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[2020] ZAGPJHC 364
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W[....] v W[....] (17217/2019) [2020] ZAGPJHC 364 (10 December 2020)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:17217/2019
REPORTABLE:NO
OF INTEREST TO
OTHER JUDGES: NO
REVISED
DATE:
10/12/2020
In
matter between:
W[....] H[....]
E[....]
Applicant
And
W[....] C[....]
R[....]
Respondent
JUDGMENT
(URGENT
CONTEMPT OF COURT APPLICATION)
Delivered: This judgment
was prepared and authored by Judge ML Senyatsi and is handed down
electronically by circulation to the
Parties/their legal
representatives by email and by uploading it electronic file of this
matter on Case Lines. The date for hand-down
is deemed to be 10
December 2020.
SENYATSI
J:
[1] This is the third urgent
civil contempt of Court application brought on an urgent basis. The
application
is opposed by the respondent. The first application which
was brought on an urgent basis, was before Mdalana Mayisela J
on
25
June 2020
and
was granted. The second
urgent
application was
brought
before
Fisher
J on 3 August 2020 and judgment was granted
in
favour of the
applicant.
[2] Both contempt applications
were related to the Rule 43 order granted by Carelse J on 21
February
2020 in terms of which the respondent was ordered to pay maintenance
of R40 000 per month plus other related expenses
and costs including
a directive that the applicant and the parties two sons, T[….]
and R[….] W[….] be permitted
to continue residing at
[….] The order is provisional pending the final determination
of the divorce between the parties
and I may add that the order is
not appealable.
[3] At the
hearing of this application, the respondent had not paid maintenance
for October 2020 and related expenses. The November 2020 payment has
at the time of this judgment become due and payable together
with the
related expenses.
[4] The
previous civil contempt orders directed that the respondent be
committed to imprisonment
if he failed to make payments as ordered.
The respondent issued a counter-application also on an urgent basis.
He contends that
he is not in wilful default to fulfil his
obligations in terms of the existing Rule 43 Order. He slates that
since June 2020, and
following the order by Mdalana Mayisela J,
has been ord
e
red not to
dis
s
ipate his assets. This he
argues, makes
it difficult
for him to sell the assets lo raise the required amount
to fulfil his maintenance obligations.
Furthermore, he argues that he has been provisionally sequestrated,
the consequence of which
Is that his must be handed to
the trustee who must then deal with the assets. It should be
mentioned at this stage
that Counsel for the applicant submitted that
the applicant is Interviewing In the provisional sequestration as she
was not served
with the
papers.
[5]
The
respondent furthermore argues in his counter-application
that this contempt of court application should be postponed
and the
oral evidence should be led as
he
believes there
is
a
material
conflict of
facts which
cannot be dealt with on papers. The applicant, in opposing the
counter-application, states that the applications not
urgent and that
In any event, the defence raised in the main application is not
sustainable as the respondent has not applied
for
variation of the
existing
Rule 43 order.
[6] There is no doubt that the
main application Is urgent. The very purpose of a Rule 43 process
is
to speed up and ensure that the needs of those dependants on the
support provider and catered for pending the final determination
of
the divorce.
[7] The parties were
married to each other on 23 February 1991 and their marriage still
subsists. Their marriage regime is out of community of property which
excludes accrual system as contained in their ante-nuptial
contract.
They enjoyed a high standard of living prior to the breakdown of the
marriage.
[8] The
applicant filed for divorce during May
2019. The divorce proceedings have not been finalised and are
defended by the respondent
who filed a counter-action in terms of
which he prays for the decree of divorce without a tender
for
maintenance
for
the
respondent and
their
two
major sons
who
have
a medical condition known
Interstitial
Cystitis.
The applicant contends that the
medical condition makes It impossible for their two sons to function
normally and therefore they
cannot be gainfully employed.
[9] The
respondent applied for an interim maintenance order which was granted
during February
2020 in terms of Rule 43. The order arose as a result
of the respondent’s failure to tender maintenance of the
applicant
and the two sons.
[10] The interim
maintenance order was not complied with forcing the applicant to
obtain a contempt
order on 25 June 2020 before, Mdalana-Mayisela J.
It should be mentioned that Mdalana- Mayisela J’s order also
included an
anti dissipation order as the respondent was intent
on dissipating some of his assets before the final determination of
the
divorce. He contended in those proceedings that he wanted to
raise money to meet his maintenance obligations.
[11] The second order not
having been complied with, the applicant approached this court
for
a second contempt order.
Fisher
J granted the order on 3 August 2020 and ordered the respondents to
comply and imposed an imprisonment term in the event
of failure to
comply. The respondent brought all arrear maintenance up to date,
ending September 2020
.
[12]
When
he failed to continue with the monthly maintenance payments , this
resulted in this third civil contempt application before
me.
[13] Before the 3 August
2020 order was complied with or immediately thereafter, the
respondent was
provisionally sequestrated by one of his co-directors
who claims that he is owed money. I will show later that the related
company
that brought the sequestration application is controlled by
one person with the interest in the divorce proceedings of the
parties.
[14]
It
should also be remembered that one of the claims the
applicant makes in the divorce proceedings, is an order declaring
that a universal partnership exists between the parties and an order
that the partnership be dissolved on divorce and that the
benefit
arising therefrom be shared between the parties.
[15] In the face of the
divorce proceedings, the respondent gave a special power of
attorney to one Mr Van Zyl (“Van Zyl”) his
business associate and
presumably
a friend to draft all papers related to the divorce on behalf of the
respondent. This is common course between the parties.
It should be
stated that Van Zyl is a lay person, over 70 years of age and is
knowledgeable in law. The respondent states that
his attorney Mr
Bruyns (“Bruyns”) was “post box” as
all papers were drafted by Van Zyl. Fisher J
asked for a written explanation from Mr Bruyns about the role of Mr
Van Zyl in the
divorce. This directive was given on the 11th November
2020 following a divorce judicial case management. It is not
surprising
that the counter-application is voluminous as it was
presumably drafted by Van Zyl. It should also be stated that Van Zyl
claims
to have stopped drafting the papers during August
2020.
[17]
The applicant contends that the respondent is engaged in a
stratagem to frustrate the Rule 43 compliance order. I agree with
this
contention. If regard is had to the use of Van Zyl as the
drafter of all divorce papers as well as the various Rule 43 contempt
applications, it is clear to me that Van Zyl has a vested interest in
the outcome of the divorce and the efforts of the respondent
to
frustrate the enforcement of the rights of the applicant. This is
borne out by the email exchanges between the respondent, Van
Zyl and
the other directors in terms of which Van Zyl is praised for
frustrating and driving the applicant and her legal team to
the wall.
The emails are quite revealing to this stratagem.
[18]
The respondent has submitted that he is not in wilful default
of the court order as he cannot genuinely comply therewith due to the
change in his financial circumstances owing to his unemployment as
well as his provisional sequestration. This contention is without
merit as it is not new and has been raised in all the previous
contempt applications. The change is financial circumstances is
simply a facade used to avoid making payment.
[19]
The so-called unemployment of the respondent is in my view,
contrived. The author of the letter that is dated January 2020 is Mr
Van Zyl, who has a vested interest in the divorce proceedings and all
contempt applications brought by the applicant. The letter,
in any
event, was disclosed for the first time in this third contempt
application and no the explanation is provided by the respondent,
why
it was not disclosed in all the previous applications. The so-called
unemployment by the respondent Is therefore rejected as
a stratagem
to avoid fulfilling his maintenance obligations to the applicant and
their two major sons.
[20] The respondent furthermore
contends that because of his provisional sequestration, he was not
able to deal with his as the trustee was now in charge.
During the hearing of the application, I was informed that
the
applicant had Intervened in the provisional sequestration and that
the return date thereof was 26 November 2020.
[21] The provisional sequestration
order was argued before Papier J in the Western Cape High Court
sitting in Thembalethu and the applicant was granted leave to
intervene and the provisional sequestration order was discharged
extempore on 26 November 2020. As a consequence, I am of the view
that the provisional sequestration order was part of the stratagem
to
frustrate the applicants’ attempts to enforce her rights in
terms of Rule 43.
[22] It is common cause that the
provisional sequestration was only disclosed to the applicant for
the
first time at the maintenance Court on 24 August 2020. I am of the
view that when the respondent brought the maintenance complaint
as he
did in Gauteng, he was under the impression that once he disclosed
the provisional sequestration order to the maintenance
officer, the
Rule 43 order would be varied. The complaint was only withdrawn once
the maintenance officer became aware of Fisher
J’s judgment. It
has not been denied that the respondent did not co-operate with the
applicant about the details of his creditors
in the provisional
sequestration order. What is interesting from the reading of the
papers is that the creditor, RBK Batebestuur
(Pty) ltd is a related
entity to Mr Pretorius one of the respondents' friends with a keen
interest in the divorce proceedings.
This so-called provisional
sequestration was a veiled attempt by the respondent to avoid
complying with the maintenance obligation
in terms of Rule 43.
[23]
The respondent
contends in his papers that there is a material dispute of fact which
must be referred to oral evidence. I do not
agree with the
contention. The purpose of Rule 43 Is to expeditiously and quickly
decide the application on the papers. This is
to ensure that redress
is afforded to the
party in
need
of maintenance pending
the determination of the divorce. Referring this application for oral
evidence will
frustrate the
chief purpose of Rule 43.
[24] The respondent also
contends that he has been subjected to the
gross
injustice by the courts. The contention is without any legal and
factual
basis. In my
respective view, the respondent is engaging in abuse of court process
by simply ignoring the order to pay maintenance
based on unfounded
reasons. He is using every the proverbial trick in the book to avoid
payment and this must be stopped.
[25] When regard is had to
the various communications intercepted by
the
applicant between the respondent and Van Zyl, Reddell and Pretorius
and in particular where all four state how Van Zyl: “
..has driven them (the applicant and
her
legal
representatives)
to
the
extent
that
they
have
lost
focus
and
had
dropped the
ball
many
times
and
that
you
are
driving
them
crazy.
Well
done. H[....] will be paying for each one
of those emails,”
it is hard not to see
through the veil that these are various strategies to frustrate the
applicant and ensure that she does not
receive her maintenance in
terms of the Rules 43 order.
[26] I do not doubt that
the respondent has embarked on finding every possible excuse to avoid
meeting
his obligations. In my view, the discharged provisional
sequestration order was one of those means considered and
orchestrated
by the respondent to justify his refusal to comply with
the court order to pay maintenance pending the final determination of
the
divorce proceedings.
[27] The applicant has
clearly set out the manner in which the respondent has sought to
diminish and
terminate his income stream. This is by getting himself
“fired” from the company he controls and even selling his
shares
for a nominal
amount to a company
associated with his friends. These steps are in my view contrived and
a sham. The decline of the respondent’s
Income started since
the divorce proceedings and It Is not surprising that this Is now the
third contempt of order application.
[28] Although in his
defence the respondent alleges material disputes of facts, he simply
either refuses
or avoids dealing with the serious allegations against
him by the applicant. He has not been able to deal with the
uncontested
facts on his income but simply denies the averment
without offering any explanation. The ever-declining income of the
respondent
since the commencement of the divorce proceedings is
nothing but a scam to avoid paying maintenance.
[29] The letter by Van Zyl
to the respondent and Reddell where Van Zyl accuses them of gross
abuse
of their positions as directors is nothing but contrived. I say
so because from the papers it is clear that Riddell continues to
be
employed by Spineco as
its
bookkeeper while only the respondent is relieved of his position as a
director and the only one who lost his employment. There
is still
a good relationship between Van Zyl and the
respondent.
[30] With regards to the
report by Ms Ancer (“Ancer”) which is dated 30 August
2020, I
find the report not helpful to this court. The report simply
suggests that “
there was no evidence of
malingering and no reason to doubt Mr W[....]’s
credibility” .
This is of course a
repetition of what the respondent has submitted, not only before this
court but to all previous courts where
the contempt applications were
heard. The expert that Ancer is, has had only one consultation with
the respondent and I doubt that
she has had ample time to consult
with the respondent. As a consequence, it is doubtful how she could
have determined that the
respondent was remorseful, fearful, suffered
hand tremors, depression, discomfort and irritability after one
consultation. Ancer
did not make any contact with the applicant to at
least assess both parties. The respondent offers no explanation as to
how he
paid the shortfall for the assessment provided by Ancer and
how he will afford the recommended treatment.
[31] The respondent has
not addressed his relinquishing his majority 51% shareholding in
[….].
It is undisputed that he offloaded 29% of his equity to
a Van Zyl for R1.00 each and ceded the balance of his equity to
Pretorius.
These are the two individuals with on interest in the
divorce proceedings between the respondent and the applicant. It Is
not difficult
to see that the disposals are nothing but a seem. They
ere not arm’s length business transactions and cannot in my
respectful
view, offer refuse to the alleged change in financial
circumstances of the respondent.
[32] When regard is had to the manner
that the respondent is litigating, it is clear to me that he
has the
means and the ability to afford to pay the maintenance as ordered by
Carelse J. His failure to adhere to the order is nothing
but a
complete disdain of the court’s authority and respect.
[33] Therefore I am of the view that
the respondent Is acting
mala fides
in failing to meet his
maintenance obligations.
[34] In
Mthimkulu
&
Others
v Mohamed and Others
[1]
,
Classen J stated the requirements of a civil contempt as follows:
“
Civil
contempt
requires proof beyond
a
reasonable
doubt of
(i)
the existence of
the court order:
(ii)
service of the order upon the respondent or that
the respondent had knowledge thereof;
(iii)
That non-compliance
was
wilful and mala fide.
The rationale for this requirement is to prevent committal (loss of
liberty) to be established preponderously
rather than conclusively.
”
[35] It
is a crime to unlawfully and intentionally disobey a court order.
[2]
A contempt of court may be adequately defined as an injury committed
against a person or body occupying a public judicial
office, by which
injury the dignity
and
respect which is due to such office or its authority in the
administration of justice is intentionally violated.
[3]
[36] The
civil contempt procedure is therefore 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
require ments.
[37]
Once the applicant has proved the order, service or notice, and non
compliance,
the respondent bears an evidential burden concerning
wilfulness and
mala
tides.
Should the
respondent fail to advance evidence that establishes a reasonable
doubt as to whether non-compliance was wilful and mala
fide, contempt
would have been established beyond reasonable doubt.
[38] I have no doubts, on
a full consideration of the evidence before me that the applicant has
proven
that the respondent’s failure to comply with the Rule 43
order for the months of October and
November
2020 was wilful and
mala
fide.
[39]
The reasons advanced by the respondent such as the
alleged unemployment, lack of ability to deal with his assets owing
to the existing
anti-dissipation order, and the discharged
provisional are sequestration order are a stratagem to ensure
non-compliance with the
existing court order. As a consequence, the
respondent has failed to adduce evidence that his non-compliance with
the order was
not wilful or
mala
fide.
[40] In regards to the
counter-application brought by the respondent, I make the
determination that
the respondents’ counter-application is not
urgent. I say so because all that the respondent in the main prays
for is a declaratory
order that there is a material conflict of facts
and that the current contempt order should be postponed
sine
die
pending the determination of the counter application
and that the contempt of court proceedings be stayed until the final
determination
of the dispute and the divorce proceedings. Therefore
there is no urgency in the counter-application and consequently, it
is struck
from the roll with costs on the scale as between attorney
and client. The punitive cost order is imposed on the grounds that
the
respondent is abusing the court process.
[41] In regards to the costs
de
bonis propriis
against Mr Bruyns, I am of the view that Mr Bruyns
has not been given sufficient notice to address this court on why the
cost
de bonis propriis
should not be imposed against him. I am
mindful of the fact that there is still a pending explanation to be
made to Fisher J on
the role of Van Zyl in drafting the necessary
papers for the respondent. There has not been evidence led on what
his response is
on the directive. Consequently, no order will be made
against him to pay the costs
de bonis propriis.
[42] The respondent in this instant is
engaged in a serious abuse of court process by not complying
and
honouring the dignity of this court. As a consequence, this court has
an adverse view of his behaviour as he is clearly a man
of means. An
appropriate punitive cost order is therefore justified to be imposed
on the main application before this court.
ORDER:
[43]
The following order is made:
[43.1] The application is deemed as urgent and the Rules
relating to the forms, notice and time periods are dispensed with, to
the
extent necessary in terms of Rule 6 (12) of the Rules of this
court;
[43.2] The respondent, C[....] R[....] A[....] W[....]
Is held in contempt of the court order granted by Carelse J on 21
February
2020 under case number 17217/2019;
[43.3] The respondent Is to pay the following within
seven (7) days of the granting of this order;
43.3.1 arrear maintenance
pendente lite
for the month of
October 20 in the sum of R40 000 to the applicant;
43.3.2.
The outstanding direct expenses including:
43.3.2.1 the mortgage bond in respect of the
[....] matrimonial home for September and October 2020;
43.3.2.2. the [....] levy
including security for September and October 2020;
43.3.2.3.
the
[....] rates, taxes, electricity, refuse and all other
municipal levies for September and October 2020, including
the amount
of R6 071.10 in respect of arrear electricity paid for by the
applicant to be reimbursed to the applicant together with
the sum of
R1300.00 for the pre-paid water charges;
43.3.2.4. maintenance of
the swimming pool currently in the sum
of
R5 704 as per the Lex Pools quotation dated 13 October 2020;
43.3.2.5
the levy including security Landsdowne property
management
fees in respect of [….] property for October 2020
in the sum of R 2 860.00 plus any interest due and
R6132.49;
43.3.2.6 the rates,
taxes, water, electricity, refuse and all other municipal levies in
respect
of the [….] for September and October 2020;
43.3.2.7
maintenance for the [….] property in the sum of R 3 187.44;
43.3.2.8.
the DSTV premium bouquet re-installed and the monthly premiums be
paid
and proof thereof be furnished to the applicant.
43.3.2.9. Telkom,
including telephone, ADSL and internet for September and October
2020;
43.3.2.10. the Momentum Health Medical
Aid premiums for the applicant and the two major children
for October
2020 and excess aid fees due to the applicant in the sum of R2
710.05;
43.3.2.11. household contents insurance
and homeowners insurance for September and October 2020;
43.3.2.12. payment of
the salary of the domestic helper, Maria Riphinga, that was
due on 30
September 2020 to be reimbursed to the applicant
43.3.2.13. refund the
applicant the salary of the gardener Collen Mutorinho in
the sum of
R1 200.00;
43.3.2.14. veterinary
expenses in the sum of R 1 454.50 such sum is to be reimbursed
to the
applicant;
43.3.2.15.
Robert W[....]'s outstanding university fees in the sum
of R14
905.00 and
43.3.2.16. Robert
W[....]'s arrear student accommodation for the months of
September and October 2020 amounting to R11 928.00.
[43.4.]
To
the extent that at the hearing of this application, the respondent
has breached the Rule 43 court order and failed to pay the
maintenance due and direct expenses for November 2020, the respondent
is ordered to pay maintenance and the expenses as set out
in
paragraph 43.1 for November 2020 to include Maria
Riphinga and Collen Mutorinho’s October and November 2020
salaries;
[43.5.] A warrant of arrest is to be issued
forthwith committing the respondent to imprisonment for contempt of
court
for a period of six (6) months. The said warrant shall only be
executed if payments as set out above are not made within seven (7)
days from the date of this order.
[43.6.] Costs on the scale as between
attorney and client.
ML SENYATSI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT,JOHANNESBURG
Appearances :
Date of Hearing: 16
November 2020
Date
of Judgment: 10 December 2020
Attorneys for the
Applicant: Kim Meikle Attorneys
Counsel
for the Applicant: Adv. T Ternent
Attorneys
for
the
Respondent:
Couzyn
Hertzorg& Horak Inc.
Counsel for the Respondent:
Adv.C Woodrow
[1]
2011 (6) SA 147 (GSJ)
[2]
See S v Beyers 1968 (3) SA 70 (A)
[3]
See Fakie NO v CCII Systems Ltd 2006 (A) SA 326 (SCA)
at para 6