enforced were, in the main, ad pecuniam solvendam—orders for payment of money—which cannot be enforced by committal for contempt. Only the obligation to register a mortgage bond constituted an order ad factum praestandum, but the Trust and its trustees were not parties to the divorce proceedings and thus could not be bound by the order. The applicant failed to follow the proper procedure for amending the notice of motion, but the respondents did not pursue the irregularity under Rule 30 and thus abandoned their right to object. The applicant did not establish wilful and mala...

Citation
[2011] ZAFSHC 157
Parties
Applicant: Elizabeth Antoinette Rohde; Respondent: Hellmuth Robert Rohde; Respondent: Hellmuth Robert Rohde N.O.; Respondent: Elizabeth Catharina van der Linde N.O.; Respondent: The Registrar of Deeds, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 September 2011
Case Number
4966/09
Procedural Posture
Urgent Application / Application for Committal for Contempt of Court and Related Enforcement Orders
Outcome
Application dismissed with costs.
Judges
E. M. Kubushi
Legal Topics
Contempt of Court, Enforcement of Settlement, Trust Law, Ad Factum Praestandum, Ad Pecuniam Solvendam
Family and Children Civil Procedure Contempt of Court Enforcement of Settlement Trust Law Ad Factum Praestandum Ad Pecuniam Solvendam

Case Brief

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Parties

Elizabeth Antoinette Rohde

Applicant

Hellmuth Robert Rohde

Respondent

Hellmuth Robert Rohde N.O.

Respondent

Elizabeth Catharina van der Linde N.O.

Respondent

The Registrar of Deeds, Bloemfontein

Respondent

Procedural Posture

Urgent Application / Application for Committal for Contempt of Court and Related Enforcement Orders

Legal Issues

  1. 1 Whether the first respondent is in contempt of court for failing to comply with the terms of a Deed of Settlement made an order of court.
  2. 2 Whether the Trust and/or its trustees can be bound by a court order granted against the first respondent in his personal capacity, where the Trust was not a party to the proceedings.
  3. 3 Whether the failure to register a mortgage bond as required by the settlement constitutes contempt of court.

Ratio Decidendi

The court held that the application for committal for contempt of court must fail because the orders sought to be enforced were, in the main, ad pecuniam solvendam—orders for payment of money—which cannot be enforced by committal for contempt. Only the obligation to register a mortgage bond constituted an order ad factum praestandum, but the Trust and its trustees were not parties to the divorce proceedings and thus could not be bound by the order. The applicant failed to follow the proper procedure for amending the notice of motion, but the respondents did not pursue the irregularity under Rule 30 and thus abandoned their right to object. The applicant did not establish wilful and mala...

Court Disposition

Application dismissed with costs.

Orders

  • The points in limine raised by the respondents on procedure are dismissed.
  • The point in limine raised by the respondents on the substantive issues is upheld.