Case   CCT337/21
[2023] ZACC 05

Hearing Date: 16 August 2022

Judgement Date: 01 February 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 31 January 2023 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment, particularly paragraphs 3 to 7 of the order, and cost order of the High Court of South Africa, Gauteng Division, Pretoria (High Court) dated 10 February 2021.

The applicant is Mr David John Riley, an adult male previously married to the respondent, Mrs Rochelle Tracy Riley. The parties were married to one another in Zimbabwe on 1 September 1989, out of community of property, with an accrual system. They had three children during the subsistence of their marriage, who are already majors. In 2015, they relocated to South Africa and Mrs Riley instituted divorce proceedings in the High Court. Despite the marriage being solemnised in Zimbabwe, the parties agreed that the High Court had jurisdiction to adjudicate the divorce proceedings and also agreed that the Court would apply the relevant Zimbabwean laws. The relevant Zimbabwean legislation applicable was the Matrimonial Causes Act,1 as amended (the Act).

The Act gave the High Court the discretion to make an order re-allocating matrimonial property when granting a decree of divorce. The High Court, as per Davis J, dissolved the Riley’s marriage on 28 February 2018 and ordered a re-distribution in terms of section 7(1) and 7(4) of the Act. The relevant portions of the divorce order are as follows: (a) both parties were to remain joint owners of the immovable property at 459 Rua de Masala, Maputo, Mozambique (the Mozambique property), and would be equally entitled to whatever rental income the property generates; (b) Mr Riley was to transfer 40% of his shareholding in his businesses in Mozambique, and in his South African business to Mrs Riley within 60 days from date of the order (the business shares); and (c) the parties were each to retain the movable property in their possession at the time of the order as their own.

In January 2019, Mrs Riley launched a contempt application in the High Court on the basis that she had not received her share of the rental income from the Mozambique property and secondly on the basis that Mr Riley had not transferred the business shares into her name. On 18 July 2019, the High Court granted an order of contempt in the form of a rule nisi, wherein Mr Riley was ordered to furnish reasons why the order should not be confirmed. The rule nisi was granted on the basis that Mr Riley had wilfully failed to comply with the divorce order. Mr Riley opposed the contempt application and brought a counter-application wherein he sought condonation for the late filing of his application for leave to appeal against the whole of the divorce order, and alternatively, an order for the variation of certain paragraphs of the divorce order. Amongst others, he sought an order that he retains sole ownership of the property in Mozambique and that he retain as his sole property all the points in the Dream Vacation Club subscription. Furthermore, that the entire paragraph relating to the transferring of the business shares to Mrs Riley be deleted.

The High Court held Mr Riley in contempt of the divorce order and sentenced him to imprisonment of 60 days, which was suspended in whole in the event that he made payment of Mrs Riley’s rental income share into her South African bank account within 30 days of the order. Second, it ordered that if Mr Riley did not ensure in future that Mrs Riley is paid her share of the rental money of the Mozambique property then she would be entitled to approach the court for further relief. Third, it made a variation of the order concerning the business shares and ordered Mr Riley to pay Mrs Riley a nominal equivalence of her 40% share of the businesses, and pay R44 000 for the nominal fee of the dream vacation points. Mr Riley applied for leave to appeal against the whole of the contempt order but this was dismissed. The Supreme Court of Appeal also dismissed Mr Riley’s application for leave to appeal.

Mr Riley, in his submissions to this Court, argued that his rights in terms of section 34 of the Constitution had been violated and that the matter raised several arguable points of law of general public importance. He contended that the High Court unilaterally amended the order of the Mozambique property and imposed as a fine, 60-day imprisonment which is against the jurisprudence of this Court, in that the enforcement of judgments debts does not form a part of contempt proceedings. Additionally, Mr Riley submitted that the High Court unilaterally varied or amended the divorced order initially issued by it notwithstanding that it was functus officio and without any jurisdiction to vary or amend its own orders.

Mrs Riley opposed the application, submitting that the matter turned on two issues: whether Davis J could vary his own order in the terms he had; and secondly whether Mr Riley could be found to be in contempt of court. Mrs Riley accordingly denied that Davis J was functus officio and submitted that the divorce order could be varied in terms of rule 42(1)(c) of the Uniform Rules of Court, alternatively the common law. Moreover, that the High Court was correct in finding that Mr Riley’s non-compliance with the divorce order was wilful and mala fide. Mrs Riley further submitted that the portion of the order which directed Mr Riley to pay her an amount of R489 136.59 was not part of the variation of the divorce order but was the amount owed to her for her shares of the rental income since the date of the divorce order.

In a unanimous judgment written by Tshiqi J, this Court held that even though most of the criticisms directed at the High Court in how it dealt with the contempt application were to a certain extent errors of established legal principles, they nonetheless implicated sections 12 and 34 of the Constitution in a manner so serious that it warranted the attention of the Court, thus engaging its jurisdiction. The Court further held that it was necessary to determine whether an order of contempt of court may flow from an order couched in declaratory terms. The Court thus concluded that it was in the interests of justice for it to grant the applicant leave to appeal.

On the merits, the Court held that it was common cause that Mr Riley administered the rental income generated by the property, however this did not mean that the High Court’s order created a positive obligation on him to transfer and pay the amount to Mrs Riley. It was held that Mr Riley’s failure to make the payment did not place him in contempt of the court order as the evidence before the High Court did not establish that Mr Riley was wilful and mala fides in his failure to comply with the order. Additionally, it was held that even after having found Mr Riley in contempt of the declaratory order, a sentence of direct imprisonment, conditional upon payment of an amount of money was in any event not a competent order as it is an established principle that imprisonment for the failure to pay a debt is unconstitutional and that section 12(1) of the Constitution does not permit imprisonment of a judgment debtor against whom an order is made ad solvendam pecuniam (payment of money). In considering whether the High Court varying its divorce order mero motu thus making an order which differs materially from the prayers sought by the parties, the Court held that once a judgment has been handed-down, the Judge is functus officio; he or she has no power to make, alter or amend, in any material terms, his or her decision or order, except in the exceptional circumstances envisaged under rule 42. In this instance, the Court concluded that the High Court was correct in holding that it was not open to Mr Riley to unilaterally decide not to comply with the court order, but this did not give the High Court the competency to unilaterally vary the order materially on terms not sought by any of the parties. As a result, the appeal was upheld and the application holding Mr Riley in contempt was dismissed.


The Full judgment  here