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[2019] ZANCHC 60
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M.C.P v C.H.P (352/2019) [2019] ZANCHC 60 (20 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
reportable
Case
No: 352/2019
In
the matter between:
MCP
APPLICANT
And
CHP
RESPONDENT
Heard:
22 November 2019
Delivered:
20 December 2019
JUDGMENT
PHATSHOANE
AJP
[1]
Ms MCP and Mr CHP, the applicant and the respondent, were married to
each other out of community of
property subject to the accrual
system. The marriage was dissolved by a decree of divorce issued out
of this Court on 10 October
2018, which incorporated a Deed of
Settlement. The kernel of what is in issue is whether there has been
proper compliance with
Clause 2.2 of the Deed of Settlement which
essentially stipulates that both parties shall within 60 days from
the date of the divorce
furnish to each other, in accordance with the
provisions of s 7 of the Matrimonial Property Act, 88 of 1984 (“the
MPA”),
a list of their assets; liabilities and the accrual of
benefits to their respective estate.
[2]
Ms MCP requires that the accrual benefits to the estate be determined
to enable her to maintain herself
which she contends cannot be
achieved because Mr CHP did not comply with the divorce order, in
particular the aforesaid clause
of the deed. Consequently, she seeks
a declarator that Mr CHP be held to be in contempt of the divorce
order and committed to a
30day term of imprisonment or such period as
the Court may deem appropriate, wholly suspended for a period of one
year on certain
conditions.
[3]
On 14 January 2019 Ms MCP’s attorneys caused a letter to be
delivered to Mr
CHP requesting the information as set out in clause 2.2 of the Deed
of Settlement on or before 21 January 2019. They placed him
on terms
that the Court would be approach for an appropriate relief in the
event he failed to adhere to the order.
[4]
Following the launching of this application Mr CHP’s attorneys
dispatched a letter on 25 April
2019 to Ms MCP’s attorneys and
attached a copy of Mr CHP’s financial statements for the fiscal
year ending on 28 February
2018. The correspondence sets out the list
of his assets, and liabilities. In addition certain calculations were
made to show the
value of his estate at the date of divorce and the
determination of the accrual benefits. On 26 April 2019 Ms MCP’s
attorneys
replied,
inter alia
, that the information provided
was not sufficient; and that, in any event, they were already in
possession of the said financial
statements. They demanded, amongst
others, a list of each of Mr CHP’s assets and liabilities as at
the date of divorce; their
description and registration details;
policy numbers and their schedule, investments, the number of
livestock and where they were
kept.
[5]
Mr CHP says that he provided the information he had by means of a
letter dated 03 June 2019. This
communique sets out five
immovable properties and their municipal valuation; it lists two
businesses and their estimated value;
certificates of five vehicles
which he says Ms MCP was free to obtain their values. Furthermore, Ms
MCP’s attorneys were
informed that Mr CHP would submit to them
his investment portfolio and certificates in respect of his policies.
[6]
Ms MCP was not satisfied with the response. In a letter dated 04 June
2019, directed to Mr CHP’s
attorneys, she questioned the
municipal, as opposed to the market, valuation of the properties
which were dated 13 March 2003 whereas
the divorce only took place on
10 October 2018. She requested full particulars of the immovable and
movable assets; the valuations
of the vehicles and further
information as previously requested but not forthcoming.
[7]
Ms MCP insists that the documents provided by Mr CHP were incomplete
and presented in a way that made
it impossible for her to calculate
the value of the portion of her accrual. She holds the view that the
financial statements provided
are a restatement of the calculations
done by Mr CHP’s auditors and does not reflect the true value
of his assets and liabilities.
[8]
In her replying affidavit Ms MCP itemised the assets which were not
disclosed by Mr CHP. For instance,
three farms situated in the
district of Gordonia, livestock, a tavern which was partially
completed on the date of the divorce,
and some movable properties.
She avers that Mr CHP is the owner of a farm also situated in the
district of Gordonia which he bought
in the name of his father. She
explained that Mr CHP did not provide her with the updated market
related valuation in respect of
his assets nor did he give her
consent to obtain information regarding his policies. She also sought
copies of Mr CHP’s father’s
financial statements to
verify whether they reflected a loan Mr CHP made to him. Furthermore,
she intimates that Mr CHP operates
various bank accounts but he did
not provide the details thereof including the updated bank
statements. At para 16. 4 of her replying
affidavit she states:
“
16.4
To date hereof, the respondent has not provided me with the following
information as requested by my attorney
(Annexure CHP4 to the
answering affidavit):
16.4.1 market
related valuations of the immovable properties;
16.4.2 the
information and market related valuation of the immovable property
allegedly donated to the respondent, and
proof of the donation;
16.4.3 the
correct and market related valuation of the businesses, the assets
and stock of Lochmaree and Kleinmier;
16.4.4 the
reasons for closing down the business at Rietfontein and Loubos;
16.4.5 the
complete list and valuations of his vehicles and movable assess;
16.4.6 the complete
list of his cattle and where the cattle are kept; and
16.4.7 a list of
respondent’s liabilities.”
[9]
Mr CHP submits that he adequately complied with the order, therefore,
there was no need for Ms MCP to
persist with the application. He has
nothing to hide from her. He says in accordance with paras 3.1 and
3.2 of the Deed of Settlement
Ms MCP may appoint a forensic auditor
to verify all the information provided. He is willing to give her and
her appointed auditor
complete access to his financial records, his
properties, and the premises of any legal entity in which he holds an
interest; access
to records held by his financiers, auditors,
suppliers, financial advisors and or his marketers. He intimates that
on 16 May 2019
an invitation was extended to Ms MCP’s attorneys
to act in terms of the said paras 3.1 and 3.2 of the Deed of
Settlement.
They failed to do so. For completeness paras 3.1
and 3.2 of the deed stipulates:
“
3.1
Elke party sal geregtig wees op volle toegang tot die ander party en
enige regsentiteit waarin enige van die partye
‘n belang het se
persele en eiendomme wat besit of gehuur word, finansiёle
rekords en inligting wat verband hou met
hulle onderskeie boedels vir
doeleindes om die inligting soos uiteengesit in paragraaf 2.2 hierbo
te verifier wat insluit, maar
nie beperk is tot, inligting of rekords
in besit van die partye se onderskeie bankiers, ouditeure,
verskaffers, finansiёle
adviseurs en bemarkers vir ‘n
typerk wat nie korter is nie as 5 jaar. Vir doeleindes hiervan sal
enige party ook gerigtig
wees om forensiese outditeure aan te stel.
3.2
Vir doeleindes van toegang soos uiteengesit in paragraaf 3.1 hierbo,
sal die party mekaar redelike vooraf
kennis gee van die bedoeling om
toegang uit te oefen, deur kennisgewing aan die party se prokureur
en/of forensiese ouditeur.”
[10]
It suffices to mention that Ms MCP takes no issue in appointing an
auditor but says that the auditor will not be
able to verify the
information without full details thereof being provided.
[11]
Mr Olivier, for Mr CHP, argued that all things considered Mr CHP is
not in contempt of the Court order; he acted
bona fide when providing
the information; and that a reasonable doubt exits as to Mr CHP’s
wilfulness and mala fide to comply
with the Court order. In any
event, he contended, that the application was ill conceived. At the
very least, so it was argued,
Ms MCP ought to have filed an
application to compel Mr CHP to produce the information sought.
[12] Mr CHP
is fully aware of his obligations in terms of clause 2.2 of the deed
of settlement. The list of assets and
liabilities he furnished are
clearly not sufficient for purposes of determining the accrual. In a
situation such as the present,
the duty of a husband (alternatively a
wife or same–sex partner, as the case may be) is to be full,
frank and clear with
the disclosure he or she makes.
[1]
The obligated party is also enjoined to show which assets ought to be
excluded for purposes of determining the accrual and provide
reasons.
[2]
Needless to say, not
every Court order warrants committal for contempt of Court in civil
proceedings.
[3]
In
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
[4]
the Constitutional Court stated that:
‘
[54]…. The
relief in civil contempt proceedings can take a variety of forms
other than criminal sanctions, such as declaratory
orders,
mandamuses, and structural interdicts. All of these remedies play an
important part in the enforcement of court orders
in civil contempt
proceedings. Their objective is to compel parties to comply with a
court order. In some instances, the disregard
of a court order may
justify committal, as a sanction for past non-compliance. This is
necessary because breaching a court order,
wilfully and with mala
fides, undermines the authority of the courts and thereby adversely
affects the broader public interest.’
[13]
In this case I am unpersuaded that the want of adequate compliance
with the Court order of 10 October 2018 warrants
being visited upon
by civil contempt proceeding and committal to a term of imprisonment.
This is so because there had been compliance
albeit insufficient. But
the issues do not end here because the accrual cannot be determined
due to the insufficiency of the information
at hand.
[14] Ms MCP
says that her intention is not to prejudice Mr CHP but to compel him
to comply with the order so as to finalise
the outstanding aspects of
the divorce. Section 7 of the MPA requires of a party to provide full
particulars of the value of his/her
estate. In
ST
v CT
[5]
the SCA pronounced as follows on a duty of disclosure:
“
[33] Section 7 of
the MPA sets out the duty which a spouse has to make full disclosure
of relevant information when requested to
do so by the other spouse.
It reads as follows:
'7 Obligation to
furnish particulars of value of estate
When it is necessary to
determine the accrual of the estate of a spouse or deceased spouse,
that spouse or the executor of the estate
of the deceased spouse, as
the case may be, shall within a reasonable time at the request of the
other spouse or the executor of
the estate of the other spouse, as
the case may be, furnish full particulars of the value of that
estate.'
[34] In
MB
v DB
Lopes J cautioned as follows:
'. . . (L)itigation is
not a game where parties are able to play their cards close to their
chest in order to obtain a technical
advantage to the prejudice of
the other party. This is even more so in matrimonial matters where
the lives of the parties have
been inextricably bound together .
. . .'
[35] The duty to make
full and frank disclosure in these types of case has also occupied
the attention of the English courts. The
applicable legislation
contains similar requirements of financial disclosure as ours. In
Livesey (formerly Jenkins) v Jenkins
, Lord Brandon
declared, with reference to this duty, that '. . . unless the parties
make full disclosure of all material facts,
the court cannot lawfully
or properly exercise [its] discretion'. That case concerned
ancillary orders for financial provision
and property adjustment
after divorce and the duty to make full disclosure. And, in a more
recent case on the same subject, Lord
Sumption stated that
'(t)he proper exercise of these powers calls for a considerable
measure of candour by the parties in
disclosing their financial
affairs . . .'. In that case the husband's conduct was said to
have been characterised by 'persistent
obstruction, obfuscation and
deceit and a contumelious refusal to comply with rules of court and
specific orders'. Mostyn J was
right when, with reference to the duty
of disclosure, he said that '(n)on-disclosure is a bane which strikes
at the very integrity
of the adjudicative process'.
[36] This court has
cautioned that s 7 of the MPA places a clear duty on a spouse to
furnish full particulars when called upon to
do so. The
following dictum of Gorven AJA is apposite:
'[39] The attitude of
many divorce parties, particularly in relation to money claims where
they control the money, can be characterised
as catch me if you can.
These parties set themselves up as immovable objects in the hope that
they will wear down the other party.
They use every means to do so.
They fail to discover properly, fail to provide any particulars
of assets within their peculiar
knowledge and generally delay and
obfuscate in the hope that they will not be caught and have to
disgorge what is in law due to
the other party.
[40] The conduct of the
trial on the accrual claim appears to have been run by the appellant
on a catch me if you can basis. He
clearly failed to comply with the
provisions of s 7 of the Act. He delayed providing what were
obviously relevant documents
until the last minute and then did not
discover them. He declined to provide any documents concerning the
financial position
of Full House Taverns. He did not provide
documents which could be used to trace assets derived from the
excluded assets.”
[footnotes omitted]
[15]
Mr CHP acknowledges that for Ms MCP to gain access to the information
beyond what he had already provided would
require some effort on her
part and she would have to incur costs. He goes on to state:
“
I submit that by
demanding that I supply the information as requested by way of
annexures “CHP2” and “CHP4”,
the applicant
[Ms MCP] is attempting to circumvent the above by attempting to
burden me with all the costs and efforts.”
[16]
It is particularly undesirable that in proceedings of this nature
parties should bit about the bush when they have
information at their
disposal to bring an end to prolonged litigation. Surely the
information sought by Ms MCP resides within Mr
CHP’s knowledge
and domain. I fail to see why Ms MCP should be put to the trouble of
incurring costs through collating information
which she requires for
purposes of calculating her legitimate portion of the accrual when Mr
CHP can and must voluntarily share
it. The upshot hereof is that Mr
CHP should be compelled disclose the information required.
[17]
Even though the contempt application ought not to succeed at this
stage Mr CHP should be deprived of his costs
because he could have
avoided this litigation by simply providing the information sought by
Ms MCP. In the premises I make the
following order:
Order
1.
The application for contempt of Court
brought by Ms MCP is dismissed with no order as to costs.
2.
Mr CHP, the respondent, is to disclose
and/or provide Ms MCP, with the following:
2.1
Information sought in the correspondence
attached as Annexures “CHP2” and “CHP4” to
his answering affidavit.
2.2
Information sought in a letter dated 19
June 2019 as reflected on page 104 of the record which should include
but not limited to:
2.1.1 the market
related valuations of his immovable properties;
2.1.2 the
market related valuation of the immovable property allegedly donated
to him and proof of the donation;
2.1.3 the
market related valuation of his businesses including the assets and
stock held in Lochmaree and Kleinmier;
2.1.4 the
reasons for closing down the business at Rietfontein and Loubos;
2.1.5 the
complete list and valuation of his vehicles and all his movable
assets;
2.1.6 the
complete list of his livestock and where this is kept; and
2.1.7 a
list of his liabilities.
_________________________
MV Phatshoane AJP
APPEARANCES:
FOR THE APPLICANT:
Adv A. Stanton
Instructed
by Engelsman Magabane Inc.
FOR THE RESPONDENT
: Adv A.D. Olivier
Instructed
by Elliot Maris Wilmans & Hay
[1]
See
MB
v DB
2013 (6) SA 86
(KZD) where the dictum in the English decision of
J
v J
[1955] P 215
at 227 was referred to with approval.
[2]
ST
v CT
2018 (5) SA 479
(SCA) at 493G-H para 39
[3]
2018
(1) SA 1
(CC) at 21 para 54
[4]
2018
(1) SA 1
(CC) at 21 para 54
[5]
2018 (5) SA 479
(SCA) at 491G-493A paras 33-36