A disgruntled ex-wife who wanted her former partner to be sent to jail for disobeying a court order, had her application dismissed after the judge said the law prohibits imprisonment of debtors for the non-payment in civil debt.
The former couple were married, and they divorced about seventeen years ago.
They entered into a settlement agreement that the ex-husband would provide, spousal maintenance and maintenance for their children.
In addition, it was also agreed that the wife would get their former matrimonial home, the husband will continue making monthly payments of the bond until its settled and then transfer the property into the wife’s name.
If he defaulted on payments, the wife would be entitled to recover the outstanding value of the loan from the husband.
However, the husband did not comply with the terms of the agreed settlement, and the wife sought relief at the Western Cape High Court to have her ex-husband held in contempt of court.
In his defence, he said his business failed, and he fell into arrears with his bond obligations hence the he sold the home. The court papers didn’t explain how the sale was performed and how much he got.
After sometime, the ex-wife launched another application where she sought a declarator to determine the extent of the sum due to her from the sale of the house, an order directing payment of the sum into her account, an order holding the husband in contempt of court should he fail to make the payment due to her.
The husband tried to oppose the application but he failed and was ordered to pay his ex-wife the money due to her.
When the sheriff of the court attempted to execute a writ of possession on the husband’s movables and immovables items, the sheriff was unsuccessful. His lawyers said he was insolvent and did not possess sufficient assets to satisfy his debts.
Subsequent to that, the husband migrated to Saudi Arabia where he got a job. Since then, he has only visited South Africa sporadically. It was not indicated which year he left the country.
In another attempt, the ex-wife approached the high court seeking an order holding her ex-husband in contempt of court and that he be incarcerated.
She required a warrant of arrest to be issued compelling him to hand himself over to the police. Lastly, she sought costs against him on a punitive scale.
Judge Derek Wille heard her application and said the husband had left the country and his imprisonment was legally impermissible.
Judge Wille said even though the ex-wife argues that the court has the jurisdiction to handle the matter because it handle the previous matters, he was not persuaded that court had the powers to order the ex-husband to be arrested in a foreign country.
“Still, even if I am wrong on the jurisdiction point, the ACIA prohibits the imprisonment of debtors for the non-payment of a civil debt...the applicant (ex-wife) cannot compel payment of a civil debt using imprisonment as her method of execution.
“It was not demonstrated that the respondent (ex-husband) intended in any manner to disobey the court order, thereby holding the judiciary and the judicial system in disrepute,” said the judge.
In addition, judge Wille said he was doubtful that the ex-wife could satisfy the civil debt in the foreseeable future.
“The respondent’s (ex-husband) incarceration would serve no purpose other than perhaps to fulfil the applicant’s (ex-wife) need for what she perceives as poetic justice in this case's unfortunate and peculiar circumstances,” said the judge.
sinenhlanhla.masilela@iol.co.za
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