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[2023] ZAFSHC 274
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S.J.B v F.J.B (5034/2022) [2023] ZAFSHC 274 (18 July 2023)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 5034/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO
MAGISTRATES: YES/NO
In
the matter between: -
S[…]
J[…] B[…]
First
Applicant
and
F[…]
J[…] B[…]
First
Respondent
CORAM:
MBHELE, DJP
HEARD
ON:
25 MAY 2023
DELIVERED
ON:
18 JULY 2023
[1]
This is an application to declare the respondent in contempt of an
order granted by my brother
Mhlambi, J on 05 November 2020.
[2]
The parties were married to each other and their marriage was
dissolved through divorce on 05
November 2020 with the order of court
incorporating a deed of settlement. The relevant terms of the deed of
settlement are stated
below:
1.1
‘
The Defendant to pay maintenance to
the Plaintiff in the amount of R6 000.00 (Six Thousand Rand)
on/or before the 7
th
day of each and every consecutive month starting on the 7
th
day of August 2020 until the Plaintiff’s date of death or
remarriage.
1.2
The Defendant to keep the Plaintiff on his
medical aid until the Plaintiff’s date of death or remarriage.
2.1
The Defendant will have contact with the major dependent child at all
reasonable times.
2.2
The Defendant to pay maintenance in respect of the major dependent
child to the Plaintiff in the amount
of R 4 000.00 (Four
Thousand Rand) on/or before the 7
th
day of each and every
consecutive month starting on the 7
th
day of August 2020
until the major dependent child is self-supporting.
2.3
The Defendant will keep the major dependent child on his medical aid
until such time that the major
dependent child is self-supporting.
2.4
The Defendant will be liable for any and all medical cost including
dental care and medication which
is not covered by the medical on
demand.
4.2
The Defendant will pay a cash amount of R200 000.00 (Two Hundred
Thousand Rand) into the bank account
pf the Plaintiff without any
deduction or set-off on or before the 30
th
of January
2021. Which cash amount not to be obtained by way of mortgage bond
over the immovable property.
4.3
The Plaintiff will keep the following vehicles as her sole property:
a.
Mazda with Vin Number: LR5[…], Engine Number: FE9[…]
and Registration Number:
BLB[…]. The Defendant will repair the
abovementioned vehicle at his own cost within a reasonable time.
b.
Jurgens Caravan with Vin Number: 090[…] with Registration
Number: CLS[…].
c.
BMW Vin Number: WBA[…], Engine Number: 501[…] and
Registration Number: GKF[…].
The Defendant will repair the
abovementioned vehicle at his own cost within a reasonable time. The
Defendant will sign all necessary
documents to effect transfer of
ownership in the name of the Plaintiff within 7 days after date of
divorce.
5.1
The Plaintiff shall keep as her sole property the immovable property
situated at No […] D[…]
F[…] Street, Noodhoek,
Bloemfontein, Free State Province (hereinafter “the immovable
property”).
5.2
The Defendant is liable for all monthly mortgage payments in respect
of the immovable property until
the immovable property is paid in
full.
5.3
The Defendant shall keep the immovable property insured until the
immovable property has been paid in
full and transferred and
registered in the name of the Plaintiff.
5.4
The Defendant shall sign any and all necessary document to effect
transfer and register of his 50% share
in the immovable property into
the name of the Plaintiff once the property is paid in full.
5.5
Should the immovable property be sold by the Plaintiff prior to
settlement of the mortgage bond the
Defendant shall sign any and all
necessary document to effect transfer of the immovable property into
the name of the purchaser.
5.6
All profits from any sale of the immovable property shall be for the
Plaintiff.
7.1
The Defendant will be liable to pay the following debts until it is
paid in full:
a.
The mortgage bond of the immovable property situated at No […]
D[…] F[…]
Street, Noodhoek, Bloemfontein, Free State
Province.
b.
The Ford Ranger with Vin Number: AFA[…]6, Engine Number:
4ES[…].
c.
The Ford Ranger Vin Number: AFA[…]5. Engine Number: QJ2[…].
d.
The Mangaung Metropolitan Municipality Account as at date 30 July
2020 in the amount of R6267.00.
e.
Any and all debts in the name of the Defendant.
7.2
The Plaintiff will be liable to pay the following debts until it is
paid in full:
a.
Miladies.
b.
Mr Price.
c.
Markhams.’
[3]
The
non-compliance which the applicant alleges are partial payments of
cash maintenance for the months of December 2021 up to the
date of
hearing this matter, cancellation of medical aid in which the
applicant and the parties’ son were members,
an outstanding
amount of R 159 284.98 being a balance of R200 000 which
the respondent undertook to pay before 30 January
2021, failure to
repair the BMW and Mazda vehicles and non-payment of bond on the
property occupied by the applicant and their
son. In October 2022 the
arear maintenance was R 39370.00.
[4]
Contempt of court is defined as “the deliberate,
intentional disobedience of an order granted by a
court of competent
jurisdiction.”
[1]
The
respondent’s knowledge of the order, non- compliance thereof
and that he operates a business as a mechanic are common
cause. Once
order, non-compliance and service have been established the next step
is to determine whether the respondent’s
non-compliance was not
wilful and
mala
fide
.
If the respondent fails to provide evidence raising a reasonable
doubt as to whether noncompliance was wilful and
mala
fide
,
he has to be found guilty of contempt of the relevant court order.
See
Fakie
NO v CCII Systems (Pty) Ltd
[2]
;
Matjhabeng
Local Municipality v Eskom Holdings Ltd & others; Mkhonto &
others v Compensation Solutions (Pty) Ltd
[3]
[5]
Owing to the respondent’s failure to comply with the court
order the applicant had to pay
R12 290 to prevent the bank from
repossessing the Ford Ranger. Despite this payment the vehicle
remains in arrears. The applicant
has started working as an estate
agent and she requires the vehicle to run her business.
Foreclosure
proceedings ensued during March 2022 which resulted in the applicant
paying one hundred and twenty-one thousand (R 121 000.00)
in
full and final settlement of the Bond to prevent the bank from
selling the house in foreclosure. Even after the respondent
had
no obligation to pay monthly instalment towards the Bond he failed to
pay full maintenance amount towards the applicant and
their son. The
Sheriff attached the respondent’s boat and sold it in execution
for R40 000. The money was used to reduce
the R200 000 debt
owing to the applicant.
[6]
The respondent attributes his failure to abide by the court order to
drastic changes in his financial
and personal position brought about
by COVID. He submits that his business, which is his only source of
income, was generating
an income of about R40 000. 00 per month
before COVID. The income post COVID, has since deteriorated to about
R20 000
per month on average. As a result of reduced
income he has failed to meet his rental obligations both for
residential and
business premises. His Ford Ranger motor
vehicle has since been repossessed by the bank as a result of failure
to repay monthly
instalments. He has not been able to pay the monthly
maintenance amount in full. He makes sporadic payments
ranging
between R200- R1000 throughout the month. The payments are
made in cash, sometimes in 13 instalments within a month. He
cancelled
the medical aid because he could no longer afford monthly
premiums. He has however been paying for their son’s medication
ranging between R1 500 – R1 800 per month.
[7] The
respondent’s business bank statements show that the relevant
account is overdrawn by R24 466.66
and that the average income
is far less than R15 000 per month. The respondent’s
personal bank statements reflect an
average monthly income of about
R4 500.
[8]
The applicant disputed that the bank statements are a true reflection
of the respondent’s earnings
owing to her knowledge that the
business used to generate a lot of cash payments. The respondent
provided a copy of the business
cash book which reflected that the
cash payments received within 3 months’ period was R22 296.00.
He invited the applicant
to inspect the original cash book. The
applicant did not use this opportunity to inspect the cash book.
[9]
The evidence before me shows that the respondent’s income is
not sufficient to cater for
all his monthly obligations. The
respondent stated that he has a registered Trust under his control.
He, further, submitted that
the Trust is not operating any business
and does not have a bank account registered in its name. The
applicant conceded in her
founding affidavit that the respondent does
not use the said trust to operate his business.
[10]
In the replying affidavit the applicant lamented that the respondent
prioritised his girlfriend’s
child’s school fees over his
maintenance obligations and the court order. The evidence presented
before me shows that the
said school fees has not been paid in months
and remains in arrears. The applicant has not presented any
documentary proof to rebut
the respondent’s version.
[11]
These are motion proceedings for a final relief. The Plascon Evans
rule finds application. The factual disputes
must be decided on the
respondent’s version together with those facts that are
undisputed and common cause. The respondent’s
version should be
rejected if it is untenable and far-fetched. See
Plascon-Evans
Paints v Van Riebeeck Paints
.
[4]
[12]
In
Fakie
[5]
Cameron, JA asserted that it is a crime to unlawfully and
intentionally disobey a court order. Flagrant disrespect of court
orders
threatens the rule of law. The rule of law is at the center of
constitutional democracy and needs to be protected and advanced.
Contempt proceedings serve as one of the tools to protect the
authority and honour of the courts.
[13]
In
Pheko
and Others v Ekurhuleni Metropolitan Municipality
[6]
and others Nkabinde , J held
as follows:
[1]
‘
The rule of law, a foundational
value of the Constitution, requires that the dignity and authority of
the courts be upheld.
This is crucial, as the capacity of the
courts to carry out their functions depends upon it. As the
Constitution commands,
orders and decisions issued by a court bind
all persons to whom and organs of state to which they apply, and no
person or organ
of state may interfere, in any manner, with the
functioning of the courts. It follows from this that
disobedience towards
court orders or decisions risks rendering our
courts impotent and judicial authority a mere mockery. The
effectiveness of
court orders or decisions is substantially
determined by the assurance that they will be enforced.
[2]
Courts have the power to ensure that their
decisions or orders are complied with by all and sundry, including
organs of state.
In doing so, courts are not only giving effect
to the rights of the successful litigant but also and more
importantly, by acting
as guardians of the Constitution, asserting
their authority in the public interest. It is thus unsurprising
that courts may,
as is the position in this case, raise the issue of
civil contempt of their own accord.’
[14]
The respondent, without bringing a counter application, requests
variation of the maintenance order and
restructuring of the repayment
term in which the arrear maintenance would be payable in 36 months.
Maintenance matters are best
dealt with at the Magistrate Court.
Magistrate courts are equipped with Maintenance investigators who
would comb through the parties’
accounts and assets to help the
court determine affordability. The information before me is
inadequate for the purpose of entertaining
the respondent’s
request,
[15]
Having found that the respondent’s income is insufficient to
meet his financial obligations, the question
to ask is whether there
are assets available which can be sold to settle the arrear
maintenance. The evidence at this stage does
not show that there are
such assets. In view of the above, I am not satisfied that the
respondent’s non-compliance with the
order was wilful and
malicious. The application to declare him in contempt ought to fail.
[16] Costs
are in the discretion of the court. The respondent’s
non-compliance with the court order left
the applicant with no option
but to approach court for appropriate relief. The applicant was left
out of pocket. The respondent
has to bear the costs of this
application.
[17]
In view of the above, I make the following order
[18]
Order:
1.
The application to declare the respondent
in contempt of court is dismissed.
2.
Respondent to pay costs of this
application, costs to include those incurred in the employment of
Counsel.
N.M. MBHELE, DJP
Appearances:
For
the Appellants:
Adv.
Instructed
by
HJ
Booysen Attorneys
Bloemfontein
For
the Respondents:
Adv.
Instructed
by
Moruri
Attorneys Incorporated
Bloemfontein
[1]
Consolidated
Fish Distributors (Pty) Ltd v Zive
1968 (2) SA 517
(C) at 522C
[2]
[2006] ZASCA 52
;
2006
(4) SA 326
(
SCA)
at para 14
[3]
[2017] ZACC 35
;
2018 (1) SA 1
(CC) at par
67 and 85-88.
[4]
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H-635A)
[5]
[2006] ZASCA 52
;
2006
(4) SA 326
(
SCA)
‘
it is a crime
unlawfully and intentionally to disobey a Court order. This type of
contempt of Court is part of a broader offence,
which can take many
forms, but the essence of which lies in violating the dignity,
repute or authority of the Court. The offence
had, in general terms,
received a constitutional 'stamp of approval', since the rule of law
— a founding value of the Constitution
— 'requires that
the dignity and authority of the Courts, as well as their capacity
to carry out their functions, should
always be maintained.'
[6]
ZACC
10;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) (7 May 2015) at
par. 1 -2