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[2019] ZAFSHC 225
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J v L (1274/2019) [2019] ZAFSHC 225 (29 November 2019)
the HIGH COURT
OF south africa
FREE STATE
PROVINCIAL DIVISION
Reportable:
YES/NO
Case
No: 1274/2019
In the matter
between:
ZJ
Applicant
a
nd
LL
Respondent
Coram:
Opperman,
J
Heard:
10
October
2019
Delivered:
29
November 2019
Judgment:
Opperman,
J
Summary:
Contempt
of court – Shifren-principle in maintenance matters where
minors involved – evaluation of applications for
contempt of
court orders in maintenance matters
JUDGMENT
I
CONTEXT
[1]
The
case revolves, at its core, around the financial maintenance and care
of a minor child.
[1]
It concerns the responsibility of the courts to ensure that
maintenance orders are observed within the intricacies that often
tarnish and complicate these cases.
[2]
[2]
The
Maintenance Act 99 of 1998
[3]
and the law that developed around it were specifically designed to
deal with the topic of the case.
[4]
Notwithstanding these statutory remedies and legal recourse available
to the applicant she elected to seek an order by way of an
opposed
motion in the High Court to declare the respondent in contempt of a
court order. The order followed a deed of settlement
that formed part
of an order for divorce that was issued in this court.
[3]
The
application is for the following:
1.
Directing
the respondent to advance reasons why the respondent should not be
found to be in contempt of the court order dated 21
October 2010
under case 4839/2010 and be committed to imprisonment for a period
not exceeding 90 days for such contempt;
2.
That
the respondent be ordered to pay the costs of this application on an
attorney client scale;
3.
Further
or alternative relief.
[4]
On
21 October 2010 the court assigned primary residence of the then
seven-year-old minor son to the applicant
subject
to the respondent’s reasonable rights of access to the child.
Related herewith and to the dispute
in casu,
the court ordered:
2.1
That the respondent shall pay maintenance for the minor child in the
amount of R9000,00
per month; the first payment to be on the 1
st
of October 2010
[5]
and
thereafter before or on the 1
st
of each successive month. In addition to the above the respondent
shall also be responsible for:
2.1.1
All reasonable medical, dentist and eye care expenditures of the
minor child.
2.1.2
The
tertiary education of the minor child.
2.2
The maintenance in paragraph 2.1 will escalate yearly in accordance
with the consumer price index
rate. First escalation to be on or
before the 1
st
of October 2011 and thereafter on the 1
st
of October of each subsequent year.
[5]
Pertinent
to the dispute is a Shifren-clause
[6]
in the deed of settlement. It prescribes that no variation of the
agreement shall be of any force or effect unless reduced to writing
and signed by the parties to this agreement. The clause does not
demand confirmation by way of a court order. In other words, the
parties agreed that the court order may be varied by consensus and
reduction to writing
inter partes
.
[7]
[6]
It
is the case for the respondent that he is not in arrears with the
maintenance payments. As a matter of fact; he has over-payed
in the
amount of R86 465.70. He admits that the method of payment was
not in accordance with the letter of the court order
but
substantively so. His first argument is that the order did not state
payment of the R9000 directly to the applicant. The respondent
assumed it to be payment to address the needs of the minor; either to
the applicant directly or to third parties such as service
providers
and for that matter; the minor himself. He also relies on consensual
extra-curial variations of the maintenance order
between him and the
applicant to justify the manner of payment.
[7]
The
applicant denies the above and claims that the respondent is
contemptuous towards her and the court order and was so from the
very
beginning in 2010. He paid whenever and however he deemed proper. He
would demand cash slips as prove of the expenditures
for the minor
before any payment. She explained in so many words that she was held
hostage by the situation and communication with
respondent was
challenging. Since the divorce she had on numerous occasions
attempted to enforce the settlement agreement, but
to no avail. The
respondent was well aware of the fact that he had to pay directly to
her. Her case is that there were never any
consensual variations of
the court order. She relies on the Shifren-clause in paragraph 5 of
the settlement agreement. She alleges
that the respondent is in
arrears with the maintenance in the estimated amount of R344 618.70.
II
ISSUES
[8]
The following came to the fore:
1. The application
of the Shifren-principle in maintenance matters must be established
and pinioned.
2. The law
pronounced in the Constitutional Court in
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
(CCT 217/15; CCT 99/16)
[2017] ZACC 35
;
2017 (11) BCLR 1408
(CC);
2018 (1) SA 1
(CC) (26 September 2017) in regard to
the
requisites for contempt and the standard of proof in
contempt proceedings will be depicted.
4.
Unique
to this case is that the judgement of the contempt entails two
aspects to be decided separately; the method of payment and
the
amount due in terms of the order.
5.
If
the oral variation agreement scenario passes legal muster the next
task of the court will be to establish the factual situation
of the
case in this regard. Were there or were there not any variations of
the settlement agreement and what did it entail? The
vehicle that
brought the matter before court is motion proceedings and the Placon
Evans-principle will apply. The next leg of this
aspect will be to
ascertain whether the respondent is in arrears with the payments or
not.
[9]
I
pause to deal with the notion of the respondent that the R9000 was
not to be paid to the applicant directly. It is rejected. The
words
of the court order and circumstances that it addressed negates such
inference. The respondent was represented by counsel
at all times.
They would have made the terms of the court order clear and his claim
is preposterous. The dichotomy of his version
is stressed by the
alleged variations he claims. As result of and on his own admission,
he did not comply with the court order
by not adhering to the method
of payment.
III
MOTION PROCEEDINGS AND NON-COMPLIANCE WITH MAINTENANCE ORDERS
[10]
The
applicant sought relief by way of motion that was opposed. For this
reason, counsel for the respondent argued that by virtue
of the
Plascon Evans Paints-rule, the version of the respondent must be
accepted and the application dismissed.
Motion proceedings, unless concerned with interim
relief, are all about the resolution of legal issues based on common
cause facts.
Unless the circumstances are special, they cannot be
used to resolve factual issues because they are not designed to
determine
probabilities. It is well established under
the
Plascon-Evans
rule that where in motion
proceedings disputes of fact arise on the affidavits, a final order
can be granted only if the facts averred
in the applicant’s
affidavits, which have been admitted by the respondent, together with
the facts alleged by the latter,
justify such order.
It is accordingly generally undesirable to endeavour to
decide an application upon affidavit where the material facts are in
dispute.
In such a case it is preferable that oral evidence be led to
enable the court to see and hear the witnesses before coming to a
conclusion. On the other hand, it is equally undesirable for a
court to take all disputes of fact at their face value. If this
were
done a respondent might be able to raise fictitious issues of fact
and thus delay the hearing of the matter to the prejudice
of the
applicant. In every case the court should examine the alleged
disputes of fact and determine whether in truth there
is a real issue
of fact that cannot be satisfactorily resolved without the aid of
oral evidence. Whether a factual dispute
exists is not a
discretionary decision; it is a question of fact and a jurisdictional
pre-requisite for the exercise of the discretion
given by the
rule.
[8]
[11]
The
Legislator in the
Maintenance Act
[9
]
and the Constitutional Court in
Bannatyne v
Bannatyne and Another
(CCT18/02)
[2002] ZACC
31
;
2003 (2) BCLR 111
;
2003 (2) SA 363
(CC) (20 December 2002)
declared the failure to comply with a maintenance order a criminal
offence and a contravention of section
28(2) of the Constitution of
the Republic of South Africa, 1996.
[12]
The
Constitutional Court also concluded that the maintenance court is the
most appropriate forum to inquire into changed circumstances
surrounding the maintenance of minors and decide a matter.
[10]
I agree and specifically because the system was developed for the
uniqueness of maintenance matters. Motion proceedings applying
the
contempt of court remedies often leave more questions than answers in
these instances. It might be the case here.
1.
The
veracity of evidence cannot be tested by cross examination. The
courts are restricted by the Plascon Evans-principle. The inquiries
in terms of the
Maintenance Act are
inquisitorial in nature and the
presiding officer may convert criminal proceedings into inquiries.
In effective maintenance
courts with good legal and administrative
infrastructure the child’s interest is strengthened by
maintenance officers and
maintenance investigators that can detach
themselves from the parental feuds that more often than not cloud the
real facts. It
is also a cheaper method to compel compliance.
Mero
moto
referral to the Children’s Court
and the Office of the Family Advocate are also on the table.
2.
The
threat of incarceration may encourage the respondent to comply with
the order but it is difficult to establish on paper; as
is the case
here, what the amount in arrears is. If he is found in contempt
because he failed to pay the monies on or before the
1
st
of each month and directly to the applicant, it will not remedy the
arrears effectively.
3.
The
prayer to the court in the notice of motion is that the respondent be
committed to imprisonment for a period not exceeding ninety
days for
the contempt. During the hearing suspension of the sentence for three
years was suggested. The condition of the suspension
was not proposed
and did not include the payment of any amounts in arrears. It is
trite that conditions of suspension must be clear
and unambiguous.
4.
Imprisonment,
constitutionally so, is the last resort; it will also cause the
respondent in this instance to lose income and to
the detriment of
the minor. There seems to be a strong bond between the parties and
their son and the litigation that includes
a threat of imprisonment
of his father is traumatic.
IV
THE “SHIFREN-SCHAKLE”
[13]
The
facts here resemble the
GF v SH
2011 (3) SA 25
(GNP)
(“GF”) and
SH v GF
2013 (6) SA 621
(SCA) (November
9, 2017) (“SH”) scenario. I am in full agreement with
Kollapen, AJ in her finding that it is crucial
that non-variation
clauses may be relaxed in maintenance matters but for it to be
interpreted and applied restrictively and with
utmost care.
[18] While the
Shifren principle was not articulated as being confined to contracts
of a commercial nature, and on the face of it
would have general
application, it must also be evident that, in matters that relate to
the rights and obligations (in the context
of family law), different
considerations, distinguishable from those applying in the world of
commercial contracts, may well warrant
consideration.
[19] Those
considerations include:
[19.1]
The constitutional imperative that in all matters concerning children
the principle of the best interests of
the child must apply as a
guiding and paramount principle.
[19.2]
The obligation of parents to maintain their children in accordance
with their ability, as well as the needs of
the minor children. It
should follow that it is indeed a matter of public policy to ensure
that those guiding principles, insofar
as they relate to the
reciprocal and mutual reinforcing obligations of parents, are
maintained and are not sacrificed, as it were,
at the altar of
ensuring certainty at all times.
[19.3]
The fact that in the real-world parents, entrusted with the
responsibility of ensuring that the best interests
of their minor
children are advanced, must invariably make decisions that may
warrant a departure from, or a variation of, the
express terms of a
settlement agreement. It would be impractical and inconvenient to
suggest that, in all such instances, and in
the face of a
non-variation-except-in-writing clause, parents should then be
constrained in their ability to take decisions and
to do things, even
by mutual agreement that would advance the interests and the
wellbeing of such minor children.
[20] Certainly, and
for the considerations alluded to above, there must be instances
where public policy may justify a departure
from the Shifren
principle in the area of family law. Without suggesting that such
departure should be easily justified or readily
countenanced, there
must be due regard to the context within which parenting takes place,
and within which decisions that may on
the face of it vary an express
obligation, are arrived at to attain some other socially desirable
objective — the best interests
of the child. In all the
circumstances the demands and the consideration of public policy, in
the context of ensuring the development
of family law, that are
consistent with the values of the Constitution, including the values
of equality and non-discrimination,
as well as ensuring the
advancement of the best interests of the child, would in my view, in
appropriate instances and where a
proper case is made out, certainly
justify a departure from what has become known as the Shifren
principle.
[14]
What
further discerns the legal issue linked to minors is the fact that
the High Court is the Upper Guardian of all minors within
its
jurisdiction; it is the constitutionally mandated duty of courts to
ensure that archaic rigid manacles do not affect the best
interest of
children.
[15]
Much
has been written and debated by esteemed academia and courts.
[11]
I will not reiterate the contemplations; suffice to find that the
words of Davis J set the standard when he remarked in
Mort
NO v Henry Shield-Chiat
2001 (1) SA 464
(C) at 475: “[t]he task is not to disguise equity or principle
but to develop contractual principles in the image of the
Constitution.” The primary principle to consider in maintenance
matters that involve minors is whether it would have been
in the best
interests of the children to enforce the non-variation clause, had
there been an actual variation. The Bill of Rights
is instructive
that in every matter pertaining to a child, the best interests of a
child are of paramount importance. Based on
the public policy enquiry
it is the yardstick to justify overcoming the strictures of the
Shifren-principle. As Kohn
[12]
put it:
In this article I
have sought to illustrate how the recent efforts of our high courts
reveal that although Shifren remains part
of our law, it is no longer
an insuperable obstacle to ensuring equity in contractual relations.
The trilogy of cases I have discussed
shows how recourse to the
flexible and evolving doctrine of public policy – particularly
through the second leg of the public
policy test – can, through
a nuanced and reflective analysis, ensure that Shifren is relaxed
where the circumstances so demand
and in a manner which strikes the
right balance between the interests of the parties.
[16]
All
said; this court is bound by the
maxim
stare decisis et non quite movere
(Stare
decisis-rule).
[13]
The Supreme
Court of Appeals in a unanimous judgment
[14]
in the SH-case
decreed that:
[16]
In any event the view of Kollapen AJ that in the light of the oral
agreement of variation of the maintenance order it would
offend
against public policy to enforce the non-variation clause, cannot be
endorsed. This court has for decades confirmed that
the validity of a
non-variation clause such as the one in question is itself based on
considerations of public policy, and this
is now rooted in the
Constitution. See SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren en
Andere1964 (4) SA 760 (A) at 767A –
C and Brisley v Drotsky2002
(4) SA 1 (SCA)
(2002 (12) BCLR 1229
;
[2002] 3 All SA 363)
paras 7, 8,
90 and 91. Despite the disavowal by the learned judge, the policy
considerations that he relied upon are precisely
those that were
weighed up in Shifren. In Media 24 Ltd and Others v SA Taxi
Securitisation (Pty) Ltd (AVUSA Media Ltd and Others
as Amici Curiae)
2011 (5) SA 329
(SCA) para 35 Brand JA said:
'As
explained in Brisley v Drotsky
2002 (4) SA 1
(SCA) (para 8), when
this court has taken a policy decision, we cannot change it just
because we would have decided the matter
differently. We must live
with that policy decision, bearing in mind that litigants and legal
practitioners have arranged their
affairs in accordance with that
decision. Unless we are therefore satisfied that there are good
reasons for change, we should confirm
the status quo.'
[17]
Working
on the law that the non-variation clause is not surmountable the
inevitable outcome on the legal principles is to reject
the variation
alleged. In any event; the facts point to the same outcome.
Consensus, on the evidence, is highly improbable between
the parties.
The decisions taken by the respondent was unilateral and did not
comply with the deed of settlement. This brings me
to the matter of
the arrears.
V THE
ARREARS
[18]
The
evidence shows that the relationship between the parties in this case
is vile and obstructive. Tragically it is the norm in
cases such as
these; it is the root of perpetual litigation and obstruction of the
administration of justice and justice for children.
[19]
Preller
[15]
said it as it is:
The goal for
divorced or separated parents should always be to maintain the best
co-parenting relationships possible by moving past
previous
relationship issues and focusing on children’s well-beings. A
great percentage of parents that divorce or separate
see conflict as
an inevitable part of the process and are determined to fight battles
in court despite this not necessarily being
in the best interest of
their children.
A great percentage
of parents that divorce or separate see conflict as an inevitable
part of the process and are determined to fight
battles in court.
From time to time one comes across an intransigent parent who is
incapable of objectivity when considering what
is best for the child.
It may well be that you do not like your partner, but the child’s
view of the parent is different.
He or she will have love and trust
for that person, capable of transcending even the most dreadful
scenes that may have been witnessed.
[20]
In
addition to the above I add that apart from dragging innocent
children into immature battles and power games;
[16]
it is expected from courts to sift through voluminous allegations
slung to and from the litigants on paper. The respondent gave
an
extensive computation of the maintenance payments. It is also a
reality that the order was made in 2010 and the case only lies
before
the court 9 years later. Evidence was destroyed and is not available
anymore. It affects the cases of both parties. The
record of the
respondent’s case consists of a 32-page statement and 526 pages
of financial statements. It does not solve
or proof the question of
whether or not the respondent is in contempt of court pertaining to
the arrears.
[21]
The
evidence shows that the bond between father and son has strengthened
and “U” spent more time with the respondent.
The increase
in time spent with the respondent had the effect that he had to spent
more money on him. The allegation by the respondent
is that there was
an agreement to adapt the maintenance payment accordingly. The
applicant’s reply to this is: “It
does not mean that the
respondent was entitled to unilaterally deduct what he spent on “U”
from the maintenance he
was obliged to pay.” Any hint of
consensus between the parties on the maintenance of the minor is
rejected by the applicant
by stating that there was seldom any
meaningful discussion between herself and the respondent but constant
conflict prevailed,
especially against the background of his failure
to comply with the provisions of the court order and pay in terms
thereof.
[22]
The
payment and calculation of maintenance monies are pure cold
accounting. It is devoid of emotions. Neither the courts, nor counsel
or the parties may allow for it to turn it into psychological
warfare. As soon as the court order had been made it must cause
stability. It caused emotional mayhem in this case due to the conduct
of both parties. The parties should have; with or without
the
assistance of their legal representatives, ensured that the changed
circumstances culminated into and be captured in formal
detailed
Maintenance Court Orders. The justice system was available to them
and did not fail any of the parties; it is the parties
and their
legal advisors that failed the minor child and themselves by not
applying the law effectively.
[23]
The
applicant, on her own version, remained “silent” on the
issue until 2018; for about six years, when she approached
her
current lawyer and they started correspondence in which the
non-payment of maintenance toward “U” was addressed.
[24]
The
applicant’s case is unreliable. There is a severe want of proof
therein. Her application is based on:
For the years 2011
to 2012 the respondent paid maintenance in accordance with the
agreement although he did not adjust the maintenance
upwards as
provided for in clause 2.2. For the years 2013 to 2017 I have no
record of the respondent paying maintenance as provided
for in the
agreement.
[17]
And:
“
For
the year 2018 he paid an amount of R35 000-00 and for 2019 up to
date hereof he paid R10 000-00. These are amounts
paid to me as
provided for by the settlement agreement. Apart from this he did make
payments towards certain needs of “U”
but did not provide
me with any detail of payments he allegedly made.
[25]
She
then proceeded to state that: “I have caused a calculation to
be made of the maintenance the respondent should have paid
and what
he in fact paid and I attach the same hereto marked annexure ZJ5
which calculations speak for themselves.”
[26]
In
the next instance she admitted that the calculations might be wrong
and need to be adjusted and that she is not in a position
to furnish
the exact amounts the respondent paid. The total amount outstanding
was reflected on page 37 of the record to be R875 624,1506;
on
page 38 an amount of R171 283,6385 is depicted. The total amount was
severely adjusted to R344 618.70 in her replying affidavit
after
she directed the court to errors in the calculations and statements
supplied by the respondent.
[27]
Absurdly
in the face of an application for contempt of court, she held that:
“The respondent is in the excellent position
to give a proper
account of all payments he has made towards “U’s”
maintenance over the years and I invite the
respondent to fully
disclose to this court, supported by vouchers, what payments he made
in respect of “U’s”
maintenance.”
[28]
The
real situation evades the court. The parties cannot adduce effective
evidence on which the court can make a finding as to whether
the
respondent is in arrears.
[29]
The
parties should have realised on the available evidence and animosity
that a formal maintenance inquiry would have been the most
suitable
to establish the real situation.
[30]
Since
it cannot be established that the respondent is in arrears with the
payments the next step will be to adjudicate the alleged
contemptuous
intent and unlawfulness by the respondent to not pay the maintenance
directly to the applicant and in the amount and
at the time
prescribed.
VI
CONTEMPT OF COURT
[31]
The
law on contempt of court is established in the South African common
law and legislation. It is an imperative in the administration
of
justice and the stability of democracy. Cameron J noted in the
Fakie-case
[18]
that disobedience to the courts sullies the authority of the courts
and the rule of law.
[32]
The
notion is ever so real in maintenance cases.
[19]
The preamble of the
Maintenance Act guarantees
social and
constitutional stability, security and equality to the victims of
perpetrators of maintenance orders. Court orders must
instil order
and protect the vulnerable.
[33]
The
Constitutional Court in
Matjhabeng Local
Municipality v Eskom Holdings Limited and Others; Mkhonto and Others
v Compensation Solutions (Pty) Limited
(CCT
217/15; CCT 99/16)
[2017] ZACC 35
;
2017 (11) BCLR 1408
(CC);
2018 (1)
SA 1
(CC) (26 September 2017)
[20]
addressed the complexities that evolved over the decades.
[21]
Procedural and substantive issues concerning the requirements of
contempt of court were raised.
1.
The
legal nature of the common law phenomenon is uncertain. There is a
widely held view that contempt of court is neither criminal
nor
civil.
2.
What
must the procedural vehicle that brings the issue before court be?
Cases concerning contempt of court are now brought to our
courts with
more frequency and by way of motion. Courts often employ summary
contempt procedures followed by imprisonment in motion
proceedings.
The dichotomy of civil proceedings that cause imprisonment begs the
question whether motion procedures are suitable
for all issues?
Should it then not be enrolled in courts by the only authority
empowered to prosecute crime; the National Prosecuting
Authority?
3.
The
fair trial principle comes to the fore. Frequently, the resultant
committal to prison violates the right to freedom and security
of the
person − which includes the right not to be deprived of freedom
arbitrarily or without just cause and not to be detained
without
trial − in terms of
section 12(1)
and the fair trial rights in
terms of section 35(3) of the Constitution.
[34]
The
conclusion of the Constitutional Court
[22]
indicates that the declaration of an entity to be in contempt of
court has a hybrid status to be applied according to the facts
of
each case. Contempt of court as remedy for the disobedience to a
court order and consequential imprisonment passed constitutional
muster in the protection of the judicial authority of courts. Both
civil and criminal procedure law may be applied, the standard
of
proof must be applied in accordance with the purpose sought to be
achieved and that is the consequences of the various remedies
that is
sought.
[35]
To
reiterate, non-compliance with a maintenance order is a crime and the
penalty imprisonment. The onus is on the applicant to prove
beyond a
reasonable doubt that the order was not complied with and that the
respondent acted with male fides and wilful. If after
the case for
the applicant was concluded and prima facie evidence points to his
guilt, the respondent has a case to answer. If
reasonable doubt
exists at the end of the case the court may not declare contempt.
[36]
Reading
of the papers directs to an arrogance of the respondent that boils
down to contempt; contempt towards the right of the applicant
to have
equal input and treatment during the financial care of the minor,
contempt towards the truth and towards the court. On
his own version
he unilaterally decided how and when to pay the maintenance. He had
the luxury of legal representation and years
of rows over the issue
confirms this.
[23]
His claim of ignorance of the law was thus rejected.
VII
CONCLUSION
[37]
The
crucial question the court must decide is whether the minor child had
been and is being cared for in terms of the decree in
the
Constitution of the Republic of South Africa, 1996 read with the law
of maintenance and care of minors in South Africa. Included
herein is
the stability that must exist in law to protect the care of minor
children that is proclaimed in the Constitution. The
case resorts
within the Family Law realm and is definitely not for the protection
of commercial assets. Secondly lies the protection
of the judicial
authority of the court as balanced with the democratically proclaimed
freedom of parties to contract. Slotting
in herewith is the duty of
the High Court as Upper Guardian of all minor children in its
jurisdiction to protect these children
even against the actions and
contracts of their biological parents that were entrusted with their
care in terms of the law.
Lastly is it for the court to comply
with the law of evidence and procedure to ensure an outcome that
serves the focus above ultimately.
[38]
The
sui generis
nature of
maintenance matters demands that the court invokes its inherent
jurisdiction and refer the matter for trial on the issue
of the
arrears. Hearing in this instance not to preclude any process
provided for this purpose in the
Maintenance Act 99 of 1998
. It is
imperative and in the interest of justice that the matter of the
arrears be resolved.
[39]
The
applicant is declared to be in contempt of court in relation to the
provisions of the order of this court handed down on
21 October 2010
to the extent that the instalment amount of R9000 and the yearly
increase was not paid to the applicant directly
and on or before the
first of each month.
[40]
The
respondent is sentenced to imprisonment but to be wholly suspended.
Since the arrears cannot be determined on the evidence and
the
dispute is severe, it is only the method of payment that can be
managed as a condition of the suspension.
[41]
Each party must pay its own costs because as I
already pointed out; the parties are both to be blamed for the issues
that gave rise
to the litigation.
VIII
ORDER
1.
The
respondent is declared to be in contempt of the court order dated 21
October 2010 under case 4839/2010 and committed to imprisonment
for a
period of ninety days that is wholly suspended for three years on
condition that the respondent shall comply with the method
of payment
as decreed in the court order. The instalment to include the increase
and calculated as prescribed in the court order
and to be paid on or
before the 1
st
December 2019 and thereafter on or before the first of each
subsequent month.
2.
The
dispute in regard to the specific amount in arrears is referred for
trial.
2.1
Trial
in this instance not to preclude any process provided for this
purpose in the
Maintenance Act 99 of 1998
.
2.2
The
notice of motion in the application shall stand as the applicant’s
simple summons.
2.3
The
respondents’ answering affidavit shall stand as the
respondents’ notice of intent to defend.
2.4
The
applicant shall, as plaintiff, within 20 days of the date of this
order deliver her declaration.
2.5
The
further exchange of pleadings and pre-trial procedures, including
discovery and the request for and provision of trial particulars,
shall be regulated by the Uniform Rules of the Court.
3.
Each
party to pay their own costs.
M
OPPERMAN, J
Appearances
For
applicant:
ADV. F VAN RENSBURG
Chambers
Bloemfontein
Instructed
by:
HAASBROEK & BOEZAART INCORPORATED
c/o WILLERS
ATTORNEYS
Bloemfontein
For
respondents: ADV. S
TSANGARAKIS
Chambers
Bloemfontein
Instructed
by:
HONEY ATTORNEYS
Bloemfontein
Ref: A
Prinsloo/fk/l26897
[1]
“
U”.
[2]
The
Maintenance Act 99 of 1998
declares among others:
“
Preamble.—WHEREAS the
Constitution of the Republic of South Africa, 1996, as the
supreme law of the Republic,
was adopted so as to establish a
society based on democratic values, social and economic justice,
equality and fundamental human
rights and to improve the quality of
life of all citizens and to free the potential of all persons by
every means possible, including,
amongst others, by the
establishment of a fair and equitable maintenance system;…”
[3]
“
Maintenance Act”
[4
]
Bannatyne v Bannatyne and
Another
(CCT18/02)
[2002] ZACC 31
;
2003 (2) BCLR 111
;
2003 (2) SA 363
(CC) (20 December
2002) at paragraphs [4] to [6]:
“
Civil
and criminal remedies against defaulters of maintenance for minors
in terms of legislation:
Chapter
5 of the Act makes provision for maintenance orders to be enforced
by civil execution. This includes execution against
property,
the attachment of emoluments and the attachment of debts. A
failure to comply with a maintenance order is also
a criminal
offence for which a defaulter can be sentenced to imprisonment or
ordered to pay a fine. Chapter 6 of the Act
makes provision
for a court to convict a person for failing to pay maintenance.
Section 40
of the Act specifically deals with the recovery of arrear
maintenance. Provision is also made for criminal proceedings in
respect
of the non-payment of maintenance to be converted into a
maintenance enquiry. This must be done if: “. . . it
appears
to the court that it is desirable that a maintenance enquiry
be held, or when the public prosecutor so requests . . .”
Chapter 3 of the Act governs the functions and powers of maintenance
officers in the enforcement of maintenance orders.
Section 6
requires the maintenance officer to take steps to investigate a
maintenance complaint and thereafter institute a maintenance
enquiry. The investigation of a complaint includes obtaining
statements under oath from persons with information regarding
the
complaint; investigating the identity or whereabouts of the alleged
defaulter and any other relevant information for the
purposes of the
maintenance enquiry. A maintenance officer is also empowered
to enlist the assistance of a maintenance
investigator to assist in
the performance of such functions. At the maintenance inquiry,
the maintenance officer is entitled
to subpoena witnesses to give
evidence or to produce documentary evidence relating to the
financial position of the parties.”
[5]
The date
seems to be wrong since the divorce was only granted on 21 October
2010.
[6]
SA Sentrale Ko-op
Graanmaatskappy Bpk v Shifren
1964 (4) SA 760
(A) (Shifren). In Shifren the court held that where
a non-variation clause is entrenched against an oral variation of
all the
terms in the contract, subject to compliance with the
party-imposed formality, this formality must be executed to give
effect
to the oral variation. Often, the formality prescribed is
that the variation must be reduced to writing and signed by the
parties.
This finding of the Appellate Division has been commonly
referred to as the Shifren principle.
[7]
See the discussion by Hoctor,
Cowling & Milton in
South
African Criminal Law and Procedure
,
Volume III: Statutory Offences, CD-Rom and Intranet: ISSN
2218–Jutastat, e-publications at RS 23, 2013 chF2-p13 to
page 18 on
ex lege
and
ex contractu
maintenance
obligations.
[8]
Derek Harms,
Civil
Procedure in the Superior Courts,
Last Updated: June 2019 - SI 65 at 6.42 to 6.52.
[9]
Section 31.
Offences
relating to maintenance orders.—(1) Subject
to the provisions of
subsection
(2)
, any
person who fails to make any particular payment in accordance with a
maintenance order shall be guilty of an offence and
liable on
conviction to a fine or to imprisonment for a period not exceeding
three years or to such imprisonment without the
option of a fine.
[
Sub-s.
(1)
substituted
by
s. 13
(
a
) of Act
No. 9 of 2015.]
[10]
In terms of the
Maintenance Act:
“maintenance
order” means any order for the
payment, including the periodical payment, of sums of money towards
the maintenance
of any person issued by any court in the Republic,
and includes, except for the purposes of
section 31
, any
sentence suspended on condition that the convicted person make
payments of sums of money towards the maintenance of any
other
person;
[11]
See
Ismail,
Riaz,
Non-Variation
Clauses, Public Policy and Fairness
GF v SH
2011 3 SA 25
(GNP) and SH v GF
2013 6 SA 621
(SCA) (November
9, 2017). Journal of Contemporary Roman-Dutch Law, Vol. 80, p.
683-694, 2017. Available at SSRN:
https://ssrn.com/abstract=3175800
,
Posted: 22 May 2018 and Kohn, L ‘
Escaping
the “Shifren shackle” through the application of public
policy: An analysis of three recent cases shows Shifren
is not so
immutable after all’
(2014) 1 Speculum Juris 74. In ER v LB unreported case no 2237/2013
[2013] ZAWCHC 161
(11 September 2013) para 27, which was handed down
shortly before De Haas, the court quoted with approval from GF and
thereby
highlighted the importance of the „best interests of
the child‟ criterion in tipping the public policy scales in
favour of a departure from Shifren in the family law context.
[12]
At footnote 246 and 247 in the
text of the article referred to above.
[13]
Malcolm Wallis, Judge of the
Supreme Court of Appeal:
Whose
decisis must we stare
?
2018 SALJ 1-17.
[14]
Van
der Merwe AJA (Mthiyane AP, Theron JA, Petse JA and Zondi AJA
concurring).
[15]
Everyone’s
Guide to Divorce and Separation,
EAN:
9781770225299,
http://zebra.bookslive.co.za/blog/2013/06/07/bertus-preller-childrens-needs-should-be-put-first-during-divorces-or-separations
accessed 25 October 2019.
[16]
It was stated by the respondent that the minor could
testify that he is satisfied with the way his father cares for him.
The mother
paints a picture of unpaid maintenance monies and
consequent hardship suffered by her and the minor. He realised that
his parents
are embroiled in litigation about him and it upset him
greatly. He apparently ended up in the emergency ward of a local
hospital
with a panic attack after the situation became known to
him.
[17]
Paragraph 5.1 of the founding
affidavit.
[18]
2006 (4) SA 326 (SCA).
[19]
CR
Snyman,
Criminal
law,
6
th
edition. LexisNexis. Last Updated: 2014 at 315 to 327.
14
Failure to comply with an order
of court
A
party to a civil case against whom a court has given an order, and
who intentionally refuses to comply with it, commits contempt.
Such
contempt is, however, hardly ever charged as a criminal offence by
the state, and it is left to the party in whose favour
the order has
been given to apply to court, if he so wishes, to convict the
defaulting party. Such an application is merely a
way of enforcing
the court order because if the application is successful the
sentence, such as imprisonment, is almost always
suspended on
condition that the defaulting party comply with the order in the
manner prescribed by the court. Although this form
of contempt is
usually referred to as "civil contempt" because it is
usually dealt with by civil law only, there is
nothing to prevent
the Director of Public Prosecutions from indicting for criminal
contempt of court in such a case if he thinks
the circumstances
merit public prosecution.
[20]
http://www.saflii.org/za/cases/ZACC/2017/35.html.
[21]
CR
Snyman,
Criminal
law,
6
th
edition. LexisNexis. Last Updated: 2014 at 315 to 327.
1
Definition Contempt
of court consists in unlawfully and intentionally
(
a
)
Violating the dignity, repute or authority of a judicial body or a
judicial officer in his judicial capacity; or
(
b
)
Publishing information or comment concerning a pending judicial
proceeding which constitutes a real risk of improperly influencing
the outcome of the proceeding or to prejudice the administration of
justice in that proceeding.
2
Elements of the crime
The
elements of the crime are the following: (
a
) (
i
)
the
violation
of
the
dignity,
etcetera
of
the
judicial
body
or
judicial
officer;
or
(
ii
)
the
publication
of
information
or
commentary
concerning
a
pending
judicial
proceeding,
etcetera
;
(
b
)
the
administration
of
justice
by
the
courts;
(
c
)
unlawfulness;
and
(
d
)
intention
.
3
Unusual features of
crime
The
crime is characterised by the following unusual features:
Firstly
,
contempt of court manifests itself in a variety of forms, some of
which have requirements all of their own (e.g. the requirement
in
cases of publication of information which has the tendency to
prejudice the outcome of a case that the case must still be
pending
(
sub
iudice
)).
Because of this the crime can in a sense be subdivided into a number
of "sub-offences", which [Page 316] often have
requirements of their own. These particular forms of the crime will
be discussed separately below. In fact, the expression "contempt
of court" can be regarded as a collective noun for a number of
different crimes that have certain features in common.
Secondly
,
certain cases of contempt of court are dealt with, not by the
ordinary criminal processes, but by civil law. These are cases
where
there has been non-compliance with a court order in a civil case,
and where the litigant in whose favour the court has
made the order
seeks to implement it by requesting the court to punish the
defaulting party for contempt of court if the order
is not complied
with. It has now been settled, however, that these so-called cases
of "civil contempt" also constitute
the crime of contempt
of court: the Director of Public Prosecutions is free to charge a
person with contempt of court in these
cases too.
A
third
peculiarity of this crime is that its perpetration may
sometimes call for a drastic procedure in terms of which a judge or
magistrate
may convict and punish somebody for contempt of court
committed inside the court in the presence of the judge or
magistrate.
During
the period after (and even shortly before) the introduction of the
new Constitution with its Bill of Rights, the field
of application
of this crime had shrunk, especially because of the right to freedom
of expression and of assembly and demonstration
enshrined in
sections 16 and 17 of the Constitution. Conduct such as
demonstrations in favour of a certain verdict in front of
courts, or
criticism of courts and judges seem, nowadays, not to lead to
prosecutions for contempt, unless there are exceptional
circumstances. As a result the older case law dealing with this
crime, which tended to overprotect the judiciary, should be read
with caution and reservation, and a readiness to adapt the law to
the new human-rights dispensation in terms of the new Constitution.
[22]
Matjhabeng Local Municipality
at paragraphs 46 to
62.
[23]
Bannatyne v Bannatyne and Another
(CCT18/02)
[2002] ZACC 31
;
2003 (2) BCLR 111
;
2003 (2) SA 363
(CC)
(20 December 2002):
[29]
Compounding these logistical difficulties is the gendered nature of
the maintenance system. The material shows that
on the
breakdown of a marriage or similar relationship it is almost always
mothers who become the custodial parent and have to
care for the
children. This places an additional financial burden on them
and inhibits their ability to obtain remunerative
employment.
Divorced or separated mothers accordingly face the double
disadvantage of being overburdened in terms of responsibilities
and
under-resourced in terms of means. Fathers, on the other hand,
remain actively employed and generally become economically
enriched. Maintenance payments are therefore essential to
relieve this financial burden.
[30]
These disparities undermine the achievement of gender equality which
is a founding value of the Constitution.
[23]
The enforcement of maintenance payments therefore not only secures
the rights of children; it also upholds the dignity
of women and
promotes the foundational values of achieving equality and
non-sexism. Fatalistic acceptance of the insufficiencies
of
the maintenance system compounds the denial of rights involved.