Shaun Evans and Paul Friendship v Yakub Surtee and Others

On 19 May 2009, the High Court (Bhunu J) granted an order requiring the defendants (two appellants and three other respondents) to deliver 47,500 litres of fuel to Surtee (first respondent) within 48 hours, arising from a commercial debt. The debt comprised 40,000 litres of fuel loaned/made available to Across Enterprises (fourth respondent) plus 7,500 litres in arrear rentals. When the defendants failed to comply, the Deputy Sheriff attempted execution and made a nulla bona return, with Mrs Evans stating they were no longer dealing in fuel supplies and did not have the fuel. Surtee then applied for an order holding the defendants in contempt. The court a quo found all five defendants in contempt, sentencing Across Enterprises to a fine of US$55,000 and the four individual defendants to 30 days imprisonment each, suspended on condition they deliver the fuel by 30 November 2010. The appellants appealed this contempt finding.

• Whether the order by Bhunu J was an order ad factum praestandum (order to do a specific act) or ad pecuniam solvendam (order to pay money)
• Whether the appellants were in contempt of court for failing to comply with the order
• Whether the appellants' disobedience was wilful and mala fide
• Whether proved inability to comply with a court order provides protection against committal for contempt

The appeal was allowed with costs. The judgment of the court a quo was set aside and substituted with an order dismissing the application for contempt with costs.

An order requiring delivery of goods in repayment of a commercial debt is in its essential nature an order ad pecuniam solvendam (order to pay money), not an order ad factum praestandum (order to do a specific act), regardless of how it is framed. The fact that payment is to be made in kind (fuel) rather than money does not convert a debt enforcement order into an order for specific performance. For a finding of contempt of a court order, the disobedience must be wilful and mala fide. Proved inability to comply with a court order on a balance of probabilities rebuts the inference of wilfulness and mala fides and provides protection against committal for contempt. Before granting an order ad factum praestandum, a court should satisfy itself as to the defendant's ability to comply with the order.

The Court observed that in view of the dire consequences of failing to obey an order ad factum praestandum (namely, committal to gaol), courts ought to satisfy themselves as to the ability of the defendant to comply with such orders before granting them, otherwise they risk issuing 'hollow and unenforceable' orders. The Court noted that there is an obligation on a court before whom an application for committal for contempt is made to examine the order sought to be enforced to ascertain its true nature and determine in which category (ad factum praestandum or ad pecuniam solvendam) it falls. The Court also commented that orders ad factum praestandum are usually granted only where there is no other remedy available to the applicant, the rationale being that a successful party has other options to enforce an order ad pecuniam solvendam.

This case is significant in Zimbabwean (and by extension South African) civil procedure law for clarifying the distinction between orders ad factum praestandum and ad pecuniam solvendam. It establishes that the key determinant is the essential nature of the obligation to be enforced, not merely the form in which the order is expressed. The case provides important guidance on when committal for contempt is appropriate, emphasizing that: (1) courts should inquire into a defendant's ability to comply before granting orders ad factum praestandum; (2) proved inability to comply provides a defense to contempt proceedings; and (3) wilfulness and mala fides are essential elements for a finding of contempt. The judgment reinforces the principle that orders for repayment of commercial debts are generally ad pecuniam solvendam even when expressed as delivery of goods in kind, and that alternative remedies should be considered before resorting to the drastic remedy of committal.