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South Africa: South Gauteng High Court, Johannesburg
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[2016] ZAGPJHC 259
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G v G (24555/2016) [2016] ZAGPJHC 259 (27 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24555/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED
DATE:
27 September 2016
In
the matter between:
G,
A. C.
Applicant
And
G,
D. M.
Respondent
JUDGMENT-
LEAVE TO APPEAL
SPILG,
J:
INTRODUCTION
1.
The parties
will be referred to as per the original application.
2.
The
applicant sued the respondent for divorce in 2013. The trial was
postponed last year and the applicant is therefore still obliged
to
rely on the interim orders granted for maintenance in respect of the
two minor children and her until the trial proceeds. The
prevailing
order is a Rule 43 variation granted by my brother Meyer J on 13
August 2015 (there is a typographical error in my judgment
recording
the year as 2016).
3.
In the
meantime the respondent has attempted, so far unsuccessfully, to vary
that order before the maintenance court while failing
to pay the
maintenance as ordered and in respect of which he remains
substantially in arrears.
The
respondent does not seriously dispute that he is in arrears but
contends that his circumstances have changed. Before Carstensen
AJ he
claimed to be earning R 1 779.71 per month while before me
Adv
Garvey
said
from the Bar that his client now earns no income because he cannot do
even a day’s work by reason of being brought regularly
before
the courts by the applicant; a contention which on its mere raising
can be rejected having regard to the respondent still
maintaining his
business interests or not disclosing that he has disposed of any and
if so for what amount.
4.
In the
judgment I dealt with how the respondent has played the judicial
system inter alia to the prejudice of the minor children.
5.
The issue
was whether or not the respondent had paid the maintenance in terms
of Meyer J’s order and if not whether it could
be proven beyond
a reasonable doubt that he was in contempt of court.
6.
Aside from
contending that Meyer J got it wrong in dealing with the applicant’s
income (which is irrelevant with regard to
the respondent’s
ability to pay) he pleaded poverty post that judgment.
7.
I rejected
his pleas of poverty on the papers before me (see at paras 25 to 27
and 29). I also alluded to the judgment of Carstensen
AJ which
accurately recorded the respondent’s version or what was not
disputed by him and quoted the learned judges conclusion
which I
fully endorsed by reason of what was before me or what the parties
referred me to in other sets of papers between the same
parties and
which was not objected to.
8.
The
respondent was represented by counsel who was fully alive to the
possible sanction, as it was specifically asked for. Moreover
Carstensen AJ had already committed him to imprisonment for contempt
of court if he failed to make payment.
9.
In the
present case it was for the respondent to suggest a sanction other
than the one requested since he deliberately failed to
respect the
orders previously made, challenged every attachment made and a fine
appeared pointless considering the access he clearly
has to
substantial funds while still refusing to pay amounts, as
demonstrated before me during the previous hearings, such as the
school fees when due and despite the threat of suspension of tuition,
subsequent maintenance when it fell due and medical fees.
GROUNDS
OF APPEAL
10.
I have set
the aforegoing out in the introduction since some of the grounds for
leave to appeal appear to rely on the process I
allegedly applied to
reach my decision including a claim that the respondent was not
afforded an opportunity to deal separately
with the appropriate
sanction once I had found him to be in contempt.
11.
A separate
hearing was required in
Lin
and Another v Cathay Pacific Airways Ltd and Another
,
2015 (4) SA 197
(GJ) and
[2016] 1 All SA 543
(GJ) because there
was not enough before me to make an informed decision regarding an
appropriate sanction. This is clear from
the information I required.
12.
In the
present case the respondent has persisted with the untruthful
assertion that he had no access to funds despite failing to
give any
acceptable explanation as to what happened to his business interests
and the substantial funds that had been in a current
account less
than a year earlier. I had regard
inter
alia
to
his ability to access funds, the interests of the children
and the applicant with regard to their respective rights
to receive
maintenance and in particular the consequences to the children, as
well as the interests of society to ensure that court
orders are
respected unless varied. I also had regard to his ability to
frustrate the ordinary processes of execution attempted
by the
applicant so far with limited success and at considerable
inconvenience including having to contest inter-pleader proceedings.
In the meantime the respondent litigates at leisure paying attorneys
and counsel to contest court orders through to appeal stage
while
claiming that he has no income to maintain his own children. This
should be evident from the judgment.
13.
The
respondent was not deprived of his right to deal with an appropriate
sanction. His counsel is not a novice and expressly confirmed
to a
direct question asked by the court that his client understood that
the applicant was seeking to hold him in contempt. The
failure to
suggest any sanction other than paying under pain of incarceration,
without an explanation indicates that the
respondent understood
that there was none to offer without exposing himself to suggesting
the payment of a sum of money as a fine
which would run counter to
the line he decided to take with the court that he had no money and
was effectively living on handouts
.
14.
The
respondent has a simple option. He can pay the R30 000 arrears
within the time and thus avoid a custodial sentence. It
is evident
from the facts that were placed before me and the submissions made,
reinforced by the judgment of Carstensen AJ that
the respondent is
using the withholding of maintenance as a weapon and I am concerned
that, unless explained on some unresolved
personal issues he has with
the applicant, the respondent is attempting to wear her down so that
she will submit to an unreasonable
settlement.
15.
If in so
doing he wished to jeopardise the rights of his children to
maintenance under his duty of support, then so be it. But it
comes at
a consequence. He has a straight forward decision to make. Pay with
funds that are clearly accessible to him or face imprisonment.
It is
his election.
16.
The
application for leave to appeal is a further instance of the
respondent abusing the judicial system and had the applicant been
legally represented I would have considered granting a punitive order
for costs.
17.
Save for
certain earlier observations which may not appear ex facie my
judgment, I am satisfied on reading the lengthy grounds
raised
for leave to appeal and re-reading my judgment that that an appeal
would not have reasonable prospects of success and no
other ground
for appealing the decision exists.
ORDER
18.
Since the
applicant is unrepresented there is no cost order.
19.
The
application for leave to appeal is dismissed.
_______________
SPILG
J
___________________________________________________________________
DATE
OF HEARING:
26 September 2016
DATE
OF JUDGEMENT:
27 September 2016
LEAGL
REPRESENTATION:
FOR
APPLICANT: In person
FOR RESPONDENT:
Adv CB Garvey
Masilo Freidmond Inc