Some practical tips to keep in mind if an applicant is ever seeking committal proceedings to enforce compliance of an Order.
1. Set time frame to do the act
During litigation, if you are seeking to compel someone to do something (e.g. hand over documents, to hand over vacant possession, etc), do include an explicit time frame for them to do it. Committal can then be easily enforced for if there is a breach to do that act within that time frame (O. 45 r. 5 of the Rules of the High Court 1980 (“RHC”)), then you can apply for leave to commit. There is case law that states without such a time frame, you may not be able to go for committal. Without such a time frame, you may also not be able to get the penal indorsement (see below).
2. Set long enough time frame to get sealed Order and to serve
However, do list out a long enough time frame (e.g. 28 days) for that person to do the act as you can only go for committal if the sealed Order is served personally on that person before the expiration of the time frame (O. 45 r. 7(2)(b) RHC). You can however go for an extension of the time frame, but that will add further complication and another round of litigation.
3. Penal indorsement
In order for you to go for committal for failure to do something within a certain time, the sealed Order must be indorsed with the necessary penal notice. When trying to extract the sealed Order, please double check that both the Order is sealed AND the penal notice which is at the bottom of the Order is sealed as well. Failure to seal the penal notice will make it defective. Sometimes, the Registrar and the court staff will forget to get the penal indorsement sealed.
4. Leave for committal
When going for leave for committal, which is carried out on an ex parte basis, you may also want to consider whether you want to have an additional prayer to exclude the need for personal service of the committal papers. Possibly state that the proper service can be effected by service on the contemnors’ solicitors (applicable if there is already ongoing litigation).
This is useful where you have individuals who may evade the service of the contempt papers, because the RHC requires that the contempt papers, after you get leave, be served personally on the alleged contemnors.
There should be some explanation in your affidavit in support of leave as to why you are asking for dispensation of personal service. You may have tried to serve an order before on these individuals for instance. If there is no disclosure of such grounds, the contemnors could try to set aside the ex parte leave Order.
5. Ex parte hearing for leave
If you are on the other side and your opponent is seeking leave for committal and you get wind of it, there is a High Court authority allowing a Judge discretion to hear you notwithstanding that the RHC states that leave must be ex parte.
I however lost before a Judge when the Court read the RHC very strictly and said since the RHC states that leave for committal “shall” be heard ex parte, the Court had no discretion and the Court did not allow me to be heard at the ex parte leave hearing. I still prepared submissions and left the submissions and authorities with the Court, as I stated that since this was an ex parte hearing, the Court would still have to consider all the arguments for and against the grant of leave. I still lost the leave application anyway (but eventually succeeded in opposing the committal proper).