About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 368
|
|
J.D v D.D (55507/2012) [2016] ZAGPPHC 368 (16 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:55507/2012
DATE:
16 MAY 2016
IN
THE MATTER BETWEEN
:
[J……]
[D….……..]
............................................................................................................
APPLICANT
Vs
[D…….]
[D………]
.........................................................................................................
RESPONDENT
JUDGMENT
KOLLAPEN
J:
l.
In this application an order is sought
seeking the committal of the
respondent to priso
n
for being in contempt of various orders of this court made in respect
of maintenance obligations of the respondent towards the
minor
children bo
rn
of his erstwhile marriage
to the applicant. The respondent opposes the relief sought.
Background
2.
Following the breakdown in the marriage
of the parties and the institution of litigation the matter came
before this Court and various
orders were made in the course of that
litigation which include:
a)
An order made on the 8
th
of August 2012 in Rule 43 proceedings directing the respondent to pay
maintenance pendente lite in the sum of R18000.00 per month
in
respect of both minor children.
b)
An order made upon the granting of a
final divorce order on the 28
th
of May 2015 directing the respondent to pay maintenance in the sum of
R 12 000.00 per month in respect of both minor children.
c)
An order made on the 25
th
of February 2013 finding the respondent to be in contempt of Court
and imposing a sentence of imprisonment upon the respondent
which was
suspended on condition that the respondent paid the arrear
maintenance which was then due.
3.
It is common cause that apart from
payments which in their totality amounted to some R4000.00 made in
the period from 2012 to 2016
(R3000.00 of which was paid this year
after the launch of these proceedings) the respondent has made no
other payment as directed
by the various orders to which reference
has been made.
4.
The stance of the applicant is that the
respondent has, with mala fides, and
willfully
,
disobeyed the various orders of this Court and that the relief she
seeks is both competent and justified.
5.
The respondent in opposing the relief
sought has intimated that he is not possessed of any income or assets
and that his failure
to comply with the various orders of Court is
beyond his control and is neither wilful nor mala fide.
The law
6
In FAKIE NO v CCII SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
SCA, the Court
set out the approach to be taken in the following terms:
‘
The
respondent in civil contempt proceedings was not an ‘accused
person ’ but was entitled to such analogous protections
as were
appropriate to motion proceedings. In particular, the applicant had
to prove the requisites of contempt (the order, service
of notice,
non- compliance and wilfulness and mala fides) beyond a reasonable
doubt. But, once the applicant had proved the order,
service or
notice and non- compliance, the respondent bore an evidentiary burden
in relation to wilfulness and mala fides: Should
he fail to advance
evidence that established a reasonable doubt as to whether his
non-compliance was wilful and mala fide, the
applicant would have
proved contempt beyond a reasonable doubt. ’ (at 327A -B).
6.
In these proceedings it was common cause
that the requirements relating to the order, service thereof, and
non-compliance were met
and that accordingly the evidentiary burden
in relation to the absence of wilfulness and mala fides was on the
respondent and that
unless the respondent was able to advance
evidence to show reasonable doubt, the applicant would have succeeded
in proving contempt
beyond reasonable doubt.
The case for the
respondent
7.
In arguing the absence of wilfulness and
mala fides the respondent’s case is that:
a)
He has been unable to honour the orders
made against him as he is in a financial crisis and lacks the means
to pay. He states that
he lost his businesses and due to his age it
has been difficult to secure a business or employment.
b)
He further states that during the period
June to December 2015 he was involved as a part-time consultant with
the business known
as DDW Moago from which he would earn an amount of
R6000 from time to time. He does not provide any further detail as to
what amounts
he earned during this period but states that his monthly
expenses were more or less that amount.
c
)
In support of his position the respondent has also annexed various
bank statements in respect of the various accounts he holds
and in
explanation of the activity o
n his Capitec Account [1……..]
,
he states that during 2013 he allowed o
ne of his friends Mr
[T…..] [N……]
, who had
temporarily hired him, to use this savings bank account to conduct
his business and it was throug
h this account that Mr [N…….]
conducted his financial transactions. In support of this an affidavit
has been
filed by Mr [N…….]
as well as a pro forma income and expenses schedule. From the copies
of the bank statements provided as well as the schedule of
inc
ome
and expenses of Mr [N……..]
the
following appears
i.
Various payments are recorded as being
made to
TM [N…….] to Account Number [12……..]
;
ii.
That during the period April 2013 to
February
2014,
the respondent would have
received a salary in the total amoun
t of R29500.00 from Mr
[N………]
;
d)
While the respondent does not
provide a full exposition of his income and expenses, it does appear
from an application he has brought
in the Magistrate’s Court to
vary the existing maintenance order that he lists his income as
R7478.42 and his expenses as
R5000.00. It is not clear how the income
of R7478.42 is earned.
e)
In a supplementary affidavit filed
after hearing, the defendant stated his pension income as R1737.62
and the income from an Old
Mutual annuity as R670.92.
Analysis
9.
From what emerges it is apparent that
during the period 2012 to the present, the respondent received two
streams of income, his
monthly pension of about R2400.00 and the
money earned from DDW and Mr
[N…….]
.
If one works from the premise that the respondent’s monthly
expenses were R5000.00 as he has indicated in the proceedings
currently pending in the Magistrates Court, then it is clear on his
own version that for various periods (and in particular while
he
worked for DDW and Mr [N…….]
) his
monthly income would have consisted of the aggregate amount of his
pension and his salary. During those months, at the very
least, he
would have had a total monthly income of R2400-00 together with what
he earned (R5000-00 to R6000-00). That would have
constituted an
amount ranging from R7400.00 to R8400.00 per month at a time when his
monthly expenses were R 5000.00 per month,
leaving him with
excess
funds in the region of R2400-00 to R3400-00 per month.
10.
One would at the very least have
expected that in those good months, accepting that the flow of income
was not consistent, the respondent
would have been able to pay some
money towards his maintenance obligations. He offers no explanation
in this regard and falls considerably
short in demonstrating how he
would have
utilized
this increased
income during those times.
11.
The obligation to pay maintenance is a
serious and indeed onerous one and in my view the very generalised
nature of the respondent’s
assertions of being in a constant
financial crisis falls considerably short of what is expected of him
in discharging the evidentiary
burden that rests upon him.
12.
In addition the utilisation of the
respondent’s savings account raises more questions than it
provides
the answers for. If Mr [N…..]
requested of the respondent that the former used his savings account,
one must assume that Mr [N…….]
did not have an account of his own - why else such a request? Yet the
entries on the savings account purport to show a transfer
of funds to
an account in the name of TM
[N……..]
.
This is not explained either. In addition I have some difficulty in
accepting that a person in the position of the respondent,
who was at
the time in serious and substantial default of his maintenance
obligations would allow another to use his banking account
and
through which account close to R500000.00 passed in a short time
between February and June 2013.
13.
In addition the respondent on his own
version offered to pay total maintenance of R2000-00 per month for
his children during the
divorce negotiations in mid-2015. Surely he
would not have volunteered to pay R2000-00 per month if he was unable
to afford it.
He does not provide an explanation for this either.
14.
Under these circumstances and it does
appear that even on the respondent’s own version he was
possessed of funds which would
have enabled him to pay at least some
of his maintenance obligations during some of the times in question,
the respondent has failed
to discharge the evidentiary burden in
showing his default was not
willful
or
mala fide.
is.
I am accordingly satisfied that having failed to do so, the
consequence is that the applicant has proved that the default was
beyond a reasonable doubt,
willful
and
mala fide entitling the applicant to the relief she seeks.
ORDER
16
.
I make the following order:
i.
The respondent is found to be in
contempt of the orders of this Court of the 8
th
of August 2012, the 25
th
of February 2013 and the 28
th
of May 2015.
ii.
The respondent is committed to prison
for sixty days.
ii.
The respondent is ordered to pay the costs of
the application.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
55507/2012
HEARD
ON: 18 APRIL 2016
FOR
THE APPLICANT: ADV. BURGER
INSTRUCTED
BY: M SMUTS ATTORNEY
FOR
THE RESPONDENT: MS M MAZIBUKO
INSTRUCTED
BY: MAMYENI MAZIBUKO ATTORNEYS