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[2017] ZAWCHC 63
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C.N v T.N (5245/2017) [2017] ZAWCHC 63 (31 May 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
5245 /2017
In
the matter between:
C
N Applicant
v
T
N Respondent
Coram:
Dlodlo J
Date
of Hearing: 25 April 2017
Date
of Judgment: 31 May 2017
JUDGMENT
DLODLO,
J
[1]
This is an application in which the applicant seeks an order, inter
alia, that (a) the respondent be found to be in contempt
of the court
order granted by Salie-Hlophe J on 13 August 2015 under case number
11898/15 (‘the court order’); (b)
the respondent be
committed to prison for contempt of court for a period of 30 days or
such period as the court deems just and
equitable, (c) the
respondent’s committal to prison be suspended for a period of
one year on condition that: (i) the respondent
pays the applicant the
sum of R 264 149-91 (the amended quantum calculation is
mentioned later herein) within 14 days from
the date on which the
order was granted; (ii) the respondent forthwith complies with his
obligations set out in the court order
(‘the main
application’). The respondent launched a counter application in
which he seeks an order that,
inter alia
: (a) the court order
be discharged (2) the respondent be permitted to enter the property
situate at […] R. Street, Stellenbosch
(‘the property’)
accompanied by a sworn valuator for purposes of compiling an
inventory and valuing the movable assets
at the property. (c) the
costs of the sworn valuation be paid from the sale of proceeds of the
property situated at […]
P. Street, Vermont (‘the
Vermont property’). (d) the respondent be permitted to remove
specified movable assets from
the property (‘the counter
application’). The parties shall hereinafter be referred to as
they are cited in the main
application. It is perhaps prudent to
first consider the counter application launched by the respondent.
THE
COUNTER APPLICATION
[2]
Mr Mouton preceded his submissions in the above regard by referring
to
Jeanes v Jeanes
1977 (2) SA 703
(W) at 706 G where the
Court held as follows:
‘
Rule 43 (6) provides
that the Court may on the same procedure vary its decision in the
event of a material change taking place in
the circumstances of
either party or a child or the contribution towards costs proving
inadequate. The relevant words, in my view,
are “on the same
procedure”. In other words, if there is a change in
circumstances, a simple application in terms of
Rule 43 can be made.
If there is any other good cause for a variation of a maintenance
order the maintenance debtor is not precluded
from approaching the
Court for relief by way of ordinary motion proceedings. In this
regard it is only necessary to quote one authority,
namely Beneke v
Beneke,
1965 (1) SA 855
(T) at p. 856, where VIERYA, J., said:
“…
the term
‘good cause’ has a wide connotation. It means any reason
which in particular circumstances of the case would
render it
equitable for the Court to exercise its discretion in favour of the
applicant.”
He
also referred to
Beneke
v Beneke
1965 (1) SA 855
(T) where it was held that, inter alia, an order to
pay maintenance in respect of minor children after divorce may be
varied even
though made in terms of an agreement between the parties
provided only that good cause is shown for such variation.
Essentially
Mr Mouton’s submission is the following as far as
the counter application is concerned:
‘
It is clear that
Applicant has in excess of R3 000 000 to maintain herself
and the parties’ minor child pendente
lite, whilst Respondent’s
only source of income, Jetvest, cannot pay the arrears of R253 954,
33 and R100 000 per
month until the divorce action and his claim
in terms of section 7 (3) of the Divorce Act is finalised; Having
regard to the respective
current financial positions of the Applicant
and the Respondent, it would be just and equitable to suspend the
order granted by
the above Honourable Court on 13 August 2015.’
[3]
I fully agree with Mr McClarty SC that the court must view the
conduct of the respondent seriously in that he opposes the main
application without purging his contempt. In fact such conduct is
fatally defective. I shall demonstrate hereunder. One must
mention that the minor child of the parties is actually the person
that has suffered the most prejudice because of the respondent’s
failure to pay maintenance contemplated in the court order.
Ordinarily, courts should not allow respondents such as the present
one to be heard until such time that their/his contempt has been
purged. It comes as no surprise at all that the applicant invites
me
not to allow the respondent to be heard until such time that he
purges his contempt. This approach is supported in
Byliefeldt
v Redpath
1982 (1) SA 702
(AD). It has been held authoritatively that this
approach is especially of importance in matters involving the best
interests of
the minor children. See in this regard
Kotze
v Kotze
1953 (2) SA 184
(CPD). Indeed the respondent’s failure to pay
in terms of the court order has clearly left the minor children of
the parties
without maintenance support. I view the failure to pay
maintenance in a very serious light. In
Kotze
v Kotze
supra
the judge cited the following dicta of Romer, L. J. in
Hadkinson
v Hadkinson
1952 (2) A. E. R. at page 571:
‘
Disregard of an order
of the court is a matter of sufficient gravity, whatever the order
might be. Where, however, the order relates
to a child, the court is,
or should be, adamant on its due observance. Such an order is made in
the interests of the welfare of
the child and the court will not
tolerate any interference with or disregard of its decisions on these
matters.’
It
is important to set out what Denning LJ stated in the same case:
‘
It is a strong thing
for a court to refuse to hear a party to a cause and it is only to be
justified by grave considerations of
public policy. It is a step
which a court will only take when the contempt itself impedes the
course of justice and there is no
other effective means of securing
his compliance…Applying this principle, I am of the opinion
that the fact that a party
to a cause has disobeyed an order of court
is not of itself a bar to his being heard, but if his disobedience is
such that, so
long as it continues, it impedes the course of justice
in the cause, by making it more difficult for the court to ascertain
the
truth or to enforce the orders which it may make, then the court
may in its decision refuse to hear him until the impediment is
removed or good cause is shown why it should not be removed’.
Despite
the aforegoing I have heard the respondent in his counter
application.
[4]
It remains of cardinal importance to note that no appeal lies against
the court order. See
Section 16
(3) of the
Superior Courts Act 10 of
2013
. The respondent’s only recourse is an application in terms
of
Rule 43
(6) on condition that there has been a material change in
circumstances subsequent to the applicant launching an application in
terms of
Rule 43
(1) under case number 11898/2015 (‘the
Rule 43
application’) and the granting of the court order. I find it
strange that the counter application is ‘
dressed up’
as a stand alone application. Clearly, the respondent has
utilised the incorrect procedure. Indeed it is abundantly clear
that
the counter application is in fact an application in terms of
Rule 43
(6). It is just imperfectly styled totally contrary to how it should
be. Why I say it is
Rule 43
(6) is evident from the fact that the
respondent seeks a complete discharge of his obligations as set out
in the court order. In
what the respondent defines as his ‘
Replying
Affidavit’
, the respondent explicitly states, ‘
I
have set out the reason why I delayed with an application in terms of
Rule 43
(6).’
[5]
The ancillary relief sought by the respondent in the counter
application does indeed amount to nothing more than what Mr McClarty
described as ‘
smoke and mirror’
, which is clearly
aimed and calculated at obfuscating the real issues in dispute in the
present matter. The issue is that the applicant
is in contempt of the
court order and should be appropriately sanctioned. I deal fully with
the contempt of court issue
infra
under the topic ‘the
main application’. I have been placed in a fortunate position
in that the court file dealing with
the
Rule 43
proceedings prior and
during the granting of the court order has been made available to me.
I find that the respondent has rehashed
the facts that were fully
traversed in the
Rule 43
application which culminated in the granting
of the court order. On the respondent’s own version the issues
relating to Jetvest
1544 CC t/a Le Cap Foods’s (‘Jetvest’)
purported financial deterioration are conceded to have been addressed
in the Replying Statement delivered by the respondent in the
Rule 43
application. The issues relating to Jetvest (all of them) were raised
and considered by the court that granted the court order.
I find it
completely strange that those exact issues are again raised in this
counter application. In my view, the matter is
res judicata
.
The counter application does seem illegitimate and totally
misconstrued.
[6]
Rule 43
(6) is clear and it is unequivocal. It provides (in relevant
parts) as follows:
‘
The Court may, on the
same procedure, vary its decision in the event of a material change
taking place in the circumstances of either
party or a child…’
It
is important that it be mentioned that the procedure that the
respondent should have adopted in launching an application in terms
of
Rule 43
(6) (i.e the counter application) is set out in
Rule 43
(2) and (3). The procedure is simply that (a) the respondent was to
deliver a sworn statement in the nature of a declaration setting
out
the relief sought and the grounds for such relief; and (b) the
applicant was to deliver a sworn reply in the nature of a plea.
Contrary to what is set out by the relevant rule, the respondent has
delivered a comprehensive founding affidavit in the counter
application. I point out that the filing of lengthy and voluminous
affidavits frustrates and defeats the purpose of
Rule 43.
It
certainly amounts to an abuse of the court process. Time has arrived
that courts should take charge and ensure that its process
should not
be abused by the litigants. In an appropriate case, the court may
strike out the whole document or portion thereof.
See
Zoutendijk
v Zoutendijk
1975 (3) SA 490
(T) and
Andrade
v Andrade
1982 (4) SA 854
(O). The lengthy affidavits filed by the respondent
in which he has traversed issues that were addressed in the
Rule 43
application is totally unacceptable. The filing of lengthy affidavits
by the respondent has culminated in a record exceeding 350
pages.
Failure to adhere to the procedure set out in
Rule 43
should not be
overlooked or counternanced by the court. What the respondent has
done is to adopt a procedure prescribed in Rule
6 of the Uniform
Rules of court. The respondent is not permitted to institute an
application in terms of Rule 6 in circumstances
that require an
application to be instituted in terms of Rule 43 (6). See
Van
der Walt v Van der Walt
1979 (4) SA 891
(T) and
Mather
v Mather
1970 (4) SA 582
(E). Accordingly I cannot blame Mr McClarty in
submitting that the respondent’s conduct amounts to an abuse of
the court
process and that his affidavit and annexures in the counter
application should be struck out. I find that there has been no
change
in circumstances which give rise to an application to be
launched in terms of Rule 43 (6) by the respondent.
[8]
I have referred above to a lengthy founding affidavit. Upon receipt
of the answering affidavit filed in response to the counter
application, the respondent delivered a lengthy Replying affidavit.
Rule 43 does not make provision for a Replying affidavit (or
Statement) to be delivered by the respondent. The respondent may only
deliver a Sworn Statement and the applicant may only deliver
a Sworn
Reply. I need to emphasise that the provisions of Rule 43 should be
strictly complied with. The respondent’s Replying
affidavit
stand to be struck out. See
Van der Walt v Van der Walt
1979
(4) SA 891
(T) and
Mather v Mather
supra
. I hereby
strike down the Replying affidavit filed by the respondent in the
counter application. It is important also to mention
that Rule 43
does not make provision for supporting affidavits deposed to by third
parties to be delivered. I proceed to also strike
out the supporting
affidavits deposed to by Ms Muchabyeyo, Mr Gem, Mr Smith-Symms and Mr
Pheiffer herein. It must be apparent from
the above that the
so-called counter application has no merits either and stands to be
dismissed.
THE
MAIN APPLICATION
[9]
In the matter between
Fakkie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at 344, the Supreme Court of Appeal summed up the
civil contempt procedure as follows:
(a) The civil
contempt procedure is a valuable and important mechanism for securing
compliance with court orders, and survives constitutional
scrutiny in
the form of a motion court application adapted to constitutional
requirements. (b) The respondent in such proceedings
is not an
‘
accused
person’
,
but is entitled to analogous protections as are appropriate to motion
proceedings. (c) In particular, the applicant must prove
the
requisites of contempt (the order; service or notice; non-compliance;
and wilfulness and
mala
fides
)
beyond reasonable doubt. (d) But, once the applicant has proved the
order, service or notice, and non-compliance, the respondent
bears an
evidential burden in relation to wilfulness and
mala
fide
:
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
,
contempt will have been established beyond reasonable doubt. (e) A
declaratory and other appropriate remedies remain available
to a
civil applicant on proof on a balance or probabilities.
[10]
Mr Mouton also relied on
Fakie
judgment
supra
,
particularly paragraph 9 and 38 thereof. These paragraphs read as
follows:
‘
The test for when
disobedience of a civil order constitutes contempt has come to be
stated as whether the breach was committed ‘deliberately
and
mala fide’. A deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly, believe him
or herself
entitled to act in the way claimed to constitute the contempt. In
such a case, good faith avoids the infraction. Even
refusal to comply
that is objectively unreasonable may be bona fide (though
unreasonableness could evidence lack of good faith’
(para 9)
and
‘
Given our very
different constitutional setting, the approach of the English,
Australian and Canadian Courts seem convincing to
me. As they have
found, there is no true dichotomy between proceedings in the public
interest and proceedings in the interest of
the individual, because
even where the individual acts merely to secure compliance, the
proceedings have an inevitable public dimension
– to vindicate
judicial authority. Kirk-Cohen J put it thus on behalf of the Full
Court:
‘
Contempt of court is
not an issue inter partes; it is an issue between the court and the
party who has not complied with a mandatory
order of court.”’
(para 38)
Mr
Mouton referred to other cases such as
Dezius
v Dezius
2006 (6) SA 395
(T) and others in order to bolster his contention
that his client is not guilty of contempt of court. In Mr Mouton’s
submission,
the respondent has discharged the evidential burden by
raising a reasonable doubt as to his ability to pay the outstanding
maintenance
and contribution towards legal costs.
[11]
It is trite that all that the applicant bears onus to prove is that
(a) the court order was granted; (b) the respondent has
knowledge
thereof; and (c) the respondent has failed to comply with the court
order. The respondent concedes that the court order
was granted and
that he had knowledge of the provisions of the order. The respondent
also concedes that he had failed to make payment
in terms of the
court order to the applicant. Even in his Replying affidavit (which I
have struck out) the respondent admits that
he has failed to make
payment to the Stellenbosch Municipality. On his version, the
respondent has failed to make payment as required
by the provisions
of the court order.
EVIDENTIARY
ONUS ON THE RESPONDENT
[12]
It must be mentioned that because the applicant has satisfied the
requirements referred to above, the evidentiary onus shifts
(as it
were) to the respondent who bears the onus to prove that his failure
to comply with the Court Order is not wilful or mala
fide. It was
stated earlier in this judgment that the respondent has relied on
facts that were fully traversed at the hearing of
the Rule 43
application. What he specifically relied on is that (a) the applicant
owns her own business from which she generates
an income. (It remains
of importance to note that the pictures from the internet that the
respondent relies on date back to 4 August
2014); (b) he experienced
financial hardship since Jetvest lost the business from Crown
National in 2012 which made up approximately
65% of Jetvest’s
sales; (c) the applicant owns extensive assets, whereas the
respondent does not.
[13]
Having been supplied with the Rule 43 file, I am positioned to state
that the reasons proffered by the respondent are but a
regurgitation
of the facts that were fully canvassed and traversed at the hearing
of the Rule 43 application before Salie-Hlophe
J. The fact is that
the respondent is unable to rehash the same facts in order to
persuade me to revisit the court order. Salie-Hlophe
J heard argument
on these facts. Therefore the matter is
res judicata
.
INSURANCE
PAYMENT
[14]
In order to bolster its case, the respondent relied on the fact that
the applicant received the amount of R591 126.00
from an
insurance claim paid out by Auto and General Insurance Co. Ltd. The
answering papers make it clear that the insurance claim
was paid to
the applicant in order to enable her to replace goods that were
stolen during the robbery and for no other purpose.
Mention must be
made of the fact that the parties signed a settlement agreement
during February 2016 (‘the settlement agreement’).
This
was after the parties instituted proceedings against each other in
the Stellenbosch Magistrate’s Court. It is telling
that
paragraph 7 of the settlement agreement stipulates that the
respondent agreed to comply with the provisions of the Court Order.
In the same month of February 2016 the respondent immediately reneged
on the obligations set out in both the Court Order and the
settlement
agreement.
THE
PROCEEDS FROM VERMONT PROPERTY
[15]
The respondent is precluded from using the amount of R2 500 000
which the applicant received from the proceeds from
the sale of the
above property. The property concerned was owned and sold by
Motifprops, an entity of which the applicant was the
sole director
and shareholder. The respondent himself received an amount of
R2 700 000 from the proceeds of the sale
of Vermont
property. This he says was used to settle Jetvest’s overdraft
facility. It is common cause that the respondent
is the sole member
of Jetvest. He thus received a financial benefit from the proceeds
from the sale of the Vermont property. Therefore
both parties
received a share in the proceeds from the sale of the Vermont
property. In order to conclude this aspect it must be
mentioned that
the applicant is not required to utilise and deplete her personal
resources for her and the minor child’s
maintenance
requirements when the court order makes provision for the respondent
to make payments to the applicant and/or on behalf
of the applicant.
See
AG v DG
2017 (2) SA 409
(GJ) at 411H-I.
NON-DISCLOSURE
OF FINANCIAL POSITION
[16]
Notably, the respondent relies extensively on Jetvest’s
financial deterioration for his purported inability to comply
with
the provisions of the court order. There is, however, no documentary
evidence setting out the respondent’s financial
position. The
respondent adduces no evidence of his personal bank accounts,
investments, assets etc. I point out that in circumstances
where the
respondent seeks to excuse his contempt, the least that one would
expect the respondent to do is to produce documentary
evidence in
support of his contentions. The court order was granted against the
respondent and not Jetvest. It is the respondent
who is obligated to
comply with the court order. The respondent should have provided this
court with comprehensive information
of his financial position. This
he failed to do.
THIRD
PARTY ENTITIES
[17]
Correspondence sent by the respondent’s attorneys make it
evident that the respondent and/or Jetvest has business dealings
and/or relationships with several third-party entities. There is no
full disclosure regarding the nature and extent of such business
dealings and/or relationships. In the latter regard the respondent
has been vague and somewhat evasive. One would have for instance
expected that the respondent should have provided details regarding
the ‘…
the profit sharing arrangement’
between Jetvest and Le Cap Food Enterprises (Pty) Ltd (‘LC
Enterprises’). Bank statements reveal that Jetvest paid
large
sums of money to LC Enterprises. For instance on 5 January 2017,
Jetvest paid LC Enterprises the amount of R443 142.99.
There is
no explanation about all this. The respondent’s failure to
provide documentary evidence supports the applicant’s
assertion
that the respondent has failed to make a full disclosure of his
personal financial position. Mr McClarty submitted that
the
respondent’s clandestine approach to the disputed issues in the
main application is evidence that the respondent’s
failure to
comply with the court order is wilful and mala fide. This cannot be
faulted.
ANCILLARY
RELIEF IN COUNTER APPLICATION
[18]
The ancillary relief sought in the counter application remains
founded on bold and unsubstantiated grounds. Again the respondent
adduces no documentary evidence in support of his assertions. There
is not even an assertion that the respondent owns the movable
assets
claimed. Nor has he given any details on the information on which he
relies in asserting that the applicant is disposing
of the movables.
The true position of the law is that the respondent is unable to
remove the movable assets from the property while
divorce action is
pending. It is trite that the issue of the division of the movables
shall be determined at the hearing of the
divorce action. It would
not be appropriate to determine the issues regarding the movable
assets or the valuation of such assets
at this stage.
[19]
The applicant denied the existence of oral agreement or that she is
disposing of assets. The point is that the facts alleged
by the
respondent (applicant in the counter application) in support of the
ancillary relief that he seeks are disputed on
bona fide
grounds. The rule enunciated in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) applies in this
instance. The respondent is unable to obtain the relief that he seeks
in paragraphs 2 to 4 in the counter application.
If the respondent
wishes to inspect and value movable or immovable property, he should
avail himself of the provisions of Rule
36 (6) of the Uniform Rules
of Court. In an endeavour to remedy the defects in the counter
application, the respondent alleges
additional facts in his Replying
affidavit. He is not permitted to make out a case in his Replying
affidavit. Thus the new material
raised in the Replying affidavit
falls to be struck out or disregarded as I hereby do. See
Bayat v
Hansa
1955 (3) SA 547
(N) at 553C-E.
ORDER
[20]
In the circumstances the following order is made:
(a) The main
application is hereby granted and the counter-application is missed.
(b)The respondent
shall pay costs incurred in connection with both the main
and counter-application; the costs
referred to herein shall include
costs occasioned by the employment of two counsel.
(c) The respondent
is hereby committed to undergo imprisonment for a period of
thirty (30) days.
(d) The period of
imprisonment imposed on the respondent mentioned in (c) above is
suspended for a period of one (1) year on the
following conditions:
(i) The respondent
pays to the applicant the sum of R264 149.91 (the amended
quantum calculation) within fourteen (14) days
from date of this
order.
(ii) The
respondent complies with his obligations set out in the Court Order
granted by Salie-Hlophe J.
____________________________
D
V DLODLO
Judge
of the High Court
APPEARANCES:
For
the Applicant:
Adv. RD
McClarty (SC)
For
the Respondent:
Adv. S Mouton
COURT:
DLODLO, J
HEARD:
25 April 2017
DELIVERED:
31 May 2017
COUNSEL
FOR APPLICANT:
Adv. RD McClarty (SC)
Adv. K Felix
ATTORNEY
FOR APPLICANT:
Heyns & Partners Inc.
CS
Van Heerden
COUNSEL
FOR RESPONDENT:
Adv. S Mouton
ATTORNEY
FOR RESPONDENT
:
Smith-Symms & Associates Attorneys