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2022
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[2022] ZAFSHC 264
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Beukes v Beukes (135/2019) [2022] ZAFSHC 264 (18 October 2022)
IN THE HIGH
COURT OF SOUTH AFRICA
(FREE STATE
DIVISION, BLOEMFONTEIN)
Case
no
.
135/2019
Reportable:
YES/NO
Of Interest
to other Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter
between:
BELINDA
BEUKES
Applicant
and
FRANCOIS
DANIëL BEUKES
Respondent
CORAM:
POHL,
AJ
HEARD
ON
:
13
OCTOBER 2022
DELIVERED
ON: 18 OCTOBER 2022
INTRODUCTION:
[1]
This is an application in which the Applicant seeks the following
relief against the
Respondent:
(i)
That the
Respondent be held in contempt of the Court order granted on
20
June 2019
under
case number:
135/2019
(“
the
Court Order
”);
(ii)
That the
Respondent be convicted of contempt of the Court order;
(iii)
That the
Respondent be sentenced to six (6) months’ imprisonment or
payment of a fine of R50 000.00, alternatively such
sentence as
the Court deems meet, the sentence to be suspended for thirty six
(36) months on condition that the Respondent complies
without delay
with the Court order by paying the arrear amount of maintenance in
the amount of R215 830.97 to the Applicant,
and is not convicted
of contempt of Court committed during the period of suspension;
(iv)
That the
Respondent be ordered to comply, without delay, with the Court order;
(v)
That the
Respondent be ordered to pay the costs of this application on an
attorney and client scale.
BACKGROUND
FACTS:
[2]
The Court order was granted by agreement between the parties in a
Rule 43 application
on
20 June 2019
.
[3]
In terms of the Court order the Respondent was ordered to pay and
contribute the following
maintenance:
3.1
The amount of R14 000.00 (fourteen thousand rand) per month to
the Applicant;
3.2
The amount of R6 000.00 (six thousand rand) per month per child
in respect of the minor children, Biance
Francois Daniël and
Schalk Daniël (“
the minor children
”), with
effect from 7 August 2019.
3.3
The school fees and all reasonable educational related expenses,
including, but not limited to school clothes,
stationery not included
in the school fees, books, extra classes and extramural activities of
the minor children.
3.4
The Respondent was ordered to retain the Applicant and the minor
children on his medical aid and to pay the
costs of all reasonable
and necessary expenditure in respect of medical, dental, surgical,
hospital, orthopedic and ophthalmological
treatment and prescription
medication needed by them and not covered by the medical aid.
3.5
The Respondent was ordered to pay the maintenance, services and all
repairs, including the replacement of
tyres in respect of the 2017
model Toyota Fortuner which the Respondent made available to the
Applicant.
[4]
It needs to be emphasized that it is common cause between the parties
that the Court
order was granted by agreement between the parties.
Not only was the Court order by agreement, but the Respondent
initially
complied with this Court order.
[5]
The Respondent has however since failed to comply with the Court
order and is currently
in arrears in the amount of R215 830.97
(two hundred and fifteen thousand eight hundred and thirty rand
ninety seven cents).
In paragraph 38 of the Respondent’s
answering affidavit, the Respondent includes the arrear maintenance
in the amount of
R215 830.97 as “
maintenance
”
in his list of liabilities.
[6]
In the year 2013, Liberty Life Insurance Company paid an amount of
R19.2 million to
the Respondent. This payment, according to the
papers, appears to be a payment which was made to the Respondent as a
result
of “
disability
” when the Respondent
apparently developed asthma.
[7]
The Respondent initiated the divorce action against the Applicant
during January 2019.
At the time, the Respondent was legally
represented. When this contempt application was however argued
before this Court,
the Respondent represented himself, whilst the
Applicant was represented by Advocate Groenewald.
[8]
It is common cause between the parties that the Respondent’s
personal financial
statements for the year ending 28 February 2021,
inter alia
reflected the following:
8.1
The total value of the Respondent’s assets amounted to
R14 915 114.00;
8.2
During that year, the Respondent made a profit of R848 523.00;
8.3
The Respondent is a Trustee of the Frans Beukes Familietrust (“
FBF
Trust
”);
8.4
The financial statements of the FBF Trust for the year ending 28
February 2021, reflected that the total value
of the assets of the
FBF Trust amounted to R11 732 288.00 and the FBF Trust had
a total income for that year in the amount
of R1 406 924.00.
[9]
It is common cause that the Respondent made cash withdrawals from his
Standard Bank
private account during the period 9 March 2021 to 9
October 2021 in the aggregate sum of R7 910 000.00.
[10]
According to the Respondent he spent the aforesaid money,
inter
alia
on the following:
10.1
R650 000.00 on stables for his new lady friend;
10.2
R500 000.00 on a PlayStation 5;
10.3
R450 000.00 in respect of a “
wedding
” between
the Respondent and his new lady friend;
10.4
R170 000.00 for a “
honeymoon
” with his new
lady friend, although he is still married to the Applicant;
10.5 On
holidays he spent the following amounts:
10.5.1
R180 000.00 for a Cape holiday;
10.5.2
R120 000.00 for a Ballito holiday;
10.5.3
R120 000.00 for a holiday on the South Coast;
10.5.4
R65 000.00 for a holiday in the mountains.
10.6
R160 000.00 for building of a porch;
10.8
R180 000.00 for a new lawn;
10.9
R70 000.00 for shade ports;
10.10
R370 000.00 for the building of a guest room;
10.11
An amount of R1 400 000.00 on gambling and life
expenses.
[11]
In paragraph 19 of the Respondent’s opposing affidavit the
Respondent declares as follows:
“
The
disability claim paid out by Liberty Life is compensation for the
damages by reason of a delict and does not form part of the
joint
estate. I would refer the Court to the following case law:
Van
der Berg v Van der Berg
2003 (6) SA 229
(T), where Shongwe J (as he then was) found that it
was ‘quite clear that the provisions of s 18(a) were intended
to exclude
any damages or compensation by reason of delict from the
joint estate’.
”
[12]
Section 18 (a) of the Matrimonial Property Act, Act 88 of 1984,
reads as follows:
“
Notwithstanding
the fact that a spouse is married in community of property-
(a)
any amount recovered by him by way of damages, other than
damages for patrimonial loss, by reason of a delict
committed
against him, does not fall into the joint estate but becomes
his separate property;
…”
[13]
When this matter was argued before this Court, the Court enquired
from the Respondent if he had
any legal training. To this
Respondent replied that he did not. The Court then enquired
from him who assisted him in
drawing his opposing affidavit and
papers. To this the Respondent replied that nobody did, he drew
the papers himself.
[14]
In argument, the Respondent then argued that the fact that he
developed asthma which lead to
the disability pension payment, was a
direct result of the fact that, according to him, the circumstances
and environment under
which he was working, caused his asthma and
thus triggered the disability payment. According to him, this
environment that
he had to work in, amounted to a delict that was
committed against him and therefore, in line with the
Van
der Berg
-decision,
supra, the proceeds of this disability payment does not form part of
the communal estate and therefore, he is not in
contempt of Court if
he doesn’t utilize those funds to pay for the maintenance as
per the Rule 43 order.
THE LEGAL
POSITION:
[15]
The object of contempt proceedings is to impose a penalty that will
vindicate the Court’s
honor consequent upon the disregard of
its previous order, as well as to compel performance in accordance
with the previous order.
See in this regard:
Pheko v Ekurhuleni
City
2015 (5) SA 600
(CC) at 617 B – C
[16]
The Applicant must however prove the requisites of contempt.
These requisites are the relevant
order, service of this order or
notice of this order, non-compliance, willfulness and
mala fides
.
The Applicant must of course prove this beyond reasonable doubt.
See in this regard:
Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 344 I;
Meadow Glen Homeowners v
Tshwane
2015 (2) SA 413
(SCA) at 421 B–F;
Matjhabeng
Local Municipality v Eskom Holdings Ltd
2018 (1) SA (1) CC
at p. 24 – 25, paras [61] to [64]
[17]
Once an Applicant has proved the order, service or notice and
non-compliance, the Respondent
bears an evidential burden in relation
to willfulness and
mala fides
. Should the Respondent
fail to advance evidence that establishes reasonable doubt as to
whether the non-compliance was willful
and
mala fide
, the
contempt will have been established beyond reasonable doubt.
See in this regard:
Fakie N.O. v CCII Systems (Pty) Ltd
supra
at 344 I-J and 345 A
[18]
It must furthermore be borne in mind that contempt is not an issue
between the parties, but rather
an issue between the Court and the
party who has not complied with the Court order. See in this
regard:
Secretary, Judicial Commission v Zuma
2021
(5) SA 327
(CC) at 353 F
[19]
Although judgments for the enforcement of the payment of money (
ad
pecuniam solvendam
) cannot ordinarily be enforced by way of
contempt proceedings, maintenance orders are a special category in
which such relief is
indeed competent. See in this regard:
Bannantyne
v Bannantyne
[2002] ZACC 31
;
2003 (2) SA 363
(CC) at p. 372 H
CONCLUSION
:
[20]
It is therefore abundantly clear that the Applicant duly proved the
order. It must be remembered
that the order was an order which
was made an order of Court by agreement between the parties.
The Applicant furthermore
proved service or notice of this order.
It was after all made an order of Court by agreement between the
parties as indicated
and it is common cause that the Respondent
initially duly complied with the order. It is furthermore
abundantly clear that
the Respondent did not continue to comply with
the order and is presently, as indicated above,
inter alia
in
arrears in the amount of R215 830.97. There is no doubt in
my mind that the Respondent at all relevant times hereto
had the
means and still has the means to comply with the Court order. As is
inter alia
evident from paragraph 10, supra, he
willfully chose not to do so.
[21]
The Respondent’s contextual argument that the disability
payment amounts to damages that
was paid to him in lieu of a delict
committed against him under the circumstances alluded to above, does
not hold any substance
to my mind legally or otherwise. In any
event, no evidence was produced to the Court to substantiate this
allegation by the
Respondent. The disability payment under
these circumstances simply does not equate to a delict. The
Van
Der Berg-
decision, supra, is therefore distinguishable
on the facts and does not assist the Respondent. In the
Van Der
Berg-
decision, the monies paid out by the insurance
company was triggered by the fact that the policyholder was injured
in a shooting
incident, which amounted to a delict. The
payment was therefore not triggered by an illness such as asthma,
as
is the case
in casu.
[22]
I therefore find that the Respondent failed to discharge the
evidential burden imposed on him
to displace the inference of
willfulness and
mala fides
. I therefore find that he
willfully and
mala fide
opted not to comply with the Court
order and that therefore, his willfulness and
mala fides
have
been established beyond reasonable doubt.
[23]
Although the Applicant moved for a punitive cost order on a scale as
between attorney and client,
it is not, to my mind, appropriate in
the circumstances of this case to make such an order, especially in
view of the fact that
the Respondent was not legally represented when
this matter came before Court.
ORDER:
[24]
I therefore make the following order:
1.
The Respondent is held to be in contempt of the Court order granted
on 20 June
2019 under case number 135/2019 (“
the Court
order
”).
2.
The Respondent is convicted of contempt of the Court order.
3.
The Respondent is sentenced to three (3) months’ imprisonment
or payment
or a fine of R25 000.00. The sentence is
suspended for twenty four (24) months on condition that (i) the
Respondent
complies without delay with the Court order by paying the
arrear amount of maintenance in the amount of R215 830.97 to the
Applicant, and (ii) on condition that he is not convicted of contempt
of Court committed during the period of suspension.
4.
The Respondent is ordered to pay the costs of this application on a
party and
party scale.
5.
The Applicant is directed to serve this judgment and order on the
Respondent
by the Sheriff of the Court.
L. LE R. POHL
AJ
On behalf of the
Applicant: Adv.
W. J. Groenewald
Instructed
by:
Phatshoane
Henney Inc.
On behalf of the
Respondent: Respondent
in person