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[2020] ZAGPJHC 154
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R M v K M (37538/2018) [2020] ZAGPJHC 154 (6 May 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 37538/2018
In
the matter between:
M
R
Applicant
And
M
K
Respondent
REASONS
[1]
On 17 April 2020 I gave an order in
favour of the applicant and deferred reasons thereof. The reasons are
as set out below.
[2]
The applicant and respondent are
involved in divorce proceedings. Following the divorce proceedings, a
Rule 43 for interim maintenance
order was granted by the Court for
maintenance of the applicant and her children.
[3]
When the matter came before me on 16
April 2020, Mr Mabe, on behalf of the respondent submitted that there
was compliance with the
interim maintenance order. I ordered that I
be provided with proof thereof by the respondent and adjourned the
hearing to 17 April
2020.
[4]
On the 17 April 2020, Mr Mabe provided
this Court with an unsigned answering affidavit, to that affidavit
was attached a statement
of bank account for the month of October
2019. Of relevance is a bond account payment of R36 895.27 which
was effected on
15 October 2019. This is what the respondent alleges
to be compliance with the interim maintenance order. I do not agree
that the
bond payment equates to the interim maintenance order as
ordered in the previous judicial pronouncement against the
respondent.
[5]
Mr Mabe was challenged to produce any
other proof of payment and could not do so. Counsel for the
respondent was also invited to
show whether any partial payment of
the interim maintenance had been affected by the respondent in 2020
and no proof was available.
[6]
The orders of the Court on interim
maintenance in terms of Rule 43 are designed to ensure that the
children and the spouse seeking
maintenance are taken care of pending
the finalisation of the divorce proceedings. The Rule 43 does not
make a final determination
of any right of the parties and remains a
temporary relief until the divorce is finalised.
[7]
Failure to comply with an interim
maintenance order without reason amounts to contempt of Court. In
this instant case, the applicant
obtained the Rule 43 interim
maintenance order on 20 September 2019.
[8]
On 18 October 2019, Windell J ordered
the respondent to comply with the Rule 43 order. The order was not
complied with. As a consequence
on 6 November 2019 Cele AJ, found the
respondent to be in contempt of the court order granted by Haskins AJ
read with the Windell
J order dated 18 October 2019. The respondent
was fined R3000 or 30 days imprisonment.
[9]
It is evident from the history of this
matter that the respondent does not intend to comply with the Rule 43
order. During the hearing
of this matter, Counsel for the respondent
tried to persuade me that there was a pending application which
renders Rule 43 order
premature. This submission has no legal basis
and must fail.
[10]
The respondent has failed to comply with
the Rule 43 order despite various court orders for him to comply. The
imposition of a fine
and after holding him in contempt does not seem
to work as a measure to ensure compliance. I am of the view that the
respondent
does not respect the judicial process.
[11]
Having regard to the history of this
matter and the evidence before me, I am satisfied that the respondent
is in contempt of the
Rule 43 order.
[12]
ORDER:
Therefore
the following order is made:
12.1.
Mr K M, with identity number: […] is ordered to within five
(5) days of the granting of this order
12.1.1. pay an amount of
R454 262.48 (four hundred and fifty four thousand two hundred
and sixty two thousand and forty eight
cent)
Emanating
from the Rule 43 order granted by Haskins AJ on 20 September 2019
into the applicant’s attorney’s Trust account
with the
following account details:
Bank
Name: Standard Bank
Account
holder: PJ Mathebula Attorneys Trust Account
Account
number: […]
Branch
Code: 004906
Shift
address: SBZA ZA JJ
12.1.2.
Forthwith comply with the Rule 43 court order on successive monthly
basis;
12.2.
Mr K M is to be incarcerated to prison for a period of 30 days in
terms of paragraph 2 of the Cele AJ court order dated 6
November 2019
if payment of the amount set out in 1.1 above is not made within
seven (7) days from the date of this order.
12.3. Mr K M is ordered
to pay the costs of this application on an attorney client scale
including the costs of appearance on 16
April 2020.
__________
_______________
SENYATSI
ML
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Date
urgent application heard: 16 & 17 April 2020
Date
of Judgment: 06 May 2020
For
the Applicant’s: Adv. E. Sithole
Instructed
by: PJ Mathebula Attorneys
For
the Respondent: Mr. V. Mabe
Instructed
by: Victor Mabe Attorneys