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[2016] ZAKZDHC 44
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Deenanath v Deenanath and Others (11852/2015) [2016] ZAKZDHC 44 (14 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
Case No.:
11852/2015
In the matter between:
HAYWANTHIE
DEENANATH
APPLICANT
and
RONNIE
DEENANATH
1ST RESPONDENT
GYANWATHIE
GUNGADEEN
2ND
RESPONDENT
SHORLEY
CHEDDY
3
RD
RESPONDENT
REGISTRAR OF DEEDS,
KZN
4TH
RESPONDENT
REGISTRAR OF CLOSE
CPRPORATIONS
5TH
RESPONDENT
RAM’S CHAIRS CC
6TH
RESPONDENT
SIYACOPHELELA
CC
7TH
RESPONDENT
JUDGMENT
CHETTY J:
[1]
This
is
an
application
in
which
the
estranged
spouse
of
the
first
respondent
[1]
has
brought
an
application
seeking his
committal
to
prison,
periodically,
on
the
grounds of
his contempt of an order requiring him to pay maintenance
pendent
lite
to
the
applicant
and
her minor
child
in
the
amount
of
R10
000
per
month.
This
order
was granted
by Balton J on 13 February 2013.
In terms of
a second order granted
on
9
May 2013
by Madondo
J (as he
then was),
the
respondent
is
alleged
to
be
in
contempt
as he
has failed
to
pay a
contribution
towards
the
applicant’s
costs in
the
amount of
R165 000.
Of that
amount, only R4000 has been paid leaving the balance
of R161 000
outstanding. In respect of the maintenance order granted on 13
February
2013, the amount outstanding as at November 2015 was R322 643.00. At
the time of
hearing this matter, counsel for the applicant informed me that the
arrears
in
respect of maintenance stood at R393 500,00. It is the alleged wilful
non-
compliance
with these orders that has given rise to this application.
[2] The gravamen of the
respondent’s opposition is that he is financially not in a
position to comply with either of the orders
and that his inability
to pay is neither wilful and or
mala fide
.
[3] The issue to be
determined is whether the respondent has placed sufficient evidence
before this court to discharge the evidential
burden in relation to
the wilfulness and
mala fides
of his conduct in failing to
satisfy the two orders granted by this court. The onus is on the
applicant to prove that the respondent
had knowledge of the orders
and that there has been non-compliance therewith. These aspects are
not in dispute inasmuch as the
respondent was represented by counsel
at the time when both orders were made. Subsequent thereto, the
respondent has been legally
represented throughout and has not raised
the service of the orders on him as a ground of opposition. As such,
the respondent bears
the evidential burden in relation to the issues
of wilfulness and
mala fides
.
[4] It is common cause
that the applicant instituted divorce proceedings against the
respondent in 2005 on the basis of his alleged
infidelity. The matter
was set down for trial in May 2013, at which time it ran for a period
of 10 days. Since then the parties
have attempted to settle the
matter but to no avail, with both parties claiming that the other has
been guilty of making unreasonable
demands, rendering the prospect of
settlement illusionary.
[5] It has regrettably
become all too common in divorce litigation that allegations are
traded back and forth between the parties,
with scant regard for the
obligation to comply with orders issued by the court. Legal
representatives of the parties appear to
do little to cause the
parties to act with restraint towards each other, with the result
that after significant passage of time,
the courts are called upon to
decide whether a party has acted in wilful defiance of its orders. In
the interim, the party who
has been reliant on relief secured, such
as interim maintenance, is greatly prejudiced. More importantly,
where awards are made
in respect of maintenance towards the upkeep
and well-being of a minor child born of the union, parties often lose
sight of the
purpose for which such orders are made. The rights of
the child become relegated to matters of secondary, or sometimes no
importance,
while the battle between the spouses takes centre stage.
In this particular matter, while the respondent has not complied with
the order in respect of maintenance towards the applicant and their
minor child, the affidavits allege that he has spent various
sums
towards his child, purchasing items of furniture for him, as well as
taking him on holidays. The applicant argues that such
expenditure
does not absolve the respondent of his responsibility to comply with
the orders of court, and furthermore it begs the
question as to how
he has managed to pay for such holidays or furniture, when he has in
essence pleaded financial inability to
comply with orders for
maintenance and costs.
[6] The defence raised by
the respondent will be dealt with in detail below, save that Mr
Fleming
, who appeared on behalf of the respondent, submitted
that the purpose of contempt proceedings in such cases is not to
secure the
committal of the errant party, but rather is a means to
secure his or her compliance with the order of court. In this regard
he
submitted that if the respondent is found to be in contempt and
sentenced to a period of imprisonment, such committal would offer
no
prospect of the respondent being able to pay off the amounts owed to
the applicant. On the other hand, if he were not sent to
prison,
there remains the possibility that the orders could be complied with.
Counsel relied on the decision in
Dezius v Dezius
2006 (6) SA
395
(T) where Patel J carried out an extensive overview of foreign
and local jurisprudence on the origins of contempt. In particular
the
court at para 5 noted the following:
‘
Lord Ormrod in
Ansah v Ansah
[1977] 2 All ER 638
(CA) aptly alluded that:
“
Such
a breach or breaches of an injunction in the circumstances of such a
case as this do not justify the making of a committal
order,
suspended or otherwise. Breach of such an order is, perhaps
unfortunately, called contempt of court, the conventional remedy
for
which is a summons for committal. But the real purpose of bringing
the matter back to the court, in most cases, is not so much
to punish
the disobedience, as to secure compliance with the order in the
future. It will often be wiser to bring the matter before
the court
again for further direction before applying for a committal order.
Committal orders are remedies of last resort; in family
cases they
should be the very last resort. They are likely to damage complainant
spouses almost as much as offending spouses. .
. .”.’
[7] The court in
Dezius
para 6 noted that an offender should not be deprived of his
liberty without procedural fairness and safeguards, and only after
conclusive
proof has been established of the disobedience of the
court order in question. It follows therefore that where the
deprivation
of liberty is the relief sought by the party seeking a
contempt order, the facts in the matter must be closely scrutinised.
It
bears noting that the converse of this argument, and one relied on
by Mr
Haasbroek
, who appeared for the applicant, was that
echoed by Mokgoro J in
Bannatyne
v
Bannatyne
(Commission
for
Gender
Equality,
as
Amicus
Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) who stated at para 27 that:
'Systemic failures to
enforce maintenance orders have a negative impact on the rule of law.
The courts are there to ensure that
the rights of all are protected.
The Judiciary must endeavour to secure for vulnerable children and
disempowered women their small
but life-sustaining legal
entitlements. If court orders are habitually evaded and defied with
relative impunity, the justice system
is discredited and the
constitutional promise of human dignity and equality is seriously
compromised for those most dependent on
the law.'
[8] By way of background,
it is important to note that prior to the two orders in respect of
which the respondent is alleged to
be in contempt of, the applicant
brought two applications in terms of Rule 43, on 26 August 2005 and
15 November 2010 respectively.
In respect of the first mentioned
order, Hugo J ordered the respondent to pay the applicant maintenance
in respect of herself in
the amount of R 3 500 per month, as well as
maintenance for the minor child in the amount of R1 000 per
month, and a contribution
towards her legal costs in the amount of R7
500. In respect of the second order, Jappie J (as he then was)
granted an order directing
the respondent to pay maintenance to the
applicant for herself and the minor child
pendent
lite
in the amount of R7 500 per month as from 7 December 2010. In
addition, the court ordered the respondent to pay a contribution
towards
the applicant’s costs in the amount of R7 500.
[9] In terms of the
schedule of maintenance payments made and those owing, which was
attached to the applicant’s founding
papers, it appears that
the respondent made payment between June 2013 and November 2013 in
respect of his maintenance obligations,
in the total amount of R16
500. For the same period, he paid a total of only R4 000 in respect
of his contribution towards the
applicant’s legal costs.
[10] In light of the
applicant’s legal costs beginning to escalate as a result of
the protracted divorce proceedings, she
brought two further
applications in terms of Rule
43 and was granted the
orders which form the subject matter of this contempt application.
Both parties in their respective affidavits
have alleged that the
other’s legal costs have escalated to enormous proportions.
According to the applicant, even at the
time when the orders in
February 2013 and May 2013 were granted by Balton J and Madondo J,
the respondent on each occasion had
pleaded that he was financially
unable to comply at that stage. Despite this plea of ‘poverty’,
the court nonetheless
granted the orders.
[11] According to the
applicant, apart from the paltry payments made by the respondent, he
has resolutely failed to obey the orders
while at the same time
engaging in a lifestyle of holidays and a high-living, both of which
he denies. On the other hand, the applicant
states that she is
compelled to eke out an existence for herself and their minor son.
This, the respondent strenuously disputes.
[12] In substantiation of
her contention that the respondent has embarked on a stratagem to
prolong the divorce proceedings for
as long as possible in an attempt
to wear her down, the applicant points out that she has not had the
necessary injection of legal
funds to allow for her attorney to set
the matter down for continuation of the trial. It would appear that
both parties certainly
cannot restore the bonds of their marriage and
that their dispute relates primarily to the assets in the joint
estate. The applicant
however points out that the respondent is
clearly in a better financial position to set the matter down for
trial, but he has not
seen it fit to do so.
[13] As regards the
allegations of his lavish lifestyle, the applicant alleges that the
respondent has purchased a new vehicle for
his partner, Ms Cheddy
(the third respondent). In addition, the founding papers allege that
the respondent hosted a birthday party
for his minor son at his
house, indicative that he has sufficient funds to pay for a party but
no funds to comply with his obligation
to pay maintenance. The same
sentiments are expressed in relation to a lounge suite purchased by
the respondent for his son, as
well as having taken his son on
holiday to Johannesburg in 2014. The applicant further alleges that
the respondent and Ms Cheddy
embarked on a luxury holiday to the
Maldives in June 2014, a holiday to Cape Town in January 2015 and an
overseas trip with his
son to Disney World in October 2015.
[14] In respect of the
various holiday trips referred to above, the
respondent denies that such holidays
were paid by him
personally except those in relation to the expenses pertaining to his
son. The respondent concedes that
some
of these
expenses were paid using his credit card.
[15] The applicant
further contends that the respondent has carried out extensive
structural improvements to their matrimonial home,
which she
estimates to be in the region of R113 500. In response he denies the
estimates put up by the applicant, but concedes
having undertaken the
alterations. Despite a dispute as to how often the respondent
continues to live in the matrimonial home,
it was common cause that
until recently he slept over at the matrimonial house on possibly two
nights per week. Recently and
prior to the present
hearing, the respondent moved out from the matrimonial home due to
the illness of his mother,
and now lives with her. It is also not
disputed by the respondent that he operates his business from part of
the matrimonial home.
[16] In reply of these
allegations, the respondent contends that while he may not have
complied with the orders for maintenance
and costs, he has however
paid the water, lights and revenue bills in respect of the
matrimonial home, from which the applicant
and their minor child have
derived benefit. To that extent, he argues that his failure to pay is
not wilful or
mala fide
, and accordingly he cannot be found to
be contempt of court.
[17] The applicant
disputes that any payment of utility bills by the respondent can
constitute a defence to the contempt application.
It was contended
that he should be directed to serve a period of imprisonment in the
form of periodical imprisonment, as he can
well afford to pay the
amounts of maintenance and costs ordered by this court, but that he
steadfastly refuses to do so.
[18] When the matter came
before me on 23 September 2016 Mr
Flemming
moved an
application for the admission of a supplementary answering affidavit.
The application was issued on 15 September 2016,
and served on the
applicant’s attorney on the same date. This was two weeks
before the hearing on the opposed roll. Mr
Haasbroek
opposed the introduction of the answering affidavit, despite his
client having already prepared a reply thereto. To that end, he
conceded that even if I allowed the introduction of the affidavit,
the matter could still proceed without the need for it to be
adjourned. The fact that the applicant’s counsel was prepared
to proceed with the matter is only but one aspect of the enquiry
as
to whether I should, in the exercise of my discretion, permit the
introduction of an affidavit at this late stage. Of equal
importance
is the opportunity afforded to the court to have regard to the
contents of any replying affidavits from the applicant
and the time
to be accorded to the court for that purpose. While the applicant’s
counsel would not be at a disadvantage,
it is unfair to the presiding
judicial officer to be expected to adjudicate an opposed motion where
arguments would be advanced
on affidavits, which he or she has not
had the opportunity to properly consider in the fullness of time.
[19] On the face of it,
this matter was certified by the applicant’s attorney as being
ready for the allocation of a date
on the opposed roll as far back as
22 March 2016. It is an accepted practice that a court will exercise
its discretion in permitting
the filing of further affidavits against
the backdrop of the fundamental consideration that a matter should be
adjudicated upon
all the facts relevant to the issues in dispute.
See
Bader
&
another
v
Weston &
another
1967 (1) SA 134
(C) at 138D;
Dickinson v South African General Electric Co (Pty)
Ltd
1973 (2) SA 620
(A) at 628F;
Cohen,
NO
v
Nel
1975 (3) SA 963
(W) at 970B;
Dawood
v
Mahomed
1979 (2) SA 361
(D) at 365H. In
James
Brown
&
Hamer
(Pty)
Ltd
(previously
named
Gilbert
Hamer & Co Ltd) v Simmons, NO
1963
(4) SA 656
(A) the court noted that while the general rules regarding
the number of and proper sequence of affidavits should ordinarily be
observed, some flexibility must necessarily also be permitted. The
court went on to add at 660D-H that:
‘
It is in the
interests of the administration of justice that the wellknown and
well established general rules regarding the number
of sets and the
proper sequence of affidavits in motion proceedings should ordinarily
be observed. That is not to say that those
general rules must always
be rigidly applied: some flexibility, controlled by the presiding
Judge exercising his discretion in
relation to the facts of the case
before him, must necessarily also be permitted. Where, as in the
present case, an affidavit is
tendered in motion proceedings both
late and out of its ordinary sequence, the party tendering it is
seeking not a right, but an
indulgence from the Court: he must both
advance his explanation of why the affidavit is out of time and
satisfy the Court that,
although the affidavit is late, it should,
having regard to all the circumstances of the case, nevertheless be
received. Attempted
definition of the ambit of a discretion is
neither easy nor desirable. In any event, I do not find it necessary
to enter upon any
recital or evaluation of the various considerations
which have guided Provincial Courts in exercising a discretion to
admit or
reject a late tendered affidavit (see e.g. authorities
collated in
Zarug v Parvathie
1962 (3) SA 872
(N)). It is
sufficient for the purposes of this appeal to say that, on any
approach to the problem, the adequacy or otherwise of
the explanation
for the late tendering of the affidavit will always be an important
factor in the enquiry.’
See too
Porterstraat
69 Eiendomme (Pty) Ltd v P A Venter Worcester (Pty) Ltd
2000
(4) SA 598
(C) where the
court at 617B-E set out some of the factors to be considered in
deciding such an application. These include:
(a) the reason why
the evidence was not produced timeously;
(b) the degree of
materiality of the evidence;
(c) the possibility
that it may have been shaped to ‘relieve the pinch of the
shoe’;
(d) the balance of
prejudice to the applicant if the application is refused and the
prejudice to the respondent if it is granted;
and
(e) the stage which
the particular litigation has reached.
[20] In his affidavit
setting out the basis for the court to allow the admission of his
supplementary answering affidavit, the respondent
submits that the
information contained in the supplementary affidavit would be of
assistance to the court as it would show the
applicant to have been
dishonest in her founding affidavit, and in particular, that she is
involved in the running of a busy catering
enterprise, which facts
have thus far been hidden from the court. The respondent filed his
answering affidavit on 13 January 2016.
The information which he
seeks to place before this court refers to events on 5 February, 6
February and 8 February 2016. He also
alludes to certain email
messages exchange between the applicant and one Keshia Persathan in
August 2016, making reference to the
applicant having been engaged in
certain business activities. In addition, the respondent attaches
photographs of the motor vehicle
which the applicant uses, operating
under the name of Vernon’s Catering and Function Hire.
[21] The respondent
contends that the applicant will not suffer any prejudice by the
introduction of the evidence contained in his
supplementary answering
affidavit as all of this evidence is irrefutable. This was certainly
not the impression that I gained from
the response of the applicant’s
counsel. In any event, the applicant’s stance is that the
information which the respondent
seeks to place before this court at
this late stage is wholly irrelevant to the issue of whether the
respondent is in contempt.
See
South African National Roads Agency
v City of Cape Town
[2016] JOL 36668
(SCA) para 110.
[22] Having regard to the
factors which the court alluded to in
James
Brown
&
Hamer
supra, the respondent’s
affidavit is silent as to why he was unable to file this affidavit as
soon as he became aware of the
facts alluded to by him. There is no
explanation as to what factors account for the delay from February
2016 (when part of the
information which he seeks to place before the
court came to light) and thereafter from 8 August to 15 September
2016, assuming
that he brought these matters to the attention of his
attorney, in the full knowledge that this matter was set down for 23
September
2016. The respondent’s counsel was unable to provide
any response to this enquiry during the course of the hearing. One
would
have expected that the respondent or his attorney would have
acted with the necessary promptitude, particularly in light of the
applicant seeking the respondent’s committal to prison for
contempt. That apart, where the matter also concerns maintenance
of a
minor child, a greater sense of urgency should prevail.
[23] The matters alluded
to in the supplementary affidavit do not take the enquiry into the
respondent’s alleged contempt
any further. The respondent in
his answering affidavit filed in January 2016 clearly sets out that
he should not be held in contempt
because of his dire financial
circumstances. In particular, he states at paragraph 27 of his
answering affidavit that he is not
in a position to make any
contribution towards the orders made by this court :
“…
. The
applicant on the other hand does not even need any assistance given
her being flush with money. She pays cash to the sixth
respondent
(Ram’s Chairs cc) for all orders that she placed the sixth
respondent. She also uses Vernon’s Catering as
a front to
conduct our business. She was also operating a lucrative catering
business under the name of Las Vegas Lighting and
Decor, and on it
being brought to her legal representative’s attention that we
are fully aware of this lucrative business,
she ceased using the said
name when training.’
The supplementary
affidavit sought to be introduced therefore introduces nothing new to
the opposition by the respondent. Moreover,
no special circumstances
have been shown to exist justify the introduction of such affidavit.
[24] In light of the
above, I was satisfied that the respondent had not discharged the
onus of establishing that it would be in
the interests of justice for
the admission of a supplementary answering affidavit. Counsel for the
applicant asked that the application
for the introduction of the
supplementary answering affidavit be dismissed with costs, as the
applicant had been obliged to prepare
a replying affidavit in
response thereto, and at short notice. Mr
Flemming
on
the other hand submitted that if I was
inclined to disallow the application,
no
costs should be awarded. I am of the view that costs should
follow the result, and the application to introduce the supplementary
affidavit is accordingly dismissed with costs.
[25] I now proceed to
deal with the primary issue in this application, namely whether there
is sufficient evidence before me to
conclude that the respondent has
acted in wilful disregard for the orders of this court, and acted
mala fide
, justifying the conclusion that he has been in
contempt. The test in contempt proceedings has been definitively
dealt with by the
Supreme Court of Appeal in the decision of
Fakie
NO
v
CCII
Systems
(Pty)
Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) where
the court importantly noted that:
‘
[8] In the hands
of a private party, the application for committal for contempt is a
peculiar amalgam, for it is a civil proceeding
that invokes a
criminal sanction or its threat. And while the litigant seeking
enforcement has a manifest private interest in securing
compliance,
the court grants enforcement also because of the broader public
interest in obedience to its orders, since disregard
sullies the
authority of the courts and detracts from the rule of law.
[9] The test for when
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, since the
non-complier may genuinely, albeit mistakenly, believe him or herself
entitled
to act in the way claimed to constitute the contempt. In
such a case, good faith avoids the infraction. Even a refusal to
comply
that is objectively unreasonable may be
bona
fide
(though unreasonableness could evidence lack of good faith).’
(Footnotes omitted.)
[26] This test received
the attention of the Constitutional Court in
Pheko & others v
Ekurhuleni City
2015 (5) SA 600
(CC) where Nkabinde J said
the following:
‘
[28] Contempt of
court is understood as the commission of any act or statement that
displays disrespect for the authority of the
court or its officers
acting in an official capacity. This includes acts of contumacy in
both senses: wilful disobedience and resistance
to lawful court
orders. This case deals with the latter, a failure or refusal to
comply with an order of court. Wilful disobedience
of an order made
in civil proceedings is both contemptuous and a criminal offence. The
object of contempt proceedings is to impose
a penalty that will
vindicate the court's honour, consequent upon the disregard of its
previous order, as well as to compel performance
in accordance with
the previous order.’ (Footnotes omitted.)
[27] The applicant must
prove beyond reasonable doubt that the respondent has not merely
disregarded the court order, but has deliberately
and intentionally
violated the “
court’s
dignity,
repute
or
authority
”. In her founding
affidavit the applicant has detailed the various expenses which the
respondent has incurred, which she
refers to as his “lavish
spending”, which she contends has taken precedence over his
compliance with the orders of
this court. She further submits that
she has been unable to bring finality to the issue of her pending
divorce because she has
not had the financial means to place her
attorneys in funds. Her application to the Legal Aid Board for
financial assistance was
declined by virtue of her share of the
assets forming part of the joint estate. As a result of the
respondent’s non-compliance
she has also fallen into arrears
with her credit card payments to Nedbank, who instituted proceedings
against her. These have been
stayed, pending the finalisation of this
application. She adduced further evidence of being in arrears with
her payments of an
account with a clothing store, where she purchased
clothing for her son, daughter and herself. In short, she is
unemployed and
has no funds or savings to sustain either herself or
her child.
[28] While the applicant
contends that the respondent has a 30% member’s
interest in the sixth respondent, Ram’s
Chairs, the respondent
consistently in his answering affidavit adopts the position that he
is merely employed by Ram’s Chairs
as a Manager and has nothing
to do with the matters of Ram’s Chairs for almost two years. He
contends that he earns a salary,
but has not taken the court into his
confidence by producing a salary advice slip from which it can be
ascertained the extent of
his earnings as opposed to his expenses.
For purposes of this application, the court will accept his
contention that he is simply
an employee.
[29] The respondent also
contends that Ram’s Chairs is under business rescue
proceedings. He repeatedly makes reference to
this fact and contends
that in light thereof he is “
presently
still
not
in
a
financial
position
to
pay
the
absurd
amounts
demanded by the
applicant
.” He does not say when he will be in a position
to satisfy his maintenance obligations and pay the applicant’s
costs.
He takes the view that the financial imposition placed on him
is a demand imposed by the
applicant
. He, or those
representing him, appear not to be fully cognisant that the contempt
proceedings arise not from
the respondent’s
non-compliance with a demand imposed by the applicant, but rather
from his non-compliance with
two orders of this court. In so far as
the reliance on the business rescue proceedings, the respondent has
not put up any documentation
to indicate at whose instance the
business rescue proceedings was initiated, what circumstances led to
the business rescue application,
the identity of the business rescue
practitioner, and what plan has been put in place to steer Ram’s
Chairs out of its financial
predicament. After all, on his version,
he is simply an employee.
[30] In dealing with this
attack the respondent contends that all of this information could
have been obtained by the applicant
from attorneys Schoerie &
Sewgoolam, who he says are the business rescue practitioners. I doubt
that the attorneys have taken
on the mantle of being business rescue
practitioners, although they may have been responsible for the
application placing Ram’s
Chairs into business rescue.
Notwithstanding, it is no answer from the respondent, faced with a
prospect of imprisonment owing
to his contempt, to say that the
financial information pertaining to the business rescue proceedings
could be subpoenaed by the
applicant from the attorneys dealing with
the matter. He adopts a high-handed approach on the basis of him
being supposedly financially
impecunious. He simply has not put up
any information from which his
bona
fides
can
be gauged. One would have expected him to have stated that since the
business rescue of the business, there has been a turn-around
in the
number of its clients and in respect of orders or bookings. As a
manager, he would be able to comment on these matters.
His affidavit
is silent in this regard. Moreover, I fail to see (on the basis of
what is set out in his affidavit) how the business
rescue proceedings
have adversely affected his earnings as an employee. He has not made
mention of a cut in his salary or of him
having to work short time.
To this end, it is reasonable to infer that the business rescue
proceedings have had no negative impact
on his earning ability. In
addition, as an employee, he would have had to receive notification
or a copy of the application papers
before the business rescue order
was granted. He would therefore have seen a copy of the court
application or as a manager, would
presumably know when this matter
would next be in court. His suggestion that information in this
regard should be obtained by the
applicant via the attorneys is
unhelpful and does his case no good.
[31] The contention of
the respondent is that he does not have the means to comply with the
maintenance and costs orders. He goes
further in his answering
affidavit to state that he is not in a position to make ‘
any
contribution’
towards liquidating his
indebtedness in terms of the orders. This suggests that he is in no
position now, or at any time in the
future, to comply with any order
of this court in so far as it relates to money orders against him.
This raises the question as
to why the respondent has not sought, to
date, to bring an application for the variation of the orders in
terms of rule 43(6).
The respondent contends that he has not been
able to do so because he cannot afford to do so. Again, he bears the
onus of placing
information before the court from which his financial
predicament can be interrogated and assessed. He has chosen not to
place
such information before the court, and as such, has not
discharged this onus.
[32] Mr
Flemming
conceded that in the absence of a variation of the
orders granted by Balton J and Madondo J, the respondent is
obliged to comply therewith, even if he may hold the view that the
applicant is not entitled to it. See
Culverwell v
Beira
1992 (4) SA 490
(W) at 494A where it was held that all orders of
court, ‘whether correctly or incorrectly granted, have to be
obeyed until
they are properly set aside’. This principle was
endorsed in
Clipsal Australia (Pty) Ltd & others v GAP
Distributors & others
2010 (2) SA 289
(SCA) para 22.
[33] The respondent
denies the contention that he leads a lavish lifestyle, yet is unable
to honour his commitments in terms of
the orders of court. In
response to the allegation that he has treated his current partner,
the third respondent, to the indulgences
of an outing at a spa yet
pleads poverty in relation to the compliance with the orders, the
respondent states that the trip to
the spa, at a cost of R800, was
paid for by the third respondent. He further denies that he purchased
her a new motor vehicle.
This vehicle, a picture of which appears in
the applicant’s founding papers, with the third respondent
standing at its side,
according to him, belongs to her. In relation
to the allegation that he was responsible for throwing an elaborate
birthday party
for their son in May 2014, he denies that the function
was extravagant in anyway.
[34] Similarly, in
response to the allegation that the he paid an amount of R47 712
towards the cost of his daughter’s wedding
expenses, the
respondent admits to having done so, but states that he borrowed the
money and points out that it was a fraction
of the amount that was
paid by the applicant towards the wedding. Counsel for the applicant
was quick to point out that the applicant’s
contribution
towards her daughter’s wedding is immaterial in the context of
this application, in as much as it is the respondent
who is alleged
to be in contempt and it is he who has pleaded financial inability to
comply.
[35] It was further
submitted that the respondent’s plea of poverty cannot be
bona
fide
as he has the means of borrowing money in order to
satisfy certain obligations, but is unable to adopt the same approach
in order
to comply with the obligation to pay his maintenance.
Similarly, in response to the allegation of him having purchased a
lounge
suite for his son for his birthday, the respondent denies this
and attributes the lounge suite as a gift from his mother.
[36] The applicant
further alleges that in June 2014 the respondent and third
respondents embarked on a lavish holiday in the Maldives,
which the
applicant believes was paid for by the respondent. The latter denies
the allegation, contending that the trip was paid
for by the third
respondent. Similarly, in relation to a holiday to Cape Town in
January 2015, the respondent admits having gone
on the holiday but
contends that this was paid for by friends. Yet again, in October
2015 the respondent took his son on a trip
to Disney World in Florida
and contends that this was funded from his son’s savings and
the use of a credit card. Despite
his contention that the trip did
not cost more than R60 000, the respondent fails to explain to the
court what part of the expenses
in respect of the overseas trip were
paid for by him, and what part were paid from his son’s
savings. The fact that he may
have stayed in fairly modest
accommodation is immaterial. The point stressed by Mr
Haasbroek
is that the respondent has the means to access financial
assistance for the purpose of holidays or to contribute towards his
daughter’s
wedding (as laudable as this may appear), yet he is
unable to access these resources to comply with his obligations of
paying maintenance
and costs.
[37] In respect of the
allegation that he spent over R113 000 on alterations and
improvements to the matrimonial home, the respondent
challenges the
correctness of the amounts, but does not deny that the alterations
were carried out. He contends that much of the
improvements were
carried out by himself and his son, and that the material was paid
for using his credit card, for which he is
billed on a monthly basis.
The applicant contends that these alterations were undertaken because
the respondent carries out his
business operations from the
matrimonial home, and because he harbours plans to eventually buy-out
her half share of the property.
[38] Even in the face of
a denial of these allegations by the respondent, the point remains
that he has seen it fit to carry out
alterations to the property yet
is unable to find the financial means to comply with the orders of
court. Importantly, he does
not take the court into his confidence to
state exactly how much he spent on the alterations, and how precisely
these expenses
were funded. The same applies to his installation of
new carpets in part of the house. The difference in price between
what the
applicant contends the carpets cost as opposed to the
version of the respondent, is immaterial. The fact of the matter is
that
he is able to afford incidental expenses such as paying
approximately R5 000 for carpeting, yet is unable to find the
financial
means to comply with the court orders.
[39] During the course of
the hearing, Mr
Flemming
placed much emphasis on the fact that
the respondent purchased groceries and paid for the utilities on a
monthly basis at the matrimonial
home. Such payments were not part of
the respondent’s maintenance obligations, but nonetheless were
of beneficial value to
the applicant and the minor child. Counsel
relied heavily on para 9 of the dictum in
Fakie,
which I have
referred to earlier
,
and submitted that the amounts paid for
by the respondent occurred in circumstances where he was under no
legal obligation to do
so, and which ensured that his wife and child
would not be destitute and without water and electricity. Counsel for
the applicant
dismissed this explanation contending that the only
reason for him paying for the utilities is because his business
operates from
part of the marital home. In the event that the
electricity to the house is cut off, this would directly impinge on
his ability
to run his business. It was therefore submitted that his
payment of the utilities should not be seen as an act of benevolence
towards
the applicant and his minor child but rather for the
self-centred purpose of ensuring the continued operation of his
business.
[41] The respondent takes
refuge behind para 9 of
Fakie
for the contention that
even though he may not have complied with the court orders, his
conduct, as evidenced by the payment of
the utilities, does not
constitute evidence beyond reasonable doubt of a deliberate and
intentional violation of the “
court’s
dignity,
repute
or
authority
”. I
am not convinced by the soundness of the respondent’s
argument. On the contrary, he has chosen to be somewhat
economical
with regard to placing necessary and sufficient facts before the
court with regard to his financial circumstances. While
he contends
that the business of Ram’s Chairs has deteriorated, he fails to
provide specifics of the extent of the slump
in its business or
whether the business rescue proceedings have yielded any positive
outcome. The fact that he may have unsuccessfully
approached the
banks for finance or a loan does not remedy his non-compliance. The
respondent adopts a confrontational attitude
towards the compliance
of the court orders, which appears from his answering affidavit where
he says the following at paragraph
30.2:
‘
... This is
aggravated by these intermittent applications launched by the
applicant at her own whims and fancies.
The
more
the
court
orders
me
to
pay,
the less opportunity I will have to comply therewith
.’
[42] While he complains
of his inability to make payment as taking an emotional and
psychological strain on him, he continues to
enjoy spa treatments,
holidays both locally and overseas, while his maintenance and costs
obligations remained unfulfilled.
[43] Having regard to the
facts placed before me, I am satisfied that the applicant has
succeeded in proving beyond reasonable doubt
that the respondent’s
conduct in failing to comply with the orders of this court are both
wilful and
mala fide
. I accordingly conclude that the
applicant has satisfied the test for this court to find the
respondent to be in contempt.
[44] In so far as the
relief which the applicant seeks, being that of the imprisonment of
the respondent, periodically for a period
of 30 days, to be served
from 17h00 on a Friday until 07h00 on a Monday, Mr
Flemming
submitted that such imprisonment would serve no purpose unless it
can bring about a change in the respondent’s financial
circumstances
or payment of the amounts which he owes in respect of
the two court orders. The constitutional court in
Pheko
para
30 stated
‘
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.’
[45] Counsel for the
applicant however submitted that committal of the respondent to
imprisonment is justified in the circumstances
of this matter where
the respondent has simply been contemptuous in his approach to the
orders of this court. As set out earlier,
his payments towards
compliance with the court orders is anything but reflective of
someone who shows respect for honouring his
obligations towards his
child and spouse, despite the fact that they are in the process of a
protracted divorce. It has been held
that although money judgments
cannot ordinarily be enforced by contempt proceedings, 'it is well
established that maintenance orders
are in a special category in
which such relief is competent': See
Bannatyne
supra
para 18.
[46] Counsel for the
respondent further urged me to take into account that the
respondent’s business is probably at its busiest
during the
periods for which the applicant seeks that he be periodically
imprisoned. On the other hand, on the respondent’s
own version,
he talks of a slump in the business of Ram’s Chairs and on the
facts before me, there is nothing to indicate
what precisely are the
first respondent’s duties with Ram’s Chairs, whether he
works alone or in conjunction with others,
and whether he attends to
clients at night or over weekends. Again, this court is faced with a
paucity of information from the
respondent, whose version is that he
is simply an employee of Ram’s Chairs. Moreover, to the extent
that the spectre of committal
to prison would bring about a payment
of the outstanding amounts in respect of maintenance and the
contribution towards costs,
Mr
Fleming
submitted that
it would be impossible for the respondent to raise such amounts
within a relatively short period of time. In this
regard it was
submitted that the court should afford the respondent a reasonable
opportunity to do so, even if I were inclined
to commit him to jail.
[47] In the result, the
order I make below is intended not only to secure the rights of the
minor child but also the dignity of
the applicant who has been
without any form of maintenance payment since December 2013. In the
five months prior thereto, the contributions
made by the respondent
had been less than half of the amount ordered by the court. At the
same time, the order below affords the
respondent an opportunity to
avoid imprisonment. It is therefore reflective of the balancing of
the competing interests of all
parties, and which is just and
equitable in the circumstances. In relation to costs, this should
follow the result. I agree that
the first respondent’s conduct
justifies the sanction of costs on an attorney client scale as a mark
of this court’s
displeasure in his contempt at it orders.
[48] I make the following
order:
a. The first respondent
is guilty of contempt of the court orders dated 13 February 2013 and
9 May 2013 under case number 4723/2005.
b. The Sheriff in whose
area of jurisdiction the first respondent may be found be and is
hereby directed to take the first respondent
into custody and commit
him to periodical imprisonment, for a period of 30 days, such
imprisonment to be served from 17h00 on every
Friday until 07h00 on
Monday thereafter.
c. That the order
contemplated in paragraph (b) above be and is hereby suspended on
condition that the first respondent pays the
amount of
R393 500,00 in respect of the order dated 13 February 2013
and R161 000,00 in respect of
the outstanding contribution
towards cost granted on 9 May 2013, together with interest at 15.5%
as from the date when such amounts
became due, such payments to be
made within
30
(thirty)
days of the granting of
this order into the trust account of the applicant’s attorneys
Pravda & Knowles, standard bank
– ABC branch, Durban
Account number 050411071, branch code - 0401 2600.
d. In the event of the
first respondent effecting payment as set out in paragraph (c) then
the first respondent is cautioned and
discharged.
e. The first respondent
is directed to pay the costs of this application on an attorney and
client scale, with the cost of the applicant’s
opposition to
the first respondent’s application for the admission of a
supplementary answering affidavit to be paid on a
party and party
basis.
__________
CHETTY J
Appearances:
For the Applicant:
Adv
P Haasbroek
Instructed by :
Pravda
& Knowles Attorneys
320 Anton Lembede
Ref:
MP/Kp/01-D389-001-2014
Ph : 031 307 3982
For the Respondent :
Adv AG Flemming
Instructed by :
Siva
Chetty & Company
c\o Naidoo Maharaj
Incorporated
Morningside
Ref: Mr S N
Chetty/Chendre/G1868
Ph: 033 342 9636
Date of Hearing :
23
September 2016
Date of Judgment :
14
November 2016
[1]
Only the first respondent has opposed the application. He is
referred to in the remainder of the judgment as the respondent.