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[2022] ZAFSHC 132
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Cilibia v Cilibia (3460/2021) [2022] ZAFSHC 132 (17 May 2022)
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
No.:
3460/2021
In
the matter between
HARRY
JONATHAN CILIBA
Applicant
and
MAMATSIE
EMILY CILIBA
Respondent
JUDGMENT
BY:
SNELLENBURG, AJ
HEARD:
5 MAY 2022
JUDGEMENT
DELIVERED:
17
MAY 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 17 May 2022 at 16H15.
[1]
“It is indeed the lofty and lonely work of the Judiciary,
impervious to
public commentary and political rhetoric, to uphold,
protect and apply the Constitution and the law at any and all costs.
The corollary
duty borne by all members of South African society –
lawyers, laypeople and politicians alike – is to respect and
abide
by the law, and court orders issued in terms of it, because
unlike other arms of State, courts rely solely on the trust and
confidence
of the people to carry out their constitutionally-mandated
function.” 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 Others
2021 (5) SA 327
(CC), para 1 per Khampepe ADCJ [SJCI v Zuma].
[2]
This matter concerns the question whether the respondent is guilty of
contempt
of court for failure to comply with the order made on 26
November 2020 by C Nekosie AJ in civil case cover number: 3932/2020
[“
the court order”
].
In terms of the court order, amongst other matters, the respondent
had to pay maintenance to the applicant,
pendente
lite
, in the amount of R1,000.00 per
month. The first payment was due before or on 15 December 2020 and
all payments thereafter had
to be made before or on the 20
th
of each month.
[3]
The applicant initiated these summary contempt proceedings against
the
respondent as result of the respondent’s failure to comply
with the court order. As discussed below, the non-compliance with
the
court order is admitted by the respondent, albeit she denies
contemptuous intent.
[4]
The application initially served in the unopposed motion court on 31
March 2022
before Daffue J. The application was postponed to the
opposed role of 5 May 2022 to afford the respondent, who appeared in
person
when the matter was called, an opportunity to acquire legal
assistance and to file an answering affidavit [“
the
order
”].
[5]
When the matter was called on 5 May 2022 the respondent again
appeared in person.
The respondent was assisted by the Court
interpreter to participate in the language of her choice, Sesotho.
[6]
Before hearing the applicant’s counsel, the nature of the
proceedings
was explained to the respondent, being:
6.1
These
are summary contempt proceedings as result of the alleged
non-compliance of the court order. The purpose of the application
was
coercive; the applicant wants compliance with the court order.
Contempt
of a court order is very serious. The Court will ensure that its
dignity is restored and that the administration of justice
is not
jeopardized. The consequences of a finding of contempt of court is
very serious and may result in an order of imprisonment.
[1]
6.2
The
applicant had the onus to prove (a) that a court order was granted;
(b) that the court order was served on the respondent or
that the
respondent had knowledge of the court order; and (c) that the court
order was not complied with by the respondent. If
the applicant
proves these requirements a presumption arises that the respondent’s
non-compliance is wilful and mala fide.
[2]
Once the applicant has satisfied the requirements to prove contempt,
an evidentiary burden rests on the respondent to show reasonable
doubt. Should the respondent fail to discharge this burden, contempt
will have been established.
[3]
6.3
The respondent however has the constitutionally guaranteed right to
remain silent.
She does not have to testify nor is she under any
obligation to supply a version to the Court. Should the:respondent
exercise this
right, the applicant’s version will be
uncontested, and contempt will be established.
CONDONATION
FOR THE RESPONDENT’S NON-COMPLIANCE WITH THE ORDER OF 31 MARCH
2022
[7]
The applicant sought leave to introduce a supplementary affidavit
deposed to
by Ms. Tanita Suzette Soares De Carvalho, a candidate
attorney at the applicant’s attorneys, dealing with the
respondent’s
failure to file an answering affidavit in terms of
the order of 31 March 2022. Ms. De Carvalho states in paragraph 8 of
the supplementary
affidavit that the respondent told her during a
telephone conversation on 4 May 2022 that she (the respondent) has
reasons for
not filing her answering affidavit but that she has no
intention of sharing same and does not need to tell the attorney what
the
reasons are, and no one can tell her when to file. In paragraph 9
of the affidavit Ms. De Carvalho states that the respondent had
previously told her that she (the respondent) has no intention of
filing her answering affidavit as her husband is ill and that
she
will do everything in her power to delay the matter until the
apoplicant passes away.
[8]
The
respondent had no objection to address the issue of her failure to
file an answering affidavit in terms of the order, under
oath. The
respondent was advised that she was under no obligation to answer any
questions regarding this issue that the Court may
pose. Because she
was not legally represented the Court had an obligation to ensure
that her rights were given effect to.
[4]
[9]
During her evidence the respondent handed up a document headed
‘Notice
of Non-compliance’ which deals with the reasons
for her failure to file an answering affidavit in terms of the order
as well
as an answering affidavit with annexures in relation to the
contempt application. The Court read the content of the ‘Notice
of Non- compliance’, which was not in the form of an affidavit,
into the record whereafter the respondent confirmed the content
of
the document under oath.
[10]
In summary, the respondent’s explanation amounts to this: she
informed the Court on 31
March 2022 that she wished to procure legal
representation. She approached the UFS Law Clinic to represent her,
but since she did
not satisfy the means test of the UFS Law Clinic,
it was not at liberty to represent her in these proceedings. She
thereafter approached
an attorney in private practice but could not
afford to pay the deposit the attorney required to act on her behalf.
The respondent
then drafted the answering affidavit herself.
[11]
The
respondent denies making the statements alleged by Ms. De Carvalho in
paragraphs 8 and 9 of the supplementary affidavit. The
respondent
however admits having spoken to Ms. De Carvalho on 4 May 2022 and on
previous occasions.
[5]
[12]
The applicant obviously did not a proper opportunity to consider the
‘Notice of Non-Compliance’
or the answering affidavit
before the same were handed in during the respondent’s
evidence. The applicant’s counsel
however informed the Court
that the applicant could not afford another delay and would therefore
not file further affidavits to
deal with the issue of condonation.
[13]
It must also be recorded that the respondent complained that the
court order contained an error
as it recorded in the preamble:
“Having considered the documents before the court and having
heard the legal practitioner
for the applicant and the respondent,…”
whilst she did not have legal representation when the application was
heard.
Nothing turns on this issue in my view.
[14]
Although the explanation could be rightly criticised for lack of
particularity, the respondent
does explain her failure.
[15]
It was my considered view that no prejudice existed in granting
condonation to the respondent
that could not be cured, if need be, by
a postponement and appropriate cost order. The respondent is not
legally represented, and
although that by itself does not justify
non- compliance with the requirements for condonation, in light of
the nature of these
proceedings and the serious consequences that a
finding in the applicant’s favour may ultimately have for the
respondent,
the interests of justice demand that the respondent’s
non-compliance in this instance be condoned, and the respondent’s
answering affidavit be accepted.
[16]
My finding with regards to condonation in this matter should not be
seen as a precedent. Non-compliance
with any court order must be
deprecated in the strongest possible terms for the reasons discussed
below when the law relating to
contempt of court is discussed.
[17]
In absence, for understandable reasons, at least at this juncture, of
a reply by the applicant
I am prepared to accept the respondent’s
denial only insofar as it relates to the issue of condonation. The
exercise of my
discretion in the respondent’s favour should not
be seen as an adverse finding regarding Ms. De Carvalho’s
credibility.
[18]
The applicant intimated that they were ready to proceed with the
matter and did not deem it necessary,
in light of the content of the
answering affidavit, to file a replying affidavit.
[19]
In the premises condonation was granted to the respondent and the
answering affidavit was accepted.
THE
MAIN APPLICATION
The
facts
[20]
The applicant’s case is admitted by the respondent, save for a
denial of contempt, as will
be dealt with below. In summary, for the
reader’s convenience, the applicant’s case in summary is
as follows:
20.1
The respondent has failed to comply with the court order
notwithstanding request and demand.
20.2
The respondent was legally represented during the Rule 43
proceedings, although she was not represented
when the court order
was made.
20.3
The respondent has knowledge of the court order and is in contempt of
court.
20.4
The respondent only paid an amount of R1000.00 on 5 February 2021.
This payment was made into the applicant’s
attorney’s
bank account.
20.5
The respondent thus failed to pay maintenance in terms of paragraph 1
of the court order for the months
of December 2020, January 2021 and
March 2021 to April 2022.
20.6
The applicant is quite ill and has not had the benefit of the
maintenance which the Court directed
the respondent to pay towards
him,
pendente lite
.
20.7
The applicant does not wish to see the respondent imprisoned, but the
respondent is wilfully and mala
fide refusing to comply with
paragraph 1 of the court order. The applicant’s sole purpose
with this application is to compel
performance in terms of the court
order.
20.8
The respondent’s answering affidavit does not establish
reasonable doubt; thus, contempt of court
is established.
[21]
The respondent admits that she has not complied with the court order.
To this end the respondent
admits only making the payment of R1000.00
during February 2021 by payment into the applicant’s attorney’s
bank account.
It is therefore common cause that the respondent failed
to make the maintenance payments in favour of the applicant for
December
2020, January 2021, March 2021 to (and including) April
2022.
[22]
The respondent’s explanation for her failure to make the
payments, as appears from the
affidavit and evidence on oath which
she gave after being reminded of her right to remain silent and to
refuse to answer any questions
that the Court may pose to clarify
aspects of her defence, as enunciated in her answering affidavit, is
this:
22.1
The court order did not specify how she had to make payment of the
monthly maintenance to the applicant.
22.2
The applicant’s attorneys did send her a letter demanding
payment of the maintenance into their
bank account, but the court
order directed her to pay the maintenance to the applicant, not to
his attorneys.
22.3
She did make the payment for February 2021 into the applicant’s
attorney’s bank account,
but now realises that she made a
mistake by making the payment into the applicant’s attorneys’
bank account.
22.4
She also now realises that the one mistake she did make was to not
contact the applicant to find out
how and where she should pay the
maintenance.
22.5
She is the primary caretaker of the minor referred to in the Rule 43
application, pendente lite, and
also have other children to care for
and cannot afford to be incarcerated as she is responsible for the
care of the aforesaid children.
She does not ‘want to go to
prison’.
Discussion
Contempt of Court
[23]
In
Pheko
II
above
[6]
,
with
reference
to
s
165
of
the
Constitution
[7]
,
Nkabinde J held that:
“
(t)he
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.
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.”
[24]
At
the origin of contempt proceedings is denouncement of the crime of
disrespecting the courts, and ultimately the rule of law.
[8]
These proceedings deal with wilful disobedience of an order made in
civil proceedings. Such disobedience is both contemptuous and
a
criminal offence.
[9]
[25]
Civil
contempt is a form of contempt outside of the court; it refers to
contempt by disobeying a court order.
[10]
Civil contempt is a crime.
[11]
Civil contempt can be prosecuted in criminal proceedings, which
characteristically
lead
to
committal,
but
committal
for
civil
contempt
can
also be ordered in civil proceedings for punitive or coercive
reasons.
[12]
[26]
Civil
contempt proceedings are typically brought by a disgruntled litigant
aiming to compel another litigant to comply with the
court order
granted in its favour. When contempt occurs, a court may also
initiate contempt proceedings mero motu.
[13]
[27]
Typically,
a coercive contempt order calls for the compliance with the original
court order that has been breached, as well as the
terms of the
subsequent contempt order. A contemnor [the person in breach of
complying with the court order] may avoid the imposition
of a
sentence by complying with a coercive order. By contrast, punitive
orders aim to punish the contemnor by imposing a sentence
which is
unavoidable.
[14]
[28]
Contempt
of court is not an issue between the parties, but rather an issue
between the court and the party who has not complied
with a mandatory
order of court.
[15]
[29]
Contempt of court proceedings exist to protect the rule of law and
the authority of the Judiciary.
SJCI v Zuma para 27.
[30]
In
Victoria Park Ratepayers’ Association v Greyvenouw CC 2004 JDR
0498 (SE) at paras 5, 26-27 the apex Court explained that:
“
[C]ontempt
of court has obvious implications for the effectiveness and
legitimacy of the legal system and the judicial arm of government.
There is thus a public interest element in each and every case in
which it is alleged that a party has wilfully and in bad faith
ignored or otherwise failed to comply with a court order. This added
element provides to every such case an element of urgency.”
and,
“
it
is not only the object of punishing a respondent to compel him or her
to obey an order that renders contempt proceedings urgent:
the public
interest in the administration of justice and the vindication of the
Constitution also render the ongoing failure or
refusal to obey an
order a matter of urgency. This, in my view, is the starting point:
all matters in which an ongoing contempt
of an order is brought to
the attention of a court must be dealt with as expeditiously as the
circumstances, and the dictates of
fairness, allow.” Also see
SJCI v Zuma paras 32-33.
[31]
It is by well settled that a coercive order only incidentally
vindicates a court’s honour.
[32]
Compliance will be compelled only if it will be a fruitful exercise.
“
Contempt
of court is not merely a means by which a frustrated successful
litigant is able to force his or her opponent to obey a
court order.
Whenever a litigant fails or refuses to obey a court order, he or she
thereby undermines the Constitution.
That,
in turn, means that the court called upon to commit such a litigant
for his or her contempt is not only dealing with the individual
interest of the frustrated successful litigant but also, as
importantly, acting as guardian of the public interest.”
[16]
If
a coercive order will be fruitless, a punitive order aimed at
punishing the contemnor by
imposing
a sentence which is unavoidable will be the only appropriate
remedy.
[17]
Are
summary contempt proceedings justified in this matter?
[33]
In
Matjhabeng Local Municipality v
Eskom Holdings Ltd
2018 (1) SA 1
(CC)
the
Court held:
“
Summary
contempt proceedings may be invoked in exceptional circumstances,
where there is a 'pressing need for firm or swift measures
to
preserve the integrity of the judicial process'.
This
will be the case also where ordinary prosecution at the instance of
the prosecuting authority is impossible or highly undesirable.
But
even then, and to the extent possible, the contemnor must be accorded
his or her fair trial rights. Otherwise, as this court
cautioned in
Mamabolo
[18]
:
'The
alternative is constitutionally unacceptable: It is inherently
inappropriate for a court of law, the constitutionally designated
primary protector of personal rights and freedoms, to pursue such a
course of conduct.'”
[19]
[34]
In SJCI v Zuma para 179, Khampepe ADCJ referred to the following
cautionary remarks by De Villiers
CJ in R v Kaplan
(1893) 10 SC 259
at 263:
“
My
own personal view has always been that, except where immediate
punishment is necessary for the maintenance of the authority of
the
court, it is a wiser course for the court not to take into its own
hands the summary punishment of offenders whose contempt
is of such a
nature as to render them liable to an indictment. The defeating of
the due course of justice appears to me to be a
contempt of that
nature. There may be cases in which such contempt must be summarily
dealt with, but, except in such cases, the
practice to submit the
question whether the offence has been committed to the decision of a
jury, appears to me to be a wholesome
one.”
[35]
There is indeed a 'pressing need for firm or swift measures to
preserve the integrity of the
judicial process' in this instance. The
court order pertains to maintenance that must be paid to the
applicant,
pendente lite
.
It is well established that maintenance orders have a special nature
which justifies the operation of contempt proceedings in
respect of a
failure to pay the maintenance.
[36]
The applicant is quite ill and has been deprived of the contribution
to his maintenance for a
period of 14 months. It is clear from the
respondent’s evidence that she would have persisted with her
refusal to comply
with the court order, but for these proceedings.
[37]
Summary contempt proceedings are warranted in this instance.
Are
the requisites of contempt established?
[38]
I have no doubt that the respondent’s failure (more aptly
refusal) to comply with the court
order is wilful and mala fide. The
respondent’s explanation for not complying with the court
order, namely that the court
order did not indicate how the
maintenance should be paid, and that she refused to pay the
maintenance in favour of the applicant
by payment into the
applicant’s attorney’s trust account because court order
did not order her to pay the attorneys,
but the applicant, is
contrived and not truthful. The respondent made one payment for
February 2021 into the applicant’s
attorney’s trust
account. Her evidence to the extent that she now realises that that
was a mistake, is rejected.
[39]
As stated above, the evidence in the supplementary affidavit is also
relevant to the respondent’s
alleged contempt of the court
order. In light of the finding in paragraph 38 above, it is not
necessary at this time to deal with
the evidence contained
specifically in paragraph 9 of the supplementary affidavit. As dealt
with above, the respondent denied the
content of paragraph 9 of the
supplementary affidavit. The applicant will be able to deal with the
denial, should he so elect,
in light of the order I make. I have
recorded above, although it is not necessary to deal with the issue
at this juncture, that
I have no reason to doubt the veracity of the
candidate attorney’s evidence. I have however, for the present,
not taken the
evidence into consideration.
[40]
In the premises an order in terms of prayer 1 of the notice of motion
stood to be granted.
Appropriate
remedy in this matter
[41]
The
Court enjoys wide remedial discretion to determine appropriate relief
in contempt proceedings. In doing so the Court should
be guided by
the approach adopted by other courts. It is the accepted practice in
contempt matters to seek compliance, using punishment
as a means of
coercing same. Committal is ordered for coercive purposes and made
conditional upon non-compliance with a mandamus
or interdict.
[20]
[42]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd supra, para 54
the Court held that 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.” [References excluded.]
[43]
In the exercise of my discretion I am of the view that the order I
intend to make will ensure
compliance with the court order whilst
affording the respondent an opportunity to make the necessary
arrangements to purge her
contempt and pay the arrear maintenance. I
informed the parties of the terms of the order and requested the
interpreter to explain
the intended order to the respondent to ensure
that there is no room for any doubt or misunderstanding regarding
what the order
provides for. The respondent indicated thereafter that
she understood the order and the possible consequences should she
again
not comply.
[44]
The following order was made on 5 May 2022 regarding condonation:
1.
Condonation is granted to the respondent for the late filing of the
answering
affidavit.
[45]
In the premises IT IS ORDERED:
1.
The respondent is found to be in contempt of the Court Order
issued
by C Nekosie AJ on 26 November 2020, in case number: 3932/2020 [“the
court order”].
2.
The respondent shall forthwith comply with the court order,
in
particular paragraph 1 thereof relating to the maintenance payments
by the respondent to the applicant, the next maintenance
payment
being due before or on 20 May 2022.
3.
All maintenance payments are to be made to the applicant by
means of
payment to the applicant’s attorneys of record, McIntyre &
Van der Post Attorneys by payment into the following
account:
McIntyre
& Van der Post Trust account
,
Account
Number: [....],
Reference
Number: [....],
ABSA
Bank,
Branch
Code:
[....]
4.
The relief in prayers 2, 3 and 4 of the notice of motion is
postponed
to Thursday, 3 November 2022, at 09h30, subject to paragraph 5 below,
to afford the respondent an opportunity to pay
the outstanding/arrear
maintenance for the months of December 2020, January 2021, March 2021
to (and including) April 2022, the
said outstanding maintenance which
must be paid before or on Thursday, 29 October 2022 at 12h00.
5.
Leave is granted to the applicant to anticipate (enrol) this
application, duly supplemented, for determination of prayers 2, 3,
and 4 of the notice of motion before 3 November 2022 in the
event
that the respondent fails to make any maintenance payment in terms of
paragraph 1 of the court order from date of this order.
In the event
of an early enrolment in terms of this paragraph, due prior notice of
the supplemented papers and the enrolment must
be given to the
respondent.
6. Leave
is granted to the applicant and the respondent to supplement
their
papers in the event that the arrear maintenance is not paid in full
before or on 29 October 2022 at 12h00.
7.
The respondent to pay the applicant’s taxed costs, including
the costs of 31 March 2022.
8.
The applicant’s attorneys must serve this court order
on the
respondent per email by means of the email address(es) supplied
by the respondent to the applicant’s
legal representatives during the hearing of the matter.
N.
SNELLENBURG AJ
Appearance:
On
behalf of the Applicant: Adv.
E Lubbe
On
Instructions: McIntyre
& Van der Post Attorneys,
Bloemfontein
On
behalf of Respondent: Respondent
appeared in person
[1]
In Pheko v Ekurhuleni City
2015 (5) SA 600
(CC) (Pheko II) para 28
it was held that “[t]he object of contempt proceedings is to
impose a penalty that will vindicate
the court’s honour,
consequent upon the disregard of its previous order, as well as to
compel performance in accordance
with the previous order.”
Also see SJCI v Zuma n 6.
[2]
The test was summarised in SJCI v Zuma fn 9 (Page 336) as follows
“once it is proven that an order exists and was served
on a
litigant who did not comply therewith, contempt will have been
established beyond reasonable doubt unless the respondent
establishes a reasonable doubt relating to wilfulness and mala
fides.”
In
Pheko II para 36 it was held that-
“
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 a reasonable doubt as to their existence.
Should the contemnor prove unsuccessful in discharging this
evidential burden, contempt will be established.”
[3]
Pheko II para 28; Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) para 22 (Fakie); SJCI v Zuma para 37.
[4]
Nedbank Ltd v Gqirana NO and Another and Similar Matters
2019 (6) SA
139
(ECG); Nkuzi Development Association v Government of the
Republic of South Africa
2002 (2) SA 733
(LCC) approving the dictum
in S v Radebe: S v Mbonani
1988 (1) SA 191
(T) at 196F-J.
[5]
The respondent requested in court that in future the attorneys
should refrain from speaking to her and should correspond with
her
by means of email only. The respondent was requested by the Court to
supply an active email address(es) to the applicant’s
attorneys, which the respondent undertook to do.
[6]
Also see SJCI v Zuma para 26
[7]
The Constitution of the Republic of South Africa, 1996
[8]
Pheko II para 31 and SJCI v Zuma para 61.
[9]
Fakie above, para 6; Pheko II above, para 28
[10]
Pheko II para 30.
[11]
Ibid; and see n 5 above
[12]
Pheko II above, para 30; Fakie above para 71.
[13]
Pheko II above, para 30.
[14]
Pheko II above para 31; Fakie above, paras 74-75
[15]
Federation of Governing Bodies of South African Schools v MEC for
Education, Gauteng
2016 (4) SA 546
(CC) at at 673C-D; Fakie above,
para 38; and SJCI v Zuma para 61.
[16]
Victoria Park Ratepayers’ Association above, para 23.
[17]
For instance, SJCI v Zuma where the Court held that a coercive order
will be fruitless
[18]
S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC).
[19]
Ibid, paras 57-58.
[20]
SJCI v Zuma para 54.