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2009
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[2009] ZAGPPHC 167
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Van Der Merwe v Van Der Merwe (3627/09) [2009] ZAGPPHC 167 (8 October 2009)
IN GAUTENG SOUTH HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 3627/09
DATE
: 08/10/2009
In
the matter between
MORNE
VAN DER MERWE Applicant
and
LOUISA
VAN DER MERWE Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
WILLIS J
:
[1] This is an application in terms of which the applicant seeks an
order declaring that the respondent is in contempt of a court
order
dated 29 July 2008 and committing her to jail for a period of 30 days
suspended for a period of 12 months on condition that
the respondent
complies with the court order. The applicant also seeks an order
that the respondent pays the costs of the application
as between
attorney and client.
[2] The previous court order in question is one dated 29 July 2008.
It was an order made by consent between the parties and was
a Rule 43
order relating to pending divorce proceedings. At the same time as
making the order relating to access and custody,
Tsoka J made an
order relating to certain interim proprietary consequences pending
the divorce.
[3] The divorce action has not yet been heard. Ms
De Wet
, who
appears for the applicant, has submitted that her client no longer
persists with the application that the respondent be committed
to
jail and that that order be suspended. All that the applicant seeks
is an order that the respondent is in contempt.
[4] The applicant is an attorney practicing in this town. I wish to
record and to state quite emphatically my extreme displeasure
that
this application should even have been brought before court. The
applicant and the respondent are privileged beyond the dreams
of
probably 99 percent of the population in South Africa. They live in
one of the most affluent suburbs in Johannesburg. The extent
of
interim maintenance way exceeds what most people could ever dream of
earning.
[5] There was an order relating to access and custody made by consent
and yet the parties continue to squabble over it. This court
is one
of the busiest motion courts in the Southern hemisphere. It is
certainly the busiest court in South Africa. For probably
more than 5
hours I had to listen to counsel squabbling over what is the
appropriate order to make in this matter. I have begged,
I have
pleaded, I have cajoled and exhorted the parties please to come to
some kind of sensible arrangement.
[6] Before going further I wish to say that in my
prima facie
view the order relating to access is far too detailed for it to be
practically workable. I beg the parties please to consider
revising
the order as to access in order to prevent skirmishes of this kind.
[7] I regret to say both the applicant and the respondent are
behaving like spoiled, over indulged children and it is simply not
fair, when there are so many other pressing issues that the courts in
South Africa have to consider, that time should be taken
up with a
matter like this which could easily be capable of resolution.
[8] It certainly is clear on a balance of probabilities that the
respondent has indeed been in contempt. It is quite clear that
she
seems to regard the court order simply as some kind of suggestion as
to how she should behave. She has put forward all sorts
of weak and
petty excuses.
[9] On the other hand, to find a person in contempt of court is a
very serious finding indeed. I would also respectfully refer
to what
was said by the Supreme Court of Appeal in the now well-known of
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
paragraph 42: the requisites of contempt have to be proven beyond
reasonable doubt. If the matter could be established
simply on a
balance of probabilities I would have had no hesitation in finding
the respondent in contempt. There are, however,
complex issues such
as intention
et cetera
, that have to be determined before a
finding of contempt can be made.
[10] It therefore seems to me that the matter should be referred to
oral evidence. Ms
Liebenberg
, who has appeared for the
respondent, has criticised the applicant for bringing this
application for contempt of motion proceedings
because the disputes
of fact were foreseeable. There is merit in this submission.
Nevertheless, the court retains a discretion
in the matter. In my
respectful view, the case of
Wiese v Joubert and Andere
1983
(4) SA 182
(O) sets out rigorously the position as to the question of
the court having a discretion where there are disputes of fact.
[11] One has here a situation where a rule 43 order was granted by
consent between the parties. There is a pending divorce action
and
one clearly has a frustrated father in the form of the applicant,
seeking compliance with the order. I do not think it can
reasonably
have been expected of him to bring the matter before court by way of
trial proceedings.
[12] It therefore seems to me that a proper exercise of a discretion
is to refer the matter for the hearing of oral evidence.
The precise
terms of that referral need to be determined. I shall afford the
parties an opportunity to settle those terms. If
they do not they
may approach me in chambers for the appropriate order as to the term
of the referral to oral evidence.
[13] I shall also request that the Registrar and the Deputy Judge
President allocate this matter for hearing as one of priority.
Clearly there can be no costs order at this stage and costs will have
to be reserved.
[14] The following order is made:
[14.1] The dispute between the parties as to whether or not the
respondent is in contempt of the order granted on 29 July 2008
is
referred to oral evidence.
[14.2] The parties are given two weeks from today in order to settle
the terms of the referral to oral evidence.
[14.3] If the parties fail to reach agreement on the terms of
referral to oral evidence, they may approach me in chambers for a
suitable order in this regard.
[14.4] The Depute Judge President and the Registrar are respectfully
requested, in view of the urgency of the matter, to allocate
a
hearing of this dispute as one of priority.
[14.5] The costs of the application are reserved.
.