Vos v Fynbosland 304 CC (2864/2016) [2017] ZAWCHC 20 (27 February 2017)

Vos v Fynbosland 304 CC (2864/2016) [2017] ZAWCHC 20 (27 February 2017)

The court found that the Savage Order dated 31 May 2016 was clear and unambiguous in binding only the first respondent to payment and performance. There was no basis to read in joint and several liability for the second respondent, nor to amend the order retrospectively. The nature of the order, being for payment of money (ad pecuniam solvendam), rendered it unenforceable by way of contempt proceedings. The first respondent was no longer before the court due to liquidation, and no grounds existed to hold the second respondent personally liable. Accordingly, the application for contempt was dismissed as the terms of the Savage Order were incapable of enforcement by contempt.

Citation
[2017] ZAWCHC 20
Parties
Applicant: James Vos; Respondent: Fynbosland 304 CC; Respondent: Cornelius Almero Oosthuizen van der Westhuizen
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 February 2017
Case Number
2864/2016
Procedural Posture
Contempt Application / Judgment After Hearing on Contempt Application
Outcome
Application dismissed with costs.
Judges
Magona
Legal Topics
Contempt of Court, Enforcement of Court Orders, Pecuniam Solvendam, Corporate Veil, Housing Consumers Protection Measures Act
Civil Procedure Contempt of Court Enforcement of Court Orders Pecuniam Solvendam Corporate Veil Housing Consumers Protection Measures Act

Case Brief

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Parties

James Vos

Applicant

Fynbosland 304 CC

Respondent

Cornelius Almero Oosthuizen van der Westhuizen

Respondent

Procedural Posture

Contempt Application / Judgment After Hearing on Contempt Application

Legal Issues

  1. 1 Whether the Savage Order dated 31 May 2016 is enforceable by way of contempt proceedings.
  2. 2 Whether the second respondent can be held jointly and severally liable for payment of money under the Savage Order.

Ratio Decidendi

The court found that the Savage Order dated 31 May 2016 was clear and unambiguous in binding only the first respondent to payment and performance. There was no basis to read in joint and several liability for the second respondent, nor to amend the order retrospectively. The nature of the order, being for payment of money (ad pecuniam solvendam), rendered it unenforceable by way of contempt proceedings. The first respondent was no longer before the court due to liquidation, and no grounds existed to hold the second respondent personally liable. Accordingly, the application for contempt was dismissed as the terms of the Savage Order were incapable of enforcement by contempt.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.