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[2016] ZAKZDHC 53
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H.D v R.D and Others (11852/2015) [2016] ZAKZDHC 53 (14 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No.: 11852/2015
In
the matter between:
H.
D.
APPLICANT
and
R.
D.
1
ST
RESPONDENT
G.
G.
2
ND
RESPONDENT
S.
C.
3
RD
RESPONDENT
REGISTRAR
OF DEEDS,
KZN
4
TH
RESPONDENT
REGISTRAR
OF CLOSE CPRPORATIONS
5
TH
RESPONDENT
RAM’S
CHAIRS
CC
6
TH
RESPONDENT
SUYACOPHELELA
CC
7
TH
RESPONDENT
J
U D G M E N T
CHETTY
J :
1.
This
is an application in which the applicant, the estranged spouse of the
first respondent, has brought an application seeking
the first
respondent’s committal to prison, periodically, on the grounds
of his contempt of an order requiring him to pay
maintenance to the
applicant and her minor child of R10, 000 per month, pendent lite.
This order was granted by Madam Justice
Balton on 13 February 2013.
In terms of the second order in respect of which the applicant
alleges the first respondent is
in contempt, is that granted on 9 May
2013 by Mr Justice Madondo which directed him to pay a contribution
to the applicant’s
costs in the matter in the amount of
R165,000.00. It is not in dispute that in respect of the maintenance
order granted on 13 February
2013, the first respondent is in arrears
in the amount of R 393,500.00. Of the amount related to the payment
of the applicant’s
legal costs, it would appear that only R4000
has been paid to the liquidation of that order since May 2013.
2.
The
gravamen of the first respondent’s opposition to the
application to declare him contempt is that he is financially not
in
a position to comply with either of the orders and that he is in
ability to pay the contribution towards costs and maintenance
orders
are not wilful and or mala fide.
3.
The
issue to be determined by this court is whether the respondent has
placed sufficient evidence before this court to discharge
the
evidential burden on him in relation to the wilfulness and mala fides
in his conduct of failing to satisfy the two orders granted
by this
court. The onus is on the applicant to prove that the first
respondent has had knowledge of the orders and that there has
been
non-compliance therewith. These aspects are not in dispute in this
application inasmuch as the first respondent was legally
represented
by counsel at the time when both orders, which are the subject of
this contempt application, were argued before this
court. Subsequent
thereto the first 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 is the evidential burden in
relation to the issues of wilfulness and mala
fides.
4.
It
is common cause or not in dispute that the applicant instituted
divorce proceedings against the first respondent in 2005 on the
basis
of he is alleged infidelity. The matter was set on for trial in May
2013 at which time it ran for a pleaded of 10 days. Since
then the
parties have attempted to settle the matter but to no avail, with
both parties claiming that the other had 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 spouses with
scant
regard for the obligation to orders issued by the courts. The
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 time passes before the courts
are called upon
to decide whether a party has acted in wilful defiance of its orders.
In the interim, the spouse who has been dependent
on the interim
maintenance orders and his or her child, have been prejudiced.
More importantly, where awards are made in
respect of maintenance
towards the upkeep and well-being of a minor child born of the
marriage, parties often lose sight of the
purpose for which such
orders have been made. The rights of the child become relegated to
matters of secondary or no importance
wild’s the battle between
the spouses takes centre stage. In this particular matter, whilst the
first respondent has not
complied with the order in respect of
maintenance towards the applicant and their minor child, the
affidavits reveal that he has
expended various sums towards his
child, purchasing items of furniture for him as well as taking him on
holidays. As the applicant
argues, this does not absolve the first
respondent of his responsibility to comply with the orders of this
court, and furthermore
begs the question as to how he has managed to
pay for such holidays, when he has in essence pleaded financial
inability to comply
with the orders of court.
6.
The
defence raised by the first respondent will be dealt with in more
detail below, save that Mr Fleming, who appeared on behalf
of the
first respondent, submitted that the purpose of contempt proceedings
in such cases it is not to secure the committal to
prison of the
errant party but rather as a means to secure his or her compliance
with the order of court. In this regard his submission
was that if
the first respondent is found to be in contempt and sentence to a
period of imprisonment, such committal would offer
no prospect of the
first 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. Mr Fleming
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 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
noted that an offender should not be deprived of his liberty without
procedural fairness and safeguards, and only after conclusive
proof
has been established disobedience of the court order in question. It
follows therefore that where the deprivation of liberty
is the belief
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)
2003
(2) SA 363 (CC)
[2002] ZACC 31
;
(2003
(2) BCLR 111)
11
noting
the following :
'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 it is contended that the first respondent
is in contempt of, the applicant brought to applications in terms of
rule 43, being 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 3500 per month, as well as maintenance for the minor
child at the rate of R 1000 per month, and a contribution
towards the
applicant’s legal costs in the amount of R 7500. 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 R7500, a 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 R7500.
9.
In
terms of the schedule of maintenance payments made and those owing,
which is attached to the applicant’s founding papers,
it
appears that the first respondent made payment between June 2013 and
November 2013 in respect of the maintenance obligations,
in the total
amount of R16 500. For the same period, the first respondent
paid a total of R4000 in respect of his contribution
towards the
applicants legal costs, being the total of R 165 000.
10.
In
light of the applicants legal costs begin to escalate as a result of
the protracted divorce proceedings, she wrote to further
applications
in terms of rule 43 and was granted the orders which form the subject
matter of the 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 with the orders
granted at that stage. Despite this plea
of ‘poverty’,
the court granted the orders in respect of which it is alleged that
the applicant is in contempt.
11.
According
to the applicant apart from the paltry payments made by the first
respondent as set out above, the first respondent has
resolutely
failed to obey the orders of this court and whilst she alleges that
he has continued to embark on a lifestyle of holidays
and a high
standard of living, both of which are denied by the first respondent,
the applicant is compelled to eke out an existence
for herself and
her minor son.
12.
In
substantiation of her contention that the first respondent has
embarked on a stratagem to prolong the divorce be 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 representatives to set the matter down continuation of
the trial. It would appear that both parties
certainly cannot restore
they manage, and that there dispute with each other would relate
primarily to the assets in the joint
estate. The applicant however
points out that the first respondent is clearly in a better financial
position to set the matter
down for trial, but he has not seen it had
to do so.
13.
As
regards the allegations of his lavish lifestyle, the applicant
alleges that the first respondent is purchased a new vehicle for
his
current partner, the third respondent. In addition the founding
papers contain averments of the first respondent having hosted
a
birthday party for his minor son at his house, indicative that he has
sufficient funds to pay for a party but not to comply with
his
obligation to pay maintenance. The same sentiments are express in
relation to a near the lounge suite purchased by the first
respondent
for his son, as well as having taken the matter for a holiday to
Johannesburg in 2014. The applicant further alleges
that the first
and third respondents embarked on a luxury holiday to the Maldives in
June 2014 as well as a holiday to Cape Town
in January 2015 and an
overseas trip with he is son to Disney World in October 2015.
14.
In
respect of the various holiday trips referred to above, the first
respondent denies that such holidays were paid by him personally
except that in relation to the expenses pertaining to his son, the
first respondent concedes that some of these expenses were paid
using
his credit card.
15.
The
applicant further alleges that the first respondent has carried out
extensive structural improvements to their matrimonial home,
which
she estimates to be in the region of R 350,000. In response the first
respondent denies the estimates averred by the applicant,
but
concedes having undertaking various alterations to the home of the
parties. Despite a dispute as to how often the first respondent
continues to live in the matrimonial home, it was common cause that
on till recently the stepped over at the matrimonial house
on
possibly two nights per week. Recently prior to the present hearing,
the first 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 first respondent that he operates his
business from
part of the matrimonial home.
16.
In
reply the first respondent concedes that he occupies part of the
matrimonial home, from which he operates his business. He further
contends that while he may not have complied orders in respect of
payment for maintenance and contribution towards costs, he has
however paid the water lights and revenue goals in respect of the
matrimonial home, from which the applicant and her minor child
have
divide benefit. To that extent the first respondent has argued that
he is failure to pay the amounts as per the two contested
orders of
this court, is not awful or mala fide, , and accordingly that he
cannot be found to be contempt of court on that basis.
17.
In
light of the first respondent’s failure to pay maintenance
pendent
lite
and towards the contribution of her legal costs, the applicant
submits that the first respondent should be found in contempt and
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 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 matter on the opposed roll.
Counsel for the applicant opposed the introduction
of the answering
affidavit despite the applicant having already prepared a reply
thereto. To that end, Mr Haasbroek for the
applicant conceded
that even if I allowed the introduction of the affidavit, the
applicant would not be prejudiced in that the
matter could still
proceed without the need for the matter to be adjourned. The
fact that the applicant’s counsel were
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 important is the
opportunity afforded to the Court to
have regarding to the contents
of any replying affidavits from the applicant and the time to be
accorded for that purpose.
While the applicant’s counsel
would not be at a disadvantage, it is unfair to the Court to be
expected to adjudicate an opposed
motion where arguments would be
advanced on affidavits to which the Court has not had the opportunity
to properly consider.
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
v Weston
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 sets
and proper sequence of affidavits should ordinarily be
observed, some
flexibility must necessarily also be permitted. The Court went
on at 660E to add that :
“
It
is in the interests of the administration of justice that the
well-known 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
Nick’s
Fishmonger Holdings (Pty) Ltd v Fish Diner In Bryanston CC
2009
(5) SA 629
(W)
at
641G–642 where the court set out some of the factors to be
considered in deciding such an application :
(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.
(e)
The
stage which the particular litigation has reached.
20.
In
his affidavit in which he sets out the basis for the court to allow
the admission of his supplementary answering affidavit, the
first
respondent submits that the information contained in the
supplementary answering 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 been hidden from the
court. The first respondent filed here’s
answering affidavit in
this matter on 13 January 2016. The information which he seeks to
place before this court refers to events
on five February, six
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 first respondent
attaches copies of the motor vehicle which the applicant uses,
operating under the name of Vernon’s
Catering and Function
hire.
21.
The
first respondent contends that the applicant will not suffer any
prejudice by the introduction of the evidence contained in
his
supplementary affidavit as all of this evidence is irrefutable. This
was certainly not the impression that I gained from the
response of
the applicants counsel. In any event, the applicant’s stance is
that the information which the first respondent
seeks to place before
this court at this late stage is wholly irrelevant to the issue of
whether the applicant is in contempt of
the orders granted requiring
him to pay maintenance for the applicant and the minor child, as well
as a contribution towards costs.
Having regard to the factors which
the court alluded to
James
Brown & Hamer
(supra
)
which the court must have regard to determine whether, in the
exercise of its discretion, to admit the introduction of a
supplementary
affidavit, the first 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 certainly no
explanation as to what factors explain the delay 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 on the opposed roll much earlier in the year, to be heard on
23 September 2016. The first respondent’s counsel
was unable to
provide any response to this enquiry during the course of the
hearing. In any event, the matter is alluded to in
the supplementary
affidavit do not take the enquiry of the court into the first
respondent’s alleged contempt any further.
The first respondent
in his answering affidavit filed in January 2016 clearly sets out
that he should not be held in contempt as
he is unable to comply with
the orders of this court 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, and
that the applicant on the other hand
does not need any assistance
“
Given
her being flush with money. She pays cash to the sixth respondent
(Ram’s Chairs cc) four 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 first respondent to
the contempt
of Court application. In addition, no special circumstances have been
shown to exist justify the introduction of such
affidavit.
22.
In
light of the above I was satisfied that the first respondent had not
discharged the onus 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, in as much as it had been obliged
to prepare a
replying affidavit in response thereto, and at short notice. Mr
Fleming 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.
23.
I
now proceed to deal with the primary issue in this application,
namely whether there is sufficient evidence before me to conclude
that the first 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
where the Court important 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.”
The
test for contempt received the attention of the Constitutional Court
in
Pheko
& others v Ekurhuleni City
[1]
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
24.
The
test for contempt was set out by the Court in
Fakie
as the following :
[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)”
25.
The
applicant must prove beyond reasonable doubt that the first
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 first
respondent has incurred, which she refers to as his “lavish
spending”, which she contends has taken precedence over his
compliance with the order is to pay maintenance and the contribution
towards her costs. 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 assets forming part of the joint
estate. As a result of the first respondent not complying
with court
orders she is also fallen in arrears with her credit card payments to
Nedbank, who instituted proceedings against. 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 is purchased clothing for her son, daughter
and herself. In short, the applicant
states that she is unemployed
and has no funds or savings to sustain either herself or her child.
26.
While
the applicant contends that the first respondent has a 30% member’s
interest in the sixth respondent, Ram’s Chairs,
the first
respondent consistently in here’s 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 the sixth
respondent for almost 2 years. He contends that he earns
a salary but
has not taken the court into his confidence by producing a salary
advice on from which it can be ascertained the extent
of his earnings
as opposed to his expenses, and he is primary obligation of paying
maintenance and the contribution towards the
applicant’s legal
costs. The first respondent further contends that the sixth
respondent 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
.”
27.
Firstly,
the first respondent does not say when he will be in a position to
satisfy his maintenance obligations as well as that
arising from his
obligation to contribute towards the applicants costs. The first
respondent further appears to adopt the view
that the financial
imposition placed on him is a demand of the applicant. He, or those
representing him, appear not to be fully
cognisant that the contempt
proceedings arise not from the first respondent’s
non-compliance with a demand of the applicant
but rather from his
wilful and delivered non-compliance with two orders of this court. In
so far as the reliance on the business
rescue proceedings, the first
respondent has not put up any documentation to indicate at whose
instance the business rescue proceedings
were initiated, when, what
circumstances led to the business falling on hard time , 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.
28.
In
dealing with this attack the first respondent contends that all of
this information could have been obtained by the applicant
from
attorneys Schoerie & Sewgoolam, who he says are business rescue
practitioners. I doubt that the attorneys have taken on
the mantle of
being business rescue practitioners and that more accurately, they
may have been the attorneys responsible for the
application placing
the sixth respondent into business rescue. Notwithstanding, it is no
answer from the first respondent, faced
with a prospect of
imprisonment owing to his contempt of court, 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
to 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 its clients and in
respect of orders or bookings. 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
salary 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 a copy of the application papers before the business
rescue order was
granted. He would therefore have been in
possession of a copy of the court application or at the very least,
have seen a
copy thereof. His suggestion that information in
this regard should be obtained by the applicant via the attorneys is
somewhat
arrogant.
29.
The
contention of the first respondent is that he does not have the means
to comply with the maintenance and cots orders of this
Court. 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 the orders of this court. This raises the
question as to why the first respondent has not sought,
to date, to
bring an application for the variation of the orders in terms of rule
43(6). The first respondent contends that
he has not been able
to bring a variation application because he has not had the financial
means 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.
30.
Mr
Fleming conceded that in the absence of a variation of the orders
granted by Balton J and Madondo J, the first respondent is
obliged to
comply therewith, even if he may hold the view that the applicant is
not entitled to the maintenance and contribution
towards costs.
See
Culverwell
v Beira
1992
(4) SA 490
(W) at 494A – C 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 and Others v GAP Distributors and Others
2010 (2) SA 289
(SCA) para 22 at 298 – 299.
31.
The
first respondent denies the applicants contentions 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 of court, the third respondent
states that
the trip to the spa cost R800, which was paid for by the third
respondent. He further denies the allegation that he
purchased the
first respondent 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
the third respondent. In relation to the applicant’s
allegation
that he was responsible for throwing an elaborate birthday party for
the couples minor son in May 2014, the first respondent
denies that
the function was extravagant in anyway. Similarly in response to the
applicant’s allegation that the first respondent
contributed an
amount of R47,712 towards the cost of his daughter’s wedding
expenses, the first respondent admits to having
done so but states
that he borrowed the money and points out that it was a fraction of
the amount 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 was immaterial in
the context of this application in as much as it is the first
respondent’s alleged to be in contempt
of the court orders, and
it is he who has pleaded a financial inability to comply there with.
It was further submitted that
the first 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 first
respondent denies
this and attributes the lounge suite as a gift from
his mother.
32.
The
applicant further allege that in June 2014 the first and third
respondents embarked on a lavish holiday to the Maldives, which
the
applicant believes was paid for by the first respondent. The letter
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 first respondent admits having
gone on the holiday
but contends that this was paid for by friends of his. Yet again in
October 2015 the first respondent took
his son on a trip to Disney
World in Florida and contends that the/was funded by virtue of his
sons savings and the use of a credit
card. Despite here’s
contention that the trip did not cost more than R60 000, the
first respondent fails to explain
to the court what part of these
expenses in respect of the overseas trip were paid by him, and what
part were paid by his sons
savings. Fact that he may have stayed in
fairly modest accommodation is immaterial. The point made by Mr
Haasbroek for the applicant
is that the first 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 comply with his obligations of
paying maintenance
towards his spouse and their minor child as well
as contributing towards her legal costs.
33.
In
respect of the allegation of him having spent over R113 000 on
alterations and improvements to the natural on your home, the
first
respondent challenges the correctness of the amounts spent on the
automation but does not deny that the alterations have
been carried
out. He accuses the applicant of grossly exaggerating the amount
spent on the alterations and takes issue with her
raising this
matter, contending that he had carried out the alterations because of
her kitchen being in a dilapidated condition.
The first respondent
contends that much of the improvements were carried out by himself
and his son and that much of the material
was paid for using his
credit card, for which he is billed on a monthly basis. The applicant
contends that these alterations has
been undertaken because the first
respondent carries out his business operations from the matrimonial
home, and secondly because
the first respondent harbours plans to
purchase how a half share of the matrimonial property. Even in the
face of a denial of these
allegations by the first 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 these expenses were funded. The same applies to the first
respondent’s
installation of new carpets in part of the house.
The differential in price between what the applicant contends the
carpets costs
as opposed to the version of the first respondent is
immaterial. The fact of the matter is that he is able to afford
incidental
expenses such as paying approximately R5000 for carpeting
it is unable to find the financial means to comply with the court
orders.
34.
During
the course of the hearing, Mr Fleming place much emphasis on the fact
that the first respondent purchased groceries and paid
for the
utilities on a monthly basis at the matrimonial home. Such payments
were not part of the first respondent’s maintenance
obligations, but nonetheless were of beneficial value to the
applicant and the minor child. Counsel relied heavily on paragraph
[9] of the dictum in
Fakie
where Cameron JA stated
[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).
35.
In
light of the views expressed in para [9] of
Fakie
counsel
submitted that the first respondent was paying for amounts in respect
of which he was under no legal obligation, but did
so to ensure that
he is wife and minor child would not destitute and unable to afford
the necessities of water and electricity.
On the other hand, counsel
for the applicant dismissed this explanation contending that the only
reason for the first respondent
paying for the utilities is because
his business operates from part of the marital home. In the event
that the electricity to the
house was cut off, this would directly
impinge on the first respondent’s ability to carry out his
business. It was therefore
submitted that here’s 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.
36.
The
first respondent seeks refuge behind paragraph [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 account at the matrimonial home, 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 first
respondent’s
argument. On the contrary the first respondent has chosen to be
somewhat economical with regard to placing sufficient
facts before
the court with regard to his financial circumstances. While he
contends that the business of the sixth respondent
has deteriorated,
he fails to provide specifics of the extent of the slump in its
business or whether the business of rescue proceedings
have yielded
any positive outcome. The fact that he may have approached the banks
for assistance, which was unsuccessful, does
not remedy his
non-compliance. The first 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
.”
37.
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
obligations and that of a contribution towards the applicant’s
costs, remained unfulfilled. Having regard to the facts placed before
me, I am satisfied that the applicant has succeeded in proving
beyond
reasonable doubt that the first 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 first respondent
to be in
contempt.
38.
In
so far as the relief which the applicant seeks, being that of the
imprisonment of the first respondent, periodically for a pleaded
of
30 days, to be served from 17h00 on a Friday until 07h00 on a Monday,
counsel for the first respondent submitted that such imprisonment
would serve no purpose unless it can bring about a change in the
first respondent’s financial circumstances or payment of
the
amount which he owes in respect of the two court orders. The
constitutional court in Pheko at paragraph [28] stated
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.”
It
added at paragraph 30 that
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.
39.
Counsel
for the applicant however submitted that committal of the first
respondent to imprisonment is justified in the circumstances
of this
matter where the first 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 reflective of
anything but someone who shows respect to the honouring
of his
obligations towards his manager 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':
Bannatyne
(supra)
at
para [18].
40.
Counsel
for the first respondent further urged me to take into account that
the first respondent’s business is probably at
its busiest dude
in the periods for which the appellant seeks that he deeply
periodically committed to imprisonment. On the other
hand, on the
first respondent’s own version, he talks of a slump in the
business of the sixth respondent and on the facts
before me, there is
nothing to indicate what precisely are the first respondent’s
duties with the sixth respondent, whether
he works alone or in
conjunction with others, and whether he is responsible for attending
to clients’ needs at night or over
weekends. Again, this court
is faced with a paucity of information from the first respondent.
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, counsel for the first
respondent submitted that it would be impossible for the first
respondent to raise such amounts
within a relatively short period of
time. In this regard it was submitted that the court should afford
the first respondent a reasonable
opportunity to do so, even if I
were inclined to commit him to jail.
41.
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
will
has been without any form of maintenance payments since December
2013, and even for the five months prior thereto, the contributions
made by the first respondent had been less than half of the
stipulated amounts. At the same time the order affords the first
respondent
an opportunity to avoid imprisonment. It is therefore in
places a balancing of the competing interests of all parties.
42.
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 committing 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 in respect of the order dated 13 February 2013 and R161,000
in respect of the outstanding contribution towards cost
granted on 9
May 2013, together with interests 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 [0....], 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.
Appearances:
For
the Applicant
:
Adv
Instructed
by
:
Pravda
& Knowles Attorneys
320
Anton Lembede
Ref:
MP/Kp/01-D389-001-2014
031 307
3982
For the
Respondent
: Adv A
G Flemming
Instructed
by
:
Siva
Chetty & Company c\o
: Naidoo Maharaj
Incorporated
Morningside
Ref:
Mr S N Chetty/Chendre/G1868
033 342
9636
Date
of Hearing
:
23
September 2016
Date
of Judgment
:
14 November 2016
[1]
2015
(5) SA 600
(CC).