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[2021] ZAGPJHC 144
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Webb v Webb (17217/2019) [2021] ZAGPJHC 144 (16 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 17217/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE
:
16/2/2021
In
the matter between:
WEBB
HEATHER
ELIZABETH
Applicant
And
WEBB
HEATHER
ELIZABETH
Respondent
JUDGMENT
(LEAVE
TO APPEAL 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 to the electronic file
of this matter on Case Lines. The date
for hand-down is deemed to be
16 February 2021.
SENYATSI
J:
[1]
This judgment concerns leave to
appeal the judgment handed down on 10 December 2020 in
terms of which
the applicant was held to be in contempt of the order for maintenance
of the respondent and her sons pending the
finalisation of the
divorce proceedings.
[2]
The applicant was committed to imprisonment if payment of arrear
maintenance was not
made within a specified period
[3]
The applicant now appeals against the judgment and raises various
grounds that he
contends the Court misdirected itself on facts and
the law to hold him in contempt.
[4]
I had asked, during December 2020 festive season for heads of
arguments to be delivered
by both Counsels. Unfortunately only
Counsel for the respondent was able to provide the heads of argument
before Christmas and
Counsel for the applicant was only able to do so
during January 2021.
[5]
The issue to be determined is whether an appeal lies in respect of
the proceedings
which are connected with a judgement or order that
flows from a Rule 43 order.
[6]
Section 16 (3) of the Superior Courts Act 10 of 2013 (“the
Act”) provides
as follows:
(3)
Notwithstanding any other law, no appeal lies from any judgment or
order in proceedings
in connection with an application-
(a)
by one spouse against the other for maintenance
pendete lite
;
…”
[7]
Counsel for the applicant contends that leave to appeal is in fact
permissible as
the appeal is directed against the contempt order.
[8]
I do not agree with Counsel. It is worth noting that it is not the
first attempt to
appeal the contempt order but probably the third.
[9]
In
S v S
and Another
[1]
,
Nicholls J found that section 16(3) bears a rational connection to a
legitimate government purpose and in denying parties the
right to
appeal, as a consequence section 16(3) was found to have passed
Constitutional master in our Republic.
[10]
Even if I am incorrect in finding that the contempt order issued
following the non-compliance
with Rule 43 order is not appealable,
then in that case, the applicant bears the onus as required by
section17 of the Act to show
that another Court will come to a
different conclusion.
[11]
Section 17(1) of the Act provides as follows:
“
17(1) Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that –
(a)(i)
the appeal would have a reasonable prospect of success;
(ii) there
is a compelling reason why the appeal should be heard including
conflicting judgments on the matter under
consideration.”
[12]
I had already indicated in the judgment appealed against that same
was not appealable. The facts
of this case clearly point at the
applicant’s intent to refuse to comply with the Rule 43 order.
The applicant has come up
with various strategies in an attempt to
disobey the orders of this court and has gone to great lengths,
including getting a friendly
sequestration order that was correctly
set aside by the Western Cape High Court. In all previous contempt of
court proceedings,
he has applied, without success, for leave to
appeal each order.
[13]
Armed with the facts before this court, the question is whether any
other court would have made
a different finding. I am of the view
that the prospect that the appeal would be successful is
non-existent.
[14]
As a consequence, it is my considered view that the applicant has
failed to show that another
court would come to a different
conclusion.
[15]
It follows therefore that the application for leave to appeal the
judgment must fail.
[16]
It is clear to me that the applicant is a man of means and will stop
at nothing to continue with
the abuse of court process. It is evident
from all past contempt orders against the applicant that on each one,
he applied for
leave to appeal and failed. If this is not an abuse of
court process, I fail to understand how else this will be called.
[17]
Consequently, I deem it necessary that I grant a punitive cost order.
In the circumstances it
is more than justified.
ORDER:
[18]
The following order is made:
(18.1) the
application for leave to appeal is refused
(18.2) the
applicant is ordered to pay the costs on a scale between attorney and
client.
ML
SENYATSI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Appearances:
Date of Hearing: 20
January 2021
Date of Judgment: 16
February 2021
Attorneys for the
applicant: Couzyn Hertzorg & Horak Inc.
Counsel for the
applicant: Adv. C. Woodrow
Attorneys for the
respondent: Kim Meikle Attorneys
Counsel for the
respondent: Adv. T. Ternent
[1]
2019
ZACC 22.