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[2020] ZAWCHC 110
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K.P.T and Others v A.P.T (1215/2019) [2020] ZAWCHC 110 (2 October 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 1215/2019
In
the matter between
[KPT]
FIRST
APPLICANT
[NEM
SECOND
APPLICANT
[TC]
THIRD
APPLICANT
and
[APT]
RESPONDENT
Coram:
Rogers J
Heard
:
7 September 2020
Delivered:
2 October 20202 (by
email to the parties and same-day release to SAFLII)
JUDGMENT
Rogers
J
[1]
The first applicant (‘the
wife’) and the respondent (‘the husband’) are the
plaintiff and defendant in an
acrimonious divorce action. The second
and third applicants (Ms [NM] and Mr [TC]) are domestic workers who
are also employed part-time
in the husband’s company, […]
(‘ASC’). The wife applies for enforcement of the
maintenance provisions
of a rule 43 order granted by Goliath DJP on 7
February 2020 and for a finding of contempt against the husband. He
counter-applies
in terms of rule 43(6) for an amelioration of his
obligations under the rule 43 order.
[2]
The wife’s
application is for final relief, and the
Plascon-Evans
rule applies. The husband’s counter-application requires a
robust assessment of the affidavits. I shall refer to the wife’s
attorneys as FMA and the husband’s attorneys as KMA.
[3]
This judgment deals only
with Part A of the wife’s notice of motion. Part B, which the
wife does not pursue, sought a variation
of Goliath DJP’s order
by increasing the amount of monthly cash maintenance.
Points
in limine
[4]
The husband raised various
preliminary objections to the wife’s application: lack of
urgency; that she herself was in contempt
of another order and was
thus coming to court with unclean hands; and that her application was
an abuse of process. In argument,
these points were not pressed as
objections to the hearing of the merits of the case, but the
husband’s counsel asked me
to bear them in mind on costs.
Goliath
DJP’s order
[5]
In broad summary, para 3
of Goliath DJP’s order requires the husband to maintain the
wife
pendente lite
by
paying
inter alia
:
(a) cash maintenance of R10,000
per month;
(b) the repair and maintenance
costs of a Pajero vehicle used by the wife;
(c) various costs relating to the
former matrimonial home in [UR], Milnerton, where the wife still
lives;
(d) the monthly expenses in
respect of a sectional title unit, [RL], which the parties co-own;
(e) the premiums to keep the wife
on the husband’s Discovery medical scheme;
(f) all reasonable medical
expenses not covered by the medical scheme, including one session per
week with a psychologist;
(g) payment of the monthly
salaries of Ms [NM] and Mr [TC] in the amounts of R5000 and
R4400 respectively.
[6]
There is a dispute about
the interpretation of three provisions in para 3 of the order.
Swimming
pool maintenance
[7]
In regard to the [UR]
expenses, para 3.3.4 requires the husband to pay
‘
reasonable
and necessary repair and maintenance costs (including for the
swimming pool at the [UR] property) save that his prior
written
consent ought first to be obtained and which consent shall not be
unreasonably withheld.’
[8]
The dispute is whether the
cost of swimming pool chemicals is a ‘maintenance cost’.
Goliath DJP did not give reasons
for her order. The references in the
rule 43 affidavits to swimming pool maintenance and to chemicals
indicate, I think, that the
parties did not conceive of chemicals as
part of the swimming pool ‘maintenance’. In para 135 of
her founding rule
43 statement, in a section dealing with her
‘reasonable maintenance needs’ (ie those covered by her
claim for monthly
cash maintenance), the wife mentioned variable
monthly costs such as ‘food, cellphone, petrol, pool chemicals
and personal
toiletries’. In a separate part of her affidavit,
under the heading ‘swimming pool maintenance and repairs’,
she alleged that the pool needed regular maintenance at a monthly
cost of about R500 and that it sometimes also needed a sand and
filter change and repairs. She did not particularise the cost of
R500, but did not allege that it was the cost of chemicals. (In
relation to her monthly cash needs, the husband had tendered R250 per
month for chemicals.)
[9]
To ‘maintain’
something is to keep it in a fit and serviceable state. It may be
said that a swimming pool requires chemicals
to keep it in such a
state. However, the same might be said of ordinary household
detergents but one would not usually describe
them as part of the
cost of maintaining the house. Also relevant is that para 3.3.4
states that the wife may not incur maintenance
costs without the
husband’s prior written consent which may not be unreasonably
withheld. This militates against including,
as ‘maintenance’,
routine monthly purchases to keep the house and the pool clean and
serviceable.
[10]
I thus hold that swimming
pool chemicals are not covered by para 3.3.4.
Dog
expenses
[11]
The second contentious
item, also listed as part of the [UR] property expenses, is para
3.3.7, which requires the husband to pay
‘
the
veterinary, medical, pharmaceutical expenses in respect of the
parties’ dogs Ollie and Sadie as well as the costs of dog
food
(to a maximum of R1500 per month) and the costs of a dog walker (to a
maximum of R1000 per month)’.
[12]
The issue is whether the
limit of R1500 is a limit only for dog food or whether it also
includes veterinary, medical and pharmaceutical
expenses. In her rule
43(2) notice of application, the wife sought an order that the
husband pay R5600 per month in respect of
the dogs, made up as to
R1500 for food, R2500 for medical costs, R1000 for a dog walker, and
R600 for pet care/toiletries. Additionally,
she sought an order that
the husband be liable to pay ‘all out of pocket veterinary
charges …, as well as medical,
dental and related costs and
charges not covered by the above sums’. All of this was over
and above her claim for monthly
cash maintenance.
[13]
In advance of the rule 43
application, the husband tendered R1000 for the dog walker, R1105 for
dog food and R704 for Ollie’s
medication. Thus even at that
early stage the husband was offering more than R1800 per month for
dog food and medication. It is
clear from the affidavits, in my view,
that the wife always intended expenses for the dogs to be covered as
an item apart from
her monthly cash maintenance claim. This is the
way Goliath DJP would have understood the matter.
[14]
In his rule 43 answering
affidavit, the husband complained that he used to buy dog food at a
cost R596 per month but that more recently
the wife was insisting on
food costing R1100 per month. He was also no longer willing to pay
for the dog walker. He did not take
issue with responsibility for
Ollie’s medication, simply saying that hitherto the wife had
paid for this using his credit
card. He did not express an
unwillingness to meet the dogs’ reasonable veterinary and
medical costs.
[15]
In a replying rule 43
affidavit which the wife was permitted to file, she denied the
husband’s allegation about the cost of
the dog food. According
to her, they had changed to their current brand four years
previously, and the cost of that dog food was
R1499 per month, a cost
which the husband had continued to bear for a while after they
separated.
[16]
In argument before Goliath
DJP, the wife’s counsel submitted a draft order in which her
claim in respect of the dogs was modified
to the exact form Goliath
DJP subsequently incorporated in her order. The effect was that the
wife abandoned her claim to a predetermined
monthly amount for the
dogs’ veterinary, medical and pharmaceutical expenses, but she
still sought to hold the husband liable
for such expenses as and when
they were incurred. The latter indeterminate claim already formed
part of her rule 43(2) notice.
The draft order continued to reflect
an amount of R1500 immediately after the reference to dog food and an
amount of R1000 for
the dog walker.
[17]
The most natural
interpretation of para 3.3.7 of Goliath DJP’s order is that the
R1500 cap is applicable to the words introduced
by the conjunctive
phrase ‘as well as’. If the limit of R1500 had been
intended to apply to the other expenses, one
would have expected the
first part of para 3.3.7 to read ‘the veterinary, medical,
pharmaceutical and dog food expenses…’.
When one has
regard to the formulation of the rule 43(2) notice and the
affidavits, this must have been the meaning the wife’s
counsel
had in mind when submitting the draft order, and it must also have
been the judge’s intention in adopting it.
[18]
I thus find that on a
proper interpretation of para 3.3.7 the husband must meet the cost of
dog food up to a maximum monthly amount
of R1500 and must also meet
the dogs’ veterinary, medical and pharmaceutical expenses. It
is necessarily implied that the
latter costs must be reasonable.
Ms
[NM] and Mr [TC]
[19]
I have already mentioned
the substantive content of para 3.7. The husband’s obligation
thereunder is stated to be subject
to the proviso that Ms [NM]
and Mr [TC] work for ASC at specified times – on Wednesdays and
Thursdays from 14:30 in
the case of Ms [NM], and between 13:00-17:00
from Wednesday to Friday in the case of Mr [TC].
[20]
There is a factual dispute
as to the circumstances in which the husband has failed to pay Ms
[NM] and Mr [TC] the full amounts
required by para 3.7. The
question of interpretation, however, is whether his obligation to pay
the specified amounts is contingent
on their working for ASC at the
specified times. In my view the answer is yes.
[21]
In giving this answer, I
do not mean that the ‘provided that’ clause is a
suspensive condition. It does, however, specify
an obligation which
Ms [NM] and Mr [TC] must perform if they (or the wife on their
behalf) are to receive payment. It is a case
of reciprocity. The
salaries are to be paid on the 25
th
of each calendar month, which indicates the payment in arrears. On
ordinary contractual principles, the employee must perform the
service in order to have a right to claim the salary. If he or she
has not performed the service, the other party may raise the
exceptio
non
adimpleti
contractus
(
ESE
Financial Services (Pty) Ltd v Cramer
1973
(2) SA 805
(C) at 808-809). As applied to para 3.7, the wife
cannot enforce this term unless she causes Ms [NM] and Mr [TC] to
perform
the services for ASC specified in the proviso.
[22]
Whether a provision such
as para 3.7 should properly have formed part of an order made in
terms of rule 43 may be open to question,
but the order stands, and
neither side took issue with it as a matter of principle. On the
contrary, each side submitted a draft
order to Goliath DJP containing
just such a term.
Joinder
of Ms [NM] and Mr [TC]
[23]
Ms [NM] and Mr [TC] were
joined as second and third applicants in order to enforce para 3.7 of
the order. The husband contends that
this is a misjoinder.
[24]
Ms [NM] and Mr [TC] were
not parties to the rule43 proceedings. They did not get any rights
directly under the order. The relevant
provision of the order formed
part of wife’s claim for maintenance (Ms [NM] and Mr [TC] work
for her as domestic workers
other than at the times specified in the
proviso). It was up to her to enforce payment.
[25]
Accordingly, the objection
of misjoinder is well taken. However, and as the husband’s
counsel acknowledged, nothing turns
on this, because the wife is
entitled to enforce compliance with para 3.7, and no additional costs
were incurred by the joinder
of two additional applicants.
Para
2 of Part A - husband’s non-compliance
[26]
Para 2 of Part A of the
wife’s notice of motion lists the respects in which he was in
alleged default of Goliath DJP’s
order when the application was
launched. I shall consider these matters in the order there set out.
They constitute what the wife
styles contempt counts 1-34. In this
part of my judgment, I simply determine the extent to which the
non-compliance has been proved,
leaving contempt for later
discussion. The wife’s application was signed on Friday 5 June
2020 and served on Monday 8 June
2020.
Cash
maintenance
[27]
There is a complaint of
short-payment of R175,10 for February 2020. The husband alleges that
the wife incurred a medical expense
in January 2020, before Goliath
DJP’s order became effective. The expense was only partly
covered by Discovery. To avoid
a bad credit rating, he paid the
difference (R175,10) and deducted it from the February maintenance.
Since para 3.1 of the order
states that the husband must pay the
maintenance ‘without deduction of set-off’, he was not
entitled to do so. He was
required to pursue the wife separately to
recover the money.
[28]
It is common cause that
for May and June 2020 the husband only paid R5000 per month instead
of R10,000. His ‘defence’
is that he seeks a reduction in
his rule 43(6) counter-application.
[29]
Non-compliance as alleged
has thus been established.
Pajero
maintenance
[30]
The wife alleges
non-compliance with para 3.2.2 of the order because the husband
failed to pay R6713 to have the Pajero’s
brakes fixed. On the
wife’s version, the husband was obstructive in regard to
obtaining quotes. The brakes were in such a
poor state that she
stopped driving the Pajero on 9 April 2020.
[31]
On the husband’s
version, he was unaware, until receipt of the wife’s
application, that she had actually gone ahead
with the repair. The
wife incurred the repair cost on 29 May 2020. Her application was
dated 5 June and was served on his attorneys
on 8 June 2020. The
actual repair cost was somewhat lower than the service provider’s
quotation of 12 February 2020.
[32]
In terms of para 3.2.2,
the husband’s prior written consent is needed for incurring
Pajero maintenance expenses, which consent
may not be unreasonably
withheld. The husband acted unreasonably in failing to consent to one
or other of the quotations after
the wife furnished him with the
second quotation dated 9 March 2020.
[33]
However, the
non-compliance alleged in the notice of motion is a failure to pay an
expense which the wife only actually incurred
on 29 May 2020, and
there is nothing to refute the husband’s version that he was
not told in advance that the wife was going
ahead to have the vehicle
repaired by the supplier of the first quotation. The husband has now
agreed to pay this amount, though
it is one of several expenses he
wishes to pay off in four equal instalments. For present purposes, it
suffices to say that the
wife has not established non-compliance in
this respect as at the date she launched her application.
Rates
[34]
The wife alleges
non-payment by the husband of rates of R5669,86 and R508,10 for [UR]
and [RL] respectively. The husband states
that the municipal bills
are sent to the wife, and he has to wait for her to send them to him.
He alleges that the bills reflecting
the foregoing amounts were only
sent to him under cover of FMA’s letter of 3 June 2020. Her
application was issued a couple
of days later.
[35]
The municipal bill for
[UR] in the amount of R5669,86 reflects that R2479,08 thereof was
only due on 15 June 2020, after the application
was launched. The
balance of R3190,78 is shown as being in arrears. The husband alleges
that, having not received the municipal
bills, he paid R2834,93,
being half of the anticipated rates. He paid half because in KMA’s
letter to FMA of 28 April 2020
his attorneys had proposed this
temporary adjustment of his obligations under the order. The payment
of R2834,93 was not reflected
in the municipal bill on which the wife
relied. Accordingly, on his version the only amount in arrears at the
time the application
was issued was R355,85.
[36]
However, the wife pointed
out in her supplementary affidavit, filed a week before the hearing,
that the payment of R2834,93 was
only made on 11 June 2020.
Accordingly, at the date the application was issued the arrears
totalled R3190,78.
[37]
The municipal bill for
[RL] in the amount of R508,12 reflects that R120,78 thereof was only
due on 29 June 2020. The balance of
R387,34 was shown as being in
arrears. The husband says that in June 2020 he paid R381,09, leaving
a true arrears of only R6,25.
He does not say when he paid the amount
of R381,09, but it seems to have been before he received the bill,
because he says he paid
an estimate. The wife does not deal with this
in his supplementary affidavit.
[38]
I thus find that the
arrears at the time the application was launched were R3190,78 ([UR])
and R6,25 ([RL]). Furthermore, since
it is necessarily implicit in
the order that the husband must be given a reasonable period to make
payment after becoming aware
of the expense (measured in days, not
weeks, I should add), I cannot find that his non-payment of these
arrears as at the date
the application was launched amounted to
non-compliance.
Pool
maintenance
[39]
The wife alleges
non-payment of pool maintenance expenses of R660, being the amount
she spent on pool chemicals in February 2020.
Given my interpretation
of para 3.3.4 of the order, this non-compliance has not been
established.
Ms
[NM] and Mr [TC]
[40]
The wife alleges
short-payment in respect of Ms [NM] of R1500 for April 2020 and R3500
for May 2020; and short-payment in respect
of Mr [TC] of R594 for
March 2020, R900 for April 2020 and R2900 for May 2020.
[41]
The Covid-19 nationwide
lockdown started on 27 March 2020. The husband alleges that ASC’s
business ground to a temporary halt.
On 17 April ASC was declared an
essential service, and there was a phased return to work. Although
ASC has a no-work-no-pay (NWNP)
rule, its 79 employees received their
full March and April salaries against their annual leave
entitlements. To obtain full pay
on this basis, they needed to sign
leave forms. Some employees did not have enough accrued leave, which
meant that if they did
not return to work they did not get paid,
leading to a staff reduction of 5% – 10%.
[42]
Because of the lockdown,
Ms [NM] did not work for the last five days of March 2020. The
husband says that he nevertheless paid her
in full for March 2020
because, like other ASC employees, she signed the leave form. She did
not come to work in April or May 2020.
I infer from the husband’s
affidavit that she did not have sufficient leave, with the result
that on the NWNP rule she was
not entitled to her salary.
[43]
In respect of similarly
placed employees, ASC lodged applications on their behalf for relief
in terms of the UIF’s Covid-19
Temporary Employee-Relief Scheme
(TERS). ASC made such an application for Ms [NM]. In the interim, he
paid her R3500 for April
2020, being what he believed to be the
maximum benefit she could expect to receive from TERS. The
application was rejected as being
non-compliant with the TERS rules.
He alleges that Ms [NM] thereafter failed to provide him with
certified copies of the documents
needed to submit a compliant
application. In order that she should not be left without any income,
he paid her R1500 for May 2020.
[44]
Following the lockdown, Mr
[TC] did not work the last five days of March, and did not return to
work in April or May 2020. The husband
alleges that Mr [TC] refused
to sign the leave form, and was thus not paid out for the last five
days of March, this being treated
as unpaid leave. As with Ms [NM],
ASC paid Mr [TC] R3500 for April 2020 pending the outcome of a TERS
application, and R1500 for
May 2020. Like Ms [NM], Mr [TC] failed to
provide ASC with certified copies of the documents needed to submit a
compliant TERS
claim.
[45]
The husband states that if
Ms [NM] and Mr [TC] provide him with the necessary documents, he will
resubmit their TERS claims and
pay them any benefit received from the
UIF. They returned to work in June, and ASC will thus revert to
paying their full salaries.
[46]
The husband alleges that
the conduct of Ms [NM] and Mr [TC] in not returning to work was such
that a disciplinary hearing would
have been justified. Even before 26
March 2020, they arrived and left as they pleased (KMA raised a
complaint in this regard as
early as 20 February 2020), and Ms [NM]
(so the husband says) was half-hearted in performing her duties. They
were sullen
and disrespectful. Although the rest of ASC’s staff
returned to work in May 2020, Ms [NM] and Mr [TC] did not.
[47]
The wife did not deal with
these allegations in her replying affidavit. She did, however,
comment thereon in her affidavit opposing
the husband’s
counter-application. She said that Mr [TC] had not refused to sign
the leave form, he had merely asked the
company to give him with a
copy so that he could take legal advice on its contents, a request
which was refused. In regard to the
documents required for a TERS
application (ID/passport), ASC ought to have had these on file. Mr
[NM] and Mr [TC] could not have
been expected to supply certified
copies under Levels 5 and 4 of the lockdown.
[48]
Given my interpretation of
para 3.7 of the order, and having regard to the
Plascon-Evans
rule, I cannot find that the husband failed to comply with the order
in this respect. It is uncontentious that Ms [NM] and Mr [TC]
did
not, as from 27 March 2020 until the end of May 2020, render the
services which were a precondition for the husband’s
obligation
to procure payment of their salaries. On his version, he made certain
payments to them
ex
gratia
and/or in
anticipation of TERS benefits, but they have not given the
cooperation needed for compliant TERS applications to be made.
Psychologist’s
fees
[49]
Para 3.6 of the order
requires the husband to pay the fees of the wife’s
psychologist, limited to one session per week. Such
payment must be
made directly to the psychologist, but the wife must provide the
husband with the relevant invoice so that he can
claim reimbursement
from his medical scheme.
[50]
The psychologist charges
R1100 per session. The wife alleges non-payment of R1100 for 7 April
2020 and short-payment of R120,90
× 3 for 14, 21 and 28 April
2020. She also alleges that the husband’s failure to meet these
fees caused the psychologist
to decline to give the wife her four
sessions in May 2020. Finally, she alleges that the husband has
failed or refused to pay for
four sessions in June 2020.
[51]
The husband answers these
allegations as follows. Until the end of March he paid the
psychologist’s fees in advance. Following
the lockdown, MKA
wrote to FMA seeking confirmation that the psychologist was in
possession of a certificate as an essential supplier
and that the
session of 31 March 2020 (which the husband had prepaid) actually
took place. The husband says that he did not know
whether the wife
was continuing with the sessions during the lockdown.
[52]
FMA did not respond to
MKA’s enquiry. The husband thus assumed that the wife was not
at that stage continuing with her psychology
sessions. He alleges
that before receiving the application he had not seen the documents
attached to her founding affidavit showing
that she had her sessions
in April 2020 and that she had the necessary Covid-19 permission to
attend them. From the attached documents,
he now inferred that the
wife had paid in full for a consultation on 7 April 2020, that the
psychologist had claimed directly from
Discovery in respect of the
other three April sessions, and that Discovery had reimbursed the
psychologist R997,10 per session,
resulting in a short-payment of
R102,90 per session.
[53]
It is not strictly correct
that the husband only learnt of these matters when the application
was served on 8 June 2020. At 16:50
on Wednesday 3 June 2020 FMA
emailed KMA about various aspects of alleged non-compliance. Paras 4
and 5 contained the information
which the husband says he inferred
from the application. The application was issued on Friday 5 June and
served on Monday 8 June.
[54]
Although up to the end of
March the husband prepaid for the psychology sessions, he has
explained why he did not continue doing
so in April. It was only a
couple of days before the launching of the application that his
attorneys were told that the wife had
four sessions in April. When
the application was launched, so the husband says, he had still not
received the psychologist’s
invoices. In his opposing
affidavit, he tendered to make up the three short-payments (totalling
R308,70) once he got the invoices.
He also tendered to refund the
wife R1100 for the consultation on 7 April, though this is one of
several sums he seeks permission
to pay off in four instalments.
[55]
The husband’s
version has not been refuted in the wife’s responding
affidavits. Accordingly, and although the husband’s
liability
in respect of the amounts alleged by the wife for her April sessions
is not in dispute, I cannot find that there was
non-compliance as at
the date the application was issued. At worst for him, he only learnt
of the April sessions a couple of days
before the application was
launched, and at the time he made his answering affidavit he did not
yet have the psychologist’s
invoices.
[56]
It is unfortunate that the
wife had to forego her May sessions, though since Discovery was
willing to reimburse the psychologist
R997,10 per session, it is
surprising that the sessions were abandoned just because of a
temporary shortfall per session of R102,90.
The fact of the matter is
that the May sessions did not take place. Since the order did not
require the husband to prepay the psychologist,
I cannot find that
there was non-compliance with the order in this respect. Furthermore,
I do not see on what basis the husband
can now be ordered to pay
R1100 × 4 for the lost May sessions. There is nothing to show
that, medically, the loss of these
sessions requires the wife to have
an extra four sessions (ie over and above the usual four per month).
[57]
In regard to the June
sessions, payment in respect thereof was not due at the time the
application was launched. The husband had
by then proposed an
amelioration of his obligations by reducing the psychology sessions
to two per month, and he prepaid for two
June sessions. Subject to
the husband’s counter-application, he will be in breach of the
existing order if he pays for only
two sessions per month as from
June, but such non-compliance would not be one existing at the time
the application was launched.
Electricity
[58]
In terms of para 3.3.2 of
the order the husband is liable to pay for [UR] electricity subject
to a maximum of R2000 per month. I
gather from the correspondence
that the house has a prepaid meter and that the husband fulfils his
obligation by providing the
wife with prepaid electricity vouchers.
[59]
On 28 April 2020 his
attorneys proposed that his liability for electricity be reduced to
R1000, and he has thereafter acted in accordance
with this proposal,
resulting in short-payments of R1000 at the beginning of May and June
2020. Non-compliance in this respect
has thus been established. I
note that in his answering affidavit he has tendered to make good the
electricity short-payments (R2000)
as part of the sum he wants to pay
off in four instalments.
Vox
internet charges
[60]
Para 3.3.5 of the
order obliges the husband to pay all Vox internet charges in respect
of [UR]. The wife alleges a failure by the
husband to pay the amounts
of R589,01 due for May and June 2020. The husband admits non-payment.
I note, once again, that he has
tendered to make up the Vox
non-payments (totalling R1178,02) as part of the sum he wants to pay
off in four instalments.
Dog
expenses
[61]
The wife alleges the
following non-compliance in respect of the dogs: R1000 for the dog
walker for June 2020; R1454,24 for veterinary
costs incurred in
February 2020; R1001,80 + R1013,20 for medication costs incurred in
April 2020; and R1500 × 2 for dog food
in April and May 2020.
[62]
In regard to the dog
walker, the husband alleges that he met his obligations for February
and March. Due to the lockdown, the dog
walker was not allowed to
render services in April or May 2020. The non-payment relates to an
invoice issued by the dog walking
firm, Urban Canine, dated 3 June
2020, which, puzzlingly, the wife paid on 1 June 2020. The husband
disputes the invoice, stating
that the dog walker previously charged
in arrears.
[63]
The claim for the dog
walker was first made in para 7 of FMA’s letter of 3 June 2020.
Proof of payment, though not an invoice,
was attached to the letter.
The wife’s responding affidavits do not dispute that previously
the dog walker charged in arrears.
It seems that the invoice of 3
June 2020 may, as a departure from Urban Canine’s usual
practice, have been generated in advance,
in anticipation of its use
by the wife in her application. But in fairness to Urban Canine, the
invoice does not reflect that it
was immediately due and payable. In
the ‘Date’ column, describing the dog-walking service in
respect of each dog, the
date reflected is 30 June 2020.
[64]
In his rule 43(6)
application, the husband seeks to delete his obligation to pay for
dog walking. Subject to that application, there
will be
non-compliance with Goliath DJP’s order if he fails for June
and following months to pay R1000 per month. However,
I am not
satisfied that there was non-compliance of a due obligation in this
respect at the time the application was launched.
[65]
I have rejected the
husband’s argument regarding the R1500 cap. Since it applies
only to dog food, and since the husband admits
having made no
payments for dog food for April and May 2020, non-compliance in this
respect (totalling R3000) has been established.
(From the wife’s
answering affidavit in the counter-application, it appears that on 11
June 2020, a few days after the application
was served on him, the
husband paid R1500 in respect of April 2020.)
[66]
Regarding the veterinary
expenses of February 2020, the husband has not placed the invoice in
issue. He was duly called upon to
pay it but failed to do so. This
constitutes non-compliance with the order.
[67]
In regard to the
medication expenses of April 2020, the invoices are perfectly
legitimate. The husband considers that the claim
for Bravecta, an
anti-flea/tick medication, involves a ‘creative’
interpretation of the order. I disagree. Para 3.3.7
requires the
husband cover the ‘veterinary, medical [and] pharmaceutical
expenses’ in respect of the dogs. The Bravecta
medication is
squarely covered.
[68]
Demand for reimbursement
of the April medication expenses was contained in paras 3 and 12 of
FMA’s letter of 3 June 2020.
The same letter, in para 11,
repeated the claim for the veterinary expense of February 2020. Since
the husband was entitled to
a reasonable opportunity to make payment,
I cannot find that there was non-compliance in respect of the April
expenses at the date
the application was issued, though the husband
clearly was under an obligation to make payment within a reasonable
time.
Para
3 of Part A – mandatory orders
[69]
In para 3 of Part A of her
notice of motion, the wife seeks orders, said to be pursuant to para
3.3.4 of Goliath DJP’s order,
obliging the husband to pay on
due date the following service providers (or their successors) for
professional services rendered
at the [UR] property: (a) Cleancut
Garden Specialists at R270 per week plus VAT; (b) Kleenbin at
R290 per month; (c) Summerpools
at R165 per week plus VAT, plus
all such other costs of repairs and maintenance which are excluded
from their service fee. I shall
refer to these as claims (a), (b) and
(c).
[70]
Although the wife
describes these claims as contempt counts 35-37, it is not apparent
to me on what basis she treats this as contempt,
since she does not
claim amounts allegedly in arrears. It appears from the papers that
there is a dispute between the parties as
to whether these claims are
covered by Goliath DJP’s order.
[71]
Para 3.3.4 requires the
husband to pay ‘reasonable and necessary repair and maintenance
costs’ in respect of the [UR]
property, including for the
swimming pool. His prior written consent is needed in order for such
costs to be incurred. He may not
unreasonably withhold consent. It is
clear from the correspondence that the husband has declined to give
consent to claims (a),
(b) and (c). The question is whether the three
claims are reasonable and necessary repair and maintenance costs.
[72]
Claim (a) is based on a
quotation for weekly garden maintenance. Claim (b) is based on a
quotation for cleaning the wife’s
two municipal bins every
week. Claim (c) is based on a quotation for vacuum-cleaning of the
pool, brushing down the pool walls,
netting debris on the pool
surface, backwashing and rinsing the filter.
[73]
In his answering affidavit
the husband describes these claims as ‘simply outrageous’.
His tender to pay for repairs
and maintenance was never intended to
cover these types of services. He says that Mr [TC] used to do these
chores at the [UR] property,
and there is no reason why he should not
continue to do so. Mr [TC] is at the wife’s disposal for the
whole of Thursdays
and Saturdays, and for six hours on Wednesdays,
Thursdays and Fridays.
[74]
I am not satisfied that
these claims are reasonable and necessary. The wife alleges that Mr
[TC] helps her in her [CB] business
(a toddlers’ creche).
However, she has not put up evidence to show that his help in that
business is, or needs to be, full-time.
Moreover, the business was
not operational over the period April-July 2020, which would have
freed up the time which Mr [TC] and
the wife would otherwise have
spent in that business. From her replying affidavit, it appears that
her plan was to reopen [CB]
on 4 August 2020.
Paras
4 and 5 of Part A – contempt of court
[75]
The wife has discharged
the burden of proving that at the date she launched her application
the husband, with knowledge of the order,
had failed to comply with
it in the respects set out in the following paragraphs in Part A of
her notice of motion: para 2.1 (monthly
maintenance), para 2.10
(electricity), para 2.11 (Vox internet), para 2.13 (veterinary
costs of February 2020) and para 2.15
(dog food for April and May
2020).
[76]
The question is whether
she has proved beyond reasonable doubt that the husband’s
non-compliance was wilful and
mala
fide
. An evidentiary
burden rested on the husband to allege facts creating reasonable
doubt, but the ultimate burden rests on the wife.
If, on a conspectus
of all the evidence, it is a reasonable possibility that the
husband’s non-compliance was not wilful
and
mala
fide
, he cannot be
subjected to criminal sanctions for contempt (
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(
SCA)
para 14;
Matjhabeng
Local Municipality v Eskom Holdings Ltd & others; Mkhonto &
others v Compensation Solutions (Pty) Ltd
[2017]
ZACC 35
;
2018 (1) SA 1
(CC) paras 67 and 85-88).
[77]
Non-compliance with a
court order will not be wilful and
mala
fide
if it is
reasonably possibly the case that the party sought to be punished
genuinely, albeit mistakenly, thought that he had complied
with the
order. In respect of paras 2.13 and 2.15 (veterinary costs and dog
food), the husband alleges that he understood his liability
for
veterinary costs and dog food in combination not to exceed R1500 per
month. Although I have found that interpretation to be
wrong, I
cannot find beyond reasonable doubt that he did not genuinely
understand the order in that way. At the hearing his counsel
argued
that his was indeed the correct interpretation.
[78]
In respect of February
2020, the husband paid R1055,80 in respect of medication and R444,20
for dog food, ie a total of R1500. He
had thus, on his understanding
of the order, met his full liability for that month, from which it
follows that his non-payment
of the veterinary cost of R1 454,20
incurred in February 2020 was not wilful and
mala
fide
.
[79]
On his version, he made no
payments – either for dog food or veterinary/medical costs –
in respect of April and May
2020 (his ‘April’ payment of
R1500 was only made on 11 June 2020). His non-payment in respect of
these two months can
thus not be ascribed to a misunderstanding of
the terms of the order.
[80]
There is likewise no
question of a misunderstanding of the terms of the order in regard to
the monthly cash maintenance, [UR] electricity
and Vox internet
charges. In regard to the modest shortfall of cash maintenance in
February 2020, the husband does not say that
he did not notice the
express language of the order which prohibits deduction or set-off,
and this was pertinently pointed out
to him in para 1 of FMA’s
letter of 10 April 2020.
[81]
The question is thus
whether it is reasonably possible that, as the husband claims, he
could not afford to pay these amounts. It
is common cause that
Goliath DJP made the order she did on the basis that the
husband’s salary, and his ability to make
additional drawings,
from ASC placed him in a financial position to meet the obligations
imposed on him. It is not in dispute that
at the time the order was
made he could in this way afford to meet those obligations. Although
the husband did not agree with the
wife’s claims, and does not
necessarily agree with all aspects of Goliath DJP’s order, his
defence in the rule 43 proceedings
was not that he could not afford
to pay the claims.
[82]
The husband alleges that
the Covid-19 pandemic and national lockdown materially affected ASC’s
performance. Some contracts
were lost while others were suspended or
continued at discounted rates. He alleges that at that time Goliath
DJP made her order,
his net salary from ASC was R33,540, and that his
total net salary plus drawings totalled R68,650 per month. The blow
suffered
by ASC’s business meant that in April and May 2020 he
was only able to draw a net salary of R9900 per month. He was forced
to cut expenses across the board. Whereas previously ASC operated
with a positive cash balance in its bank account, it was now
usually
operating at the limit of its R500,000 overdraft. ASC had to retrench
three employees at the end of June 2020. By taking
a large cut in his
own salary, he was able to keep on another eight employees who would
otherwise have had to be retrenched.
[83]
The husband filed an
affidavit by Mr J N Coetzee of Callidus Chartered Accountants, ASC’s
accountants. Mr Coetzee attached
an income statement for 1 March
– 31 May 2020. Total sales (revenue/turnover) in that period
were R2,099,103, with a
net profit before tax of R166,083. At the
time he made his affidavit, he did not have the figures needed to
include June in the
income statement. However, he had sales figures
for June, because he says that for the period 1 March – 30 June
2020 ASC’s
sales totalled R2,629,742, as against R3,278,862 for
the same period in 2019. This was a decrease of R649,120 over four
months
(R162,280 per month).
[84]
Mr Coetzee’s
affidavit was filed about a month after the husband’s. In para
64 of the husband’s affidavit, he
stated that for the period 1
March – 22 June 2020, ASC’s sales dropped to a monthly
average of R720,205. This suggests
that for the period March –
June 2020 ASC’s revenue totalled R2,880,860, considerably more
than the figure stated by
Mr Coetzee. The discrepancy is unexplained.
(The husband contrasted the monthly average of R720,205 with the
12-month average for
the financial year ended 29 February 2020,
namely R834,773, but that is not a like-for-like comparison, because
a landscaping business’
revenue may be ‘lumpy’
rather than evenly earned over the year.)
[85]
When one bears in mind the
dire effects which the pandemic has had on many businesses, the
effects on ASC do not seem particularly
severe. Although there has
been a significant drop in turnover, profitability remains good.
Indeed, if Mr Coetzee is right about
the profit earned for 1 March –
31 May 2020, the pre-tax profit is excellent – 7,9% of
turnover. The pre-tax profit
as a percentage of turnover was only
2,9% in ASC’s 2020 financial year and 1,3% in the 2019
financial year. Furthermore,
the net pre-tax profit of R166,083
reflected in the management accounts for March – May 2020 is
after a depreciation allowance
of R65,616. Since depreciation is a
non-cash provision, one could say that the profit was R231,700 after
making allowance for all
cash-flow expenses.
[86]
The husband’s
attorneys set out his case for an amelioration of his obligations in
their letter of 28 April 2020. In reply,
FMA asked for various
documents to enable the wife to assess the request. On 6 May 2020 MKA
furnished FMA with the husband’s
Capitec bank statement for the
period 1 January – 30 April 2020, his FNB statement for
the period 2 March – 4
May 2020 and his Discovery credit card
statements dated 7 February, 9 March and 9 April 2020. MKA advised
FMA that they were awaiting
ASC’s management accounts for the
relevant period.
[87]
The Capitec bank statement
shows a credit balance of R30,646 as at 30 April 2020. The FNB
statement shows a credit balance of R5837
as a 4 May 2020. The
balance in the FNB account would have been R55,000 more if the
husband had not withdrawn that sum from his
account in order to lend
it to ASC.
[88]
Among the documents FMA
had requested were ASC’s bank statements for the period 1 March
2019 – 30 April 2020. Although
these must have been available
to the husband when his attorneys wrote their letter of 6 May 2020,
they were not supplied. This
was not remedied when the husband filed
his opposing papers, and he did not update his personal bank
statements either. The result
is that we only have the husband’s
say-so that ASC was operating at an overdraft of R500,000. (While I
do not think that
the bank statements up to the end of February 2020
were material, those as from March 2020 clearly were.) The husband’s
counsel
asked me to bear in mind judicial disapproval of prolixity in
rule 43 affidavits. However, and even if that were a reason not to
attach the relevant bank statements to the husband’s answering
affidavit, it is no excuse for not making them available to
the
wife’s attorneys so that they could assess whether his
assertions were true.
[89]
In my view, the husband’s
failure to provide the bank statements is a critical gap in his
attempt to create reasonable doubt,
particularly having regard to the
management accounts attached to Mr Coetzee’s affidavit. The
amounts which he failed to
pay the wife were not very large in
relation to ASC’s affairs: R175,10 at the beginning of March
2020, R1500 in April 2020,
R8089 in May 2020, and R6089 at the
beginning of June 2020. His usual salary was much more than what he
chose to draw. He controlled
ASC and had the power to draw a higher
salary if the corporation was able to pay it. Without ASC’s
bank statements, we do
not know that it could not afford pay him the
extra few thousands of rands which would have been needed in March –
May
to enable him to meet his obligations.
[90]
To this must be added that
he had a positive combined balance of more than R43,000 in his
Capitec and FNB accounts at the end of
April 2020, more than enough
to have met the amounts in respects in which he was non-compliant in
March and April. Furthermore,
the husband does not state that he
and/or ASC were not able to borrow an additional amount to meet his
obligations to the wife.
He owns a business which has operated
successfully and profitably for some years. The business was not
crippled, even though it
was negatively affected, by the pandemic,
and his expectation was that within a few months things would be more
or less back to
normal. On the face of it, he and his corporation
were good candidates for a short-term bridging loan.
[91]
It also appears from the
papers that the husband’s parents have resources, and have set
up several family trusts of which
the husband is a beneficiary.
Although the parents and the trusts (of which the parents are
trustees) may not be obliged to assist
the husband, he does not say
that he sought their assistance and that it was declined. He states
that his parents have helped both
of their children in the past.
[92]
The husband has responded
evasively to the wife’s allegation that he has bought a flat at
[KH] in Milnerton. She alleged that
he took ASC staff there during
the lockdown period to do renovations pending transfer. In response,
the husband said that he had
not bought the property: ‘I have
taken staff members to the property to work there but not because the
property belongs to
me.’ If this was an armslength ASC
contract, I would have expected the husband to say so and to identify
the client.
[93]
In an affidavit filed a
week before the hearing, and primarily in response to Mr Coetzee’s
late affidavit, the wife stated
that the husband had now moved into
the [KH] flat while renovations were being carried out at the [FG]
property. The [FG] property
belongs to a family trust and is the
place where the husband has been residing since leaving the
matrimonial home. It also serves
as ASC’s office. It appears
from the husband’s affidavit that ASC leases the [FG] property
from the trust and that
in lieu of rent it is effecting improvements
to the property. The wife states that the [UR] property is next door
to the [FG] property,
so she can see the daily building renovations
activity.
[94]
It must also be remembered
that the husband already ‘saved’ certain expenses he had
under the order by not paying the
veterinary bill of February 2020
and the psychologist’s fees for April and May 2020, and he will
not be found in contempt
in these respects. He has also, for the
period 1 May – 31 July 2020, enjoyed a payment holiday from the
bank in respect of
the mortgage bond payments for [UR]. It is unclear
whether he has also sought and obtained a payment holiday in respect
of [RL].
Despite this, in his opposing affidavit he treated the [UR]
and [RL] bond instalments as expenses he needed to meet. Moreover,
the expenses he has borne, and will in the future bear, in respect of
the wife’s psychologist are in the main recoverable
from the
medical scheme.
[95]
Compliance with court
orders is always important. There is a particular scourge in this
country of spouses, particularly husbands,
failing to pay judicially
ordered maintenance. While a spouse facing a criminal sanction is
entitled to the benefit of reasonable
doubt, a court should not too
readily find such doubt to exist where the spouse has failed to put
up evidence which should have
been available to him to support a
claim of unaffordability. In the present case, the husband acted in a
high-handed and disdainful
way in giving effect to the proposals in
his attorneys’ letter of 28 April 2016. I conclude that his
evidence does not raise
reasonable doubt. Contempt in the respects
identified above has thus been established.
[96]
I should make clear that
in reaching this conclusion I have not accepted the submissions made
on behalf of the wife with reference
to ASC’s draft financial
statements for the year ended 29 February 2020. Although the
financial statements show that ASC
is a successful concern, it is
wrong to equate its retained profits of R2,226,465 with ready cash.
The balance sheet shows that
at year-end those retained profits were
not backed by cash but were tied up in non-current assets, trade
receivables and an anticipated
tax refund.
[97]
The wife’s attorney
submitted that a period of suspended imprisonment would be an
appropriate sanction. In my view, imprisonment
is not called for. I
am dealing with a first infraction, which is considerably narrower
than what the wife alleged. A suitable
sanction would be a fine of
R20,000, suspended for three years on condition that the husband is
not convicted of contempt for non-compliance
with a court order
committed during the period of suspension.
[98]
Although the question of
sanction was dealt with fully in the wife’s attorney’s
heads of argument, it was not addressed
by the husband’s
counsel. Accordingly, and in case there should be any suggestion of
unfairness, the aforesaid sanction will
be imposed provisionally. If
the husband considers that a lesser sanction should be imposed, he
will have two weeks from the date
of this judgment to make written
submissions in that regard, in which event the wife will be entitled
to file a responding submission.
I should nevertheless emphasise that
in civil contempt proceedings a respondent can ordinarily be
expected, in his opposing papers
and in argument, to deal with the
question of sanction in the event of contempt been proved.
The
husband’s counter-application
[99]
In terms of para 3 of his
rule 43(6) notice, the husband applies for the following variations
to Goliath DJP’s order: (a) reducing
the monthly cash
maintenance to R5000; (b) reducing his liability in respect of
the dogs to a maximum of R1000 per month;
(c) reducing the psychology
sessions he must cover to two sessions per month; (d) requiring
the wife not to incur medical
expenses and treatment exceeding R1000
of the medical aid cover without first obtaining the husband’s
written consent which
shall not be unreasonably withheld (currently
para 3.6 sets the foregoing limit at R1500).
[100]
In regard to (b) above,
there was some ambiguity in the formulation of the rule 43(6) notice,
but the husband’s counsel clarified
that the intention was that
the husband would no longer be liable for the cost of dog walking,
and that his liability for veterinary,
medical, pharmaceutical and
dog food expenses would in totality not exceed R1000 per month.
[101]
It is unnecessary to
mention the relief claimed by the husband in paras 5 and 6 of his
notice, because his counsel acknowledged
that such relief was not
competent under rule 43. In para 7 he asks that his obligation to pay
the municipal charges in respect
of [UR] and [RL] be clarified as
being an obligation to do so within seven calendar days after receipt
by him of the invoices.
[102]
The husband’s
application is based on the effects of the Covid-19 pandemic on ASC’s
business. His initial proposal for
amelioration was made in KMA’s
letter of 28 April 2020. In his answering affidavit, he said that the
business was slowly
clawing its way back, though the discounts he had
to offer on two large contracts would remain in place for the
foreseeable future.
By that stage (he signed his affidavit on 25 June
2020) he was better able to gauge ASC’s position, and this
meant that he
could limit the amelioration he was seeking to those
set out in his rule 43(6) notice (the letter of 28 April was more
ambitious).
[103]
I accept that the pandemic
has adversely affected ASC’s business. Whether this is a
‘material’ change for purposes
of rule 43(6) depends on
whether this adverse effect has made what was previously affordable
unaffordable. Because of the husband’s
failure to produce his
own bank statements for May and June 2020 and his failure to produce
ASC’s bank statements for March
–June 2020, and because
of his failure to disclose whether he has made attempts to obtain
temporary additional finance from
other quarters, I am not satisfied
that he has discharged the burden of showing this.
[104]
I am inclined to agree
that a dog walking service is a luxury. Most owners derive pleasure
from walking their dogs, and the wife
also has domestic employees who
could assist. However, it is not my role to revisit Goliath DJP’s
order. I must assume that
the order in respect of this item was a
reasonable one to impose, the only question now being whether there
has been a sufficient
change in the husband’s financial
circumstances to render it unreasonable to expect him to continue
meeting the expense.
[105]
Whether the wife continues
to need as many as four psychology sessions per month is not
something on which I am able to comment.
It may or may not be an
unnecessary luxury, but on the information before me I cannot find
that the husband is unable to afford
four sessions.
[106]
If the husband considers
that ASC’s business remains depressed to an extent that he
cannot reasonably be expected to pay some
of the expenses covered by
Goliath DJP’s order, my dismissal of his counter-application
will not preclude him from renewing
it, but he will then need to put
up substantiated evidence. In advance of any such renewed
application, he would be well advised
to furnish the wife’s
attorneys with updated management accounts and up-to-date bank
statements (personal and corporate).
He should also address his
ability to raise finance from sources, the question of the [KH] flat
and the expenditure on the [FG]
renovations.
[107]
In view of some of the
arguments advanced on the wife’s behalf, I should make clear
that I do not consider that, in order
to show a ‘material
change’ in circumstances for purposes of rule 43(6), the
husband necessarily has to show that the
adverse effect of the
pandemic on ASC’s business has been so severe that compliance
with Goliath DJP’s order is for
all practical purposes
impossible. Goliath DJP made her order in circumstances where the
husband’s financial position was
such that he could comfortably
meet his obligations under the order while still living at a
reasonable level of comfort himself.
It is not necessarily reasonable
to expect him to continue meeting his obligations under the original
order if to do so he has
to live in materially reduced circumstances
himself. That is not a scenario which Goliath DJP had to consider.
[108]
It is also not necessarily
the case that maintaining the wife at the level set out in Goliath
DJP’s order must take rigid
priority over the survival of ASC’s
business. Goliath DJP made her order in circumstances where the
financial circumstances
of the husband and his company were such that
he did not need to choose between maintaining his wife and keeping
his business.
Indeed, a thriving business was the premise of his
being able to afford to meet the maintenance obligations imposed by
the order.
The learned judge would not necessarily have made the same
order if the position had been that the husband would have needed to
liquidate the business in order to maintain the wife at that level.
[109]
I
n regard to para 7 of the
husband’s counter-application, it is probably sensible, if only
to avoid future disputation, to
specify a period within which the
rates must be paid. I think seven calendar days is reasonable.
Conclusion
[110]
In regard to para 2 of
Part A, I shall order the husband to make payment of those amounts in
respect of which he was non-compliant
at the date the application was
launched on 5 June 2020, such payment to be made within one week of
the order. The fact that I
do not make similar orders in respect of
the other items in para 2 does not mean that such other items did not
become due and payable
after 5 June 2020. The extent to which the
husband is liable for such other items will be apparent from what I
have said above.
[111]
By virtue of an interim
order made on 23 July 2020 by agreement, but without prejudice to the
wife’s application, the husband
was to pay off, in four equal
instalments, an outstanding amount of R12,990,92. The last instalment
falls due on 7 October 2020,
just a few days after this judgment is
to be handed down. Accordingly, I will leave those amounts to be
finally settled in accordance
with the order of 23 July 2020.
[112]
In regard to costs, the
wife has proved non-compliance as at 5 June 2020 in respect of items
2.1, 2.10, 2.11, 2.13 and 2.15, totalling
R17,807,32 out of a total
alleged non-compliance of R54,004,88 (33%). In respect of these
items, contempt has been proved except
for item 2.13. This contempt,
in monetary terms, is 30% of the total amounts in respect of which
the husband was alleged to be
in contempt.
[113]
The wife’s claims in
para 3 have failed, and she has not pursued Part B, even though the
husband was called upon to deal with
it in his answering papers. On
the three main interpretive issues, she has failed on two of them. As
against this, the husband’s
counter-application has failed.
[114]
Although the wife has only
succeeded to the extent of one-third in relation to para 2 of Part A,
that is not because the husband
is not liable for the rest of the
items. Given the attitude he was adopting, he probably fell into
default in respect of a number
of those items subsequent to the
issuing of the application. Coupled with the strong disapproval the
court always has for contempt,
the husband must bear the bulk of the
costs. I do not intend to distinguish between the costs of the
application and counter-application,
because the issues were to some
extent intertwined.
[115]
I do consider, though,
that there should be some recognition of the wife’s failure. I
should also say that in some respects
she seems to have been
unattractively intent on extracting more than her ‘pound of
flesh’. I shall thus deprive her
of 25% of her costs, and I
will not order the husband to pay costs on a punitive scale. I have
borne in mind the
in
limine
points made by
the husband, but I cannot find that they militate against the costs
order I intend to make.
[116]
I make the following
order:
(a) In regard to para 2 of Part A
of the applicant’s notice of motion, but subject to para (b)
below, the respondent must,
to the extent that he has not already
done so, pay the amounts set out in paras 2.1, 2.10, 2.11, 2.13 and
2.15 within one week
of the date of this order.
(b) In respect of the amounts
regulated by para 8 of the order of 23 July 2020, the respondent must
complete payment thereof in
accordance with that order.
(c) Save as aforesaid, the claims
in paras 2 and 3 of the said Part A are dismissed.
(d) The respondent is found to be
in contempt of the order of 7 February 2020 in the respects set out
in paras 2.1, 2.10, 2.11 and
2.15 of the said Part A.
(e) In respect of the said
contempt, the respondent is sentenced to a fine of R20,000
suspended for a period of three years
on condition that he is not
convicted of contempt of any court order committed during the period
of suspension.
(f) The sentence in (e) is
provisional. If the respondent considers that a lesser sentence
should be imposed, he must, within two
weeks of the date of this
order, file a written submission in support of such lesser sentence,
in which event the first applicant
shall be entitled to file a
responding submission within one further week. If the respondent does
not file a written submission
as aforesaid, the sentence in (e) will
become final.
(g) The order of 7 February 2020
is varied by the insertion of the following paragraph, numbered 3A,
immediately before para 4 thereof:
‘
3A. The
respondent must make payment of the expenses referred to in
paragraphs 3.3.2 and 3.4.2 above within seven calendar days
of
receipt by him of the relevant invoices.’
(h) Save as aforesaid, the
respondent’s counter-application is dismissed.
(i) The respondent must pay 75%
of the first applicant’s costs in the application and
counter-application.
_______________________
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Applicants
Dr
Fareed Moosa (attorney)
Fareed
Moosa & Associates
23
Coniston Road
Rondebosch
For
Respondent
J
Anderssen
Instructed
by
Keren
Machanik Attorneys
10
Pepper Street
Cape
Town