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[2021] ZAGPJHC 7
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V.M.S v A.S (12496/2019) [2021] ZAGPJHC 7 (8 February 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case No.:
12496/2019
In
the matter between:
S[....], V[....]
M[....] (BORN M[....])
Applicant
and
S[....], A[....]
Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email.
Gilbert AJ:
1.
This application is about the enforcement of an
order granted in terms of Uniform Rule 43 in terms of which the
respondent was ordered
to pay maintenance to the applicant and for
his three children and which provides him access to his children
including removing
them from the applicant’s residence.
The respondent short-paid R6 000.00 of his total maintenance
obligation of
R27 835.00, which was due on 1 May 2020.
Eighteen days later the applicant launched contempt proceedings
because of this
short-payment. The respondent, a salaried architect,
says that he was unable to pay the full amount because his salary had
been
reduced by his employer because of the Covid 19 pandemic.
The respondent was able to make up the shortfall on 3 June
2020
when he received Covid relief funds. The applicant, who describes
herself as an unemployable housewife, persists in her application
that the respondent be held in contempt and further that should he
again breach his maintenance obligations that he be committed
to
prison.
2.
The respondent has counter-applied for a
declaratory order that the applicant abide the court order in
relation to his access to
his three children. It is common cause that
the applicant did not permit the respondent to remove the children
from her residence
although the order provides for removal. The
applicant seeks to rely on the health risks posed by Covid 19 to
justify her
conduct.
3.
The respondent also has counter-applied for a
temporary reduction in his maintenance obligations for the period
that his salary
has been reduced.
4.
For
the applicant to succeed in establishing that the respondent was in
contempt of the order she would have to demonstrate that
there was an
order, that there was service or notice of the order, that there was
non-compliance with the order by the respondent
and that he did so
wilfully (deliberately) and with
mala
fides
.
[1]
Should the applicant prove the order, the service or notice of the
order and the non-compliance of the order by the respondent,
the
respondent will bear the evidential burden in relation to wilfulness
and
mala
fides
.
Should the respondent fail to advance evidence that establishes a
reasonable doubt whether his non-compliance of the order was
wilful
and
mala
fide
,
contempt will have been established beyond a reasonable doubt.
[2]
5.
There is no dispute that there is an order, that
the respondent had notice thereof and that he failed to comply with
the order by
reason of his short-payment of R6 000.00 for the
month of May 2020.
6.
It is therefore necessary to consider the
evidence on the affidavits to establish whether the respondent has
demonstrated a reasonable
doubt as to whether he wilfully and with
mala fides
failed to
comply with the order.
7.
The facts relied upon by the respondent are
either common cause or not seriously disputed.
8.
Both applicant and respondent stay with their
respective parents, who assist them financially. The respondent also
has financial
assistance from his brother. The three children stay
with the applicant at her parent’s home. Both parents continue
to hold
full parental responsibilities and rights in respect of their
minor children.
9.
The respondent’s maintenance obligations
for the month of May 2020 totalled R27 835.00. Before his salary
was reduced,
it was R35, 722.84. after deductions. This meant that
the respondent paid 78% of his net salary towards his maintenance
obligations.
This is the effect of the order by Bam AJ in the rule 43
proceedings in February 2020.
10.
The respondent explains that he also in May 2020
paid R1 673.00 for cellular phone charges for a cellular phone
that was in
the possession of the applicant and/or his children so
that he could have telephonic contact with his children. If this
additional
amount is taken into account, over 83% of his net salary
was being paid towards his maintenance obligations and exercising his
rights of contact.
11.
It is not surprising that Bam AJ in the rule 43
judgment said of the respondent that the evidence did not
“
characterise him as someone who is
shying away from maintaining his family
”.
12.
The respondent explains that because of the
effect of the national lockdown brought about by the COVID 19
pandemic, his employer
with effect from April 2020 reduced his salary
by some 20% so that he no longer received a net amount of R35 722.84,
but only
R29 110.15.
13.
On
29 April 2020, the same day that the respondent was informed by
his employer of the salary reduction, his attorneys wrote
to the
applicant’s attorneys informing them of this reduction in
salary, recording that he would make payment of his maintenance
obligations but that instead of paying his maintenance obligations of
some R27 925.00,
[3]
he
would be paying R6 000.00 less. The letter attached various
correspondence from the respondent’s employer demonstrating
that application had been made for a suspension of the respondent’s
provident fund contributions and that this should be
approved, and a
reimbursement made of his provident fund contribution, that amount
would be paid to the applicant.
14.
The applicant’s attorneys responded the
next day, 30 April 2020, insisting that the respondent must
nevertheless comply
with his full maintenance obligations under the
order and that full payment was to be made on 1 May 2020,
failing which contempt
proceedings would be launched. The covering
letter to the email records that the applicant’s attorneys were
in the process
of preparing the contempt application and would be
proceeding on an urgent basis to court if the full maintenance
obligation was
not paid.
15.
It bears repeating that on these undisputed
figures, the applicant expected the respondent to pay over some
R27 925.00 of his
net salary of R29 110.00, that is 96% of
what he had earned, leaving for himself an amount of R1, 185.00.
Should the applicant
in addition pay the amount of R1 673.00 in
respect of the cell phone in the possession of the applicant and his
children,
he would be left with no monies.
16.
These figures go a long way in establishing that
there is at least reasonable doubt as to whether respondent wilfully
and
mala fide
breaching the order when he did not make full payment of the
maintenance on 1 May 2020. The amount that was paid over by the
respondent to the applicant on in May 2020 notwithstanding the
reduction in his salary still constituted some 75% of his net income
(81% if the cell phone charges are included). This percentage is in
line with that as was ordered by the court some three months
earlier
in February 2020. Whilst I appreciate that the order has not been
varied to allow for such lesser payment, as these figures
demonstrate, for the respondent not to have breached the court order
he would have had to pay over virtually his entire salary.
17.
In
establishing reasonable doubt the evidence does not end there. Upon
the respondent immediately upon being informed of his
salary
reduction, his attorneys informed the applicant’s attorneys. He
did so even before the payment became due on 1 May
2020. As
undertaken by him in his attorney’s letter of 29 April
2020, he did make payment of that he said he could afford
for May
2020. This is what is expected of a person who is not
mala
fide
.
[4]
The respondent also made good on his undertaking to make
payment of the shortfall as soon as he was able. On 31 May
2020
the respondent received a reimbursement of a provident fund
contribution and on 3 June 2020 also received payment from
the
TERS/UIF relief scheme and paid the shortfall on 4 June 2020.
The respondent was therefore in arrears of a portion of
his
maintenance obligations for May 2020 for little more than a month.
18.
The respondent has also made a sufficiently full
disclosure of his financial circumstances to justify his
short-payment for that
month.
19.
The applicant seeks to counter this compelling
evidence adduced by the respondent why he default is not deliberate
and
mala fide
by
contending that instead of the respondent deducting the shortfall on
his usual salary from his maintenance obligations, he should
have
rather reduced his expenses . This argument is unpersuasive, where
even if the respondent had no expenses at all, which was
not the
case, he was still required to pay over virtually his full salary.
20.
Nevertheless, the respondent persuasively sets
out in his answering affidavit that such expenses he does have cannot
be reduced.
The respondent explains that he still needs to pay his
own medical aid (a decision for which he cannot be faulted in light
of the
raging COVID 19 pandemic, particularly in May 2020), to
pay costs towards his motor vehicle which he explains is used to do
grocery shopping for the applicant and his children and to visit them
as well as to get to and from work in order to earn an income
as well
spend a modest amount of R1 000.00 for his food, fuel and
entertainment when he is with his children. It is difficult
to see
what expenses the applicant expected the respondent to reduce so that
he must pay more than he did for May 2020.
21.
When considering these figures one may wonder
what other source of income the respondent may have given that even
before his salary
reduction, he had very little left for himself in
order to survive. It is common cause on the papers that the
respondent receives
considerable assistance from his family, such as
his parents with whom he continues to stay and his brother who
assists in payment
of legal fees. There is no evidence that the
respondent has some other source of income or assets stored away that
he can draw
upon that would render his failure to make payment of the
May 2020 shortfall as contemptuous.
22.
The applicant submits that the respondent’s
decision to rather pay his lawyers the monies sourced from his
brother instead
of satisfying his maintenance obligations in full, is
demonstrative of a wilful and
mala fide
breach
of the order. This submission is misguided in several respects. It is
not a decision whether to pay maintenance or pay lawyers.
It was the
applicant who launched these contempt proceedings on 18 May
2020. Should the respondent not have engaged lawyers,
he was at risk
of being imprisoned should he have been found in contempt. It was
more accurately a choice as to whether he pay
maintenance or to go to
jail. That the respondent chose to pay his lawyers in these
circumstances cannot be indicative of a wilful
and
mala
fide
breach of the order. There is also no
indication that if he did pay the shortfall that the applicant would
not have initiated or
persisting in her contempt application. The
respondent did pay the shortfall on 4 June 2020 but the applicant
persisted in these
proceedings. It is the applicant who chose to
bring the respondent to court and therefore cannot complain should
the respondent
engage lawyers to effectively defend his liberty.
23.
To the extent that the respondent had to pay
legal fees arising from the earlier rule 43 proceedings, there
too it is was the
applicant who elected to engage the respondent in
litigation. There does not appear to be any indication from the
judgment of Bam AJ
that the applicant received a maintenance
order in favour of her and the children that went substantially
further than what the
respondent was prepared to pay in any event. I
also cannot be blind to the applicant, who describes herself as a
unemployed housewife,
has herself found the resources to pay for
senior lawyers, electing to bring contempt proceedings for a single
short-payment of
maintenance rather than to make use of those funds
to support herself and her children.
24.
The
following passage from Krishnaiyer J
[5]
in the Supreme Court of India in
Jolly
George Verghese and Another v Bank of Coc
hin
[6]
is apposite:
“
The
simple default to discharge is not enough. There must be some element
of bad faith beyond mere indifference to pay, some deliberate
or
recusant disposition in the past or, alternatively, current means to
pay the decree or a substantial part of it. The provision
emphasises
the need to establish not a mere omission to pay but an attitude of
refusal or demand verging on dishonest disowning
of the obligation
under the decree. Here considerations of the debtor's other
pressing needs and straitened circumstances
will play prominently.”
25.
In the
circumstances, I find that the respondent has adduced sufficient
evidence that there is reasonable doubt whether his breach
of the
order was committed ‘deliberately and
mala
fide.’
[7]
26.
The applicant has failed to demonstrate that the
respondent is in contempt and therefore must fail in her application.
27.
The
respondent having purged his default and the applicant persisting in
seeking that the respondent nevertheless be held in contempt
and that
a sentence of imprisonment be suspended provided that he continued to
comply in the future with his maintenance obligations
led to some
debate as to whether such relief was competent in relation to
breaches that had not yet taken place. This led to the
parties, after
I had reserved judgment and at my invitation, uploading additional
submissions and authorities, for which I am grateful.
The applicant
also uploaded an amended draft order relating to the conditions of
the suspension of sentence following a finding
of contempt. The
adaptions made by the applicant to her initial relief by way of this
draft order appears to be informed by the
judgment of Snyckers AJ
in
A
R v M N
[8]
in which the court specifically provided for the applicant to return
to court on the same papers duly supplemented for the upliftment
of
the suspension of the sentence of imprisonment in the event that the
respondent again breached the order. But as I have found
that the
respondent is not in contempt, the issue as to formulation of an
appropriate sentence and the suspension thereof need
not be
considered.
28.
The respondent contends that the application was
an abuse and seeks costs on an attorney and client scale. The
respondent gave notice
in his answering affidavit that such a costs
order would be sought.
29.
The
evidence adduced by the respondent was largely known to the applicant
before she launched her contempt proceedings. To the extent
that such
evidence was not available, it was included in the answering
affidavit. Although the respondent had purged his breach
of the order
by 4 June 2020 and had explained his default in his answering
affidavit, the applicant persisted in seeking that the
respondent be
held liable for contempt for his default in May 2020.
[9]
30.
The sudden onset of the COVID 19 pandemic
caused widespread suffering and financial distress, and still does,
to many, including
the parties in this matter. The applicant has not
disputed substantively any of the evidence adduced by the respondent
in relation
to the effect of the Covid-19 pandemic on his salary, yet
persisted in the contempt application.
31.
The applicant’s insistence that the
respondent pay over virtually his whole salary notwithstanding the
reduction in his salary
demonstrates, in my view, a remarkable
callousness.
32.
The applicant’s immediate response to the
respondent’s advices that he would not be able to pay the full
maintenance
obligation for May 2020 because of the reduction in his
salary was to adopt a particularly belligerent approach, threatening
the
respondent with contempt. The applicant made good on her threat
and within eighteen days launched these contempt proceedings. The
need for parties to constructively engage with each other is
intensified in midst of the COVID 19 pandemic. It is evident
from the correspondence from the applicant’s attorneys as well
as the affidavits in these proceedings that the applicant
had no
desire to engage constructively with the respondent. This
notwithstanding that Uniform Rule 41A expressly required of her
together with her application to serve upon the respondent a notice
indicating whether she agreed to or was opposed a referral
of the
dispute to mediation.
33.
The applicant’s founding affidavit is
terse. The terseness of her affidavit is perhaps understandable in
circumstances where
she need only demonstrate that there was a court
order, that the respondent had notice thereof and that he had
breached the order.
But what cannot be so easily excused is her
persistence in the application after receipt of his extensive
answering affidavit,
the factual contents of which she does not
substantively challenge.
34.
What also weighs against the applicant in the
exercise of my discretion whether to accede to the respondent’s
request to grant
a punitive costs award, is the detailed judgment
handed down by Bam AJ in the Rule 43 proceedings.
35.
It was the applicant who approached the court for
that rule 43 order. it was the applicant that attached the judgment
to her contempt
application. Yet, when that judgment is read, it is
clear that the applicant did not take any appreciable cognisance of
what was
said in that judgment before launching the present contempt
proceedings.
36.
Bam AJ in concluding on the applicant’s
claim for interim maintenance:
“
To
conclude the point on maintenance required for the children and the
applicant, there is evidence that the respondent already
pays a
substantial amount towards the family’s expenses. That his
means cannot meet all that the applicant demands simply
suggests that
the applicant has a choice to either tone down the family’s
expenses drastically to a level commensurate with
the family’s
income or begin looking at ways to generate income.
”
37.
The applicant contended in her rule 43
proceedings that although she has a degree in architecture, she
describes herself as unemployable
because she had not written her
professional exams. The applicant also sought to justify why she
could not be expected to seek
employment. This did not find favour
with the court who rejected the notion that she was unemployable and
that she should “
also step up efforts to
find employment
” and that “
it
might be that she will start at a low base, probably not in her line
of training, but that will still assist with some of the
family’s
maintenance requirements
”.
38.
No evidence was adduced by the applicant in these
proceedings of any attempts to find employment.
39.
Bam AJ continued in the judgment:
“
Shorn of
verbiage, and what I conclude are incautious demands made by the
applicant, she wants to be paid money so she can control
her own
life. I formed this view after carefully reading the papers. I have
already noted that the respondent’s bank account
and his
payslips do not characterise him as someone who is shying away from
maintaining his family. In addition to what the respondent
pays on a
monthly basis, applicant seeks the whole of respondent’s
monthly income. It is on this basis that I am inclined
to refuse
applicant’s request for contribution towards legal costs.
”
40.
The applicant has not given any regard to what
has been stated in the judgment as she persists in making “
incautious
demands
” that the respondent pay over
virtually his entire salary. This has been demonstrated in my
analysis of the figures.
41.
Bam AJ then continues in the judgment as
follows:
“
At this
point I am compelled to note my observation before I consider the
issue of access arrangements. The entire theme coming
across from
reading applicant’s papers is that the only outcome she will
accept is where everything she desires is acceptable;
anything else
is rejected. It is this all-or-nothing attitude that must have stood
in the way of resolving what would otherwise
have been a relatively
simple question of trading-off direct cash into applicant’s
bank account viz-a-viz payment to service
providers. The entire
pursuit of respondent including the present application, is born out
of applicant’s push for a lifestyle
that the respondent cannot
afford. He could not afford it when they were still living as a
family, and still cannot afford it now
as they are separated. Quite
simply, the applicant has painted herself as an unreasonable person
.”
42.
In my view, these findings made by Bam AJ in the
preceding rule 43 proceedings between the same parties are
materially relevant
in relation to a consideration of an appropriate
costs order. The applicant has continued to demonstrate herself as
being unreasonable,
having an all-or-nothing attitude and of
continuing to reject anything else other than what she desires.
43.
The applicant continues to be represented by the
same attorneys, who would have paid close attention to the judgment
of Bam AJ.
Although the applicant’s counsel has changed,
the applicant is represented by experienced senior counsel. I must
therefore
accept that the applicant’s legal practitioners in
the discharge of their duties towards the applicant brought to the
attention
of the applicant what had been stated in the judgment of
Bam AJ and that their instructions nevertheless remained to
launch
and persist in the contempt proceedings.
44.
In the circumstances, I am prepared to accede to
the respondent’s request that costs be granted against the
applicant on an
attorney and client scale.
45.
Turning to the respondent’s
counter-application, I deal first with his request that his
maintenance obligations be temporarily
reduced.
46.
I am not inclined to do so, not because the
respondent may not be able to make out a substantive case for such a
reduction, but
rather on the basis that this may not be the
appropriate forum to do so. Although the applicant submitted that it
was not for this
court to do so and that the respondent was obliged
to seek a variation of the order as expressly provided for in Uniform
Rule 43(6)
or to approach the maintenance court for the appropriate
relief, in respect of which I make no finding, this court does not
appear
to be possessed of all that which is relevant or which the
parties may wish to put before me to substantiate or oppose such a
reduction.
For example, the world has moved on since the exchange of
papers in this matter, even after the filing of supplementary
affidavits
in December 2020, and the respective positions of the
parties as to their income and expenses is not before the court. For
example, it is not clear from the papers as to whether the respondent
still has a salary reduction, and if so, the extent of that
reduction
and whether such reduction will be made up by way of various relief
payments, such as TERS payments and/or suspension
of provident fund
contributions.
47.
I turn to the respondent’s
counter-application for an order effectively enforcing his access
rights in the order by way of
declaratory relief. The rule 43 order,
which the applicant insists in her contempt application be honoured
to its full extent in
relation to the respondent’s maintenance
obligations, also provides that the respondent is entitled to certain
rights of
access. Apart from the callousness described above in
relation to the applicant’s decision to launch contempt
proceedings,
her approach towards her obligations in respect of the
respondent’s access also demonstrates double-standards on her
side
when it comes to obeying the order.
48.
This includes the right of the respondent to
remove the children from the applicant’s home to exercise
conduct every weekend
on either Saturday or Sunday, on an alternating
basis, for a period of six hours, from 10h00 to 16h00.
Notwithstanding that that
is what the order provides, the common
cause evidence demonstrates that the applicant through her attorney
in May 2020 refused
contact in the form of permitting the respondent
to so remove the children. The reason given is the applicant’s
fear that
such removal would unnecessarily expose the children to the
COVID-19 virus.
49.
On the common cause evidence the applicant is in
breach of the court order.
50.
The
respondent has chosen not to bring contempt proceedings. The
respondent is entitled to is to pursue alternate relief for purposes
of enforcing the order, such as by way of a declarator.
[10]
This is what he has done in the present instance.
51.
The
relevant regulations that were in place at the time permitted the
movement of the children within the same metropolitan area
or
district municipality if the co-holders of parental responsibilities
and rights were in possession of a court order.
[11]
52.
The applicant’s justification for breach of
the order can therefore not be founded upon any statutory prohibition
that would
have prevented compliance with the order.
53.
It was not surprising, in my view, that at the
commencement of the hearing the applicant’s counsel sought to
downplay the
applicant’s failure to comply with the order by
proffering an undertaking on the part of the applicant that the
applicant
would abide the order in respect of maintenance and
therefore submitted that the relief sought by the respondent was
unnecessary.
A similar approach had been adopted by the applicant in
her supplementary affidavit filed on 14 December 2020 in which
she
stated that given the relaxation of the lockdown regulations from
what was in place in May 2020, that the relief was “
now
moot
”.
54.
Firstly, as appears above, at the time the
lockdown regulations did not preclude compliance with the order.
55.
Secondly, on the evidence before me the issue is
not moot. The respondent delivered a substantial supplementary
affidavit on 21 December
2020 (the applicant having filed a
supplementary affidavit on 14 December 2020) describing the
applicant’s continued
conduct in frustrating his rights of
access under the order. The applicant elected not to respond to those
averments.
56.
At the
time of this matter being argued and this judgment being prepared,
the regulations in place are those for “
Adjusted
Level 3
”.
[12]
These do not appear to provide for any restrictions on the movement
of children other than the general restrictions on movement.
It is
uncertain what the future holds in relation to what regulations may
be in force to combat the COVID 19 pandemic.
57.
The
respondent has adduced sufficient evidence to demonstrate the
applicant’s continued frustration of the order,
[13]
and that therefore he is entitled to relief to enforce his access
rights under the order and to bring certainty to the situation.
The
applicant has demonstrated herself to be unreasonable and the
respondent need not be satisfied with a belated undertaking by
the
applicant to abide. It is not for the applicant to second-guess what
the regulations may provide as to the movement of children
and when
there is an order in place affording the respondent rights of access.
58.
Apposite
is
the
following
dicta
of
ROMER, L.J., in
Hadkinson
v Hadkinson
,
[14]
'Disregard
of an order of the Court is a matter of sufficient gravity, whatever
the order might be. Where, however, the order relates
to a child,
the Court is, or should be, adamant on its due observance. Such an
order is made in the interests of the welfare
of the child, and the
Court will not tolerate any interference with or disregard of its
decisions on these matters.'
59.
It remains open to the applicant to seek a
variation of that order in the appropriate forum.
60.
In the
circumstances, I am prepared to grant the respondent’s
declaratory relief that the applicant complies with the access
order,
[15]
subject to such
COVID 19 regulations as may be in place at the time of
exercising access.
61.
Insofar as costs of the counter-application are
concerned, the respondent seeks costs on the ordinary scale. Although
the respondent
did not succeed in his counter-application for a
temporary reduction in his maintenance obligations, I am nonetheless
of the view
that he did have substantial success in his
counter-application in relation to enforcing the order in respect of
his rights of
access. Accordingly, he is entitled to the costs of his
counter-application.
62.
The following order is made:
62.1.
the applicant’s application is dismissed,
the applicant to pay the costs on an attorney and client scale.
62.2.
It is declared that the respondent is authorised
to exercise contact with the minor children as specified in the order
dated 11 February
2020 including to remove the three minor
children from the applicant’s residence and the applicant is
obliged to comply with,
and is directed to comply with, the order,
subject only to such restrictions on movement as may be provided for
under the
Disaster Management Act, 57 of 2002
and the Regulations
pursuant thereto from time to time.
62.3.
The applicant is to pay the costs of the
counter-application on a party and party scale.
Gilbert AJ
Date of
hearing:
27 January 2021
Date of judgment:
8 February 2021
Counsel for the
Applicant:
S Nathan SC
Instructed
by:
Jacqueline Ellis Attorneys
Counsel for the
Respondent:
C J Smith
Instructed
by:
Leoni Attorneys
[1]
Fakie NO v CCII
Systems (Pty) Limited
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 9 and 10.
[2]
Fakie
above
at para 42; and applied in the context of enforcing an interim order
in matrimonial proceedings in
Dezius
v Dezius
2006 (6) SA
395
(T) at para 17 and 18.
[3]
Depending
upon which figures in the affidavits are used, there are calculation
differences of a few hundred rands but these differences
are not
materially relevant for present purposes.
[4]
Per Kollapen J in
D v
D
[2016] ZAGPPHC 368
(16 May 2016)
[5]
With
Pathak J concurring.
[6]
[1980]
INSC 20
([1980]
2 SCR 913)
at 921 - 2 (SCR), as cited with approval
in
Dezius
above in para 28.
[7]
Although
wilfulness (i.e. whether the order was disobeyed deliberately) and
mala fides are separate requirements (
Clement
v Clement
1961 (3) SA 861
(T) at 866A), it is unnecessary on the facts in the
present instance to precisely delineate whether or not the
respondent’s
breach was wilful (deliberate), as there is at
least reasonable doubt whether the breach, even if deliberate, was
mala
fide
.
[8]
[2020] ZAGPJHC 215 (21 September 2020)
[9]
Although
applicant in a supplementary affidavit filed in December 2020
produces a schedule of subsequent shortfalls in maintenance
payments
over the period June to November 2020 (but which same schedule shows
that the respondent soon makes up any shortfall),
the applicant’s
counsel, justifiably, confined the contempt application to the May
2020 shortfall as that was the case
sought to be made out in the
founding affidavit.
[10]
Fakie
above para 42.
[11]
Regulation 17(1)(a)
of the regulations issued in terms of
section
27(2)
of the
Disaster Management Act, 2002
, Government Notice No.
43258 of 29 April 2020.
[12]
Published
on 11 January 2021, Government Notice 44066.
[13]
Bearing
in mind that the onus of proof is that of a balance of
probabilities, as the declaratory relief sought by the respondent
is
civil in nature.
[14]
1952
(2) A.E.R. at p. 571 as cited with approval in
Kotze
v Kotze
1953 (2) SA 184
(C) at p 187, and also in
Clement
v Clement
1961 (3) SA 861
(T) at 865H
.
[15]
Clement
at
867C and F as an example where the respondent was ordered to abide
the order.