R v R  [2023] ZACC 5; 2023 (9) BCLR 1126 (CC) (1 February 2023).

Principles of contempt of court, the prohibition of imprisonment for debt, the limitations on a court's power to vary its orders, and the requirement for procedural fairness in judicial proceedings.

Author

Ross Shepstone
February 01, 2024

Mr. D[…] J[…] R[…] (the applicant) and Mrs. R[…] T[…] R[…] (the respondent) were married out of community of property in Zimbabwe and later moved to South Africa. During their marriage, they acquired various assets, including a property in Mozambique that generated rental income, and Mr. R[…] established a successful electrical services company. The marriage eventually broke down, and Mrs. R[…] initiated divorce proceedings in the High Court of South Africa, Gauteng Division, Pretoria.

The High Court granted a divorce decree and made orders regarding the division of assets between the parties. Notably, the court ordered that both parties remain joint owners of the Mozambique property and are equally entitled to the net rental income it generates. Additionally, Mr. R[…] was ordered to transfer 40% of his shareholding in his businesses in Mozambique and a South African company to Mrs. R[…].

Subsequently, Mrs. R[…] filed an application for contempt of court, alleging that Mr. R[…] had willfully failed to comply with the High Court's order by not paying her share of the rental income, not transferring the shareholding, and not taking steps to finalize her maintenance claim. The High Court found Mr. R[…] in contempt and varied its original order, substituting the share transfer with a monetary payment and altering the terms regarding the Dream Vacation Club points.

Mr. R[…] appealed the contempt order, challenging the High Court's findings of contempt and its authority to unilaterally vary the original divorce order. The Constitutional Court of South Africa heard the appeal and ultimately upheld it, setting aside the High Court's contempt order and substituting it with an order dismissing the contempt application and directing each party to pay their own costs.

The ratio decidendi of the Constitutional Court of South Africa in R[…] v R[…] [2023] ZACC 5 is multifaceted, encompassing several core legal principles:

1. Contempt of Court and Declaratory Orders: The Court held that the High Court's order declaring Mr. and Mrs. R[…] joint owners of the Mozambique property and equally entitled to its net rental income was purely declaratory and did not impose a positive obligation on Mr. R[…] to pay the rental income to Mrs. R[…]. Therefore, his failure to make such payment did not constitute contempt of court.

2. Imprisonment for Non-Payment of Debt: The Court reaffirmed the principle that imprisonment for failure to pay a debt is unconstitutional, as established in Coetzee v Government of the Republic of South Africa. A contempt of court order resulting in imprisonment cannot be based on a failure to satisfy a judgment for the payment of money (ad solvendam pecuniam), except in the case of maintenance orders.

3. Variation of Court Orders: The Court clarified that a High Court is generally functus officio after delivering a final judgment or order and cannot unilaterally vary or amend its decision, except in exceptional circumstances as provided for under rule 42(1)(c) of the Uniform Rules of Court or common law. Such variation can only occur if there was a mistake common to the parties that led to the granting of the original order, and there must be a causative link between the mistake and the order.

4. Unilateral Variation Without Party Prayers: The Court found that the High Court erred in unilaterally varying its divorce order by substituting the share transfer with a monetary payment and altering the terms regarding the Dream Vacation Club points, as these variations were not based on prayers sought by either party and were not supported by evidence or a common mistake.

5. Fairness in Judicial Proceedings: The Court emphasised the importance of the audi alteram partem principle, which requires that parties be given an opportunity to address the court on matters that affect them, such as the proposed variation of a court order. The High Court's failure to afford the parties this opportunity before varying its order was deemed unfair.

In summary, the ratio decidendi of the case rests on the principles of contempt of court, the prohibition of imprisonment for debt, the limitations on a court's power to vary its orders, and the requirement for procedural fairness in judicial proceedings.

"The fundamental reason why the means are not reasonable is because the provisions are overbroad. The sanction of imprisonment is ostensibly aimed at the debtor who will not pay. But it is unreasonable in that it also strikes at those who cannot pay and simply fail to prove this at a hearing, often due to negative circumstances created by the provisions themselves." (Paragraph [44], referencing Coetzee v Government of the Republic of South Africa)

In its reasoning process, the Constitutional Court of South Africa relied on several cases. One of the key cases cited was:

Coetzee v Government of the Republic of South Africa; Matiso v Commanding Officer Port Elizabeth Prison [1995] ZACC 7; 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC).

This case was pivotal in establishing the principle that imprisonment for failure to pay a debt is unconstitutional, which the Court applied to affirm that a contempt of court order resulting in imprisonment cannot be based on a failure to satisfy a judgment for the payment of money, except in the case of maintenance orders.