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[2022] ZALMPPHC 3
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T.C.M v L.R.M.M (HCAA09/2021) [2022] ZALMPPHC 3 (19 January 2022)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: HCAA09/2021
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
In
the matter between:
T
C
M
APPELLANT
And
L
R M
M
RESPONDENT
JUDGEMENT
MULLER J:
[1]
I have had the opportunity to read the judgment prepared by Naude AJ.
I do not agree
with her that the appeal should be dismissed.
[2]
The respondent launched an urgent application in this court for an
order to declare
the appellant in contempt of court for his failure
to comply with a court order issued on 19 July 2018 in terms of the
Maintenance Act, 99 of 1998
[1]
in the Polokwane magistrate’s court. The application succeeded,
hence the present appeal to the Full Court of this Division.
The
appeal is with leave granted by the Supreme Court of Appeal.
[3]
The order attached to the papers is barely legible. The appellant was
ordered to pay
maintenance in the amount of R2 0000.00 per month in
respect of each of three children. He was also ordered to pay of the
monthly
school fees and to pay the medical costs of the minor
children to either the service provider or the respondent. The first
payment
was to be made on 1 August 2018 and thereafter on or before
the 7
th
of each succeeding month into a nominated FNB
account [....].
[4]
The respondent averred in her founding affidavit that the appellant
stopped payment
in terms of the maintenance order in September 2019.
He launched an application in the magistrate’s court on 23
October 2019
to suspend the maintenance order. The respondent opposed
the application and delivered her opposing affidavit.
[2]
The application of the appellant was set down for 16 March 2020 but
was postponed until 6 April 2020 due to the unavailability
of the
magistrate.
[5]
It seems as if the respondent did not attend at court on 6 April 2020
because she
only learned on 29 May 2020 when she attended court in a
custody matter that the application has been postponed until 20
October
2020 due to the lock-down. It was a surprise to her since
both the matters were postponed due to the lock-down. The respondent
failed to provide details appertaining to the custody matter or
whether it has relevance to the pending suspension application of
the
appellant. She, however, stated that both matters were to be heard
simultaneously. She was aggrieved and held the view that
the
postponement of the application to suspend was at the behest of the
appellant to prolong the outcome of the suspension application.
[6]
The respondent launched the urgent application a few days later on 5
June 2020. The
respondent also explained in her founding affidavit
that she has a right as the primary caregiver of the children to
approach this
court on behalf of the minor children after she
received a letter of demand from M[....] House school where two of
their children
are attending school and from P[....] M[....]2 where
one child is attending school to settle the accounts failing of which
steps
could be taken to exclude the children from school. She called
upon the court to intervene as expulsion from school might damage
the
self-esteem and confidence of the children which will cause
irreparable harm to them should the unlawful conduct of the appellant
continue. The respondent stated that she has no alternative remedy
but to approach this court to exercise its inherent powers in
the
interests of justice since it involved the rights of the minor
children.
[7]
It is by now settled law that the High Court has inherent
jurisdiction to enforce
the order of another court, as a
process-in-aid, if that court is unable to effectively enforce its
order by its own process. It
was for the respondent (as the
applicant) to make the necessary allegations and to present evidence
in the founding affidavit to
show that there is a good and sufficient
reason for the High Court to exercise its inherent jurisdiction to
enforce an order of
the magistrate court as a
process-in-aid.
I
find myself in agreement with what was held in Dreyer v Wiebols
[3]
:
“
The
legal position regarding the issue of jurisdiction, briefly, is as
follows. Proceedings for committal for contempt of court
ought to be
brought in the court that made the order which the respondent is
alleged to have disobeyed. When a high court entertains
an
application in civil proceedings for committal for contempt of court,
it does so in the exercise of its inherent jurisdiction
to ensure
that its orders are complied with. Process-in-aid is a remedy by
means whereof a court enforces a judgment of another
court which
cannot be effectively enforced through that court’s own process
and it is also means whereby a court secures
compliance with its own
procedure. Although it is sometimes sanctioned by a statutory
provision or a rule of court, it is an incident
of a superior court’s
ordinary jurisdiction. It is discretionary remedy that will not
ordinarily be granted for the enforcement
of a judgment of another
court if there are effective remedies in that other court which can
be used. It was held by the Constitutional
Court in
Bannatyne
that is for the applicant to show that there is good and sufficient
reason for the high court to enforce the judgment of another
court.
It held that-
‘
(w)hat
constitutes ‘good and sufficient circumstances’
warranting a contempt application to the High Court will depend
upon
whether or not in the circumstances of a particular case the
legislative remedies available are effective in protecting the
rights
[of the applicant]’.
[4]
[8]
The process-in-aid is a discretionary remedy. In
Bannatyne
v Bannatyne
(CGE as Amicus Curiae)
[5]
the
Constitutional Court has re-stated the general rule that:
“
process-in-aid
will ordinarily not be granted for the enforcement of a judgment of
another court if there are effective remedies
in that court which can
be used. However, there may well be instances in which facts of a
particular case justify approaching a
High Court for such relief.”
[6]
[9]
An applicant must, therefore, make out a proper case in the founding
papers to justify
the process-in-aid relief.
I
am ever mindful that it was held in
Titty’s
Bar and Bottlestore v ABC Garage (Pty) Ltd and Others
[7]
that
:
“
It
lies, of course, in the discretion of the court in each particular
case to decide whether the applicant’s founding affidavit
contains sufficient allegations for the establishment of his case.
Courts do not normally countenance a mere skeleton of a case
in the
founding affidavit, which skeleton is then sought to be covered in
flesh in the replying affidavit.”
[10]
The respondent has failed to make out any case that the mechanisms
provided by the
Maintenance Act was
ineffective or less effective in
protecting her rights or the rights of their children so that this
court must exercise its jurisdiction
as a process-in-aid to
supplement what was lacking in terms of the
Maintenance Act. Nothing
was
said in the founding affidavit that the respondent has ever
attempted to invoke any of the mechanisms provided by the
Maintenance
Act or
that any of the procedures that she indeed invoked proved to
be ineffective to protect her rights and the best interest of their
children.
[11]
The learned Judge has found that it is common cause that the
respondent has instituted criminal
proceedings.
[8]
I cannot agree with her finding of fact. The founding affidavit
contains no shred of evidence that even remotely suggests that
the
respondent instituted criminal proceedings against the appellant or
that she has invoked any other provision of the
Maintenance Act to
enforce the maintenance order that proved to be ineffective.
[12]
Section 26(1)
of
Maintenance Act provides
:
“
Whenever
any person-
(a)
against whom a maintenance order has been
made under this Act has failed to make any particular payment in
accordance with that
maintenance order; or
(b)
against whom any order for payment of a
specified sum of money has been made under
section 16
(1)(a)(ii),
20
or
21
(4) has failed to make such a payment,
such order shall be
enforceable in respect of any amount which that person has so failed
to pay, together with any interest thereon-
(i)
by execution against property as
contemplated in
section 27
;
(ii)
by the attachment of emoluments as
contemplated in
section 28
;or
(iii)
by the attachment of any debt as
contemplated by
section 30.
”
[13]
Section 31(1)
provides:
“
Subject
to the provisions of subsection (2), any person who fails to make any
particular payment in accordance with a maintenance
order shall be
guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding one year or
to such
imprisonment without the option of a fine.”
[14]
And
section 40
states:
“
(1)
A court with civil jurisdiction convicting any person of an offence
under
section 31(1)
may, on the application of the public
prosecutor and in addition to or in lieu of any penalty which the
court may impose
in respect of that offence, grant an order for the
recovery from the convicted person of any amount he or she has failed
to pay
in accordance with the maintenance order, together with any
interest thereon, whereupon the order granted shall have the effect
of a civil judgment of that court and shall, subject to subsection
(2), be executed in the prescribed manner.
(2) A court granting an
order against a convicted person may-
(a) in a summary manner
enquire into the circumstances mentioned in subsection (3) and
(b) if the court so
decides, authorise the issue of a warrant of execution against the
movable or immovable property of the convicted
person in order to
satisfy such order.
(3) At the enquiry, the
court shall take into consideration-
(a) the existing and
prospective means of the convicted person;
(b) the financial needs
and obligations of, or in respect of, the person maintained by the
convicted person;
(c) the conduct of the
convicted person insofar as it may be relevant concerning his or her
failure to pay in accordance with the
maintenance order and
(d) the other
circumstances which should, in the opinion of the court, be taken
into consideration,
(4) Notwithstanding
anything to the contrary contained in any law, any pension, annuity
or compassionate allowance or other similar
benefit shall be liable
to be attached or subjected to execution under an order granted under
this section.
[15]
Specific reference is made to the relevant sections of the
Maintenance Act to
highlight what the enforcement mechanisms are
which are provided in the
Maintenance Act, none of which
the
respondent attempted to utilize before embarking on an urgent
application in this court. Maintenance orders, on the one hand,
may
be enforced by civil execution which includes execution against
property; attachment of emoluments and the attachment of debts.
It
may, on the other hand, be a criminal offence if a maintenance order
is not complied with.
Section 40
deals specifically with the recovery
of arrear maintenance by the criminal court.
[16]
The applicant approached the urgent court simply because she became
aggrieved that the application
for suspension was postponed. She
questioned the propriety of the postponement despite having been
informed at court that it was
due to the lock-down. She relied
exclusively on the best interest of the minor children as the reason
why the High Court should
come to her aid as process-in-aid to
enforce the order of the maintenance court. There was nothing that
the appellant could do
when the lock-down caused the delay. The
lock-down can hardly be accepted as a cause for the failure of the
Maintenance Act after
the national disaster was promulgated and was
put in place to save lives due to an extraordinary global event, if
no attempt had
been made to enforce the maintenance order by means of
the
Maintenance Act.
[17
]
No doubt, the best interest of children are affected when maintenance
orders in respect of them
are not complied with but that does not, in
itself, mean that this court may be approached in every case where
the a maintenance
order is not complied with, simply on the basis
that it is in the best interest of the minor children. An applicant
should first
endeavour to utilize of the mechanisms provided for in
the
Maintenance Act to
enforce the order. The mechanisms which may be
employed to enforce maintenance orders are
prima facie
wide
ranging and very effective include a criminal prosecution and a term
of imprisonment that may be imposed on those who failed
to comply
with the order. In the final analysis the circumstances of each
case will ultimately determine when the High Court
should come to the
aid of an applicant by invoking the process-in-aid remedy. This not
such a case.
[18]
In my view, the appeal should be upheld and the order granted in the
court below be set aside.
ORDER
(1) The appeal is upheld
with costs.
(2) The order is set
aside and replaced with the following order:
“
The
application is dismissed with costs.”
____________________
GC MULLER J
JUDGE OF THE HIGH
COURT OF SA
LIMPOPO DIVISION,
POLOKWANE
KGANYAGO
J
[19]
I have had the pleasure of reading both Muller J and Naude AJ written
judgments. I fully agree
with the reasoning and outcome of Muller J.
But regrettably, I cannot agree with the approach and outcome of
Naude AJ. The judgment
of Muller J did not deal with the issues of
whether the appellant was in contempt of the order of 18
th
July 2018, and also whether the papers as they stand did not raise a
dispute of fact. I am of the view that it is vital that the
two
issues also be dealt with. Both Muller J and Naude AJ judgment have
correctly captured the background facts of this matter
and I am not
going to repeat them.
[20]
The first issue to be dealt with is whether the papers as they stand
did not raise a dispute of fact. It
is common cause that the
respondent was seeking a final relief and not an interim relief. The
respondent in her founding affidavit
has attached as an annexure of
an application by the appellant in the magistrate court, in which the
appellant is seeking to suspend
the maintenance order granted on 19
th
July 2018. The appellant’s application was issued on 23
rd
October 2019 and set down for 13
th
November 2019 if
unopposed. The respondent had opposed the appellant’s
application, and the matter was set down to be heard
on 16
th
March 2020. On 16
th
March 2020 the presiding officer who
was supposed to hear the matter was not available and the matter was
postponed to 6
th
April 2020. It is common cause that on
26
th
March 2020 the whole country was put into national
lock down due to covid 19 pandemic which had engulfed the entire
world.
[21]
Due to the national lock down, the matter could not proceed on 6
th
April 2020. According to the respondent on 29
th
May 2020,
she attended a custody matter in the same magistrate court in which
the appellant’s application is proceeding and
that is when she
learnt that the appellant’s application has been postponed to
20
th
October 2020. According to the respondent, the
appellant’s application and the custody matter application were
previously
dealt simultaneously and was surprised to hear that the
application of the appellant has been postponed to a date in the
future.
The respondent was therefore of the view that for the
appellant’s matter to be postponed to 20
th
October
2020 shows that the appellant was not interested in finalising his
suspension of the maintenance order application, and
that this was
causing a lot of hardship to the minor children. That prompted the
respondent to institute the urgent application
in the court
a quo
.
[22]
The appellant is his founding affidavit in the court
a quo
had
submitted that on 19
th
July 2018 when he consented to the
maintenance order, he was unemployed, and he informed the court that
he intends to sell some
of his motor vehicles, and use a portion of
the proceeds of the sale to pay the maintenance. The appellant has
further stated that
he indeed sold the vehicles and paid an amount of
R200 000.00 into the respondent’s account in favour of the
minor’s
children’s maintenance, as an upfront payment in
fulfilment of the maintenance order of 19
th
July 2018.
[23]
The respondent in her answering affidavit in the magistrate court
which is also an attachment to the
respondent’s founding
affidavit in the court
a quo
, has conceded that the appellant
had sold two of his vehicles after the order of 19
th
July
2018, and also that after the sale of the vehicles, the appellant had
paid R200 000.00 into her account. However, the respondent
is
disputing that the said payment was a contribution towards payment of
maintenance of the minor children. According to the respondent,
the
amount paid by the appellant into her account was a contribution for
a deposit of her vehicle which she had immediately transferred
it
into BMW Legacy account. The respondent has further stated that the
appellant had also made another payment of R400 000.00 which
the
appellant paid directly into BMW Legacy account as part of his
contribution towards the purchase of her car.
[24]
The respondent was well aware when she instituted her urgent
application in the court
a quo
that a dispute fact was bound
to develop in respect of payment of R200 000.00 by the appellant into
her account. The appellant
in his founding affidavit in the
magistrate court has stated that on 19
th
July 2018 when he
consented to the maintenance order he was unemployed. The respondent
in her answering affidavit has disputed
that the appellant was
unemployed. This is another dispute of fact which the respondent was
aware that it was bound to develop.
The appellant when he paid the
R400 000.00, he paid it directly into BMW Legacy, and R200 000.00
into the respondent’s account.
The question is if both amounts
were for the deposit of the respondent’s car, why did he pay
the other portion directly into
BMW’s account and the other
portion into the respondent’s account. The other question is if
the appellant was employed,
what was the reason for him to sell his
cars, and thereafter pay a certain portion into the respondent’s
account.
[25]
It was not part of the maintenance order that the appellant will sell
his cars in order to pay maintenance
in terms of the order of 19
th
July 2018. It was also not part of the maintenance order that the
appellant was required to buy the respondent a car. It was just
a
verbal agreement between the parties outside court, and the terms of
the agreement does not even appear in the parties’
papers. The
issues in the parties’ papers are not common, and can therefore
not be decided on the papers as the stand.
[26]
In
National
Director of Public Prosecutions v Zuma
[9]
Harms DP said:
“
Motion
proceedings unless concerned with interim relief, are about the
resolution of legal issues based on common cause of facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings dispute of fact arise on the affidavits, a
final order
can only be granted only if the facts averred in the applicant’s
affidavit, which have been admitted by the respondent,
together with
the facts alleged by the latter, justify such order. It may be
difficult if the respondent’s version consists
of bald or
uncreditworthy denials, raises fictitious dispute of facts, is
implausible, far-fetched or so clearly untenable that
the court is
justified in rejecting them merely on papers.”
[27]
Nuade AJ in her judgment has stated that this payment into the
respondent’s account was an after-thought
defence in order to
circumvent the contempt of court application. I disagree with her
approach on this aspect. She overlooked what
the appellant has stated
in his founding affidavit in the magistrate court that when he
consented to the order he was unemployed,
and that he will have to
sell the cars and pay a portion of the proceeds into the respondent’s
account in order to comply
with the court order. Relying on payment
of that portion of the sale of the cars which was paid into the
respondent’s account
cannot be said with certainty that it was
an after-thought. Whether it is true or not that the said payment was
for maintenance
of the minor children, can only be cleared by leading
oral evidence and not through the papers as they stand.
[28]
It is clear that with the papers as they stand, there are genuine and
serious disputes of fact which could
not be resolved on papers, which
the respondent was aware of when she instituted her urgent
application. It is trite that an applicant
who elects to proceeds by
way of motion proceedings despite being aware that a serious dispute
of fact was bound to develop, runs
the risk that the application may
be dismissed with costs. It is not proper that an applicant should
proceed by way of motion procedure
with the full knowledge that the
dispute of fact might arise. (See
Room
Hire Co (Pty) Ltd v Jeppe Street Mansion
(Pty)
Ltd
[10]
.
In my view, the court
a
quo
should have dismissed the respondent’s application on the basis
that there are serious and genuine disputes of fact which
have
developed which could not have been resolved on papers.
[29]
The second issue to be decided is whether the appellant was in
contempt of the order of 18
th
July 2018. In
Secretary
of Judicial Commission of Inquiry into allegations of State Capture,
Corruption and Fraud in the Public Sector including
Organs of State v
Zuma
[11]
Khampepe ADCJ said:
“
As
set out by the Supreme Court of Appeal in Fakie, and approved by this
Court in Pheko II, it is trite that an 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 all these elements are
established,
wilfulness and mala fides are presumed and the respondent bears
evidentiary burden to establish a reasonable to doubt.
Should the
respondent fail to discharge this burden, contempt will have been
established.”
[30]
I have already found that a serious and genuine material dispute of
fact had arisen in relation to the alleged
advance payment of
maintenance by the appellant, and that the issue of advance payment
will not be resolved on the papers as stand.
If it is found that
indeed the appellant’s payment of R200 000.00 was for advanced
maintenance payment, it follows that at
the time of the institution
of the respondent’s application, the appellant was not in
arrears. If indeed the appellant at
the time he consented to the
order of 18
th
July 2018 was unemployed, and the basis of
him consenting to that order was that he will sell some of his cars
and pay a portion
of the proceeds into the respondent’s
account, he did sell the cars and paid a portion into the
respondent’s account.
[31]
This court will not overlook the fact that the appellant had indeed
sold some of his cars and split the proceeds
of the sale by paying
R400 000.00 directly into BMW Legacy account and R200 000.00 into the
respondent’s account. If the
R200 000.00 was also meant to be
part of a contribution towards the deposit of the respondent’s
car, why did the appellant
split the amounts whilst he could have
paid the whole amount directly into BMW’s account. That somehow
gives credence to
the appellant’s allegation that it was meant
for maintenance of his minor children. If indeed it was for
maintenance, it
was reckless of the respondent to have used it as a
deposit for her car. However, all these questions will be answered if
oral
evidence is led and the credibility of the appellant’s
version is tested through cross examination.
[32]
The appellant will not be crucified for despite having made an
advanced payment of R200 0000.00, he continued
to make other payments
and paying school fees for the children until August 2019, which the
respondent’s viewed as compliance
with the court order. If
indeed the appellant was unemployed at the time he consented to the
maintenance, by making other payments
despite having made an advance
payment, he was showing to be a responsible father by always being
ahead with his maintenance payments,
rather than to wait for the R200
000.00 to be depleted before he could make another payment whilst he
did not have a stable income.
In my view, without this issue of
advanced payment being resolved, even though it is clear that an
order was granted against the
appellant and the appellant was aware
of it, it will be difficult to say with certainty that the appellant
had failed to comply
with that order.
[33]
Even if it can be found that the three elements for contempt of court
have been met, that is not the end
of the matter, the next question
to be determined is whether the appellant’s non-compliance with
the court order was wilful
and mala fide. In
Fakie
v CCII Systems (Pty) Ltd
[12]
Cameron JA said:
“
The
test for when disobedience of a civil order constitutes contempt has
to be stated as whether the breach was committed ‘deliberately
and mala fide’. A deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly, believe him
or herself
entitled to act in the way claimed to constitute the contempt. In
such a case, good faith avoids infraction. Even a
refusal to comply
that is objectively unreasonable may be bona fide (though
unreasonableness could evidence lack of good faith).”
[34]
What triggered the respondent’s urgent application which was
issued on 5
th
June 2020, was that on 29
th
May
2020 she was at the magistrate court for a custody matter, and that
is when she learnt that the appellant’s application
has been
postponed to 20
th
October 2020, whilst she was under the
impression that it was on the same date with the custody matter.
There is no evidence that
the appellant was involved or had any say
in the matter being postponed to 20
th
October 2020. All
along the respondent was content with the appellant’s
application proceeding in the magistrate court in
the manner in which
it was proceeding. When the matter was postponed on 16
th
March 2020, it was due to the unavailability of the presiding
magistrate for that matter, and when the matter could not proceed
on
6
th
April 2020, it was due to hard lock down. The
respondent could not tell as to which date was matter postponed to
when it could
not proceed on 6
th
April 2020, except to
state that the appellant’s matter was proceeding simultaneously
with the custody matter. However, the
appellant dispute that there
was any custody application that was pending, which fact the
respondent had conceded to in her replying
affidavit.
[35]
It clear that the finalisation of the appellant’s application
was delayed by the national lockdown
which resulted in courts
functioning in a skeleton format, and that was the circumstances
beyond the control of the appellant.
The respondent was opportunistic
and mala fide to use that as a ground that the appellant had no
interest in finalising his application
for suspension of the
maintenance order, whilst she knew the true facts as to what was
causing the delay, and it was not through
the appellant’s
fault.
[36]
I agree with Nuade AJ that if the appellant was disputing the
increased school fees, he could at least have
paid maintenance in
order to show his bona fides and a true desire to maintain his
children an amount equate to what he used to
pay at the previous
schools. What Nuade AJ has overlooked is that the appellant is not
only disputing the increased school fees,
he had been paying that for
the better part of 2019, but raised affordability and advanced
payment as the reasons for his non-payment,
hence the application for
the suspension of the maintenance order.
[37]
Before the appellant stopped paying the school fees, on 1
st
August 2019 he wrote a whattsup message to the respondent, informing
the respondent to apply for admission of the children at government
schools as he was not going to afford to pay for them the following
year. The respondent response to that message was just to say
“noted”. The respondent in her replying affidavit does
not dispute receipt of the whattsup message, but state that
she was
surprised that after their communication breakdown, all of a sudden
the appellant can no longer afford. Thereafter the
appellant alleges
that on 31
st
May 2019 the appellant bought a BMW X5
M50d-Sport G05 2019 model worth R1 675 731.50. This was before the
1
st
August 2019, and a person’s financial situation
can change at time. It is trite that maintenance of the children is
paid
according to the means of the party who is liable to pay. In
this case the appellant consented to the order whilst allegedly
unemployed,
and his means of complying with that order was sell some
of his cars, of which he did.
[38]
When the appellant saw that his circumstances have changed, he
brought an application to suspend the order.
It can therefore not be
said that the appellant was deliberate in failing to comply with the
maintenance order, but did not have
the means to do so, and also the
believe which he had that he had made an advance payment, which
according him he was not in arrears.
I am alive to the fact that a
court of order whether good or bad remain valid and enforceable and
need to be obeyed. If indeed
the appellant was unemployed, and did
not have any source of income, it would have been difficult for him
to be up to date with
his monthly maintenance payment. To show that
he was not deliberate and mala fide in failing to comply with the
order, he did not
sit on his laurels but brought an application to
suspend that order due to changed circumstances. The respondent is
opposing the
appellant’s application in the magistrate court,
and is therefore having an opportunity to test the appellant’s
true
intentions.
[39]
According to the appellant he was ahead with his payment of
maintenance, and was therefore under the bona
fide believe (whether
mistaken or not) that he had made advance payment of maintenance of
his minor children up until 2023. The
appellant by proving that there
is a payment which was paid into the respondent’s account which
he regards as advance payment,
in my view has discharged his
evidentiary burden which creates a reasonable doubt. With the
reasonable doubt created, in my view,
the court
a quo
should
have dismissed the respondent’s application.
[40]
I therefore agree with Muller J that the appeal should be upheld and
the order granted in the court
a quo
be set aside, and that
application be dismissed.
_____________________________
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SA
LIMPOPO
DIVISION, POLOKWANE
NAUDE:
AJ (DISSENTING)
[41]
To pay the piper…or not?
This is an appeal to the full
Court of this Division against the judgment and order of Phatudi J
dated 23 June 2020. This appeal
is with leave of the Supreme Court of
Appeal.
[42]
The Respondent issued an application for contempt of a maintenance
order granted by the Maintenance
Court on 19 July 2018. The
order for maintenance was granted by consent by the Appellant.
[43]
After the parties’ separation, the Respondent brought an
application for maintenance of
the parties’ three minor
children, and the Appellant brought an application for access and
visitation of the minor children.
A maintenance order by
consent was granted against the Appellant after he consented in terms
of
Section 17
read with
Section 16
of the
Maintenance Act 99 of 1998
.
[44]
The Maintenance order, which is the subject herein, stipulates that
the Appellant is to pay an
amount of R2000,00 per month per child
maintenance, of which the first payment is to be made on 01 August
2018 and thereafter on
or before the seventh day of each succeeding
month to an FNB Cheque Account, Account No [....]. In addition the
Appellant is to
pay the monthly school fees payable to “The
Learning Mill Pre-School” and “The Kids Kingdom,
Polokwane”
and also to pay medical costs of the minor children
including medication directly to the service provider or Respondent,
preferably
Dr. Nchabeleng.
[45]
Since the maintenance order was granted, the Respondent proceeded to
close her FNB Cheque account.
The minor children have also
changed schools, however, according to the Respondent, the Appellant
paid the children’s school
fees at their respective new schools
in full for the year 2019, being M[....] House for two of the minor
children and P[....] M[....]2
for the remaining minor child.
[46]
The Appellant without any court order varying the maintenance order
of 19 July 2018, stopped
paying the maintenance of the minor children
during September 2019. The Appellant, on the 23
rd
of
October 2019, brought an application to suspend the aforesaid
maintenance order granted against him. The Respondent opposed
the
application for variation of the maintenance order. The matter
was set down for 16 March 2020, but was then postponed
to 6 April
2020. On 6 April 2020, the matter could not proceed due to the
National Covid-19 Lockdown and was once again postponed
to 20 October
2020.
[47]
The Respondent submitted in the court
a
quo
that the Applicant is in arrears
with payment of maintenance in the amount of R60 000.00 and
school fees and school books
in the amount of R64559.00 in respect of
P[....] M[....]2 for the academic year of 2020 and an amount of
R78401.50 in respect of
M[....] House for the academic year of 2020.
The Respondent further submits that L[....], one of the minor
children, is placed
on her mother’s medical aid due to his ill
health, to which her mother contributes R1323.00 per month.
[48]
The Appellant in his answering affidavit in opposition to the
Respondent’s application
for contempt of court submitted that
he is maintaining the minor children despite the court order being
invalid. He submitted
that he has paid the minor children’s
maintenance in advance up to the year 2023.
[49]
The Appellant further submitted that the Respondent’s
application lacks good and sufficient
reasons, and/or circumstances
to justify the High Court in exercising its discretionary powers, to
adjudicate the application for
contempt of court. It was
submitted that the High Court’s powers to act as process-in-aid
or adjudicate on contempt
of court for an order made by the
Maintenance Court is regulated by Section 169 of the Constitution of
South Africa, 108 of 1996
read with the Maintenance Court Act, 99 of
1998 – there must be compelling reasons to do so.
[50]
According to the Appellant the Respondent has not established that
the statutory remedies available
in the Maintenance Court have been
fully and diligently pursued and proved to be ineffective. The
Appellant submitted that
the Respondent has failed to show good and
sufficient reasons and/or circumstances which warrant the High Court
to enforce the
judgment of the Maintenance Court as required.
[51]
In addition to the above defences, the Appellant submitted that the
application for contempt
of court in the High Court constitutes
lis
alibi pendens
in that the Respondent has opened a case against
the Appellant in the Magistrate’s Court to which he has
received a summons
in a criminal case for failure to pay maintenance,
requiring him to appear before the Magistrate’s Court on 25
March 2020
on the same cause of action based on the same facts, which
case has since been postponed for investigations and is still pending
before the Magistrate’s Court.
[52]
The Appellant in opposition to the application for contempt of court
raised another
point in limine
in that the Respondent failed
to comply with the legal principles relating to seeking an order
declaring the Appellant to be in
contempt of the order and for his
committal. In respect of this defence, the Appellant submitted that
the Respondent seeks to enforce
a maintenance order, which order
orders the Appellant to pay an amount of R6000.00 maintenance per
month in favour of the Applicant,
towards the maintenance of the
three minor children to the following account number: FNB, Cheque
Account, Account Number [....]3.
[53]
The Appellant submitted that the aforementioned account number is
invalid and/or does not exist
and it is therefore impossible to
comply with the aforementioned court order in respect of the payments
therein.
[54]
It was further submitted by the Appellant that the court order states
that he should pay monthly
school fees to the Learning Mill
Pre-School and the Kids Kingdom, Polokwane and to pay the medical
costs of the minor children,
including medication directly to the
service provider, or Applicant, preferably Dr. Nchabeleng. The
Appellant submits that the
minor children are no longer enrolled at
the aforementioned schools and therefore the Appellant is no longer
under a duty to pay
school fees to the abovementioned schools as the
minor children have no accounts in the aforementioned respective
schools.
The Appellant submitted further that the court order
has become null and void and is he therefore no longer under a duty
to pay
school fees. It should be noted that the Appellant
admits to having failed to pay the minor children’s school fees
in paragraph 25 of his answering affidavit.
[55]
In respect of the medical costs, the Appellant submitted that he does
not owe any outstanding
medical costs to Dr. Nchabeleng. The
Appellant submits that he has not been approached by the Respondent
to reach an agreement
to use any alternative medical services and he
has not consented to the use of any other medical service provider.
[56]
The Appellant raised yet another
point in limine
in respect of
the medical aid contributions made by the Respondent’s mother
on behalf of the minor child, L[....].
The Appellant submits
that the Respondent does not have
locus standi
to bring an
application for reimbursement on behalf of her mother and he has no
agreement with the Respondent’s mother in
respect of the
payment of the medical aid contributions on behalf of L[....].
[57]
It should be noted that despite the Appellant’s submissions as
stated here above that it
is impossible to comply with the
maintenance court order in that the banking details as stated in the
order has changed, in paragraph
13 of his answering affidavit he
submits that he has paid the maintenance of the minor children in
advance to the Respondent’s
other bank account (ABSA Bank
Account) and attaches proof of payments made to the said bank
account.
[58]
It should further be noted that the Appellant submits that he has
requested the Respondent to
remove the children from their current
schools as he cannot afford to pay their school fees and has
requested her to enroll the
minor children in government schools,
yet, the Respondent has not made any payments towards the minor
children’s school fees.
He has not even paid a lessor
amount equate to the previous school fees he paid or that of
government schools. In his preceding
paragraphs of his
answering affidavit he stated that he does not have to comply with
the court order as it has become null and
void.
[59]
In reply the Respondent submitted that the Appellant stated that he
had paid maintenance in advance
up until 2023, but he fails to inform
the court how he calculated that he paid maintenance up until 2023.
The Appellant merely
attached a statement to his answering affidavit
wherein it is reflected that he has paid R315615.00 maintenance in
advance.
According to the Respondent, the Appellant in his
founding affidavit filed in the Magistrate’s Court, attached to
her founding
affidavit in her application for contempt of court in
the
court a quo a
s annexure “LRMM2” at paragraph
5.9 stated as follows:-
“
The
total for payments made to date for maintenance is R350 900.00,
of these payments only R54 000.00 was due for maintenance
to
date (25 September 2019). The amount in excess is R296 900
and my intention in so doing was to ensure that I am always
ahead of
my monthly contribution to the children’s maintenance as my
source of income is uncertain.”
[60]
According to the Respondent the relationship between her and the
Appellant improved after the
granting of the maintenance order on 19
July 2018. The Appellant came to her work place and even
referred his friends to
buy cars from her. One day when the
Appellant visited her at work, she showed him one of the vehicles she
was interested
in, it was a BMW320d. The Appellant then replied
and said to her to look into something more her and told her that he
will
assist her with a deposit to buy a car that she want.
[61]
The Appellant requested the Respondent to sell his Range Rover.
The settlement on the Range
Rover was approximately R433 000.00
and the Range Rover was sold for R820 000,00 to a dealership.
The Appellant
sold his Ford Ranger as well to the dealership.
On 19 December 2018, the dealership deposited the first R200 000.00
into BMW Legacy’s account. On the 22
nd
of
February 2019, the Appellant paid into the Respondent’s account
an amount of R200 000.00 which she immediately transferred
into
BMW Legacy’s account. On 11 March 2019, Iscars dealership
paid a sum of R200 000.00 into BMW Legacy’s
account.
On 20 March 2019, the Appellant also gave her R10 000.00,
R24 000.00, R1000.00 and R15 000.00 in order
to make up for the
total remaining deposit of R97611.00 towards the conclusion of her
new motor vehicle deal. All these amounts
were deposited in one
day by the Appellant. These amounts were in order to assist the
Respondent to buy a new vehicle and
not for maintenance.
[62]
It is submitted that despite the Appellant having made the
aforementioned payments, he continued
to pay maintenance into the
Respondent’s ABSA Bank Account in respect of the three minor
children until August 2019. If the
amounts deposited by the Appellant
as stated here above was in respect of maintenance as alleged by him
and not for a vehicle for
the Respondent as agreed between the
parties, why would he continue to pay his maintenance?
[63]
The issues for determination by this court are in short as follows:-
(a)
Whether Section 169(1)(b) of the Constitution of South Africa, Act
108 of 1996, read with the
Maintenance Act, Act
99 of 1998 permits
the High Court to deal with contempt of court for enforcement of a
maintenance order granted by a Maintenance
Court, as a first step to
enforce compliance with the maintenance order where the
Respondent has not exhausted the remedies
provided in the
Maintenance
Act, 99 of 1998
, in the alternative whether the High Court has
jurisdiction to enforce maintenance orders through contempt of court
proceedings
where the Maintenance Court since failed to enforce its
order/the maintenance order.
(b)
Whether the Respondent was entitled to institute contempt of court
proceedings against the Appellant
for non-compliance with a
maintenance order whilst there are pending criminal procedures and a
summons against the Appellant in
the Maintenance Court for the same
cause of action.
(c)
Whether the Respondent complied with the legal principles and/or
requirements for contempt of court in that
whether the Court order
dated 19 July 2018 constitutes a valid and enforceable court order
considering the changed circumstances
and whether such variation is
enforceable by contempt of court proceedings, wherein the children’s
best interests are of
concern.
[64]
The first question to be determined is whether the High Court has the
necessary jurisdiction
or power to enforce a maintenance order of the
Maintenance Court through contempt of court proceedings.
[65]
Section 169(1) of the Constitution
of South Africa stipulates
as follows:-
“
The
High Court of South Africa may decide-
(a)
…
(b)
Any other matter not assigned to
another court by an Act of Parliament.”
[66]
The Appellant submits that the High Court’s power to enforce
maintenance orders is restricted
by
Section 169(1)(b) of the
Constitution of South Africa, Act 108 of 1996,
read with Section
3 and Chapter V
(Section 26
and
30
of the
Maintenance Act, 99 of
1998
. It was submitted that the High Court may only usurp its
inherent jurisdiction to enforce maintenance orders under exceptional
circumstances.
[67]
The Constitutional Court in the case of
Bannatyne v Bannatyne and
Another (CCT18/02)
[2002] ZACC 31
;
2003 (2) BCLR 111
;
2003 (2) SA 363
(CC) (20 December 2002)
at para 1
stated as follows:-
“
The
applicant applied for special leave to appeal to this Court on the
basis that, in its finding regarding when a High Court is
competent
to make an order for contempt, the SCA failed to take into
consideration and give due weight to section 28(2) of the
Constitution which requires that the best interests of the child be
given paramountcy in all matters affecting children.”
[68]
The Constitutional Court at
para 18 of Bannatyne v Bannatyne
supra
held as follows:-
“
Although
money judgments cannot ordinarily be enforced by contempt
proceedings, it is well established that maintenance orders are
in a
special category in which such relief is competent.
[16]
What
is less clear is whether it is competent for a High Court to make an
order for contempt of court for the failure to comply
with an order
made by a magistrate’s court. This question was left open by
the SCA in this case. While it was willing to
assume that the High
Court had such jurisdiction, it concluded on the evidence that the
applicant had not pursued her remedies
under the Act “fully and
diligently” and that there were accordingly insufficient
grounds for the High Court to have
made the order that it did.”
[69]
The circumstances in which a High Court should exercise its inherent
jurisdiction was fully dealt
with by
Mokgoro J
in
Bannatyne
v Bannatyne
supra
at para 19-21. Mokgoro J
stated as follows:-
“
[19]
In terms of Section 8 of the Constitution the judiciary is bound by
the Bill of Rights. Courts are empowered to
ensure that
constitutional rights are enforced. They are thus obliged to
grant “appropriate relief” to those
whose rights have
been infringed or threatened. In
Fose
v Minister of Safety and Security Ackermann J
said:
“
.
. . I have no doubt that this Court has a particular duty to ensure
that, within the bounds of the Constitution, effective relief
be
granted for the infringement of any of the rights entrenched in it.
In our context an appropriate remedy must mean an effective
remedy,
for without effective remedies for breach, the values underlying and
the rights entrenched in the Constitution cannot properly
be upheld
or enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is
essential that on
those occasions when the legal process does establish that an
infringement of an entrenched right has occurred,
it be effectively
vindicated. The courts have a particular responsibility in this
regard and are obliged to ‘forge new tools’
and shape
innovative remedies, if needs be, to achieve this goal.”
(Footnote omitted.)
[20]
There is however no need to forge new remedies permitting the High
Court to enforce a maintenance order made by
the maintenance court.
Process-in-aid is an appropriate remedy for this purpose. It is
the means whereby a court enforces
a judgment of another court which
cannot be effectively enforced through its own process. It is
also a means whereby a court
secures compliance with its own
procedures. Although process-in-aid is sometimes sanctioned by
a statutory provision or a
rule of court, it is an incident of a
superior court’s ordinary jurisdiction. Contempt of court
proceedings are a recognised
method of putting pressure on a
maintenance defaulter to comply with his/her obligation. An
application to the High Court
for process-in-aid by way of contempt
proceedings to secure the enforcement of a maintenance debt is
therefore appropriate constitutional
relief for the enforcement of a
claim for the maintenance of children.
[21]
This does not mean that High Courts can be seized of all claims for
maintenance. Process-in-aid is a discretionary
remedy. In
Troskie
v Troskie
the court dealt with the question of
whether it should exercise a discretion which it had under the rules
of court as they then
existed,
to conduct an enquiry into
the financial position of a person who had failed to make payment in
terms of a maintenance order and
to grant appropriate relief in the
light of such examination. In developing the test for the exercise of
the discretion,
Trollip J
said the following:
“
Now
the important factor relating to the exercise of such discretion by
the Court is the existence of the Maintenance Act, 23 of
1963, as
amended by Act 19 of 1967. In that Act ample provision is made for
the enforcement, and the variation if necessary, of
any order for
maintenance made by a Supreme Court by the appropriate magistrate’s
court by means of a simple, inexpensive
and effective procedure.
…
Those
provisions were obviously designed to expedite and to simplify the
procedure relating to maintenance orders, and, above all,
to avoid
the necessity of the parties having to resort to the far more costly
procedure of applying to the Supreme Court for relief.
A further
object must have been to relieve the Supreme Court from having to
deal with the somewhat frequent applications that,
in the past, were
directed to it to enforce or vary maintenance orders.
It
seems to me, therefore, that this Court, in the exercise of its
discretion, should not entertain any application under Rule 45(12)(i)
to enforce payment of the arrears of a maintenance order, unless
there are good and sufficient circumstances warranting it.”
(Footnotes omitted)
[70]
At
para 22-23 of Bannatyne v Bannatyne, Mokgoro J
stated as
follows:-
“
[22]
Process-in-aid will not ordinarily be granted for the enforcement of
a judgment of another court if there are effective
remedies in that
court which can be used. However, there may well be instances
in which the facts of a particular case justify
approaching a High
Court for such relief. Although Troskie was concerned with the
circumstances in which a High Court should
invoke Rule 45(12) of the
Supreme Court Rules which requires the Court to conduct an
investigation into the financial position
of a person for the purpose
of enforcing payment of a High Court maintenance order, the policy
considerations underlying that test
are equally applicable in this
case.
[23] It is
for the applicant to show that there is good and sufficient reasons
for the High Court to enforce the judgment
of another court.
What constitutes “good and sufficient circumstances”
warranting a contempt application to the
High Court will depend upon
whether or not in the circumstances of a particular case the
legislative remedies available are effective
in protecting the rights
of the complainant and the best interests of the children. This
much is confirmed in Section 38
of the Constitution which permits a
court to grant appropriate relief where it is alleged that a right in
the Bill of Rights has
been infringed or threatened.”
[71]
Section 28(2) of the Constitution of South Africa
, provides as
follows:-
“
A
child’s best interests are of paramount importance in every
matter concerning the child.”
[72]
It is trite that children have a right to proper parental care.
There is an obligation
on children’s parents to ensure that all
children are properly cared for. There is however also an
obligation on the
state to create the necessary environment for
parents to do so. The Constitutional Court held in
Government
of the Republic of South Africa and Others v Grootboom and Others
2001 (1) SA 46
(CC) at para 78
that the state:-
“…
must
provide the legal and administrative infrastructure necessary to
ensure that children are accorded the protection contemplated
by s
28”
[73]
The
Maintenance Act, 1998
makes provision for a comprehensive legal
framework specifically created for the recovery of maintenance, it is
however not doubted
that there is logistical difficulties in the
maintenance courts that result in the system not functioning
effectively. This
administrative disfunctionality, or
alternatively systematic failure have a negative impact on the
enforcement of maintenance orders,
the protection of minor children’s
best interest and the rule of law.
[74]
As upper guardian of all minor children, the High Court must ensure
that minor children and women
are protected against defaulters of
court orders. It was held in
para 27 of Bannatyne v
Bannatyne
supra
, that if court orders are
habitually evaded and defied with relative impunity, the justice
system is discredited and the constitutional
promise of human dignity
and equality is seriously compromised for those most dependent on the
law.
[75]
Very importantly
Mokgoro J
stated in
para 31-32 of
Bannatyne v Bannatyne
supra
, as follows:-
“
[31]
The appropriate relief required by
section 38
is relief that is
effective in protecting threatened or infringed rights. Where
legislative remedies specifically designed
to vindicate children’s
rights as efficiently and cost-effectively as possible fail to
achieve that purpose, they do not
provide effective relief. The
SCA, in upholding the appeal held that:
“
.
. . it has not been established that the statutory remedies have been
fully and diligently pursued and have been found to be wanting.”
This
fails to have regard to the fact that once the applicant had reported
the respondent’s maintenance default, the matter
was then in
the hands of the maintenance officer on whom there was a duty to
investigate the complaint and provide the applicant
with the
requisite assistance to enforce the order.
It also
fails to have regard to the parlous circumstances in which the
applicant found herself, and the fact that despite
her efforts to
secure relief through the provisions of the Act, the respondent had
failed to pay any maintenance whatsoever to
her and the children for
seven months. If regard is had to all the circumstances there were
indeed “good and sufficient circumstances”
warranting an
application to the High Court.
[32]
Courts need to be alive to recalcitrant maintenance defaulters who
use legal processes to side-step their obligations
towards their
children. The respondent was entitled to apply for a variation
of the maintenance order. But whatever
excuse he might have had
for failing to comply with the existing order, there was not excuse
for his failure to pay even the reduced
amount that he contended
should be substituted for it. The respondent appears to have
utilized the system to stall his maintenance
obligations through the
machinery of the Act…”
[76]
In the present matter, it is common cause that the Respondent has
instituted criminal proceedings
against the Appellant in the
Maintenance Court. It is further common cause that the matter
has been postponed several times
due to various reasons and that the
criminal matter is still pending. It should be noted that this
criminal matter has been
pending since at least February 2020.
It is further common cause that the Appellant has not paid the
children’s school
fees for the minor children and that the
children’s respective schools have sent a notice of breach
(letter of demand) to
the Respondent for the arrear school fees.
[77]
In applying the above principles laid down in
Bannatyne v
Bannatyne
to the present matter, I am of the view that this
matter falls within the ambit intended by the Constitutional Court
where good
and sufficient circumstances exist warranting a contempt
of court application to the High Court. The Respondent did
attempt
to utilise the processes in the Maintenance Court first,
prior to approaching the High Court, but the processes proved to be
ineffective.
In my view the Respondent was justified in the present
matter to approach the High Court as upper guardian of minor children
to
protect the best interests of the minor children.
[78]
Having concluded that the court
a quo
had the necessary power
and jurisdiction to entertain the application for contempt of court,
the next issue to determine is whether
the institution of the
application for contempt of court constitutes
lis alibi pendens
whilst criminal proceedings are pending in the Maintenance Court.
[79]
In order to succeed
with the defence of
lis
pendens
,
the party raising it bears the onus of alleging and proving the
following requirements-
(a)
pending litigation,
(b)
between the same parties or their privies,
(c)
based on the same cause of action (the
requirement of the same cause
of
action is satisfied if the other proceedings involve determination of
a question that is necessary for the determination of the
present
case and substantially determinative of its outcome) (See
Nestlé
(SA) (Pty) Ltd v Mars Inc
[2001] 4 All SA 315
(A),
2001 (4) SA 542
(SCA)
)
.
(d)
in respect of the same subject matter. (This does not mean that the
form of relief
claimed must be identical.) (See
Williams &
Kantor v Van Diggelen
1935 TPD 29
)
[80]
Contempt of court is punishable as a common law crime. It is a
crime unlawfully and intentionally
to disobey a court order.
This type of contempt of court is part of a broader offence, which
can take many forms, but the
essence of which lies in violating the
dignity, repute or authority of the Court. The offence had, in
general terms, received
a constitutional ‘stamp of approval’,
since the rule of law – a founding value of the Constitution –
‘requires
that the dignity and authority of the Courts, as well
as their capacity to carry out their functions, should always be
maintained.
[81]
Section 26(1)
of the
Maintenance Act, 99 of
1998
provides:
“
Whenever
any person−
(a)
against whom any maintenance order has been made under this Act has
failed to make any particular payment in accordance with
that
maintenance order; or
(b)
. . . .
such
order shall be enforceable in respect of any amount which that person
has so failed to pay, together with any interest thereon−
(i)
by execution against property as contemplated in section 27;
(ii)
by the attachment of emoluments as contemplated in section 28; or
(iii)
by the attachment of any debt as contemplated in section 30.”
[82]
Criminal proceedings in the Maintenance Court in terms of Section 31
deals with the failure to
pay maintenance.
Section 31(1)
of
the
Maintenance Act, 99 of 1998
stipulates as follows:-
“
.
. . any person who fails to make any particular payment in accordance
with a maintenance order shall be guilty of an offence and
liable on
conviction to a fine or to imprisonment for a period not exceeding
one year or to such imprisonment without the option
of a fine.”
[83]
Contempt is a common law offence against the court and dignity of the
court, whilst criminal
proceedings in terms of
Section 31(1)
of
the
Maintenance Act, 99 of 1998
is a statutory offence for
failure to pay maintenance and is an offence against the person
entitled to maintenance. The cause
of action and the person or
institution against which the respective offences are committed are
therefore not the same. In
the result there is no merit in the
point in limine
raised of
lis alibi pendens
.
[84]
The last issue to determine is whether the Respondent complied with
the legal principles and/or
requirements for contempt of court in
that whether the Court order dated 19 July 2018 constitutes a valid
and enforceable court
order considering the changed circumstances and
whether such variation is enforceable by contempt of court
proceedings, wherein
the children’s best interests are of
concern.
[85]
In my view the banking details provided in the Maintenance Order does
not alter the order or
in any manner whatsoever define the purpose of
the order. The banking details provided merely gives a means to
ensure that
compliance with the order is effected. The Appellants
argument that it is impossible for him to comply with the Maintenance
Order
as the banking details of the Respondent have changed
constitutes nothing but a fanciful and meritless defence. The
Appellant on
his own version made payments of ancillary maintenance
and amounts into the Respondent’s new Absa Bank account without
any
issue. In my view, the Appellant only thought of this
defence as an after-thought in order to circumvent the contempt of
court application.
[86]
I harbor the same view in respect of the Appellants submission that
the minor children’s
schools have changed and therefor he is
absolved from paying any school fees as the maintenance order has
become null and void.
The crux and purpose of the order is that
the minor children should be maintained in the amount of R2000.00 per
month per child
and their school fees and medical costs should be
paid by the Appellant. It is logic that as the children become
older their
schools they initially attended, will change –
pre-school to primary school and primary school to high school.
In my
view, the Appellant cannot refuse to pay the minor children’s
school fees just because they have changed schools. If
the
Appellant disputes the increased school fees, he could at least have
paid in order to show his
bona fides
and a true desire to
maintain his children an amount equate to what he used to pay at
their previous schools, but instead he chose
not to make any payments
whatsoever for the school year of 2020, whilst having paid in full
for the school year of 2019 to their
respective new schools.
[87]
I view the Appellant’s argument in respect of the change in
schools and his inability to
pay the higher school fees in a dim
light and take it with a pinch of salt. It is highly improbable
that if the Appellant
truly was not in a financial position to pay
the minor children’s school fees that he would allegedly pay
maintenance 3 years
in advance. Considering the luxurious vehicles
the Appellant drives for example the Range Rover, the security estate
the Appellant
resides in and the Appellants alleged ability to pay 3
years maintenance in advance, it is highly unlikely that he is not in
a
financial position to pay the minor children’s school fees.
The Appellant’s version in this regard is inconsistent and
contradictory and should be rejected.
[88]
In
AR v MN A R v M N (26583/2014) [2020] ZAGPJHC 215 (21 September
2020) Snyckers AJ stated at para 22
as follows:-
“
22.
What appears to me to be completely undeniable is the fact that,
whatever father’s true current ability, when it comes
to
payment of maintenance and meeting the court order, he must at least
be, to the tune of a significant amount every month, in
mala fide
contempt. This is because of his complete failure to pay anything at
all, apart from one payment in August 2018, since
February 2018. Even
the amount of R1 000 per child per month as a total amount that he
alleged he was able to afford in March 2020
(which appears on the
face of it to be risible in the circumstances), and was formally used
to ground his application for a reduction
in maintenance, did not
find its way into any bank accounts that had anything to do with
compliance with the court order. The same
can be said for the amount
of R2 500 per month per child and one-third of the school fees which
became the fall-back position,
before the Maintenance Court –
in circumstances where it was not suggested that this had suddenly
become possible overnight
and had not been possible the day before. I
agree with counsel for mother that the reasoning of Kollapen J in JD
v DD 2016 JDR
0933 (GP) is apposite:
if
father were truly not mala fide, one would have expected him at the
very least to have made payment of those amounts that he
alleged he
was able to pay in his application for reduced maintenance.”
(own emphasis)
[89]
To
ensure that courts’ authority is effective,
Section
165(5) of the Constitution
makes
orders of court binding on “all persons to whom and organs of
state to which it applies”. The purpose of a finding
of
contempt is to protect the fount of justice by preventing unlawful
disdain for judicial authority. (See
S
v Mamabolo 2001 (3) SA 409 (CC)
).
Discernibly, continual non-compliance with court orders imperils
judicial authority.
[90]
It “is a crime unlawfully and intentionally to disobey a court
order”. (See
Fakie N.O. v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006 (4) SA 326
(SCA) at para 6).
The crime of contempt
of court is said to be a “blunt instrument”. (See
Meadow
Glen Home Owners Association v City of Tshwane Metropolitan
Municipality
[2014] ZASCA 209
;
2015 (2) SA 413
(SCA) at para 35)
)
Because of this, “[w]ilful disobedience of an order made in
civil proceedings is both contemptuous and a criminal
offence”.(See
Pheko v Ekurhuleni Metropolitan Municipality (No 2)
[2015] ZACC
10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC)
) All contempt of
court, even civil contempt, may be punishable as a crime.
[91]
In determining whether the Respondent is guilty of contempt of court
the following requirements
as set in
Compensation Solutions (Pty)
Ltd v Compensation Commissioner
[2016] ZASCA 59
; (2016) 37 ILJ 1625
(SCA)
should be proved:-
“
The
question which then arises is whether the appellant proved that the
Commissioner’s failure to comply with the [consent
order]
amounted to civil contempt of court, beyond a reasonable doubt to
secure his committal to prison. An applicant for this
type of relief
must prove (a) the existence of a court order; (b) service or notice
thereof; (c) non-compliance with the terms
of the order; and (d)
willfulness and mala fides beyond reasonable doubt. But the
respondent bears an evidentiary burden in relation
to (d) to adduce
evidence to rebut the inference that his non-compliance was not
wilful and mala fide. Here, requisites (a) to
(c) were always common
cause. The only question was whether the Commissioner rebutted the
evidentiary burden resting on him.”
[92]
In
Matjhabeng Local Municipality v Eskom Holdings Limited and
Others; Shadrack Shivumba Homu Mkhonto and Others v Compensation
Solutions
(Pty) Limited [2017] ZACC35, Nkabinde ADCJ at para 67
held as follows:-
“
Summing
up, on a reading of Fakie, Pheko II, and Burchell, I am of the view
that the standard of proof must be applied in accordance
with the
purpose sought to be achieved, differently put, the consequences of
the various remedies. As I understand it, the maintenance
of a
distinction does have a practical significance: the civil contempt
remedies of committal or a fine have material consequences
on an
individual’s freedom and security of the person. However, it is
necessary in some instances because disregard of a
court order not
only deprives the other party of the benefit of the order but also
impairs the effective administration of justice.
There, the criminal
standard of proof – beyond reasonable doubt – applies
always. A fitting example of this is Fakie.
On the other hand, there
are civil contempt remedies − for example, declaratory relief,
mandamus, or a structural interdict
− that do not have the
consequence of depriving an individual of their right to freedom and
security of the person. A fitting
example of this is Burchell. Here,
and I stress, the civil standard of proof – a balance of
probabilities – applies.”
[93]
In this matter the onus to prove contempt of court remained on
the Respondent (Applicant in the court
a quo
) seeking a
finding of contempt. The Appellant (Respondent in the court
a
quo
)
bore an evidentiary burden in relation to
willfulness and
mala fides
and had to adduce evidence to rebut the inference that his
non-compliance was not wilful and
mala
fide.
[94]
In the present matter I am satisfied that the
Respondent has proven beyond reasonable doubt the existence of a
court order; service
or notice thereof and non-compliance with the
terms of the order. The Appellant failed to discharge the
evidentiary burden
and adduce evidence to rebut the inference that
his non-compliance was not wilful and
mala
fide
. In the result the court
a
quo
was correct in its finding and I
would accordingly dismiss the appeal.
___________________
M.
NAUDÈ
ACTING
JUDGE OF
THE
HIGH COURT, LIMPOPO DIVISON
POLOKWANE
APPEARENCES
Counsel
for the appellant
: Adv.S.Sikhwari
Instructed
by
: Thobela (I.S) Attorneys
Counsel
for the respondent
: Adv.M.E. Ngoetjana
Instructed
by
: N.J.Morero Inc. Attorneys
Date
heard
: 12
th
November 2021
Electronically
circulated on
: 19
th
January 2022
[1]
Hereinafter
“the
Maintenance Act&rdquo
;.
[2]
Both
the application and the answering affidavit were annexures in the
urgent application thereby incorporating the pending suspension
application in the magistrate’s court in the urgent
application.
[3]
2013
(4) SA 498 (GSJ).
[4]
Par
9.
[5]
2003
(2) SA 363 (CC).
[6]
Par
12.
[7]
1974
(4) SA 362
(T) 369A.
[8]
Par
36.
[9]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 290D-F
[10]
1949 (3) SA 155 (T)
[11]
[2021] ZACC 18
(29 June 2021) at para 37
[12]
2006 (4)- SA 326
(SCA) at para 9