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[2020] ZAGPJHC 247
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M T v T H and Another; In Re: M T v T H (10211/2020) [2020] ZAGPJHC 247 (2 October 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
NUMBERS:
10211/2020
In
the matter between:
M
T
Applicant
and
T
H
First
Respondent
NATIONAL
COMMISSIONER OF
POLICE
Second
Respondent
In re
M
T
Applicant
and
T
H
Respondent
JUDGMENT
De
Villiers AJ:
[1]
This matter came before me in urgent court.
[2]
In issue is contempt of court proceedings
where the imprisonment of Mr T H, further referred to as “
the
first respondent
” herein, was
ordered. Yacoob J ordered the imprisonment of the first respondent
for contempt of court for non-payment of
an order made by Vally J.
[3]
The realty is that this matter has been in
the urgent court about twelve or thirteen times since the end of
April 2020, as far as
I could determine. In issue is the non-payment
of maintenance and contempt of court proceedings. At no stage has a
writ of execution
been issued. Initially the purpose of the many
applications was to imprison the first respondent. The focus has now
shifted to
imprison the Commissioner of Police too.
[4]
In all these cases, the applications were
brought on very short notice, usually enrolled for less than a week
after issuing (not
mentioning service), with insufficient time to be
answered and the answer replied to before the hearing. As a result,
the requirement
in the Practice Manual (Para 9.23.18) that when an
urgent application is brought for a hearing on the Tuesday at 10h00
(the default
time), the applicant must ensure that the relevant
papers are filed with the Registrar by the preceding Thursday at
12h00, could
not be complied with in any of the cases (that I had
access to).
[5]
The further requirement in law, and as set
out in the Practice Manual, that the applicant “
must
provide a reasonable time, place and method for the respondent to
give notice of intention to oppose the application and must
further
provide a reasonable time within which the respondent may file an
answering affidavit
”, that “
the
date and time selected by the applicant for the enrolment of the
application must enable the applicant to file a replying affidavit
if
necessary
,” and that “
deviation
from the time periods prescribed by the rules of court must be
strictly commensurate with the urgency of the matter as
set out in
the founding papers
”, were all
seemingly ignored.
[6]
Seemingly in no case was service effected
by the Sherriff, or the failure to make use of the Sherriff,
explained. One must bear
in mind that personal service is required in
terms of immemorial practice, and now too in terms of the Practice
Manual too (Para
9.19) in cases of contempt of court.
[7]
Over time many judges signalled their
dissatisfaction with the approach of the applicant and repeatedly
struck matters from the
roll. Unperturbed, the applicant would enrol
an application again, sometimes on the same day, not supplemented to
explain the past
events, or in several cases, not explaining to the
recipient what was being re-enrolled. It is exceedingly difficult to
ascertain
what matter was purportedly re-enrolled, unless one has
knowledge of what was before the court, what was struck from the roll
and/or
withdrawn.
[8]
I address these matters in the order that I
make. I also address further contempt proceedings in the order that I
make. I do so,
as it is predictable from the history that I set out
below, that more contempt proceedings will follow. It seems also to
be necessary
to compel the applicant to follow due process. I am in
no way unsympathetic to the applicant. Her case is that she is in
need of
maintenance, maintenance that the respondent does not pay.
This does not justify the jettisoning of due process aimed at
imprisonment.
[9]
In
order to obtain an order to imprison the first respondent and/or the
Commissioner of Police for contempt of a court order, a
court has be
satisfied beyond reasonable doubt of four matters:
[1]
[9.1]
the existence of the order;
[9.2]
that the order was duly served on, or
(duly) brought to the notice of, the respondent;
[9.3]
there must be non-compliance with the
order; and
[9.4]
the non-compliance must be wilful and
mala
fide
.
[10]
The last requirement
wilful
and
mala fide
non-compliance could be inferred from the failure by the respondent
to appear to state why he did not comply with the order.
See
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 42:
“
[42]
To sum up:
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an 'accused person', but is
entitled to analogous protections as are appropriate to
motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala fides) beyond reasonable doubt.
(d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides: Should the respondent fail to advance
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities
.”
[11]
As these are motion proceedings, they have
to be adapted to constitutional requirements, to offer analogous
criminal law protection
especially for the inference of wilful and
mala fide
non-compliance to be drawn. One requirement is already built into the
Practice Manual, personal service.
In
criminal proceedings, the rights of an unrepresented accused have to
be explained. This includes of explaining to that person
the effect
of failing to put a version to a witness and/or to dispute evidence
by a witness. The same should hold true for contempt
of court
proceedings.
A respondent should be advised
of the consequences of a failure to appear at the hearing of the
application in which imprisonment
is sought and/or the failure to
provide reasons (in these cases) for non-payment or non-arrest of the
first respondent.
This is of particular
importance where the respondent may be too poor to afford legal
representation and may have no knowledge of
an inference to be drawn
from silence.
A further analogous
protection to be borrowed from criminal law, would be that the
respondent should be advised of the availability
of free legal
representation by the entities that provide such services. At present
in this court include Legal Aid South Africa,
the law clinics of the
two universities in Johannesburg, and ProBono.Org. It also seems to
me that arrest only on the strength
of a warrant of arrest would be a
further analogous safeguard to due process. Lastly, the court would
have to decide if direct
imprisonment is the appropriate remedy, if a
suspended sentence is appropriate, or if the appropriate order is
that the police
must arrest the respondent and bring the respondent
before a court for an enquiry..
[12]
All
cases dealing with urgency, must be read in the context of the time.
For instance, our well-known
Luna
Meubels
[2]
was decided in a time when access to court on the normal court roll
in a very short time as possible (good law as it undoubtedly
still
is). Similarly, judgments of the 1980’s, 1990’s and
2000’s were given when access to court in a very short
time on
the normal court roll, was possible. These matters differ between
divisions. Longer periods for enrolment, may require
greater
flexibility in the urgent court to ensure access to justice but this
does not mean a rough-and-ready approach is permissible.
There is a
belief that all contempt of court matters are so-called “
inherently
urgent
”.
Under this reasoning, adequate time for a respondent to obtain legal
representation, take advice, put up a defence, and
prepare for a
hearing, are often jettisoned. Nothing could be farther from the
truth. These matters require appropriate time limits,
dependent on
the facts of each case. If ignored, they too stand to be struck from
the roll.
[13]
The summary of findings earlier herein
about the litigation instituted by the applicant, was prepared from
my attempts to put together
a chronology of events from those
documents I could gain access to. The records are incomplete.
[14]
The applicant and the first respondent were
married, and were divorced before Mabesele J on
09
October 2018
. The first respondent had
to pay maintenance for two minor children in the sum of R29 707.95
per month, plus an annual escalation.
The day of the month when
payment had to be made, was not stipulated. The parties also agreed
to share “
variable costs
”
for the children. Later the
first
respondent would state that his attorneys at the time let him down,
that unbeknown to him he was barred from pleading, and
that he did
not know of the order.
[15]
On
20 August
2019
the applicant obtained a dismissal
by default of appearance of an application brought by the first
respondent to vary the maintenance
order. The order was granted by
Dlamini AJ.
Later the first respondent
would state that his attorneys at the time let him down.
[16]
On
20 April
2020
the applicant issued an
application to be heard on
28 April 2020
for the following relief:
“
1
Directing
that this matter be dealt as one of urgency in terms of Rule 6 (12)
of the Rules of this Court;
2
That the Respondent is in contempt of the court order granted by
Justice Mabesele on 09 October 2018 marked “A1”,
for
failing to pay maintenance towards the children;
3
The sheriff be authorised to attach only monies in the Respondent’s
bank accounts (FNB, Account Number: … and FBN,
Account Number:
…) necessary for the payment of the maintenance in the sum of
R29 707.95;
4
The Respondent to pay the costs, on a punitive scale
.”
[17]
The amount of
R29
707.95 may have been stated in error, as more seems to have been in
issue, in fact R229 444.05 was alleged to be due if variable
expenses
were considered too. Coppin J seems to have struck the matter from
the roll
on
28
April 2020.
[18]
There appears to have been a re-enrolment
or re-enrolments of the matter on
7
May 2020
and/or
on
8 May 2020
,
which notice necessarily must have been issued on or after
28
April 2020
. It is not clear what
happened on
7 May 2020
and/or on
8 May 2020
.
[19]
There then appears to have been a
re-enrolment of the matter for hearing on
12
May 2020
, when Francis J seems to have
struck the matter from the roll. This necessarily means that the
notice was issued at the earliest
on
7
May 2020
.
[20]
There appears to have been a re-enrolment
of the matter for hearing on
19 May
2020
, or a new application may have
been issued.
On 15 May 2020 the first
respondent served an answering affidavit thereto. Relevant is that
the first respondent alleged that he
had no income, as his business
had taken a change for the worse. He alleged that he paid what he
could afford, being a minimum
of R18 300.00 per month, excluding
certain rental income of R15 000.00 per month. He also alleged that
he had no knowledge of the
maintenance payment ordered when the order
of divorce was granted. It is not clear what happened on
19
May 2020
.
[21]
Somehow a matter came before Vally J. The
first respondent was represented before Vally J. It is not clear if
it is the matter of
19 May 2020, or a new matter.
It
may have been a new matter as
Vally J
issued an order on
1 June 2020
:
“
1
The respondent is to pay the applicant the sum of R50 000.00 on or
before 10 am on 5 June 2020
2
The respondent will continue to pay the applicant the sum of R50
000.00 each month for a further period of eleven months from
the 1
July 2020 which amount shall be paid on the first working
day of the
month.
3
The respondent will after twelve months from the date of this order
continue to pay the applicant the amount referred to in paragraph
4
of the order of Mabesele J dated 9 October 2018.
4
Each party shall pay its own costs
.”
[22]
On
10 June
2020
another urgent application
followed, enrolled for
17 June 2020
:
“
1
Directing that this matter be dealt as one of urgency in terms of
Rule 6 (12) of the Rules of this Court;
2
That the Respondent is in contempt of the court order granted by
Justice Vally on 01 June 2020 marked "A1 ", for failing
to
pay maintenance towards the children on 05 June 2020.
3
Direct the South African Police to immediately arrest the respondent
and commit him for six month for being in contempt of the
above
mentioned court order.
4
The Respondent to pay the costs, on a punitive scale
.”
[23]
It seems that this matter did not make it
to a court roll on
17 June 2020
.
On
22 June 2020
notice of
another
urgent hearing followed, enrolled for
30
June 2020
:
“
TAKE
NOTICE THAT the Applicant apply to this Court that the matter be
re-enrolled at 10h00 on 30 June 2020
.”
[24]
Attached thereto was the 10 June 2020
application. This matter seems to have been struck from the roll by
Mahalelo J.
[25]
On
2 July 2020
notice of
another
urgent hearing followed, enrolled for
7
July 2020
:
“
TAKE
NOTICE THAT the Applicant apply to this Court that the matter be
re-enrolled at 10h00 on 7 July 2020
.”
[26]
This matter seems to have been struck from
the roll by Twala J on
7 July 2020.
[27]
On the same day,
7
July 2020,
notice of another urgent
hearing followed, enrolled for
10 July
2020
:
“
TAKE
NOTICE THAT the Applicant apply to this Court that the matter be
re-enrolled at 10h00 on 10 July 2020
.”
[28]
It seems that Yacoob J granted the
following order on
10 July 2020
:
“
1
The matter is urgent.
2
The respondent Is in contempt of the court order granted by Justice
Vally on 1 June 2020 marked “A1";
3
The Respondent is ordered to purge the order marked A1 by paying the
sum of R 100,000.00 to the Applicant within a day of the
service of
this order;
4
Should the Respondent fail to comply with the order in paragraph 3
above, the South African Police Service in the Republic of
South
Africa is ordered to arrested the Respondent being in contempt of the
order marked A1 and this order, on the first court
day alter failure
to comply with paragraph 3 above.
5
Upon his arrest the Respondent must show cause why he should not be
committed for 30 days.
6
The Respondent is ordered to pay the costs of this application.
7
The Applicant is directed to serve this order immediately by way of
message to the respondent's cellphone number, as well as by
any email
address the respondent may have, and to ensure personal service on
the respondent
.”
[29]
On
8
September 2020
an
urgent application was issued, to be enrolled for
15
September 2020
. The
second respondent was stated to be “
National
Commissioner of Police Khehla John Sithole
”.
The relief sought was:
“
1
Directing that this matter be dealt as one of urgency in terms of
Rule 6 (12) of the Rules of this Court.
2 The Second Respondent are in
contempt of the order marked A4.
3 The Second Respondent lake
steps, necessary to purge the contempt of the order marked A4 within
2 days of this order;
4 The Second Respondent to file
affidavit within 5 days explaining why he should not be arrested and
committed for being in contempt
of the order marked A4.
5 The Second
Respondent to pay punitive costs
.”
[30]
The document contained no proof of service.
The founding affidavit contained no proof of compliance with
paragraph 7 of the order
by Yacoob J. Instead the applicant stated:
“
On 17
July 2020, I served the police at the Booysens Police Station with
the Judge Yacoob's order and to enable them lo effect the
arrest of
the First Respondent
.”
[31]
On
14
September 2020
the applicant withdrew
an application. The document has the heading “
notice
of withdrawal
” and it reads:
“
TAKE NOTICE THAT the Applicant
withdraw the urgent application in the above matter
.”
The document contained no proof of service, and did not contain an
offer to pay wasted costs.
[32]
On
17
September 2020
followed a new notice of
motion and its annexures. It was an urgent application and was
enrolled for
22 September 2020
.
The second respondent was stated to be “
National
Commissioner of Police Khehla John Sithole
”.
The relief sought was “
the second
respondent be joined to these proceedings
”.
What relief would be sought once joined, was not stated. The document
contained no proof of service.
[33]
On
18
September 2020
followed a document with the heading “
Urgent
Application: Amended Notice of Motion
”.
It was said to be enrolled for
22
September 2020
. It
was not preceded by a notice of intention to amend. The document
contained no proof of service. The additional relief sought
(excluding urgency and the joinder of the second respondent) was
that:
“
3. The
second respondent be compelled to take steps, necessary to comply
with the order marked A4 within 2 days of this order and
arrest the
first respondent;
4. The second
respondent to pay punitive costs
.
”
;
[34]
I later learnt that
this matter was struck form the roll by Strydom J on
22
September 2020
.
[35]
On the same day,
22
September 2020
the
applicant prepared a document with the heading “
Notice
of Re-Enrolment
”.
It reads: “
TAKE
NOTICE THAT the applicant apply to this Court that the matter be
re-enrolled at 10:00 on
29
September 2020
.”
What application was re-enrolled, was not stated. The document
contained no proof of service. The respondents had to deliver
answering affidavits by 28 September 2020.
[36]
I took over in urgent
from
inter alia
Strydom J late on 23 September 2020. I noticed that in the electronic
file was a certificate of urgency prepared by attorney Marweshe
on 24
September 2020. The document did not disclose that the application
was struck from the roll the previous week by Strydom
J on 22
September 2020. Attorney Marweshe was duty bound to bring this fact
to my attention, but he failed to do so. Also in the
file were a
practice note and a draft order. The Draft order sought slightly
different relief to the relief set out in the notice
of motion of 17
September 2020 or the purported amended notice of motion dated 18
September 2020. The differences are not material
for present
purposes, but should have been brought to my attention. The file
contained an affidavit of service by attorney Marweshe
dated 28
September 2020.
[37]
The application(s) were not served on the
first respondent. The affidavit contains no proof either of
compliance with the order
by Yacoob J. Service on the State Attorney
was defective too. A note by the state attorney relied upon setting
out e-mail addresses
for service, also contains a request that they
be phoned when documents are served by e-mail. Compliance with this
request was
not alleged.
[38]
As there was no
compliance with the order by Yacoob J, the police could not have
arrested the first respondent. In addition, no
case for an amendment
of the Notice of Motion dated 17 September 2020 has been made out. In
addition, the applications before me,
were not properly served. It
semes to me that the appropriate remedy is not another round of
confusing supplementary documents.
[39]
In the premises I make the following order:
1.
The applications dated
17 and 18 September 2020, are struck from the roll with costs;
2.
The applicant is ordered to serve by
Sherriff the following court orders on Mr T H, further referred to as
“
the first respondent
”,
unless a court on application authorises alternate or substituted
service-
2.1.
The order dated 1 June
2020 by Vally J;
2.2.
The order dated 10 July
2020 by Yacoob J; and
2.3.
This order;
3.
The applicant may not
seek the imprisonment of the first respondent contempt of court for
non-payment under a court order-
3.1.
Unless ten days have
expired after compliance with paragraph 2;
3.2.
Without having obtained
a warrant of arrest and providing the original of such warrant to the
police for execution,
unless a court on
application orders the variation of this paragraph;
4.
The applicant is
prohibited from enrolling an application in which it seeks to join
the police to this matter and/or compel the
police to arrest the
first respondent for contempt of court for non-payment under a court
order-
4.1.
Unless ten days have
expired after compliance with paragraph 3;
4.2.
The application is
served by the Sherriff on the police at its head office not less than
ten days before the hearing,
unless a court on
application orders the variation of this paragraph;
5.
The applicant is
prohibited from enrolling an application in which it seeks a further
order against the first respondent for contempt
of court for
non-payment under a court order -
5.1.
The application is
served by the Sherriff on the first respondent not less than ten days
before the hearing;
5.2.
The applicant has duly
adapted the notice of motion to to constitutional requirements,
offering to analogous protection as applicable
in criminal law
appropriate to motion proceedings,
unless a court on
application orders the variation of this paragraph;
6.
The applicant is
ordered to not to enrol an urgent application unless-
6.1.
The times for the
delivery of the answering and replying affidavits have elapsed, by
Thursday 12H00 of the week preceding the enrolment
of the urgent
application;
6.2.
The applicant has fully
complied with this Court’s Practice Manual and Practice
Directives for the enrolment of urgent applications,
unless a court on
application orders the variation of this paragraph.
_____________
DP de Villiers AJ
Heard
on:
29 September 2020
Delivered
on:
2 October 2020 electronically, by e-mail and by uploading on
CaseLines
On behalf of the
applicant: Mr. MW Marweshe of Marweshe Attorneys
[1]
See
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Shadrack
Shivumba Homu Mkhonto and Others v Compensation Solutions
(Pty)
Limited
[2017] ZACC 35
para 75.
[2]
Luna
Meubels Vervaardiges (Edms) Bpk V Markin And A (t/a Makin’s
Furniture Manufactures)
1977 (4) SA
1035
W.