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[2020] ZAWCHC 7
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H.G v A.G (2331/2017) [2020] ZAWCHC 7 (10 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
no. 2331/2017
Before:
The Hon. Mr Justice Binns-Ward
Hearing: On written submissions
Judgment:
10 February 2020
In
the matter between:
H.
G.
Applicant
And
A.
G.
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
In this matter, the applicant sought an
order that the respondent be held to have been in contempt of court
for having been in default
in various respects with the interim
maintenance obligations imposed on him in terms of an order made in
terms of rule 43 by Gamble J
on 5 December 2017. The
matter was argued before me on 11 September 2019. It
became apparent then that part
of the problem lay in a difference of
opinion between the parties concerning the proper construction of
some of the provisions
of the order. There had also been a
lamentable lack of sensible communication between them on various
practical issues.
In the circumstances, I handed down a
judgment on 20 September 2020 in which, amongst other matters, I
clarified the import
of the rule 43 order and directed the parties to
draw up a reconciliation account in respect of the questions in issue
in accordance
with the declared meaning of the order.
[2]
The respondent was directed to effect
payment of the amount admitted in terms of the reconciliation
statement to be due by him,
and the parties were directed to set out
on affidavit the bases of any remaining disagreement as to the effect
of rule 43 order.
In addition, the applicant was directed to
furnish the respondent with an account of her expenditure in respect
of the costs of
holidays for herself and the parties’ minor
children so that the applicant could timeously be apprised of the
amount he was
required to advance in respect of paragraph B1.4 of the
rule 43 order for the period December 2019 – December 2020.
[3]
The earlier judgment is listed on SAFLII
sub nom.
HG v AG; AG v HG and
Another
[2019]
ZAWCHC 125
(20 September 2019)
.
The further hearing of the application was postponed to 3 February
2020 in order to enable compliance by the parties
with the directions
given in the judgment.
[4]
It was apparent from the further affidavits
delivered by the respective parties before the contemplated
resumption of the hearing
that the parties had succeeded on arriving
at an agreed amount in respect of which the respondent had been in
arrears or default
in respect of his maintenance obligations, and
that the amount had been settled. It was also evident, despite
some residual
disagreement concerning the ambit of the provision in
the rule 43 order concerning the payment by the respondent of an
annual amount
in respect of providing for the holiday expenses of the
applicant and the children in the forthcoming year, that payment in
compliance
with the provision (para. B1.4) has been effected, albeit
well outside the period directed by me in the order made on
20 September
2019.
[5]
In the circumstances, when it was apparent
that the non-compliance with the rule 43 order had been completely
remedied, I agreed
to a request by the parties’ counsel on
3 February 2020 that the outstanding matters (which seemed to me
to be limited
to costs) be determined on the basis of my
consideration of their respective written submissions in the case,
and that the scheduled
hearing of further oral argument be foregone
so that the time available on 3 February, when both parties were
in Cape Town,
rather be spent on attempting to resolve the pending
divorce proceedings. The respondent’s counsel’s
written
submissions were delivered on 3 February and those of the
applicant’s counsel on the following day.
[6]
The main purpose of the contempt of court
proceedings was to induce compliance by the respondent with the rule
43 order. But,
as pointed out in my earlier judgment, they are
also treated by the courts as proceedings directed to protect and
uphold the dignity
and authority of the court (or, as the
Constitutional Court expressed the position in
Pheko
v Ekurhuleni City II
[2015]
ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC), at para 28,
‘
vindicate its honour
’).
Whilst it is apparent that the first object of the proceedings has
been satisfied, it remains of concern that that
has happened in
circumstances in which it is evident that there was less than
punctilious compliance with the directions given
in the order made on
20 September 2019. It is appropriate that something be
said about that now, so that account may
be taken of it should the
issue of non-compliance by the respondent with the court’s
orders arise again in the still pending
matrimonial proceedings
between the parties.
[7]
The respondent has paid an amount totalling
R474 335,52 subsequent to the directions given on 20 September.
The
total amount comprised of three components.
[8]
An amount of R83 184 was paid on
Thursday, 3 October 2019. It was paid in satisfaction of
the direction given in
terms of paragraph 1.i of the order made on 20
September. According to the tenor of the direction, it should
have been paid
within 5 days of the date of the order; that is by
Friday, 27 September 2019.
[9]
A further amount of R170 862,72 was
paid on Tuesday, 5 November 2019. It was paid pursuant to
the directions given
in paragraphs 2 – 4 of the order made on
20 September. The order directed that payment had to be
made by Thursday,
31 October 2019.
[10]
A last payment in the sum of R220 288,80,
in compliance with paragraph B1.4 of the rule 43 order, was made on
Wednesday, 30 January
2020. In terms of paragraph 7 of the
order made on 30 September 2019, the payment fell to be made on
Monday, 16 December
2019 (which, allowing for the fact that day was a
public holiday, fell to be construed as by Tuesday, 17 December
2019).
[11]
The respondent has denied that the first
two of the aforementioned late payments evidenced contemptuous
conduct on his part.
He describes the degree of non-compliance
as a ‘triviality’. He has failed, however, to offer
any plausible explanation
as to why he could not, and did not, comply
with punctiliously with the terms of the order. In the
circumstances he is liable
to be held in contempt of the order.
It is only because he has not been formally called upon to show cause
why he should
not be held in contempt of the order of 20 September
2019 that I am not going to make such an order.
[12]
Non-compliance with a court order by a
person who has knowledge of it is prima facie contemptuous. It
is not open to a person
to whom a court order is directed to decide
the degree to which compliance will be made. If a time for
compliance forms part
of the order, it must be respected faithfully,
not on a ‘more or less’ basis. Non-compliance of
any degree is
never a ‘triviality’. If it cannot be
respectably explained, it is an act of contempt, and liable to be
punished
as such. Wilful or reckless late payment does not
purge contempt; at most it may be mitigatory.
[13]
The late payment of the amount due in terms
of paragraph B1.4 of the rule 43 order (the third of the
aforementioned constituent
payments) occurred in the context of the
respondent having raised an issue of interpretation concerning the
import of the provision.
The paragraph in question reads as
follows:
1. The respondent shall maintain the
applicant and the parties’ minor children
pendente lite
as follows:
4. Payment of the sum of R200 000.00
(Two Hundred Thousand Rand) per annum
pendente lite
towards
the applicant’s and the children’s holiday costs with the
applicant at a destination as determined by her.
The amount
shall be paid by the respondent annually in advance to the applicant
by no later than 15 December of each year commencing
in 2017.
The applicant shall utilise the said contribution at her sole
discretion towards her holiday costs with the children
over the
ensuing 12 month period
[14]
The respondent contends that the provision
allows for only one holiday per year and that the applicant is not
permitted to expend
the amount paid to her in terms of the interim
maintenance order for more than one vacation with the children during
each year.
If the respondent had conscientiously held that view
concerning the provision, I would have expected him to have raised it
before
now. I am sceptical about his bona fides in having done
so only at this stage.
[15]
Like other aspects of the rule 43 order,
the provision might have been better phrased. Its meaning in
the respect relevant
is nevertheless clear enough in my view.
The only part of it that lends support, if a strictly literalist
approach is adopted,
to the respondent’s construction is the
reference (in the singular) to the holiday being ‘at a
destination as determined
by her’. But a literalist
approach is not indicated, where its effect would be unbusinesslike
having regard to the
clearly intended object of the provision;
namely, the establishment of a fund under the applicant’s
control to be used by
her in her sole discretion over the ensuing 12
months to go on holiday with the children. If one approaches
the interpretation
of the provision in accordance with the trite
principles restated in
Natal Joint
Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
(16 March 2012);
[2012] 2 All SA 262
(SCA);
2012 (4)
SA 593
, at para. 18, a ‘
sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document
’. What possible
reason could there be to limit the possibility of the family
vacationing pending the ultimate determination
of the divorce
proceedings to a single destination on a single occasion in each
12-month period? A sensible answer does not
suggest itself.
The respondent’s conduct in this connection strikes me as
mischievous.
[16]
I have dealt with these issues at greater
length than I should have had to because it is clearly necessary to
signal to the respondent
that his standard of compliance with his
court-ordered obligations falls short of what is expected and
required. If it continues
it is likely to result in further
proceedings of a like nature. I warned both of the parties in
the previous judgment that
this matter has imposed on the court’s
time and resources to an extent that is not warranted. An
apparent abundance
of means affords no justification for treating
litigation and litigious processes like a game. The court’s
patience
and forbearance are not inexhaustible, and it bears
reiteration that direct committal for contempt of court is an
available sanction
even when, as here, non-compliance with a court
order is belatedly rectified (see the reference at para. 41 of my
previous judgment
to
Pheko
supra,
at paras. 30-31).
[17]
The applicant has enjoyed substantial and
substantive success in the current proceedings. If it had not
been for areas of
criticism directed at her conduct in the matter in
the earlier judgment I would have been inclined to award her the
costs on a
punitive scale. In the circumstances she will be
awarded her costs of suit on the party and party scale.
[18]
The following order is made:
1. It being noted that, pursuant to
the directions given in the order made on 20 September 2019, the
respondent has settled
his obligations in respect of interim
maintenance under the order made in terms of rule 43 dated 5 December
2017 incurred up to
31 December 2019, no further order will be
made in respect of the merits of the applicant’s application
dated 21 March
2019.
2. The respondent
is ordered to pay the applicant’s costs of suit in the
application on the scale as between party and party.
A.G. BINNS-WARD
Judge of the High Court
APPEARANCES
Applicant’s
counsel:L. Buikman SC
Applicant’s attorneys:Cluver
Markotter Inc
Stellenbosch
Walkers
Inc
Cape
Town
Respondent’s counsel:B.K.
Pincus SC
M.
Holderness
Respondent’s attorneys:Ulrich
Roux & Associates
Johannesburg
Marais
Müller Hendricks Attorneys
Cape
Town