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[2009] ZAGPPHC 293
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M.A.V.T v J.V.T (51591/2009) [2009] ZAGPPHC 293 (18 September 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 51591/2009
In
the matter between:
M.A.V.T.
Applicant
And
J.
V.T.
Respondent
JUDGMENT
LEPWABA,
J
[1]
The applicant brought an urgent application for the respondent to be
committed for contempt of court in that he failed to pay
in
accordance with the Rule 43 court order dated 20
th
May
2009.
[2]
The relevant orders in the court order reads as follows:
“
3.
DAT die Respondent betaal onderhoud aan Applikant teen R19 000.00 per
maand vanaf 1 Junie 2009 en daarna vanaf die eerste van
elke maand.
4.
DAT die Respondent betaal verder:
4.1.
die kinders se skoolgelde en fooie;
4.2.
die kinder se redelike buitemuurse aktiwiteite wat insluit;
einsteinklasse, skaakleese en klavierlesse;
4.3.
die Applikant en die kinders se redelike mediese, tandheelkundige en
hospital uitgawes wat nie deur die Applikant of Respondent
mediese
fonds gedek word nie;
4.4.
die Applikant se motor uitgawes ten opsigte van die paaiement,
onderhoud, en instandhouding, verbetering en Matrix/Netstar.
”
[3]
The court order was made after the court heard the applicant and
respondent’s version in the Rule 43 proceedings.
[4]
It is common cause that there is a valid court order that the
respondent did not comply with. The onus is on the respondent
to
prove that he was not mala fide. For the majority, Cameron JA, as he
then was, in Fakie N.O. v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
, in
his erudite exposition said in paragraph 42 the following:
“
To
sum up:
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the
form of a
motion court application adapting to constitutional requirements.
(b)
The respondent in such proceedings is not an ‘accused person’,
but is entitled to analogous protections as are appropriate
to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala fides) beyond reasonable doubt.
(d)
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.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities. ”
[5]
The defence raised by the respondent is simply that with his monthly
salary of R62 052.00, it is impossible to comply with the
court order
because he should pay the bond of the house and his other personal
expenses. Unless the applicant signs the documents
for the
application of a second bond on the house which forms part of the
joint estate as per the counterapplication. The
applicant
opposes the counter-application.
[6]
The respondent quantified his obligations in the court order as
follows:
“
3.1.
R19 000.00 in respect of maintenance.
3.2.
-R1 611.00 in respect of school fees.
-R766.67
in respect of music tuition.
-R200.00
in respect of school related expenses.
-R200.00
in respect of extramural activities.
-R250.00
in respect of extramural activities.
3.3.
R3 000.00 in respect of car instalment.
3.4.
R178.95 in respect of vehicle tracking.
3.5.
R500.00 in respect of vehicle insurance.
3.6.
R1 197.14 in respect of counter medicine.
3.7.
R10 333.33 in respect of relocation and contribution to costs. ”
[7]
Advocate Arnoldi (SC) submitted on the respondent’s behalf that
having regard to the respondent’s expenses, in particular
the
bond repayment of R28 292.74 it is impossible for the respondent to
comply with the court order.
[8]
The applicant alleged in the papers that the respondent was in
arrears with the amount of R47 000. She further alleged that
since
the court order was made he paid:
R10
333.33 for relocation fees on 30/06/2009,
R10
000.00 for maintenance on 20/06/2009 and R10 333.33 for relocation
fees on 20/08/2009.
[9]
On the respondent’s version he cannot comply with the court
order because he has other liabilities. However, the respondent
does
not state why his other liabilities are more important that the court
order and why some of the said liabilities cannot be
reduced.
[10]
I will have to keep in mind that an application for committal for
contempt of court arising from failure to comply with a Rule
43 order
involves the likelihood of depriving the party who does not comply
with his/her liberty and concomitantly the applicant
may not benefit
financially if such an order is granted.
[11]
In Burchell v Burchell ECJ NO 010/2006 (JOL 16722 E) Froneman J
correctly said committal for contempt of court orders is not
contrary
to fundamental rights, but that, on the contrary, compliance with
court orders is of fundamental concern to a society
that bases itself
on the rule of law. I agree.
[12]
The court should carefully consider the circumstances of each case
before granting such an order. The court should be satisfied
that non
compliance was wilful and mala fide.
[13]
In carefully scrutinising the defence raised by the respondent, he
states that because of the bond payment and his personal
expenses he
cannot comply with the court order.
[14]
Advocate Arnoldi SC submitted that the respondent cannot challenge
the court order because he cannot prove the material change
which
took place in the circumstances of either party as required in Rule
43(6). The respondent has not even approached the maintenance
court
to seek a reduction.
[15]
The respondent filed a counter-application in terms whereof he should
be permitted, without the applicant’s written consent
to obtain
a loan about R250 000.00 and to register a second bond on the house
so that he could comply with the court order.
[16]
The respondent, in my view, raises, as a shield his personal expenses
and the payment of the bond for the house for his failure
to comply
with the court order.
[17]
The respondent has not stated what steps did he take to reduce his
expenses and if he tried to rent out the house so that the
bond
payment should not be a burden to him.
[18]
The respondent wants to increase the liabilities of the joint estate
without a loan with showing what material steps he took
to reduce his
other expenses.
[19]
In my view, it is not impossible for the respondent not to comply
with the court order, he regards his other expenses to be
more
important than the court order, in my view, he is acting wilfully and
mala fide.
[20]
The respondent is presently in the arrears with an amount of about
R47 000 since the order was made in May 2009. The relocation
costs
are almost settled but the respondent is not making any offer
regarding compliance with the court order. As far as possible
compliance with the court order is concerned, the respondent stated
that he wants a loan to pay the amounts in the court order.
[21]
Should a loan of R250 000 be obtained, and if the respondent is going
to pay about R40 000 per month to comply with the court
order and to
settle the arrears, in six month’s time the loan amount would
be exhausted. The respondent would therefore fall
into arrears again.
[22]
The respondent did not, in my view, put a credible and acceptable
version before the court showing that he cannot comply with
the court
order and that he is not acting wilfully mala fide.
[23]
I am therefore, satisfied that the applicant succeeded beyond
reasonable doubt that the respondent is in contempt of the court
order.
[24]
I
therefore, make the following order:
1.
The respondent is sentenced to three months imprisonment which is
wholly suspended for three years on the following conditions:
1.1.
That the respondent settles the arrear amounts including the arrear
amounts in respect of the items 4.1-4.4 in the court order
dated 20
May 2009 within three months from the date of the order and
1.2.
That the respondent complies with the court order dated 20 May 2009
every month from the 1 October 2009.
2.
The respondent’s counter-application is dismissed.
3.
The respondent is ordered to pay the costs.
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT