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[2013] ZAGPPHC 406
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Burger v Burger (15561/13) [2013] ZAGPPHC 406 (8 November 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER:15561/13
DATE:
8 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
LIESEL
CARA BURGER
……………………………………………
APPLICANT
And
ABRAHAM
GERHARDUES BURGER
………………………….
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
The applicant seeks an order that the respondent be declared to be in
contempt of certain orders of court and that he be incarcerated
for a
period of six months. The orders are the following:
An
order by Tolmay on 30 July 2010 in case number 38093/20 and which is
annexed to the papers as annexure “LB1”;
2.
An order by Botha J on 23 August 2010 in case number 10019/ 2010 and
which is annexed to the papers as annexure “LB2”;
and
3.
An order by Van der Merwe DJP on 31 July 2012 in case number
76827/2009 and which is annexed to the papers as annexure “LB3"
Contempt
proceedings were launched with regard to the order under case
10019/2010. The application was postponed to a further date.
The
applicant averred that for a while the respondent complied with the
orders of Sapire J of 21 May 2010 and as contained in annexure
“LB4’and also for a while paid maintenance. This order is
not the subject of this application.
[2]
This application was opposed. Furthermore in a counter application
the respondent sought to have the above mentioned orders
varied in
the following respect:
1.
That the primary residence vest with the respondent; or
2.
Maintenance be reduced to R2000.00 per month per child including
medical aid and school fees;
3.
That
applicant/respondent be responsible to pay board and lodging when the
minor children stay with either party; or
4.
Each
party contribute 50% each towards school fees, school and
extracurricular activities, school clothing, medical expenses, food
and housing;
[3]
Tolmay J ordered respondent to pay applicant’s costs of the
application before her. The Bill of Costs was taxed to the
tune of
R23 057.05. The applicant averred that respondent failed to comply.
[4]
Botha J ordered respondent to pay maintenance to the applicant in the
amount of R8000.00 commencing 5 September 2010 and that
subsequent
payment be made on or before the 5
th
of every succeeding month. The respondent was also ordered to
contribute towards the costs of the applicant in the amount of
R2500.00,
payable in instalments of R500.00, commencing 5 September
2010. The applicant averred that the respondent made payments towards
maintenance in the amount of R32 706.33 as outlined in the founding
affidavit and failed to make any contribution towards costs.
Consequently at the launch of this matter he was in arrears in the
amount of R145 793.67.
[5]
Van der Merwe DJP incorporated the deed of settlement entered into by
the parties into his order granting a decree of divorce.
The order
entailed the following:
That
the respondent:
1.
contribute an amount of R4000.00 in respect of each of the minor
children J… and E… until they became self-supporting
and, payment was to commence on 1 August 2012;
2.
contribute
all school fees up to tertiary level;
3.
contribute 50% of school books, clothing, tours, excursions and
extracurricular activities;
4.
register
the minor children as beneficiaries on his medical aid and to pay for
additional medical needs not covered by the medical
aid and, to
reimburse the applicant within 30days of her producing proof of
payment for such extras paid for by her;
5.
deliver to the applicant within seven days of the divorce being
granted a medical aid card for the minor children;
6.
pay the outstanding fees of Kevin and Ms Fourie in the amount of R1
796.10 by the end of August 2012;
The
applicant averred that the outstanding maintenance between 1 August
2012 to 1 March 2013 stood at R64 000.00. She had failed
to pay her
share of the minor children’s school fees due to none payment
of maintenance. The respondent had also failed to
pay his share of
the fees which amounted to R19 995.00. The respondent had failed to
provide her with a medical aid card as ordered.
Several letters were
addressed to the respondent’s attorney regarding the arrears.
At one stage he attempted to vary the
maintenance ordered in the Rule
43 order. He abandoned the application.
[6]
The respondent admitted having failed to comply 100% with the orders
of Court, not because he was refusing or neglecting to
do so but
because he could not afford to pay. The answering affidavit is
replete with matters not relevant to the application.
I shall try to
extract but a few of the several reasons advanced for not paying
maintenance:
1.
“/
have
not read one statement in the applicant’s founding affidavit
that she or the minor children are in want or need due
to my alleged
failure to pay maintenance. The general slant of her affidavit is
the respondent is a chartered accountant and
he can therefore pay
alternatively he must go to prison because I am entitled to his
money” (para 3.1)
2.
“Having
to pay “100% of maintenance as per court order and unnecessary
legal fees caused by the applicant ....impacting
negatively on my
credit record with damaging consequences on my career and future
income” (para 7.11)
3.
“distress
caused at my workplace by applicant and maintenance I had to
pay....my employees resigned and so did my clients
dwindle”
(para 1.13)
4.
“I
therefore deny that I refused to comply with the said court order,
save that I dismally failed to pay applicant’s
legal fees as
ordered due to my miserable financial situation, which
was
and
still is out of my control” (para 8.10)
5.
“I
am depicted as a financial powerhouse who simply refuses to pay
maintenance. This, while the applicant is fully aware of
my dire
financial situation. ”
[7]
The respondent denied that he had failed to hand over the medical aid
card for the minor children or that he was responsible
for paying the
psychologist Ms Fourie. However, having reconciled his payments
against the outstanding amounts alleged by the applicant
he admitted
that on his own calculations he was in arrears in respect of
maintenance:
1.
in the amount of R106 047.67 in respect of the order of 23 August
2010;
in
the amount of R72 000.00 in respect of the order of 31 July 2010;
The
school fees of the minor children still remained outstanding.
[8]
In
GFv
SH
2011 (3) SA 25
(NG)
at 34H-J Kollapen AJ cited with approval the matter of
Fakie
NO v CC11 (Systems (Pty) Ltd (4) SA 326 (SCA)
at para 9, on the test to be applied in order to determine wilful or
mala fide non compliance where the following was stated:
“
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)”
Kollapen
J stated:
“the
consequences of a committal for contempt impact on the freedom and
liberty of the individual; at the same time orders
of court create
serious obligations and should not be lightly disregarded. At the end
of the day the court, in considering an application
for committal,
must indeed be satisfied that there is no reasonable doubt that the
party whose committal is being sought acted
mala fide or wilfully. ”
[9]
As I see it, the respondent found an opportunity in his answering
affidavit to deal with all the complaints he had against the
applicant which were not relevant to the determination whether his
failure to comply with the said orders was not wilful deal with
all
the complaints he had against the applicant which were not relevant
to the determination whether his failure to comply with
the said
orders was not wilful and
mala
fide.
[10]
Mr Kruger for the applicant argued that the respondent was in a
position to make payment as ordered and that this could be
deduced
from the following:
1.
The respondent was a chartered accountant and gainfully employed
during certain periods. . The respondent concurred with the
applicant that he had spent about R300 000 in legal fees up to 2012.
He accounted for an amount of R173 483.80 and suggested
that he had
misplaced his other receipts.
I
took into account the figures in ‘annexure G10’ of the
respondent's papers and note that he paid more than a R100
000.00 in
legal fees between August 2010 and July 2011. It is clear that the
respondent had income to pay his legal fees over and
above his other
expenses. In my view he has failed to give a satisfactory explanation
why he could not pay the applicant’s
costs of R23 057.05 and
contribution towards costs of R2 500.00 during the above period,
especially where in respect of the latter
amount he had to pay in
instalments of R500.00 per month.
2.
The maintenance payable in respect of the Rule 43, the divorce order
and contribution towards costs were payable directly to
the
applicant. Although the respondent was responsible for paying the
minor children’s medical aid, such contributions were
not
payable direct to the applicant except for the extras not covered by
medical aid.
The
respondent should not have included his medical aid contributions in
his calculations of arrear maintenance. He was ordered
to keep the
minor children on his medical aid and to provide the applicant with a
medical aid card. He admitted making payments
to the applicant, the
last being on 21 December 2011 for R2000.00 and that he was 23 months
in arrears. Therefore the arrears in
respect Botha J’s order
were 23 x 8000 =
184000
- 32706.33 (maintenance paid) = 151 293.67 (arrears).
3.
The
respondents ABSA account reflected that during September and November
2012 substantial payments of R 37 701.19 and R37 660.73
respectively
were deposited into the account. No maintenance was paid to the
applicant. The respondent was again placed in a position
to pay
maintenance when during March 2013 he landed a three month contract
paying R500.00 per hour limited to a maximum of 130
hour per month,
he again failed to contribute towards maintenance as was ordered.
4.
The payment to Ms Fourie formed part of the Divorce order. If
respondent had a problem with it, he had the right to approach
the
court to rescind the order and he failed to do so was to appear and
his attorneys should have informed him. It is inconceivable
that he
could have been under the mistaken belief that he was still married
to her up to March 2013, that is, when he alleged he
became aware for
the first time of the order of 31 July 2012. The respondent has
always been aware of his right to approach the
Maintenance Court to
have the amounts reduced. He failed to follow through with his
application for a variation. That avenue is
still open to him,
however until such time that the order of Van der Merwe J is varied,
the respondent is responsible for paying
maintenance as ordered and
of complying with all the other orders pertaining to medical aid,
school fees and his 50% contribution
towards other needs of his minor
children.
[12]
In my view, the respondent acted
mala
fide
and wilfully in not complying with the orders because he first wished
to settle other issues with the applicant as appears in his
answering
affidavit. He failed to make out a proper case in his counter
application. The fact that he now seeks to have the maintenance
reduced to R2000.00 per month per child is indicative of his ability
to afford maintenance even at this reduced rate together with
the
ability to cater for his responsibilities towards his new family. If
he can afford the reduced rate an attempt at least should
have been
made to contribute that amount as contended by the applicant.
Furthermore, he failed to play open cards on how he could
suddenly
afford a reduced amount.
[13]
In the circumstances I make the following order:
1.
The respondent is declared to be in contempt of the orders of this
court handed down on the, 30 July 2010,23 August 2010 and
31 July
2012;
2.
The
Respondent is sentenced to four months imprisonment, wholly
suspended for a period of three years, on condition that he pays
the
following:
2.1
The
fees due to Ms Fourie in the amount of R1796.00 on or before 30
November 2013;
2.2
His
50% share towards the minor children’s school fees which is in
arrears as at the handing down of this order. The arrears
should be
paid on or before the 30 November 2013 to the applicant;
2.3
applicants
costs in the amount of R23 057.05 and R2 500.00 on or before the 31
December 2013;
An
amount of R5000.00 per month commencing 1 February 2014 and
thereafter on or before the 7
th
day of each succeeding month until such time that the arrear
maintenance calculated at R151 293. 67 has been fully paid.
Each
party to pay his/her own costs of this application.
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON 30 SEPTEMBER 2013
JUDGMENT
RESERVED ON 03 OCTOBER 2013
ATTORNEYS
FOR THE APPLICANT LUBBE INGELYF
ATTORNEYS
FOR THE RESPONDENT IN PERSON