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[2019] ZAGPPHC 126
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K.J v O.A.J and Another (67591/2013) [2019] ZAGPPHC 126 (18 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
67591/2013
(1)
REPORTABLE:
NO
(2)
Of
INTEREST TO OTHER JUDGES: NO
(3)
DATE
HEARD: 19/02/19
(4)
DELIVERED:
18 /04/19
(5)
SIGNATURE:
In
the matter between:
K[....]
J[....]
Applicant
and
O[....]
A[....] J[....]
First Respondent
CITY
OF TSHWANE MUNICIPALITY
Second Respondent
JUDGMENT
MAKHUVELE
J
Introduction
[1]
This is an application, brought by the first respondent, who I shall
henceforth refer
to as Mr J[....] or first respondent, for
reconsideration of the order that was granted against him in
his absence.
[
2]
The order was issued pursuant to an urgent application that was
issued on 13 December
2018. The matter came before Van der
Schyff AJ on 14 December 2018 .
The
order reads as follows;
“
HAVING
HEARD Counsel for the applicant and having read the documents filed:
IT IS ORDERED
1.
THAT
it is declared that the respondent is in contempt of the court orders
dated 15 dated 15 May 2015, 24 May 2018 and 10 December
2018.
2.
THAT
the first respondent is ordered to immediately , and within a period
of no more than 6 hours, restore and/or reconnect the
electricity
supply to the immovable property known as [….] Pretoria by
whatsoever means necessary
altenatively
provide the applicant with an alternative means of complete
electricity supply as is contemplated in paragraph 10 of the order
of
Kollapen J dated 15 May 2015.
3.
THAT
in the event that the first respondent fails to restore the
electricity supply to the immovable property immediately, and within
a period of no more than 6 hours, the Second Respondent is ordered to
take whatever steps as may be necessary to ensure that the
electricity supply to the immovable property known as [….],
Pretoria is srestored and reconnected immediately.
4.
THAT in
the event of the first and/or second Respondents failing to
immediately restore and/or reconnect the electricity supply
to the
property known as 174 Balmoral Avenue, Lisdogen Park, Arcadia,
Pretoria, that the Applicant is authorized to instruct
and be
assisted by the Sheriff to effect the reconnection and/or to restore
the electricity supply,
cost
hereof to be paid by the First respondent & 2
nd
Respondent , jointly & severally by the one paying the other to
be absolved
(the
highlighted portions are handwritten and initialed. Save for this
part, the order mirrors the relief sought in the Notice of
Motion)
5.
THAT
the first Respondent is ordered to immediately, and within a period
of no more than 6 hours, comply with payment in full of
his
obligations as set out in the order of 15 May 2015, which payment
shall include the payment of all amounts due and owing as
from April
2018 to date.
6.
THAT
service of this order is to take place as follows:
6.1
on
the Facebook page of the first Respondent’s wife, Chandre
J[....] (previously Goosen) via Facebook Messengre;
6.2
via
email on the email addresses of the first Respondent’s attorney
of record, on the first respondent at
brendanw@bwattorneys.co.za
on the first respondent at
O[....]J[....]@icloud.com
and on his wife at her email address at
chandreg@icloud.com
;
6.3
via
facsmile transmission at the office of the first respondent’s
attorneys offices in Pretoria at 012 329 8967 and 012 7084
and on the
facsmile numbers indicated on his letterhead;
6.4
via
email in the email address at the office of the first respondent’s
attorneys offices in Pretoria at
oj@ojlaw.co.za
indicated in his letterhead;
6.5
via
whatsapp on the cellular telephone number of the first respondent’s
wife at 071 104 2583 and 082 533 33705.
7.
A
copy of this application may be served on the first respondent’s
attorney of record, BRENDAN WELDRICK in the manner indicated
above,
and on the office of the first respondent in Pretoria by hand.
8.
THAT
the First Respondent is ordered to pay the costs of PART A of this
application on an attorney and own client scale such costs
to include
the costs of two counsel.
9.
THAT
part B of the application is postponed sine die.
[3]
The relief sought in Part B was for committal of the first respondent
‘
to
prison for a period of 30 days for contempt of court’.
[4]
There are no written reasons for the order.
[5]
There is no order on the issue of urgency. None of the
parties has raised
this in their affidavits, however, it remains
relevant, particularly because it forms the essence of Rule 6(12)(c).
The
background facts
[6]
The applicant and Mr J[....] were married out of community of
property with the inclusion
of the accrual system. During 2013 Mr
J[....] instituted divorce proceedings against the applicant.
[7]
Mr J[....] applied for separation of the granting of a final divorce
decree from issues
pertaining to the determination of the accrual of
their respective estates as well as the applicant’s maintennce
claim. The
order of separation was granted by Phatudi J on 15
December 2015.
[8]
The final decree of divorce was granted on 17 March 2016.
[9]
Before the final decree of divorce was granted the applicant had
obtained an interim
order of maintenance in terms of Rule 43 of the
Uniform Rules of Court. The order issued by Kollapen J and dated 15
May 2015 reads
as follows;
“
1.
Pendente lite the Respondent is ordered to pay an amount of R20
000.00 (Twenty Thousand Rand)
per month commencing on 28 May 2015 and
thereafter on or before the 28
th
Day of each and every month directly into the bank account nominated
by the Applicant.
2.
Pendente lite the Respondent is ordered to pay the medical aid
monthly subscription
and Gap cover directly to the service provider
and all excess medical expenses not paid by the medical aid.
3.
Pendente lite the Respondent shall be liable to pay that
portion of asset
retainer’s CC’s over daft facility which
relates to the common home presently occupied by the applicant.
4.
Pendente lite the Respondent shall pay directly R9 500.00 (Nine and
half thousand
rand ) to the municipality of Tshwane per month with
regard to rates and taxes, water and electricity.
5.
Pendente lite payment shall be made by the Respondent to the
Applicant in the
amount of R2500.00 (Two and a Half Thousand Rand) as
a petrol allowance per month payable simultaneously with the amount
in paragraph
1 above.
6.
Pendente lite the Respondent is ordered to pay the monthly
instalments for the
applicant’s BMW motor vehicle in the amount
of R9 258.07 (Nine Thousand Two Hundred and fifty Eight Rand and
Seven Cents)
.
7.
Pendente lite the Respondent is ordered to pay the monthly premiums
to insure
the BMW motor vehicle referred to above and on a
comprehensive basis.
8.
Pendente lite the Respondent is to pay the following directly to the
service
providers:
8.1
MWED
8.2
ADT
8.3
ADSL AND TELKOM
9.
Pendente lite the restritions stated in Rule 43(7) and Rule 43(8) are
waived.
10.
Pendente lite respondent is ordered to ensure that suitable
arrangements are made
or a payment plan is put into place to pay the
arrears that have built up in respect of the utilizes bill with the
Tshwane Municipality
so that no interruption under any circumstances
occurs in respect of the continual supply of electricity to the
matrimonial home’
[10]
The parties have been embroiled in acrimonious litigation against
each other since the granting
of the final divorce order with
regard to the continued existence of the Rule 43 maintenance order.
[11]
The issue of interim maintenance order was not addressed in the final
divorce order, however,
Mr J[....] continued to pay in terms of the
order granted by Kollapen J for about two years, until April 2018
when he (through
his current attorneys of record ) gave the applicant
notice that he had no legal duty to continue with the payments
because the
enforcement of the order was extinguished on the date of
the final decree of divorce. He claimed a refund of the payments that
he had made subsequent to the divorce order.
[12]
The applicant’s contention with regard to the basis for
continuance of the Rule 43 order
is that the obligations were not
extinguished by the divorce decree, particularly because Mr J[....]
had made an undertaking under
oath that the Rule 43 order would
continue to be operative and that her rights in terms of Rule
43 would be protected. It
is common cause that indeed Mr J[....] did
make these statements in the affidavit filed when he applied
for separation of
issues which served before Phatudi J.
[13]
The dispute about the continuance of the Rule 43 maintenance order
culminated in an urgent application
that was launched by the
applicant to seek declaratory orders that the Rule 43 order
remains operative in respect of the
separated issue, pending the
final determination of such issues and that she had a right to
approach the court for relief in terms
of Rule 43.
[14]
On 22 May 2018 Opperman J ruled against Mr J[....] and made
amongst others the following
order;
‘
36.2 The
rule 43 order granted on 15 May 2015 by Kollapen J remains in force
and effect until the final determination of the
applicant’s
mainteance.
36.3
The applicant’s rights to approach the court for a contribution
towards costs as contemplated in Rule
43, pending determination of
the two separated issues relating to the applicant’s
maintenance and for accrual sharing, are
not affected.
36.4
The respondent is ordered to comply with the rule 43 order granted on
15 May 2015 within 24 hours from the
granting of this order.’
[15]
Mr J[....] applied for leave to appeal Opperman J’s judgment
and order. The applicant in
turn filed an application in terms of
Section 18(3) of the Superior Courts Act, Act 10 of 2013 to put into
operation the order
of Opperman J pending the outcome of the
appliation for leave to appeal and or appeal.
[16]
The orders with respect of these applications were issued on 09 July
2018 .
[17]
Mr J[....]’s application for leave to appeal was granted to the
Full Court of the Gauteng
Division.
[18]
The applicant’s application for enforcement of the order
pending appeal was granted, effectively
putting into operation the
order issued on 22 May 2018 which declared that the Rule 43 order of
Kollapen J was not extinguished
by the granting of the final decree
of divorce.
[19]
Opperman J also issued an order that the amount that Mr J[....] would
pay in terms of her order
and the Rule 43 order ‘
shall be
deducted from the amount of accrual payable to Mrs J[....] at
the final determination of the separated issues as
contained in Judge
Phatudi’s order dated 15 December 2015, in the event that Mr
J[....]’s appeal is upheld’
[20]
Mr J[....] launched an appeal against Opperman J’s
18(3) order. This was heard
by the Full Court constituted by Judges
Tolmay, Janse van Nieuwenhuizen and Acting Judge Swanepoel on 10
December 2018. The appeal
was dismissed. Reasons were provided on
14 December 2018.
The
urgent contempt of court proceedings before Van der Schyff AJ
[21]
It appears from the record before me that the applicant filed
the urgent application to
declare Mr J[....] in contempt of various
court orders referred to in the preceding paragraphs about three days
after the judgment
of the Full Court, and before written reasons were
handed down.
In
her affidavit, the applicant stated that ‘
reasons
for the order will be handed down in due course’
.
[22]
With regard to the relief sought in Part A, the respondents were
given until 14:00 on Thursday,13
December 2018 to indicate their
intention to oppose the application, and failing which the
application would be heard on Friday,December
2018 at 10:00.They were
not called upon to file any opposing or answering affidavits.
[24]
Paragraph 8 of the Notice of Motion states amongst other things, that
the application “
may be served on the first respondent’s
attorney of record…”.
There
is an email transmission on record from applicant’s
attorney directed at Mr J[....] , his attorney and wife dated
13
December 2018 at 11:02. A copy of the application is indicated as
having been attached to this email. There is no indication
that this
was received.
[25]
Paragraph 7 of the Notice of Motion makes provision for service of
the court order that was being sought
on the first respondent’s
wife via Facebook and email , his attorney’s email and
facsimile.
[26]
The respondents were given until 25 January 2019 to indicate their
intention to oppose Part B of the
application and to file their
opposing affidavits fifteen (15) days thereafter, failing which the
application would be heard on
a date to be arranged with the
Registrar.
Rule
6(12) (C)of the Uniform Rules
[27]
The rule reads as follows;
‘
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order. ‘
[28]
Mr J[....] has raised an issue with regard to the right of the
applicant to file a replying affidavit.
Having looked at the
authorities, there is no merit in this objection.
[29]
However, the trite principles regarding the content of the replying
affidavit are relevant here
too. The objection would stand only to
the extent that any new matters were raised in reply.
Whether
the applicant has satisfied the jurisdictional factors for
reconsideration of the order of Van der Schyff AJ
[30]
It is common cause that the order was granted in an urgent
application. I have indicated that
the order is silent on whether the
Judge has condoned the abridgement of time periods and form of
service.
[31]
Mr J[....] contends that the order was obtained in his absence
under circumstances where
he was not served with the application at
all. The application was effectively made on an
ex parte
basis.
[32]
The applicant was that he was on holiday with his wife at
Maritius at the time the order
was sought and granted. He only became
aware that she had filed the application when he received the court
order via email on 14
December 2018.
[33]
On the merits, his submission is that he was not in contempt of the
indicated court orders and he could
not have been in contempt
before the Full Court judgment in any event.
[34]
In her replying affidavit, the applicant’s response with regard
to whether Mr J[....] was
aware of the proceedings or not is that her
attorneys advised his attorney of record by email.
[35]
The emails attached in both parties’ affidavits are dated 11
and 12 December 2018 and the
main discussion is compliance with the
court order of the Full Court. Mr J[....]’s attorneys of record
indicated that their
offices were closed but that they had forwarded
the documents to him . It was further indicated that he (Mr
J[....] ) was
out of the country and telephone communication
was difficult due to poor telephone lines.
[36]
The other contentious issue discussed in the email correspondence
related to the timeline for
compliance with the order of the Full
Court. The applicant’s attorneys were of the view that it
should have been complied
with 24 hours after it was granted. On the
other hand Mr J[....]’s attorneys disagreed because the court
order did not indicate
a date for compliance.
[37]
Having considered the correspondence exchanged, I am satisfied that
Mr J[....] has given a satisfactory
explanation for his absence on 14
December 2018 when the order was granted.
[38]
The question of urgency is also relevant, both in the proceedings
before Van der Schyff AJ and
before me. As I have indicated above,
the order of Van der Schyff AJ has left this issue open. Other than
making statements about
a need for immediate implementation of the
order of the Full Court, the applicant did not give reasons why the
matter had to be
heard on extreme urgency, and under circumstances
where she was aware that the applicant was outside the country, and
having afforded
him (acording to the email dated 13 December 2018
which I have referred to above), less than 2 hours to indicate his
intention
to oppose.
[39]
Under those circumstances, there was no justification for the matter
to have been heard in that
urgent court.
[40]
Consequently, my ruling is that Mr J[....] has made a case for
reconsideration of the order granted
by Van der Schyff AJ on 14
December 2018.
The
appropriate order in reconsideration
[41]
The next question to be considered is the appropriate order that I
should make under the circumstances.
In line with the legal
principles, the parties are now before me, and I must consider the
application filed by the applicant afresh.
[42]
On behalf of Mr J[....] , Advocate RGL Stelzner SC (with him Advocate
JR Whitaker), urged me
to grant a limited order of reconsideration,
meaning that I should only restore the status quo and not consider
the merits of the
application for contempt of the indicated court
orders.
[43]
The reasons advanced for this approach is that there are pending
appeals between the parties
with regard to the same issues, firstly,
with regard to the declaratory order issued by Opperman J on the
continuance of the
Rule 43 order of Kollapen J, and secondly,
on the application to appeal the Full Court judgment of 10 December
2018 which the first
respondent contends he has an automatic right
to. Another reason advanced is that the first respondent intends to
challenge the
constitutionality of Section 16(3) of the
Superior Courts Act which prohibits appeals of interim maintenance
orders. This
is the declaratory order issued by Opperman J. The fact
that she has granted leave to appeal is also of significance.
[44]
The first respondent’s Counsel’s submission on whether Mr
J[....] is in contempt
of any court order is that prior to 10
December 2018 there was no order that was operational due to the
provisions of Section 18(1)
and the pending appeals against
Opperman’s orders, the main one regarding the continuance of
Kollapen J’s order and
the one enforcing it pending the appeal
that she had granted.
[45]
On behalf of the applicant, Advocate S Stadler submitted that the
main (declaratory order ) appeal
has lapsed as it was filed outside
the prescribed period without a condonation application and that Mr
J[....] does not have a
further right to appeal the enforcement order
of Opperman J that was dismissed by the Full Court on 10 December
2018.
[46]
Whilst these legal arguments about the right of appeal are important,
the issue before me is
whether the first respondent is in contempt of
the orders dated 15 May 2015, 24 May 2018 and 10 December 2018 as
prayed for in
paragraph 2 of the Notice of Motion dated 13 December
2018. The further prayers that I must consider relate to restoration
of the
electricity supply to the immovable property that is occupied
by the applicant.
[47]
The applicant has a right to file an application to declare that the
filed appeal has lapsed,
if that is what she believes. The
proceedings before me are not the correct forum for that.
Furthermore, having been provided with
proof of filing of a further
appeal to the SCA, it is not within my competency to decide whether
that appeal is competent or not.
Issues pertaining to the validity or
right of appeals belong to the forum where they have been filed.
Similarly, the applicant
has a right to raise objections in that
forum.
[48]
Accordingly, the only issue before me that requires my adjudication
is whether the first respondent
is in contempt of the indicated
orders or not, and whether that issue can properly be decided when
the appeals are pending as counsel
for the first respondent has
submitted.
Urgency
of the reconsideration application
[49]
The applicant opposed the application for reconsideration on two main
grounds, the absence of
a right of further appeal and lapsed appeal
as well as lack of urgency.
[50]
I have already disposed of the right of appeal and lapsed appeal
objections.
[51]
On urgency, it was argued on behalf of the applicant that Rule
6(12)(c) does not entitle a party
to launch the proceedings on an
urgent basis. Her counsel referred to cases where it was held
that reconsideration is not
automatically urgent because the initial
order was granted in an urgent court. The applicant for
reconsideration must make out
a case for urgency.
[52]
I ruled that the matter was urgent, hence I proceeded to hear the
merits of the application,
both reconsideration and the initial
application.
[53]
In terms of the order issued by Van der Schyff AJ, the first
respondent has already been
declared in contempt of the indicated
court orders, in his absence, and under circumstances where the
declaration is final. The
order makes provision for determination of
the period of imprisonmnet. Taking into account the attitude adopted
by the applicant,
it would be unwise for the first respondent not to
take action with regard to the declaration of contempt of court
orders.
[54]
In any event, as I have stated above, the application issued by the
applicant did not deserve
a hearing on extreme urgency under
such circumstances where the first respondent was not afforded an
opportunity to be heard.
[55]
This should be the end of the enquiry before me.
[56]
However, because I have already ruled that the application before me
is urgent, it is necessary
to make a ruling on the submission made by
counsel for the respondent with regard to the limited reconsideration
that entails only
restoration of the status quo.
[57]
The suggested approach is in my view not desirable under the
circumstances, not because
it would not be legally unsound, but
because of the acrimonious litigation between the parties and the
adverse remarks that have
been made against them with regard to the
manner in which they have conducted their divorce proceedings.
[58]
The first respondent is an attorney and has been severely criticized
by both Opperman J and the
Full Court recently for what they believe
is an abuse of court processes on his part. In response to that, he
holds the view that
he has a right to exercise his right to access to
legal protection based on legal advice that he receives from time to
time. I
do not intend to express a view on the criticisms levelled
against him because those issues are still on appeal.
[59]
On the other hand, there are at least two judgments attached in
the papers before me where
the applicant has been criticised for
delaying the finalization of the remaining separated issue in their
divorce action.
I also do not intend to express a further view as to
the issues pertaining to who may or may not be wrong in the manner in
which
the parties are conducting their litigation.
[60]
It appears from the record that the animosity between the parties has
rubbed off on their respective
attorneys. The first respondent has
attached documents that indicate that he has apparently filed a
complaint against the attorney
of record representing the applicant
on the basis of allegations of harrassment. It also appears from the
email exchanges that
the first respondent has taken a view that he
should not be contacted directly. He also gave reasons why he does
not give out his
physical address. The judgment of Mavundla J urged
the parties to move on, but it is clear that their emotions continue
to cloud
their actions.
[61]
Although she has not complained (at least on affidavit), there is no
reason why the first respondent’s
current wife should be
dragged into this dispute by having her details splashed out in court
orders. The next thing she will be
accused of contempt of court for
not passing the documents over to her husband. Although
Facebook is a public social media
platform, the Messenger part of it
is a private space. Now the wife receives court documents that she
must pass over to her husband.
Although she has not filed any
affidavit in the matter before me, she did reply to one email
attached to the documents and indicated
that she received the email
but did not read it and has passed it to the attorneys.
[62]
The issues pertaining to whether the applicant is entitled to
maintennace until finalization of the
separated issue (determination
of accrual) are a subject of an appeal , leave having been granted by
Opperman J.
Similarly,
whether the applicant is entitled to enforcement of the order issued
by Opperman J pending finalization of the appeal
is a subject of an
appeal that the first respondent says he is entitled to, and whether
this is correct or not is not for
me to decide, at least
in the current application. The applicant does have a remedy
though to object to the appeals
that have been filed, but that must
happen on a proper application, directed at the relevant proceedings.
Whether
first respondent is in contempt of the court orders of
[63]
The correct procedure is to consider whether the first
respondent is in contempt of the
court orders or not and not to start
at the end side by declaring him as such before hearing his
explanation for non-complaince
with the court orders as it
happened when the order of Van der Schyff AJ was obtained.
[64]
The procedure and applicable legal principles,
citing previous authorities
were discussed in the
Constitutional Court judgment of Nkabinde ADCJ in the matter of
Matjhabeng Local Municipality v Eskom Holdings Limited and Others;
Shadrack Shivumba Homu Mkhonto and Others v Compensation Solutions
(pty) Limited
[2017] ZACC 35
[65]
In most cases, courts only consider the first three requirements,
which are (a) the existence
of the order, (b) that it was duly served
or brought to the attention of that person and (c)
non-compliance.
[66]
What neccessitated the ADCJ to restate the procedure and legal
principles is because in many
cases persons are found to be in
contempt of court orders under circumstances where the fourth
requirement, wilfulness and mala
fide was not considered.
[67]
In the matter before me, it is clear that the first respondent was
aware of the orders of 15
May 2015 (oKollapen J) and 24
May 2018 (issued by Opperman J on 22 May 2018 according to the first
page of the judgment
).
[68]
It is arguable whether he was aware of the order of Van der Schyff AJ
when the application for
contempt was issued on 13 December 2018. The
applicant’s argument (in the email exchanges) is that he was
represented in
court when the order was given. His argument is that
the reasons were only provided later, after the order of contempt or
on the
same day.
[69]
Accepting that he was aware of the three court orders, it is common
cause between the parties
that the reasons for non-compliance with
the Kollapen and Opperman JJ orders at least until 10 December 2018
was because those
orders were being challenged, lawfully, as there
were proceedings pending.
[70]
The order of the full court was issued on 10 December 2018 and
reasons provided on 14 December
2018. It would be stretching things
too far if one were to rule that he was in contempt of this
order within three days of
it being issued,whilst he was out of the
country and with no time frame for compliance and furthermore,
when reasons were
only provided on 14 December 2018.
[71]
Even accepting that there was non-compliance with all three orders,
the crucial question is whether
the non-compliance was wlful and mala
fide.
[72]
It is common cause that the first respondent has filed an appeal
against the declaratory order
of Opperman J (and by extension the
order of Kollapen J). This appeal is still pending,
irrespective of its status, which
I cannot determine because there is
no application before me to declare it as having lapsed.
[73]
The order of the Full Court is also being challenged.
[74]
Under the circumstances, I cannot find that the first respondent has
acted wilfully or with malice
in not complying with the court orders
of Kollapen J, Opperman J and Swanepoel AJ which are dated 15 May
2015, 24 May 2018 and
10 December 2018 respectively.
[75]
With regard to the prayer pertaining to restoration of the
electricity supply in the premises
of the applicant or being occupied
by the applicant, I wish to refer to an order that has already been
made by Tuchten J on 08
December 2018. The judgement was attached to
the applicant’s founding affidavit and all she said about it
appears in paragraph
15.9 where she stated the following;
“
What is of
consequence is that on 7 November 2018 Tuchten J heard an urgent
spoliation application launched by me in respect of
the issue of the
electricity that had been disconnected . He found that I had
counter-spoliated and dismissed the application,
but he reserved the
question of costs for determination by the Full Court for the reasons
set out in his judgment which I attach
hereto as KJ12. It is
noteworthy that the Full Court also awarded the costs of that
application to me even though it was unsuccesful”
[76]
The basis for the claim for restoration of electricity and related
prayers is that the Full Court
has ruled against the first respondent
with regard to the Section 18(3) enforcement ruling made by Opperman
J.
[77]
Taking into account what I have stated above, the issues in this
regard are still pending.
[78]
Consequently, there is no basis for the relief sought in prayers 3
and 4 of the Notice of Motion.
Costs
[79]
The litigation between the parties is far from over. The main issue
being whether the order of
interim maintenance that was issued by
Kollapen J on 15 May 2015 has survived the decree of divorce that was
granted as a separated
issue.
[80]
Mavundla J as I have already indicated, dismissed the applicant’s
request for additional
legal costs contribution from R200 000.00 to
R600 000.00. The reasons given painted the applicant as a person who
has no real need
for an increased contribution but as someone who
simply wants to drag the divorce proceedings longer whilst she
benefits from the
first respondent.
[81]
The applicant has pleaded poverty and unemployment. The first
respondent has questioned
her alleged basis for unemployment as they
separated six years ago. He called on the applicant to reveal her
finances that enable
her to mount all these legal challenges.
[82]
Opperman J made a ruling that whatever maintenance the first
respondent may pay as per
her court order will be calculated from the
accrual when that part is finalized.
[83]
I symphasize with the applicant and although I am tempted to issue an
order of costs against
the first respondent, I am constrained by the
fact that the issues between them are still under appeal. Unlike
maintenance that
would be recoverable as Opperman J has ordered,
legal costs will not be recovered. Furthermore, the fact that
Mavundla has declined
an application for an increased contribution is
indicative of the fact that part of the litigation is not necessary.
[84]
Indeed, the first respondent is an attorney, but it does not mean
that his rights of equality
before the law is curtailed. As I have
already indicated, the applicant has a right to file an application
to declare the appeal
that has been filed by the first respondent as
having lapsed, or if the first respondent fails to set it down, to do
so. Furthermore,
it is common cause that the divorce was postponed at
least twice at the instance of the applicant.
[85]
When she filed this application, the applicant was aware of the
status of the various orders
as I have outlined above.
Notwithstanding that, she went ahead and filed this application for
contempt of court.
[86]
Accordingly, there is no reason why costs should not follow the
cause.
Order;
[87]
Under the circumstances, I make the following order ;
[87.1] The order
issued by Van Der Schyff AJ on 14 Dcember 2018 is set aside in its
entirety, and on reconsideration;
[87.2] The
application is dismissed with costs, which include the costs of two
counsel.
TAN
MAKHUVELE J
Judge
of the High Court, Gauteng Division
APPEARANCES:
APPLICANT:
ADVOCATE S STADLER
Instructed
by:
Adams & Adams
Lynwood, PRETORIA
Ref: DBS/SVN/ths/F306
FIRST
RESPONDENT
ADVOCATE
RGL STELZNER SC
ADVOCATE JR
WHITAKER
Instructed
by
BRENDAN WELDRICK ATTORNEYS
Sunnyside, PRETORIA
Ref: C Van den
Heever/COO12/002
Heard
on: 19 February 2019