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[2013] ZASCA 144
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De Haas v Fromentin and Others (499/12) [2013] ZASCA 144; 2013 (6) SA 621 (SCA) (30 September 2013)
Reportable
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 499/12
In the matter between:
SANDRA
LEE DE HAAS
.......................................................................
APPELLANT
and
GARRY
JOHN FROMENTIN
..................................................
FIRST
RESPONDENT
THE
SHERIFF OF THE COURT: SANDTON
....................
SECOND
RESPONDENT
TURQUOISE
MOON TRADING 309 (PTY) LTD
....................
THIRD
RESPONDENT
Neutral
citation:
De Haas v Fromentin
(499/12)
[2013] ZASCA 144
(30 September 2013)
Coram:
Mthiyane AP, Theron and Petse JJA and Van
der Merwe and Zondi AJJA
Heard:
10 September 2013
Delivered:
30 September 2013
Summary: Contempt of court arising out of failure to
pay maintenance in terms of agreement of settlement ─ oral
variation
of agreement of settlement not established and in any event
unenforceable as result of non-variation clause ─ no reason to
interfere with exercise of discretion of court below in respect of
sanction.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court,
Pretoria (Kollapen AJ sitting as
court of first instance):
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
VAN DER MERWE AJA (MTHIYANE AP, THERON AND PETSE JJA
AND ZONDI AJA CONCURRING):
[1] The issue in this appeal is whether this court
should interfere with the sanction for contempt of court imposed in
respect of
the first respondent by Kollapen AJ in the North Gauteng
High Court, Pretoria. The judgment of the court a quo is reported as
GF v SH & others
2011
(3) SA 25
(GNP). It granted leave to appeal to this court.
[2] The second and third respondents have no interest in
the appeal. The first respondent (the respondent) does, but did not
participate
in the hearing of the appeal. The appellant rightly did
not persist in an attempt to place further evidence before this
court.
[3] The issue arose in the following manner. The
appellant and the first respondent (the parties) were married to each
other on
21 March 1992. Two children were born of the marriage,
namely a boy born on 26 February 1995 and a girl born on 27 September
1997.
However, the marriage did not last. On 27 August 2002 the
marriage between the parties was dissolved by order of the high
court.
An agreement of settlement between the parties was also made
an order of court. In terms of the agreement of settlement custody
of
the minor children was awarded to the appellant, subject to the right
of reasonable access to the children of the respondent,
who was the
plaintiff in the action.
[4] Clauses 4 and 5 of the agreement of settlement (the
maintenance order) provided for maintenance for the children as
follows:
‘
4.
MAINTENANCE
IN RESPECT OF THE CHILDREN
4.1 The Plaintiff shall pay
maintenance in respect of the minor children at the rate of R5 000,00
(Five Thousand Rand) per
month, per child, with effect from the first
day of the month preceding the granting of a Final Order of Divorce
and thereafter
on the first day of each and every succeeding month.
4.2 The maintenance referred to
in 4.1 hereof shall escalate annually at the Consumer Price Index
(CPIX) rate, effective 12 (twelve)
months after the granting of a
Final Order of Divorce and thereafter on each anniversary of the
granting of the decree of divorce.
4.3 Notwithstanding the
provision embodied in paragraph 4.2 hereof, same shall not be
construed as a waiver by either of the parties
from applying to Court
for an increase or decrease of the maintenance referred to in
paragraph 4.1 hereof.
5.
EDUCATION
AND MEDICALS IN RESPECT OF THE CHILDREN
The Plaintiff undertakes to make
payment in respect of the children, either to the Defendant or to the
creditors concerned, at the
Defendant’s option, against
statements of account to be produced to him of:
5.1 all medical, dental,
physiotherapeutic, orthodontic, hospital, nursing home, surgical,
ophthalmic, and like expenses, medicines
not covered by prescriptions
and prescribed medication;
5.2 nursery, primary and
secondary private school fees and extra lessons;
5.3 levies, school books,
stationery, school uniforms and compulsory school outings within the
Republic of South Africa;
5.4 extra-mural sporting,
cultural and academic activities, together with the costs relating to
tuition fees, sporting equipment
and attire relating thereto,
including the cost of general tournaments, subject to a maximum
payment of R500,00 (Five Hundred Rand)
per month, per child in
respect of all of the aforesaid;
5.5 the fees, books and
equipment relating to the children’s tertiary education at any
university, college, art, computer
or secretarial school or other
place of like learning in the Republic of South Africa, including
residence fees, subject to each
child applying himself/herself with
due diligence and showing an aptitude therefor.’
[5] However, within a few years disputes arose between
the parties in respect of the payment of maintenance for the
children. Despite
attempts at settlement, these disputes and the
acrimony between the parties escalated and on 15 April 2010 the
appellant obtained
a writ of execution against the moveable goods of
the respondent for the sum of R303 154.62, consisting of alleged
arrear
maintenance in terms of the maintenance order for the period
May 2008 to April 2010.
[6] The respondent responded thereto by issuing an
application for setting aside the writ of execution on the ground
that he was
not in breach of his obligations in terms of the
maintenance order. The appellant in turn filed a counter-application
in which
she inter alia claimed an order declaring the respondent to
be in contempt of court, in that he wilfully and mala fide breached
the provisions of the maintenance order and an order committing the
respondent to imprisonment or imposing an appropriate suspended
sentence.
[7] The court a quo set aside the writ of execution. It
also declared the respondent to be in contempt of court in relation
to the
provisions of the maintenance order and imposed the following
sanction:
‘
(3)
The applicant is sentenced to six months’ imprisonment, wholly
suspended for three years, on condition that [he pay] the
amount of
arrear maintenance in the sum of R73 140,85, as follows:
(3.1) R20 000 by 20
December 2010.
(3.2) R20 000 by 20 January
2011.
(3.3) R20 000 by 20
February 2011.
(3.4) R13 140,85 by 20
March 2011.’
In addition each party was ordered to pay their own
costs in relation to the main application, the counter-application
and the respondent’s
applications for condonation and striking
out. There is no cross-appeal against the order declaring the
respondent to be in contempt
of court. As a result of subsequent
events the appellant does not claim relief on appeal in respect of
the order setting aside
the writ of execution.
[8] The appellant relies on two grounds for the
submission that the sanction is inappropriate. These grounds are
first, that the
court a quo erred in not ordering that the sentence
be suspended on condition that the respondent at least pay the amount
of the
writ of execution; and second, that the sanction should have
included a further condition that subjected the suspension of the
sentence to future compliance with the maintenance order.
[9] When the court a quo imposed the sanction, it did so
in the exercise of a discretion in the strict sense. This court can
therefore
only interfere with the exercise thereof if the court a quo
had been influenced by a wrong principle of law, or a misdirection of
fact, or if it failed to exercise a discretion at all. See
Oakdene
Square Properties (Pty) Ltd & others v Farm Bothasfontein
(Kyalami) (Pty) Ltd & others
2013 (4) SA
539
(SCA) para 18.
[10] I am prepared to accept that if the amount of
arrear maintenance at the relevant date should have been determined
by the court
a quo as a substantially greater amount than the amount
of R73 140.85, a material misdirection would be established. I
therefore
turn to this question.
[11] Clause 9 of the agreement of settlement (the
non-variation clause) provides as follows:
‘
VARIATIONS
TO THIS AGREEMENT
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.’
[12] The respondent’s case was in essence that in
terms of an oral agreement the parties varied the maintenance order,
that
it would be contrary to public policy to enforce the
non-variation clause and that as a result of the variation, the
amount of
the writ was incorrect and fell to be set aside. These
propositions were accepted by the court below. The respondent also
maintained
that he was not in breach of his obligations under the
maintenance order.
[13] The case of the appellant was that on the facts the
maintenance order was not varied and that there was in any event no
ground
for not enforcing the non-variation clause. According to the
appellant the respondent was substantially in arrears in respect of
his obligations in terms of the maintenance order, in wilful and mala
fide disregard thereof.
[14] The court a quo found that with the assistance of a
mediator the parties orally agreed on 11 August 2008 to vary the
maintenance
order as set out in a letter directed by the mediator to
the parties on 13 August 2008. The letter, inter alia, states that
the
respondent will no longer pay any maintenance directly to the
appellant but that he undertakes to pay maintenance for the children
in respect of school fees, extra-murals, horse riding, stabling
costs, pocket money, clothing, toiletries, food, transport, cell
phones, entertainment, an au pair and medical aid directly to the
relevant third parties and the children. The letter however also
contains the following:
‘
What
was discussed but was left in the air is the scaling down of the
payments that Garry [is] currently making to Sandy. It was
not made
clear when these would actually cease.
. . .
The above mentioned system of
maintenance payment will operate on a trial basis until the end of
November 2008 when it will be reviewed
in the light of any problems
which may arise.’
[15] Both parties were acutely aware of the
non-variation clause and the requirement that a variation of the
maintenance order must
be in writing and signed by both parties or
ordered by a competent court. This was specifically emphasised in an
email sent by
the appellant to the respondent on 10 August 2008, the
day before the mediation. In context the parties in my judgement did
not
intend the arrangement of 11 August 2008 to constitute a
variation of the maintenance order. What was envisaged was clearly
that
if the trial period should prove to be successful, a formal
variation would be brought about and until that takes place, there is
no variation of the maintenance order. If the respondent complied
with the arrangement during the trial period, he would of course
not
be in mala fide disregard of the maintenance order. I find therefore
that the court a quo erred in concluding that the maintenance
order
was in fact varied.
[16] In any event the view of Kollapen AJ that in the
light of the oral agreement of variation of the maintenance order it
would
offend against public policy to enforce the non-variation
clause, cannot be endorsed. This court has for decades confirmed that
the validity of a non-variation clause such as the one in question is
itself based on considerations of public policy and this
is now
rooted in the Constitution. See
SA Sentrale
Ko-op Graanmaatskappy Bpk v Shifren & andere
1964
(4) SA 760
(A) at 767A-C and
Brisley v Drotsky
2002 (4) SA 1
(SCA) paras 7, 8, 90 and 91. Despite the
disavowal by the learned judge, the policy considerations that he
relied upon are precisely
those that were weighed up in
Shifren
.
In
Media 24 Ltd & others v SA Taxi
Securitisation (Pty) Ltd (Avusa Media Ltd & others as amici
curiae)
2011 (5) SA 329
(SCA) para 35 Brand
JA said:
‘
As
explained in
Brisley
v Drotsky
2002
(4) SA 1
(SCA) (para 8), when this court has taken a policy decision,
we cannot change it just because we would have decided the matter
differently. We must live with that policy decision, bearing in mind
that litigants and legal practitioners have arranged their
affairs in
accordance with that decision. Unless we are therefore satisfied that
there are good reasons for change, we should confirm
the status quo.’
[17] The respondent’s answering affidavit in the
counter-application (which also served as his replying affidavit in
the main
application) was deposed to on 28 October 2010. For purposes
of determining the liability of the respondent in terms of the
maintenance
order the line should therefore be drawn at the end of
October 2010. The court a quo correctly found that on his own version
the
respondent failed to comply with paragraph 4 of the maintenance
order for the period February to October 2010. Even though I have
found that the maintenance order was not varied, the question remains
whether it could be determined on the papers whether the
respondent
was in arrears in respect of paragraph 4 of the maintenance order as
at the end of January 2010 and/or in respect of
paragraph 5 thereof
as at the end of October 2010 and if so, in what amount.
[18] In this regard the papers reveal material disputes
of fact. The present respondent was the respondent in the
counter-application.
It is trite that in case of factual disputes in
motion proceedings the version of the respondent must be accepted for
purposes
of determination thereof, irrespective of where the onus
lies, unless that version consists of bald or uncreditworthy denials,
raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. See
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
[19] The appellant’s case is that at the end of
January 2010 the respondent was in arrears in respect of paragraph 4
of the
maintenance order in the sum of R265 776.89 and that at
the end of October 2010 he was in arrears in respect of paragraph 5
of the maintenance order in the sum of R111 190.51. The
respondent’s evidence is that during the period from May 2008
to March 2010 he made payments in the total amount of R260 752
that were not taken into account in the calculations of the
appellant. The respondent states that these payments were made
directly to third parties and to the children in compliance with
his
obligations to maintain the children, apart from payment by him of
the costs of their schooling and medical care. He also denies
that he
was in arrears in terms of paragraph 5 of the maintenance order. It
is common cause that on 3 March 2008 the parties arranged
that the
children would stay with and be cared for by the respondent every
other week and that this arrangement was given effect
to during the
period from March 2008 to June 2009. Although I have found that the
maintenance order was not varied, it is clear
that on 11 August 2008
the appellant consented to such direct payment, albeit for the trial
period. In argument counsel for the
appellant conceded that if it
must be accepted that these payments were made by the respondent,
they should be taken into account
in the calculation of the arrear
maintenance, if any. Counsel submitted that the respondent’s
evidence should be rejected
on the papers and in this respect she
stressed that the respondent produced virtually no documentary proof
of payment despite his
promise to do so.
[20] There is some force in the argument, but I am not
persuaded that the evidence of the respondent can be rejected out of
hand.
The respondent detailed specific amounts allegedly paid during
each month for the period from May 2008 to March 2010, totalling
the
sum of R260 752. It appears unlikely that this is a fabrication.
In my view it cannot be said that the respondent will
not be able to
establish these payments at a trial. It suffices to say that it is
not possible to resolve the many detailed disputes
on the papers in
respect of payments in terms of paragraph 5 of the maintenance order.
It follows that it must presently be accepted
that the amount of
R260 752 was paid. As those payments were made in respect of
both paragraphs 4 and 5 of the maintenance
order, it is not possible
to find on the papers to what extent the respondent was in arrears in
respect of paragraph 4 of the maintenance
order as at 31 January 2010
or in respect of paragraph 5 thereof as at 31 October 2010.
[21] An error crept into the calculation of the court a
quo in respect of the unpaid maintenance in terms of paragraph 4 of
the
maintenance order for the period from February 2010 to October
2010. The unpaid amount as at 31 October 2010 was in fact R86 036.53.
The error of calculation does not warrant interference with the
sanction imposed. We were informed from the bar that the amount
of
R73 140.85 was paid by the respondent in compliance with the
order of the court a quo. The respondent is of course not
relieved of
liability for the balance of R12 895.68.
[22] In terms of s 28(2) of the Constitution the
best interests of the children are of paramount importance in this
matter.
It is unfortunate therefore that it cannot presently be
determined which amount remains owing in respect of the maintenance
of
the children for the period up to October 2010. The appellant and
the children are however not without remedy in this regard. The
State
must provide the legal and administrative infrastructure necessary to
ensure that children are accorded the protection contemplated
by s 28
of the Constitution and to uphold the dignity and equality of women.
See
Bannatyne v Bannatyne (Commission for Gender Equality as
Amicus Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) paras 24 and 30. The
Maintenance Act 99 of 1998
provides for measures in this respect,
dealt with fully below. These measures are available on the basis of
the finding of this
court that the maintenance order was not varied.
[23] The submission of the appellant in respect of the
second ground is that the inclusion of a condition of suspension
aimed at
future compliance with the maintenance order would
constitute a more effective sanction. It was suggested that a
condition of suspension
that the respondent is not convicted of
failure to comply with the maintenance order or any maintenance order
against him during
the period of suspension, should have been added.
This may be so, but as I have said, that is not the test to be
applied. It is
clear that the court below intended by the sanction in
question to enforce arrear maintenance only. I am not persuaded that
that
constituted an improper exercise of its discretion. Two factors
weigh heavily with me in this regard. The first relates to the manner
in which the relief was framed in the counter-application. Paragraph
2 thereof reads as follows:
‘
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 . . . .’
[24] The second and more important factor is that the
sanction did not leave the appellant and the children without remedy,
in respect
of the respondent’s obligations in terms of the
maintenance order that arose or will arise after the period dealt
with in
the judgment. The
Maintenance Act defines
a maintenance order
as any order for the payment of sums of money towards the maintenance
of any person issued by any court in
the Republic, including a high
court. The maintenance order can thus be enforced in terms of the
Maintenance Act. It
provides (in
s 26
to
s 28)
for
enforcement of maintenance orders by way of warrant of execution,
attachment of emoluments or attachment of debts.
Section 31(1)
provides that any person who fails to make any payment in accordance
with a maintenance order shall be guilty of an offence.
Section 31(2)
provides that if the defence is raised in a prosecution for an
offence under this section that the failure to pay maintenance in
accordance with a maintenance order was due to lack of means on the
part of the person charged, he or she shall not merely on the
grounds
of such defence be entitled to an acquittal if it is proved that the
failure was due to his or her unwillingness to work
or misconduct.
[25]
Section 40(1)
provides that the court convicting
any person of an offence under
s 31(1)
may on the application of
the public prosecutor and in addition to or in lieu of any penalty
which the court may impose in respect
of that offence, grant an order
for the recovery from the convicted person of any amount he or she
has failed to pay in accordance
with the maintenance order, together
with any interest thereon, whereupon the order so granted shall have
the effect of a civil
judgment of the court. In terms of
s 40(2)
a court granting an order against a convicted person may in a summary
manner enquire into the circumstances mentioned in subsec
3 and if it
so decides, authorise the issue of a warrant of execution against the
moveable or immoveable property of the convicted
person in order to
satisfy such order. The circumstances mentioned in subsec 3 include
the existing and prospective means of the
convicted person; the
financial needs and obligations of the person maintained by the
convicted person; and the conduct of the
convicted person insofar as
it may be relevant concerning his or her failure to pay in accordance
with the maintenance order.
Section 40(4)
provides that
notwithstanding anything to the contrary contained in any law, any
pension, annuity, gratuity or compassionate allowance
or similar
benefit shall be liable to be attached or subjected to execution
under an order granted under this section.
[26] It follows that the appeal against the sanction
cannot succeed. I did not understand counsel for the appellant to
argue that
in this event there is any ground for interference with
the exercise of the discretion of the court a quo in respect of costs
and
in my judgment there is none. Given that there was no appearance
by the respondent there should be no order as to costs of the appeal.
[27] Accordingly the appeal is
dismissed.
_____________________
C H G VAN DER MERWE
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant: Ms J M A Cane SC
Instructed by:
Eversheds, Sandton
Symington & De Kok, Bloemfontein
For Respondent: No appearance