IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO: CCT247/2016
In the matter between:
S E S Applicant
and:
V V-S Respondent
APPLICANT’S WRITTEN SUBMISSIONS
INTRODUCTION
1. As per the Directions dated 8 February 2017 and issued by the Chief Justice of the Constitutional Court, these are the applicant’s written submissions specifically addressing the questions arising, they being:
“a) whether the amount of R306 550.18 was a judgment debt and whether therefore the applicant and the respondent had a judgment debtor- judgment creditor relationship in respect of that amount; and
b) whether the High Court used the Rule 46(1)(a)(ii) execution process as a measure of last resort in this case.”
2. In relation to whether the amount of R306 550.18 was a judgment debt, the answer is emphatically no, rendering the secondary question of whether, therefore, the parties had a judgment debtor-judgment creditor relationship inconsequential.
3. As for whether the High Court used the Rule 46(1)(a)(ii) execution process as a measure of last resort, we respectfully contend that that Court, regrettably and demonstrably, did not.
4. It is our submission that other suitable mechanisms to recover the amounts allegedly due and owing by the Applicant to the Respondent were simply overlooked and/or not considered by the High Court.
WHETHER THE AMOUNT OF R306 550.18 WAS A JUDGMENT DEBT?
5. In addressing this principal question, we respectfully submit that an exposition of what is a ‘judgment debt’ is apposite. Various authorities have ventured to describe what is a judgment debt.
6. In Kilroe-Daley v Barclays National Bank Ltd,1 the then Appellate Division attempted to define a judgment debt as follows:
“A judgment debt is the amount or subject-matter of the award in the judgment.”2
11984 (4) SA 609 (A).
2At 626C.
7. Long ago and in Joosab v Tayob,3 it was remarked as follows by Bristowe J at P. 489:
“The rule is that the judgment of any court constitutes a debt. It novates the original debt, and substitutes a new one, which itself, at common law, be made the subject of a new action in another court.”
[own emphasis]
8. We further submit that the definition of a ‘judgment debt’ in section 2(3) of the Prescribed Rate of Interest Act, No. 55 of 1975 can serve as a guide on the question under consideration.
9. The provisions of the aforesaid section read as follows:
“In this section 'judgment debt' means a sum of money due in terms of a judgment or an order, including an order as to costs, of a court of law, and includes any part of such a sum of money, but does not include any interest not forming part of the principal sum of a judgment debt.”
10. In the present matter and before the High Court, the respondent had filed an affidavit in support of the warrant of execution, setting out how the amount of R306 550.18 was made up. This amount was not prescribed by a court of law in terms of a judgment that had been handed down.
11. In terms of the affidavit that was filed by the respondent, the amount of R306 550.18 was said to be made up as follows:
31910 T.P.D. 486.
11.1
Alleged arrears in respect of fixed monthly
maintenance payments: R 50,130.04
11.2
Alleged arrears in respect of one half of school
fees, paid by the Respondent: R 201,941.81
11.3
Alleged arrears in respect of medical expenses:
R 41,486.19
11.4
Alleged arrears in respect of extra mural
activities: R 12,992.14
TOTAL R 306,550.18
12. In relation to the alleged expenses, the respondent incurred same in United States Dollars (“US Dollars”) and converted said expenses to a Rand value, based on the exchange rate that she contends applied at the date that each expense was allegedly incurred.
13. In relation to the alleged expenses, the following is of, further, relevance:
13.1 The respondent claimed that, on the amount paid in respect of school fees, the Rand/US Dollar exchange rate and the calculation of the 50%
(fifty percent) school fees payable by the applicant was calculated as per Annexure “VS4” to her affidavit.
13.2 The respondent alleged that the amount owing by the applicant in respect of medical expenses, having reference to the Rand/US Dollar exchange rate, was as per an attachment to her affidavit which was marked Annexure “VS5”.
13.3 The respondent alleged that applicant owed her one half of all contribution towards text books, school uniforms, reasonably required extra lessons, extra mural activities, etc. and the amount owing in this regard was as per Annexure “VS6” to her affidavit.
13.4 Quite curiously, the aforesaid Annexures “VS4”, “VS5” and “VS6”
were not supported by any vouchers, tax invoices or any other source documents that explained how the amounts tabulated in the said Annexures were made up. The respondent, simply, lists the alleged expenses she incurred.
14. In was held by the full bench in Butchart v Butchart4 that a warrant of execution may be validly issued based on a so-called “expenses clause”
contained in a maintenance order, on condition that the amount is easily ascertainable in an affidavit filed on behalf of the judgment creditor.
15. The above decision did not, in our view, elevate such an “expenses clause” to a judgment debt. It was accepted by the full bench that it had become “practice” to allow a judgment creditor to take out a writ on the filing of an affidavit showing what amount is outstanding.
16. As can be gathered from the aforesaid judgment, the so-called “expenses clause”
created no more than an “obligation” to make payment of a category of certain future expense.
41997 (4) SA 108 (W).
17. In our considered view, the decision of the then Transvaal Provincial Division in Greathead v Greathead,5 provides an answer to the question at hand. In this case, the Magistrate had dismissed one of the claims on the ground that “an unsatisfied order for maintenance cannot again be sued upon as it is not a 100%
judgment creating a judgment debt.” Ramsbottom J agreed with the Magistrate’s view on this score.
18. The court in Greathead v Greathead (supra) went further and held thus at p.
411:
“The matter can be taken a stage further. The judgment of one Court can be sued on in another Court when the judgment constitutes a debt;
where the original obligation has been novated and a new and unalterable obligation comes into existence. An order for maintenance does not create a debt of this sort; it cannot be compensated by set-off, nor can it be ceded.”[own emphasis]
19. What greatly influenced the decision of the court a quo and the full bench in Butchart v Butchart (supra) was the fact that a writ was viewed as a more feasible, practical, expeditious and relatively inexpensive weapon to utilise.
20. In the present matter, the parties had concluded a settlement agreement which was made an Order of Court on 29 October 2010. In terms of the settlement agreement, the applicant had agreed to pay maintenance for the minor child to the defendant the sum of R2 500.00 per month.
51946 T.P.D. 404.
21. The basic maintenance payment was, under clause 4.3 of the settlement agreement, to increase by the consumer price index on the anniversary of the signing of the settlement agreement and on all subsequent anniversaries thereafter.
22. Of importance, clause 4.4 of the settlement agreement stipulated that either party reserves his or her right to claim an increase or decrease of the basic maintenance payments in the appropriate forum should the need arise.
23. Further and in terms of clause 4.5 of the settlement agreement, the applicant agreed to be liable for 50% (fifty percent) of minor child’s crèche / school fees.
24. Also and in terms of clause 4.6 thereof, the parties agreed to be liable for half of all costs of the minor child’s text books, school uniforms, reasonably required extra lessons, extra mural activities and uniform equipment, school outings and tours and other necessarily related educational expenses and the like.
25. The applicant also agreed to be liable for 50% (fifty percent) of the minor child’s medical, dental, pharmaceutical, ophthalmic, specialist and the other related medical expenses reasonably incurred that are not covered by the applicant’s medical aid scheme
26. It is worth mentioning, at this juncture, that the amount of R201 941.81 in relation to school fees, the amount of R41 486.19 in respect of medical expenses as well as the amount of R12 992.14 for extramural activities were amounts determined and arrived at by the respondent on her own accord.
27. We reiterate that these amounts, allegedly, for school fees, medical expenses and extramural activities were not supported by any vouchers, tax invoices or any other source documents that explained how those amounts were arrived at. They were simply set out in a spreadsheet prepared by the respondent herself.
28. From a factual point of view, therefore, there can be no dispute about the fact that the applicant’s alleged indebtedness in respect of these amounts was not a
“judgment debt” in the sense that the said amounts were determined in a judgment, which is in essence the decision of a judicial officer sitting in his court.6
29. It is, accordingly, the applicant’s considered submission that the amounts claimed for school fees, medical expenses and extramural activities, in particular, were not a debt that was pronounced upon by judgment of a court of law.
30. All that the applicant had agreed to in relation to any such expenses was to be liable in equal share with the respondent. The respondent simply proceeded with an application to declare the applicant’s property executable on the basis of amounts which were never proven, verified and/or tested.
31. There was, accordingly, no judgment debt in the circumstances and there could, therefore, have been no judgment debtor-judgment creditor relationship between the parties.
6Dictionary of Legal Words and Phrases, Claassen, Vol. 3, J-P, at J-7.
WHETHER THE HIGH COURT USED THE RULE 46(1)(a)(ii) EXECUTION PROCESS AS A MEASURE OF LAST RESORT IN THIS CASE?
32. In the judgment handed down by the High Court, we respectfully submit that the injunction provided for in Rule 46(1)(a)(ii) of the Uniform Rules of Court to the effect that no writ shall issue unless the court, having considered all the relevant circumstances, orders execution against such property, was simply not adhered to.
33. The availability of other alternatives which could have allowed for recovery of the alleged maintenance arrears without the sale in execution of the property was but one of those relevant circumstances that had to be considered. The High Court simply took the view that the applicant’s constitutional right to housing cannot take precedence over the best interests of the minor child.
34. Evidently, therefore, there was no evaluation of the relevant factors to be considered before an Order for execution against an immovable property that is the primary residence can be granted
35. Insofar as the availability of other mechanisms to recover maintenance other than the execution process contemplated by Rule 46(1)(a)(ii) of the Uniform Rules of Court, we make direct reference of Chapter 5 of the Maintenance Act, No. 99 of 1998 (“the Maintenance Act”).
36. The aforesaid Chapter makes provision for a maintenance orders to be enforced by civil execution. This includes execution against property, attachment of emoluments and attachment of debts.
37. The provisions of section 26(1)(b)(ii) of the Maintenance Act, in particular, stipulate that a maintenance order can be enforceable by the attachment of emoluments as contemplated in section 28 of the said Act.
38. It is common cause and it was also stated in the respondent’s affidavit in support of warrant of execution, that the applicant is a senior government official occupying a position of Chief Director. It is respectfully submitted that the attachment of the applicant’s emoluments was another measure to recover the alleged maintenance indebtedness. This alternative was never considered by the High Court.
39. The other alternative that was available in the present matter was the repayment of the alleged debt by way of monthly instalments over a period of time. A proposal in this regard was made to the respondent. The applicant made this proposal in view of the fact that the alleged claimed amounts had already been incurred by the respondent, as alleged.
40. We, therefore, contend that the repayment of the alleged debt over a period of time was an alternative measure short of the drastic and invasive execution process contemplated by the provisions of Rule 46(1)(a)(ii) of the Uniform Rules of Court.
41. In the answering affidavit resisting the application launched by the respondent to declare the Applicant’s property executable, mention was made of an offer of R100 0000.00 as part-payment of the alleged settlement.
42. The applicant, in his affidavit, stated thus:
“2.5 On [her] return [the respondent] sought to lump over me an amount of R300 000.00 (three hundred thousand Rand) as my contribution towards maintenance of the minor child.
2.6 I have, on numerous occasions, conveyed to [the respondent] that I am unable to raise the aforesaid amount in one go and require a payment arrangement.
2.7 As a matter of fact, I raised an amount of R100, 000.00 and offered this to [the respondent] as part-payment of the aforementioned indebtedness. This was unreasonably refused by [the respondent] who insists I must pay the full amount, together with interest.
2.8 At the present moment, I have with me an amount of R100, 000.00 and still offer this amount to [the respondent] as part-payment towards my indebtedness to her.”
43. In relation to this offer, the High Court took the following dim view:
“15 The respondent offered a once off payment of R100 000.00 towards reducing the arrear maintenance and sought a payment plan for the remainder. I consider the offer of the respondent to be demeaning to the applicant and the minor child. It cannot be that the applicant and the minor child had to wait for almost five years to be promised a once off
payment of R100 000.00 and negotiating the payment of the balance owing on the arrears. The respondent’s attitude in this regard is in fact consistent with his obstructive and lackadaisical approach to his parentary obligations. Such conduct cannot be countenanced by this court. To add salt to the wound, the respondent has neither seen the minor child nor made any attempt to do so for almost five years.
Such is consistent with his attitude of failure to pay maintenance.”
44. The above passage reveals, with respect, the High Court’s condemnation of the applicant. What pre-occupied the High Court, with respect, was its dim view of the applicant.
45. The judgment of the High Court contains telling expressions and adjectives such as, inter alia, ‘obstructive’ and ‘lackadaisical approach to parental obligations’,
‘demeaning to the minor child’, ‘tirade against the respondent’, ‘shenanigans’,
‘applicant’s revolting attitude’, ‘elaborate efforts aimed at frustrating compliance with maintenance obligations’, ‘applicant not even demonstrating any shame upon himself’, etc.
46. It is our respectful view that the dim view taken by the High Court towards the applicant heavily influenced its decision to the detriment of a proper consideration of the relevant factors as per the provisions of Rule 46(1)(a)(ii) of the Uniform Rules of Court.
47. The necessity to consider other reasonable ways in which the debt can be paid as opposed to proceeding with a sale in execution of a property that is the primary residence of a person is, by now, trite. In Jaftha v Schoeman and Others; Van Rooyen v Scholtz and Others,7 it was held as follows by Mokgoro J:
“A final consideration will be the availability of alternatives which might allow for the recovery of debt but do not require the sale in execution of the debtor’s home. At present, s 73 of the Act provides for a judgment debtor to approach a court with an offer to pay off a debt in instalments. As pointed out above, this section does not constitute sufficient protection for indigent debtors because they are generally unaware of its potential to protect them and their inability to invoke it.
However, the concept of paying off the debt in instalments is important and the practicability of making such an order must be ever present in the mind of the judicial officer when determining whether there is good cause to order the execution. The balancing should not be seen as an all or nothing process. It should not be that the execution is either granted or the creditor does not recover the money owed. Every effort should be made to find creative alternatives which allow for debt recovery but which use execution only as a last resort.”
48. This crucial necessity was reiterated by this Honourable Court in Gundwana v Steko Development and Others,8 where it was held as follows:
72005 (2) SA 140 (CC) at para. 59.
82011 (3) SA 608 (CC) at para. 54.
“It must be accepted that execution in itself is not an odious thing. It is part and parcel of normal economic life. It is only when there is disproportionality between the means used in the execution process to exert payment of the judgment debt, compared to other available means to attain the same purpose, that alarm bells should start ringing. If there are no other proportionate means to attain the same end, execution may not be avoided.”
49. In the present matter, an offer to pay approximately one third of the alleged indebtedness in one go and to, thereafter, pay the remaining balance in instalments was made to the respondent. This offer was even reiterated before the High Court in the applicant’s answering affidavit. The High Court, contrary to the injunctions in Jaftha and Gundwana (supra), regarded the offer to be demeaning to the respondent and to the minor child.
50. All things considered, the High Court respectfully failed to ensure that the Rule 46(1)(a)(ii) execution process was employed as a measure of last resort in this case.
51. It was, not so long ago, ruled by the Western Cape High Court that the civil enforcement of maintenance orders was the exclusive preserve of maintenance courts. This was in PT v LT and Another.9 We submit that this decision is correct, in all material respects, and the High Court materially erred in entertaining the respondent’s application in the first place.
92012 (2) SA 623 (WCC).
CONCLUSION
52. In the premises, it is the applicant’s contention that the amount of R306 550.18 was not a judgment debt and there was, therefore, no judgment debtor-judgment creditor relationship between the parties in respect of that amount.
53. It is equally the applicant’s respectful contention that the High Court used the Rule 46(1)(a)(ii) execution process as a measure of first resort without exploring and/or considering the availability of other alternatives which might have allowed for the recovery of the alleged indebtedness without the sale in execution of the applicant’s property.
54. We submit accordingly.
_________________________________________________
NDUMISO PEDRO VOYI
APPLICANT’S ATTORNEY NDUMISO VOYI INCORPORATED
GROUND FLOOR, BUILDING 5 563 OLD PRETORIA MAIN ROAD
HALFWAY HOUSE MIDRAND TEL: (011) 312 7536 FAX: (086) 246 2216 CELL: 076 970 2554 REF: NP VOYI/ah/SCH1/0002
DATE: 13 March 2017
