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[2011] ZAFSHC 199
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Rautenbach v Rautenbach (3933/2011) [2011] ZAFSHC 199 (8 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 3933/2011
In
the matter between:
LEE-MARYN
RAUTENBACH
…..........................................
APPLICANT
and
PAGEL
RAUTENBACH
…..............................................
RESPONDENT
_____________________________________________________
CORAM:
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
HEARD ON:
1
DECEMBER 2011
DELIVERED ON:
8
DECEMBER 2011
_____________________________________________________
NAIDOO AJ
[1] The applicant, who
was previously married to the respondent, seeks, in the main, an
order for contempt of court against the
respondent, arising out of
his alleged non-compliance with the divorce order dissolving their
marriage, in terms of which a Deed
of Settlement was made an order of
court on 30 June 2011. More specifically, the order (loosely
translated) that the applicant
seeks is as follows:
1. That the respondent is
found guilty of contempt of court and is sentenced to imprisonment
for a period of thirty (30) days, alternatively,
in the event that
the respondent pays to the applicant the arrear amount of R38 000.00,
he should be sentenced to thirty (30) days’
imprisonment from
the date of this order, which sentence is suspended for a period of
three years on condition that he is not found
guilty of contempt of
an order of this Honourable Court or of any other court in the
Republic of South Africa, as a result of his
failure to comply with
such an order;
2. That the respondent be
ordered to pay the costs of this application on an attorney and
client scale.
3. Further and/or
alternative relief.
The applicant was
represented by Ms H Murray and the respondent was represented by Mr
WJ Groenewald.
[2] The Deed of
Settlement provided, inter alia, that the respondent would be obliged
to:
2.1 pay maintenance of R1
500.00 per month per child in respect of the four minor children born
of the marriage;
2.2 hand over to the
applicant a Honda FRV motor vehicle;
2.3 pay an amount of R75
000.00 to the applicant as a cash settlement, which amount was
payable in monthly instalments of R3000,00
per month from the date of
divorce;
2.4 pay arrear
maintenance to the applicant amounting to R94 600.00 in instalments
of R5000.00 per month, commencing on 1 April
2011, and thereafter on
or before the first day of each succeeding month until the final
amount is paid; and
2.5 make a contribution
to the applicant’s legal costs in the amount of R10 000.00,
payable from the date of divorce.
[3] The applicant, in her
Founding Affidavit which she signed on 11 August 2011, alleges that
the respondent has failed to honour
any of the terms of the Deed of
Settlement, despite demand being addressed to the respondent’s
attorney.
[4] The respondent,
however, paints a different picture in his Opposing Affidavit. He
states that early in July 2011, when he learned
that the divorce had
been finalised, he handed the motor vehicle to the applicant, on the
understanding that, and in accordance
with the Deed of Settlement,
she would continue with the payments towards the vehicle. On 28 July
2011, he paid the applicant an
amount of R14 000.00, being R3 000,00
in respect of the cash settlement, R5 000,00 in respect of arrear
maintenance and R6 000.00
in respect of maintenance for the children.
He sets out in detail what his financial position has been, and also
admits that he
has not paid the amount in respect of his contribution
to the applicant’s legal costs and other amounts, totalling R30
000.00.
The respondent acknowledges his indebtedness in terms of the
Deed of Settlement and asserts that he has made every effort to pay
the amounts required of him, but his dire financial situation has
prevented him from fully complying with his obligations.
[5] The respondent
alleges that, around the time he signed the Deed of Settlement, he
was promised an increase in his salary by
his employer but it seems
that did not materialise, plunging him into the financial crisis that
he finds himself in. An affidavit
by a member of his employer was
filed confirming that the promised increase could not be given due to
“unforeseen circumstances”
[6] The applicant admits
in her Replying Affidavit that she received the motor vehicle from
the respondent in July 2011, that he
made payment of an amount of R14
000.00 at the end of July 2011 and, in addition, that he made further
payments of R14 000.00 each
month in August 2011, September 2011 and
October 2011. She also admits that she refunded to the respondent the
payments in respect
of the motor vehicle which were deducted from his
bank account after the divorce. It is noteworthy that these
admissions are in
stark contrast to the allegations in the
applicant’s Founding Affidavit, where she states that the
respondent did not hand
the motor vehicle to her and that he made no
payments at all in terms of the Deed of Settlement. It is also noted
that in spite
of these allegations in the Founding Affidavit, the
applicant, in her Replying Affidavit, denies alleging that the
respondent did
not hand the vehicle to her.
[7] In her Replying
Affidavit, the applicant alleges that the respondent is working for
his brother. Ms Murray suggested during
her address that the
respondent’s family controlled his salary and were thus able to
manipulate his salary advice, (presumably)
to enable him to avoid
meeting his financial obligations in terms of the Deed of Settlement.
The applicant also alleges that since
the divorce the respondent
purchased two luxury vehicles for himself and his girlfriend.
[8] 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.
[9] . The applicant in
this matter, by her admission in her Replying Affidavit, was in
possession of the motor vehicle as claimed
by the respondent. She
took possession of it approximately one month prior to her deposing
to the Founding Affidavit herein. At
the time she signed the Founding
Affidavit, she was also in receipt of the payment of R14 000.00,
which the respondent made to
her on 28 July 2011. The applicant,
however, failed to mention this, and in fact specifically alleged
that the respondent had failed
to comply at all with the order of
court.
[10] To my mind, it
appears as though the respondent has made the best efforts to honour
the court order referred to in paragraph
[1]. It is true that he has
not honoured the order fully, and he freely admits that he is still
in arrear in an amount of R30 000.00.
While the court remains
concerned that the amounts outstanding relate, in part, to the
maintenance of the minor children, the issue
that this court must
adjudicate is that of contempt of court. The explanations tendered by
the respondent and the evidence he has
advanced in support thereof
are, in my view, sufficient to discharge the evidential burden on him
relating to wilfulness and
mala fides.
The applicant has not
played open cards with the court for the reasons I have outlined in
paragraph [9] above. In addition, she
raised, in Reply, that the
respondent works for his brother and that he purchased two luxury
vehicle since the divorce. These are
factors which significantly bear
on the respondent’s non-payment of the amounts due in terms of
the court order and would
have been within the knowledge of the
applicant at the time she launched this application. These factors,
if true, would have assisted
the applicant to establish wilfulness
and/or
mala fides
on the part of the respondent.
[11] The applicant’s
failure to do so in her Founding papers is telling and adds cogency
to the respondent’s allegation
that she expressed the intent to
“ruin him”. It does not assist the applicant to have
raised these issues in Reply
as it is trite that an applicant in
motion proceedings must stand or fall by his/her Founding papers. The
applicant, in my view,
has failed to make out a case for the relief
she seeks.
[12] I, accordingly, make
the following order:
The Application is
dismissed with costs.
____________
NAIDOO, AJ
Counsel for Plaintiff:
Adv H Murray
Instructed by
Symington and De Kok 169b Nelson Mandela Drive
Bloemfontein
Counsel for the
Defendants: Adv WJ Groenewald
Instructed by:
EG
Cooper Majiedt Ingelyf
77 Kellner Street
Westdene
Bloemfontein