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[2023] ZAECMKHC 10
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M.H v C.A.H (342/2018) [2023] ZAECMKHC 10 (12 January 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: 342/2018
In
the matter between:
M[...]
H[...]
Applicant
and
C[...]
A[...] H[...]
Respondent
JUDGMENT
Rugunanan
J
[1]
The applicant, who represents himself,
essentially seeks interdictory relief for a stay of execution pending
an application to set
aside a writ of attachment issued by the
registrar of this court on 23 February 2022. The writ directs the
sheriff ‘to attach
and take into execution the incorporeal
property, being the right title and interest in and to the
[applicant’s] shares in
a business known as Paint City, Port
Alfred. The writ describes the business as a private company with
registration number 2[...]
and address at 4[...] C[...] Street.
[2]
The background culminating in these
proceedings appears hereafter.
[3]
In a settlement agreement concluded between
the parties and made an order of court on 30 April 2019 (the
settlement order), the
applicant (as defendant) undertook to pay to
the respondent (as plaintiff) post-divorce spousal maintenance at the
rate of R10 000
per month. An additional amount of R4 000
for maintenance and education would be paid in favour of one of four
sons, then
a minor, born of the marriage. At the time of the divorce
the parties had a business trading as Paint City in which the
respondent
held shares approximately valued at R369 000. In the
negotiations that culminated in the settlement, the shares were
traded
for the maintenance order granted in favour of the respondent.
This resulted in the applicant acquiring sole ownership of the
business.
(Parenthetically, the applicant states in his replying
affidavit that no formal shares were issued (or transferred) in his
favour,
and urges this court to deduce that he is the sole board
member (presumably intended to mean sole proprietor)).
[4]
During November 2019 and due to lack of
financial means as also the applicant’s grievance about legal
costs and his protestation
that his legal representatives caused him
to sign the settlement agreement under duress, the applicant stopped
paying the agreed
amount of maintenance to the respondent. On his own
version the applicant admits that he ‘reneged on payment’.
He continued,
however, paying the amount due to his son.
[5]
In June 2020 the respondent instituted
contempt proceedings against the applicant for his contravention of
the settlement order.
On 2 November 2020 this court, per Lowe J,
granted the contempt application. A coercive order, directing the
applicant to
pay the respondent the arrear amount of R124 454 in
respect of his non-compliance with the maintenance component of the
settlement
order at the rate of R4 000 per month, was issued.
[6]
In
a unanimous judgment of the full court of this division
[1]
delivered on 4 October 2022 (and from which I have extrapolated
the above summary of the background to the matter), an appeal
against
the order given by Lowe J was dismissed.
[7]
Acting in the belief that the contempt
proceedings are inextricably linked to his contention that he was
obliged to agree to the
settlement on an inflated maintenance amount,
the applicant petitioned the Supreme Court of Appeal (‘the
SCA’) for
leave to appeal against the finding of the full
court. He does so ostensibly on the basis that the petition to the
SCA and his
efforts in seeking to vary his maintenance obligations in
the maintenance court in Wellington are concurrent processes which
render
the writ of execution
lis
pendens
. His argument is that ‘if
the contempt judgment is overturned, then all the arrears will fall
in the same unaffordable category’.
[8]
No detail or proof has been provided as to
when the petition was lodged with the SCA, nor at what stage
proceedings have reached
in the maintenance court. That
notwithstanding, I am of the view that the applicant’s
maintenance obligation as per the order
incorporating the settlement
of 30 April 2019 remains in force where it has not been varied
or set aside by a competent court.
The applicant does not appear to
grasp that the issue in the contemplated appeal relates to his
contempt of the order of court
and not his obligation to pay, which
obligation remains extant and does not render the writ
lis
pendens
.
[9]
Evident from the material before this court
is that it is not disputed by the applicant that his maintenance
obligation in terms
of the agreed order of settlement has not been
varied. It is indeed evident from the facts set out in the founding
affidavit that
the applicant does not dispute the arrear maintenance
sum owed, save for his ability to pay. In that regard he does not
make candid
disclosure as to what he earns from the business or what
the value of his shareholding is.
[10]
In
motion proceedings it is trite that an applicant must make out its
case in the founding affidavit which must contain sufficient
facts in
itself upon which a court may find in the applicant’s favour.
The introduction by the applicant of new matter in
reply (tangential
as it is, and
inter
alia
laying
emphasis rather on the respondent’s scale of living, her
reliance on alcohol, and falsifications in a rule 43 application)
to
address the failing in the founding affidavit does not foster
consistency with the contemporary approach adopted by the
Constitutional
Court in
South
African Transport and Allied Workers Union and another v Garvas and
others
[2]
where it is emphasised that holding parties to their pleadings (in
this instance their affidavits) is not pedantry – it is
an
integral principle of the rule of law and promotes legal certainty by
conveying to an opposing party exactly what case they
are required to
meet.
[11]
Although maintaining that he is unable to
provide a valuation of his share in the business, what stands out in
the applicant’s
reply is the following assertion:
‘
In
a forced sale the business will only realise a percentage of the
value of stock. The net stock value being in the region of R350 000
after deduction of creditors. By way of example, FNB no longer
extends value in a balance sheet for these types of assets when
calculating NAV (Net Asset Value) but in the past would attribute no
more than 50%. So if I were to place value right now for the
purpose
of raising funds urgently I would value at around R175 000. At
auction the value raised on this type of asset is around
35% if we
are lucky and that is before auctioneer’s fees. The sale of the
shares will not raise the funds required although
I believe they will
not sell at all. I do not seek to raise any loans purely because I am
of the opinion that neither the business
nor I can afford further
debt.’
[12]
Here
too, the detail and insight into the applicant’s shareholding
is scant and subjective, and even if one may as an exceptional
circumstance
[3]
allow for the fact that the applicant is a layperson and hence depart
from the approach of the Constitutional Court, the applicant’s
assertions in reply evince a failure to demonstrate personal
inability to pay.
[13]
He
argues rather that the provisions of section 65(e) of the
Magistrates’ Courts Act
[4]
should apply to the high court where section 45 of the Superior
Courts Act
[5]
– which deals with property not liable to be seized in
execution – has not come into operation.
[14]
Section 65(e) of the Magistrates’
Courts Act protects from seizure, attachment and sale, property
described as ‘tools
and implements of trade’ in so far as
they do not exceed in value the amount of R2 000. Assuming,
without deciding,
that the relevant provision in the Magistrates’
Courts Act does apply, the applicant, neither in argument nor in his
papers,
has demonstrated that his shares qualify as property falling
within the scope of the exemption specified as ‘tools and
implements
of trade’. It is therefore unnecessary to consider
the constitutional challenge to the threshold amount of R2 000.
[15]
On the material before me indications are
that the applicant is cognisant of the eventuality that the writ will
enable the respondent
to sell off his shares (put otherwise, his
interest in the business) to recover monies owing by him in respect
of arrear maintenance
and costs.
[16]
Although this theme pervades the case he
presents both in his heads of argument and in his affidavits, the
obligation to pay maintenance
is not disputed and it is common cause
that the order of 30 April 2019 from which the obligation stems
remains extant. Accordingly
no basis under uniform rule 45A is laid
for suspending the writ arising from the execution of that order.
[17]
A
reading of the notice of motion indicates that the purpose of seeking
a stay of execution is for bringing an application to set
aside the
writ in question. Counsel for the respondent, Mr Miller, correctly
submitted that the proper procedure for setting aside
a writ of
execution is by application to set it aside and not by application
for an interdict against its execution.
[6]
[18]
The
applicant’s recourse to interdictory proceedings to obtain a
stay obliges him to establish,
inter
alia
,
that he has a clear right (where a final order is sought) or a
prima
facie
right (where interim relief is sought). The lack of candid disclosure
as to what applicant earns from the business (or what the
value of
his shareholding is) and the fact that the order of 30 April
2019 remains in force do not establish a right,
prima
facie
or otherwise, to the relief being claimed. I also consider that the
lis
pendens
argument, for reasons already dealt with, does not assist the
applicant in establishing such a right. Accordingly, where the
applicant
has failed to establish this requirement, interdictory
relief is not competent.
[7]
[19]
I
turn to the question of costs. Mr Miller, who appears as
pro
bono
counsel for the respondent has submitted in his heads of argument
that what the applicant seeks from this court on his perceived
basis
of equity, is an inequitable order that preserves his property at the
expense of the respondent and allows the applicant
to avoid his
obligations in terms of an order of court to which he has consented
and has been found to be in contempt of. On the
one hand the
applicant opposes the attachment and sale of his shares; on the other
hand his papers indicate that he has made a
written offer to transfer
to the respondent ‘full ownership of the business’ with
stock valued at R450 000 in
full and final settlement of
maintenance for herself and their son and ‘rescission of the
contempt judgment and cancellation
of all arrears and legal fees’
[8]
.
The illogicality in the applicant’s approach is self-evident
and necessitates no further comment. Mr Miller submitted further
that
the application constitutes an abuse of process for the reason that
the applicant has been shown to have not made out a case
for the
relief sought. For these reasons costs on a scale as between attorney
and client are sought.
[20]
I do not take issue with these submissions.
[21]
My own observation is that these
proceedings are vexatious. They were launched in a notice of motion
dated 28 April 2022 directing
that the matter be heard on 6 May 2022
as one of urgency on truncated time frames. No certificate of urgency
was filed as is required
by the rules of practice in this division.
The founding affidavit does not explicitly set forth the
circumstances that rendered
the matter urgent nor does it deal with
the issue of substantial redress in due course.
[22]
In response to these failings on issue of
urgency, the applicant asserts in reply: ‘No application for
urgency has been made
as I have worked within the confines of the
general rules of court’. It bears mentioning that the
applicant’s conduct
by engaging in an exercise of self-help by
stopping payments for maintenance invited trenchant comment from the
full court, the
judgment of which purposely mentions that he
demonstrated ‘an arrogant attitude’. That attribute of
his conduct is
similarly evident by his riposte and in his approach
to this matter.
[23]
A
further manifestation of the applicant’s abuse of the process
of this court is evident from a filing notice dated 19 October
2022.
The notice merely indicates that supplementary evidence is filed in
support of the present application and is unaccompanied
by a notice
of motion. I was not addressed by the applicant on the relevance, if
any, of such evidence and given the manner in
which the present
application was instituted, as also the fact that the applicant was
not candid in his affidavits before this
court, I have refrained from
perusing the supplementary evidence. The evidence is contained in a
lengthy affidavit. It is not the
task of this court to search for
material which may augment the applicant’s case and which
should have been properly introduced
in his founding papers. Courts
are a public resource under severe pressure.
[9]
It does not bode well for a litigant such as the applicant to
introduce matter that may broaden the scope of and unnecessarily
labour the issues for determination while maintaining silence about
it. The respondent’s argument was confined strictly to
the
merits of the present application without traversing the
supplementary material. On reflection, I think this was a sagacious
course to have adopted.
[24]
In the circumstances the following order
issues:
The application is
dismissed with costs which are to be paid by the applicant on the
scale of attorney and client.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
In
Person
1 Greenfountain Farm
Chalets
Port Alfred
Tel: 087 701 3574 /
082 491 5009
mharnwell.5@gmail.com
For
the Respondent:
T.
S. Miller
Instructed
pro bono
by
Wheeldon Rushmere
& Cole Inc.
Makhanda
(Ref: B. Brody)
Tel: 046-622 7005
Date
heard:
17 November 2022.
Date
delivered:
12 January 2023.
[1]
M[…]
H[…]l v C[…]l A[…] H[…]l
,
Unreported Case No.
CA
231/2021 (ECD, Makhanda) 4 October 2022.
[2]
2013
(1) SA 83
(CC) para 114.
[3]
Bayat
and Others v Hansa and Another
1955
(3) SA 547
(N) at 553D; see also
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
(Pty) Ltd and Another
1980 (1) SA 313
(D&CLD) at 315E-H and 316A
[4]
Act 32 of 1944, as amended
[5]
10 of 2013
[6]
Erasmus
Superior
Court Practice
,
Vol 2 D1-605.
[7]
Sabena
Belgian World Airlines v Ver Elst
1980 (2) SA 238
(WLD) at 243A-D.
[8]
Replying affidavit, annexure ‘RA10’.
[9]
Savvas
Socratous v Grindstone Investments 134 (Pty) Ltd
[2011]
ZASCA 8
para 16.