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[2014] ZAGPPHC 133
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J.S.O v H.W.O (24384/2009) [2014] ZAGPPHC 133 (19 February 2014)
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
19/02/2014
CASE
NO: 24384/2009
In the matter
between:
J S
O
..........................................
APPLICANT
And
H W
O
...................................
RESPONDENT
JUDGMENT
MAGOTSI, AJ
Introduction
[1] The applicant
seeks an order that the respondent be declared in contempt of the
court order dated 15 September 2010 under case
number 24384/2009.
[2] The respondent
had failed to pay maintenance, medical aid contribution and or had
failed to keep his minor children on medical
aid and lastly
respondent has failed to pay reasonable short falls relating to
medical expenses.
[3] The respondent
filed a counter-application seeking a variation of the maintenance
order and further interim order suspending
portions of the decree of
divorce until he has obtained employment.
Both parties
claimed costs.
Background
[4] The applicant
and the respondent were married to each other on 19 December 2003.
Twins were born of the marriage on 11 December
2008. The marriage
between the parties was dissolved by the High Court on 15 September
2010. An agreement of settlement between
the parties was made an
order of court. Custody of the minor children was awarded to the
plaintiff, subject to the right of reasonable
access to the children
by the respondent.
[5] The order
(loosely translated) provided for the maintenance of the two minor
children. The respondent was ordered to pay maintenance
at R1 900.00
per month per child and payment was to be made directly into the
account of the plaintiff.
[6] Over and above
payment of maintenance the respondent was further ordered to keep his
minor children in his medical aid scheme
at his costs and to pay the
reasonable shortfalls not covered by the medical fund on demand, the
shortfalls to be paid into the
applicant’s account within ten
days of the applicant furnishing the respondent with documentary
proof of payment of such
shortfalls by registered post.
Issues
[7] The applicant
contends in her founding affidavit that the respondent has failed to
comply with the court in that:
7.1 The respondent
has removed or failed to retain the children as dependents on his
medical aid scheme. The first respondent has
not made any medical
contribution in respect of the minor children since 18 October 2010,
save in respect of a Garnishee or Emoluments
attached order.
7.2 The respondent
has fallen into arrears with the payment of maintenance in cash from
November 2012 up to probably February 2013
and he is in arrears of
R15 200.00.
7.3 The respondent
failed to keep his minor children in his medical scheme resulting in
the applicant retaining the children in
her medical aid scheme and
thereby incoming costs for the months of December 2012 to February
2013 and the total amount of costs
incurred is R3 696.00
7.4 The respondent
has failed to pay shortfalls in respect of medical expenses for the
minor children as ordered by court. Applicant
incurred costs in an
amount of R45 664.00 as a result.
Applicant alleges
that the respondent failed to honour any of the terms of the Deed of
Settlement despite demands addressed to the
respondent and
respondent’s attorney.
7.5 The minor
children were born prematurely and as a result they are sickly and
they lack behind with developmental milestones.
[8] The respondent
has now taken a voluntary retrenchment package and he is according to
the plaintiff supposed to be receiving
pension interest.
[9] The respondent
shows no interest in fulfilling his parental responsibilities and
rights that is why he has not kept any form
of contact with his minor
children for years.
[10] The order that
the applicant seeks is as follows:
10.1 That the
respondent be found to be in contempt of court.
10.2 That the
respondent be sentenced to imprisonment for a period of sixty days or
for such period or in such a manner as the court
may deem just and
appropriate.
10.3 That the entire
sentence imposed be suspend on such terms and conditions as the court
may deem just including that:
10.4 The respondent
forthwith pays all arrears owed in respect of his obligations arising
from the aforesaid order of divorce;
10.5 The respondent
continues to meet his future obligations arising therefrom.
10.6 That the
respondent be ordered to pay costs.
10.7 Further and/or
alternative relief.
[11] The respondents
in his opposing affidavit states that:
11.1 All employees
were offered voluntary retrenchment otherwise they would face the
risk of forced retrenchment and of losing some
of the benefits the
voluntary retrenchment had to offer. Forced retrenchment would
diminish prospect of a new employment.
11.2 That from July
2002 he started seeing a psychiatrist due to severe depression. He
was as a result put on different medication
from 2002 to 2012 and
stopped taking such medication due to financial reasons. That
affected his performance level even more.
This would have been a
reason to place him on forced retrenchment.
11.3 He also took
the voluntary retrenchment offer so that he could pay his legal fees.
11.4 The respondent
confirms the provisions of the settlement and a court order.
11.5 The defendant
confirms that he paid maintenance until October 2012 when a garnishee
order was made against him.
11.6 The children
were kept on the respondent’s medical aid until he got
unemployed and that is when he stopped to be a member
of medical aid
as he could not afford the premiums. The defendant argues that the
medical expenses and shortfalls incurred are
unreasonable and that is
why he says he is not in breach of this term of the settlement
agreement.
11.7 The following
amount was deducted from the respondent’s salary as a result of
a garnishee order:
(a) R3 800.00
towards maintenance; and
(b) R1 200.00
towards the alleged arrear medical costs.
11.8 The applicant
is claiming an amount of R45 664.00 as medical expenses shortfalls
which the respondent finds to be excessive
and unreasonable. The
applicant has a tendency of even buying medication over the counter a
day before she takes children to a
doctor and buy some on
prescription.
11.9 The applicant
can afford paying the medical contributions because she pays and
claims afterwards.
[12] The respondent
prays that the children be placed on the applicant’s medical
aid scheme while he is still seeking employment.
[13] The respondent
denies that he is in arrears for the maintenance of November 2012.
He settled maintenance arrears for December
2012, January 2013,
February 2013 and March 2013.
[14] The respondent
request that his duty to pay maintenance be suspended until he
obtains gainful employment as his actions are
not wilful and/or mala
fides but merely because he does not have the necessary funds.
[15] That it would
be reasonable to make an order that the respondent pays R500.00 per
month or a maximum of R6 000.00 per year
as medical expenses.
[16] As the
respondent did not consent to the recommended therapy by the
psychologist (for the children) he cannot be liable for
the costs
incurred.
[17] The respondent
admits that their children were born prematurely but denies that they
have not been healthy since birth.
[18] The respondent
has two major sons from the previous marriage. The first one is 21
years old, doing BSC IT and the respondent
contributes R2 800.00 per
month for his accommodation and R595.81 towards his study loan. The
respondent also has to provide food
and amenities for the said child.
The second one is 18
years old and unemployed. He lives with the respondent and is
totally dependent on him for his living expenses
which include
accommodation and transport.
[19] Due to
financial constraints, the second child will relocate with the
respondent to Klerksdorp to reside with the respondent’s
mother.
[20] The
respondent’s monthly expenses form 1 April 2013 include
groceries of R3 500.00, insurance for his vehicle and that
of his
eldest son is R1 617.00. The respondent pays R3 971.53 for his
Pajero vehicle and R2 125.10 for his son’s Isuzu.
Newspaper
and magazines R115.00. The second child’s maintenance R2
800.00 and R150.00 for cat food and care.
[21] Out of a total
voluntary retrenchment package of R333 146.11 the respondent is left
with approximately R146 000.00.
[22] The respondent
submits that both parents have a maintenance responsibility and the
applicant whose financial position exceeds
his should maintain
according to her means.
[23] The respondent
contends that he suffers from severe depression which entails a
severe lack of self confidence amongst others
and he as a result does
not think the he will be a good father. Furthermore the applicant
has a male friend who threatened the
respondent that is why the
respondent is not exercising his right to contact with his children.
[24] That
maintenance contributions can only be made in accordance with a
person’s means and the respondent does not have
means to pay.
[25] Wherefore the
respondent prays for a final order in terms of the following:
[26] That the
settlement agreement be replaced and/or amended as follows:
(a) That the
respondent will monthly reimburse the applicant for the reasonable
medical aid contribution the applicant pays for
each child as a child
dependant on her medical aid scheme.
(b) The applicant is
ordered to supply the respondent with proof of the amount payable
towards child dependants.
(c) The applicant is
ordered to inform the respondent one calendar month in advance of any
increase pertaining to the child dependants.
(d) That the
applicant would pay a maximum of R500.00 (five hundred rand) per
month for any shortfalls of reasonable medical expenses
incurred for
the minor children and not covered by the medical aid scheme.
(e) That the
reasonable shortfalls of such medical expenses will not exceed R6
000.00 (six thousand rand) per year.
[27] The respondent
furthermore prays for the following interim order:
27.1 That the court
suspends paragraph 2.1 of the settlement agreement pertaining to the
maintenance payable until such time the
respondent obtains new
employment.
27.2 That the court
suspends the order as set out above in paragraph 2(a) to 2(e) until
such time the respondent obtains new employment.
27.3 That the
applicant and/or respondent may approach this court on the same
papers for the lifting of the interim order upon such
time the
respondent obtains new employment.
27.4 Applicant be
ordered to pay the costs.
Evaluation of
evidence
[28] Burchel v
Burchel (ECJ 010/2006)
[2005] ZAECHC 35.
The question whether
the respondent should be committed to goal for non-compliance with
his court ordered maintenance and other
obligations to his ex-wife
and children depends on what the true nature of the current
proceedings is under the constitution.
Conflicting
decisions under the Constitution
[29] In the case of
Uncedo Taxi Service Association and Maninjwa and Others
1998 3 SA 417
(E) the court held that the common law civil committal for contempt
procedure was in conflict with the constitution insofar as
an onus
was placed on the offender and proof of guilt was required only on a
balance of probabilities. It was nevertheless held
that civil
contempt proceedings for committal are competent provided that the
proceedings are conducted fairly in accordance with
the principles of
fundamental justice measured against the yardstick of the provisions
of section 35(3) of Act 108 of 1996 (the
Constitution).
[30] The first
Uncedo case was followed in Uncedo Taxi Service Association v Mtwa
and Others
1999 2 SA 499
(E) and in Victoria Park Ratepayers
Association v Greygenow CC
[2004] 3 All SA 623
(SE). It was referred
to with approval in Chinamasa
2001 2 SA 902
(ZSC). In the unreported
judgment Kamma Park Properties (Pty) Ltd v Ngesi and Others case no
12220/1997 ECD JONES J held that
where committal is sought in civil
contempt proceedings the onus of proof in civil cases is applicable.
In the unreported case
of Burchel and Burchel (supra) referring to S
v Beyers
1968 3 SA 70
(A) it was held that ever since this case it
has been accepted that under the common law contempt of court in the
form of non-compliance
with a court order to do or not to do
something (ad Factum Praestandum) is a criminal offence which may,
however, be enforced or
prosecuted either by way of civil or criminal
contempt proceedings.
In the matter of
Laubsher v Laubsher
2004 4 SA 350
(T) DE VOS J held that
pre-constitutional common law of civil contempt was still good law
and accordingly declined to follow the
new approach in the first
Uncedo case.
Onus
[31] Compliance with
court orders is an issue of fundamental concern for a society and
seeks to base itself on the rule of law.
What is required in civil
contempt matters is that sufficient care should be taken in the
proceedings to ensure a fair procedure
as far as possible with the
provisions of section 35(3) of the Constitution civil contempt
proceedings for committal may still
be used but the onus is on the
applicant to show beyond reasonable doubt that all the requirements
for the offence have been met.
[32] In order to
succeed in civil contempt proceedings the applicant should proof the
terms of the order, knowledge of these terms
by the respondent and a
failure by the respondent to comply with the terms of the order.
Upon proof of these requirements the
presence of wilfulness and bad
faith on the part of the respondent would normally be inferred, but
the respondent can rebut this
inference by contrary proof on a
balance of probabilities.
[33] In terms of
section 28(2) of the Constitution the best interest of the children
are of paramount importance. The medical expenses
and shortfalls
ordered by the divorce court are part of maintenance of the minor
children. The Maintenance Act defines a maintenance
order as any
order for the payment of sums of money towards the maintenance of any
person issued by the court in the Republic including
a high court.
Section 26 to 28 provides for enforcement of maintenance orders by
way of warrant of execution, attachment of emoluments
or attachment
of debts.
[34] Section 31(1)
provides that any person who fails to make any payment in accordance
with a maintenance order shall be guilty
of an offence. Section
31(2) provides that if the defence is raised in a prosecution for an
offence under this section that the
failure to pay maintenance in
accordance with maintenance order was due to lack of means on the
part of the persons charged, he
or she shall not be merely on the
grounds of such defence be entitled to an acquittal if it is proved
that the failure was due
to his or her unwillingness.
[35] In terms of
section 40(3) the prospective means of the convicted person, the
financial needs and obligations of the person
in so far as it may be
relevant concerning his or her failure to pay in accordance with the
maintenance order. Section 40(4) provides
that notwithstanding
anything to the contrary contained in any law, any pension annuity,
gratuity or compassionate allowance or
similar benefit shall be
liable to be attached or subject to execution. De Haas v Fromentein
(499/12)
[2013] ZASCA 144
(30 September 2013).
[36] The respondent
took a voluntary retrenchment package almost two (2) years after a
maintenance court order was made against
him. After receiving a
notice demanding compliance with a court order the respondent chose
to comply with the order selectively.
He only paid arrear
maintenance and left out medical expenses despite the fact that he
could afford to settle everything.
[37] In the
respondent’s version he found medical expenses and shortfalls
unreasonable. He does not ask for clarification
or for further
information and or approach the court for a variation of the court
order. He on the “advice” of his
lawyer stops to comply
with the court order. In addition to that the respondent deregisters
the minor children from the medical
aid without informing the
applicant or obtaining a court order.
[38] The respondent
states that he is unable to comply with a court order due to lack of
resources but he maintains his major children
from the previous
marriage. He has brought one child Isuzu bakkie. He puts money
aside for cats, newspaper and magazines.
[39] The respondent
suggests alternative amounts for medical shortfalls expenses but he
does not pay a cent of that. He insists
that he did not consent to
the recommended play therapy and can therefore not be held liable for
the costs.
[40] Out of a total
voluntary retrenchment package of R33 146.11 the respondent is left
with approximately R146 000.00
Conclusion
[41] There is no
indication that the respondent is endeavouring to co-operate with the
court and or to comply with the order particularly
the medical
shortfall expenses. There is also no indication that the respondent
is looking for a new employment which will enable
him to meet his
monthly financial obligation.
[42] The respondent
asserts that he is not in a wilful default of the court order.
However, when he
received a voluntary retrenchment package he did absolutely nothing
to show interest to settle or to contribute
what he may regard as the
minimum medical expenses or arrears. The respondent was retrenched
about two (2) years after a maintenance
order was made against him.
[43] The respondent
confirmed knowledge of the settlement agreement and the court order
in his pleadings.
[44] In the
respondent’s version he found medical expenses and shortfalls
to be unreasonable. When the proceedings started
he deliberately
wanted to frustrate or delay the proceedings by not interacting with
legal aid or a lawyer defending him pro bono.
He knew that the
matter was previously postponed for his lawyer but he only went to
consult just before the trial date. He did
not advance a reason for
that.
[45] I am therefore
satisfied that this is not only a simple default by the respondent.
There is same element of bad faith beyond
mere indifference to pay.
The respondent needed only to pure his bona fides by showing a
reasonable doubt that he did not comply
with the court order wilfully
and he is not mala fide. The truth of the matter is that he does not
want to comply with the court
order.
[46] One the
conspectus of all the facts this court finds that the applicant has
shown beyond reasonable doubt that the respondent
has intentionally
avoided to pay reasonable medical shortfall expenses and is therefore
in arrears of R45 664.00 and I make the
following order.
Order
1. The respondent is
declared in contempt of the court order dated 15 September 2010 under
case no 24384/2009.
2. The respondent is
sentenced to sixty (60) days imprisonment which is wholly suspended
for a period of two (2) years on condition
that the respondent pays
R45 664.00 (shortfalls of medical expenses) into the account of the
plaintiff on or before 1 April 2014.
3. All matters
pertaining to the payment of maintenance (including medical expenses)
that may be due and payable and all other matters
related to the
dispute between the applicant and the respondent concerning payment
of maintenance are referred to the maintenance
court having
jurisdiction for its determination.
4. A copy of this
judgment should be brought to the attention of the maintenance
officer dealing with the dispute between the applicant
and
respondent.
5. The respondent is
ordered to pay costs on party and party scale.
D D MOGOTSI
ACTING JUDGE OF
THE GAUTENG DIVISION, PRETORIA