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[2016] ZAFSHC 166
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O v O (1385/2015) [2016] ZAFSHC 166 (29 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 1385/2015
In
the matter between:
M.
M. H. O.
Applicant
and
J.
D. O.
Respondent
HEARD
ON:
22
SEPTEMBER 2016
JUDGMENT
BY:
C.
REINDERS, J
DELIVERED
ON:
29
SEPTEMBER 2016
[1]
Ms O. filed for divorce against Mr O. under civil case
number 4631/2014. On 23 April 2015 Williams, AJ granted an
order in
terms whereof Mr O. was ordered, amongst others, to pay
maintenance
pendente
lite
to
Ms O. in the amount of R 4 000,00 per month as well as R
2 500,00 per child per month in respect of the two minor
children (“the Rule 43 application”), thus totalling R
9 000,00 per month.
[2]
Mr O. issued an application in terms of Rule 43(6) on 31 May
2016 (“the first Rule 43 application”). On 28
July 2016
Mathebula, AJ varied the order of Williams, AJ and ordered Mr O. ,
amongst others, to pay maintenance
pendente
lite
to
Mrs O. in the amount of R 1 000,00 per month and R
2 500,00 per child per month, thus totalling R 6 000,00
per
month. Mr O. issued a second Rule 43(6) application on 24
August 2016 (“the second Rule 43(6)application).
[3]
Ms O. issued this application for contempt of court on 17
August 2016. She seeks the committal of Mr O. for his
non-compliance in respect of both the orders granted by Williams,AJ
and Mathebula, AJ. This application as well as the second Rule
43(6)
application was issued under the same case number and enrolled for
the same date. These two applications contains cross-references
to
each other regarding the facts and allegations contained therein, and
it was requested by the attorneys for the parties that
this
application and the second Rule 43(6) application be dealt with
simultaneously. The order granted in terms of the latter is
contained
in a separate order under the same application number but indicating
Mr O. as the applicant and Mrs O. as
the respondent.
[4]
It is common cause that Mr O. fell in arrears with his
obligations in terms of the order granted by Williams, AJ when
he
made payment of only R 5 000,00 (in stead of R 9 000,00)
at the end of April 2016 and R 2 000,00 at the
end of May and
June 2016 respectively. A total amount of R 18 000,00 is still
in arrears in respect of the order granted by
Williams, AJ. It is
also common cause that Mr O. paid, in stead of R 6 000,00
only R 2 000,00 on 7 August
2016 and R 2 000,00 on 6
September 2016 in terms of the order granted by Mathebula, AJ.
[5]
It is trite that, before a person can be found guilty of contempt of
court, the following elements must be established:
There
must be an existing court order; the order must have been duely
served on the respondent and/or brought to his/her notice;
there must
have been non-compliance with the order; the non-compliance must have
been wilful and mala fide.
See:
Fakie NO v CCII Systems (Pty)Ltd 2006(4) SA 326 (SCA)
[6]
Existence of the order made by Mathebula, AJ on 28 July 2016 is
common cause. It is furthermore common cause that Mr O. does
not comply with the said order. It is therefore incumbent upon Mr O.
to show that such default is not wilful and mala fide.
In his
opposing affidavit it is stated by him that it is “impossible”
for him to abide by the court order and further
that he has done his
“utmost best” to abide by the court order. In the second
Rule 43(6) application Mr O. states
his nett monthly salary to
be R12 723,27, and lists his expenses which include expenses
such as his monthly rent in the amount
of R 5 000,00 and the
like.
[7]
Mr O. attempts to convince me that he cannot afford to comply
with the court order in view of the other expenses that
he has. This
does not impress me. The court order is clear. He objectively at all
times has earned a bigger nett salary than his
liability in terms of
the court order. Objectively he can comply with the order. He cannot
be heard to say that he prefers to settle
expenses of his choice and
thereafter has insufficient funds to comply with the court order. He
should first comply with the court
order ad factum praestandum and
thereafter choose how to allocate the remainder. He deliberately
chooses to pay other expenses
in stead of complying with the court
order. In my view his version is not tantamount to a good defence in
law although I understand
that from his point of view he probably
thinks to himself that he needs to pay those expenses as they are
important expenses for
himself. To my mind same only constitutes
mitigating factors in considering an appropriate sanction on
conviction.
[8]
Mr O. must realize that he is seriously at risk when he fails
to comply with a court order. Bearing in mind the particular
circumstances herein I recon it will suffice to caution him in future
to comply with court orders. He needs to realize that on
failure to
comply another court in future will take cognisance of this court’s
reprimand.
[9]
I am accordingly satisfied that Mr O. is guilty of contempt of
the court order dated 28 July 2016.
[10]
The notice of motion sought an order convicting Mr O. of
contempt of the court order dated 23 April 2015 as well. As
nuntius
Ms O. reported this alleged transgression more than a year
after the order was issued. Mr O. has defaulted
on that order
according to her as far back as April 2016. That order has been
rescinded on 28 July 2016 and at the time hereof
does not exist. I do
not intend to investigate and/or convict Mr O. of an order
which does not exist anymore.
[11]
In the premises I make the following orders:
1.
The
respondent is convicted of contempt of the court order dated 28
July 2016.
2.
The
respondent is cautioned and discharged.
3.
The
respondent to pay the costs.
______________
C.
REINDERS, J
On
behalf of Applicant:
Adv. J. Olivier
Instructed by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of Respondent Adv. J.C. Coetzer
Instructed by:
Lovius
Block Attorneys
BLOEMFONTEIN