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[2023] ZAFSHC 270
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M.S v P.S (1334/2018) [2023] ZAFSHC 270 (7 July 2023)
SAFLII
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.:1334/2018
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
M[…]
S[…]
APPLICANT
And
P[…]
S[…]
RESPONDENT
CORAM:
NAIDOO J
HEARD
ON:
16 FEBRUARY 2023
DELIVERED
ON:
7
JULY 2023
JUDGMENT
[1]
This is an application for the respondent to be found in contempt of
a court order and to be incarcerated,
such incarceration to be
suspended on certain conditions (the main application). The
respondent opposed the main application and
filed a
counter-application, in essence, for the finalisation of the accrual
of the estate, and other relief. The applicant opposed
the
counter-application. I mention that the respondent filed his Replying
Affidavit in the counter application late, and accordingly
applied
for condonation for such late filing. The applicant’s legal
representative indicated that they do not take issue
with the late
filing of the Replying Affidavit and condonation for such late filing
was granted. Adv R Van Der Merwe represented
the applicant and Adv M
Louw represented the respondent.
[2]
The applicant sought an order, in essence, in the following terms:
2.1. The respondent be
found to be in contempt of the Court Order issued by Judge AF Jordaan
on the
16
th
day of October 2019,
under
case number 1334;
2.2. Committing the
respondent to imprisonment for a period of (90) NINETY days or such
other period the Court may deem fit;
2.3. Suspending the
aforesaid term of incarceration of the respondent for such a period
as the Court may determine, on the condition
that the Respondent
comply with the order of Court (dated 16 October 2019);
2.4. Leave be
granted to the applicant to approach the court on the same papers,
duly amplified, for putting into operation
of suspended imprisonment,
should the respondent fail or neglect to comply with the court order;
2.5. Costs of the
application.
[3]
The parties who were previously married to each other out of
community of property, with accrual,
were divorced on 16 October
2019, and the Deed of Settlement they entered into, was made an order
of court. In terms of the Deed
of Settlement, the respondent was to
pay maintenance to the applicant in the amount of Eight Thousand Rand
(R8 000) per month,
which would lapse on the applicant’s
death, remarriage or if she entered into a cohabitation relationship.
The maintenance
was subject to review and/or cancellation after
calculation of the accrual. Attorney Mr Pieter Joubert (Joubert) of
the law firm
Kramer Weihmann Joubert Incorporated (KWJ) was appointed
as Receiver to determine the accrual of the marriage estate.
Joubert’s
powers and duties were set out in the Deed of
Settlement. The respondent currently resides in the Netherlands.
[4]
The applicant alleges that the respondent, after having always paid
the maintenance timeously
and regularly, defaulted in such payment
from June to October 2022, short-paying in June and failing to make
any payments from
July to October 2022. She launched this application
on 2 November 2022, in which she claimed the relief I set out
earlier. She
further alleges that numerous letters were addressed the
respondent’s attorneys as well as to him personally, pointing
out
that he was in arrears with his maintenance payments, requesting
payment and warning that a contempt application will be brought,
should he fail to pay.
[5]
The respondent’s Answering Affidavit in the main application
was also his Founding Affidavit
in the counter application. In the
latter application, he sought orders, which I summarise as follows:
5.1
The final calculation of the accrual between the parties, as
calculated by KWJ, dated 15 December 2021,
be lodged in the High
Court, only if KWJ did not attend to same;
5.2
It be declared that there was no objection raised to the said accrual
calculation, and that it is thus
final and binding on the parties,
but for the settlement contemplated in paragraph 3;
5.3
It be declared that the issue of the accrual in the respective
estates of the applicant and respondent
for the purposes of
section
3(1)
of the
Matrimonial Property Act 88 of 1984
, has been settled and
the respondent has discharged his liability towards the applicant in
respect thereof;
5.4
Alternatively to paragraph 5.3 above, and only if it be held that the
respondent did not settle or compromise
the accrual as contemplated
in paragraph 5.3 above, that this court determine the balance owing
to the applicant and make an order
that it be payable within a
reasonable time to be determined by the court;
5.5
The contents of paragraph 1.1 and 1.1.1 of the deed of settlement
concluded between the parties on 15
October 2019, and made an order
of this court on 16 October 2019, are cancelled and/or deleted;
5.6
Alternatively to paragraph 5.5, the maintenance obligations of the
respondent arising out of paragraphs
1.1 and 1.1.1 of the deed of
settlement concluded between the parties on 15 October 2019 and made
an order of court on 16 October
2019, are suspended;
5.7
Alternatively to 5.5 and 5.6 above, the maintenance obligations of
the respondent arising out of the
deed of settlement mentioned above
are temporarily suspended, pending the outcome of the proceedings
referred to in 5.8 below;
5.8
The applicant be authorised to approach the Maintenance Court within
60 days of this order, in order
to determine whether she has a
maintenance requirement and the respondent’s reciprocal
obligation, if any;
5.9
The applicant to pay the costs of this application only in the event
of her opposing same.
[6]
The respondent alleges that the final calculation of the accrual was
done by KWJ on 15 December
2021. Neither the applicant nor the
respondent objected to the calculation, and in terms of clause 4.2 of
the settlement agreement,
if there was no objection to the
calculation of the accrual, it shall be deemed to be confirmed
between the parties. The respondent
argues that in the absence of
objection, he considered the accrual to have been finalised. The
finalisation of the accrual triggered
the operation of the review or
suspension of maintenance, as well as the respondent’s “prompt
and timeous” response
by tendering payment of the amount of Six
Hundred Thousand Rand. (R600 000.00). The respondent asserts
that the calculation
of the accrual therefore meant that he need not
continue payment of maintenance. He argues that he paid maintenance
to the applicant
timeously and consistently since 2018, and
acknowledges that he did not pay for the months of July to October
2022, only because
he accepted that the accrual had been finalised
and that he tendered settlement thereof by way of the payment of R600
000.00.
[7]
The applicant’s response in the Answering Affidavit to the
counter application is, in essence,
that the calculation of the
accrual, upon which the respondent relies, was done by Mr Weihmann of
KWJ and not by Joubert who was
appointed as Receiver in terms of the
court order dated 16 October 2019. She contends, therefore that the
calculation of the accrual
has not been finalised, as contended by
the respondent. The applicant, in the course of the veritable
mountain of correspondence
that passed amongst the parties, their
legal representatives and KWJ, indicated that she will accept the
earlier calculation of
R1 237 059.95, allegedly done by
Joubert.
[8]
The applicant set out in great detail the
sequence of events and particularly the correspondence sent
to the
respondent and/or his legal representatives drawing to his attention
that he is in arrears in respect of maintenance payments
and warning
that a contempt application would be brought against him, and
persisted with the relief she sought in the main application.
[9]
The acrimony between the parties in this matter is palpable and is
abundantly evident from the
voluminous papers. The distinct
impression that one gains is that there is a lack of cooperation in
this matter which has seriously
hindered the finalisation of this
matter. This is due in some measure to the attitude of the respective
legal representatives to
each other. The court had occasion during
the oral hearing of this matter to raise this issue and remind the
parties that collegiality,
courtesy and professionalism are expected
of legal practitioners in their interactions with each other and is
necessary to protect
the interest of their clients. It is regrettable
and unfortunate that opportunism, legal posturing and the taking of
technical
points to gain advantage are a pervasive feature of this
matter. I am in agreement with Mr Louw’s assertion that this
matter
should never have come to court. This is a classic example of
a matter that ought to have been settled by discussions and
communication
between the parties. Not only would the matter have
been finalised a few years ago, but the unnecessary escalation of
legal costs
would have been prevented. The latter ought to have been
one of the primary objectives, as money is the centre of the dispute
between
the parties.
[10]
Having said that, it is my view that it is unnecessary to deal with
each and every issue raised by the parties
(and there are many).
There are two crisp issues for adjudication – whether the
applicant has made out a case for an order
that the respondent is in
contempt of court and whether the orders sought by the respondent in
the counter application are permissible.
It is well established in
our law that the requirements to prove civil contempt of court are:
(a)
the existence of the order;
(b)
the order must be served on or brought to the notice of the
contemnor;
(c)
non-compliance with the order, and
(d)
the non-compliance must be wilful and
mala fide
.
[Fakie
NO v CCII Systems (Pty) Ltd 2006(4) SA 326 (SCA);Matjhabeng Local
Municipality v Eskom Holdings and Others; Mkhonto and Others
v
Compensation Solutions (Pty) Ltd (Matjhabeng)
2018(1)
SA 1 (CC); also 2017(11) BCLR 1408 (CC)]
[11]
The applicant bears the onus to prove, beyond reasonable doubt, the
existence of the order, service of the
order on or notification
thereof to the respondent and non-compliance with the order. When
that onus is discharged, the onus then
shifts to the respondent to
show that such non-compliance is not wilful or
mala fides
. In
this matter, there is no dispute that the applicant has discharged
the onus on her, which flows logically from the Deed of
Settlement,
signed by both parties, and which was made an order of court. It is
also not in dispute that the respondent did not
pay maintenance for
the period alleged by the applicant. In considering whether the
respondent’s non- payment of maintenance
was wilful or
male
fides
the circumstances pertinent thereto need to be examined.
[12] In
her Founding Affidavit to the main application, the pertinent
allegations by the applicant are that the
accrual calculation was
still pending and that she has not received any accrual due to her.
She asserts that the respondent previously
never failed to pay
maintenance timeously, but failed to do so for the months of July to
October 2022, while short-paying for June
2022. She also complained
that he stopped paying for her medical aid cover. She did not mention
at all that the respondent offered
to settle the accrual and in fact
paid her R600 000.00. She made no mention that he relied on an
accrual calculation ostensibly
finalised on 15 December 2021. She
emphasises that he defaulted in maintenance payments and was hence in
contempt of court. The
payment of the R600 000.00 emerged from
the letters she attached to the Founding Affidavit in support of her
assertions that
the respondent was notified of his default and that a
contempt application would be brought against him. In my view, this
is disingenuous,
as the circumstances surrounding the payment of the
R600 000.00 are very relevant to the issue of whether the
respondent’s
non-payment of maintenance was wilful and
male
fides
.
[13]
The respondent asserts that there was a history of non-cooperation
from the applicant, whose conduct delayed
the finalisation of the
accrual calculation and hence the compliance with the Deed of
Settlement. He relocated to the Netherlands
on 15 January 2021, and
the accrual calculation he relies on was completed on 15 December
2021. What is evident is that the issue
of the accrual calculation
was ongoing from about 2020. It appears from the correspondence that
inputs were being given in respect
of the accrual calculation. The
initial calculation sent under cover of a letter dated 2 December
2020 reflected that an amount
of One Million Two Hundred and Thirty
Seven Thousand Fifty Nine Rand and Ninety Five Cents (R1 237 059.95)
was payable to the applicant
(the first calculation). Thereafter a
second calculation was sent to the parties on 25 May 2021, reflecting
an amount of Six Hundred
and Seventeen Thousand Fifty Nine Rand and
Sixty Cents (R617 059.60) payable to the applicant (the second
calculation), and
the third calculation was sent on 15 December 2021
in the amount of Six Hundred and Nine Thousand Eight Hundred and One
Thousand
and Three Cents (R609 801.03) payable to the applicant
(the third calculation)
[14] As
I indicated, the respondent relocated a month after the third
calculation was sent. From the papers it
seems that after receipt of
the second calculation, there was little or no communication from Mr
Weihmann from KWJ, who had undertaken
the task of calculating the
accrual, after Joubert left the employ of KWJ. The applicant in
approximately July 2021, lodged a complaint
with the Legal Practice
Council (LPC), complaining of Mr Weihmann’s inaction and
failure to finalise the accrual. The third
calculation was thereafter
done by Mr Weihmann on 15 December 2021. The respondent alleges that
he was unaware of the complaint
to the LPC, as this was done without
notification to or consent by him.
[15]
The tender to pay the accrual amount reflected in the third
calculation was done some time between 15 December
2021 and 9
February 2022. On the latter date, the respondent’s attorney
repeated the tender to Mr Weihmann, requesting
details of his Trust
banking account in order to deposit the money which he tendered to
pay. It seems that after he received
no cooperation from the
applicant, the respondent made payment of R600 00.00 to the
applicant, in August 2022. She rejected this
offer of settlement of
the accrual. He alleges that in view of his paying over the
R600 000.00, he was under the impression
that he did not have to
pay maintenance. He is criticised for not approaching the court to
confirm the accrual before paying an
amount less than the accrual
calculation, and for asserting that he thought the suspension of the
maintenance was a matter to be
settled between the parties. There was
a long explanation about the applicant’s attempts to return the
R600 000, and
the respondent’s failure to furnish his
details in terms of the Financial Information Centre Act (FICA) which
prevented her
from doing so. It ultimately turned out that there was
no requirement to comply with FICA. I do not consider it necessary to
deal
with this aspect for the purposes of the present consideration.
[16]
The inordinate delays in this matter prompted the respondent to
attempt finalisation of the matter by making
a settlement offer. He
had paid maintenance up to the month before that. The applicant
concedes that he paid timeously up to that
point. It must also be
borne in mind that he claims to have been unrepresented at the stage
that he made the payment. His attorney
also repeatedly reminded the
applicant’s attorneys of this, but the latter persisted in
forwarding correspondence to him,
and demanding a response. In
determining whether the respondent’s non-compliance with the
court order to pay maintenance
was wilful and
mala fides
, I
take cognisance of the conduct of the respondent. He made every
effort to finalise this matter but appears not have had much
cooperation from the applicant. The fact that he paid maintenance up
to that stage and paid R600 000.00 to her to settle the
matter,
does not indicate to me that he wilfully and in bad faith intended to
disobey the court order.
[17]
The fact that the applicant failed
to mention in her Founding papers that such an offer and payment were
made, is telling. She alleged
that she did not receive payment of the
accrual amount, without explaining the relevant circumstances, for
the benefit of the court
and in order for the court to make a proper
finding. In spite of the offer and the payment, she only thereafter
(in September 2022)
initiated communication with the respondent
regarding his default, and threatening a contempt application. She
alleges that he
did not pay maintenance from July to October 2022,
yet received payment of R600 000.00 in August 2022. It does not
speak of
a person who is desirous of resolving this matter, but
rather of one attempting to extract as much financial benefit as she
can
from the respondent. It also appears to me that she exploited the
respondent’s
financial position to her benefit. He
stated in no uncertain terms that he could not afford the costs of an
attorney in South Africa,
hence he wished to settle the matter. I am
constrained to find that the respondent’s state of mind or his
conduct are indicative
of wilfulness. An incorrect interpretation or
a possible lack of understanding of the correct legal position does
not, in my view,
translate to wilfulness or bad faith.
[18]
I turn now to deal with the issues raised in respect of the
compilation of the accrual calculation. The three
calculations I
mentioned earlier were all undertaken by Mr Weihmann of KWJ. Both
parties appear to have made inputs as each calculation
was presented
to them, resulting in the final calculation drawn by Mr Weihmann on
15 December 2021. Both parties appear to have
accepted Mr Weihmann’s
authority to do so, knowing that it was Joubert who was appointed as
the Receiver by the court. Neither
raised objections to Mr Weihmann’s
calculation dated 15 December. This latter calculation followed the
complaint lodged by
the applicant against Mr Weihmann and was done
before the decision of the LPC regarding Mr Weihmann’s
authority was made.
It is noteworthy that the complaint was not
against Mr Weihmann’s lack of authority to undertake the
calculation of the accrual
but to his lack of response to the
applicant’s enquiries in respect of the calculation and his
failure to expeditiously finalise
the calculation. The complaint ends
as follows: “
I am very concerned about the legal charges.
Urgently need this case to be solved please!”
[19]
The applicant boldly asserts at para 15 of
her Answering Affidavit to the counter application that she referred
the matter to the
LPC as a consequence of the fact that “
Mr
JL Weihmann was not the appointed receiver and has no authority to
make any determination regarding the accrual”.
This is not
correct, as his lack of authority was not the basis of the complaint.
The LPC appears to have made a ruling that it is
Joubert who was required to finalise the accrual. A letter from Mr
Weihmann attached
to the papers, indicated that he would be handing
the file in this matter to Joubert on 28 March 2022. No details are
furnished
with regard to how Mr Weihmann’s authority came to be
considered, but it would appear that the LPC, in the course of its
investigation of the applicant’s complaint of the delays on the
part of Mr Weihmann, made this finding.
[20]
The respondent alleges that he was not informed of the complaint to
the LPC, lodged by the applicant. She
does not dispute that she did
not inform the respondent of the complaint to the LPC, nor is there
anything in the papers to suggest
that she informed him of the outcome thereof. Yet she suggests in her
Answering Affidavit to the counter application, that “
notwithstanding
the findings of the Legal Practice Council”
, the respondent
persists in alleging that the accrual has been finalised. It is
evident, in my view, that the respondent was not
aware of the
findings and decision of the LPC regarding Mr Weihmann’s lack
of authority, and in the absence of any response
or objection from
the applicant, assumed that the accrual calculation of 15 December
2021 was the final account. It appears that
the LPC’s decision
was taken some time after February 2022, otherwise, it would make no
sense for him to repeat the tender
on 9 February 2022 to Mr Mr
Weihmann, indicating that a tender of payment had already been made
to the applicant but no response
was received.
[21]
The applicant’s conduct in not responding to a tender made
before February 2022 fortifies the respondent’s
assertion that
she was non-cooperative and intended to delay the finalisation of the
accrual as long as possible. There was no
reason not to respond to
the respondent’s tender made prior to 9 February 2022. If she
considered that the accrual calculation
was not finalised in December
2021, one would have expected an immediate response to the earlier
tender. I gain the distinct impression
that this stance only arose
after the LPC rendered its decision to her complaint, so that by the
time the respondent made payment
of the R600 000.00 in August
2022, she saw a way out of accepting the tender.
[22]
It also fortifies my impression that she wished to gain maximum
financial benefit from the accrual.
An example of this is
contained in two letters, both dated 2 September 2022, attached to
her Answering Affidavit (RA 5 and RA 6),
in which reference is made
to two accrual calculations which were referred to as “A”
and “B”. I note that
“A” and “B”
were not attached. She indicated that she accepts “A” as
final, while the respondent
accepts “B” as final. RA5 was
addressed to the respondent’s attorney, while RA6 was addressed
to Joubert. In
the letter to Joubert, her attorney points out that
that there are two different accrual calculations, where “A”
is
accepted by the applicant, while “B” is accepted by
the respondent. Joubert was then requested to approach the court
for
directions as it appears that there is a deadlock between the
parties.
[23] In
para 20 of her Answering Affidavit, the applicant, in referring to
RA6, alleges that the respondent accepts
the calculation done by Mr
Weihmann, while she accepts the provisional calculation of the
accrual, previously done by Joubert.
This is once more an incorrect
assertion, as RA6 makes no mention that the calculation she accepts
is the provisional calculation
done by Joubert. In fact, nowhere else
in the papers is there an allegation that Joubert did a provisional
calculation. The applicant
failed to attach a copy of such a
calculation to the papers. As I pointed out earlier, there were three
calculations, all done
by Mr Weihmann. In the first calculation, the
amount of R 1237 059.95 was payable to the applicant, and the
calculation which the
respondent relies on is the third calculation
in which the amount of R609 801.03 was payable to the applicant.
The court can
only assume that “A” referred to by the
applicant is in fact the accrual calculation sent on 2 December 2020.
The correspondence
annexed to the applicant’s complaint to the
LPC, and which was attached to her Answering/Replying Affidavit,
reveals that
the applicant’s attorney sent a letter, dated 28
May 2021, to Mr Weihmann in which he made certain inputs regarding
what
appears to be the second calculation (which was sent to the
parties on 25 May 2021), and requested amendments thereto. He did not
in any way challenge Mr Weihmann’s authority to do such
calculations.
[24]
The applicant previously opportunistically “accepted” a
calculation reflecting an amount twice
that of the third calculation
relied upon by the respondent. Both calculations were undertaken by
Mr Weihmann. This flies in the
face of the stance adopted in
September 2022 that Mr Weihmann lacks authority to have done the
calculation, hence the accrual calculations
done by him are not
valid. In the interim, the applicant demands that maintenance
payments should continue. It is worth noting
that the applicant and
respondent were represented by seasoned attorneys during the divorce
proceedings as well as during the period
that the accrual
calculations were being attended to by Mr Weihmann. It begs the
question why neither attorney raised the issue
of the latter’s
lack of authority to undertake the accrual calculation in terms of
the law.
[25]
The parties conducted themselves for almost three years as though Mr
Weihmann was authorised to act, and
even indicated that they accept
the calculations done by him, albeit two different calculations done
at different times.
The authority of a Receiver is a matter of
law, and litigating parties usually rely on their legal
representatives for guidance
in this regard. The applicant’s
stance changed seemingly after the LPC alerted her to the fact that
Mr Weihmann did not have
authority to act, and directed Joubert to
undertake the finalisation of the accrual. This lack of proper
guidance and advice from
the attorneys has caused much prejudice to
the parties, particularly the respondent. For that matter, Mr
Weihmann, himself a seasoned
attorney, seemed oblivious to the legal
requirements for him to act as Receiver in this matter
[26]
It is so that Joubert was appointed by the court to attend to the
finalisation of the accrual, and that,
in the event that he failed or
was unable to fulfil his mandate to finalise the accrual, application
would have to be made to court
for him to be replaced by another
Receiver. Even if the parties agree that a person, other than the
court appointed Receiver, should
do the calculation, the court order
would have to be amended to include such other person as the
Receiver. Therefore, the parties
should have approached the court to
substitute Mr Weihmann for Joubert. The final calculation of the
accrual would also have to
be approved by the court. Although both
parties appeared to accept the calculations of Mr Weihmann, neither
party followed the
proper course of approaching this court for the
appointment of Mr Weihmann as the Reciver in place of Joubert,
rendering the accrual
calculations by Mr Weihmann of no force or
effect.
[27]
The position of the parties is that the applicant is currently living
rent- free in a house owned by a Trust.
She is a businesswoman who
earns an income from that business. The respondent appears to have
stopped paying maintenance from July
2022. No evidence was placed
before this court to indicate what the current financial position of
the applicant is. The respondent
paid an amount of R600 000.00 to the
applicant in settlement of the accrual as determined in terms of the
calculation done by Mr
Weihmann in December 2021, and after much
wrangling over that money, it eventually found its way into the Trust
banking account
of Peyper Attorneys, where Joubert is currently
employed. The respondent persists in his argument that both parties
accepted Mr
Weihmann’s authority to finalise the calculation of
the accrual and as neither party objected thereto, the calculation of
the accrual was finalised in December 2021. This argument is
not good in law.
[28]
The court, in adjudicating this matter, is obliged
to apply the law in a way that will be fair to both parties
and serve
the interests of justice. I have set out the acrimonious nature of
the relationship between the parties, which has clearly
prevented
them from finalising this matter. It is an untenable situation that
almost four years after the final order of divorce
was granted, the
parties have not brought finality to this matter. In my view, the
legal representatives of the parties must bear
some responsibility
for this, as they have not diligently advised the parties of the
legal requirements relevant to this matter
and failed to comply with
such legal requirements. The conduct of the appointed Receiver,
Joubert, is deeply worrisome. He has
not discharged his duties as an
officer of this court, and even after the file was handed to him, in
March 2022, following the
decision of the LPC, he appears to have
done nothing to finalise the calculation of the accrual, for the
eleven months since the
file was handed to him, prior to the hearing
of this matter. There appear to be no outstanding documents or
information required
for him to have finalised the calculation. If
there were, he had ample time to request same from the parties to
enable him to comply
with his duties in terms of the court order.
[29]
He deposed to a confirmatory affidavit in support of the applicant’s
case, making the bald assertion
that the accrual has not yet been
finalised. He has made no attempt to explain why:
(a)
he has not complied with the court order of 16 October 2019,
(b)
Mr Weihmann undertook the calculation of the accrual,
(c)
he had not approached the court for direction as to how he should
take the matter forward, in view of the impasse between the
parties
and
(d)
he appears not to have finalised the calculation of the accrual in
the eleven months prior to the hearing of this matter.
[30]
In my view, Joubert’s conduct is unacceptable and warrants
investigation. He has failed to conduct
himself according to the
standard required of an officer of this court and he has also failed
to act in the interests of the parties
in this matter, causing them
undue prejudice. I intend to refer his conduct to the Legal Practice
Council for further investigation.
The applicant and respondent have
also fallen short in their behaviour towards each other, causing the
untenable situation they
find themselves in. Not only have they
delayed the finalisation of the matter, but have unnecessarily
escalated the costs in this
matter, by their obstinate and
recalcitrant conduct. It does not lie in their mouths to complain
about legal costs, nor to seek
the payment of such costs from the
opposing party.
[31]
Consequently the
following orders are made:
31.1
The application to declare the respondent to be in contempt of court
is dismissed;
31.2
The counter application is dismissed, save for the following:
31.2.1
The maintenance obligations of the respondent arising in paragraphs
1.1 and 1.1.1 of the Deed
of Settlement made an order of court on 16
October 2019, are suspended pending the outcome of proceedings
referred to in 31.2.2;
31.2.2
The applicant is authorised to approach the Maintenance Court within
60 days from the date
of this order in order for that court to
determine whether the applicant is in need of maintenance and whether
the respondent has
any reciprocal obligations in relation thereto;
31.3
Each party is to pay his/her own costs;
31.4
The Receiver, Pieter Joubert, is directed to take all necessary steps
to finalise the calculation of the
accrual in this matter, within
sixty (60) days from the date of this order;
31.5
The Registrar of this Division is directed to bring this judgment to
the attention of the Legal Practice
Council, Free State, for
investigation into the conduct of Pieter Joubert in failing to attend
to and finalise the calculation
of the accrual since 16 October 2019,
in compliance with the court order of that date.
S NAIDOO, J
On
behalf of Applicant:
Adv
R van der Merwe
Instructed
by:
McIntyre
Van der Post
12
Barnes Street
Westdene
Bloemfontein
(Ref:
BCS352/LHW Cato/ldv)
On
behalf of Respondent:
Adv
MC Louw
Instructed
by:
Steyn
Attorneys Inc
71
Durban Street
Worcester
c/o
Hill, McHardy & Herbst Inc
7
Collins Road
A
xrboretum
Bloemfontein
(Ref:
Pieter Schuurman)