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[2022] ZAECMKHC 36
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N.S.B v A.F.B (260/2019) [2022] ZAECMKHC 36 (7 June 2022)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTENR CAPE
DIVISION: MAKHANDA]
CASE NO. 260/2019
In the matter between:
N
[....] S [....] B [....]1
Applicant
and
A
[....] F [....] B [....]2
Respondent
JUDGMENT
JOLWANA J
:
[1] This matter has its
genesis in divorce proceedings which culminated in a deed of
settlement that was made an order of court
by Kahla AJ on 12 July
2016. The said deed of settlement was drawn by the respondent himself
who, incidentally, is an attorney
of this Court of many years
standing. The respondent who was the plaintiff in those proceedings
had counsel appear on his behalf
who applied for and was granted an
order in terms of which the said deed of settlement was made an order
of court. Of relevance
for the purposes of this application is what
is provided for in clause 5 thereof in which the agreement is couched
as follows:
“
5.1
It is expressly recorded that the plaintiff will undertake full
responsibility for the settling of the liabilities, if any,
currently
existing on the following immovable properties:
5.1.1 the common home
being [….] A [....]2 S [....], Grahamstown, and
5.1.2 the undeveloped
properties identified as erven [….], [….], [….],
[….], [….],[….]
and [….], East London,
and owned by Tradespoon 27 (Pty) Ltd.
5.2 The plaintiff will,
in accordance with the provisions of Section 45bis of the Deeds
Registries Act, Act 47 of 1937, and within
24 (twenty-four) months of
the date of the issuing of the Decree of Divorce, arrange for the
substitution of the Defendant as debtor.
5.3 Upon the settling of
such liabilities the Defendant undertakes to ensure transfer to any
and all property rights she may have
in the properties into the name
of the plaintiff, or any entity nominated by him for that purpose, at
which stage the properties
will become his exclusively. The cost
transfer(s) will be borne by the plaintiff.”
[2] It is the
non-compliance with the above provisions or terms of the deed by
settlement which had been made an order of court
that resulted in the
institution of contempt of court proceedings. I do not intend to
elaborate more on the factual matrix that
was considered by the court
in the contempt of court proceedings in which both parties were
represented by highly experienced senior
counsel. The court, after
considering all the facts and evidential material before it, made the
following conclusion:
“
The
respondent has not adduced evidence which creates any doubt that he
acted willfully and mala fides. The circumstances leading
to the
respondent’s inability to substitute the applicant and thus
comply with the court order, was not a priority. This
is so
particularly in respect of the matrimonial home. It cannot be said
that the applicant has purged his contempt by making partial
payments. His settlement of the arrears in respect of the home loan
only after the institution of these proceedings does not assist
him
in purging the contempt. The respondent had the opportunity to make
more payments and comply with the court order had he not
diverted his
funds to other expenses, most of which were self-created and
self-serving. This reinforces the notion that at the
heart of this
matter is the need to ensure that court orders are complied with.
This necessitates that the relief that this court
grants, should talk
not only to the criminal aspects of the matter and thus seek only to
punish the respondent but must also serve
to compel the respondent to
comply with the court order within the terms and parameters set by
the court.”
[3] The court thereupon
found the respondent in contempt of the court order dated 12 July
2016. He was sentenced to six months imprisonment
wholly suspended
for two years on condition that he purged his contempt within 90
days. In the event of the respondent’s
failure to comply with
its order by purging his contempt of the court order dated 12 July
2016, the applicant was authorized to
approach this Court on the same
papers duly amplified as may be necessary calling upon the respondent
to show cause why he should
not be committed to prison.
[4] The respondent
applied for leave to appeal which was dismissed with costs. He then
applied to the Supreme Court of Appeal for
special leave to appeal in
terms of
section 16
(1) (a) (i) of the
Superior Courts Act 10 of
2013
. The Supreme Court of Appeal dismissed the application for
special leave to appeal with costs on the grounds that there was no
reasonable prospect of success in an appeal and that there was no
other compelling reason why an appeal should be heard. The respondent
lodged an application with the President of the Supreme Court of
Appeal for the reconsideration of the dismissal of his application
for special leave to appeal in terms of
section 17
(2) (f) of the
Superior Courts Act 10 of 2013
. That application also suffered the
same fate and was dismissed with costs for the reason that no
exceptional circumstances warranting
the reconsideration or variation
of the decision refusing the application for leave to appeal had been
established by the respondent.
Undeterred, the respondent applied to
the Constitutional Court for leave to appeal. That Court refused with
costs, the respondent’s
application for leave to appeal to it
on the basis that the matter did not engage its jurisdiction.
[5] The respondent had by
then exhausted all possible avenues within the South African legal
framework which he invoked in order
to avoid having to purge his
contempt of the court order of Kahla AJ dating back as far as 12 July
2016. Most importantly, he made
all the unmeritorious and dilatory
applications for leave to appeal in order to avoid being compelled to
do that which he personally
undertook to do in terms of the deed of
settlement. He had ample opportunity to purge his contempt but failed
to do so. It is now
incumbent upon this Court to consider if it
should commit the respondent to prison for his failure to comply with
the court order
of Mfenyana AJ dated 15 January 2020. That order gave
the respondent 90 days within which to purge his contempt for which
it had
found him guilty and if he complied, his six months
imprisonment order would remain suspended for two years.
[6] The matter is now
back in this Court for the reason that the respondent has still not
purged his contempt nor has he done anything
meaningful to comply
with the order of Mfenyana AJ. The applicant has expressed herself in
her founding affidavit as follows regarding
the impact the said
non-compliance has on her personal life:
“
18.
As I am suffering severe financial prejudice as a result of the
respondent’s failure to release me from the bond on the
property, and as my credit worthiness is already tarnished, as a
result of the respondent’s actions, my attorney addressed
a
letter to my attorneys of record in Bloemfontein enclosing the order
on the merits, and a copy of the letter is attached hereto
marked
annexure “A10”. The finalization of the application for
leave to appeal has been prevented by the respondent
himself by
failing to furnish the Supreme Court of Appeal with the order on the
merits. This is a most unsatisfactory state of
affairs especially as
I am suffering financial prejudice on a daily basis.”
[7] There are many other
expressions of exasperation by the applicant at the continued
disregard of the court order by the respondent
who appears to have
used his skill as an experienced legal professional by resorting to
every trick in the book, regardless of
merit, to avoid having to
comply. The endless applications for leave to appeal in which the
respondent appears to have had no regard
to the merits thereof all
the way to the Constitutional Court all of which suffered the same
easily predictable fate of being dismissed
with costs are but one
such case in point. In asking for the respondent’s committal to
prison for six months in terms of
the order of Mfenyana AJ dated 15
January 2020 as well as the order for the respondent to pay costs on
an attorney and client scale,
the applicant makes the above
averments, not for the first time in her founding affidavit but it
appears, to emphasize two issues.
The first one is that the court
order of Kahla AJ dated 12 July 2016 has still not been complied with
more than five years after
the order was made and more than two years
after the order of Mfenyana AJ was made on 15 January 2020. In terms
of the court order
dated 15 January 2020, the respondent was found
guilty of the crime of civil contempt for his mala fide and willful
non-compliance
with Kahla AJ’s order dated 12 July 2016. He was
also sentenced to six months imprisonment wholly suspended for two
years
on condition that he purged his contempt within 90 days from
the 15 January 2020 which he had not done as at the date of the
hearing
of this application.
[8] Courts must naturally
be very indignant about willful non-compliance with their own orders
for reasons that need no elaboration.
Besides the court’s
natural indignation with mala fide, willful and clearly craftily
calculated non-compliance with its own
orders, which the applicant
brings to the attention of this Court, the applicant also clearly
expresses the impact the non-compliance
has had on her. In this
regard the applicant further expresses her exasperation and the
prejudice she suffers because of at the
respondent’s continued
disregard for and his failure to obey court orders as follows:
“
32.
I emphasize that the deed of settlement which was made an order of
court was drafted by the respondent and the order was granted
at his
behest so that he was able to take possession of the family home,
however, was required to release me from the bond of the
property
within two years of the order of Court.
33. The respondent’s
failure to comply with Kahla AJ’s court order, and now his
failure to pay SA Home Loans is an ongoing
situation, which has
caused me extreme financial hardship and tarnished my credit
worthiness, and good name.”
[9] The respondent’s
answer to the case made by the applicant largely consists of
deliberate attempts at making the applicant
appear as either bad or
unreasonable. He again introduces an issue of a deed of sale that he
wanted the applicant to sign in terms
of which the property was being
sold to one of his entities which she did not sign. This deed of sale
is made to appear to be a
genuine attempt by the respondent to
release the applicant from the bond. Besides the many other problems
with the deed of sale
which the applicant alludes to, the respondent
does not deal cogently with the fact that the deed of settlement
never made the
release of the applicant subject to the sale of the
property.
[10] The other problem is
the fact that according to the applicant the deed of sale was just a
ruse, yet another attempt at feigning
compliance as that entity was
struggling to pay monthly rentals for its premises. In any event the
issue of the deed of sale had
been put to bed by Mfenyana AJ and it
was firmly rejected as a justification for the respondent’s
failure to comply with
the court order dated 12 July 2016. The
respondent also patronizingly refers to the applicant as “
a
mere pawn in a greater scheme of conspiracy involving the applicant’s
legal team, consisting of the applicant’s attorney,
Mr Brin
Brody, Adv Izak Smuts SC and Adv Gavin Brown, and other members of
the Grahamstown legal fraternity to have me convicted
of contempt of
court so that I may be disbarred.”
I will deal with this
issue later herein when I deal with the application to strike out and
the recusal application.
[11] After carefully
considering all the papers in this matter and hearing counsel for the
applicant and the respondent who appeared
in person it became clear
that the respondent had neither a factual nor legal basis for his
continued non-compliance with the court
order of Kahla AJ. He
had already been convicted and sentenced in respect of the contempt
of court and despite the sentence
imposed having been suspended
subject to him purging his contempt within 90 days he had still not
done so more than two years later
as at the date of the hearing of
this application. It became clear that committing the respondent to a
suitably lengthy period
of imprisonment would be a natural
consequence if he continued with his unjustified contempt. I
therefore considered it necessary
for the parties to make submissions
for purposes of assisting the court on what circumstances should be
taken into account before
an order for the respondent’s
committal to prison was made.
[12]
Whilst the submissions were still to be made within the set time
frames I decided to give the respondent one last opportunity
to purge
his contempt even though he had already squandered the opportunity
given to him by Mfenyana AJ when the learned acting
Judge made a
coercive order with a suspended sentence. There is always a tension
between the court having to vindicate its authority
by ensuring that
court orders are complied with and the need to give a contemnor an
opportunity to avoid imprisonment by complying
with the original
order. If at the delivery of this judgment the respondent would still
not have purged his contempt, his imprisonment
was a certain reality
subject to the considerations of the submission still to be made
regarding his possible imprisonment. It
is pertinent that I
re-emphasize the purposes of contempt of court proceedings as
explained by Khampepe ADCJ in
Zuma
[1]
.
She said:
“
I
should start by explaining how the purposes of contempt of court
proceedings should be understood. As helpfully set out by the
minority in
Fakie
,
there is a distinction between coercive and punitive orders, which
differences are “marked and important”. A coercive
order
gives the respondent the opportunity to avoid imprisonment by
complying with the original order and desisting from the offensive
conduct. Such an order is made primarily to ensure the effectiveness
of the original order by bringing about compliance. A final
characteristic is that it only incidentally vindicates the authority
of the court that has been disobeyed. Conversely, the following
are
the characteristics of a punitive order: a sentence of imprisonment
cannot be avoided by any action on the part of the respondent
to
comply with the original order, the sentence is unsuspended, it is
related both to the seriousness of the default and the contumacy
of
the respondent; and the order is influenced by the need to assert the
authority and dignity of the court, to set an example
for others.”
[13] I am of the view
that courts should generally be extremely loathe to commit a person
to imprisonment for a contempt of court
order. This of course, unless
there is no longer any hope of the contemnor purging his contempt. In
consideration of all the above
and the legal position artitulated in
many cases up to
Zuma
I issued an order giving the respondent
15 days to comply with the order of Kahla AJ dated 12 July 2016. I
also ordered him to
thereafter make submissions on an appropriate
sentence within 30 days. The applicant was directed to file her own
submissions on
an appropriate sentence within 7 days thereafter.
Pending all those processes the judgment was reserved.
[14] The respondent’s
compliance affidavit has since been filed. It appears therefrom that
between the 9 March 2022 and the
14 March 2022 the respondent paid an
amount of R547 750.00 being the amount owed to SA Home Loans in
terms of their bond cancellation
figures. It appears from the
affidavits filed by both parties that SA Home Loans has consequently
instructed its attorneys to cancel
the bond and endorse the title
deed in terms of section
45bis
(1) (b) of the Deeds Registries
Act. The above facts appear to be largely common cause. This
obviously goes a long way in terms
of compliance with the order of
Kahla AJ dated 12 July 2016, albeit belatedly.
[15] The question of a
costs order that was granted and which remain outstanding as the
applicant points out in her affidavit is
not, in my view, such as to
lead to contempt of court or committal to prison. Costs orders are
granted for and against litigants
daily in our courts. The
non-payment of such costs should not ordinarily lead to the relevant
party being found to be in contempt
of court. This is so because
costs are recoverable through the normal way of execution against
property and this does not require
the cooperation of the party who
was ordered to pay costs. It appears from the respondent’s
affidavit that in fact that process
is already underway. The
applicant’s submission that because the costs that the
respondent was ordered to pay by Mfenyana
AJ have still not be paid
and therefore the respondent has not purged his contempt is
unsustainable. I do not understand our jurisprudence
to be that as a
general rule a costs order is to be treated in the same way as the
main orders of court. Besides the other considerations,
costs orders
have a very effective remedy of execution against property. Even
where execution fails for whatever reason, I do not
see our courts
which hold the constitutional right to liberty very highly being
generally prepared to commit someone to prison
for civil contempt for
failing to pay costs as ordered by the court.
[16] The respondent’s
submissions on an appropriate sentence include the fact that as at
the date of such submissions he had
substantially complied with the
court order issued by Kahla AJ on 12 July 2016 in that the debt owed
to SA Home Loans has been
paid in full. SA Home Loans had instructed
its attorneys to attend to the cancellation of the bond and to
endorse the title deed
of the property in terms of
section 45bis
(1)
(b) of the
Deeds Registries Act 47 of 1937
. I am prepared to accept
that the contempt has largely been purged. To the extent that the
process of releasing the applicant from
liability under the bond that
is in the process of being cancelled has not yet been completed or
that the removal of the applicant
as a 50% owner of the property is
not yet finalized, it is evidently already underway. Whatever else
remains outstanding, if anything,
I do not think that it is something
on the basis of which the respondent can be said to have still failed
to purge his contempt
while the process of full compliance is still
underway.
[17]
The purging of contempt is very important in any contempt of court
proceedings. For that matter, contempt of court proceedings
are
largely about ensuring that court orders are complied with than
sending the contemnor to prison even after compliance. That
this is
the case was clearly articulated by Nkabinde J in
Pheko
II
[2]
in which the court stated the legal position as follows:
“
The
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. It is thus
unsurprising that courts may, as is
the position in this case, raise
the issue of civil contempt of their own accord.”
[18] The respondent has
further submitted that in terms of the Parenting Plan between himself
and the applicant he is required to
contribute towards the costs of
education in respect of their daughter who is currently studying
towards a degree in accounting
at Stellenbosch University. Therefore,
if he were to be given a custodial sentence, the consequence of that
would be that he will
not be able to contribute towards the
educational needs of their daughter. He is fifty years old with no
disciplinary infractions
for almost 25 years. He is the father of two
adult children who are working towards becoming chartered
accountants. Lastly, a fine
would also not be appropriate, he
submits, because he has already been ordered to pay costs in the sum
of R215 000.00 which
have been taxed and remain outstanding and
that there might be further taxations that are pending.
[19] Taking all the
submissions made by both parties into account and the clear evidence
of compliance to a significant extent and
the tangible steps to fully
comply which the respondent has taken; I am of the view that the
sentence imposed by Mfenyana AJ in
terms of the court order dated 15
January 2020 must remain suspended. This, in my view, strikes an
appropriate balance between
the vindication of the authority of the
courts and the respect for and protection of the right to liberty as
enshrined in the Constitution.
However, the said suspension must be
for a longer period as the respondent’s actions or behaviour
which led to these proceedings
suggests that he is prepared to ignore
court orders for self-serving reasons as Mfenyana AJ found. He is
even prepared to raise
spurious defenses and issues like the recusal
of the applicant’s legal team in order to avoid complying with
court orders.
[20] The last issues that
I turn now to deal with are the application to strike out and the
recusal application. The application
to strike out concerns certain
averments made in the respondent’s answering affidavit. Because
of their unpalatable nature,
I do not intend repeating those
averments in this judgment. Suffice it to say that they are deeply
offensive and are very degrading
of the applicant’s legal team
and a few other members of the legal profession referred to therein.
They are nothing more
than racial stereotypes and innuendos with no
factual basis whatsoever. This is apart from the fact that they are
irrelevant and
a misguided attempt at diversion from the real issues
that arise in this matter. It is unfortunate and very disappointing
that
in some instances, thankfully, very few such instances,
litigation has reached such lows that at times there is a direct
attack
on the integrity and dignity of fellow colleagues by opposing
legal representatives. It is worse that this matter appears to have
been used to vent all sorts of personal prejudices and invectives by
the respondent against the applicant’s legal team and
some
other members of the Grahamstown legal fraternity.
[21] There was even a
misguided attempt to remove the applicant’s legal
representatives from representing her through an unprecedented
application for their “recusal”. In other words, one
litigant applying to court for the removal of another litigant’s
legal representatives of choice from representing him or her. This is
a very myopic understanding of the concept of recusal and
a complete
disregard for the whole constitutional framework and our
jurisprudence on legal representation and the right of access
to
courts. It is not only disrespectful to the applicant’s legal
team but also demeaning to the applicant who is accused
of being part
of a conspiracy by the applicant’s legal team and others
against the respondent in order to have him “disbarred”.
The less said about this issue the better save to point out that a
proper case has been made to strike out all offensive, irrelevant
and
vexatious material in the respondent’s answering affidavit
against the applicant’s legal representatives and other
legal
professionals who have been directly and indirectly maligned even
though some of them are not even acting for the applicant.
The
recusal application has no merit nor legal basis whatsoever.
[22] The relevant
paragraphs in the respondent’s answering affidavit are as
listed in the applicant’s notice of application
to strike out.
They are paragraphs 5, 25, 48, 52.1.1, 52.1.8, 52.1.9, 52.2.2,
52.3.3, 52.4, 52.5, 59.1, 59.2.2, 59.7, 59.7, 59.11,
59.12, 60.5,
65.2, 68, 69 and 70. All these paragraphs, properly considered, have
no place in an answering affidavit. Some are
very demeaning and are a
personal attack on the esteem and dignity of the affected legal
professionals and the respondent’s
fellow colleagues.
Litigation should never descend into a duel between the legal
practitioners who represent the opposing sides.
Even when submissions
are made in court, conventionally, respect for fellow colleagues must
always be maintained so that the court
is not diverted from its
adjudication of the issues between the litigants. Disrespect for a
legal representative of another litigant
in and during court
proceedings is actually a form of dishonourable and unworthy conduct
which is unbecoming of an officer of the
court. Some of the issues
raised in these paragraphs are not even relevant to the issues
between the parties and appear to have
been informed by the
respondent’s conspiracy theories which are without any factual
basis. The application to strike out
must therefore succeed and the
application for the recusal of the applicant’s legal
representatives must fail.
[23] In the result the
following order shall issue:
1. The respondent is
sentenced to 6 months imprisonment wholly suspended for five years on
condition that the respondent is not
found guilty of the crime of
civil contempt of court committed during the period of suspension.
2. Paragraphs 5, 25, 48,
52.1.1, 52.1.8, 52.1.9, 52.2.2, 52.3.3, 52.4, 52.5, 59.1, 59.2.2,
59.7, 59.7, 59.11, 59.12, 60.5, 65.2,
68, 69 and 70 of the
respondent’s answering affidavit are struck out.
3. The respondent’s
application for the recusal of the applicant’s legal
representatives is dismissed.
4. The respondent is
ordered to pay costs of this application including costs in respect
of the application to strike out and the
recusal application on an
attorney and client scale such costs to include costs occasioned by
the employment of two counsel where
so employed.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
applicant : I.J. SMUTS SC with G.
BROWN
Instructed
by
: WHEELDON RUSHMERE & COLE INC.
GRAHAMSTOWN
Counsel for the
respondent: In person
Respondent’s
attorneys :
MGANGATHO ATTORNEYS
GRAHAMSTOWN
Date heard
: 24 February 2022
Date delivered
: 07 June 2022
[1]
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 & Others
2021 (5) SA 327
(CC) at para 47.
[2]
Pheko
and Others v Ekurhuleni City Metropolitan Municipality (No.2)
2015
(5) SA 600
(CC) paras 1-2