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[2024] ZAFSHC 114
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H.A.E v H.S.E (3350/2022) [2024] ZAFSHC 114 (25 April 2024)
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
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
3350/2022
In
the contempt application between
:
H[…]
A[…] E[…]
Applicant
and
H[…]
S[…] E[…]
Respondent
CORAM:
PJJ ZIETSMAN AJ
HEARD
ON:
26 OCTOBER 2023
DELIVERED
ON:
25 APRIL 2024
Introduction
[1]
This matter came before me on the extended
return day of contempt of court proceedings.
[2]
Mrs E[...] is the applicant in the contempt
application which she brought against her former husband, Mr E[...].
The basis of the
contempt is Mr E[...]’ wilful and
mala
fide
refusal to honour his maintenance
obligations and to pay a cost order from previous litigation between
the parties.
[3]
Mrs E[...] made the contempt allegations in
her answering affidavit filed in opposition to an application brought
by Mr E[...] to
amend the provisions of the deed of settlement
concluded by the parties in their divorce proceedings.
[4]
Mr E[...]
seeks
an order that the deed of settlement be amended so that the primary
residence of the minor daughters born of the marriage
relationship
between the parties be awarded to him and that contact rights be
awarded to Mrs E[...].
[5]
In order to avoid confusion I shall refer
to the application to amend the deed of settlement as “the main
application”
and to the counter application for contempt of
court as “the contempt application”.
[6]
Although Mrs E[...] is the respondent in
the main application she is the applicant in the contempt application
and I shall thus
refer to her as “the applicant” and to
Mr E[...] as “the respondent”.
[7]
In addition to the aforementioned
litigation Mr E[...] also instituted proceedings in the Brandfort
Magistrate Court where he seeks
a reduction of his maintenance
obligations to Mrs E[...].
[8]
At the time when the contempt application
served before me neither the main application nor the maintenance
court application had
been heard.
The litigious background
and the contempt proceedings
[9]
The parties were married and from their
marriage relationship two minor daughters were born.
[10]
The marriage was dissolved on 2 May 2017
and the divorce order also incorporated the deed of settlement
concluded between the parties.
In terms thereof the parties agreed
that the primary residence of the minor children be awarded to the
applicant, subject to the
respondent’s right of contact with
the children.
[11]
The respondent also agreed to pay
maintenance of R4000-00 per month per child to the applicant and he
further agreed to pay the
reasonable medical, dental and
ophthalmological as well as school fees and reasonable extramural
activities of the minor children.
[12]
The parties further agreed that the
maintenance shall increase annually in accordance with the consumer
price index (CPI), on the
1
st
of May of each year following the date of divorce.
[13]
During July 2020 the respondent instituted
the main application wherein he primarily seeks an amendment of the
deed of settlement
so that the primary
residence
of the minor children be awarded to him and that certain contact
rights be awarded to the applicant.
[14]
The applicant incorporated the counter
contempt application as part of her answering affidavit to the main
proceedings.
[15]
The respondent’s replying affidavit
in the main application also served as his answering affidavit to the
contempt allegations
and in reply thereto the applicant filed a
replying affidavit to the counter application.
[16]
The contempt application is premised on the
allegations that the respondent is in arrears with maintenance
payments to the tune
of R 268 635,35 and that he refuses to pay a
cost order in favour of the applicant in the amount of R 16 945,85.
[17]
The respondent admits that he is in arrears
with his maintenance obligations but he denies that his actions are
both wilful and
mala fide.
[18]
The defence against the respondent’s
failure to pay maintenance is one of poverty.
[19]
The respondent alleges that due to his dire
financial position he is only able to afford maintenance of R 3
000,00 per month in
respect of both minor children and during January
2021 he instituted proceedings in the maintenance court for a
reduction of his
maintenance obligations.
[20]
The respondent’s approach in the
answering affidavit to the contempt allegations (the replying
affidavit to the main application)
was that:
the determination of
[his] ability to afford payment of the maintenance order and/or the
extent thereof is substantially determinative
of the issues before
the maintenance Court.
and his failure to comply
with the maintenance order:
was neither wilful nor
mala fide but due to the deterioration of [his] financial affairs.
Much of this deterioration had to do with
the divorce itself (e.g.
payment of onerous interim maintenance and the costs of litigation)
but also with extraneous matters such
as drought on the farm. [The
respondent] have also for a long time incurred expenses in order to
excise contact with [his] children….
[The respondent’s]
current income is only R6 000.00 per month.
[21]
The
respondent
explained
that
he
earns
R6
000.00
per
month
of
which
R3
000.00 goes
towards the maintenance of both the minor children. In addition, it
costs him approximately R4 000.00 per fortnight
in travelling and
accommodation costs to exercise his contact rights with his children.
[22]
According to the respondent his monthly
shortfall of approximately R5 000.00 is made good with loans from his
mother.
[23]
The
main application and the contempt application came before Daniso J on
20 and 28 April 2023. At that point in time the parties
agreed that
the main application be stayed pending an investigation by the family
advocate into the children’s’ circumstances
but the
contempt application was argued and Daniso J held
[1]
that:
[20] Except to fleetingly
attribute his failure to adhere to the court orders the [respondent]
has provided no evidence in relation
to his alleged material 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 [applicant’s] contention that the
[respondent’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 [respondent] approximately over three years
since
the divorce 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.
[24]
…
the [respondent] 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.’
[24]
Daniso J issued a
rule
nisi
calling upon the respondent
to give reasons why an order in the
following terms should not be made final:
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 the 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.
[25]
As a result of the
rule
nisi
the respondent filed a further
supplementary answering affidavit and the applicant filed a further
replying affidavit. The matter
served before me on the extended
return day.
The law
[26]
In
Fakie
N.O. v CCII Systems (Pty) Ltd
[2]
(Fakie) Cameron JA (as he was then) explained
that
once
an
applicant
in
contempt
proceedings
has
proved
the
order;
service
or
notice;
and
non-compliance
the
respondent
bears
an
evidential burden in relation to wilfulness and mala fides. He held
further that:
Should the respondent
fail to advance evidence that establishes a reasonable doubt as to
whether non-compliance was wilful and mala
fide, contempt will have
been established beyond reasonable doubt.
[27]
And
in
Pheko
v Ekurhuleni City
[3]
(Pheko
II) the Constitutional Court, with reference to
Facie
,
held that:
…
a
respondent in contempt proceedings,
Fakie
said, is not an 'accused person' as
envisioned by s 35 of the Constitution, and the protections afforded
to a contemnor should not
supersede the capacity of a non-state
litigant who may not have the administrative might to establish
motive. Therefore the presumption
rightly exists that when the first
three elements of the test for contempt have been established, mala
fides and wilfulness are
presumed unless the contemnor is able to
lead evidence sufficient to create reasonable doubt as to their
existence.
(footnotes omitted)
[28]
Since
the parties elected to bring the application by way of motion
proceedings the normal principles applicable to the adjudication
of
applications applies. This was confirmed in
Fakie
[4]
as
follows:
[55] That conflicting
affidavits are not a suitable means for determining disputes of fact
has been doctrine in this court for more
than 80 years. Yet motion
proceedings are quicker and cheaper than trial proceedings and, in
the interests of justice, courts have
been at pains not to permit
unvirtuous respondents to shelter behind patently implausible
affidavit versions or bald denials. More
than 60 years ago, this
Court determined that a Judge should not allow a respondent to raise
'fictitious' disputes of fact to delay
the hearing of the matter or
to deny the applicant its order. There had to be 'a
bona fide
dispute of fact on a material matter'. This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected
out of hand, without recourse to oral evidence. In
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
, this
Court extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real, genuine
or
bona fide
dispute of fact but also allegations or denials that
are so far-fetched or clearly untenable that the Court is justified
in rejecting
them merely on the papers
The main reasons advanced
by the respondent to displace the evidential burden
[29]
In the respondent’s supplementary
answering affidavit he raised three defences to displace the
evidential burden in relation
to wilfulness and mala fides.
They are: (a) that as a matter of law and
policy it is objectionable for a party who initiated proceedings for
a reduction of maintenance
in a maintenance court to, while those
proceedings are pending, be subjected to High Court contempt
proceedings relating to a failure
to pay maintenance; (b) contempt
proceedings relating purely to an unpaid cost order is neither
appropriate nor legally sustainable;
and (c) that the respondent has
not deliberately and
mala fide
breached
his maintenance obligations and there is at least doubt as to whether
the respondent’s non-compliance with the orders
is wilful and
mala fide
.
[30]
The third contention, namely that the
respondent is not in wilful and mala fide breach of his maintenance
obligations is primarily
a plea of poverty and needs further
elaboration.
[31]
The respondent explained that his personal
finances are tied up to the business of the Saberias Trust (the
Trust). The respondent
is the only beneficiary of the Trust. He is
also a trustee of the Trust together with his mother, his sister and
an independent
trustee, Mr Lombard.
[32]
The Trust is the owner of livestock and
three farm properties. In addition, the Trust holds all the members
interest of a close
corporation known as Vrugtefontein Boerdery.
[33]
Initially the respondent honoured his
maintenance obligations but since December 2019 he, started paying a
reduced amount of R 4000,00
per month, and from April 2020 he reduced
the amount further to R 3000,00 per month (R1500.00 per month per
child).
[34]
The reason, according to the respondent,
for his inability to honour the terms of the maintenance order is the
financial deterioration
of the Trust.
[35]
He explained that the Trust’s
financial position deteriorated, and that the Trust is in serious
cash flow problems, as a result
of the following:
[35.1] During 2016 the
Trust concluded two sheep lease agreements with a close corporation
known as Bloekompark. Bloekompark leased
398 ewes and 7 rams from the
Trust to be grazed on property not belonging to the Trust and a
further 1300 ewes and 24 rams which
would graze on the Trust’s
property.
[35.2] By February 2019
Bloekompark failed to honour the sheep lease agreements which
resulted in an agreed reduced lease payment
and by 30 June 2020
Bloekompark simply did not pay the lease of R 30 475 due to the
Trust. As a result the Trust suffered a loss
of income of R 201
825,00 and in addition Bloekompark disappeared with approximately 400
of the Trust’s sheep to the value
of R 800 000,00; and
[35.3] The area where the
Trust’s farms are located suffered a drought which started in
2016 and reached its height around
mid 2019. The loss of rental
income as well as the drought forced the Trust to sell breading
stock.
[36]
As a result, during February 2019 the Trust
reduced the respondent’s salary from R 20 000,00 per month to R
14 000,00 per
month and a further reduction followed during December
2019 to R 6000,00 per month.
[37]
According to the respondent, “
due
to several factors, including the drought and the costs of the
divorce, [his] finances were depleted”
and he was dependant on loans to be
able to meet his maintenance obligations.
[38]
He further declared that he has no income
apart from the salary that he receives from the Trust and that the
other credit entries
in his personal accounts are loans and/or
financial assistance from friends and relatives.
[39]
However, the respondent only disclosed the
identity of two sources who made loans and/or provided financial
assistance to him. They
are his mother, who loaned a total amount of
R 201 192,00 to the respondent between March 2020 and August 2023 and
a certain Mr
Louw who loaned R12 000,00 to the respondent during
April 2023.
[40]
The respondent says that the loan from his
mother was used for personal expenses, the vast majority which was
for fuel to exercise
contact rights with his children. The
respondent’s mother also financed his post-divorce litigation.
[41]
To conclude, the respondent declared that
he does not own any assets that can be sold to pay additional
maintenance and the only
assets in his name are a number of firearms.
Has the respondent
displaced the evidential burden ?
[42]
As to the first contention above, the
respondent did not, neither in his heads of argument nor in argument
before me, direct the
court’s attention to the legal basis on
which his first submission is premised.
[43]
However, in argument before me it was
contended that the maintenance court is “
best
suited
” to investigate the
financial affairs of the respondent and that the contempt application
should, as a matter of policy,
stand over until after the maintenance
court proceedings.
[44]
I
cannot endorse the respondent’s submission. The primary nature
and purpose of contempt proceedings is to vindicate judicial
authority
[5]
whereas the purpose
of maintenance court proceedings is,
inter
alia,
to
recognise the right of every child to a standard of living which is
adequate for the child's physical, mental, spiritual, moral
and
social development and to take all appropriate measures in order to
secure the recovery of maintenance for a child from the
parents or
other persons having the financial responsibility for the child
[6]
.
[45]
The object and purpose of the two
proceedings are thus so far removed from one another that it
militates against the establishment
of a policy such as that
contended for by the respondent.
[46]
As to the second contention: At the outset
of the arguments before me, counsel for the applicant correctly
conceded that the respondent’s
failure to pay the cost order is
not receptive for civil contempt proceedings.
[47]
The
remaining
issue
is
whether
the
respondent
was
in
wilful
and
mala
fide
breach
of his maintenance obligations.
[48]
The point of departure in respect of the
third contention is to recognise that the respondent has been in
constant and continuous
breach of his maintenance obligations since
December 2019.
[49]
The golden thread through the respondent’s
case is that his finances are tied to the Trust. He only receives a
salary from
the Trust which, as a result of the deterioration of the
Trust’s financial position, was reduced and is not sufficient
to
honour his maintenance obligations. He also has no other assets
which can be sold, safe for a number of firearms, to honour his
obligations.
[50]
The respondent did not take the court into
his confidence to disclose either the number of firearms or the value
thereof.
[51]
Furthermore, the respondent appended the
financial statements of the Trust for the financial years ended
February 2019, 2020 and
2021 as well as the financial statements of
Vrugtefontein Boerdery (‘the CC”) for the financial year
ended 28 February
2019 to the supplementary answering affidavit and
the applicant appended the financial statements of the CC for the
financial years
ended February 2020 and 2021 to the supplementary
replying affidavit.
[52]
The financial statements of the Trusts
shows that, as at 28 February 2019 the respondent loaned R 1 854
066,00 to the Trust. The
loan is clearly not at arm’s length
because it is interest free and repayable on demand.
[53]
By 29 February 2020 the respondent’s
loan to the Trust reduced to R 1 654 074,00 and the Trust’s
cashflow statement
reflects that the loans from members – i.e.
the respondent – decreased with R 199 992,00.
[54]
The inference, in the absence of an
explanation from the respondent, is inescapable that during the
financial year 1 March 2019
to 29 February 2020,
i.e.
the period during which the respondent voluntarily decided not to
honour his maintenance obligations,
the
Trust paid R 199 992,00 to the respondent to reduce its loan account
to the respondent.
[55]
In
addition, the respondent’s loan to the Trust is an asset in his
estate and, according to the terms of the loan
[7]
,
as disclosed in the financial statements, the respondent is at
liberty to call on the loan at any time.
[56]
The respondent did not even deal with this
loan in his supplementary answering affidavit let alone proffered an
explanation why
he cannot call on the loan to honour his maintenance
obligations.
[57]
The financial statements of the CC tells a
similar tale. On 28 February 2019 the CC loaned an amount of R 384
590,00 to the respondent.
That amount was
reduced
during
the
period
1
March
2019
to
29
February
2020
to
R 107 322. The cashflow statement of the CC
shows that the loan to the respondent decreased with R 277 268,00.
[58]
Again, the inference, in the absence of an
explanation from the respondent,
is
inescapable that during the financial year 1 March 2019 to 29
February 2020 the respondent had the ability to pay R 277 268,00
to
the CC instead of honouring his maintenance obligations.
[59]
The
following
year
[8]
,
the
CC’s
loan
to
the
respondent
increased
from
R
107 322,00 to R 272 425,00 and the cashflow statement recorded that a
loan of R 165 103,00 was advanced to the respondent.
[60]
In addition, note 18.2 of the CC’s
financial statements for the year ended 29 February 2020 shows that
the CC paid a salary
of R 90 001,00 to the respondent. This is in
direct contrast with the respondent’s version that he only
received a salary
from the Trust.
[61]
In
Wightman
t/a JW Construction v Headfour (Pty)Ltd and Another
[9]
Heher
JA, with reference to the
Plascon-Evans
test,
held that:
[13] A real, genuine and
bona fide dispute of fact can exist only where the court is satisfied
that the party who purports to raise
the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances
where a bare denial meets the
requirement because there is no other way open to the disputing party
and nothing more can therefore
be expected of him. But even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party
and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing
party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true
or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in
finding that the test is satisfied. I say 'generally'
because factual averments seldom stand apart from a broader matrix of
circumstances
all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or understand
the
nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and will only
in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser who settles
an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately
in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust view of the matter.
[62]
The information pertaining to the
transactions recorded in the financial statements of the Trust and
the CC, as discussed above,
lies purely within the knowledge of the
respondent but he failed to take the court into his confidence to
explain any of the said
transactions.
[63]
In addition, the information contained in
the financial statements of the Trust and the CC, stands in direct
contrast with the respondent’s
pleaded poverty case.
[64]
The respondent’s poverty defence is
clearly untenable and is rejected on the papers. It follows that the
respondent has failed
to discharge the evidential burden and that he
is in wilful and
mala fide
breach
of the orders. Paragraph
2.1 of the
extended rule nisi is thus confirmed.
Appropriate Remedy
[65]
Paragraphs 2.2 and 2.3 of the
rule
nisi
invited to respondent to give
reasons why a fine, to be determined by the court, and direct
imprisonment for a period of 6 months,
suspended for a period of 3
years subject thereto that he purges his contempt within thirty (30)
days from the date of the order
and subject to the condition that he
is not found guilty of contempt of Court for a period of 3 years from
the date of the order.
[66]
The respondent did not specifically provide
reasons in his supplementary answering affidavit, if he is found to
be in contempt,
why paragraph 2.2 and 2.3 of the
rule
nisi
should not be confirmed.
[67]
It
is trite that a court enjoys wide remedial discretion in contempt
proceedings and that committal is ordered for coercive purposes
to
seek compliance and made conditional upon non-compliance with a
mandamus or interdict
[10]
.
[68]
The fact that the respondent has been in
continuous contempt of his maintenance obligations since December
2019 speaks volumes of
the respondent disregard for the integrity and
authority of the Court. I am thus of the view that a fine of R 50
000,00, to be
paid to the registrar of this court within 90 days of
this order, will be sufficient in the circumstances to preserve the
integrity
of the Court.
[69]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
[11]
the Constitutional Court held that:
[54] Not every court
order warrants committal for contempt of court in civil proceedings.
The relief in civil contempt proceedings
can take a variety of forms
other than criminal sanctions, such as declaratory orders,
mandamuses, and structural interdicts. All
of these remedies play an
important part in the enforcement of court orders in civil contempt
proceedings. Their objective is to
compel parties to comply with a
court order. In some instances, the disregard of a court order may
justify committal, as a sanction
for past non-compliance. This is
necessary because breaching a court order, wilfully and with mala
fides, undermines the authority
of the courts and thereby adversely
affects the broader public interest. In the pertinent words of
Cameron JA (as he then was)
for the majority in
Fakie
:
'(W)hile the litigant
seeking enforcement has a manifest private interest in securing
compliance, the court grants enforcement also
because of the broader
public interest in obedience to its orders, since disregard sullies
the authority of the courts and detracts
from the rule of law.'
[70]
I am likewise satisfied that the extent of
the respondent’s past non-compliance with the orders justifies
committal, fully
suspended on the proviso that he purges his contempt
and complies with the provisions of the order made herein.
[71]
Accordingly the following order is made:
1.
It is declared that the respondent in the
counter contempt application – Mr HS E[...] - is in contempt of
the court orders
issued on 02 May 2017 and 13 October 2021;
2.
The respondent is ordered to pay a fine of
R 50 000,00 to the registrar of this court within ninety (90) days of
the date of this
order.
3.
The respondent is sentenced to direct
imprisonment for a period of 6 months, wholly suspended for a period
of three years, subject
thereto that (a) the respondent complies with
paragraph 2 of this order; and (b) the respondent purges his contempt
within sixty
(60) days from the date of this order through payment of
his outstanding maintenance obligations of R 268 635,35 to the
applicant
in the contempt application – Mrs E[...].
4.
The respondent is ordered to pay the costs
of the counter-application on the scale as between attorney and
client.
PJJ
ZIETSMAN AJ
Counsel
for the applicant
in
the counter contempt application:
Adv R
van der Merwe
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
Counsel
for the respondent
in
the counter contempt application:
Adv
HJ van der Merwe
Instructed
by:
Symington
De Kok Attorneys
BLOEMFONTEIN
[1]
H.S.E
v H.A.E (3350/2022)
[2023] ZAFSHC 322
(15 August 2023) para 24,
Daniso J’s judgment was handed down electronically by
circulation to the parties’ representatives
by email and by
release to SAFLII. The deemed date and time for hand-down for
handing down the judgment was 15 August 2023 at
09h30.
[2]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at para 41 and 42.
[3]
2015
(5) SA 600
(CC) at [36]
[4]
Footnote
2 above, at par [50]
[5]
Fakie
at
para [38] to [40] and
Pheko
II
at
para [28].
[6]
Preamble
to the
Maintenance Act, 1998
[7]
In
terms of Note 3 of the financial statements the loan from the
respondent is interest free and has no fixed repayment terms.
[8]
The
financial period ended 28 February 2021.
[9]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) at par
[13]
[10]
Ciliba
v Ciliba 2022 JDR 1630 (FB) at para [41] and [42]
[11]
2018
(1) SA 1
(CC) at para [54]