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[2023] ZAGPPHC 257
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E.K v P.K and Others (Leave to Appeal) [2023] ZAGPPHC 257; - (4 April 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:53105/2021
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
DATE:
04/04/2023
SIGNATURE:
In
the matter between:
E[...]
K[...]
Applicant
(Identity
Number: 7[...])
And
P[...]
K[...] &
OTHERS
Respondents
(Identity
Number: 7[...])
JUDGMENT:
LEAVE TO APPEAL
MOJAPELO
AJ
1.
This is an
application for leave to appeal against the judgment that I handed
down and which was transmitted through caselines to
the parties on 09
February 2023. I will refer the parties as they appear in the main
application.
2.
Following a
finding that the first respondent was in contempt of an order of this
Court that was granted by Molefe J on 11 May 2022,
the first
respondent was conditionally incarcerated provided he complies with
that Court Order of Molefe J within 72 hours. This
is an application
for leave to appeal that judgment and order.
3.
The main
grounds upon which the first respondent relied on for its application
for leave to appeal was that the finding of contempt
and the
incarceration of the first respondent based on his failure to pay
for, amongst others, maintenance is unconstitutional.
In that regard
the first respondent’s Counsel relied on two Constitutional
Court judgments, that is,
Coetzee
v Government of the Republic of South Africa
[1995] ZACC 7
;
1995 (4) SA 631
CC
and
Riley v
Riley
[2023] ZACC 5
to support the contention that an incarceration of this nature is
unconstitutional.
4.
Unfortunately,
the abovementioned two judgements did not deal with the obligation to
pay maintenance. The Constitutional Court has
dealt with contempt
application in relation to the obligation to pay maintenance in the
matter of
Bannatyne
v Bannatyne (Commission of Gender Equality, as
Amicus
Curiae
)
2003 2 (2) SA 363
.
In that judgment the Constitutional Court confirmed that; “
Although
money judgments cannot ordinally be enforced by contempt proceedings,
it is well established that maintenance orders are
in a special
category in which such relief is competent”
.
5.
It is not the
first respondent’s case that the Constitutional judgment in
Bannatyne
has been
overruled. Under the circumstances I am of the view that there are no
reasonable prospects of success in the Court of Appeal.
I have
considered the other grounds of appeal and I have unfortunately, come
to the same conclusion that there are no reasonable
prospects of
success in the Court of Appeal.
6.
I therefore
make the following order.
(a)
Leave to
appeal is refused.
(b)
The first
respondent (the applicant in this application for leave to appeal) is
ordered to pay the costs of this application for
leave to appeal.
MM
MOJAPELO AJ
ACTING
JUDGE
HIGH
COURT GAUTENG DIVISION, PRETORIA
Counsel
for the Applicant:
Adv.
Juan Schoeman
Attorneys
for the Applicant:
Waldick
Inc
Counsel
for the First Respondent:
Adv.
F Botes SC
Attorneys
for the Respondent:
Manley
Incorporated