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[2015] ZAGPPHC 120
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K.V (previously T) v C.F.G.T (37420/13) [2015] ZAGPPHC 120 (18 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.: 37420/13
DATE: 18 FEBRUARY
2015
In the matter
between:
V[...]
(PREVIOUSLY T[...]),
K[...]
................................................................................................
Applicant
and
T[...], G[...]
F[...]
C[...]
..................................................................................................................
Respondent
JUDGMENT
VAN DER
WESTHUIZEN, A J
1. This matter was
enrolled for hearing in the opposed motion court for the week of 9
February 2015 to 13 February 2015. The respondent
set the matter down
for hearing. The notice of set down was served on 29 October 2014.
2. The matter was
allocated for hearing on 12 February 2015. The respondent had
timeously filed heads of argument. No heads of argument
on behalf of
the applicant were filed. When the matter was called, senior counsel
appeared on behalf of the applicant and handed
up written heads of
argument. The explanation for the late handing in of the heads of
argument was that counsel accepted responsibility
for not timeously
filing such and requested that the applicant should not be penalised
therefore.
3. A copy of the
heads of argument was only handed to counsel for the respondent that
morning. Counsel for respondent grudgingly
accepted the applicant’s
heads of argument and in view of the fact that this application flows
from a divorce matter; I indicated
that I would hear the matter, as
it would be expedient to do so.
4. Having heard
argument, I reserved judgment to consider the numerous cases relied
upon by counsel for applicant in his heads of
argument and the
various alternative arguments put forward on behalf of the applicant.
This is my judgment.
5. It is necessary
to give some background that led to the launch of this application.
6. The parties were
married to one another for a relative short period and which ended in
a decree of divorce that was granted during
March 2014. On 28 January
2014, and prior to the granting of the decree of divorce, the parties
entered into an agreement in respect
of their patrimonial affairs and
which was made an order of court on the granting of a decree of
divorce. It was alleged that the
respondent had not fully complied
with one of the terms of that agreement. Hence this application.
7. The agreement
entered into by the parties recorded the following in clauses 2.4 and
2.5 thereof:
“
2.4
The parties have reached
agreement with regard to property and other proprietary and ancillary
consequences of the divorce in the
event of the above Honourable
Court issuing a decree of divorce.
2.5 The Plaintiff
undertakes to seek an order in terms of 2.4 and which is compatible
with the provisions of this agreement. ”
8. The nub of this
application lies in the provisions of clause 4.1.2 of the agreement
which reads as follows:
“
Without
admitting any obligation to do so, the Plaintiff shall effect payment
of an amount of R 30 000.00 (thirty thousand Rand)
in a cash lump
sum, to be paid to the Defendant within
5
(five) business
days following the granting of the decree of divorce. ”
9. It is common
cause that the respondent only paid an amount of R 22 000.00 of the R
30 000.00 referred to in clause 4.1.2 of the
agreement to the
applicant.
10. The relief that
the applicant seeks in the notice of motion reads as follows:
“
1
.
Dat dit verklaar
word dat die Respondent in minagting van ‘n Hofbevel is
toegestaan deur die bovermelde Agbare Hof onder saaknommer
37420/2013
gemaak op 28 Maart 2014 (‘Die Hofbevel’) deurdat die
Respondent versuim en/of weier om ‘n bedrag van
R8 000.00 te
betaal, welke aan die Applikant verskuldig is;
2. Dat die
Respondent beveel word om ‘n periode van gevangenisstraf van 90
(negentig) dae uit te dien of sodanige ander periode
as wat
bovermelde Agbare Hof in sy diskresie, gepas mag vind onder die
omstandighede.
3. Dat die
Respondent gelas word om die koste van die aansoek te betaal op ‘n
skaal soos tussen prokureur en kliënt.
4. Verdere in/of
alternatiewe regshulp.”
11. The applicant in
her founding affidavit gives the following reasons for the relief
sought in the notice of motion.
“
4.
Die aard van die aansoek is ‘n aansoek om minagting van 'n
Hofbevel deur die Respondent. Die Hofbevel is gemaak op 28 Maart
2014
onder saaknommer 37420/2013.
5. Daar word
veriang dat die Respondent gevangenisstraf moet toedien (sic) vir,
die periode van 90 (negentig) dae, of sodanige korter
period (sic) as
wat die Agbare Hof as gepas mag vind. Gebasseer (sic) op die volgende
omstandighede:
5.1 ...”
She then sets out
the grounds. These relate to the respondent’s alleged short
payment of the R 8 000.00.
12.
In
Protea Holdings
Ltd v Wirwt et al
1978(3)
SA 865 (W) the court held at 868B:
“
It
becomes necessary, therefore, and this provides a convenient stage,
to deal briefly with the nature of contempt proceedings of
this kind.
The object of this type of proceeding, which is concerned with the
wilful refusal or failure to comply with an order
of Court, is the
imposition of a penalty in order to vindicate the Court’s
honour consequent upon the disregard of its order
(Ferreira v
Bezuidenhout
1970
(1) SA 551
(O) at 552)
and
to compel the performance thereof (Herbstein and Van Winsen The Civil
Practice of the Superior Courts in South Africa 2
nd
ed at 583). Not all orders of Court will on their breach give rise to
this sort of remedy. A distinction is drawn between orders
ad
pecuniam solvendum and orders ad factum praestandum. ”
1
13.
The form of the penalty to be imposed may be that of imprisonment, a
suspended sentence or the imposition of a fine.
2
14. It is clear from
the notice of motion and the founding affidavit, in particular with
reference to the passage quoted above,
that these proceedings are
contempt proceedings for the committal of the respondent to a term of
imprisonment.
15. Counsel for the
applicant disavowed that the present application was proceedings for
committal of the respondent and submitted
that prayers 1 and 2 of the
notice of motion should be read disjunctively and hence that there
was no connection between the two
prayers. He further submitted that
the application was merely one for contempt of court.
16.
This submission is without merit. Prayers 1 and 2 of the notice of
motion are to be read conjunctively. This clearly appears
form the
passage of the judgment in
Protea
Holdings
referred
to above.
17.It follows that
the present proceedings are for the committal of the respondent for a
period of imprisonment due to his alleged
contempt of the court order
of 28 March 2014.
18.
The question arises whether the alleged contempt relates to a refusal
to comply with an order
ad
pecuniam solvendum
or
an order
ad factum
praestandum.
19. The parties
agreed on 28 January 2014 to resolve the issue with regard to
property and other proprietary and ancillary consequences
of the
divorce in the event of that a decree of divorce is granted by this
court. The parties indeed entered into a contractual
arrangement in
respect thereof. Accordingly, the respective obligations set out in
clauses 4 and 5 of the agreement are of a contractual
nature. Those
clauses are couched in obligatory terms.
20. The only
“undertaking” that appears in the said agreement appears
in clause 2.5 (quoted above) of the said agreement.
The respondent
undertakes to make the agreement an order of court on the granting of
a decree of divorce.
21.
The obligation to pay an amount of R 30 000.00 on the granting of the
decree of divorce is one
ad
pecuniam solvendum,
the
underlying nature of the obligation to make the aforesaid payment is
one based on contract, not one of an undertaking
in
facie curiae
.
3
22.
It follows that the applicant had launched inappropriate proceedings
to enforce her rights under the said agreement. The order
being one
ad pecuniam
solvendum,
these
proceedings for contempt and the committal of the respondent are
inappropriate and not competent under the circumstances.
23. The applicant
cannot succeed in the relief sought.
24.
However, if the obligation upon the respondent to make payment of the
R30 000.00 can by some forced construction be interpreted
as “an
undertaking
in
facie curiae”,
and
that these proceedings are competent, it must be determined whether
the respective onuses have been discharged.
25. It is common
cause that the order was made, that the respondent was aware of the
order and that there had been non-compliance
with the full obligation
recorded above.
26. Counsel for
applicant submitted that a wilful and intentional disregard to the
court order of 28 March 2014 is to be inferred
from the conduct of
the respondent. The said conduct related to the respondent
subtracting certain monies from the agreed amount
or R 30 000.00
amounting to R 8 000.00.
27. The respondent
alleges in his opposing affidavit that he had erroneously paid an
amount of R 5 000.00 in respect of maintenance
to the applicant for
the month of February 2014, the parties having agreed on 28 January
2015 that compliance with the Rule 43
order that had been made would
terminate on signing of the agreement. The respondent further alleged
he made payment of an amount
of R 3 000.00 in respect of the
instalment of the motor vehicle of the applicant for which the
applicant was obliged to make payment.
28. Prior to
complying with the order to pay the amount of R 30 000.00, the
respondent discovered the alleged “erroneous”
payments
and was under the belief that he was entitled to set off the said
erroneous payments to the payment of the amount of R
30 000.00.
29.
Whether his aforesaid belief is countenance in law is irrelevant when
determining whether the respondent had wilful intent to
disregard the
order and was
male
fide
in
that regard. In
Fakie
v CCII, supra,
the
Supreme Court of Appeal held that the issue was whether the
respondent had advanced evidence that establishes a reasonable doubt
as to whether non-compliance was wilful and
male
fide.
4
30.
Counsel for applicant submitted that an inference could be drawn from
the respondent’s conduct in this regard. He submitted
that it
was reasonable to infer that prior to making the agreement an order
of court, the respondent had already decided to deduct
the amounts
referred to above and that he had clear intent not to make payment of
the full amount of R 30 000.00. No direct evidence
or any suggestion
in that regard was contained in the founding affidavit of the
applicant. Counsel for applicant further submitted
that the
respondent’s conduct subsequent to the launch of this
application in persisting with his conduct, is a further indication
that he acted wilfully and
male
fide.
31.
The inference that counsel for the applicant sought, cannot be drawn
in the face of the direct evidence of the respondent in
his opposing
affidavit in regard to his contention of set off referred to above.
Rightly or wrongly, it casts reasonable doubt
as to whether the
non-compliance was wilful and
male
fide.
I
find that the respondent has discharged his onus.
32. Counsel for the
applicant attempted during argument to abandon the relief sought in
prayer 2 of the notice of motion and sought
an amendment thereof by
the substitution of the following amendment.
“
Die
applikant se aanbod, met benadeling van regte, op 19 Junie 2014 word
‘n bevel van die hofgemaak en die respondent word
gelas om
R8000 aan die applikant te betaal binne 10 dae”
33. The aforesaid
offer related to an offer to settle the matter: the applicant
proposed that if the respondent paid the amount
of R 8 000.00 to the
applicant, the applicant would subsequently withdraw these
proceedings.
34. In view of the
finding that the respondent had discharged his onus, the proposed
amendment to prayer 2 of the notice of motion
requires no further
consideration.
35. It follows that,
in this respect, the applicant cannot succeed in the relief sought in
the notice of motion, should the application
be competent in the
circumstances.
36. There remains
the issue of costs. Both parties have sought cost orders against one
another on a punitive scale. This matter
has its origins in divorce
proceedings. The court has an unfettered discretion in respect of
costs. It would serve no purpose to
order a punitive cost order
either way.
37. The application
for contempt and committal of the respondent cannot succeed.
38. I grant the
following order:
(a) The application
is dismissed.
(b) No order in
respect of costs is made.
CJ VAN DER
WESTHUIZEN
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION
On behalf of
Applicant: L J van Tonder SC
Instructed by: Van
der Merwe Inc.
On behalf of
Respondents: D J Badenhorst
Instructed
by: Van der Westhuizen Attorneys
1
See
also
Fakie
NO v CCII Systems (Pty) Ltd
2006(4)
SA 326 (SCA) at 332B-B
2
Protea
Holdings, supra,
at
872;
Victoria
Park Ratepayers’ Association v Greyvenouw CC
[2004]
3 All SA 623
(E) at 642
3
See
Metropolitan
Industrial Corporation (Pty) Ltd v Hughes
1969(1)
SA 224 (T) at 227
4
At
344J -345A