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[2021] ZAGPJHC 432
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C v C and Others (2013/12732) [2021] ZAGPJHC 432 (17 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 2013/12732
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
17/9/2021
In
the matter between:
GEC
Applicant
And
TC
First Respondent
SHERIFF
FOCHVILLE/ OBERHOLZER
Second Respondent
MATTHEE
BADENHORST INC ATTORNEYS
Third Respondent
Date
of hearing:
8
September 2021- In a ‘virtual hearing’ during a
videoconference on Microsoft Teams digital platform.
Date
of Judgment:
17 September 2021
JUDGMENT
GRAF
AJ
INTRODUCTION
[1]
This is an urgent application for the suspension of the operation of
an order granted
by this court on 31 May 2013 and the execution
thereof, and for the setting aside of the attachment of the proceeds
of sale of
the applicant’s immovable property.
[2]
The application is opposed by
the first respondent.
[3]
The applicant informed the court that the relief sought is interim in
nature, pending
the outcome of the application for variation of the
court order that was launched by the applicant on 6 August 2021.
BACKGROUND
[4]
The applicant and first
respondent were married, until this court dissolved the bonds of
marriage between them on 31 May 2013 by decree of divorce. In terms
of the court order the deed of settlement entered into between
the
parties was made an order of court. Clause 3 of the deed of
settlement provided for maintenance payable by the applicant in
respect of the two minor children born of the marriage.
[5]
The applicant and first respondent reconciled shortly after the
divorce order was
granted and the applicant moved back into the
marital home. The applicant, first respondent and their two minor
children lived
together as a family until March 2019. Due to the
parties’ living situation the applicant did not make
maintenance payments
as required in terms of the divorce order.
[6]
In March 2019 and after having lived together for almost six years
since their divorce,
the applicant and first respondent separated and
the applicant moved out of the marital home. The first respondent and
the two
children relocated to Bloemfontein.
[7]
The applicant experienced financial difficulty after the break-up of
his relationship
with the first respondent. He sold his farm for
R1 650 000-00 to one Janine Nortje. The purchase price was
payable to
the applicant in three annual instalments of R550 000-00
each. The applicant received the first payment during September 2020
and the second payment was due on 1 September 2021.
[8]
On 28 January 2021 the first respondent had the writ, which is the
subject of this
application, issued against the applicant, due to his
failure to honour his maintenance obligations in accordance with the
settlement
agreement. On 2 February 2021 the sheriff, Sandton North,
judicially attached the applicant’s FNB bank account in an
attempt
to satisfy the first respondent’s writ of execution.
There was insufficient funds in the applicant’s bank account
and
the attachment has since been uplifted. An attempt by the sheriff
on 22 February 2021 to execute the writ at the applicant’s
new
girlfriend’s house also proved futile.
[9]
Although the applicant was aware of the existence of the writ since
February 2021,
he only instructed his attorneys to launch an
application for the retrospective variation of his maintenance
obligations in terms
of the divorce order towards the end of July
2021. The applicant attributes this delay to financial constraints
and his inability
to access the funds in his FNB bank account.
[9]
The application for variation of the court order, which includes a
prayer to set aside
the warrant of execution, was served on the first
respondent’s attorneys of record on 6 August 2021.
[10]
On 27 August 2021 the sheriff (second respondent) served a notice of
attachment pursuant to the
warrant of 28 January 2021 on the third
respondent (conveyancing attorney), attaching the proceeds of the
sale of the applicant’s
farm.
[11]
It is against this background that the present application is
launched.
RELIEF
SOUGHT BY THE APPLICANT
[12]
In the notice of motion the applicant prayed for
an order in the following terms:
Suspending
the operation of the order made on 31 May 2013 and staying the
execution thereof;
Setting
aside the writ issued 28 January 2021 pursuant to the court order
made on 31 May 2013; and
Setting
aside the attachment on 20 August 2021 by the sheriff Fochville/
Oberholzer of the proceeds of sale of Portion [....]
Farm E[....],
registration division IQ pursuant to the writ of 28 January 2021.
[13]
The first respondent took issue, amongst other things, with the
wording of the order sought,
on the following grounds:
The
entire divorce order cannot validly be suspended 7 years after it
was granted.
Lis
pendens
- The prayer for the setting
aside of the writ of execution is also contained in the pending
application for variation (‘the
main application’).
[14]
As a consequence of the concerns raised by the first respondent the
applicant revised the order
sought in the following terms:
Suspending
the operation of the order given on 31 May 2013 insofar as the
maintenance obligations of the applicant is concerned,
pending the
outcome of the variation application brought by the applicant on 6
August 2021.
Staying
the execution of the order given on 31 May 2013 in respect of the
maintenance obligations of the applicant pending the
outcome of the
variation application.
Setting
aside the attachment by the second respondent of the proceeds of
sale of Portion [....] Farm E[....], registration division
IQ
pursuant to the writ of 28 January 2021.
APPLICANT’S
SUBMISSIONS
[15]
According to the applicant the application is brought in terms of
Rule 45A of the Uniform Rules
of Court, alternatively on the basis of
the court’s inherent and wide discretion to control its own
process and the requirements
of real and substantial justice
.
[16]
In the founding affidavit the applicant explains that he is in urgent
need of the attached funds,
due to his dire financial situation. The
proceeds of the sale of the farm is the applicant’s only source
of income, save
for a small income derived from handyman work. His
FNB credit card has a negative balance of R154 335.96. He
exchanged his
motor vehicle for a cheaper model and has to settle the
outstanding balance of R20 000-00 in September 2021. He borrowed
money
from his girlfriend to pay the deposit on the motor vehicle. He
will lose his only mode of transport and will accordingly be unable
to accept work as a handyman, should he be unable to pay the
outstanding balance on the vehicle. He depends on his girlfriend for
his day-to-day living expenses and accommodation and has agreed to
compensate her by paying part of the transfer costs of her new
house.
She entered into an agreement of sale based on the applicant’s
undertaking and will be liable to pay damages, should
the sale be
cancelled as a result of her inability to pay the transfer costs. In
addition to that, the applicant will be in default
of an order of the
High Court, North West Division, Mahikeng by 30 September if the
proceeds of the farm’s sale remains under
attachment. The
applicant, due to his financial constraints, will be unable to visit
his children in Bloemfontein if the attachment
is not uplifted.
[17]
The applicant contends that his prospect of success in the variation
application is excellent
and that real and substantial justice
requires a stay of execution of the order, pending the outcome of the
variation application.
FIRST
RESPONDENT’S SUBMISSIONS
[18]
The first respondent disputes that the applicant is entitled to the
relief sought. According
to the first respondent the cash portion of
the maintenance claim, which amounts to R192 188.21, is
calculated based on the
applications failure to pay maintenance for
the period April 2019 to November 2020. The amount claimed does not
include missed
maintenance payments dating back to the date of
divorce
.
An amount of R169 222.00 is claimed in respect
of premiums due to the medical aid scheme in respect of the
children’s
membership for the period June 2013 to November
2020. A further R59 559.79 is claimed in respect of medical
expenses not covered
by the medical aid for the period May 2019 to
November 2020 and the sum of R121 310.00 is claimed in respect
of the children’s
school fees for 2019 and 2020.
[19]
The first respondent opines that the applicant is more concerned
about payment to his alleged
creditors and the transfer costs
relating to his girlfriend’s property than to contribute
towards the maintenance needs of
the children.
[20]
Although the first respondent is not prepared to agree to the
upliftment of the attachment, she
tenders that the attached funds be
retained in an interest-bearing account pending finalisation of the
main application.
THE
LEGAL POSITION
[21]
Rule 45A of the Uniform Rules of Court provides that:
‘
The
court may suspend the execution of any order for such period as it
may deem fit’.
[22]
In
Van
Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others
NNO v Van Rensburg NO and Others
[1]
Navsa JA, in considering the principles applicable to the staying of
execution of judgments, stated that:
‘
Apart
from the provisions of Uniform Rule 45A, a court has inherent
jurisdiction, in appropriate circumstances, to order a stay
of
execution or to suspend an order. It might, for example, stay a sale
in execution or suspend an ejectment order. Such discretion
must be
exercised judicially. As a general rule, a court will only do so
where injustice will otherwise ensue.
A
court will grant a stay of execution in terms of Uniform Rule 45A
where the underlying causa or judgment debt is being disputed,
or no
longer exists, or when an attempt is made to use the levying of
execution for ulterior purposes. As a general rule, courts
acting in
terms of this rule will suspend the execution of an order where real
and substantial injustice compels such action’.
[23]
In
Stoffberg
N.O and Another v Capital Harvest (Pty) Ltd
[2]
Binns-Ward J explained that:
‘
The
broad and unrestricted wording of rule 45A suggests that it was
intended to be a restatement of the courts’ common
discretionary
power. The particular power is an instance of the
courts’ authority to regulate its own process. Being a judicial
power,
it falls to be exercised judicially. Its exercise will
therefore be fact specific and the guiding principle will be that
execution
will be suspended where real and substantial justice
requires that. ‘Real and substantial justice’ is a
concept that
defies precise definition, rather like ‘good
cause’ or ‘substantial reason’. It is for the court
to decide
on the facts of each case whether considerations of real
and substantial justice are sufficiently engaged to warrant
suspending
the execution of a judgment ; and, if they are, on what
terms any suspension it might be persuaded to allow should be
granted’.
[24]
Counsel for the applicant placed a lot of emphasis on the matter of
Strime
v Strime
[3]
where a divorced husband successfully applied for a stay of execution
of a writ issued out at the instance of his ex-wife in respect
of
unpaid maintenance. The court granted the stay until after the
determination of a pending application brought by the applicant
to
have his maintenance obligations reduced or cancelled.
[25]
The first respondent’s counsel, on the other hand, highlighted
the differences between
Strime
and the present matter and the necessity of considering the best
interests of the minor children to be of paramount importance
in the
determination of this application. Spousal maintenance was at issue
in
Strime
,
whereas the present matter entails unpaid maintenance in respect of
two minor children. She referred me to
SS
v VV-S
[4]
where the Constitutional Court emphasised the significance of
maintenance obligations and the duty of the courts to ensure
compliance
therewith. It was said that the ‘court’s
integrity would be jeopardised if it failed to uphold its solemn
constitutional
obligation under section 28, to protect the best
interest of the children’.
BALANCING
OF INTERESTS
[26]
It is clear that the decision I am called upon to make requires me to
strike a balance between
the applicant’s interests on the one
hand and the interests of the first respondent and two minor children
on the other hand.
[27]
There is nothing to gainsay the applicant’s averment that he
will be financially ruined
if the attachment of the funds is not
uplifted. He might lose his only mode of transport, which will in
turn make it impossible
for him to earn an income through handyman
work. He will be in default of another High Court order, should he
fail to make payment
on or before 30 September 2021.
[28]
However, it is not in dispute that the applicant has failed to comply
with his maintenance obligations
towards his children, at least from
2019 when he left the marital home. From the first respondent’s
calculations the cash
component of the arrear maintenance, excluding
school fees and medical expenses, amounts to R192 188-21.
[29]
Having regard to the applicant’s dire financial situation it
seems unlikely that he will
be able to retain some funds to provide
for the arrear maintenance of the children, in the event that the
variation application
does not absolve him from such obligations. The
first respondent’s reluctance to agree to the setting aside of
the attachment
is understandable under the circumstances.
[30]
In the analyses of all the evidence I am of the view that real and
substantial injustice may
result if the execution of the maintenance
portion of the deed of settlement is not temporarily stayed and the
attachment of the
funds pursuant to the writ not partially uplifted.
However, to safeguard the interest of the minor children, I am not
willing to
authorise a complete upliftment of the attachment. Some
funds are to be retained by the third respondent in an
interest-bearing
account, pending the finalisation of the main
application.
ORDER
[31]
The following order is made:
o
The matter is enrolled as urgent, and the
forms and service provided for in the rules of court are dispensed
with.
o
The operation of the order of this court
under case number
2013/12732, given on 31
May 2013, is suspended insofar as the maintenance obligations of the
applicant is concerned, pending the
outcome of the variation
application brought by the applicant on 06 August 2021 under the
above case number.
o
The execution of the order of this court
under case number
2013/12732, given on 31
May 2013
in respect of the
maintenance
obligations of the applicant is stayed, pending the outcome of the
variation application brought by the applicant on
06 August 2021
under the above case number
.
o
The attachment by the second respondent of
the proceeds of the sale of
Portion 48 (a
portion of portion 5) of the Farm E[....] 561, registration division
IQ, Gauteng Province pursuant to the writ issued
on 28 January 2021,
is set aside in part, the third respondent being ordered to pay
R275,000.00 (Two Hundred and Seventy Five Thousand
Rand) of the
proceeds of the sale of said farm to the applicant, while retaining
the remainder of such proceeds in an interest
bearing trust banking
account, pending the outcome of the variation application brought by
the applicant on 06 August 2021 under
the above case number
.
o
Costs of this application is reserved for
the court hearing the variation application.
A.
GRAF
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing
: 8 September 2021
Date
of judgment
:
17 September 2021
Appearance
for the applicant
:
Adv L de Haan
Luit1212@gmail.com
Instructed
by Hefferman Attorneys
gawie@sdhattorneys.co.za
Appearance
for the first respondent
:
Adv Sarita Liebenberg
sarita@sarita.co.za
Instructed by Honey
Attorneys
Ivoigt@honeyinc.co.za
[1]
2011
(4) SA 149
(SCA) at para 51-52
[2]
(2130/2021)[2021]
ZAWCHC 37 (2 March 2021) at para 26
[3]
1983
(4) SA 850
(C)
[4]
[2018]
ZACC 5
(Judgment delivered on 1 March 2018)