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[2014] ZAFSHC 233
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T v T (3094/2013) [2014] ZAFSHC 233 (16 October 2014)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 3094/2013
In
the matter between:
M[…]
A[…] T[…]
.............................................................................
Applicant
and
L[…]
S[…] T[…]
…........................................................................
Respondent
CORAM:
NAIDOO, J
HEARD
ON:
18 SEPTEMBER 2014
DELIVERED
ON:
16 OCTOBER 2014
JUDGMENT
NAIDOO,
J
[1]
The applicant seeks an order against the respondent for contempt of
court in the following terms:
“
1.
Declaring the respondent to be in contempt of the Court order
number 1790/2010 issued on 1 November 2011….
2.
That the respondent be sentenced appropriately if convicted.
3.
Respondent to pay the costs of this application.”
The
applicant was represented by Mr Reinders and the respondent was
represented by Mr Cronje.
[2]
The applicant and respondent were previously married to each other
and were divorced in 2007, after concluding a Deed of Settlement,
which was made an order of court. The parties are both
physiotherapists and had a practice in Bloemfontein. The Deed of
Settlement
provided, inter alia, an undertaking by the applicant to
pay to the respondent 50% of her nett income for the period 1 May
2001to
date of signature of the Deed of Settlement (being 20 November
2007), in return for which the respondent agreed to pay to the
applicant
50% of the nett income of their Bloemfontein practice for
the same period.
[3]
The respondent failed to honour the portion of the Deed of Settlement
mentioned above, with the result that the applicant instituted
action
in 2010 against the respondent, who defended the action and filed a
counterclaim. The applicant successfully obtained an
order (the court
order) against the respondent on 1 November 2011 in the following
terms:
“
1
1.1
The defendant render a full account, supported by vouchers, of the
party’s Bloemfontein Physiotherapist Practise for the
period 1
May 2006 to 20 November 2007.
1.2
Debatement of the account
1.3
Payment to Plaintiff of whatever amount appears to be due to the
Plaintiff upon debatement of the account and leave is granted
to the
Plaintiff to apply to court on the same papers duly amplified, if
necessary, for payment of the amount due to the Plaintiff(if
any)
2.
The counterclaim is dismissed.
3.
Defendant to pay the costs of suit”
[4]
Both parties were legally represented in the action and the order
mentioned in (3) above was obtained by agreement between
the parties.
The respondent failed to comply with the court order. A considerable
amount of correspondence was addressed by the
applicant’s legal
representatives to the various firms of attorneys who had represented
the respondent from time to time,
seeking compliance with the court
order, to no avail. The applicant then launched the current
application on 31 July 2013. The
respondent opposed the application.
[5]
The respondent’s opposing affidavit dealt extensively with the
acrimonious history between the parties from the date of
divorce to
the time of the institution of the action against by the applicant in
2010, resulting in the court order. The applicant
alleges that all of
those issues were raised by the respondent in his defence of the
action and were adjudicated upon in that action.
In spite of an
undertaking by the applicant that the papers relevant to that action
would be placed before this court, that was
not done, so I have not
had insight into the issues that were adjudicated upon. However, the
respondent did not specifically deny,
at the hearing of this matter,
that such issues have in fact already been adjudicated, so that the
situation regarding certain
issues raised by the respondent in these
papers is unclear. The respondent attached to his opposing affidavit
only some of the
documents he was required to furnish to the
applicant in compliance with the court order. A number of the
documents, as listed
by the accountant tasked with undertaking an
assessment of the financial standing of the parties’
Bloemfontein practice,
have not been furnished to the applicant at
all.
[6]
The respondent admits that he has not complied with the court order,
and, according to my understanding, alleges that the applicant’s
non- compliance with the Deed of Settlement was the reason for his
non-compliance. Even if a liberal view is taken of his averments,
he
appears to believe that he is not obliged to comply with the court to
any greater extent than furnishing the documents he already
has. In
addition, he makes the incorrect assertion that the court order
required him to provide only vouchers to the applicant.
This is
clearly not the case as, is evident from 1.1 of the court order which
calls for “The Defendant to render a full account,
supported by
vouchers…”. One gains the unavoidable impression that
the respondent is reluctant to furnish all the
information that he
was directed to do.
[7]
This court must now decide whether the respondent is guilty of
contempt of court. Contempt of court has been defined as “
the
deliberate, intentional disobedience of an order granted by a court
of competent jurisdiction”
[
Consolidated
Fish Distributors (Pty) Ltd v Zive
1968(2) SA 517
(C)
].
Both
counsel referred me to the case of
Fakie NO v CCII Systems
(Pty) Ltd
2006(4) SA 326 (SCA), where the court
summarised the position regarding contempt of court. One of the
requirements enunciated by
the court
(See Erasmus “Superior
Court Practice” B1-58G)
is that the applicant, in
particular, bears the onus to prove, beyond reasonable doubt, the
requisites of contempt (the order;
service or notice; non-compliance;
and wilfulness
and mala fides).
Once the applicant has proved
these requisites the respondent bears an evidential burden in
relation to wilfulness and
mala fides.
In other words, he must
provide evidence that raises a reasonable doubt as to whether his
non-compliance with the court order is
wilful and
mala fides.
Should the respondent fail to do so, contempt will have been
established beyond reasonable doubt. Where the respondent has
genuinely
tried to comply with the court order and has failed to do
so through no fault of his own, or has been unable (not unwilling) to
do so, proceedings for committal will fail. Poverty or financial
insufficiency may well be regarded as factors rendering a respondent
unable to comply with the court order.
[8]
As alluded to above, the respondent, by his own admission, did not
comply with the court order. The applicant denies many of
the
averments contained in the respondent’s opposing affidavit and
refers the court to the pleadings under case number 1790/2010,
which
were not attached to these papers. Apart from alleging that she
furnished the respondent with proof of her earnings, she
furnishes
little detail of when this was done, although she does invite the
respondent to view such documents which are in the
possession of her
legal representative. Most of the issues raised by the respondent
appear to have transpired prior to 1November
2011, and in the face of
the appellant’s assertion that these issues were dealt with in
case number 1790/2010, it is assumed
that this is in fact the case.
[9]
The one issue which appears to have come to a head after the grant of
the court order, and which the respondent avers is relevant
to the
applicant’s credibility, is that of possession of the BMW motor
vehicle which, in terms of clause 2.1 of the Deed
of Settlement
entered into between the parties, was to be retained by the
applicant. From the date of divorce, she would become
liable for any
amounts still owing on such vehicle. The applicant apparently denied
receiving delivery of this vehicle from the
respondent, yet the
vehicle was found in her possession in November 2013. It also appears
that the amounts still owing in respect
of the vehicle were not paid.
This was two years after the date of the court order. It is also
clear that the court order does
not make any provision for the BMW
vehicle to be handed to the applicant, leaving this court to infer
that she may well already
have had possession of it at the time she
instituted the aforementioned action against the respondent.
[10]
The basis of the application before me is the respondent’s
failure to comply with the court order. The applicant’s
credibility cannot, in any event, be determined on the papers. The
court must decide the issues on the papers before it which indicate
the versions tendered by the parties. The respondent alleges that he
left the lease agreement and certain medical aid accounts/records
relating to the parties’ Bloemfontein practice for the
applicant and also furnished her with financial statements, implying
that she ought to have been able to ascertain the financial position
of the practice from those records. The applicant engaged
a firm of
accountants to verify the financial position of the practice, as
reflected in the financial statements. The letter from
and affidavit
of Mr Gouws, the accountant, make it clear that considerably more
than what was furnished, was required in order
to verify the
financial statements of that practice for the period stipulated in
the Deed of Settlement. For clarity, a letter,
via e-mail,
dated 28 March 2013 by Mr Schalk Gouws of Newtons Chartered
Accountants, lists the following information which was
required to
verify the financial statements:
“
1.
General Ledger printout for the year ended 28 February 2007 and also
for the 10 months ended 31 December 2007
2.
Expense vouchers for the year ended 28 February 2007 and the 10
months ended 31 December 2007
3.
Fixed asset register as at 31 December 2007
4.
Supporting document/proof for the Finance lease obligation on 31
December 2007 (R773 327)
5.
The motor vehicles per financial statements amounted to R460 000. Are
the vehicles used for the businee or private? If used for
business we
will need a logbook for the year ended 28/2/2007 and for the 10
months ended 31/12/2007
6.
Bank reconciliations on 28/2/2007 and also on 31/12/2007
7.
Copy of Mr T[…] L[…]’s tax return submitted to
SARS for the year ended 28/2/2007 and also 28/2/2008
8.
Copies of IRP 5’s and/or IT3’s submitted to SARS
(employee costs per financial statements amounted to R130 000 and
R126 000)
9.
Copies od all VAT 201 forms (if the practice was registered for VAT)
The
logical conclusion from the aforegoing is that the applicant was not
in possession of such records and the only person who could
furnish
those records was the respondent. While there may be some merit in
the respondent’s complaint that the applicant
did not fully
comply with her obligations in terms of the Deed of Settlement, the
real issue is that it appears that he made no
real attempts to comply
with the court order, which remained unsatisfied until the launch of
the application before me. It was
certainly expected of the
respondent to ensure that he took steps to comply and if he was being
thwarted by the applicant, then
the logical course for him to have
followed would have been to approach this court for an appropriate
order against the applicant.
The papers before me indicate that the
applicant’s legal representatives made several unsuccessful
attempts to secure the
respondent’s compliance. To my mind the
respondent does not adequately address this failure in his papers.
[11]
Turning to the requirements for contempt as enunciated in
Fakie
’s
case above, the applicant has proved the order, service of such upon
the respondent and his non- compliance with the court
order. The
evidentiary burden then lay with the respondent to show that such
non-compliance was not wilful or
mala fides.
While it is clear
that the relationship between the parties was extremely acrimonious
and that each attempted to cause inconvenience
and even distress to
the other, the respondent’s attitude to the court order
suggests that he was and is of the view that
he need not have
complied with the court order, as the furnishing of a full account to
the applicant amounted to a “personal
audit”. The
respondent was legally represented all along (albeit on an “informal”
basis for a short while) and
the full purport of the court order
would surely have been brought to his attention. He provided some of
the required documents
only at the stage of filing his opposing
affidavit to this application, namely the documents listed in items
1, 6, 7 and 9 of the
accountant’s letter mentioned in [10]
above. No cogent reasons or explanation are given for why he
did not do so earlier.
Mr Cronje, in his Heads of Argument and in his
address to court referred to
Fakie
’s case,
particularly paragraphs 9, 10 and 40 of that case, where Cameron JA
said in paragraph 9 that:
“
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)”
[12]
The learned Judge went on to say that
“
contempt
does not consist in mere disobedience to a court order but in the
contumacious disrespect for judicial authority that is
so
manifested”.
In
my view, the respondent’s non-compliance is indeed
unreasonable. In the intervening period of some three years before
the launch of this application, the applicant made several attempts
to obtain the respondent’s compliance. His failure, in
my view
is indicative of a “contumacious disrespect for judicial
authority” and the unreasonableness of his non-compliance
is
indicative of a lack of good faith.
[13]
I, accordingly, make the following order:
13.1
The Respondent is found guilty of Contempt of the Court Order under
case number 1790/2010 dated 1 November 2011.
13.2
The respondent is sentenced to
NINETY DAYS’ (90)
imprisonment
, which is suspended for three months on condition
that he that he furnishes to the applicant the documents listed in
items 2, 3,
4, 5 and 8 of the letter from Newtons Chartered
Accountants (referred to in paragraph [10] of this judgment), in
respect of the
Bloemfontein Physiotherapy practice, namely:
2.
Expense vouchers for the year ended 28 February 2007 and the 10
months ended 31 December 2007
3.
Fixed asset register as at 31 December 2007
4.
Supporting document/proof for the Finance lease obligation on 31
December 2007 (R773 327)
5.
Logbooks for the year ended 28 February 2007 and for the 10 months
ended 31December 2007, in respect of the motor vehicles reflected
on
the financial statements, if such vehicles were used for the
business.
8.
Copies of IRP 5’s and/or IT3’s submitted to SARS, to
substantiate employee costs reflected in the financial statements,
which amounted to R130 000 and R126 000
13.3
The Respondent is ordered to pay the costs of this application.
___________
S.
NAIDOO, J
Counsel
for Plaintiff: Adv SJ Reinders
Instructed
by:
McIntyre & Van Der Post
12 Barnes Street
Bloemfontein
(Mr
GH Bradshaw)
Counsel
for the Defendants: Adv PR Cronje
Instructed
by:
L & V Attorneys
4 Bermakor Park
52
Reid Street
Westdene
Bloemfontein
(Mr
DM Labuschagne)