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[2019] ZAGPJHC 253
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J G v R G (2019/22499) [2019] ZAGPJHC 253 (19 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
2019/22499
DATE
:
19
th
JULY 2019
In
the matter between:
G
,
J
Applicant
and
G
,
R
Respondent
JUDGMENT
Adams
J:
[1].
This is an
opposed urgent application by the applicant for an order
inter
alia
declaring the respondent to be in contempt of a Rule 43 order of this
court. The applicant also asks that the respondent be ordered
to pay
R217 778.20 in respect of arrear maintenance, as well as for
other ancillary relief.
[2].
In her
founding papers the applicant alleges that the respondent is in
arrears with the Rule 43 order of this Court (Sardiwalla
J) dated the
5
th
of December 2016 to the tune of R217 778.20. This amount is
constituted, according to the applicant, by short payments on
a
monthly basis of the cash portion of the maintenance payable in terms
of the said order. The short payments commenced during
March 2018 and
since then the respondent has short paid every single month. For
example, in April 2018 the respondent paid an amount
of R57 000,
when the court order required him to pay R63 000 per month,
which means that he short paid by an amount of
R6000. A more recent
example is the payment of R36 555.45 paid by the respondent on
the 1
st
of June 2019, whereas the amount payable, according to the court
order, is still R63 000. This means that he short –
paid
by R26 444.55.
[3].
The urgent
application was issued by the Registrar of this Court on the 26
th
of June 2019, and service was seemingly effected on the respondent by
email on or about the 27
th
of June 2019. The respondent delivered his answering affidavit on or
about the 9
th
of July 2019.
[4].
At the
commencement of the hearing of the urgent application, I requested
the parties to address me on the issue of urgency, which
they did. I
had deemed this course necessary in the circumstances of the matter.
[5].
As I indicated
above, the applicant alleges that the respondent is in contempt of
the Court Order of the 5
th
of December 2016. It is also the case of the applicant that the
contemptuous conduct on the part of the respondent commenced as
far
back as April 2018, which is the month during which the respondent
short – paid the maintenance for the first time. Since
then,
with regular monotony, the respondent has on a monthly basis made
himself guilty of contempt, so the applicant alleges. It
is the case
of the applicant that from time to time during the period from the
April 2018 to June 2019 she raised with the respondent
her
unhappiness with the fact that he was short – paying on a
monthly basis.
[6].
On 26 June
2019 the applicant issued this urgent application. She alleges that
the matter is urgent because, as she puts it in her
founding
affidavit: ‘I am advised that the ongoing contempt of an order
of court, by its very nature, is urgent. Same is
axiomatically
urgent’.
[7].
It is the
respondent’s contention that the alleged urgency of the matter
is self – created and that there was non –
compliance
with the provisions of rule 6(12). It was submitted on behalf of the
respondent that despite the fact that the applicant
was aware as far
back as April 2018 that the respondent intended paying less
maintenance than what was provided for in the Rule
43 Order, the
applicant failed to file her application soon thereafter. Further,
the respondent submitted in her founding affidavit
the applicant has
not made out a case that, should the application not be heard on an
urgent basis, she would not be afforded substantial
redress at a
hearing in due course. In any event, so the respondent contends,
there is an application presently pending before
this court in which
the respondent seeks an adjudication of the very dispute which is the
subject of this urgent application. In
a nutshell the respondent
contends that the issues raised by the applicant in this application
arising from the Rule 43 order have
been settled and novated by a
settlement of the divorce action in its entirety. He therefore denies
that he is in contempt of the
Rule 43 order.
[8].
Rule 6 (12)
(b) of the uniform rules of court reads as follows that:
‘
(b)
In every affidavit or petition filed in support of the application
under para. (a) of this sub-rule, the applicant shall set
forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he would not be afforded
substantial redress at a hearing in due course.’
[9].
On behalf of
the applicant it was submitted that applications for contempt of
court are by their very nature urgent, especially
if the contempt
complained of relates to contempt of a Rule 43 Order, which
inevitably relates to vulnerable women and children.
Counsel for the
applicant also urged the court to uphold the issue of urgency in the
interest of the minor children. I cannot agree
with these
submissions. Whether or not a matter is urgent surely depends on the
facts in each matter.
[10].
I am of the
view that the urgency of this application is self – created. In
my view, the applicant should have launched this
application as soon
as the respondent made himself guilty of contempt of court. If she
did so, urgency would not have been an issue
now. It was incumbent on
the applicant as soon as possible after April 2018 to launch
proceedings for an order declaring the respondent
to be in contempt
of court. There is no explanation as to why the applicant waited for
about sixteen months before launching the
urgent application.
[11].
I am not
convinced that the applicants have passed the threshold prescribed in
Rule 6(12)(b) and am of the view that the application
ought to be
struck of the roll for reasons given above.
Costs
[12].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[13].
In this matter we are however dealing with
the rights of minor children. I therefore think that it would be fair
that I order each
party to bear her / his own costs of this urgent
application.
[14].
In the exercise of my discretion, I
therefore intend awarding no order as to costs.
Order
Accordingly,
I make the following order:-
1.
The applicant’s urgent application be
and is hereby struck from the roll.
2.
Each party shall bear her / his own cost of
this urgent application.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
16
th
July 2019
JUDGMENT
DATE:
19
th
July 2019
FOR
THE APPLICANT
Adv
Karabo Mvubu
INSTRUCTED
BY:
Joselowitz
& Andrews Attorneys
FOR
THE RESPONDENT:
Adv
K L Foulkes – Jones SC
INSTRUCTED
BY:
Debra
Wooley Attorneys