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[2023] ZAFSHC 322
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H.S.E v H.A.E (3350/2022) [2023] ZAFSHC 322 (15 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3350/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
H[....]1
S[....]
E[....]
Applicant
And
H[....]2
A[....] E[....]
Respondent
HEARD
ON:
20 & 28
APRIL 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties' representatives by
email and by release to SAFLII. The
date and time for hand-down is
deemed to be 15 August 2023 at 09h30.
[1]
The parties are biological parents of two minor children H[....]3 and
H[....]4 born from their marriage which
was dissolved on 02 May 2017
pursuant to a decree of divorce (“the divorce order”)
incorporating a deed of settlement
which made provision for the
parties’ parental responsibilities and rights in respect of the
minor children on the basis
that: primary residence of the children
was awarded to the respondent subject to the applicant’s right
to contact. The applicant
was ordered to pay maintenance in respect
of the minor children to the respondent in the amount of R4000.00 per
month per child.
[2]
Despite the provisions of the deed of settlement, the parties have
continued to be embroiled in acrimonious
litigation over their
children. During March 2020 the respondent successfully launched an
urgent application for the return of
the children after the applicant
defied the divorce order by failing to return the minor children to
the respondent’s care
after a visit. On 13 October 2021 the
applicant’s urgent application for primary residence was struck
from the roll. The
respondent was awarded costs in respect of both
the applications (cost orders).
[3]
Yet again, these proceedings involve the residency and maintenance of
the minor children. The applicant seeks
variation of the divorce
order (the main application). The purport is for primary residence of
the minor children to be awarded
to him subject to the respondent’s
rights of contact and an assessment of the minor children by clinical
and educational
psychologists regarding the change of the children’s
circumstances. The basis of the main application is an alleged
curtailment
of the applicant’s contact rights resulting from
parental alienation by the respondent.
[4]
In addition to opposing the main application, the respondent launched
a counter-application seeking an order
on the following terms:
“
1
a)
That the Family Advocate, Bloemfontein, be authorized and
directed to investigate the circumstances, care, placement and
contact
of the minor children H[....]1 Erasmus and Hellen Erasmus and
to furnish this Honourable Court with a report and a recommendation
regarding the best interests of the minor children;
b)
That the Applicant and Respondent be granted leave to
supplement their papers and to approach the Honourable Court on the
same papers
duly amplified (if so advised) for any order which they
may require regarding the care and contact of the minor children once
the
Family Advocate’s report and recommendation are received.
2.
a)
That a rule nisi be issued, calling on the Applicant to give
reasons, if any, on a date as determined by the Court why;
i)
The Applicant should not be found guilty of contempt of Court;
ii)
The Applicant should not be ordered to pay a fine, the amount
of which is to be determined by the above Honourable Court in the
event of the Applicant being found guilty of contempt of Court;
iii)
The Applicant should not be sentenced to direct imprisonment
for a period of 6 months, aforementioned period to be suspended for
a
period of three years, subject to the conditions that the Applicant
pay a fine, the amount of which is to be determined by the
above
Honourable Court, the Applicant purge his contempt within thirty (30)
days from date of this order and subject to the condition
that the
Applicant not be found guilty of contempt of Court for a period of 3
years from the date that this order is granted.
3.
That the Applicant’s application be stayed pending the
adjudication of the relief sought in prayers 1 and 2 above;
4.
In the event that the Applicant is found guilty of contempt of
Court, that the Applicant’s application be stayed until such
time as the Applicant has purged his contempt.
5.
That the Applicant pay the costs of the Respondent’s
opposition of the Applicant’s application as well as the cost
of
the counter-application...”
[5]
Having regard to the relief sought by the respondent, the respondent
is not opposed to investigation of the
circumstances of the children
except that the investigation must be carried out by a family
advocate and it must be in relation
to the issue of primary residence
and contact. The remainder of the relief is a declaratory order that
the applicant is in contempt
of court for failing to comply with both
the divorce and cost orders and that he is prohibited from ...until
he has purged his
contempt (“the contempt application”).
[6]
At the commencement of the proceedings, it was submitted by counsel
for the applicant that the parties were
ad idem
that the main
application could not be adjudicated together with the
counter-application must be stayed pending the outcome of the
investigation by the family advocate and the respondent’s
counter-application. Counsel for the respondent countered that
no
agreement had been reached by the parties in that regard however,
having regard to the fact that the referral to the family
advocate is
not opposed the main application ought to be stayed pending the
outcome of investigation and report by the family advocate.
[7]
Following the parties’ submissions, I made the following order:
“
1.
The main application is stayed pending an investigation by the family
advocate to investigate the circumstances of the
children and provide
a report in relation to their primary residence and contact.
2.
The family advocate is ordered to file the report within thirty (30)
days from the date of this order.
3.
The parties are granted leave to supplement their papers (if
necessary) and to approach this court on the same papers
duly
amplified for the relief that they may respectively require or seek
regarding primary residence and contact in respect of
the children
once the family advocate’s report is received.
4.
The costs shall stand over for later adjudication...”
[8]
Accordingly, what remained to be determined was the contempt
application and in the event that I find in favour
of the respondent
in that respect, the issue that must be determined is whether the
applicant ought to be prohibited from proceeding
with the main
application until he has purged his contempt.
[9]
Contempt of court has been described by Cameron, JA in
Fakie
NO v CCII Systems (Pty) Ltd
[1]
as an act of violation of the dignity, repute or authority of a court
or judicial officer. It is also a deliberate affront to the
rule
of law and the Constitution itself.
[2]
[10]
It was pointed out in
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Other
[3]
that:
“
As
set out by the Supreme Court of Appeal in Fakie, and approved by this
court in Pheko II, it is trite that a
n
applicant who alleges contempt of court must establish that (a) an
order was granted against the alleged contemnor; (b) the alleged
contemnor was served with the order or had knowledge of it; and (c)
the alleged contemnor failed to comply with the order. Once
these
elements are established, wilfulness and mala fides are presumed
and the respondent bears an evidentiary burden to establish
a
reasonable doubt. Should the respondent fail to discharge this
burden, contempt will have been established.”
[11]
It is the respondent’s case that the applicant has defied both
the court orders by defaulting on his maintenance
payment obligations
and for failing to pay the costs as ordered. As at the date of the
hearing, the applicant is in arrears with
his maintenance payments in
an amount of R268 635. 35 and has also neglected to pay to the
respondent her legal costs as ordered
in the total amount of
R166 659.29.
[12]
According to the respondent, the applicant’s failure to adhere
to the court orders is wilful and merely motivated
by malice and not
lack of financial means. As the sole member of an entity known as
Vrugtefontein Boerdery which owns several farms,
the respondent sold
the farms and received about R8 million which he in turn loaned to a
Trust known as Siberia Trust in which
he is a sole beneficiary. The
loan is repayable to the applicant on demand and since the court
orders were issued, he has been
spending money on attorneys and
experts instead of maintaining his children and paying the debt due
to the respondent. In his further
attempt to avoid his
responsibilities, in January 2021 the applicant lodged an application
for reduction of maintenance with the
maintenance court at that time,
his maintenance arrears had already escalated to R118 997.87 and
the writ of execution issued
by the maintenance court in that regard
was returned unsatisfied by the sheriff. The fact that the applicant
has since approached
the maintenance court for variation of
maintenance is not a defence therefore, the applicant must be found
in contempt of court
for disobeying the orders granted by the court.
[13]
Relying on
SS v VV-S
2018 (6) BCLR 671
(CC) para
31 and
J v J
(67591/13) [2019] ZAGPPHC 434
(20
September 2019), it was contended counsel for the respondent that due
to the applicant’s contemptuous disregard of the
court orders
essentially, his maintenance obligations the applicant is not
entitled to be heard in his main application until he
has purged his
contempt. The court must also express its disapproval with the
applicant’s conduct by way of an appropriate
order of costs on
attorney and client scale.
[14]
It is common cause that the court orders which are subject of this
counter-application are extant, the applicant is also
aware of their
provisions he actually complied with the terms of the divorce order
until he fell into arrears and fail to make
any payments in relation
to the respondent’s costs thereby contravening the court
orders. It is also indisputable that the
applicant then bears the
evidential burden to create a reasonable doubt as to existence of
wilfulness and mala fides in his failure
to comply with the court
orders.
[15]
The counter-application is resisted on the basis that the applicant’s
failure to adhere to the court orders was
neither wilful nor
mala
fide
but due to a change in financial circumstances occasioned by
the costs of the divorce, the onerous interim maintenance, litigation
costs and the costs that he incurs in order to exercise contact while
his income has reduced to R6 000.00 per month due to
the effects
of drought on his farming activities.
[16]
It is the applicant’s case that he can only afford R3000.00 per
month per child and it is in that regard that in
January 2021 he
approached the maintenance court and lodged an application for
variation for the maintenance to be reduced from
R4000.00 to
R3000.00. The application has still not been heard, it has been
postponed for several times due to issues beyond his
control and to
avoid a duplication of the issues the full details of his financial
position will be presented at the maintenance
court when the
application for variation is ultimately heard.
[17]
The applicant further states that due to the fact that the issue with
regard to his ability to maintenance as per the
divorce order
currently serves before the maintenance court. If he succeeds in the
maintenance court to show that he is not able
to comply with his
current maintenance obligations then he would have shown good cause
for variation of the maintenance payment
and for his failure to
adhere to the divorce order for that reason, these contempt of court
proceedings are also
lis pendens,
as they involve the same
cause of action to be determined at the maintenance court.
[18]
As regards the cost orders
,
the applicant contends that there
was no need for contempt proceedings, the respondent could have
followed the normal execution
steps. The counter-application has been
opportunistically pursued and designed to either delay or prevent the
ventilation of the
main application which alludes to
prima facie
evidence of parental alienation on the part of the respondent.
The counter-application must thus fail and the respondent be ordered
to pay the costs on a punitive scale.
[19]
The applicant has raised unmeritorious defences to the respondent’s
counter-application. It is trite and it has
been accepted that the
obligation to prove the absence wilfulness and
mala fides
for
his failure to adhere to the court orders is on the applicant.
[20]
Except to
fleetingly attribute his failure to
adhere to the court orders the applicant has provided no evidence in
relation to his alleged
m
aterial change in his financial
circumstances. He told the court that he will address that issue at
the maintenance court therefore,
at a
prima facie
level the
respondent’s contention that the applicant’s failure to
comply with the court orders is not due to lack of
means has not been
gainsaid. It is also important to note that it took the applicant
approximately over three years since the divorce
order to seek the
variation of the order. Another six years lapsed from the date he
launched the variation application to the date
on which these
proceedings were heard. The arrears are substantial and the delay is
extreme, this points to maliciousness, a total
disregard of his
parental responsibilities and an affront to an order of court aimed
at protecting the minor children’s best
interests.
[21]
In any event, the applicant’s inability to comply with the
terms of the court orders does not absolve him from
complying with
the orders of court. A court order must be respected until set aside.
It was stated in
Minister
of Home Affairs and Others v Somali Association of South Africa EC
and Another
[4]
that:
“…
after
all there is an unqualified obligation on every person against, or in
respect of, whom an order is made by a court of competent
jurisdiction to obey it unless and until that order is discharged. It
cannot be left to the litigants to themselves judge whether
or not an
order of court should be obeyed.”
[22]
This matter is also
not
lis pendens.
It is trite that the
underlying
principle of the doctrine of
lis
alibi pendens
is
that
where
a dispute involving the same parties based on the same cause of
action and in respect of the same subject matter is litigated
elsewhere, it must be finalized in that forum and not replicated in
another forum as that may result in different courts
pronouncing
on the same issue with the risk that they may reach differing
conclusions.
[5]
Except for the
fact that thi
s
matter involves the same parties and the dispute arises from their
respective obligations and rights relating to their minor children,
the
determinative
issue in these proceedings is whether the
applicant’s
failure to comply with the court orders is/not wilful and
mala
fide
whereas in the proceedings which serve before the maintenance court
the determinative issue is whether there has been a
change
in the applicant’s financial circumstances warranting a
reduction of maintenance. The cause of action is accordingly
not the
same.
[23]
There
is also no merit to the applicant’s contention
that the respondent is required to have employed other means of
collecting
the debt relating to the unpaid cost orders instead of
launching the contempt application. In
Fakie
it was held that:
“
[42]
(a) The civil contempt procedure is a valuable and important
mechanism for securing compliance with court
orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.”
[24]
On the facts germane to this matter, I hold that the applicant has
failed to discharge his burden of disproving that
he has been wilful
and
mala
fide
in this failure to
comply with the court orders, contempt of court has been established
beyond a reasonable doubt.
[25]
I am not persuaded that the respondent has made out a case for the
stay of the main application until the applicant has
purged his
contempt. The respondent’s reliance on
SS
v VV-S
and
J
v J
is misplaced. For the reason that, in
SS
v VV-S
the contemnor was prohibited from proceeding with an appeal on the
basis that the appeal was directed at the order in terms which
a
warrant of execution against the contemnor’s immovable property
was authorised in respect of his failure to adhere to his
maintenance
obligations. In this matter, the main application is intended to
terminate the respondent’s rights to provide
the children with
primary residence. Furthermore, in
J
v J
the court was seized with a dispute involving spousal maintenance
whereas in this matter
child
maintenance is at issue and a
child’s
right to receive maintenance from a parent is not linked to parental
rights to seek primary residence and contact.
The matter is
deliberated in consonant with the best interest interests of the
child as provided for in section 28(2) of the Constitution
Act
[6]
and section 9 of the Children’s Act.
[7]
[26]
With regard to costs,
I
have come to the conclusion that the respondent has substantially
succeeded with the counter-application. She is accordingly entitled
to costs. I have alluded to the applicant’s flagrant
disobedience of the orders of the court, para [19] supra. The
applicant’s
conduct is not only prejudicial to the minor
children’s best interest it is also criminal.
[8]
A cost order on a punitive scale is thus warranted.
Order
[27]
In the circumstances, I make the following order:
1.
A rule nisi is issued calling upon the Applicant to give reasons, if
any,
on
14 September 2023
why an order should not be made on a
final basis:
2.1.
Declaring that the Applicant is in contempt of the court orders
issued on 02 May 2017 and 13
October 2021
;
2.2.
Ordering the Applicant to pay a fine, the amount of which amount is
to be determined by this Court;
and
2.3.
Sentencing the Applicant to direct imprisonment for a period of 6
months, aforementioned period to
be suspended for a period of three
years, subject to the conditions that the Applicant pay a fine, the
amount of which is to be
determined by this Court, the Applicant
purge his contempt within thirty (30) days from date of this order
and subject to the condition
that the Applicant not be found guilty
of contempt of Court for a period of 3 years from the date that this
order is granted.
3.
The applicant shall pay the costs of the counter-application on
attorney
and client scale.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv. HJ
Van der Merwe
Instructed
by:
Symington de
Kok Attorneys
BLOEMFONTEIN
Counsel
on behalf of the respondent: Adv.
R. Van der Merwe
Instructed
by:
Phatsoane
Henney
Attorneys
BLOEMFONTEIN
[1]
[
2006]
ZASCA 52
;
2006
(4) SA 326
(SCA).
[2]
Pheko
and Others v Ekurhuleni City
2015
(5) SA 600
(CC) para 1;
2015
(6) BCLR 711
(CC).
[3]
[2021]
ZACC 18
;
2021
(9) BCLR 992
(CC);
2021
(5) SA 327
(CC) para 37 quoting with approval
Fakie
N.O. v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006
(4) SA 326
(SCA)
and (
Pheko
II
)
.
[4]
[2015]
2 All SA 294
para
35.
[5]
C
aesarstone
Sdot-Yam Ltd v The World of Marble and Granite CC
2013
(6) SA 499
(SCA)
paras
18-30.
[6]
The Constitution of the Republic of South Africa, Act No, 108 of
1996.
[7]
Act No, 38 of 2005. Section 9 provides:
“
In all matters concerning the care, protection and wellbeing of a child the standard that the child's best interest is of paramount
importance, must be applied.”
[8]
Section
31
(1) of the
Maintenance Act 99 of 1998
,
Bannatyne
v Bannatyne and Another
(CCT18/02
)
[2002]
ZACC 31
;
2003
(2) BCLR 111
[2002] ZACC 31
; ;
2003
(2) SA 363
(CC)
(20 December 2002) para 4.