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H P ENTERPRISES (PTY) LTD v NEDBANK (SWAZILAND) LIMITED [1999] SZHC 12 (14 April 1999)

Committal for contempt – only claims ad factum praestandum not ad pecuniam solvendam
CIV. CASE NO. 788/99

In the matter between

H P ENTERPRISES (PTY) LTD APPLICANT

And

NEDBANK (SWAZILAND) LIMITED RESPONDENT

Coram S.B. MAPHALALA – J
For the Applicant MR. P. SHILUBANE
For the Respondent MR. L. KHUMALO

RULING ON APPLICATION FOR A RULE NISI

(14/04/99)

Maphalala J:

The court made a ruling in open court to vary an order granted by the court on the 1^st April 1999 to the extent of removing the interim effect. Mr. Shilubane then made an application for the committal to goal of the Managing Director of the bank. More specifically Mr. Shilubane applied that a rule nisi be put in place returnable on a date to be appointed by the court where evidence on the contempt would be adduced.

Mr. Khumalo for the bank rightly placed this application in its proper perspective saying that we are now dealing with an alleged contempt from the date of the order, to the time the court made an order removing the interim effect of the order. In fact the respondent (bank) had raised a point in limine in their papers that the order of this court dated the 1^st April 1999 is an order ad pecuniam solvendam, an order to pay a sum of money, which cannot as a matter of law be enforced by committal for contempt. The order requires the payment of the sum of E120,000-00 into the account of the applicant by means of the reversal of a debit and is accordingly an order directing the payment of money and is therefore not an order ad factum praestandum i.e. an order to do, or abstain from doing a particular act. To support this proposition Mr. Khumalo referred the court to page 820 of Herbstein and Van Wissen in The Civil Practice of the Supreme Court of South Africa (4^th ED).

Mr. Khumalo further submitted that the key to a court in granting an order or judgement is whether that particular order of judgement can be enforced. His view is that in the present case this order being sought cannot be enforced and thus ill conceived. He applied that on the basis of the point in limine the application be dismissed with costs.

Mr. Shilubane on the other hand holds the view that his client is entitled to the rule nisi in that the order being sought is not for payment of money. There is no question of the payment of money. The cheque was treated as cash. When his client deposited the cheque it was as if cash was put into the account. Respondent is not asked to pay any money. He also referred the court to page 820 – 821 of Herbstein and Van Wissen (4^th ED) (supra) on the requisition for the grant of an order for contempt.

This is the issue before me. The issue is whether or not applicant on its papers is entitled to a rule nisi. It is trite law that a rule nisi should not be granted merely by the asking thereof. The judge hearing the initial application must be satisfied that a rule nisi is warranted on the papers (see Du Randt vs Du Randt 1992 (3) S.A. 281 at page 289 o-f). The applicant has to prove a prima facie case ex facie the papers. In the present case I am inclined to agree with the submissions by Mr. Khumalo that such a remedy cannot be granted in a dispute sounding in money (ad pecuniam solvendam). It is an unescaple fact that the essence of the order of the 1^st April 1999 involves the exchange of money from one party to the other. The essence of debiting or crediting a customers account is that money changes hands in that mode. These words are merely words of art in banking parlance. I agree that this order being sought is unenforceable in law for the reasons I have given. On the premise, that courts do not issue orders in vain, I refuse the grant of the rule nisi.

Costs to be borne by the applicant.

S.B. MAPHALALA

JUDGE