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[2019] ZAGPPHC 318
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M.H v M.E.H (25820/2015) [2019] ZAGPPHC 318 (22 July 2019)
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Certain
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
YES
/NO
CASE
NO: 25820/2015
22/7/2019
In
the matter between:
M[….]
H[….]
APPLICANT
and
M[….]
E[….] H[….]
RESPONDENT
JUDGMENT
VAN
DER SCHYFF, AJ
Introduction
[1]
The
applicant seeks an order that the respondent is held in contempt of
court for failing to comply with a court order dated 11
December
2018; that the respondent be committed to goal for a period of 20
days, or such period and conditions at the court may
determine; in
the alternative that the respondent be ordered to comply fully with
the court order 11 December 2018; and that the
respondent is ordered
to pay the costs of the application on a punitive scale.
[2]
The
application was delivered to the respondent's attorneys via e-mail on
5 July 2019. In the notice of motion the respondent was
required to
inform the applicant's attorney of record if he intends to oppose the
application on or before 8 July 2019 and to file
an answering
affidavit on or before 9 July 2019, which would afford the applicant
time to file a replying affidavit on or before
11 July 2019.
[3]
The
applicant filed a notice of intention to oppose on 9 July 2019. An
answering affidavit was filed on 15 July 2019.
[4]
The
respondent raises two points
in
limine:
first, non-compliance with
Rule 6(12)(b) and the practice directive in that the applicant does
not substantiate why she will not
be afforded substantial redress at
a hearing in due course, and second, that the matter is not urgent.
[5]
In
considering these points
in limine
it
is necessary to set out the salient facts of the matter since urgency
is determined on a case-by-case basis.
Background
facts
[6]
The
applicant instituted divorce proceedings against the respondent
during April 2015.
[7]
She
brought an application in terms of Rule 43 for maintenance
pendente
lite.
A draft order was presented to
the presiding judge, which was made an order of court on 15 September
2015.
[8]
As
is indicated below, this term of the order has become contentious.
The order reads: "That the Respondent retains the Applicant
as a
beneficiary on his medical aid for a period of six months from date
of the divorce."
[9]
During
September 2016 the respondent removed the applicant from the medical
aid. The applicant approached the urgent court pursuant
to which she
was reinstated in October 2016.
[10]
During November 2018 the respondent again removed the applicant from
the medical aid and she instituted
a contempt application. On 11
December 2018 an order was granted by Sardiwalla J, ordering the
respondent to immediately reinstate
the applicant as a beneficiary on
his medical aid. This order reads: "... that the respondent be
ordered to comply fully with
the Court Order dated 15 September 2015
by reinstating the applicant as a beneficiary on his medical aid,
with immediate effect."
[11]
On 29 May 2019 a further contempt
application was set down for hearing, but the application was
withdrawn. The applicant explains
that the application was withdrawn
to provide the respondent with a final opportunity to comply with the
court order, whereas the
respondent avers that the applicant conceded
that the application was without merit and in any event, not urgent.
Urgency
[12]
The
applicant states that she suffered a serious heart attack 7 years ago
and underwent heart bypass surgery. Approximately 4 years
ago she had
a pace maker inserted and 2 years ago a corrective heart valve
operation. She takes chronic medication on a daily
basis. Without
medical cover she will not be admitted to a private hospital in the
event of a further heart attack, and she cannot
afford the chronic
medication.
[13]
The
respondent does not deny the extent of the applicant's medical
condition but denies that it creates any urgency because these
circumstances existed when the divorce action was instituted. In
light of the applicant's medical condition I find the logic in
the
respondent's argument startling.
[14]
In
light of the applicant's medical condition and the preceding
litigation in this regard, I am of the view that this application
indeed justifies a hearing in this court.
Merits
[15]
On 27 June 2019 the respondent's
attorney forwarded correspondence to the applicant's attorney stating
that the respondent's medical
aid declined her application to be
reinstated.
[16]
The applicant's attorney contacted the
medical aid's representative and obtained certain information, which
is not confirmed under
oath. The applicant therefore relies on
hearsay evidence regarding this aspect.
[17]
However, in his answering affidavit the
respondent confirms that
a Ms
Patty
King was added as a beneficiary on his medical aid as from 1 November
2018.
[18]
The respondent maintains that he is in
dire financial straits and cannot afford to subsidise the applicant
on his medical aid. He
states that he was declared medically unfit to
work in 2007 but continued working on a freelance basis until 2016
when his health
condition deteriorated to such an extent that he was
incapable of doing any work.
[19]
He also avers that the order that was
granted in September 2015 was erroneously formulated to provide for
the applicant to remain
on his medical aid for six months after
finalisation of the divorce, whereas the true intention was that that
she would remain
for 6 months after finalisation of the Rule 43
proceedings. He contends that the order does not make sense in that
Rule 43 provides
for regulating the parties' maintenance obligations
pendente lite.
[20]
The respondent also adds that the
applicant is prolonging the divorce proceedings and not acting in
good faith.
[21]
The applicant, however, avers that the
September 2015 court order reflects the intention of the parties that
she was to be retained
on the applicant's medical aid
pendent
lite
and an additional 6 months
after the divorce was finalised. She denies that she is prolonging
the divorce proceedings.
Contempt proceedings
[22]
It
is trite that compliance with court orders is an issue of fundamental
concern for a society that seeks to base itself on the
rule of law.
What is required in civil contempt matters is that sufficient care
should be taken in the proceedings to ensure a
fair procedure as far
as possible with the provisions of section 35(3) of the Constitution
(JSO v HWO
(24384/2009)
[2014] ZAGPPHC 133 (19 February 2014)).
[23]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA) is considered as the leading authority on contempt of
court proceedings. In this matter the Supreme Court of Appeal
describes
the application for committal for contempt by a private
party as a
'peculiar amalgam'
because
'it is a civil proceeding that
invokes a criminal sanction or its threat.'
(para
[8]). The Court continues in paragraph [9]
'The
test for when the 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,...'
However, in paragraph
[41] the Court held '...
this
development of the common law does not require the applicant to lead
evidence as to the respondent's state of mind or motive:
Once the
applicant proves the three requisites
...,
unless the respondent provides
evidence raising a reasonable doubt as to whether non-compliance was
wilful and
mala fide
the
requisites of contempt would have been established. The sole change
is that the respondent no longer bears a legal burden to
disprove
wilfulness and
mala tides
on
a balance of probabilities, but, but only need evidence that
establishes a reasonable doubt.'
[24]
The Supreme Court of Appeal summarised
its findings as follows in paragraph [42]:
a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders, and survives constitutional
scrutiny in the form of
a
motion
court application adapted to constitutional requirement.
b)
The
respondent in such proceedings is not an "accused person",
but is entitled to analogous protections as are appropriate
to motion
proceedings.
c)
In
particular the applicant must prove the requisites of contempt (the
order; service or notice; non-compliance; and wilfulness
and
mala
fides)
beyond reasonable doubt.
d)
But,
once the applicant has proved the order, service or notice, and non
compliance, the respondent bears an evidential burden
in relation to
wilfulness and
mala fides:
Should
the respondent fail to advance evidence that establishes
a
reasonable doubt as to whether
non-compliance was wilful and
mala
fide,
contempt will have been
established beyond reasonable doubt.
[25]
In
Pheko
and Others v Ekurhuleni Metropolitan Municipality (No 2)
(2015]
ZACC 10, in a unanimous decision delivered by Nkabinde J, the
Constitutional Court subsequently explained that:
'[30]
The term civil contempt is
a
form of contempt
outside of the court, and is used to refer to contempt by disobeying
a
court
order. Civil contempt is
a
crime, and if all
the elements of criminal contempt are satisfied, civil contempt can
be prosecuted in criminal proceedings, which
characteristically lead
to committal. Committal for civil contempt can, however, also be
ordered in civil proceedings for punitive
or coercive reasons. Civil
contempt proceedings are typically brought by
a
disgruntled
litigant aiming to compel another litigant to comply with the
previous order granted in its favour....
[31]
Coercive contempt orders call for
compliance with the original order that has been breached as well as
the terms of the subsequent
contempt order. A contemnor may avoid the
imposition of
a
sentence
by complying with
a
coercive
order. By contrast, punitive orders aim to punish the contemnor by
imposing
a
sentence
which is unavoidable. At its origin the crime being denounced is the
crime of disrespecting the court, and ultimately the
rule of law.
[32]
The pre-constitutional
dispensation dictated that in all cases, when determining contempt in
relation to
a
court
order requiring
a
person
or legal entity before it to do or not do something
(ad
factum praestandum,)
the following
elements need to be established on
a
balance of probabilities: (a) the
must order exist; (b) the order must have been duly served on, or
brought to the notice of, the
alleged contemnor; (c) there must have
been non compliance with the order; and (d) the non-compliance
must have been wilful
or
ma/a
fide'.
[26]
The Constitutional Court confirmed the
decision by the Supreme Court of Appeal in
Fakie
and held that the judgment creates a
presumption in favour of the Applicant (para 36):
'Therefore
the presumption rightly exists that when the first three elements of
the test for contempt have been established,
ma/a
tides and wilfulness are presumed
unless the contemnor is able to lead evidence sufficient to create
reasonable doubt as to their
existence. Should the contemnor prove
unsuccessful in discharging this evidential burden, contempt will be
established.'
[27]
Nkabinde J continued (para [37]
'
However, where
a
court
finds
a
recalcitrant
litigant to be possessed of malice on balance, civil contempt
remedies other than committal may still be employed.
These include
any remedy that would ensure compliance such as declaratory relief,
a
mandamus demanding the contemnor to
behave in
a
particular
manner,
a
fine
and any further order that would have the effect of coercing
compliance.
'
The present application
[28]
Paragraph two of the September 2015
order reads as follows: "That the Respondent retains the
Applicant as a beneficiary on
his medical aid for a period of 6 (six)
months from date of divorce."
[29]
The respondent argues that the court
order as it currently stands, only obliges him to keep the applicant
on his medical aid for
a period of six months
from
the date of divorce.
He avers that
it was the parties' intention that the applicant was to be retained
on the respondent's medical aid for a period of
6 months from the
Rule 43 application. His legal representative argued that this is the
only sensible and logical interpretation
that can be afforded to the
September 2015 order.
[30]
When the relevant paragraph of the
September 2015 order is to be interpreted, the well-known principle
as set out in
Natal Joint Municipal
Pension Fund v Edumeni Municipality
2012 (4) SA 593
(SCA) 603G-604A
finds application:
"Whatever the nature of
the document, consideration must be given to the language used in
light of the ordinary rules of grammar
and syntax: the context in
which the provision appears;
...
"
[31]
In interpreting the September 2015 order
I take the following into consideration:
(i) The order was made in
pre-divorce litigation to provide relief
pendent lite
to an
applicant engaged in divorce proceedings; (ii) The purpose of Rule 43
is to provide maintenance
pendent lite;
(iii) Divorce
proceedings are rarely concluded within 6 months; (iv) the respondent
explicitly states in paragraph 5.4 of the opposing
affidavit "The
true intention of the parties during the settlement negotiations and
the subsequent order was that the divorce
is to be finalised before
the end of 2015" - hence it is evident that it was the parties'
intention that the respondent was
to retain the applicant on his
medical aid for the foreseen
pendent lite
period; (v) it is
trite that as long as the marriage subsists a reciprocal duty to
support exists between spouses.
[32]
I am of the view that an interpretation
of the September 2015 order against the background explained above,
reflects the parties'
intention to provide for the applicant to be
retained on the respondent's medical aid
pendente
lite
the finalisation of the
divorce.
[33]
This is clearly the way in which the
order was interpreted not only by Sardiwalla J in the urgent court
application in December
2018, but also by the respondent and his
legal representatives, during October 2016 when the respondent
reinstated the applicant
as a beneficiary of his medical aid and kept
her on the medical aid until November 2018. I pause to mention that
it is significant
that the respondent instituted a counter
application in December 2018 that the September 2015 order be amended
or varied to read
that the respondent is obliged to retain the
applicant on his medical aid fund until six months "from the
date of the Rule
43 application". In light hereof I am of the
view that if any misunderstanding existed as to· the
interpretation of
the September 2015 order, the order granted by
Sardiwalla J have done away with it.
[34]
An aspect that has to be dealt with,
however, is whether it is of any material concern to the success of
this application that on
face value the September 2015 order exceeds
the scope of Rule 43. If it is accepted that a court cannot regulate
the post-divorce
responsibilities of parties in Rule 43 applications
the question arises as to whether the September 2015 order is valid -
and if
not, whether the respondent can be held in contempt of an
invalid court order.
[35]
I requested counsel specifically to
provide me with additional heads of argument directed to this
question. For purposes of the
discussion that follows, it is
(temporarily) assumed that the entire order pertaining to the
respondent's obligation to retain
the applicant on his medical aid is
invalid.
[1]
Two questions then arise: (i) whether a party can choose to ignore
the order and raise its invalidity as a defence in contempt
proceedings, and (ii) whether a subsequent court can compel
compliance with the order despite it lacking a legal basis.
[36] The starting point
of any discussion of this nature is section 165(5) of the
Constitution of the Republic
of South Africa, 1996 where it is
provided that "An order or decision by a court binds all persons
to whom and organs of state
to which it applies".
[37] The decision of
the Supreme Court of Appeal in
Motala
v Master of the High Court
2012 (3)
SA 325
(SCA) has been interpreted to mean that invalid court orders
are not capable of being enforced, even where they have not been
taken
on appeal, and are nullities.
[2]
It is noteworthy, however, that the Honourable Jafta J in
Nkata
v Firstrand Bank Limited and Others
2016
(4) SA 257
(CC) stated at paragraph 187:
"Unlike
my colleagues I do not read Motala
as
laying
a
down the limited principle that
a
person is not compelled to obey an
order made by
a
court
that had no jurisdiction to make it".
[38] Subsequently , in
Department of Transport v Tasima
(Pty) Limited
2017 (2) SA 622
(CC),
hereinafter Tasima, the majority in the Constitutional Court held
that invalid court orders are binding and are still capable
of
founding contempt where they are ignored. The Honourable Khampepe J,
writing on behalf of the majority, stated in paragraph
180:
"The
general rule
is
that
orders that
do not
concern
constitutional invalidity
do
have
force from the moment they are
issued.
And in light of section 165(5) of the
Constitution, the order
is
binding,
irrespective of whether or not it
is
valid, until set aside."
In
paragraph 182 she stated:
"This
reading of section 165(5) accepts the Judiciary's fallibilities.
As
explained in the context of
administrative decisions, "administrators may err, and even
...
err grossly." Surely the authors
of the Constitution viewed Judges
as
equally human. The creation of
a
judicial hierarchy that provides for
appeals
attests
to
this understanding. Like administrators, Judges are capable of
serious error. Nevertheless, judicial orders wrongly issued are
not
nullities. They exist in fact and may have legal consequences."
She continued in paragraph 183 "...
Allowing parties to ignore court
orders would shake the foundations of the Jaw, and compromise the
status and constitutional mandate
of the courts. The duty to obey
court orders
is
the
stanchion around which
a
state
founded on the supremacy of the Constitution and the rule of law
is
built.",
and
in paragraph 186:
"...
the legal consequence
that flows from non-compliance with
a
court order
is
contempt. The "essence" of contempt "lies in
violating the dignity, repute or authority of the court." By
disobeying
multiple orders issued by the High Court, the Department
and the Corporation repeatedly violated that Court's dignity, repute
and
authority and the dignity, repute and authority of the Judiciary
in general. That the underlying order may have been invalid does
not
erase the injury. Therefore, while
a
court may, in the correct
circumstances, find an underlying court order null and void and set
it aside, this finding does not undermine
the principle that damage
is done to courts and the rule of law when an order is disobeyed. A
conclusion that an order is invalid
does not prevent
a
court
from redressing the injury wrought by disobeying that order, and
deterring future litigants from doing the same, by holding
the
disobedient party in contempt."
(references omitted).
[39]
When
the Tasima judgment is interpreted, the judgment is to be interpreted
against the backdrop of the facts underpinning the Tasima
matter. As
De Beer explains in his draft article -
"A
latter court deciding whether to enforce the Interim Order would need
to have asked: 'Can a High Court grant an interim
order preserving
the terms of
a
contract,
pending the outcome of dispute resolution proceedings into the
validity of the contract?' The answer is of course 'Yes'.
Therefore,
the order was binding, unless overturned on appeal, or as it was only
of an interim nature, until the contractual dispute
was resolved.
...
factually the Interim Order was
disregarded time and time again by the Department, and any
non-compliance
-
before
it fell away after the extension was declared unlawful and invalid
-
resulted in contempt."
In
Tasima the court a
quo
had
the authority to deal with the subject matter. Although it was later
held by a higher court that the agreement was indeed
ab
initio
void, the court
a
quo's
"error" occurred
within a jurisdictional setting within which the court was empowered
to act and it is within this context
that the Tasima judgment was
handed down.
[40]
Section
170 of the Constitution provides that
"All
courts other than those referred to in s 167, 168 and 169 may decide
any matter determined by an Act of Parliament."
Sections
167, 168, and 169 respectively provides that the Constitutional Court
may only decide constitutional matters and arguable
points of law of
general public import and has exclusive jurisdiction over certain
matters, the Supreme Court of Appeal may only
decide appeals from the
High Court, and no competition or labour matters, and the High Court
may decide (i) constitutional matters
unless the Constitutional Court
has agreed to hear the matter directly or the matter has been
assigned to another court of similar
status by legislation, and (ii)
any other matter not assigned in an Act to another court. As a result
there are limits to judicial
power.
[41]
I am of the view that Rule 43 inherently
limits a court's power when it deals with relief
pendent
lite.
An order which exceeds the
court's empowerment to deal with such matter would be
ab
initio
void. And herein lies the
distinction between the Tasima matter and a Rule 43 order that is
aimed at regulating parties' relationship
and responsibilities
post-divorce. Where the court
a quo
in Tasima had the necessary subject
matter jurisdiction to decide the questions before it, a court in a
Rule 43 application does
not have the subject matter jurisdiction to
regulate the parties' post-divorce rights and responsibilities.
[42] As
stated above, however, the September 2015 order has been found to by
Sardiwalla J to have
pendente
lite
application. I have set out above the grounds on which I interpret
the September 2015 order to have
pendent
lite
application. If, on any interpretation , the said orders are capable
of extending the ambit of the Rule 43 order beyond the
existence of
the marriage, that part of the order that would attempt to regulate
the post-divorce scenario would be void
ab
initio
and of no
effect. The rule 43 order will lapse when the decree of divorce is
granted.
[43] The
respondent's conduct to remove the applicant, twice, as a beneficiary
from his medical aid constitutes
nothing less than self-help. The
fact that he disregarded the Sardiwalla-order indicates a blatant
disregard for the rule of law
and the dignity of the court. The
question remains as to why the respondent never approached the court
with an application in terms
of Rule 43(6) to vary the order when it
became apparent that the divorce would not be finalised in six months
(a change in circumstances),
but reverted to self-help. On the basis
of the principle laid down by the Constitutional Court in Tasima, the
respondent is in
contempt of the September 2015 order. However, this
question intensifies after the Sardiwalla-order was granted in
December 2018
despite a counter-application being launched by the
respondent for the amendment of the September 2015 order to bring it
in line
with what he contends the parties' true intention was in
September 2015.
[44] I am
of the view that it is evident from the papers that the first three
elements of the test for contempt
have been established. There is an
existing order, the order was brought to the attention of the
respondent and the respondent
is in non compliance.
[45] Since
the first three elements of the test for contempt have been
established, ma/a
tides
and wilfulness
are presumed unless the respondent is able to lead evidence
sufficient to create reasonable doubt as to their existence.
The
respondent thus needs to rebut the presumption of mala
fides
and wilfulness.
[46] The
respondent submits that he is in dire financial straits with no means
to comply with the court
order. However, in direct contradiction
thereto, he admits that Ms Patty King was added as a beneficiary on
his medical aid as
from 1 November 2018. November 2018,
coincidentally is the period when the applicant's membership was
terminated. He was in the
position to add another beneficiary on his
medical aid when he had an obligation to retain the applicant. Since
he is still married
to the applicant she has the strongest right in
law to be maintained by the respondent. It is trite that marriage
brings about
a reciprocal duty of support that subsists for the
duration of the marriage. This duty of support was confirmed and
entrenched
in the court order granted in September 2015 and
re-confirmed in December 2018.
[47] The
respondent does not provide any factual basis for a finding that his
refusal to comply with the
order of Sardiwalla J, was in any way
bona
fide.
ORDER
In
the result it is ordered:
1.
The
Respondent is held to be in contempt of the order of this Court,
dated 11 December 2018.
2.
The
Respondent is committed to imprisonment for a period of 30 days,
which is wholly suspended for a period of 12 months, on condition:
2.1 That the
respondent adds the applicant as a beneficiary on his medical aid
fund within 15 days of this order.
3.
The
respondent shall pay the costs of this application.
E
VAN DER SCHYFF
Acting
Judge of the High Court
Heard
on:
16
July 2019
For
the Plaintiff/Applicant
:
D M de Bruyn
Instructed
by:
De Bruyn Attorneys
For
the Defendant/Respondent:
Adv J H Lerm
Instructed
by:
Waldick Jansen Van Rensburg
Inc
Date
of Judgment:
22 July 2019
[1]
I found a draft article by MN De Beer "lnvalid Court Orders,
Accountability and the authority of the judiciary"
https://
www.wits.ac.za/.../wits...court.../MNDeBeer-Court%200rdersDraft.docx
of much assistance.
[2]
Also see
City of Johannesburg v Changing Tides 74 (Pty) Ltd
2012
(6) SA 294
(SCA) and
Moraitis Investments (Pty) Ltd v Montie
Diary (Pty) Ltd
2017 (5) SA 508
(SCA).