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2012
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[2012] ZAKZDHC 71
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Ramiah v Ramiah (8262/2008) [2012] ZAKZDHC 71 (6 November 2012)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO:8262/2008
In the matter between:
VINOTHA RAMIAH
...............................................................
Applicant
and
NEETHIPRAKASHUM RAMIAH
.............................................
Respondent
______________________________________________________
JUDGMENT
______________________________________________________
Delivered : 6 November 2012
M PILLEMER, AJ:
[1] The Applicant seeks an order
against her estranged husband holding him in contempt of court and
committing him to periodical
imprisonment for contempt of court. She
alleges that the Respondent deliberately refused to comply with a
court order made in her
favour in terms of Rule 43 of the Uniform
Rules of Court for maintenance and other relief pending the
finalisation of their pending
divorce action.
[2] An applicant in proceedings for
civil contempt has to prove the order; service or notice;
non-compliance; and wilfulness and
mala fides
beyond
reasonable doubt. But, once the applicant has proved the order,
service or notice, and non-compliance, the respondent bears
an
evidential burden in relation to wilfulness and
mala fides
:
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful and
mala
fide
, contempt will have been established beyond reasonable
doubt.
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
[3] The Respondent admits the Rule
43 Order, which was granted on 17 December 2008, that it was served
and that he has not complied
with it since at least February 2010. He
denies however that he is guilty of contempt of court because he
contends that the court
order had lapsed by February 2010 or, if it
had not, that he genuinely believed it had lapsed and therefore had
no intention to
deliberately disregard an order of court.
[4] This defence is that described
in
Gold v Gold
1975 (4) SA 237
(D) at 239F, namely that
Respondent did not act in willful disobedience of the order of court
but in the
bona fide
belief that it had ceased to operate. In
the
Gold
case Howard J (as he then was) after describing the
nature of the defence added “as appears from cases such as
Consolidated Fish Distributors (Pty.) Ltd. v Zive and Others
,
1968 (2) SA 517
(C) at pp. 523 - 4;
Haddow v Haddow,
1974 (2)
SA 181
(R) at p. 183;
Noel Lancaster Sands (Edms.) Bpk. v Theron
en Andere,
1974 (3) SA 688
(T) at p. 691, that is a complete
answer to the case” which the respondent in Gold was called
upon to meet. He too had failed
to pay a maintenance order because he
believed
bona fide
that it had fallen away.
[5] The reason the Respondent
contends the order is not binding and had lapsed is that after the
pleadings closed in the divorce
action that he had launched and in
which the Applicant had counterclaimed, the parties had become
reconciled and had resumed a
normal marriage relationship for almost
a year thereafter. The pleadings were complete in December 2008. The
rule 43 Order was
made on 17 December 2008. The parties did not
proceed with the action: instead, in March 2009, they chose to
reconcile. Respondent
moved back into the matrimonial home and the
parties then lived together for almost a year as husband and wife
resuming their marriage
relationship with each other.
[6] The Respondent has testified in
his answering affidavit that he
bona fide
believed that with
the reconciliation the rule 43 Order fell away and ceased to be of
any force or effect. He testified further
that he was advised that
the reconciliation may well have extinguished the respective causes
of action in the pending divorce action.
[7] He had good grounds for
believing that the action fell away. He after all had abandoned his
action and by her conduct the Applicant
demonstrated that she had
done likewise with regard to her counterclaim. There is no evidence
that the reconciliation was conditional
or an attempt “without
prejudice” to the pending actions if it failed. The parties in
March 2010 were faced with a
choice as to whether they should
reconcile or continue to litigate. These two courses of action were
inconsistent with each other.
Seeking a divorce on the grounds of
irreconcilable breakdown is inconsistent with a reconciliation and
the restoration of the marriage
relationship and so, once the parties
elected to reconcile, they made a decision to do something that was
inconsistent with the
action proceeding. Faced with two mutually
destructive options electing to exercise the one results in law in
the inference that
the other is abandoned in accordance with the
doctrine of election which has been described thus “where a man
has two courses
open to him, and he unequivocally takes one, he
cannot afterwards turn back and take the other. Where there has been
no unequivocal
act, then whether an election has taken place or not
is a question of fact” per Bristowe J in the often quoted
extract from
Angehrn and Piel v Federal Cold Storage Co Ltd
1908
TS 761.
No attempt was made by the Applicant in her replying
affidavit to contradict the evidence that the reconciliation had been
genuine
or to suggest that her commitment to it was equivocal or that
she had expressed any reservations whatsoever.
[8] In the context of a judicial
separation that was part of our law before the Divorce Act came into
effect it was explained in
Barnard v Barnard
1926 WLD 137
that
“the general principle of law is, of course, undoubted, that an
existing deed or a judicial decree of separation is
a bar to an
action for restitution. But it is contended by Mr. Juta, for the
plaintiff, that this is so only on condition that
the parties have
not thereafter composed their differences and come together again;
that, once having come together again, the
existing deed or
separation order not only becomes inoperative for the period that
parties do come and live together, but that
it lapses and ceases to
have any effect so soon as parties by their conduct have agreed that
the order should no longer be of force
as between them. And the point
to be determined in the present case is whether such an order is to
be deemed to be still in existence
and a bar to proceedings for
restitution of conjugal rights, merely because it has not been
formally set aside by judicial process,
where the parties thereto
became reconciled and actually lived together, after the order was
made.”
After a comprehensive discussion of
the authorities on the topic the court then came to the following
conclusion:
“
The conclusion to which I
have come, on this volume of authority, is that undoubtedly the
weight of opinion expressed by the Judges
of the Courts of South
Africa is to the effect that, although the existence of a deed of
separation, whether underhand or judicial,
between husband and wife,
operates as a bar to a subsequent action at the instance of either
spouse for restitution of conjugal
rights, yet where the parties
themselves have elected to treat the agreement or decree as a nullity
the Court will look upon it
as having lapsed, and as having become
inoperative; and if, thereafter, either party deserts the other, the
party deserted is entitled
to institute action for restitution of
conjugal rights without going through the formality of first setting
aside the decree or
the agreement, as the case may be.”
[9] The premise behind an order for
maintenance
pendente lite
is that the parties are no longer in
a normal marriage relationship and it is necessary therefore for the
court to regulate issues
such as maintenance pending the divorce.
That premise falls away once the parties reconcile and resume a
normal marriage relationship.
It seems to me that much like the order
for judicial separation, a rule 43 Order similarly lapses once the
parties by their conduct
have agreed that the order should no longer
be of force as between them when they resume their normal marriage
relationship and,
if it breaks down again so that there is a need to
regulate the position again, then it is necessary for a fresh
application to
be made under Rule 43. The Order does not simply
revive and is not latent lying in limbo during the reconciliation.
This is on
the assumption of course that the reconciliation is
genuine and not conditional and that they have not agreed that if it
fails
the order will be revived.
[10] The marriage relationship broke
down again eleven months later in February 2010 when the Applicant
had an extra marital affair
and the Respondent moved out of the
matrimonial home. To my mind this constitutes an entirely new cause
of action that arose when
the marriage relationship broke down in
February 2010 and if either of the parties wished to sue for divorce
after February 2010
that party could only show an irretrievable
breakdown that occurred in or after February 2010, because for almost
a year prior
to that they had been living as husband and wife in a
normal marriage relationship. February 2010 is well over a year after
the
pleadings in the divorce action had closed in December 2008. The
cause of action in the pending action could not be sustained because
the evidence would show that the marriage relationship had not
irretrievably broken down at that time.
[11] The Respondent did not resume
making the payments in terms of the rule 43 order of December 2008
when the parties separated
in February 2010 because, he says, he
believed the December 2008 court order had fallen away. The
Applicant, who was living as
husband and wife with another man at the
matrimonial home, did not complain about the failure of the
Respondent to comply with
the Rule 43 Order from the time of the
second separation in February 2010 until twenty months later in
November 2011. In November
2011 she made a demand and then launched
the present application for contempt of court in March 2012 seeking
the imprisonment of
the Respondent. The only time the order was
mentioned by her before November 2011 was in a letter from her
attorney who stated
in one paragraph in a long without prejudice
letter that the Applicant “has advised that she will have the
house sold to
defray the bond expense and [Respondent’s] share
of the liabilities in terms of the Rule 43”, without specifying
what
these were and without demanding compliance with the Order.
[12] About a month after launching
the present contempt proceedings the Applicant brought proceedings in
terms of rule 43 (6) for
a variation of the 2008 Order. One of the
issues before the court in those proceedings was whether or not the
2008 Order had lapsed.
I was informed from the bar that Jeffrey AJ,
who heard the application in August 2012, found that the Order had
not fallen away
and made an order under Rule 43(6) that varied the
original order. I was also informed that an
ex tempore
judgment was delivered. I have been able to access the digital
recording of the judgment and have listened to the record of it
being
delivered. In the judgment the issue of whether or not the Rule 43
Order had lapsed is mentioned as one of the issues to
be decided. The
court records that counsel did not provide authority for the
proposition that the Order had lapsed and states that
he too had been
unable to find any. The learned judge stated that in his view the
court order was merely “put on hold”
during the
reconciliation but the reconciliation did not “do away with it
altogether”. He rejected the contrary proposition
as “having
no merit whatsoever”, but unfortunately gave no reasons as to
why he came to this conclusion. Accordingly
what was held was that
the effect of the reconciliation was to suspend the operation of the
2008 Order during the reconciliation
and that it revived thereafter
when the parties separated again in February 2010.
[13] Although for the reasons set
out above I take a different view, as between the parties the issue
has been decided. The Rule
43 Order has been varied and the
Respondent is clearly bound by that order, which he is complying
with. In my view an eleven month
reconciliation is a clear election
by both spouses to abandon the their respective claims and
counterclaims for divorce. The Respondent
was the plaintiff in the
action and he says that is what he thought occurred when the parties
reconciled. He obviously had an intention
to abandon the proceedings
and acted upon that intention. I cannot see how the Applicant could
be said to have done otherwise in
relation to her counterclaim when
she agreed to the reconciliation particularly since it endured for as
long as it did and broke
down on a basis different from the original
cause of action in the summons. If the action was
de facto
abandoned and the respective causes of action were lost, then a rule
43 Order that was to operate pending the outcome of the action
surely
fell away. Even if the divorce action remained pending, the premise
underlying the 2008 Order had fallen away which in turn
caused the
order to fall away as between the parties. However even if I am wrong
on this (and as between the parties the issue
has been resolved on
the basis other than the one I consider correct), it is certainly to
my mind a legitimate belief for the Respondent
to have held and, that
being so, there is no reason to disbelieve him when he testifies that
he held such belief and, if that is
the case, he was not in willful
default of the order of court.
[14] Mr Chetty, who appeared for the
Applicant, accepted that on the evidence on the papers the Respondent
was initially
bona fide
in his belief that the Order had
lapsed, but contended that once it was clear that the Applicant
regarded the Order as extant then
he contended the Respondent should
have regarded himself as being bound by it and his remedy was to seek
a variation of the rule
43 order and not to simply flout it. He
relied upon the judgment of Jeffrey AJ that the order remained in
force. This is of little
help to the Applicant because it was common
cause that the Respondent is complying with the Order made by Jeffrey
AJ. Mr Chetty
also contended that the Respondent must have
appreciated that he was bound from the time the without prejudice
letter was sent
to his attorneys in August 2011. The action had not
been formally withdrawn and thus, Mr Chetty submitted, it cannot be
said that
the rule 43 Order, which operated pending the action, had
fallen away. He contended that the Respondent could not have
genuinely
believed that he did not have to comply with the order, but
could not point to any evidence that would support this submission
other than the reference to the order in the without prejudice
October 2011 letter in the extract quoted above. I do not agree with
this approach. If Respondent genuinely believed the action had fallen
away and with it the rule 43 order then he was not in contempt
of the
court order in failing to comply with it. There was no demand from
February 2010 until November 2011 for him to comply with
the order
and he had no reason to doubt his view. I am satisfied that the
evidence established that even if the Order did survive
then the
Respondent
bona fide
believed, and with good reason, that it
did not and therefore was not in contempt of the court in treating
the order as if it had
fallen away.
[15] Having regard to the history
set out above it must have been plain to the applicant that she could
not discharge the onus of
proving
mala fides
beyond all
reasonable doubt. It was unconscionable to my mind for the Applicant
to seek to have the Respondent imprisoned by way
of these proceedings
when what she ought to have done was approach the court under rule
43, explaining the background, providing
evidence of the changes
since the order was granted more than three years earlier and either
seeking a fresh order or, as she did,
a variation of the original
order if it had not lapsed. I consider these proceedings to be a
costly abuse of the process of court.
[16] I am satisfied that the
Respondent is not guilty of contempt in failing to comply with the
order that he
bona fide
believed had fallen away and so in the
result the application must therefore fail. Both parties agreed that
costs should follow
the result, which for the reasons set out in
paragraph 15 above I would have awarded to the Respondent anyway.
[15] The application is dismissed
with costs.
_______________________
M PILLEMER, AJ
Counsel for the Applicant : K J
Chetty
Applicant’s Attorneys: Pravda
and Knowles
Counsel for the Respondent: E S Law
Respondent’s Attorneys:
Shaukat Karim & Co.
Date of hearing
: 1 November 2012
Date of Judgment
: 6 November
2012