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[2013] ZAGPPHC 172
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Makhubela v Molefi and Others (62586/2011) [2013] ZAGPPHC 172 (14 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE NUMBER: 62586/2011
DATE:14/06/2013
In
the matter between:
LUKAS
MAHLASELA
MAKHUBELA
............................................................................
APPLICANT
and
LYNETTE
MORETLO
MOLEFI
.......................................................................
FIRST
RESPONDENT
THE
MINISTER OF POLICE SECOND
RESPONDENT
THE STATION COMMANDER,
MIDRAND
POLICE
STATION
........................................................................
THIRD
RESPONDENT
THE
MINISTER OF CORRECTIONAL
SERVICES
.................................
FOURTH
RESPONDENT
STRIJDOM
AJ
DATE
OF JUDGMENT: 14 JUNE 2013
COUNSEL
FOR APPLICANT: D MTSWENI
COUNSEL
FOR FIRST RESPONDENT: T COLYN
JUDGMENT
INTRODUCTION:
1.
The Applicant brought an application against, inter alia, the First
Respondent, for contempt of a court order granted on 28 November
2011
and subsequent imprisonment, in the event that the First Respondent
does not, within 7 (seven) days pay an amount of R1 million
into the
Applicant’s bond account and within 14 (fourteen) days remove
the Applicant’s name from the Title Deed of
the immovable
property of which they were joint owners.
2.
The Applicant also requests the Court to make an Order whereby the
Registrar is authorised to issue a Writ of Execution in the
sum of R1
million against the immovable property in the event that the First
Respondent fails to adhere to the conditions set out
hereinabove.
3.
Applicant also requests the Court to make an order that the First
Respondent shall be liable for the reasonable costs of the
transfer
and the removal of the Applicant’s name from the Title Deed in
respect of the immovable property and that the First
Respondent be
ordered to pay the costs of the Application on an attorney and client
scale.
4.
The First Respondent filed a counter-application whereby the First
Respondent seeks an Order in the following terms:
4.1.
That the settlement agreement be amended to make provision for the
division of the Applicant’s pension fund;
4.2.
Declaring the Applicant to be in contempt of the court order and to
pay an amount of R235,273.10 in respect of arrear maintenance
within
7 (seven) days from the date of the order being made;
4.3.
That the Applicant be committed to prison and that same be suspended
for 21 (twenty one) days and that the Applicant be ordered
to pay the
costs of the Application on an attorney and client scale.
THE
APPLICATION FOR CONTEMPT OF COURT AGAINST FIRST RESPONDENT:
5.
This Application is against First Respondent for contempt of a court
order granted on 28 November 2011 in terms of which an amount
of R1
million must be paid by the First Respondent into the Applicant’s
bank account.
6.
In Javiha v MEC for Welfare Eastern Cape 2004 (2) SA611 (SCA) it was
held
that: “Save for an order for the maintenance of one whom the
judgment debtor was liable to maintain, a money judgment
was not
enforced by contempt proceedings but by execution.
7.
It follows that on this ground alone the application by the
Applicant to make an order against the First Respondent for contempt
of court should be dismissed.
8.
However, there is a further application by the Applicant where an
order is seek and whereby the Registrar is authorised to issue
a Writ
of Execution in the sum of R1 million against the immovable property
in the event the First Respondent fails to adhere to
the conditions
of the court order.
9.
I am convinced by the Applicant that the First Respondent was aware
of the contents of the settlement agreement and the subsequent
court
order and that the First Respondent fails to comply with the
aforesaid court order.
THE COUNTER-APPLICATION BY THE
RESPONDENT:
10.
In respect of contempt of court an applicant has to prove that;
10.1.
There is a court order;
10.2.
The First Respondent knows about the existence of the order; and
10.3.
The First Respondent has not complied with the order.
11.
It has been held that: “the test for when disobedience of a
court order constitutes contempt has come to be stated as
whether the
breach was committed deliberateiy or male fide. ”
See: Fake NO v CC II Systems (Ptv
)Ltd)
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 333
12.
The First Respondent indicates that due to the fact that the
Applicant is not paying maintenance towards the two minor children,
she struggles financially and does not want to overextend herself by
obtaining a bond.
13.
She further contends that the Applicant only paid R10,000.00
regarding arrear maintenance and that the Applicant is indebted
to
her the sum of R235,273.10 arrear maintenance,
14.
I must agree with counsel for the Applicant that the First Respondent
has failed to take this court into her confidence and
to explain how
the amount of arrear maintenance was calculated.
15.
It is clear from the Applicant’s Replying Affidavit and
annexures marked MKR4 (A-G) that the following payments were made
towards maintenance of the minor children:
15.1.
28/04/2012 R3,000.00
15.2.
22/06/2012 R60,000.00
15.3.
05/07/2012 R10,000.00
15.4.
03/08/2012 R10,000.00
15.5.
04/09/2013 R10,000.00
15.6.
03/10/2012 R10,000.00
16.
In the Answering Affidavit the First Respondent states the following:
Par
9.4 - “I furthermore confirm that since then no maintenance was
paid, so the months of June, July, August, September and
October are
in arrears which ads to another R40,000.00. ”
Par
9.5- 7 confirm that as mentioned here above only an amount of
R10,000.00 was paid after the sheriff contacted the Applicant
in this
matter."
17.
I am not convinced that on the evidence placed before me, the
Applicant is in arrears with the payment of maintenance towards
the
two minor children.
18.
The First Respondent contradicts herself in her Answering Affidavit
to allege that the Applicant has blatantly disregarded his
obligation
as a father to pay maintenance for their children since their
divorce. This is contrary to the proof of payments made
by the
Applicant towards the maintenance of the minor children.
19.
I concluded that after considering the evidence contained in the
papers, the Application by the First Respondent to make an
order
against the Applicant for contempt of court must be dismissed.
THE
FIRST RESPONDENT’S APPLICATION FOR VARIATION OF THE
SETTLEMENT
AGREEMENT AND/OR COURT ORDER:
20.
An order of court could only be set aside under Rule 42, Rule 31 (2)
(b) on appeal or on common law grounds. The inherent jurisdiction
of
the High Courts does not include the right to interfere with the
principle of finality of judgments, other then in the circumstances
specifically provided for in the rules or the common law.
21.
In terms of Rule 31 (2) (b) a defendant may within twenty days after
he of she has knowledge of such judgement apply to court
upon notice
to the plaintiff to set aside such judgment and the court may upon
good cause shown set aside the default judgment
on such terms as to
it seems meet.
22.
In my view this Application cannot be entertained under Rule 31 (2)
(b). There is no condonation application for the late application
and
Rule 31 (2) (b) refers to default judgments.
23.
In terms of Rule 42 (1) the Court may in addition to any other powers
it may have, mero motu or upon the application of any
party affected,
rescind or vary:
“
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby.
(b)
An order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity,
error or
omission.
(c)
An order or judgment granted as a result of a mistake common to the
parties. ”
24.
It is not clear to the Court under which Rule the Application was
brought. The trend by the Courts over the years is not to
give a more
extended application to the Rule to include all kinds of mistakes or
irregularities.
25.
The Rule should be construed to mean that once one of the grounds are
established the rescission of the judgment should be granted.
In my
view not one of the grounds provided for in Rule 42 were established
by the First Respondent. The judgment was not erroneously
sought or
erroneously granted. There was no ambiguity, error or omission in the
judgment. The settlement agreement was made an
Order of Court. The
judgment was also not granted as a result of a mistake common to the
parties. This occurs where both parties
are of one mind and share the
same mistake.
26.
Where the First Respondent by mistake or her legal advisors abandons
relief to which she is/or may be entitled, the Court has
no power to
recall or amend the order it has in consequence deliberately made, in
the absence of fraud of the other party in the
cause of the
proceedings.
See: De Wet v Western Bank Ltd
1977
(2) SA 1033
27.
The basis upon which the First Respondent contends the settlement
agreement falls to be varied is because, there was an agreement
between her and the Applicant that the issue relating to the pension
benefits will be dealt with at a later stage.
28.
The First Respondent further submitted that she was not properly
represented during the divorce proceedings.
29.
I am not persuaded by the abovementioned contentions. The issue
relating to the pension fund was discussed with the First Respondent.
In the letter dated 10 April 2012 (Annexure MM3 to the First
Respondent’s second answering affidavit) it was clearly stated
by her erstwhile attorney Larry Chimes that the Applicant’s
pension fund was discussed and addressed, and was referred to
in all
drafts of the agreement of settlement as well as in communications
with the Applicant.
30.
It follows that the Court cannot entertain the application of the
First Respondent and the Application is dismissed.
31.
Subsequently the following Order is made:
31.1.
The Applicant’s Application to order that the First Respondent
is in contempt of court is dismissed.
31.2.
The Registrar of the Court is authorised to issue a Writ of Execution
in the sum or R1 million against the immovable property
situated at
No 7 Milnerton Street in Kyalami Estate.
31.3.
The First Respondent’s counter-application to order that the
Applicant is in contempt of court is dismissed.
31.4.
The First Respondent’s’ counter-application for a
variation of the settlement agreement and/or court order is
dismissed.
31.5.
First Respondent is ordered to pay the costs of the Applications on
client and attorney scale.
SIGNED
AT PRETORIA ON THIS THE '_
_14
th
__ DAY OF
JUNE 2013
JJ
STRIJDOM
ACTING
JUDGE: NORTH GAUTENG HIGH COURT