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[2010] ZAGPPHC 236
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G.J.F v S.L.D.H and Another (6073/2000) [2010] ZAGPPHC 236 (9 December 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 6073/2000
DATE: 09/12/2010
IN
THE MATTER BETWEEN:
G
JF
.............................................................................................................................................
APPLICANT
AND
S
L D
H
...................................................................................................................
FIRST
RESPONDENT
THE
SHERIFF OF THE COURT:
SANDTON
..........................................
SECOND
RESPONDENT
IN
RE:
S
L D
H
.....................................................................................................................................
APPLICANT
AND
G
J
F
.........................................................................................................................
FIRST
RESPONDENT
THE
SHERIFF OF THE COURT:
SANDTON
........................................
SECOND
RESPONDENT
TURQUISE
MOON TRADING 309 (PTY)
LTD
.......................................
THIRD
RESPONDENT
JUDGMENT
KOLLAPEN, AJ
[1] The applicant and the
first respondent became married to each other on 21 March 1992. Two
minor children were born of the marriage,
a son named D in 1995 and a
daughter named A in 1997.
[2] On 22 August 2002 the
applicant and the first respondent were divorced by an order of this
court and in terms of the order of
divorce the written settlement
agreement entered into between the parties was made an order of
court.
[3] In terms of the
settlement agreement custody of the minor children was awarded to the
first respondent subject to the applicant’s
reasonable rights
of access. In addition the settlement agreement provided that the
applicant was to pay maintenance at the rate
of R5000-00 per month
per child escalating annually at the consumer price index rate. In
addition the applicant was to pay for
all the educational and medical
expenses incurred in respect of the minor children.
[4] Following the divorce
the parties appeared to have had ongoing problems and disputes that
related to the payment of maintenance,
timeousness and the adequacy
of such payments as well as well as issues relevant to the parenting
of the children including decisions
related to their upbringing and
wellbeing. It is not necessary for the purposes of this application
to document that dispute or
to offer any comment or view with regard
to such dispute save to say that if progressively became intense and
acrimonious.
[5] On 15 April 2010 the
first respondent caused a warrant of execution in the sum of R303
154-62 plus interest and costs. to be
issued out of this court for
arrear maintenance and non-compliance with their divorce order.
Following the issuing of the warrant
the second respondent attached
certain goods from the home of the applicant and belonging to the
applicant. In consequence of the
attachment, a company Turquoise Moon
Trading 309 (Pty) Ltd (the third respondent) claimed ownership of the
goods attached by the
second respondent.
[6] The applicant as a
consequence of the issuing of the writ and the attachment effected by
the second respondent has brought an
application in which he seeks
that: -
“
1.
The warrant of execution issued out of this Honourable Court under
case number 6073/2000, is set aside.
2. Alternatively to prayer 1
above, the warrant of execution issued out of this Honourable Court
under case number 6073/2000, is
stayed pending the final adjudication
of an action to be instituted within 30 days of the date of this
order.
3. Further alternatively to
prayers 1 and 2 above, the warrant of execution issued out of this
Honourable Court under case number
6073/2000, is stayed pending the
final adjudication of this application.
4. Directing that the First
Respondent pays the costs of this application on a scale as between
attorney and client.
5. Directing that the second
respondent, in the event of its opposition to this application, to
pay the costs of this application
on the scale as between attorney
and client, jointly and severally with the first respondent, the one
paying the other to be absolved.”
[6] The first respondent has
opposed the application and the relief sought and has brought a
counter application in which she seeks
an order in the following
terms:
“
1.
Declaring the applicant (in convention) to be in contempt of Court in
that he has and is continuing to deliberately, intentionally
(wilfully) and in
mala
fides
breach
the maintenance provisions in paragraphs 4 and 5 of the order of the
above Honourable Court handed down by His Lordship Mr
Justice
Stafford on 27 August 2002 in case number 6073/2000.
2.
Committing the applicant (in convention) to imprisonment for a period
of six months, or such other period as the above Honourable
Court may
deem fit,
further
alternatively
imposing
a suspended sentence on the applicant (in convention) on such terms
as the Court may deem fit.
3. Joining Turquoise Moon
Trading 309 (Pty) Ltd as the third respondent in these proceedings.
4.
Ordering the second respondent (in convention) to proceed with the
sale in execution of goods attached pursuant to the warrant
of
execution issued by the registrar of the above Honourable Court on 15
April 2010;
alternatively
to
proceed with the sale of those goods which belong to the applicant.
5. Ordering the applicant
(in convention) and/or the third respondent to pay the costs of this
applicant on an attorney and own
client scale.”
[7] The applicant’s
contention in seeking the relief he seeks is that following changes
made by himself and the first respondent
to the residency
arrangements in respect of the minor children which changes became
operative from March 2008 until about June
2009 his liability to pay
the maintenance provided for in the court order of 27 August 2002 had
been varied by agreement between
himself and the first respondent.
He further contended that in
terms of the change of residency arrangements reached in March 2008
the parties agreed to have the
minor children with them for alternate
weeks. In addition there was a further mediated agreement with regard
to a new payment regime
insofar as it related to the payment of
maintenance in terms of which regime the applicant would not be
required to pay any maintenance
directly to the respondent but
instead would cover all expenses incurred in respect of the
maintenance of the minor children and
make such payments directly to
third parties or in appropriate instances to service providers and
the children. In this regard
it appeared that the parties were
assisted by one Charles Cohen a mediator with expertise in the area
of family law.
[8] The
respondent’s contention was that even though there may have
been changes to the residency arrangements insofar as
it related to
the minor children it did not absolve the applicant from complying
with the express provisions of the court order
and settlement
agreement of the 22
nd
of August
2002 relating to maintenance payments. In this regard it was the
respondent’s stance that to the extent that the
written
agreement of settlement provided that there would be “save for
the above, the provisions of this agreement shall
not be capable of
being varied (save by a court of competent jurisdiction), amended,
added to, supplemented, novated or cancelled
unless this is contained
in writing and signed by both parties”, any oral or informal
arrangement was of for no force or
effect and not binding on the
parties.
Alternatively the first
respondent contended that even if there was a variation that it only
applied in respect of a trial period
of August 2008 to November 2008
and that at best the applicant would be absolved from paying
maintenance for the three months (August
2008 to October 2008) and
the warrant of execution, if incorrectly issued, was only incorrect
to that extent and that extent only.
[9]
ISSUES
FOR DETERMINATION
At the hearing of this
matter the following issues arose and were identified as relevant in
the determination of the dispute between
the parties.
(a) Condonation of the late
filing of the applicant’s replying and answering affidavits.
These affidavits were filed out of
time and the application for
condonation was opposed by the respondent.
The relief sought in respect
of condonation for the late filing of the applicants replying and
answering affidavits was granted
but the question of costs in respect
of such application was held over until the final determination of
the application in its
entirety.
(b) Application to strike
out. The applicant brought an application in terms of Rule 6(15) of
the Uniform Rules of Court in respect
of various paragraphs and
annexures of the respondent’s answering affidavit and replying
affidavit on the ground that such
paragraphs and annexures were
vexatious, scandalous and/or irrelevant.
The court granted some but
not all of the relief sought in this application and held over the
matter of costs in respect of such
application until the final
determination of the application in its entirety.
(c) Whether the original
maintenance obligations were capable of being varied by the purported
mediated agreement and if so whether
in fact they were so varied.
(d) Whether the applicant
failed to comply with the maintenance obligations be they imposed by
divorce order or the purported mediation
agreement.
(e) If
there was non-compliance or was such non-compliance
mala
fide
and
wilful.
(f) The joinder of Turquise
Blue Moon Trading 309 (Pty) Ltd and whether execution was possible in
the circumstances.
I now proceed to deal with
the issues as they have been enumerated.
WHETHER
A VARIATION OF THE DIVORCE ORDER WAS POSSIBLE
[10] The
principle of the non-variation of a written agreement in the context
of a non-variation except in writing clause was firmly
established in
the matter of
Shifren
and Others v Zuid-Afrikaanse Sentrale Kooperatiewe Graan Maatskappy
1964
(2) SA page 343(O). The stance which essentially proceeds from the
premise that any attempt to agree informally to vary a contract
containing a non variation clause except in writing must fail was
affirmed by the Supreme Court of Appeal in
Brisly
v Protsley
2002
(2) SA page 1 SCA.
[11]
Leaving aside the facts and disputes that have characterised this
matter, the crisp question to be determined is does the
Shifren
principle
apply without exception, and if not, under what circumstances may a
departure from them be warranted. In
Brisley
supra,
the
Supreme Court of Appeal upheld the
Shifren
principle
as advancing a “doctrinal and a policy choice, which on balance
was sound as it contributed to considerations of
commercial reliance
and social certainty.”
However
the SCA also reaffirmed the principle that in appropriate
circumstances an agreement, unobjectionable in itself, will not
be
enforced because the object it seeks to achieve is contrary to public
policy. The court went on to affirm that public policy
is, having
regard to the constitutional state, firmly rooted in our constitution
and the fundamental values it enshrines which
values include human
dignity, the achievement of equality and the advancement of human
rights and freedoms, non-racism and non-sexism.
In the judgment of
His Lordship Mr Justice Cameron he also expressed the position with
regard to the
Shifren
principle
as follows at paragraph 95:
“
The
Constitution requires that its values be employed to achieve a
careful balance between the unacceptable excesses of contractual
‘freedom’, and securing a framework within which the
ability to contract enhances rather than diminishes our self-respect.
The issues in the present appeal to not impede that balance.”
[12] In a
Full Bench decision of the Eastern Cape High Court in
Nyandeni
Local Municipality v Hlazo
2010
(4) SA 261
ECM the court held that:
“
Public
policy (as underpinned by constitutional norms) dictates that the
Shifren
principle,
which holds that a contractual non-variation clause is valid and
effectively entrenches both itself and all other terms
of the
contract against oral variation, should be relaxed so as to bar a
party from relying on it where it was invoked for purposes
other than
the vindication of legitimate rights.”
Thus even
though the
Shifren
principle
is firmly entrenched in our law it is subject to the consideration
that in appropriate cases the demands and the requirements
of public
policy may well permit or indeed justify a departure from such a
principle.
[13] In
the context of the determination of what would constitute public
policy one must as Lord Atkin in
Fender
v Saint John-Mildmay
[1936]
AC 1
(HL) (referred to in
Brisley
(
supra
)
said be mindful that: -
“
The
doctrine should only be invoked in clear cases in which the harm to
the public is substantially incontestable, and does not
depend on the
idiosyncratic inferences of a few judicial minds.”
[14] In
order to maintain the balance alluded to by Cameron AJA (as he then
was) it is important therefore that those considerations
of public
policy not lead to unpredictability or uncertainty, in circumstances
where certainty and predictability is both necessary
and desirable.
It may well be that the adoption of a constitution underpinned by
certain fundamental values provides the framework
to determine indeed
those considerations of public policy that would ultimately determine
whether a departure from the
Shifren
rule is
justified or not.
[15] It must thus be clear
and apparent that the risk alluded to by Lord Atkin that public
policy should not depend on the determination
of subjective judicial
minds is unlikely to materialise in the constitutional dispensation
of our society as the constitution and
its values provide, in the
most compelling fashion, a framework to determine the scope and
parameters of such public policy.
[16]
Having said that the question for determination then is [having found
that under certain circumstances a departure from the
Shifren
rule may
well be justified and warranted by the dictates of public policy] do
such public policy considerations apply broadly in
the context of the
present dispute and indeed at a more broader level in the context of
disputes that may be characterised as disputes
falling within the
broad domain of family law.
[17]
While the
Shifren
principle
was not articulated at being confined to contracts of a commercial
nature and on the face of it would have general application
it must
also be evident that in matters that relate to the rights and
obligations [in the context of family law] different and
other
considerations distinguishable from the world of commercial contracts
may well warrant consideration.
[18] Those considerations
include: -
18.1 The Constitutional
imperative that in all matters concerning children the principle of
the best interest of the child must
apply as a guiding and paramount
principle.
18.2
Parents
have the obligation to maintain their children in accordance with
their ability as well as the need of the minor children.
It should
follow that it is indeed a matter of public policy to ensure that
those guiding principles insofar as they relate to
the reciprocal and
mutual reinforcing obligations of parents are maintained and are not
sacrificed as it were at the altar of ensuring
certainty at all
times.
18.3
In the
real world parents entrusted with the responsibility of ensuring that
the best interests of their minor children are always
advanced must
invariably make and take decisions that may warrant a departure from
or a variation of the express terms of a settlement
agreement. It
would be impractical and inconvenient to suggest that in all such
instances, and in the face of a non-variation except
in writing
clause, parents should then be constrained in their ability to take
decisions and to do things, even by mutual agreement
that would
advance the interests and the wellbeing of such minor children.
[19]
Certainly and for the considerations alluded to above there must be
instances where public policy may justify a departure from
the
Shifren
principle
in the area of family law. Without suggesting that such departure
should be easily justified or readily countenanced,
there must be due
regard for the context within which parenting takes place and within
which decisions that may on the face of
it vary in express obligation
are arrived at towards some other socially desirable objective –
the best interest of the child.
In all the circumstances the demands
and the consideration of public policy in the context of ensuring the
development of family
law that is consistent with the values of the
constitution including the values of equality, non-discrimination as
well as the
insuring the advancement of the best interest of the
child would in my view in appropriate instances and where a proper
case is
made out certainly justify a departure from what has become
known as the
Shifren
principle.
[21] In conclusion I find
that while such principles remain a firm entrenched and necessary
part of the law the departure may not
only be Constitutionally
permissible but perhaps even Constitutionally required.
[22] If
indeed the
Shifren
principle
was entrenched and did not apply in the context of family law it may
well have the effect of achieving all kinds of unintended
consequences that may well militate against the development of a
public policy consistent with the norms and values of our
Constitution.
In particular a strict adherence to those principles
may well mean that parents become saddled with the disproportionate
share
of their responsibility in respect of the maintenance and
upbringing of a minor child. It may well have the effect of
restricting
the ability of parents to do that which the best interest
of the child demand as opposed to that which they are obliged to do
in
terms of an agreement of settlement which terms and provisions may
well have not kept in touch with the changing times and developments
relevant in the context.
WAS
THERE A VARIATION OF THE DIVORCE ORDER AND WOULD SUCH A VARIATION
FALL WITHIN THE TESTS AS REQUIRED HAVING REGARD TO THE REQUIREMENTS
OF PUBLIC POLICY
[23] It appears to be almost
common cause that during the period March 2008 to June 2009 the
applicant and the first respondent
effected a variation of the
residency arrangements with regard to the two minor children. During
this period the arrangement was
that the children would spend
alternate weeks with the applicant and the first respondent. While
there is some dispute with regard
to the financial arrangements that
would apply, there hardly is a dispute relative to the residency
arrangements that came into
force.
[24] When
the residency arrangements changed there appears to be no express
agreement with regard to the financial arrangements
even though the
applicant contends that at that stage there was an agreement that he
would
“
wean”
the first respondent off maintenance in the period immediately
following the conclusion of the new residency arrangements
and in
March 2008 he effected decreasing maintenance payments as part of
this “weaning off” arrangement. The respondent
denies
that such an arrangement was arrived at and it appears that on the
papers that there is a dispute of fact between the parties
which is
incapable of being resolved on the papers before me.
[25] However, there appears
to be broad agreement that certainly for the period August 2008 to
October 2008 there was an agreement
with regard to the financial
arrangements relative to the maintenance of the minor children and
this agreement is captured in a
letter dispatched by Charles Cohen,
the mediator engaged by the parties to both the applicant and the
first respondent on 13 August
2008 in terms of which he purports to
record the understanding arrived at, at the mediation session held
between the parties on
11 August 2008. That communication in broad
terms confirms that the applicant would pay various third parties in
respect of his
maintenance obligations which third parties would
include the school, payment of horse riding, stabling costs, pocket
money transport
etc. in the total amount of R27 650-00. The
communication from Charles Cohen also purports to confirm that the
applicant will no
longer pay any direct maintenance to the first
respondent for the children.
While the respondent
disputes whether this letter from Charles Cohen constitutes an
agreement between the parties it must however,
be evident at the very
least that following the mediation session held the mediator would
not have recorded an agreement had such
an agreement not been entered
into.
[26] Following various
difficulties the parties encountered with regard to the variation of
the residency and financial arrangements
it was finally agreed either
late in 2009 or early in 2010 that the obligations of the parties
would revert to that which was set
out in the original maintenance
settlement agreement of August 2002.
[27] It was necessary to
capture some of this history in order to illustrate the attempts by
the parties over periods of time to
attempt to take into account the
current context and the difficulties they were respectively
experiencing and to find ways of resolving
those in both their best
interest as well as the interest of the children. Such efforts even
to the extent that they fell outside
the scope and the terms of the
settlement agreement between the parties cannot simply be ignored
because they were not reduced
to writing and signed by the parties or
made an order of court.
[28] They
in real and substantive terms represent the efforts and the
conclusions reached by the parties with regard to how they
would
engage with each other in respect of their reciprocal obligations
towards the minor children and therefore under those circumstances
such agreements that indeed were reached would fall to be considered
as constituting a valid basis for the departure from the
Shifren
principle.
In particular to the extent
that the letter of Charles Cohen of 13 August 2008 evidences a new
(albeit) temporary financial arrangement
which by all accounts the
parties gave effect to and complied with in broad substantial terms,
it would constitute a gross inequality
if it was open to the first
respondent to having been part of both concluding such an agreement
as well as giving effect to such
agreement to purport to ignore the
existence of such an agreement simply on account of the fact that it
was not reduced to writing
and signed by the parties.
[29] Such
a stance would certainly offend considerations of public policy to
the extent that its effect and consequence would be
to totally ignore
the
de
facto
contribution
made by one party simply on the account of the fact that such
contribution did not constitute a contribution consistent
or in line
with the agreed divorce order and settlement.
It is my view that the
evidence on the papers certainly reveals that there was a variation
of the residency and financial arrangements
between the parties. The
nature and the full extent of such variation may well still be in
dispute but the fact that there was
such a variation and certainly
that such variation resulted in a change of the financial
arrangements albeit for a limited period
cannot be in dispute.
[30] Under such
circumstances it would indeed be inequitable to require of the
respondent to continue complying with his maintenance
obligations in
terms of the court order while at the same time having their
expectation that he would have to comply with his obligations
in
terms of the mediated agreement. Exposing the applicant to such
double jeopardy would certainly offend against considerations
of
public policy, and would offend against considerations of fairness,
and equality.
For these reasons I am
satisfied that indeed there was a variation and that the variation
was of such a nature that having regard
to the considerations of
public policy, insisting on compliance with the court order in the
face of such a mediated agreement would
offend notions of fairness
and equality.
THE
CONSEQUENCE OF SUCH A VARIATION
[30] It is evident that
following the variation of residency and financial arrangements the
obligation of the first respondent in
terms of the court order and in
terms of the amounts that he was required to pay in terms of such a
court order adjusted for inflation
would have changed. He was now
required to pay maintenance through a different mode and on his
version it appears that the amounts
that he was required to expend
would be considerably more than that which he was required to pay in
terms of the court order but
that he accepted such increased and
heightened obligations.
Under these circumstances
and while it appears that at the time the warrant of execution was
issued the applicant may well have
defaulted with regard to both his
payments in terms of the mediated agreement as well as his payments
in terms of the undertaking
to revert to the original court order, it
must be apparent that when the warrant of execution was issued in
April 2010 in the amount
of R302 000-00 such amount did not take
into consideration the mediated agreement and the consequences of
such a mediated
agreement.
On that ground alone the
warrant was issued for an incorrect amount and would fall to be set
aside. I have considered whether one
could simply adjust the amount
reflected in the warrant to reflect the correct amount but given the
dispute of fact between the
parties which dispute relates precisely
to the payments that have been made during the mediated period it
would have been speculative
and probably irresponsible to arrive at
such an amount purely on the papers before me.
[31] Under those
circumstances and while the first respondent may well have been
entitled to approach the registrar of the above
honourable court to
issue a writ it is also abundantly clear that the amount in respect
of which the writ was issued was incorrect.
Under those circumstances
there are good reasons to set aside the writ on this ground alone. In
doing so I am not unsympathetic
to the predicament that the first
respondent found herself in when she sought this cause of action. As
indicated and in all likelihood
the respondent had already defaulted
both in terms of the mediated agreement as well as the original court
order which the parties
agreed to revert to. The problem was that the
quantification of the writ was not properly addressed and for that
reason it is the
proper to set aside the warrant of execution.
DID
THE APPLICANT FAIL TO COMPLY WITH THE DIVORCE ORDER AND/OR THE
MEDIATED AGREEMENT
[32] There appears to be a
considerable dispute with regard to the financial arrangements that
would be in place for the period
March 2008 to June 2009 except for
the period August 2008 to October 2008 (the three month trial
period).
Accordingly
it would be on the papers before me and in the light of the various
disputes of fact that have emerged impossible to
determine precisely
what was paid and what was not paid during this time. It may well be
that a maintenance court tasked with this
function and upon
consideration of both documentary as well as
viva
voce
evidence
may well be in a position to provide greater clarity and greater
accuracy in determining these issues.
However in respect of the
period when the mediated agreement had ceased to operate different
considerations would certainly apply.
In this regard it is clear that
the parties had agreed to revert to the original divorce order and
settlement agreement. There
may be some dispute when this would have
taken effect but even on the applicant’s version the effective
date of such a reversion
to the original maintenance obligations was
1 February 2010. It is clear on the papers before me and indeed from
the first applicant’s
own version that for the period 1
February 2010 to the period 28 October 2010 (the date on which he
deposed to his replying and
answering affidavits) that there was a
failure to pay maintenance either at all in respect certain months or
partially in respect
of other months. In this regard the maintenance
obligations for the months of February to October 2010 would be in
the sum of R15
428-17 per month. The applicant has on his own version
paid only R4 000-00 for the month of April 2010, has not made any
payments
for the month of June and does not in his affidavit on 28
October 2010 indicate whether any payments were made for the months
of
August, September or October.
[33] Under those
circumstances one must be able to draw the relative simple conclusion
that the applicant has certainly failed to
comply with the divorce
order at least for the period February to October 2010 and the nature
and extent of such non-compliance
will be dealt with later.
WAS
THE NON-COMPLIANCE WILFUL OR
MALA
FIDE
[34] In
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
the Supreme Court of Appeal in dealing with the concept of
civil contempt of court expressed itself as follows in capturing the
test to be applied:
“
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed deliberately
and
mala
fide
.
A deliberate disregard is not enough, since the non-complier my
genuinely albeit mistakenly belief him or herself entitled to
act in
the way claimed to constitute the contempt. In such a case good faith
avoids the infraction. Even a refusal to comply that
is objectively
unreasonable may be
bona
fide
.
(Though unreasonableness could evidence lack of good faith.)”
It is
abundantly clear that the consequences of a committal for contempt
impacts on the freedom and liberty of the individual at
the same time
orders of court create with them serious obligations and should not
be lightly disregarded. At the end of the day
the court in
considering an application for committal must indeed be satisfied
that there is no reasonable doubt that the party
who’s
committal is being sought acted
mala
fide
or
wilfully.
[35] In
the present matter there is much on the part of the conduct of the
applicant that concerns the Court. He has on his own
version not paid
maintenance at all or adequately during the period April to October
of 2010. His justification where it is offered
is that following the
voluntary liquidation of the company he was engaged he no longer
enjoys the position he previously enjoyed
and that his position has
changed for the worse. He further contends that he had to dispose of
assets in order to bring in the
income he requires for his living
expenses.
What is
missing from the applicant’s explanation is any detail with
regard to his present earning capacity. The court has
absolutely no
idea of what his income is, of what assets he may be possessed of
that could be disposed of in order to supplement
his income and in
particular in order to ensure that he is able to comply with his
maintenance obligations. Under these circumstances
and given the
importance of the obligation that attaches to the maintenance of
minor children one almost draws the conclusion that
his attitude in
explaining his default is rather cavalier and borders on disrespect
of the order of court. In particular he indicates
that he was unable
to pay the full amount for April 2010 but only paid R4000-00. He
gives no explanation or no indication of how
and when he intends to
pay the outstanding balance in respect of April 2010. In respect of
June 2010 his explanation is that he
simply did not have any funds to
pay, no explanation is offered in respect of how he intends to make
good of his default in respect
of the June 2010 payment.
During July 2010, the
applicant went on a holiday to Mauritius. He used his credit card to
make payment and alleged that his girlfriend
paid for the holiday and
she refunded the cash to him as it was more convenient to pay by
credit card. No proof of such refund
is provided but in any event it
provides evidence that the applicant had access to funds at a time
when he failed to pay his maintenance
obligations.
In
addition and
during
the period in question the applicant was engaged in financial
transactions that ran into millions. He certainly had access
to
resources evidenced by the fact that he was offering to provide
various tenders as part of an attempt to settle this matter.
This
clearly must indicate to the extent that he was able to offer a
tender in excess of the sum of R300 000-00 that he should
have been
in a position to have paid maintenance in an amount that was
considerably less. His failure to do so and his failure
to provide a
satisfactory explanation with regard to his financial affairs must
lead to the conclusion that he failed to discharge
on a balance of
probabilities the onus to prove that his default was not wilful
and/or
mala
fide.
Under these circumstances I
am satisfied that a proper case has been made out for contempt in
respect of the failure by the applicant
to pay maintenance in respect
at least of the divorce order and settlement that the parties had
agreed to revert to with effect
from February 2010.
The amount in respect of
such a failure excluding what may be due in respect of medical
expenses and other expenses is computed
as follows:
DUE
PAID
SHORTFALL
FEB
2010
R15
428,17
R
9
600,00
NIL
MAR
2010
R15
428,17
R12
000,00
NIL
APR
2010
R15
428,17
R
4
000,00
R11
428,17
MAY
2010
R15
428,17
R12
000,00
NIL
JUN
2010
R15
428,17
NIL
R15
428,17
JUL
2010
R15
428,17
R12
600,00
NIL
AUG
2010
R15
428,17
NIL
R15
428,17
SEPT
2010
R15
428,17
NIL
R15
428,17
OCT
2010
R15
428,17
NIL
R15
428,17
R73
140,85
[36] I
will for the months of February, March, May and July assume i.f.o the
applicant that he believed he was entitled to deduct
the stabling
fees from the payment made. I make such an assumption purely in
respect of the contempt application only. A maintenance
court may
have to make a proper determination and in due course whether those
deductions were justified as well as to determine
what may be due in
terms of medical and educational expenses.
[37] On that basis the
amount in arrears totals: R73 140,85.
[38] In so far as the
dispute with regard to the period prior to February 2010 is concerned
I have already indicated that there
is a dispute of fact on the
papers which cannot be resolved and the applicant is entitled to
approach the Maintenance Court if
she so wishes, alternatively deal
with it through mediation. The same would apply in respect of the
deductions made by the applicant
which are dealt with in paragraph
[36] above.
[39]
COSTS
The applicant was
substantially successful in the main application while the first
respondent was substantially successful in the
counter application.
With regard to the application for condonation which was granted, my
view is that the first respondent was
justified in opposing the same
on the grounds of the vagueness and uncertainty of the applicant’s
financial position which
I have already alluded to. Under those
circumstances an adverse costs order against the first respondent is
not warranted. The
application to strike out was only partially
successful.
For the above reasons an
appropriate order of costs would be one that required each party to
pay their own costs in respect of the
main application, the counter
application, the application for condonation and the application to
strike out.
In all the circumstances I
make the following order:
(1) The warrant of execution
issued out of this Honourable Court under case no 6073/2000 is set
aside.
(2) The applicant is
declared to be in contempt of Court that in relation to the
provisions of the order of this Honourable Court
handed down on 27
August 2002.
(3) The applicant is
sentenced to six months imprisonment, wholly suspended for three
years on condition that the applicant pays
the amount of arrear
maintenance in the sum of R 73 140,85 as follows:
3.1 R20
000 by the 20
th
December
2010
…
.....................
3.2
R20 000 by the 20
th
January
2011
.........................
3.3
R20 000 by the 20
th
February 2011
.........................
3.4
R13 140,85 by the 20
th
March 201
1
(4)
Each party is to pay its own costs in relation to the main
application, the counter application, the application for condonation
and the application to strike out.
FOR
THE APPLICANT: Adv M. feinstein and Adv L. FIAI-COLETTI
INSTRUCTED
BY: BAILLIE ATTORNEYS
FOR
THE RESPONDENTS: Adv J CANES SC
INSTRUCTED
BY: FELDMAN & NANCE-KIVELL ATTORNEYS