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2021
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[2021] ZAGPJHC 413
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Kivetts v Brugmans (2020/4853) [2021] ZAGPJHC 413 (13 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NUMBER:
2020/4853
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: YES
13 SEPTMBER 2021
In the matter between:
KIVETTS,
MAJEDA
Applicant
and
BRUGMANS,
WERNER ALFRED
JOHAN
Respondent
JUDGMENT
DE WET AJ:
1.
On 8 June 2021 the applicant, a
businesswoman, brought an application in terms of rule 6(12) of the
Uniform Rules of Court against
the respondent, a businessman, for the
following relief:
1.1
An order declaring that the respondent is
contempt of the court order which was issued in a rule 43
application, dated 21 May 2021;
1.2
an order committing the respondent to
prison for a period of a year,
alternatively
imposing a fine on the respondent in the sum of R100 000,00;
1.3
suspending the committal or fine for a
period of one year,
alternatively
that the court impose upon the respondent such sentence as it deems
appropriate;
1.4
an order that the respondent pay the costs
of the application on the attorney/client scale.
2.
The respondent opposed the application.
3.
At the hearing of the urgent application on
23 June 2021 the matter was removed from the urgent roll and the
application was postponed
to the opposed motion roll of 16 August
2021 and the issues relating to costs of the urgent application and
urgency were reserved.
4.
The applicant brings this application as a
consequence of the respondent’s failure to comply with a rule
43 court order dated
21 May 2020, which order contained a patent
error and which error was corrected on 25 May 2021 (“the rule
43 order”).
5.
In terms of the rule 43 order, the
respondent was directed to:
5.1
Pay cash maintenance
pendente
lite
to the applicant in the amount of
R65 000,00 per month with effect from 28 May 2021, and
thereafter by no later than the last
working day of each succeeding
month (“the cash maintenance”);
5.2
retain the applicant on the Discovery
Classic Plan as well as pay any necessary reasonable excess, not
covered by the plan, including
the cost of hospitalisation, treatment
and/or medical expenses and medication as a result of the applicant’s
prevailing health
and related conditions;
5.3
hand to the applicant’s attorneys the
current licence disc of the Porsche Panamera within 48 hours of the
order;
5.4
continue to pay the monthly instalments and
insurance premiums in respect of the Porsche Panamera;
5.5
make a contribution towards the applicant’s
legal costs in the amount of R250 000,00 by 28 May 2021 (“the
cost
contribution”);
6.
The costs of the rule 43 application were
reserved.
7.
The applicant herein contends that the
respondent is in contempt of the rule 43 order as a consequence of:
7.1
his failure to hand over the current
licence disc of the Porsche Panamera within 48 hours of the rule 43
order;
7.2
his failure to pay the full amount in
respect of the cash maintenance to the applicant on or before 28 May
2021;
7.3
his failure to pay the amount of
R250 000,00, being the costs contribution, on or before 28 May
2021.
8.
It is common cause that the respondent at
all material times had knowledge of the rule 43 order and his
obligations in terms thereof.
It is further common cause that the
respondent has not complied with all his obligations under the rule
43 order.
9.
The respondent delivered the current
licence disk of the Porsche Panamera to the applicant, albeit 11 days
after the date that he
was directed to do so. He afforded a
reasonable explanation for his failure to comply with his obligation
in this regard. Consequently,
it is not necessary to further deal
with this complaint.
10.
The respondent paid an amount of R35 000,00
to the applicant on 28 May 2021. The respondent contended, in the
rule 43 application,
that the applicant would require R34 045,91
per month to provide for her maintenance requirements. One may
conclude that he,
notwithstanding the rule 43 order, still held the
view that she would not require more than the foresaid amount.
11.
The respondent on 8 June 2021, after the
urgent application had been brought, paid the balance of the cash
maintenance, being R30 000,00.
In addition, he on the same day
paid the amount of R40 000,00 to the applicant as a “first
instalment” towards
the costs contribution.
12.
The issues to be determined herein are as
follows:
12.1
Whether the application was properly
brought in terms of rule 6(12) of the Uniform Rules of Court;
12.2
whether the respondent’s failure to
comply with the rule 43 order was wilful and
mala
fide
.
13.
The
applicant, in support of the relief claimed, relies on the judgment
of Fakie N.O. v CCII System (Pty) Ltd
[1]
,
where the Supreme Court of Appeal held that once the applicant has
proved the existence of a court order, notice thereof to the
respondent and non-compliance by the respondent with the court order,
the respondent bears an evidentiary burden in relation to
wilfulness
and
mala
fides
.
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether his non-compliance was wilful
and
mala
fide
,
the applicant would have proved contempt beyond a reasonable doubt.
14.
The
applicant further referred to Nyathi v MEC for Department of Health,
Gauteng & another
[2]
in
which judgment the Constitutional Court at paragraph [80] held as
follows:
“
Certain
values in the Constitution have been designated as foundational to
our democracy. This in turn means that as pillar-stones
of this
democracy, they must be observed scrupulously. If these values are
not observed and their precepts not carried out conscientiously,
we
have a recipe for a constitutional crisis of great magnitude. In a
State predicated on a desire to maintain the rule of law,
it is
imperative that one and all should be driven by a moral obligation to
ensure the continued survival of our democracy. That
in my view means
at the very least that there should be a strict compliance with court
orders.
”
15.
The respondent contended that the
application was not urgent, that the applicant
inter
alia
submitted insufficient reasons for
urgency and the fact that the applicant will be afforded substantial
redress in due course all
demonstrate that the matter is not as
urgent as contended by the applicant.
16.
In
Uncedo Taxi Service Association v Maninjwa & others
[3]
the court held at 429 G-H that all matters of contempt are relatively
urgent. In Protea Holdings Ltd v
Wriwt
& another
[4]
the
court held that the required element of urgency
would
be satisfied if in fact it was shown that the respondent was
continuing to disregard the court order and there was a continued
breach thereof. The applicant argued that the failure of the
respondent to comply with the court order, which failure he did not
remedy in respect of the costs contribution, rendered the application
urgent. In addition, the respondent has further failed to
comply with
his obligations in terms of the court order for July 2021 and August
2021.
17.
The rule 43 order provides for maintenance
for the applicant. She testified that she was not able to pay her
most basic requirements
as a consequence of the respondent’s
failure to comply with the court order. In addition, she contends
that she is severely
prejudiced as a consequence of the respondent’s
failure to make the contribution to her legal costs as directed, as
she is
not able to advance her litigation against the respondent and
pursue her lawful claims. Such inability impacts on various rights
of
the applicant including her constitutional right to access to the
court.
18.
The application is before this court on
truncated time periods and on an anticipated date for the hearing.
Considering the caseload
of this division, an application in the
normal course would not have resulted in a hearing of the issues
herein for an extended
period. I find that, considering the nature of
the terms of the rule 43 order and the circumstances of the parties
that there is
such a measure of urgency that the applicant cannot be
faulted in having approached the court in terms of the provisions of
rule
6(12) of the Uniform Rules of Court.
19.
The respondent joins issue with the
applicant when she contends that he is attempting to reargue the rule
43 application, that his
arguments herein are
res
judicata
and that the respondent is
estopped from relying on and explaining his worsened financial
position as he had similarly relied on
such facts in the rule 43
application and at the hearing thereof.
20.
The respondent relies herein on the absence
of funds and means to justify his failure to comply with the rule 43
order. He does
so in an attempt to discharge the evidentiary burden
which he bears in relation to wilfulness and
mala
fides.
His financial position and means
are accordingly central to the issues herein
21.
I find that the respondent is entitled to
place all relevant facts before this court on which he may wish to
rely to prove his inability
to comply with the rule 43 order.
Accordingly, I do not uphold the applicant’s argument that the
issue of the respondent’s
inability to pay is
res
judicata
.
22.
The respondent similarly referred to Fakie
supra
and
particularly where the Supreme Court of Appeal elaborated, on page 33
of the judgement, on the test to be applied in matters
of contempt of
court:
“
[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 himself – 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
wilful and
mala fide
and
that unreasonable non-compliance, provided it is
bona
fide
, does not constitute contempt –
accord with the broader definition 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 a deliberate and intentional
violation of the Court’s
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or
proper is incompatible with that
intent.
”
23.
It is trite that the requirements for
contempt must be satisfied beyond a reasonable doubt if enforcement
is sought by way of criminal
sanction.
24.
The respondent filed lengthy affidavits
setting out his financial difficulties in an attempt to demonstrate
that he is not
mala fide
in
his failure to comply with the court order. He further contends that
he will not be able to comply with the court order in future.
25.
The respondent stated that he is and has
been, since prior to the rule 43 application, reliant on credit, to
wit his overdraft facilities
and credit cards, which he rolls in
order to meet his financial obligations. In support of these
contentions he attached numerous
bank statements and credit card
statements evidencing the numerous transfers between the various
accounts. Such accounts include
accounts in the name of Werner
Brugmans Family Trust, IT 4972/2003 of which he is the founder, a
trustee as well as an income and
capital beneficiary.
26.
The trust is the shareholder in the
majority of the companies of which the respondent is a director. Much
of his income, he informed,
is generated by the assets of the trust.
He has the benefit of residing in a property registered in the name
of the trust. Yet,
he failed to take the court into his confidence
and disclose the financial affairs of the trust.
27.
He contends that the amounts awarded in
terms of the rule 43 order are substantial amounts which he could not
“scrape together”
timeously or without completely
depleting his credit facilities and/or ignoring other financial
commitments and obligations.
28.
In his financial disclosure form, which he
attested to on 28 April 2021, which formed part of the papers in the
rule 43 application,
and to which reference was made in this
application, the respondent disclosed the value of his assets as
R19 396 593,
75, his liabilities as R 1524 640, 48 and his
net asset value as R18 146 130, 73. He further recorded
therein that he
had sold a gaming machine to a certain Brett for
R245 000, 00, to meet his obligations. He has not provided an
explanation
herein why he cannot use his assets, which are
substantial, to comply with the rule 43 order. The financial
disclosure form was
deposed to subsequent to the sale but prior to
the transfer of an immovable property, referred to as the Comanche
Street property,
to the purchaser.
29.
The respondent disclosed his monthly
expenses as R142 550, 29, which amount includes the expenses
relating to the Comanche
Street property and the amount of R19 739.08
which he pays as maintenance for his two dependant sons. He gives
extensive explanations
as to the extent to which COVID-19 Pandemic
and the downturn in the economy has impacted upon his various
business interests, which
are numerous and wide ranging.
30.
The respondent earns an income as director
from three companies, namely Express Model Trading, Bright Path
Investments and Build
Line Projects. He further relies on income
generated by investments in business ventures and properties. He has
arranged his affairs
such that his income from the above entities is
paid directly to SARS, being an amount of approximately R145 157,
00 per annum,
R12 096, 41 per month, and that he usually
receives an annual refund, the last which amounted to R137 168,
50 during
November 2020.
31.
The respondent refers to drawings that he
and the trust receive which are deducted from loan accounts of the
trust against various
entities. The extent of the loan accounts are
not disclosed. These entities include Express Model Trading, Bright
Path Investments,
Build Line Projects and Jokosi Properties. Mr L
‘Ecluse, a close friend and business associate of the
respondent, administers
these drawings and transfers it into the
respondent and the trust’s accounts respectively. The amounts
so disclosed for the
past six months amount to approximately
R517 151, 38, being an average of R86 191,73 per month. The
respondent received
into his accounts approximately R58 104, 29
per month. He received a further amount of R15 000,00 which he
paid as maintenance
for his children. He contends that his total
monthly income from the corporate entities, be it income or drawings
amounts to R73 104,29
per month. The respondent disclosed that
he receives a limited amount and an irregular payment of rental in
respect of a property
known as Wollies place. He does not appear to
have taken steps against this tenant who pays the rental and arrears
as and when
she is able to do so.
32.
The respondent informed that he does not
qualify for further credit nor a personal loan.
33.
The respondent’s ongoing monthly
expenses far exceed his disclosed income. The declared income and the
rolling of credit cannot
fund the disclosed living expenses. He does
not explain this discrepancy.
34.
On carefully considering the contents of
the various bank statements and other annexures to his opposing
papers, the respondent’s
contention that he has attempted to
comply with the court order as far as possible but that he could not
manage to make all payments
timeously or in full due to his financial
position, rings hollow.
35.
The following facts demonstrate that the
respondent’s contention that he had no funds with which to
comply with his obligations
in terms of rule 43 application is
untrue.
36.
The respondent, at the hearing of the rule
43 application, was still the registered owner of the immovable
property known as the
Comanche Street property. It had been sold to a
third party for an amount of R1 700 000, 00, but as at date of
the hearing
of the rule 43 application the transfer had not yet been
effected. The transfer was effected on 26 May 2021 and the net
proceeds
of the sale of the property amounted to R799 169, 63.
He did not utilise the proceeds of the sale or any part thereof to
comply
with his obligations in terms of the rule 43 order.
37.
On 28 May 2021 the respondent’s
attorneys of record, Van Andel-Brink Attorneys, in writing informed
the applicant’s
attorneys that he will use the proceeds of the
sale of the Comanche property to comply with his obligations in terms
of the rule
43 order.
38.
Shortly thereafter the respondent, in his
answering affidavit, denies that his attorneys of record were
mandated to address the
letter in the terms contained therein to the
applicant. No explanation for the letter and erroneous tender of his
attorneys were
provided save to deny the mandate of his attorneys to
make the tender.
39.
The respondent contends that on 5 April
2017 he concluded a lease agreement with Mr L‘Ecluse for the
rental of certain gaming
machines to be used in one of the businesses
in which he held an interest. He fell behind with the payments. Mr
L’Ecluse
started exerting pressure on him for payment of the
arrear rental whereupon they entered into a settlement agreement, so
he contends,
in respect of the arrears on 6 May 2021 in terms whereof
he undertook to pay the arrears to Mr L’Ecluse from the
proceeds
of the sale of the Camanche Street property. On 26 May 2021
Mr L’Ecluse’s attorneys, Lood Pretorius-Erasmus
Attorneys,
addressed a letter to the conveyancers, Potgieter
Incorporated, recording that the respondent is indebted to Mr
L‘Ecluse,
their client, in the amount of R875 000,00 in
respect of the lease agreements. In such correspondence Lood
Pretorius-Erasmus
Attorneys request that the conveyancing attorneys
not pay the balance of the purchase price to the respondent but
rather retain
it until settlement has been reached between the
parties, this against the background that there was no dispute and
that the settlement
agreement is dated 6 May 2021.
40.
The date upon which the conveyancers agreed
to retain the funds and not pay it to the respondent is pertinent,
being 26 May 2021,
two days prior to the date upon which the
respondent was obliged to pay the funds to the applicant in terms of
the rule 43 order.
The respondent does not contend that he made any
attempt to arrange that a portion of the funds could be paid to the
applicant
in compliance with the court order, or that his friend of
many years would give no further extensions of payment.
41.
The respondent yields to his friend and
business partner’s demand that he receive the entire net
proceeds of the sale of the
property to settle the debt, whereafter
he contends that he had no funds with which to comply with the rule
43 order. This, notwithstanding
that Mr L’Ecluse had displayed
latitude to his friend for many years prior to May 2021 and him being
the nominated beneficiary
on no less than four of the respondent’s
policies. At that stage the respondent was fully aware of the terms
of the rule
43 order and that he was obliged to pay to the applicant
the cash maintenance and the costs contribution on 28 May 2021.
42.
On 29 May 2021, after the transfer of
Comanche Street property had been effected and the bond account
settled, the respondent received
an amount of R95 944,39 in
respect of the surplus in the Access Bond over the Comanche Street
property. He, rather than paying
such amount to the applicant, in
part compliance with his obligations in terms of the rule 43 order,
albeit one day late, elected
to pay the funds to Builder Boys, the
builders who had been contracted to effect reparations to properties
owned by him, including
the Comanche Street property. He explained
that this amount was paid to the builders as the debt was long
overdue and payment had
to be effected. He however, fails to explain
why he settles his debt to this creditor but fails to comply with the
court order
that obliged him to make payment to the applicant, his
judgement creditor, by 28 May 2021. Further to the foregoing, upon
having
paid the builders there was, as example, an amount of
R116 802,34 available in the respondent’s First National
Bank
cheque account, ending with numbers 1835, which he did not use
to comply with his maintenance obligations under the rule 43 order.
He also had a balance of R33 197,66 available in his First
National Bank cheque account with the number ending 1835. On
analysing
the respondent’s various bank statements and credit
facilities as at 28 May 2021 the respondent had in excess of R250
000,
00 credit available to him, after he had paid the builder, which
he could and should have utilised towards payment of his judgement
debt to the applicant. Yet he elected not to do so.
43.
On the date upon which the respondent
deposed to the answering affidavit, being 15 June 2021, he had credit
available in the various
facilities in the amount of R141 541,47,
which included R44 203,93 on his FNB overdraft facility,
R2 740,00 on his
FNB credit card, R65 676,54 on his ABSA
credit card (exclusive of the budge facility), R5 828,00 in on
his Standard Bank
credit card and R23 093,00 on his Virgin Money
credit card.
44.
The respondent informs that he did not
utilise his available credit to comply with the rule 43 order as he
would then not have been
in a position to pay his own expenses. He
does not explain why he provides for his own expenses, which are not
insignificant, but
fails to comply with the rule 43 order. This
against the background that the respondent was advised by his legal
representatives
to pay remaining funds in certain accounts to the
applicant’s attorney as part compliance with the contribution
towards legal
expenses. Such amounts, included funds available on his
Discovery credit card, his Standard Bank Money Market account, his
Standard
Bank cheque account, his Altcoin Trader account. His failure
to use the available funds towards payment of his obligations under
the rule 43 order demonstrates his disregard for the authority of the
court and the rule 43 court order.
45.
The respondent explains that the payment of
R30 000,00 as second payment towards the cash maintenance as
well as R40 000,00
towards the costs contribution, were made
late as the respondent wanted to ensure that his own debit orders
were first deducted.
In respect of the debit orders, he states that
it also includes expenses on behalf of the applicant. Again, he does
not explain
why he ensured that his own payments are met prior to
complying with the court order.
46.
If regard is had to the daily use of the
respondent’s credit cards and bank accounts, the court notices
regular payment of
expenses which cannot constitute necessary
expenses of the respondent and are clearly expenditure on a lavish
lifestyle. Numerous
purchases are made virtually on a daily basis at
Woolworths, various upmarket restaurants, luxury purchases, Netflix,
entertainment,
payment of traffic fines, all between date of judgment
and date of the urgent application for contempt of court.
47.
Notwithstanding the downturn in the economy
and the effect of the pandemic on the businesses and therefore income
of the respondent,
he appears to continue enjoying a lavish
lifestyle. I cannot but conclude that the respondent’s conduct
hereinabove demonstrates
that he had scant regard for his obligations
under the rule 43 order, that he continued with his chosen lifestyle,
that he did
not deny him the luxuries of life, that he paid his debts
to creditors, colleagues and friends, that he ensured that there were
sufficient funds to meet his own maintenance needs and personal debit
orders, all whilst being fully aware that he had obligations
to
fulfil in terms of the rule 43 order.
48.
The respondent could and should have
arranged his affairs differently but elected not to do so.
49.
Further to the above, the respondent does
not seriously, if at all, contend that he was of the honest belief
that he could act as
he elected to do. I cannot find that he was
bona
fide
, but mistaken, when he settled his
debt to the builder or when his conveyancer agreed on his behalf to
not release the proceeds
of the sale of the Comanche Street property
to him which would have enabled him to comply with the rule 43 order.
50.
I am not persuaded by the respondent’s
evidence that he endeavoured to comply with the court order.
51.
On a careful consideration of all the
evidence before the court I find that the respondent’s failure
to comply with the rule
43 order has been wilful and
mala
fide
. I further find that the applicant
has proved beyond a reasonable doubt that the respondent is in
contempt of court. Consequently,
I hold the respondent in contempt of
the rule 43 order and the court.
52.
The applicant contends that the
respondent’s conduct displayed such a degree of contempt for
the rule 43 order that costs
should be awarded against him on a
punitive scale. I am persuaded by her submission that the
respondent’s conduct herein
demonstrates that he has little if
no regard for the authority of this court and that the court should
display its displeasure
at such attitude and conduct of the
respondent by directing that he should pay the costs of this
application on an attorney / client
scale and in so finding and in so
doing, restore the dignity and repute of the court.
53.
Consequently, the following order is made:
1.
Werner Alfred Johan Brugmans
(“the
respondent”) is in contempt of court in failing to comply with
the court order which was handed down by his Lordship
Acting Justice
Majavu on 21 May 2021 read with the order dated 25 May 2021 (“the
rule 43 order”), which was granted
in the rule 43 application
under case number 04853/2020;
2.
The respondent is directed to pay, within
30 days of the granting of this order:
2.1.
The balance of R210 000, 00 in respect
of the contribution to the applicant’s legal costs;
2.2.
The arrear cash maintenance for the months
July 2021 and August 2021 in the amount of R106 680, 00;
2.3.
Any necessary and reasonable excess not
covered by the Discovery Classic Plan, including the costs of
hospitalisation, treatment
and or medical expenses and medication as
a result of the applicant’s health and related conditions,
which remains due and
payable by the respondent as at date hereof;
3.
A warrant of arrest is to be issued
forthwith committing the respondent to imprisonment for contempt of
court for a period of 30
(thirty) days;
4.
The warrant of arrest is only to be
executed in the event that the respondent fails to pay the
amounts
set out in paragraph 2 above and in so doing purge his contempt of
the rule 43 order within 30 (thirty) days of the granting
of this
order, such time period to be calculated from the date of email
transmission of this order to the respondent’s attorney,
Van
Andel-Brink Attorneys;
5.
The respondent shall pay the costs of the
application on the attorney / client scale, including the costs
reserved on 25 June 2021.
A. DE WET
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
Heard:
16 August 2021
Judgment:
13 September 2021
Applicant’s
Counsel:
Adv. C.J.C. Nel
Instructed
by:
AF Coetzee Attorneys
Respondent’s
Counsel:
Adv. M. Haskins SC and Adv. H.J. Basson
Instructed
by:
Van Andel Brink Attorneys
[1]
2006
(4) SA 326 (SCA)
[2]
2008
(5) SA 94
CC
[3]
1998
(3) SA 417
E
[4]
1978
(3) SA 865
(W)