Wilson v Wilson (6669/08) [2009] ZAFSHC 2 (16 January 2009)

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[2009] ZAFSHC 2
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Wilson v Wilson (6669/08) [2009] ZAFSHC 2 (16 January 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 6669/08
In
the case between:-
JOAN
WILSON
Applicant
and
PIETER
STAUBESAND WILSON
Respondent
_______________________________________________________
HEARD
ON:
11
DECEMBER 2008
_______________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_______________________________________________________
DELIVERED
ON:
16
JANUARY 2009
_______________________________________________________
[1]
These
proceedings are about contempt of court. The parties are a couple.
The applicant is the respondent’s wife. She is a housewife.
He is
a farmer. The couple is going though divorce. The application for
the conviction of the respondent for contempt of court
is opposed.
[2] The parties were
married to each other out of community of property in Pretoria on 22
February 1969 and the marriage still subsists.
The four children
born of the marriage are now all adults.
[3] On
4 June 2006 cohabitation between the parties came to an end. The
applicant left the marital home on a farm called Diepputten
Marolong,
Nylstroom district in the Limpopo Province. She left the respondent
cum
animo non reverteni
.
Her intention was to seek a decree of divorce.
[4] On
8 December 2006 the applicant brought a maintenance application in
terms of rule 43 under case number 5241/2006. She claimed
an amount
of R16 100,00 per month
pendente
lite
and other ancillary relief. The application was heard on 29 March
2007. C.J. Musi J ordered the respondent to maintain the applicant
pendente
lite
at the rate of R12 500,00 per month from 7 April 2007; to pay all
reasonable medical expenses of the applicant; to contribute an
amount
of R7 500,00 towards the applicant’s legal costs and to transport
the applicant’s furniture from Nylstroom to Bloemfontein
at his
costs. The costs of the main application were, as is the practice,
reserved as costs in the divorce action.
[5] On
29 March 2007, in other words, the same day on which the maintenance
order was made, the applicant also filed for divorce
under case
number 1341/2007. The action is defended. It has already been
enrolled for hearing from 26 May 2009.
[6] On
31 October 2008 the applicant brought the current proceedings. This
application was launched in order to conduct an investigative
inquiry
as to whether the respondent is in contempt of court or not
ex
facie curaie
.
As regards the court order made in terms of rule 43 on 29 March 2007
by C.J. Musi J. At the time these proceedings were initiated
the
respondent was in arrears with his maintenance to the extent of R102
850,00 in respect of the maintenance component only of
the court
order. This was common cause.
[7] The
applicant contended that the respondent possessed sufficient means
and that he was, therefore, able to comply with the aforesaid
court
order and that he spitefully disobeyed the court order for no sound
financial reason.
[8] The respondent
disagreed. He contended that he did not have adequate resources;
that his financial position was very poor;
that the financial
position of the business trusts were also very weak; that he was,
therefore, unable to fully comply with the
court order and that his
non-compliance was not deliberate or spiteful.
[9] The question in the
case is whether the respondent was in wilful default or not seeing
that the respondent does not deny knowledge
of the court order and
his non-compliance with such order.
[10] A
cursory overview of the law appears to be necessary. An applicant
who seeks an order for the committal of a respondent for
contempt of
order must show the following: that an order was granted against the
respondent; that the respondent was either served
with the order or
informed of such an order against him and can have no reasonable
grounds for disbelieving that information and
that the respondent has
either disobeyed the order or neglected to comply with it. See
Herbstein & Van Winsen:
The
Civil Practice of the Supreme Court of South Africa
,
4
th
Edition at p. 818. The standard of proof required to sustain
committal for civil contempt is to prove all the elements thereof

beyond reasonable doubt. See
UNCEDO
TAXI SERVICE ASSOCIATION v MANINJWA AND OTHERS
1998 (3) SA 417
(ECD) at 429 G – I.
[11] The
correct approach to motion application pertaining to alleged contempt
of court order has enjoyed a great deal of attention
by the courts.
The onus, in particular its nature and scope, in such motion
proceedings has been considered and discussed in various
cases. In
FAKIE
NO v CCII SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) the court by majority of 3:2 fully discussed
the issue of onus and comprehensively set out what the current
approach is supposed
to be in these sort of applications and the
procedural way in which disputes in such applications was to be
treated. At par. [23]
p. 338 Cameron JA said the following about the
proving and disproving the element of wilfulness:
“
[23] It should
be noted that developing the common law thus does not require the
prosecution to lead evidence as to the accused's
state of mind or
motive: Once the three requisites mentioned have been proved, in the
absence of evidence raising a reasonable
doubt as to whether the
accused acted wilfully and mala fide, all the requisites of the
offence will have been established. What
is changed is that the
accused no longer bears a legal burden to disprove wilfulness and
mala fides on a balance of probabilities,
but to avoid conviction
need only lead evidence that establishes a reasonable doubt.”
[12] At
par. [42] p. 344
,
the same decision, the current legal position in respect of the civil
contempt procedure was summarised as follows: Firstly, that
the
procedure is a valuable mechanism for securing compliance with court
orders and that it survives constitutional scrutiny; secondly,
that
the respondent in such proceedings was not really an accused person
but that he was entitled to analogous protections as
are appropriate
to a respondent in motion proceedings; thirdly, that the applicant in
such proceedings was required to prove the
requisites of contempt
(the order, service or notice, non-compliance; wilfulness and
mala
fides
)
beyond reasonable doubt; fourthly, that once the applicant has proved
the first three requisites, the respondent bears evidentiary
burden
in regard to wilfulness and
mala
fides
should the respondent fail to advance evidence that established a
reasonable doubt as to whether his non-compliance was wilful
and
mala
fide
,
contempt will have been established beyond reasonable doubt; fifthly,
that a declarator and other appropriate remedies, remain
available to
a civil applicant on proof on a balance of probabilities.
[13] At
par. [63] p. 350, of the same decision, Cameron JA said the following
about the approach in applications of this nature
when launched by
way of motion proceedings:
“
[63] In the
light of the proper approach to deciding factual disputes in motion
proceedings, I should add that, on the particular
form of process the
parties committed themselves to in this case, I do not think that it
would make any difference had the onus
been only proof on a balance
of probabilities. The accepted approach requires that, subject to
'robust' elimination of denials
and 'fictitious' disputes, the Court
must decide the matter on the facts stated by the respondent,
together with those the applicant
avers and the respondent does not
deny.”
[14]
In
motion proceedings of this nature the respondent’s version can only
be rejected if, on the papers, the court can find that
such version
is, to echo the words of Cameron JA:
“
fictious or so far-fetched and
clearly untenable that it can confidently be said, on the papers
alone, that it is demonstrably and
clearly unworthy of credence.”
Vide
FAKIE
NO
,
supra
at par. [55] at p. 318.
[15] In
cases of this nature, a respondent who can advance credible evidence
which established that he did not deliberately disobey
the court
order; that his non-compliance was due to genuine lack of means on
the grounds of poverty would have shown that his conduct
was
bona
fide
.
The respondent’s version must create some reasonable doubt as
regards the alleged wilful default and
mala
fides
attributed to the respondent by the applicant. The respondent would
not be held in contempt of court in such circumstances -
DEZIUS
v DEZIUS
2006 (6) SA 395
(CPD).
[16] On
31 October 2008 the applicant launched the current application.
Besides the costs, she sought an order declaring the respondent
to
have failed to comply fully with the court order by C.J. Musi J;
declaring that he was in contempt of the court order; directing
him
to fully comply with the court order by liquidating the full
accumulated arrears within 30 days period of the court order relative

to this civil contempt proceedings and imposing, as a coercive
sanction for the contempt, three months imprisonment, wholly
suspended
for three years on condition he timeously complied by
settling the outstanding arrears.
[17] Mr.
Van Rhyn urged me to uphold the applicant’s contention that, given
the immense value of the two farms owned by the two
trusts in whose
names the respondent was conducting business which business
enterprises were simply the respondent’s
alter
ego
,
there were no grounds for the argument that the respondent’s
financial position was so weak that he found it impossible to comply

with the court order. He submitted that the only reasonable
conclusion was that the respondent was in wilful default and
mala
fide
in his non-compliance.
[18] Mr.
Van Niekerk urged me not to grant the relief prayed for in the notice
of motion. He argued that the respondent’s version
as regards his
financial position and that of the trusts concerned could not be
summarily rejected on the papers, since, the respondent
has advanced
sufficient evidence on the strength of which a reasonable doubt
existed to justify the finding that he was not wilful
and
mala
fide
in his failure to comply with the court order.
[19] Obviously
the parties are in dispute about the actual reasons and the
justification for the respondent’s admitted failure
to comply fully
and timeously with the order by C.J. Musi J. The respondent asserted
that his default was not deliberate. He
was, so he averred, an
indigent man. The two trusts were so heavily indebted to so many
creditors that he was unable to earn income
anymore from them as
their trustee. His full compliance with the component of the court
order pertaining to his obligation to
contribute a specified amount
towards the applicant’s legal costs together with his voluntary
payment of R850,00 per month in
respect of the applicant’s
telephone account were indicative of his
bona
fides
.
The applicant asserted that there was no justification for the
respondent’s default and that his non-compliance was wilful
and
mala
fide
.
[20] The
crux of the dispute is whether the respondent’s financial resources
are so little that he cannot afford to maintain the
applicant at the
rate as specified in the court order. It is a known principle that
conflicting affidavits are not suitable means
for resolving disputes
of disputed facts in motion proceedings. The majority of aggrieved
individuals in the position of the applicant
prefer motion
proceedings because motion proceedings are quicker and cheaper than
action proceedings. Conversely, the majority
of individuals who are
sued prefer action proceedings to motion proceedings. To delay
compliance with a burdensome court order
can frustrate the
beneficiary of a court order and render the judgment from which the
court order flowed a hollow judgment. Unvirtuous
respondents have
the tendency of creating a storm in the tea cup in a bid to have the
proceedings converted from the quicker process
into the slower
process.
[21] Of
course, the underlying motive for uncreditworthy denials is always to
frustrate the beneficiary of the court order by delaying
the matter.
Such respondents should not be allowed to shelter behind evasive
strategies or patently implausible versions or bald
denials set out
in their answering affidavits.
FAKIE
NO
,
supra
par. [55] on p. 347.
[22] The
applicant avers that the respondent is a man of substantial means.
The respondent denies the allegation. He avers that
he is man of
straws who struggles year in and year out to make ends meet.
Therefore, the factual dispute is on a material aspect.
It remains
to be seen whether this dispute is a
bona
fide
or genuine dispute of fact. The applicant did not ask for the case
to be referred to live contest for oral evidence or for the

respondent to take the witness stand to be instantly cross-examined.
The applicant did not follow any of the two open avenues.
Instead,
she elected to have the case argued on the conflicting affidavits.
Her argument was that, although the dispute was on
a material aspect,
it was nonetheless not a genuine dispute of fact. She persisted that
the elements for contempt of court had
been established on the
papers.
[23] The
synopsis of the respondent’s version is necessary. Since 1996 he
has experienced enormous financial problems in his
farming operations
chiefly as a result of the suretyship agreements he had signed on
behalf of certain third parties. He conducted
his farming activities
through business enterprise called Wilson Voerdery (Edms) Beperk.
Certain financial institutions sued him
as a surety and liquidated
his company. Three farms namely Diepputen, Groenvallei en
Mooigelegen were attached. He lost the entire
source of income as
well as his equity on account of the attachments of the farms.
[24] Absa
Bank arranged with the court sheriff to have the farms auctioned. He
formed a business trust called Diepputten Trust,
which purchased the
farms. The transaction was financed
de
novo
by the Land Bank. He and his wife and their son were the trustees
thereof. The applicant was well aware of the problem and the

transaction. Diepputten farm was later divided. A portion thereof
was sold to another business enterprise called the Ghardlean
Trust.
The transaction was financed by the Standard Bank by way of a
mortgage bond. Both parties were trustees. The landed properties

were registered in the names of the two trusts.
[25] During
or about 2005 the couple was again sued on the basis of another
suretyship agreement they had personally signed in favour
of
Noordelike Sentrale Kartoen Koöperasie on behalf of PSW
Saaiboerdery Trust. As a result of this action the applicant

resigned from the two trusts namely: Diepputten Trust and Ghardlean
Trust as a trustee. She was suffering from anxiety when she
moved
from Nylstroom to Bloemfontein. To date hereof, the trusts are still
financially struggling. Her aliment was due to the
couple’s
endless and depressive financial plight.
[26] Since
the court order was made he has paid to the applicant what he could
afford. His aim was to pay the arrears by way of
a loan from one of
the trust. He had expected the trust to generate sufficient income
from the crop harvest and to lend him money
from the surplus funds
after the trust had repaid the loan obtained to cover operational
costs. The operational costs totalled
R200 000,00. However, to his
great dismay, the crop failed on account of seed contamination. The
proceeds of the crop harvest
was a mere R185 000,00 instead of the
expected R600 000,00. Therefore the eventual income of the harvest
was about R400 000,00
below the projected profit margin. As a result
of the crop failure and the huge deficit he was unable to pay the
arrears mid 2008
in accordance with his undertaking.
[27] His
auditor was still in the process of finalising the financial
statements from which the precise loss suffered would be apparent.

He invited the applicant and her attorney to contact his auditor in
connection with the necessary documentation and supporting
source
vouchers in order to verify the pathetic financial position of the
trusts for themselves.
[28] His
only source of income was R12 200,00 per month of which R10 000,00
per month was derived from Tweekansen Trust as a salary
and R2 200,00
as an annuity of a policy contract. These particular trust had an
overdraft facility of R454 000,00 at the First
National Bank.
However, as on 19 November 2008 the debit balance of the account was
R451 581,15. Since the facility was almost
exhausted he was no
longer in a position to even draw his monthly salary. Things were
really tough for him.
[29] The
sunflower seeds have
since
been planted on the farm(s). The crop would be ripe for harvesting
before 30 April 2009. By 31 August 2009 the harvesting
would be
complete. It was expected to generate R1,2 million. The trouble was
that the exhausted overdraft facility jeopardised
the good prospects
of such sunflower crop harvest. The trust had no funds to cover the
running expenses of the farm in the amount
of R50 000,00 for the next
five months. To save the sunflower crop, he on behalf of the trust,
obtained a loan from a certain
Mrs. M.J. Oosthuizen in the amount of
R250 000,00.
[30] At par. 15.8
answering affidavit p. 40 the respondent asserts:
“
Sonder vrees vir teenspraak beweer
ek dat daar eenvoudig nie fondse beskikbaar was om aan die Applikant
te betaal nie, en dat die
beskikbare fondse aangewend is hoofsaaklik
om krediteure te diens ten einde te verhoed dat daar weer aksie
geneem word teen die
betrokke trusts.”
This then is the
respondent’s version.
[31] Mr.
Van Niekerk submitted that because for 20 months the applicant
received and accepted reduced amounts of maintenance from
t
he
respondent and that because she had personal knowledge of his
inability to maintain her in terms of the court order, this coercive

application was not brought in good faith.
[32] The
parties have been living apart since the year 2005. It is difficult
to see what reliable personal knowledge the applicant
has of the
respondent’s poor financial position almost three years after the
separation, conveyed to her telephonically by mere
word of mouth.
Indeed, for about 19 months preceding the launch of this application,
the applicant received from the respondent
less than the order
stipulated. This is understandable because the respondent had
undertaken to settle the arrears in full by
the end of July 2008.
However, the respondent did not honour his undertaking. Therefore,
she cannot seriously and fairly be criticised
by the respondent for
receiving and accepting from him a lesser amount than stated in the
court order.
[33] He
also averred that he informed the applicant over a telephone about
the crop failure which made it impossible for him to
carry out his
undertaking.
Bearing
in mind the huge sum of the arrears, the long history of previous and
multiple litigation between the parties, the fact
that prudent
businessmen have to keep meticulous records of their financial
affairs especially where, as in this case, they run
affairs of two or
more business enterprises and the fact that the respondent has an
attorney, one would have expected such a man
to have communicated
with such a litigious spouse differently. His averments pertaining
to alleged telephone conversations were
riddled with vagueness. He
hardly stated alternative arrangements he proposed to the applicant
in respect of his abortive first
undertaking.
[34] In
an email dated 20 November 2008 attached to the respondent’s
answering affidavit as annexure “b” the applicant’s
attorney
wrote:
“
Skrywer wens
te bevestig dat ons sedert Maart 2007 VERSKEIE pogings aangewend het
om litigasie tussen die partye te skik, welke pogings keer
op keer
deur u kliënt gefrustreer was. Telkemale is verrigting deur
skrywer oorgehou, op versoek, ten einde u kliënt
die geleentheid
te bied om formele skikkingsvoorstelle te maak. Sonder uitsondering
was hierdie egter lee beloftes.
In sommige gevalle is daar selfs in
pleitstukke skikkings aanbiedinge, en ook aanbiedinge om regskoste te
vereffen gemaak, as ‘n
uitnodiging om litigasie deur ons kliënt
van stapel te stuur te sluit. Sonder uitsondering was hierdie ook
lee beloftes.
Ons kliënt het
‘n wesenlike vrees dat u skrywe onder beantwoording weereens ‘n
poging is om tyd te wen, en dat enige uitstel
ons kliënt sal
benadeel. Ons kliënt is van mening dat geen alternatief deur u
vermeld word, ten einde die hoofgeding
ten einde te bring nie, maar
dat daar slegs ‘n toegewing van ons kant verlang word.”
[3
5] The
respondent apparently did not respond to this email to say that the
applicant was personally aware of his inability to pay,
that she was
understandable of his financial crisis and that he had made any
alternative arrangements with her concerning the escalating
arrears
and that she had granted him a further extension until 31 August 2009
when the sunflower crop would be harvested. The
respondent’s
failure to do so waters down his version and strengthens the argument
that he is again playing for time by making
empty promises as before.
[3
6] The
immovable assets of the trusts, in other words the two farms, are
estimated to have the combined value of R4,5 million.
Earlier this
year the respondent placed them on the market for R9 million. Many
years ago the respondent was able to rescue the
farms from Absa Bank
by obtaining financing from the Land Bank on behalf of the trust. He
also obtained financing from Standard
Bank on behalf of another
trust. A portion of the farm Diepputten was recently converted from
an agricultural farm into a capital
intensive game farm. Financial
institutions do not readily finance such huge projects if they are
not viable or have been running
at a loss for inordinately long
periods of time. The purchase of wild animals, the erection of high
and secure electric fence,
the sinking of boreholes, the building of
tourist accommodation and the provision of infrastructure on the
Diepputten farm as well
as the sustainable feeding of those animals
are all quite expensive things to do. All these indicate that the
respondent, through
his trusts, is able to secure huge funding for
his farming operations as and when he requires it.
[37] The
respondent gave a long account of his alleged poor financial
position. The historical narrative began way back in 1996.
Over the
years the financial position of the business trusts have shown a
steady decline in pretty much the same way as the financial
position
of his personal estate. However, he attached no documentary evidence
to this effect. If the financial statements of
the trusts and those
of his personal estate for the fiscal year which ended on 28 February
2008 were still not compiled at the
time he signed the answering
affidavit, one would have expected him to have attached at least
those of 2005, 2006 and 2007 in support
of the alleged prolonged
financial downswing of the business trusts and his personal estate.
[38] Such
past financial statements, if annexed, would either have bolstered or
diminished the probative value of his narrative.
Not only did he
fail to annex them, but also failed to give any reason for the
omission. Could it be that he omitted them on
purpose because he
knew just too well that they would not have fortified his defence of
abject poverty? I am inclined to think
that such financial
statements, in respect of only three out of the eleven years he chose
to traverse, were deliberately left out
because they probably
militate against the respondent’s version in a big way.
[39] In
addition to such an omission, there is yet another glaring omission.
There is no confirmatory affidavit by the respondent’s
auditor to
verify his averment that the 2008 financial statements were indeed
not yet existent. I am in the dark as to why such
an important
affidavit was not obtained and annexed to the respondent’s
answering affidavit. Once again the omission justifies
the drawing
of an unfavourable inference against the respondent’s version. The
omission casts some reasonable doubt as to the
respondent’s
bona
fides
.
[40] It
was incumbent upon the respondent himself to place before me any and
every documentary evidence relevant to establishing
genuine lack of
wilful default and
mala
fides
imputed to him by the applicant. The respondent is precluded by law
from claiming that he negated the alleged wilfulness and
mala
fides
associated with his failure to comply by inviting the aggrieved
applicant to visit the office of the respondent’s auditor for
the
purpose of inspecting the alleged massive records of the trusts and
the estate. To uphold the respondent’s contention, would
boil down
to imposing an extra duty on the part of the applicant to assist the
respondent in reversing the evidentiary burden of
raising a
reasonable doubt to show lack of wilfulness and
mala
fides
.
The law imposes no such an assistive obligation on the applicant. I
do not need to look any further beyond the respondent’s
invitation
to say that it implicitly underlies his failure to place adequate
evidence before this court to create reasonable doubt
about the
alleged wilfulness of his non-compliance. His failure brings me to
the conclusion that he deliberately disobeyed the
maintenance court
order. Since he acted with deliberate intent, his non-compliance was
actuated by
mala
fides
.
[4
1] It
is also significant that the respondent did not proactively apply to
any court to have the original maintenance court order
varied. He
claimed that his previous attorney was to blame for the omission.
However, he did not say precisely when he instructed
his previous
attorney or when he became aware of such attorney’s neglect or why
he did not immediately appoint another attorney
to launch such an
application for variation of the maintenance court order. He made
cursory and vague remarks about this point.
Again there was no
evidence to substantiate his claim. There was a disturbing tendency
by the respondent to blame others. We
have heard that the auditor
was somehow responsible for the delay in the compilation of the
annual financial statements. We have
also heard that a certain
business supplier was to blame for the crop failure. Now we are
hearing a similar tune again,
viz
the previous attorney who has failed to carry out his important
instructions. I am not persuaded that the previous attorney was
to
blame.
[42] It
seems to me that there is no reasonably acceptable explanation why
such an important application was never launched. It
is more
probable than not that the application was never launched because the
respondent knew that he possessed no genuine documentary
evidence to
backup the merits of such an application.
[43] The
respondent also alleged that the R454 000,00 overdraft facility of
one of the trusts was almost completely exhausted.
According to him
the unhealthy debit balance thereof was R451 581,15 as on 19 November
2008. The situation was so critical that
he could hardly afford to
draw his usual salary of R10 000,00 per month. However, the
respondent once again failed to annex the
relative bank statement
from the First National Bank for the specific month. In my view
these numerous acts of omissions had such
an adverse impact on the
respondent’s version concerning his financial inability to comply,
that it cannot be found that he has
advanced a satisfactory
explanation which creates reasonable doubt as to whether his failure
to comply was occasioned by any wilful
default and
mala
fides
.
[44] The
respondent further alleged that the trust was in such a desperate
financial position that he had to obtain a loan of R250
000,00
against a cession of the crop harvest in favour of the money lender,
Mrs. M.J. Oosthuizen. The harvest was expected to
yield R1,2
million, according to him. On behalf of the respondent it was argued
that the applicant’s fleetingly commented on
these allegations by
the respondent. It was then contended that the applicant had failed
to rebut the respondent’s allegation.
I am not impressed by the
critique and the contention. Like so many other bald but
unsubstantiated allegations, here too, there
is no confirmatory
affidavit by the alleged money lender. This is simply one more
instance in a series of acts of omissions.
Where an answering
affidavit itself is materially inadequate, as in the instant case,
the replying affidavit cannot fairly be expected
to be substantively
elaborate. A myriad of details in the replying affidavit would have
served no useful purpose. However cursory,
the replying affidavit
may be considered to be on this particular point, it cannot make up
for the deficiency in the allegation
made by the respondent in his
answering affidavit.
[45] The
respondent claimed that his regular albeit partial payments, coupled
with his full payment of the contribution towards
the applicant’s
legal costs in compliance with the court order, as well as his
regular but voluntary payment of the applicant’s
monthly telephone
expenses – were some of the factors which demonstrated his
willingness and
bona
fides
to comply with the maintenance component of the court order as well.
The respondent has paid, on average, about half the amount
he was
obliged to pay per month. Such reduced amount was in line with the
amount he offered before the order was made. I cannot
appreciate the
logic of his voluntary payment of the applicant’s telephone bill if
he honestly cannot afford the obligatory amount
of the maintenance.
I am not persuaded that one or more or all these factors reasonably
established genuine lack of wilfulness
and bad faith in the way he
acted. It seems to me that the respondent is steadfast to pay what
he wants and that he paid the telephone
bill as a ploy to oust the
element of wilfulness and
mala
fides
.
[46] The
trusts generate some income but the available funds are utilised to
serve the creditors. However, the respondent made
no effort to name
such creditors and to indicate accurately the size of each debt and
the amount paid in reduction thereof since
the court order was made
against him. On account of countless gaps and inadequacies in the
answering affidavit, the respondent’s
version does not create some
reasonable doubt to exonerate him as a person whose non-compliance
lacked wilfulness and
mala
fides
.
I am persuaded that he is sheltering behind the resourceful trusts,
which business enterprises, he uses as his
alter
ego
.
In my view his version is farfetched, untenable and incredible.
There is no genuine dispute of fact in this case.
[47] On
the facts I have come to the conclusion that the applicant has
established all the elements of contempt of court. It has
been
shown, beyond reasonable doubt, that the respondent has failed to
comply fully with the court order by C.J. Musi J; that his
version
has created no reasonable doubt as to the wilfulness and
mala
fides
of his failure to comply; that he was, therefore, in contempt of the
court order; that he is liable to pay the full sum in arrears
and
that he has to be punished for the civil contempt he has committed.
[48] The
respondent raised certain preliminary points
in
limine
.
All of them were later abandoned. They were abandoned in the
respondent’s heads of argument after the applicant had spent
time
and energy dealing with them. There can be no question that in the
circumstances the applicant is entitled to the wasted
costs relating
to such points
in
limine
.
[49] There
remains one more thing to decide. The applicant employed two
counsels and seeks the costs for both. Besides the current

application four other court files relating to litigation between the
same parties, were placed before me. These files were referred
to in
the papers and the applicant’s heads of argument. Perusing them
and extracting passages from them, was certainly a laborious
task.
The question which now arises is whether the matter was so complex as
to justify the employment of two counsels. The complexity
of the
matter was not the only overriding factor to be taken into account.
The various files embodied some facts relevant to this
application.
They indicated the manner in which the respondent conducted his
business affairs and those of the trusts. Although
he claimed to be
a man of straw, the trusts possess assets of immense value namely,
the two farms. It has been established that
the respondent used the
trusts as his
alter
ego
.
The perusing and analysing of the respondent’s financial schemes
was necessary to this end. To come to this conclusion was
certainly
not an easy matter. I am therefore satisfied that the applicant was
justified to employ two counsels in this matter.
[50] Accordingly
I make the following order:
That the respondent is
guilty of contempt of court;
That the respondent is
sentenced to a period of 3 (three) months imprisonment, wholly
suspended for 3 (three) years on condition
that the respondent is
not again found guilty of contempt of court committed during the
period of suspension and further that
he pays the sum of R102
850,00 in respect of the arrears of maintenance to the applicant;
That
the respondent is directed to pay the aforesaid sum of money to the
applicant’s attorney, L & V Attorneys, Bermacor
Park, 52 Reid
Street, Westdene, Bloemfontein at a rate of R9 500,00 per month, in
addition to the amount fixed in the original
maintenance court
order, from 7 February 2009 and thereafter on or before the 7
th
day of each succeeding month until the amount in arrears is fully
paid.
That the respondent is
directed to pay the costs of this application and that such costs
shall include the costs occasioned
by the employment of two
counsels.
______________
M.H. RAMPAI, J
On
behalf of applicant:
Adv.
A.J.R. van Rhyn SC
with
him
Adv.
P. du P. Greyling
Instructed
by:
L
& V Attorneys
BLOEMFONTEIN
On
behalf of
respondent: Adv.
P.A. van Niekerk SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
/sp