Ignoring a court order because the court is wrong

When you are on the receiving end of a court order, it would be wise to obey the terms set out in it. Disobedience in terms of a court may cause a court to hold you in contempt of court. The consequences of the latter might be more severe than you expected – resulting in a criminal record perhaps or worse.

A person can be held in contempt of court in both criminal and civil proceedings. For the purposes of this article, we will focus on civil court orders.

There is a common law distinction between two types of court orders:

1. Orders for monetary payments (ad pecuniam solvendam); and
2. Orders for performance (ad factum praestandum), where an order is made to act, or to refrain from acting, in a certain manner.

When a court makes an order where a person (judgment debtor) is obliged to make monetary payments, the judgment debtor will not be held in contempt if he is unable or fails to make payment. The person who stands in favour of the order (judgment creditor), must rely on the alternative remedies at their disposal. Examples of such remedies include, among others, warrants of execution, section 65A(1) court procedures to determine the financial position of the judgment debtor, emoluments attachments orders, and garnishee orders..

However, if there is a contravention of an existing maintenance order, a person can be held in contempt of court according to section 31 of the Maintenance Act 99 of 1998. Section 31(1) states that any person who fails to make any particular payment in accordance with a maintenance order shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three years, or to such imprisonment without the option of a fine.

The lack of means to adhere to the maintenance order will in itself not be a sufficient defence for acquittal if it is proved that failure to pay is due to unwillingness to work or misconduct.

On the other hand, failure to comply with an order for performance, whether it refers to a positive act or refraining from acting in certain manner, could amount to contempt of court.

Contempt of court is a criminal offence. Therefore, it must be proven beyond reasonable doubt that a person is in contempt of court.

The requirements the court considers when establishing contempt of court are:

1. The existence of a court order;
2. Service and notice of the court order;
3. Non-compliance with the terms of the court order; and
4. Wilfulness and mala fides beyond reasonable doubt.

There are two procedures to follow in pursuit of a finding of contempt of court.

Firstly, the Applicant can bring an application to the High Court, with a founding affidavit setting out the allegations that the Respondent is in contempt of court. Said allegations will be in terms of the aforementioned requisites.

The Respondent can, in turn, oppose the application with an opposing affidavit disputing the allegations. The Respondent has a duty to adduce evidence to rebut the inference that his conduct was wilful and mala fide. 

The alternative procedure is laying a criminal charge at the South African Police Service (SAPS), where the matter will be subject to prosecution by the National Prosecuting Authority (NPA). The person allegedly in contempt of court will be an accused in the matter and the NPA will have to prove the offence beyond reasonable doubt.

To be held in contempt of court can result in serious consequences and persons can be liable to a fine or worse, imprisonment, upon conviction.

Reference List:

• Maintenance Act 99 of 1998
• Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited 2018 (1) SA 1 (CC)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)