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[2016] ZAGPJHC 234
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G v G (24555/2016) [2016] ZAGPJHC 234; 2017 (2) SA 409 (GJ) (31 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24555/2016
In the matter
between:
G,
A C
Applicant
And
G,
D M
Respondent
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
The applicant has sued the respondent for a decree of divorce and
ancillary relief. The action is defended.
The
applicant also initiated Rule 43 proceedings for interim maintenance
for herself and the two minor children born of the marriage.
2.On
23 January 2014 an order was made determining the maintenance to be
paid. The order was varied by my brother Meyer J on 13
August 2016.
The order required the respondent;
a.
to pay maintenance for the applicant and the children in an amount of
R35 000 per month on the 1
st
of each month as from 1
September 2015. The amount was to be paid into a designated bank
account of the applicant;
b.
to pay all medical and related expenses of the applicant and the
children, the respondent being obliged to retain them on his
medical
aid scheme;
c.
to pay all educational and related expenses of the children including
the fees of private school tuition to be paid directly
to the school
as and when the amounts fall due. The school at which the children
study was identified as Kings School West
Rand;
d.
to pay all expenses relating to the children’s extra lessons,
school uniforms, school bags, books, stationary and other
equipment
reasonably required for their schooling;
e.
to pay all costs pertaining to the children’s extramural
activities inclusive of fees and required apparel.
3.
The present application is brought as one of urgency requiring the
respondent to pay the arrear maintenance of R30 000 within
24
hours and to hold him in contempt of court with a further order that
if he does not pay the amount then a warrant of arrest
be issued for
his committal by reason of his failure to adhere to the court order.
4.
The applicant represents herself, which accounts for the inelegant
drafting of the notice of motion. However the respondent was
represented by
Adv Garvey
who confirmed that his client
understood that the application included an order for his client’s
committal for contempt of
the court order of Meyer J and that the
answering affidavit had been drawn to meet that case. Accordingly the
respondent was not
prejudiced by the way in which the orders sought
in the notice of motion were framed.
URGENCY
5.
The respondent has displayed a serial failure to meet his maintenance
obligations to his children. As appears later at least
three court
orders attest to this.
6.
A
court cannot expect the mother to deplete her own financial resources
and hope to recover in due course where the father is already
over
R300 000 in arrear with his maintenance, even on the assumption
that only half that amount was for the children
[1]
.
A court has determined the respondent’s obligations under a
rule 43 application based on its assessment of the limits of
the
applicant’s financial capabilities; which is precisely why it
ordered that the respondent pay not only maintenance for
the children
but for the applicant
as
well
.
7.
In urgent applications the applicant must show that he or she will
not otherwise be afforded substantial redress at a hearing
in due
course. See
Luna Meubelvervaardigers (Edms) Bpk v Makin and
Another (t/a Makin's Furniture Manufacturers
)
1977 (4) SA 135
(W)
at 137F.
8.
A failure to pay maintenance pursuant to a contested court case
should not be viewed as a simple debtor –creditor type
situation.
The
grant of a maintenance order arises pursuant to a court finding the
existence of an ongoing duty of support and in the case
of child
support the duty is further buttressed by the constitutional right of
a child to parental or family care and that his
or her best interests
are of paramount importance.
[2]
9.
The respondent is a multi-millionaire who in July 2013 had R6million
lying in a savings account , was a director or member of
seven
companies and lived a lavish lifestyle which indicates the kind of
net worth he had, certainly at that time. He was therefore
in
well-established enterprises which generated significant revenues.
10.
It is evident that Meyer J considered that the maintenance which the
respondent could afford to pay would not eat into his capital
or that
of the entities he controlled.
11.
By contrast Meyer J found that unless the respondent paid a
contribution to the applicant’s personal maintenance she would
not be able to adequately support herself.
12.
Accordingly on the papers before me it is apparent that, should the
respondent fail to pay maintenance, the applicant has to
find the
shortfall by either borrowing or by depleting her own overall capital
or savings. At face value, if regard is had
to the previous
judgments and orders in the litigation between the parties, it would
mean that her net worth is being eroded or
she is forced to utilise
monies that would otherwise be invested into her business, resulting
in her own opportunities for establishing
or growing her business
being stifled.
13.
The applicant contends that she had to borrow R30 000. This is
disputed by reason of the relationship the respondent claims
exists
between the applicant and the lender. This is a red herring.
14.
A failure to pay maintenance entitles an applicant to issue a warrant
of execution immediately or to enforce an order immediately
through
the maintenance courts.
In
the present case the applicant is unable to do so because either the
attachments made pursuant to writs are challenged or the
balance of
funds located in an account are simply withdrawn by the respondent
before the next writ is served.
15.
Finally, while not all applications for arrear maintenance founded on
the contempt of a court order are urgent, it becomes self-evidently
urgent in this case; where the applicant’s assets are being
depleted, where the respondent is frustrating the ordinary
enforcement
of court orders resulting in the build-up of already
significant arrears which include monies payable for the children’s
care.
POSTPONEMENT
16.
After the application for my recusal was refused Adv Garvey sought a
postponement of the matter. The only ground advanced was
that the
respondent wished to first obtain a copy of the record, which was not
yet available, to pursue an application for leave
to appeal my
refusal to recuse. In the interim I had afforded the respondent an
opportunity to amplify his papers. He failed to
avail himself of that
opportunity.
17.
It is evident that the explanation for the postponement does not
constitute a ground and it was refused. I considered it purely
a
delaying tactic.
THE
MONEY CLAIM
18.
Adv Garvey contended that the claim for R30 000 was in respect
of monies expended after 1 July 2016 and therefore the claim
is
premature.
19.
This argument fails to appreciate that the claim is based on a
failure to pay maintenance due on 1 July 2016 and that as a
consequence the applicant borrowed money. The receipts provided
constituted evidence that she had actually expended the money
borrowed
in respect of the obligations that the respondent was
obliged to have fulfilled in terms of Meyer J’s order.
20.
In my view it was unnecessary for her to do so to support the money
claim.
It
sufficed for her to rely on the court order of Meyer J and the
failure to pay maintenance for July. The fact that the respondent
had
neglected his obligations to pay maintenance for a substantial period
and that the ordinary process of execution was being
frustrated were
relevant to urgency and that part of the order relating to the
contempt.
21.
The respondent had not yet brought an application to vary the order
of Meyer J despite threatening to do so. Until the order
is set aside
it is effective in relation to the money claim.
CONTEMPT
PROCEEDINGS
22.
The respondent accepts that he was aware of the order of Meyer
J and that he did not comply with it. It is however disputed that
his
non-compliance was wilful and mala
fide
.
He contends that he does not have the money to pay.
23.
it is trite that the requirements for a
contempt must be satisfied beyond a reasonable doubt if enforcement
is sought by way of
a criminal sanction. See generally
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at para 9.
24.
In the present case the respondent contends
that he currently earns no income. He maintains, through his counsel,
that he is spending
all the time contesting the court applications
brought by the applicant and is therefore unable to continue in
employment.
25.
The
alleged decline in the respondent’s income is mercurial to say
the least. In July 2105 he was earning enough for Meyer
J to find
that he could afford the not insignificant sum of R35 000 per
month plus the other expenses he was ordered to cover.
It appears
from the subsequent judgment of Carstensen AJ delivered on 27 June
2016 that the respondent contended that his income
was reduced to
R1 779.71 per month
[3]
. It
was claimed in those proceedings that he was living on hand-outs from
his family and others.
26.
Before this court the respondent did not
care to explain what transpired with his various members’
interests in the seven
companies, what was received if he had in fact
disposed of his interest, and if little or no value was given then on
what basis
those who might now be registered as the members could be
other than his nominees.
27.
In
the matter before Carstensen AJ the learned judge found that the
respondent continues to have access to large sums of money and
did
not deny that he had R2.7 million in his bank account.
[4]
28.
I
am satisfied on the papers before me that the respondent is
deliberately concealing his assets. By reason of still being in
de
facto
control of the various income producing entities identified, he is
able to determine the salaries to be drawn while other amounts
to
maintain his standard of living can be drawn as loans or through
other devices. An exercise of determining whether he can survive
on
R1800 odd per month in the face of at least one oversees excursion
(which was admitted), on the most elementary lifestyle audit,
reveals
that he is , as Carstensen AJ put it in his judgment, “
wilfully
and mala fide engineering a decrease in salary, or a reduction in
salary, or a termination of his employment to the extent
that he is
“for all intents and purposes unemployed” simply for the
purpose of deliberately frustrating the court order’
[5]
.
29.
I am also satisfied beyond a reasonable doubt that the respondent is
acting willfully and is mala fide.
SANCTION
30.
This is not the first time that the applicant has been obliged to
approach the court to enforce the maintenance order.
31.
She approached the maintenance court previously and warrants of
execution have been served attaching assets. In almost all cases
to
little avail. On almost every occasion the respondent has contested
the attachment. And when an amount in respect of one writ
was
attached in an account, the balance of the monies standing to the
credit of that account was immediately withdrawn which resulted
in
there being no funds in that account when the next writ was served
almost immediately afterwards.
32.
The
respondent complains that the applicant is utilising the High Court
to enforce a maintenance order that should properly be dealt
with in
the maintenance court or by the issue of a warrant of execution
through the registrar of this court. Ordinarily that may
suffice. In
this case the respondent is adopting the stratagem of frustrating
execution and out-litigating the applicant. She has
already had to
obtain a bond to cover some R600 000 in legal fees (as appears
from the judgment of Carstensen AJ). The respondent
has deep pockets.
Instead of meeting his obligation or bringing a variation order, if
his circumstances or that of the applicant
has indeed changed
[6]
,
the respondent has embarked on spurious applications for recusal and
continues to seek leave to appeal the judgments of other
courts.
33.
So far there have been the following orders granted against him: An
order of Lamont J in November 2013 under a deed of
settlement
which provided for maintenance of R8 000 per month together with
school fees and a contribution to 50% of the medical
expenses; an
order in January 2014 by Mayat J that the applicant retains primary
residence of the children with reasonable visitation
rights and which
also provided for maintenance ; the order of Meyer J on 13 August
referred to earlier which varied the previous
maintenance orders; the
order of Mailula J in May 2016 regarding the sale of property; and
the order of Carstensen AJ on 23 June
2016 which
inter alia
authorised the sale of certain property for the purposes of
utilising the proceeds in a particular manner and, more importantly
for present purposes, held the respondent to be in contempt of Meyer
J’s order, and ordered the respondent to pay the outstanding
maintenance of R321 809.31 failing which he would be committed
to imprisonment for the contempt for a period of 20 days.
Finally on 13 July 2016 van der Linde J ordered the respondent
to pay to the applicant R23 258 in respect of other arrear
amounts
34.
There have therefore been several occasions where the applicant was
obliged to come to court to enforce an order that is binding
unless
varied. There is no current application to vary. The divorce has
dragged on since 2013 at considerable expense to the applicant
and
without an end in sight. Whether intended or not, one should not lose
sight of the consequences of the applicant being
worn down,
through the sheer expensed of continued litigation, to accept a
settlement that may not be fair to her or not be ultimately
in the
children’s best interests.
35.
The respondent continues, by his conduct, to challenge the resilience
of the judicial system and believes that he can undermine
it through
fallacious contentions which do not bear scrutiny.
36.
He has already been ordered to pay R320 000 under pain of
arrest. This has not discouraged him or made him appreciate that
it
is necessary to respect judgments of the court unless varied through
due process and not to take the law into his own hands
as he is now
doing.
37.
I have
no difficulty in endorsing the manner in which the applicant has
continued to come to this court on a regular basis for as
long as the
respondent continues to adopt these tactics. The court will not blink
first if that is what he believes will happen.
Once a right has been
established an applicant is entitled to an effective remedy
[7]
.
Writs have not proved successful.
38.
Moreover the respondent’s attitude towards his obligations to
maintain his children was manifested by a failure to pay
the school
fees despite the threat of his children being suspended. The court
will not tolerate such behaviour when exercising
its responsibilities
as the upper guardian of children.
39.
The respondent has already been committed by Carstensen AJ to 20 days
imprisonment if he fails to comply with the order to pay
some
R320 000. A period of five days incarceration appears
appropriate having regard to all the circumstances of this case
should the respondent fail to pay the amount ordered.
ORDER
40.
The following order is made;
1.
The matter is urgent
2.
The Respondent, David Michael Goddard, is held in contempt of the
court order granted on 13 August 2015 by Meyer J under case
no.
2013/36148;
3.
The respondent is to pay to the applicant the sum of R30 000, such
payment to be made into the account of:
Sheriff
Randburg Trust Account
ABSA
Bank Midrand
Branch
code; 6………..
Account
no. 4…………..
by
no later than 14h00 on Tuesday 6 September 2016.
The
contact details of the Sheriff Randburg are; Acting Sheriff Randburg
West, Unit C1 Mount Royal Business Park, 657 James Crescent,
Halfway
House (contact person Mr Oosthuizen at 082...............)
4.
A warrant of arrest is to be issued forthwith committing the
respondent to imprisonment for contempt of court for a period of
5
(five) days;
5.
The warrant of arrest is only to be executed on Wednesday 7 September
2016 if the respondent fails to pay the sum of R30 000
to the Sheriff
as aforesaid by no later than 14h00 on Tuesday 6 September
2016.
SPILG,
J
DATES
OF HEARING: 19 July, 22 July, 29 July and 10 August 2016
DATE
OF JUDGEMENT: 31 August 2016
LEAGL
REPRESENTATION:
FOR
APPLICANT: In person
FOR
RESPONDENT: Adv CB Garvey
Masilo
Freidmond Inc
[1]
The
court made a lump sum award without splitting the amount between the
applicant and the children
[2]
Sections
28(1)(b) and (2) of the Constitution
[3]
Para
26 of the judgment
[4]
Ib
para 39
[5]
Ib
at para 28
[6]
This
would presumably require an examination of his actual lifestyle, an
explanation of what has happened to his assets and his
control over
the seven companies as well as where his relatives acquired the
funds which he now claims to be borrowing from them
and so forth.
[7]
See
Minister
of the Interior and another v Harris
1952(4)
SA 769 (AD) at p781A-B.