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[2010] ZAGPPHC 160
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W.M v B.J.M (58324/09) [2010] ZAGPPHC 160 (7 October 2010)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NUMBER:58324/09
DATE:
07/10/2010
M,
W
...........................................................................................................
APPLICANT
And
M,
B
J
.........................................................................................................
RESPONDENT
JUDGEMENT
TLHAP1.
J
[1]
This
is an opposed application where the applicant seeks the following
order, that:
1
.
It
be declared that the Respondent is in contempt of the Order issued in
this Honourable Court under case number, 31881/2008.
2.
the
Respondent be sentenced to jail for a period of 60 (sixty) days,
alternatively, such sentence be imposed by this Honourable
Court as
this Honourable Court may deem just in respect of the contempt
3.
the
entire sentence imposed by the Honourable Court be suspended upon
such terms and conditions as the Honourable Court may deem
just
including the compliance by the Respondent of his obligations arising
from the Order issued under case number
31881/2008
and
the immediate payment of all arrears owing in respect of the Order.
4.
the Respondent be ordered to pay costs hereof:'
The
application was served on the respondent on the 22 September
2009
and
he filed his answering affidavit four months later, on the 22 January
2010.
The
matter had been postponed sine die at the instance of the respondent
who also paid the wasted costs.
THE
FACTS
[2]
The parties were married to each other out of community of property
with the incorporation of the Accrual System. No children
were born
of their marriage. Pursuant to a Rule
43
application
the respondent was ordered to pay:
1.
maintenance
to the applicant in the sum of
R15
000.00
per
month on or before the first day of every month, the first payment to
be paid on or before
1
September
2008;
2.
that
the respondent retain and pay for medical premiums payable in terms
of the applicant on his medical aid scheme;
3.
a
contribution towards costs in the sum of
R3
500.00;
[3]
Although
the respondent paid maintenance as ordered for the months September
2008
to
February
2009
he
failed to pay such maintenance timeously. He further failed to pay
maintenance as ordered for the months March to September
2009
and
was as a result in arrears in the sum of R105 000.00 Again, the
respondent was in arrears with his payment of the medical aid
premiums on behalf of the applicant in the sum of R5 499.00 and as a
result the medical aid lapsed. Furthermore, the respondent
had failed
to make any contribution towards costs as ordered by the court.
[4]
The applicant requested the respondent to supply the court with
the following information, in the event of him opposing
this
application:
'
1. Full particulars of his income and expenses for the past
twelve months:
2.
Copies
of his latest credit card and banking statements for the past twelve
months;
3.
Copies
of the financial statements in respect of any entity of which
respondent has a right title and interest therein;'
Subsequent
to the launch of this application and on the 20 November 2009 the
respondent paid a sum of R11
5
000.00
for arrear maintenance and R3 500.00 in respect of contribution for
costs.
[5]
The respondent a businessman, denied that he was in contempt of
the court order. While not denying his liability he averred
that his
failure to pay maintenance and medical aid premiums was due to a
material change in his business and to his financial
circumstances.
Due to his problems he forgot to make any contribution towards costs.
He approached his attorney to explain his
steadily deteriorating
financial circumstances and he was advised to continue to pay. if not
from his income, then from his net
assets. He was never informed that
he could approach the court to vary the order. At the time of
deposing to his affidavit he was
receiving no income. He had stopped
trading as B
J
Powder
Coatings in September 2008. Despite lawful demand his collection
agent had not been able to recover any monies from a client
who owed
him a sum of R560 000.00 He owned 6 vehicles, together valued at R150
000.00 and a vehicle stand which was not bonded
and which had a
market value of about R900 000.00. The stand was put up for sale. Due
to his dire financial circumstances he could
not provide any
information in the form of income and expenditure statements because
his transactions were for cash and he had
failed to keep proper
records. He was also being sued for the sum of R100 00.00 by his
former landlord for outstanding rent and
costs in this matter could
total about R50 000.00.
[6]
The respondent annexed a few bank statements to his answering
affidavit:
1.
Gold
Card statement for the period 20 December 2008 to 20 January 2009; He
owed R1
5
743.74
this statement showed that he was in arrears with the payment and
payment of R2 451.58 was expected by the 14 February 2009.
2.
ABSA
credit statement for the period 27 September to 29 October 2008. The
balance owing was R20 221.92 and credit available was
R5 328.08.
3.
ABSA
cheque account for the periods 3 November to 2 December 2008 and 3
December 2008 to 2 January 2009
[6]
The respondent averred further that the applicant had withdrawn a
sum of R203 000.00 from their joint account without his
permission
and that she had to account regarding his share. He contended that
she could have used his share to make up for his
failure to pay
maintenance. His credit cards were drawn to the limit, his bank
account was closed and the bank refused to give
statements as they
intended litigating against him. He could not give any income and
expenditure statements. He annexed copies
of his current credit cards
and a copy of a bank statement dated December 2008, the latter
account had been closed.
[6]
Annexures 'X1 to X4' of the replying affidavit showed that the
respondent had access to income at the time at which payment
for
maintenance should have been made. Contrary to his explanation
regarding B J Powder Coatings a delivery note of B J Tools &
Engineering CC showed that the respondent was still trading as B J
Powder Coating. Regarding the R560 000.00 debt, the applicant
established that Poseidon Design was the customer referred to. She
contacted the said customer and they acknowledged to the applicant
that they had made payment and had signed an acknowledgement for the
outstanding amount.
[7]
The applicant denied that the respondent was without income
because the respondent had been trading under BEC Engineering
and
further that he held other accounts with ABSA not revealed to the
court.
THE
LAW
[8]
The approach to civil contempt proceedings was set out in Fakie v
CC11 Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 344 H-C:
"
(c) the applicant must prove the requisites of contempt (the
order,; service or notice; non-compliance; and wilfulness
and
mala
fides),
beyond
a 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 a reasonable doubt:'
[9]
The existence of the order, and non compliance which was admitted
by the respondent, are common factors. What remains to
be established
is whether the non-compliance by the respondent of the order of the
court, was wilful and
mala
fide.
There
was compliance with the order, though not timeously from September
2008 to February 2009 then followed the payment on the
20 November
2009 for the months March 2009 to September 2009 and payment for the
contribution of costs. Any facts relating to the
ability of the
respondent to pay could not be speculated upon by the applicant. It
is my view that in order to prove wilfulness
and mala fides the
applicant had to show that during this time there were sufficient
funds from which payment could have been made,
and that despite
demand the respondent failed to make any payment. If these facts were
proved then respondent's contempt could
have been established beyond
a reasonable doubt.
[10]
The
conduct of the respondent and his ability to honour the court order
could be determined from the bank statements and his explanation
regarding the state of his business and the reason why he failed to
bring an application to vary the order. It was not sufficient
for the
applicant to only allege that the respondent had an income, without
providing the necessary information from which the
court could
establish such fact. The fact that the availability of funds was
addressed in paragraph five of the replying affidavit
does not take
the matter any further, the issue is whether the applicant proved
that non-payment was wilful and mala fide. It was
evident from
paragraph fifteen of the founding affidavit that in order to succeed
applicant would have relied on the information
she was hoping to
source from the respondent in the form of bank, credit and financial
statements in order to prove her case and
in as far as these could
have been disputed, a dispute of fact would have arisen. The issues
addressed in the replying affidavit
regarding respondent's creditor
Poseidon Design and the proprietorship of BEC Engineering do not
prove that there were monies available
to the respondent which would
have enabled him to honour the court order. I am of the view that the
respondent's evidence established
reasonable doubt that the
non-compliance was wilful and mala fide.
[11]
In
the result, the application is dismissed with costs.
TLAHAPI
VV
JUDGE
OF THE HIGH COURT