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[2021] ZAGPPHC 677
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Britz. J v Britz H. S (13899/2021) [2021] ZAGPPHC 677 (14 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case number:
13899/2021
(1)
REPORTABLE:
YES
(2)
OF INTEREST TO OTHER JUDGES:
YES
(3)
REVISED: NO
In the matter
between:
JOANELL
BRITZ
Applicant
v
HENDRIK
SCHOEMAN
BRITZ
Respondent
JUDGEMENT
MOSOPA,
J
This
is a civil contempt of court application brought in terms of Rule
6(12) of the Uniform Rules of Court, in respect of the
respondent’s
non-compliance with the maintenance court order issued at the
Pretoria Magistrate’s Court on 26 October
2016. The applicant
seeks an order that the respondent be imprisoned for a period of 30
days or periodical imprisonment of 60
days, all of which are to be
suspended on condition that the respondent complies with the
maintenance order and ancillary relief.
URGENCY
The
maintenance order stems back to 2016, however it must be noted that
there were times since the issuance of the maintenance
order when
the respondent complied with such an order. From May 2018, there was
a particular pattern in the compliance with the
maintenance order,
where the respondent did not pay the full maintenance amount
(partial compliance) and there were some instances
where there was
complete non-compliance with the maintenance order by the
respondent.
The
respondent contends that this matter is not urgent as the applicant,
in her own version, avers that maintenance has not been
paid since
May 2018.
In
urgent applications, the applicant must show that he or she will not
be afforded substantial redress at a hearing in due course
(see
Rule 6(12)(b);
Luna
Meubel Vervaardigers (Edms) Bpk v Makin t/a Makin Furnitures
Manufacturers
1977 (4) SA 135
(W) at 137F
).
A
warrant of execution was issued in the Pretoria Magistrates’
Court against the respondent, however there was a change
in legal
representation for the applicant, due to her financial constraints
and the warrant of execution was effected, which
resulted in the
respondent’s bank account being frozen. The current legal
representative is acting on
pro
bono
basis on behalf of the applicant.
The
applicant avers that she is currently earning R1 000,00 per month
and her current boyfriend takes care of her financially.
This
clearly shows that the applicant’s finances are extremely
depleted and this therefore makes this matter urgent. It
is trite
that not all arrear maintenance contempt applications are urgent,
but if prejudice is suffered by the applicant, more
especially by
the minor children, as is the case
in
casu,
the matter becomes more urgent.
JURISDICTION
7.
A
point-in-limine was raised by the respondent that this court lacks
jurisdiction as the maintenance order was issued by the Pretoria
Magistrates Court. The Magistrates Court does not have jurisdiction
to entertain applications for contempt of court in civil matters,
including the contempt of court application (
see
MC
v MJ (GJ) (unreported case no A3076/2016)
).
LEGAL
PRINCIPLE
8.
Nkabinde
J, writing for the majority in the matter of
Pheko
and Others v Ekurhuleni City
2015 (5) SA 600
(CC)
at
para 1, observed;
“
(1)
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.”
9.
Before
the Supreme Court of Appeal decision of
Fakkie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
,
which I will refer to again at a later stage, the requirements of the
civil contempt were the following;
9.1.
There
must be a court order;
9.2.
The
order must have been duly served on, or brought to the notice of, the
alleged contemnor;
9.3.
There
must have been non-compliance with the order; and
9.4.
The
non-compliance must have been willful or
mala
fide
All
these elements must be established on a balance of probabilities.
10.
In
terms of section 165 of the Constitution of South Africa, the
judicial authority of the Republic vests in the courts. The organs
of
state are enjoined through legislative and other measures, to assist
and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts. Further, it
provides that no person or organ of state may interfere with
the
functioning of the courts and that an order or decision issued by a
court binds all persons.
11.
Following
the constitutional protection as espoused by section 165 (
supra
),
the court in the matter of
Fakkie
(supra)
,
observed;
“
[9]
The test for when disobedience of a civil order constitutes contempt
has come 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 the
infraction.
Even a refusal to comply that is objectively unreasonable
may be bona fide (though unreasonableness could evidence lack of good
faith).
[10]
These requirements – that the refusal to obey should be both
willful and mala fide, and that unreasonable non-compliance,
provided
it is bona fide, does not constitute contempt – accord with the
broader depiction of the crime, of which non-compliance
with civil
orders is a manifestation. They show that the offence is committed
not by mere disregard of a court order, but by the
deliberate and
intentional violation of the courts’ dignity, repute or
authority that this evinces. Honest belief that non-compliance
is
justified or proper is incompatible with that intent.”
12.
The
Fakkie
matter
also found that the onus of proof in civil contempt for committal is
proof beyond reasonable doubt (criminal standard of
proof).
DISCUSSION
13.
The
defense raised by the respondent
in
casu
is twofold in that;
13.1.
That
he is unable to honour the maintenance order due to a change in his
salary. This fact was communicated to the applicant in
a round-table
discussion where her attorney was present; and
13.2.
That
the applicant will be prejudiced, in his disregard of the court
order.
14.
An
application to vary the maintenance court order was brought by the
respondent in the Pretoria Magistrates Court, but this application
was removed on 5 March 2021 for the application which was enrolled
for hearing on 10 March 2021. The only reason provided by the
respondent for this removal of the application, is that it was done
on the advice of his legal representative.
15.
As of
now, the maintenance order is not varied and remains effective. It is
not the respondent’s case that he wants the maintenance
order
to be suspended pending the finalization of the variation
application.
16.
The
respondent’s financial circumstances changed when the following
happened;
16.1.
In
February 2018, the respondent was informed that, with effect 1 April
2018, he was offered the position in the Mederac Division,
which is
in the same employment but a different division. Further, that his
total cost to company per month will be increased to
R30 000,00.
The respondent interpreted this to mean that there will be a 50%
reduction in his salary.
16.2.
In
March 2020, he was informed that, because of the Covid-19 pandemic,
the company has lost 30% of its revenue, as there is an international
ban on air flight and that their salaries will be reduced by 30%.
16.3.
That
he is currently paying an amount of R58 613,00 towards his
medical aid fund, which is used by himself and his children,
in terms
of the maintenance order.
17.
The
respondent’s bank statement dated 1 January 2018, which did not
initially form part of the respondent’s papers because
of the
volume thereof and which was only uploaded to Caselines the day
before the hearing of this matter, indicates that the respondent
was
earning a salary of R44 078,75 and an additional income of
R7 666,00 – the source of which is not apparent
from a
proper reading of the bank statement. I decided to consider this bank
statement because it was referred to in argument by
the applicant.
18.On
the bank statement dated 2 May 2018, the salary deposited into the
respondent’s bank account was an amount of R15 700,35
and
an additional payment of R2 500,00, thus amounting to R18 200,35
in total. This clearly demonstrates that there was
a reduction in the
respondent’s salary.
19.
Despite
the 30% reduction, as averred, of the respondent’s salary from
March 2020, the respondent’s bank showed a remarkable
increase
in his salary after that period. In March 2020, the respondent earned
a salary of R29 109,10. In April 2020, his
salary amounted to
R24 147,20; in May 2020, it amounted to R35 919,74 and in
November 2020, it was R29 281,58. The
closing balance of the
respondent’s account in March 2021 was an amount of R73 745,01
because his account was frozen
as a result of a warrant of execution
obtained by the applicant.
20.
From
the respondent’s bank statements, it can be established that
the respondent’s salary varied from month to month.
The
applicant does not say what salary he earns as a result of his
current employment as a pilot, in the Mederac Division. This
basically means that for the purposes of determination of this
application, I am going to solely rely on the respondent’s
bank
statements, as his salary was paid into this bank account.
21.
Contempt
of court is understood as the commission of any act or statement that
displays disrespect for the authority of the court
or its officers
acting in an official capacity. This includes acts of contumacy in
both senses – willful disobedience and
resistance to lawful
court orders. This matter concerns the latter – a failure or
refusal to comply with an order of court.
Willful disobedience of a
court order made in civil proceedings is both contemptuous and a
criminal offence. The object of contempt
proceedings is to impose a
penalty which will vindicate the court’s honour, consequent
upon the disregard of its previous
order, as well as to compel
performance in accordance with the previous order (
see
Pheko
(supra)
at para 28
)
.
22.
I am
satisfied that the respondent
in
casu,
was aware of the existence of the maintenance order and that it was
served on him. This is borne out of the fact that the maintenance
order made by the divorce court was increased when the respondent
approached the magistrates court for the variation of the maintenance
order. Also, given that the respondent initially complied with the
maintenance order until his financial circumstances changed.
I am
further satisfied that the respondent did not act willfully and
mala
fide
in
not complying with the maintenance order. The change in his financial
circumstance, as borne out by the bank statements, allowed
him to
comply with the court order.
23.
I am
of the view that in this matter there is no need to commit the
respondent to a term of imprisonment, as this will have the
following
dire consequences;
23.1.
That
the respondent’s right to liberty will be infringed and once
committed, he will also lose his employment; and
23.2.
The
respondent’s children will suffer prejudice as the respondent
will be without income and thus will not be able to further
contribute to their maintenance.
24.
As I
already indicated elsewhere in my judgment, the maintenance order
remains effective until such time as it is set aside or varied.
The
respondent earns a salary and he must contribute towards the
maintenance of his children, but it is apparent that he cannot
comply
with the maintenance order. In the interim, pending the final
determination of the variation of the maintenance order of
26 October
2016, I am of the view that the respondent must be compelled to make
contributions towards the maintenance of his children.
ORDER
25.
I
therefore make the following order;
1.
The
respondent is not held in contempt of the Pretoria Magistrates
maintenance order dated 26 October 2016.
2.
The
respondent is ordered to pay a once-off payment of R10 000,00
with immediate effect of this order towards the arrear maintenance.
3.
From
1 May 2021, pending the final determination of the variation
application, the respondent is ordered to pay an amount of R5 000,00
towards both the arrear maintenance and his monthly maintenance
obligations.
4.
In
the event that the variation application is not successful or not
reinstated within 15 days of this order, the respondent is
ordered to
proceed with honouring his maintenance obligations, according to the
maintenance order of 26 October 2016 issued by
the Pretoria
Magistrates’ Court.
5.
The
respondent is ordered to pay the costs of the applicant.
__________________________
MJ
MOSOPA
JUDGE OF THE HIGH
COURT, PRETORIA
Appearances:
For
the applicant:
Adv MJ Kleyn
Instructed
by:
Rianie
Strijdom Attorneys
For
the respondent:
Adv N Gaffoor
Instructed
by: Froneman,
Roux and Streicher Attorneys
Date
of hearing:
7 April 2021
Date
of judgment:
Electronically transmitted