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[2020] ZAGPJHC 215
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A R v M N (26583/2014) [2020] ZAGPJHC 215 (21 September 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
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 26583/2014
In the matter between:
R
,
A
Applicant
and
N
,
M
Respondent
JUDGMENT
HEARD
REMOTELY VIA ZOOM PLATFORM ON 4 SEPTEMBER 2020]
FA
SNYCKERS AJ:
INTRODUCTION
1 I shall refer to the
parties as mother and father. At issue is a familiar story –
mother brings contempt proceedings when
father has, for an extended
period of time, failed to pay any maintenance towards two minor
children, in violation of a court order
that maintenance be paid.
2 The parties were
divorced in 2017 and a settlement agreement that provided for
maintenance to be paid by father towards two minor
children was made
an order of court. The order also regulated contact by father
with the minor children and a mechanism for
dispute resolution in
this regard.
3 Mother alleges, and
there is no proper dispute about this, that, after February 2018,
apart from one payment in August 2018, father
has made no payments at
all in compliance with the court order. At the time the
application for contempt was brought, in
April 2020, the arrears
outstanding amounted to some R540 000. By the time a
supplementary affidavit was filed on 4
August 2020, the arrears were
said to have amounted to some R742 000. In a with
prejudice offer, made on the eve of
these proceedings, father
acknowledged an outstanding indebtedness of just under R500 000.
4 Father has brought a
counter-application, also for contempt. This is based on
alleged non-compliance on the part of mother
with the contact
provisions of the court order.
5 The children were born
in 2011 and 2014 respectively. In terms of the court order,
after transfer of the erstwhile matrimonial
home had been finalised,
father was liable to pay to mother by way of maintenance for the
children the sum of R7 500 per child
month, liable to increase
in terms of the annual CPI. In addition, father was to pay half
of the medical aid expenses, school
fees, tuition fees, school
uniforms and extramurals and various other expenses listed in the
court order that were to be proved
by mother by way of the production
of invoices or vouchers. There was no maintenance payable by
the parties to each other
personally.
6 The dispute resolution
mechanism for purposes of contact entailed the appointment of a
“
parenting co-ordinator”
and the need to refer
disputes to the co-ordinator before they were taken to court.
7 Towards the end of 2017
father started defaulting on the maintenance payments. At the
time, father was employed at an auditors
firm. Mother
eventually applied for an emoluments attachment order and, at the
point when execution was going to be levied,
it emerged that father
was no longer employed at the auditors firm in question. In
February 2018 father paid what at that
stage was the arrear amount of
some R63 000 which at the time cleared all obligations in terms
of the court order. Since
then, however, father failed to make
any payments at all, save for one payment made in August 2018.
The papers are vague
as to the precise quantum of the payment made in
August 2018. It appears from the allegations in the papers, and
from a schedule
prepared by mother and attached to the papers, that
what was paid in August 2018 was one month’s cash maintenance
amount
which by that stage had grown to the amount of R15 600.
8 No other payment of any
kind was made. Father adopted the attitude that he was out of
work and had debts to pay off and
could not afford making any of the
payments. It may be noted that, apart from the proceeds of the
matrimonial home, in relation
to which it was alleged that father
obtained in excess of R1 million, father was also paid the value
of a retirement policy
in a pre-tax amount of some R3.2 million.
These amounts, according to father, were spent, in the period of
about 15 months
during which it appeared, on father’s account,
that he was unemployed.
9 According to a schedule
of alleged income and expenses produced by father in August 2019,
father cleared a net amount of some
R74 000 a month in income.
Father listed numerous creditors and expenses and alleged in August
2019 that he retained
a surplus of only some R2 600 odd per
month. A bank statement indicated that in September of 2019 the
net amount paid
into a bank account as far as salary was concerned
was some R83 000. We know that, by the time the matter
came to court,
in August 2020, father was earning a salary of a gross
amount of R147 000 odd per month, also clearing some R83 000
a
month. In addition, an amount in excess of R10 000 was
paid by his employer into a provident fund for his retirement
savings.
10 One of father’s
expenses entails payments made towards the purchase of a BMW 2
series, 2017 vehicle. Included in
the papers is what purports
to be a “
post-judgment settlement”
between the
vehicle financier and father. The agreement purports to record
that judgment had been taken against father in
respect of his debt
owing on the BMW, when it appears no such judgment had ever been
taken. Be that as it may, the agreement
records that the
financier was to take repossession of the vehicle as the relief
sought in the “
judgment”
and that in order to ward
this off, and because father wished to remain in possession of the
vehicle, he was to pay a monthly amount
in respect of the vehicle to
retain possession. The upshot is that father pays an amount of about
R10 000 a month towards
his ability to drive the BMW and pays an
amount of some R1 900 a month towards insurance on the BMW.
11 There is evidence of
the potential existence of a PPS investment, in relation to which
father has provided no information relating
either to its continued
existence or to its surrender value if any.
12 Father lists various
alleged creditors and loans that he is liable for. He provides
no information about why, when and
how these loans were taken out and
how they interact with his liability to pay in terms of the court
order for the past period
in excess of two years.
13 What is undisputed on
the papers is that father has spent, and continues to spend,
relatively speaking, considerable amounts
of money on online gambling
and some money on online trading. Father alleges that during
the divorce process, he had occasion
to engage in online gambling.
The precise amounts spent on online gambling over a long period of
time are not clear. As considered
further below, it appears that in
the period 2012 to 2015, millions were spent. What does seem clear is
that in a recent five month
period, an amount of some R70 000
was spent by father on online gambling and online trading. This
leaves out of account
a further amount of about R10 000 a month
of cash withdrawals that appear to be unaccounted for.
14 Such interaction
between the parties as is contained in the papers reveals an attitude
on the part of father, particularly during
the time when he said he
was unemployed, that he was hounded by creditors and was unable to
pay for the maintenance of his children
(or to comply with the court
order); he invited mother to take such court steps as she deemed fit
as, if she did so, she would
not see a cent during the period of
father’s lifetime.
15 In answering papers,
father adopted the attitude that he was applying for a reduction in
maintenance from the Maintenance Court
and at first attached unsigned
papers to this effect to his affidavit. He eventually brought
proceedings for a reduction in maintenance
seeking a reduction from
the current maintenance obligations to an amount of R1 000 per
month per child in total.
16 Proceedings in the
Maintenance Court were heard on 3 September 2020, during the motion
week when this matter was heard before
me (remotely). In the
Maintenance Court, the question was argued whether there was
sufficient good cause for a variation of the
maintenance order.
These proceedings have been postponed to October 2020 with the
parties ordered to file papers on 21 and
25 September respectively.
During these proceedings father formally altered his position before
the Maintenance Officer to
allege an ability to pay, and seek a
reduction to, R2 500 per month per child and one-third of the
school fees – the
school fees amount to some R220 000 per
annum for the two children together. One-third of the school
fees would therefore
be an amount of some R75 000 annually, i.e.
some R6 000 per month.
17 Despite adopting the
attitude that he is unable to pay any of the maintenance ordered in
terms of the court order, in this application,
father has not
revealed to the court anything about his asset position. In
fact, he does not even make an allegation on oath
that he has no
assets or has insufficient assets to liquidate to meet the
outstanding arrears. The proceedings do, however,
appear to be
premised on the common cause supposition that there are no
substantial assets to speak of, but there is a monthly
gross salary
of almost R150 000.
ASSESSMENT
18 In my view, on a
conspectus of the evidence before me, father’s position is
extraordinarily brazen. Father earns almost
R150 000 a month.
He insists on continuing to drive a BMW that costs him in excess of
R11 000 a month. He
has his employer put away in excess of
R10 000 a month towards his retirement. He spends some
R13 800 a month on
gambling and online trading. He decides to
prioritise a list of debts, the surrounding circumstances and
provenance of which he
deems it fit not to disclose to the court,
save for details that can be gleaned for a Trans Union report.
His counsel submits
that, on the authority of
Fakie NO v CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), his prioritisation
decisions, albeit perhaps unreasonable, have not been proved beyond a
reasonable doubt to be in bad faith
and, accordingly, he cannot be
said to be in wilful default for purposes of being held liable for
contempt.
Fakie
confirmed the application of the criminal
standard of proof beyond reasonable doubt in applications for
declarations and committal
for civil contempt.
19 I do not believe
Fakie
to be authority for the proposition that a debtor may adopt the
attitude in court, when faced with his undeniable failure to comply
with a money judgment, that his own decision to pay various others,
in circumstances he believes he ought not and need not fully
to
disclose to the court, should be regarded, albeit as “
unreasonable”
,
as not, beyond reasonable doubt,
mala fide
for the purposes of
contempt.
20 Counsel for father
invoked the analogy of
section 31
of the
Maintenance Act 99 of 1998
,
which deals with criminal prosecutions for failure to pay
maintenance. The provision invoked is to the effect that, even
an accused who alleges an absence of means to pay maintenance is
unable to invoke this as a defence if such absence of means is
due
either to misconduct or to an unwillingness to undertake work on his
or her part. Quite how this provision by analogy
should be of
assistance to father in the present circumstances, is not clear to
me. If a criminal defendant in such a case,
who can establish
an inability to pay, based on a true absence of means, is unable to
escape conviction if the absence of means
is due to misconduct or to
an unwillingness to undertake employment, then a man who earns close
to R150 000 a month and decides
it is necessary to keep on
driving the 2 Series BMW can hardly escape a finding of
mala fides
beyond reasonable doubt, purely because he alleges that it is more
important for him to make payments of other debts, than to comply
with the court order.
21 Even if one were to
ignore completely the position in relation to debts, one cannot
ignore the extraordinary fact that father
decides to spend almost
R14 000 a month on gambling and online trading, if one looks
only at what is demonstrable and undeniable
on the papers.
22 What appears to me to
be completely undeniable is the fact that, whatever father’s
true current ability, when it comes
to payment of maintenance and
meeting the court order, he must at least be, to the tune of a
significant amount every month, in
mala fide
contempt. This is
because of his complete failure to pay anything at all, apart from
one payment in August 2018, since February
2018. Even the
amount of R1 000 per child per month as a total amount that he
alleged he was able to afford in March
2020 (which appears on the
face of it to be risible in the circumstances), and was formally used
to ground his application for
a reduction in maintenance, did not
find its way into any bank accounts that had anything to do with
compliance with the court
order. The same can be said for the
amount of R2 500 per month per child and one-third of the school
fees which became
the fall-back position, before the Maintenance
Court – in circumstances where it was not suggested that this
had suddenly
become possible overnight and had not been possible the
day before. I agree with counsel for mother that the reasoning
of
Kollapen J in
JD v DD
2016 JDR 0933 (GP) is apposite: if
father were truly not
mala fide
, one would have expected him
at the very least to have made payment of those amounts that he
alleged he was able to pay in his
application for reduced
maintenance.
THE GAMBLING PROBLEM
23 A troubling aspect of
this matter is the fact of father’s gambling. It is
important to note that it is not father’s
case that he is in
fact unable to pay the maintenance in question, and to comply with
the court order, or, at least that he is
not in wilful default of the
court order, because his will is fundamentally compromised by an
addiction to gambling, such that
he should not be held to be acting
fully wilfully when spending money on online gambling that he should
be spending on complying
with the court order.
24 The gambling
phenomenon is downplayed in father’s papers – it is
certainly not put forward as an excuse, or even
an explanation, for
his failure to comply with the court order. Mother, for her
part, in supplementary papers, had recourse
to a clinical and
educational psychologist, to give generalised advice about father’s
behaviour, in an anonymous scenario
sketched for the psychologist.
We are told of records from the online gambling company revealing
over 35 000 online
bets placed between January 2012 and October
2015 (several years ago) entailing betting millions of Rands with
huge financial loss.
The report yielded by the expert said
various things in general about gambling addictions and was obtained
mainly to support relief
that had been sought at a late stage for a
“
garnishee order”
, in order to intercept salary
payments in relation to the substantial salary earned by father.
25 I shall deal with the
notion of the “
garnishee order”
below.
26 In response to
mother’s expert opinion, father stated the following in a
supplementary affidavit:
“
I have not been
assessed for a gambling addiction nor have I been diagnosed as an
addict. The applicant’s entire basis
for her relief stems
from an opinion of a person who has not even met me. The report
and allegations stemming therefrom stand
to be struck out, and I will
make such application at the hearing of this matter”.
27 I was faced with a
rather curious situation. On the one hand, in the teeth of
apparently undeniable contempt for the court
order, at least in
relation to significant amounts at issue in the order, there is the
undeniable fact that father spends and has
spent considerable amounts
of money gambling. Mother appears to have adopted the attitude,
perhaps somewhat tentatively,
that father is a gambling addict.
Prima facie
, there appears to be potential support for this
proposition in what I see and simply cannot ignore. For his
part, however,
father does not adopt the attitude that he is a
gambling addict and in fact rejects this notion directly in his
papers. I
must therefore take his decisions as deliberate,
which would leave me with no choice but to hold him in contempt.
28 I debated this dilemma
with counsel for both parties. Counsel for father was in a
difficult position. It was not
her client’s case that he
was a gambling addict, yet any support for this notion in the papers
could potentially assist in
a finding that there was reasonable doubt
as to the wilfulness of his failure to comply with the court order.
Counsel acquitted
herself admirably in negotiating this difficulty.
29 The problem is that,
to the extent that there is a real gambling addiction, the prospects
are that a contempt finding and a committal,
conditional upon any
kind of significant compliance with the court order, would likely
yield the ultimate outcome simply of incarceration
of father and
further non-compliance with the court order.
30 But, it was incumbent
upon father at least to meet the court half-way if he wished to put
up the defence of a gambling addiction
as in any way relevant to the
otherwise unavoidable conclusion of his wilful and
mala fide
default. I have nevertheless sought to cater for my remaining sense
of disquiet in this regard in the order that I craft. I do
not
believe it appropriate to direct father to undergo a psychiatric
evaluation. He should be free to decline to do so. But he
should have
the option of doing so and of having the outcome taken into account
by future courts dealing with his contempt, if
any. Mother should be
able to respond to any such outcome too.
31 Mother sought an order
committing father for contempt for a period of twelve months
imprisonment. That would be a most
astonishing period of
committal. Furthermore, the grace period for purging the
contempt was sought at seven days. That,
in the circumstances,
does not strike me as realistic.
32 Nevertheless, in the
current circumstances I cannot avoid a finding that father is in fact
in
mala fide
contempt of the order and ought to be held in
contempt and committed for contempt, conditional upon steps taken to
purge contempt,
as further considered below.
33 Father’s conduct
to date also warrants a punitive cost award. At the last moment, a
with-prejudice offer was made by father,
for certain periodic
payments to commence in several months’ time, which elicited
queries from mother as to its practicalities
and import, which were
ignored. Father’s steadfast attitude in this application was
that he could not pay any part of the
order.
GARNISHEE ORDER
34 Because the notion of
seeking what was called a “
garnishee order”
appeared at a very late stage in the papers, this was resisted
fiercely by father and a postponement was sought to the extent that
this relief was persisted with. I raised the problem with
counsel for mother that I was not sitting as a Maintenance Court
in
terms of
section 28
of the
Maintenance Act and
, although the High
Court would have the competence to direct an employer in appropriate
circumstances to pay money that would otherwise
be paid to an
employee as salary to a creditor, particularly in discharge of an
obligation towards fulfilling a court order, this
would appear to
require the citation and joinder of the employer because it would be
relief directed at the employer. It
became common cause that
such an order could not be granted unless the employer were joined
and given an opportunity to respond
in relation to the
appropriateness of the relief sought.
35 It does seem, however,
that in the present circumstances such an order would make eminent
sense and ought to be obtained.
I provide for this contingency
in the order below.
THIS JUDGMENT, FURTHER
ARREARS AND ONGOING OBLIGATIONS
36 I must stress that
this judgment and order relate only to father’s contempt as at
the time the application was launched,
and what he needs to do to
avoid committal to prison for contempt. He was faced with an arrears
amount of some R540,000 at the
time the application was launched,
which has now grown to about R750,000. He remains in ongoing contempt
of an obligation to pay
the equivalent of in excess of R25,000 per
month pursuant to the order. His current and future maintenance
obligations are, however,
the subject of pending Maintenance Court
proceedings in which he seeks a reduction.
37 Whatever the
Maintenance Court orders in relation to ongoing obligations will be
irrelevant to father’s obligations to
comply with the
conditions set out in the order below to purge the contempt for which
he would otherwise be imprisoned. The periodic
minimum payments set
out below are independent of any ongoing obligations father has, and
will continue to have, to comply with
the order of 2017, and, if such
order were to be varied, to comply with his then current maintenance
obligations.
38 Father should not be
under the impression that, if he does what is necessary to avoid
imprisonment in terms of this order, he
is under no further legal
obligation to comply with the ongoing obligations pursuant to the
order of May 2017 that he is violating.
Nor should he believe that
the smaller amount of arrears he needs to clear in order to purge his
current contempt, to avoid imprisonment,
must in any way be regarded
as an indication of the totality of his indebtedness to date. I
believe it appropriate to peg the contempt
for purposes of the
committal order at the amount of arrears as at the time the
application for contempt was launched. Given the
period set for
purging, there will also be
mora
interest continuing to
accumulate on the arrears amount, even the arrears amount at issue in
this order. Such interest is not compromised
by this order.
39 In short, this order
does not have the effect of compromising or eliminating the
additional amount of arrears that accumulated
since the application
was launched, or any further arrears that might accumulate in future,
whether of capital or of interest.
40 If further violations
of ongoing and additional obligations yield a need for further
contempt proceedings, so be it. Suffice
it to say that father would
be hard pressed, in the event of violation of the conditions to avoid
imprisonment set below, to provide
any justification for not
complying at least with the terms of this order.
THE
COUNTER-APPLICATION
41 The less said about
the counter-application, the better.
42 It is clear from the
papers that father lost interest in the regulation of contact with
his minor children, and failed to take
up appointments with the
parenting co-ordinator that had been arranged in this regard. The
parenting co-ordinator eventually resigned
her position and a
substitute was not appointed. Father took no steps at any stage
to have a substitute appointed.
The most remarkable thing about
the counter-application for contempt is that there is no allegation,
let alone corroboration, of
a single demand on the part of father,
that was unmet by mother, to be afforded contact with his children,
that he was denied.
The counter-application is a cynical tit-for-tat
litigation strategy in response to mother’s application for
contempt.
It is itself an abuse. It warrants a punitive cost
order.
ORDER
43 In the circumstances I
make the following order:
1. The respondent is
declared to be in contempt of the order of this court dated 5 May
2017 incorporating the settlement agreement
dated 27 March 2017, in
particular, clauses 3.2, 3.4, 3.5, 3.6 and 3.7.
2. The respondent is to
be committed to imprisonment for a period of 30 days.
3. The operation and
execution of the order in 2 above are suspended for a period of one
year ending 30 September 2021 on the conditions
set out below:
3.1 The respondent shall,
by 31 October 2020, submit a report, filed with the Registrar and
delivered to the attorneys of the applicant,
in which the respondent
either declares himself unwilling to submit to psychiatric evaluation
in relation to the potential existence
of a gambling addiction, in
respect of which the respondent shall not be obliged to provide any
explanation, or provides a report
from a psychiatrist obtained at the
respondent’s expense, containing an evaluation as to the
extent, if any, to which the
respondent suffers from a gambling
addiction.
3.2 The respondent shall,
by 30 September 2021, have paid to the applicant an amount of R537,
499.
3.3 The respondent shall
pay, towards the payment of R537, 499, a minimum monthly amount
of R30 000, commencing 1 October
2020, and considered on the 1
st
of every month thereafter.
4. In the event of breach
of any one of the conditions set out in 3 above (failure to submit
the report or declaration by 31 October
2020, failure to pay any
minimum monthly amount on any given month, or failure, by 30
September 2021, to have paid the amount of
R537, 499) the
applicant is given leave to approach this court on the same papers,
duly supplemented, seeking to have the
suspension referred to in 3
above uplifted and for the court to authorise a warrant of arrest and
imprisonment of the respondent
forthwith, in execution of the order
in 2 above.
5. The applicant is given
leave, on these papers as duly supplemented, to serve upon any person
or entity as the respondent’s
employer an application for an
order directing such employer to make payment to the applicant,
rather than to the respondent, of
the first R30, 000 per month
that would otherwise be paid to the respondent by way of
remuneration. In this regard:
5.1 any such application
should be served on the employer and on the respondent within a
period of 10 court days after uploading
of this order on Case Lines;
5.2 the employer and the
respondent shall be afforded in such application a period of 10 court
days to oppose and answer any such
application;
5.3 the applicant shall
be afforded a period of five court days to submit a replying
affidavit in relation to such application;
5.4 a date shall be
obtained from the Registrar for such application to be enrolled on
the opposed roll to the extent opposed or
on the unopposed roll to
the extent unopposed.
6. Nothing in this order
shall detract from the continued operation and efficacy of the court
order granted on 5 May 2017 and any
amounts payable by the respondent
in terms of such order.
7. The respondent’s
counter-application is dismissed.
8. The respondent is
directed to pay the costs of the application, including the costs of
the counter-application, on the scale
as between attorney and client.
FA SNYCKERS AJ
21 September 2020
Date
of Hearing: 4 September 2020
Judgment Delivered: 21
September 2020
APPEARANCES:
On Behalf of the
Applicant: L Metzer
Instructed By: Clarks
Attorneys
Johannesburg
On Behalf of the
Respondents: R Blumenthal
Instructed By: Lerena
Attorneys
Edenvale