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[2007] ZAWCHC 65
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D.G v R.B.G and Another (12166/07, 12691/07) [2007] ZAWCHC 65 (9 November 2007)
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
CAPE OF GOOD HOPE
PROVINCIAL DIVISION
CASE NO: 12166/07
12691/07
In
the matter between:
D[...]
G[...]
Applicant
and
R[...]
B[...] G[...]
1st Respondent
A[...]
S[...] P[...]
2nd Respondent
Judgment delivered on
this 8th day of November 2007
NDITA, J:
[1]
This is an application for the attachment and retention of the
proceeds from a sale
of immovable property situate at erf 1[...]
Somerset West, Cape Town, Western Cape, due to the respondent for the
payment of future
maintenance claims. The Court granted an
interim
order authorizing the Sheriff to attach and seize the net proceeds on
11 September 2007, pending the return date. Today is the
return date.
FACTUAL
BACKGROUND
[2]
The applicant and the first respondent were divorced on 7 April 2000.
When the parties
were divorced, they had one child, a daughter, now
11 years old and the applicant was awarded sole custody. They
concluded a Settlement
Agreement in terms of which the respondent
agreed to pay a sum of R1500-00 per month towards the maintenance of
the minor child.
In addition to the maintenance, the respondent was
ordered to pay all expenses reasonably incurred in respect of the
child at primary,
secondary and tertiary levels of education.
[3]
After the divorce decree was issued, the parties decided during 2001
to live together
again. At that time, the respondent was employed as
the National Operations Manager at HRP Distribution Services and
earning a
salary of R43 000-00 per month. According to the
applicant, the respondent was a dedicated father, who provided for
the minor child’s every need during this period. However,
both the applicant and the respondent were also drug users.
The
applicant has sought help with her addiction and, according to Dr
Dion Nortjie she seems committed to a programme of recovery
and the
prognosis is good. It is not disputed that, towards the end of
2006, the respondent’s drug addiction was adversely
affecting
his family life and in October 2006 he resigned his position at HRT
Distribution Services. He has not worked since.
[4]
The respondent became negligent in his handling of the family’s
financial affairs
to the extent that, from September to November
2006, he had spent an amount in excess of R1 000 000-00 (one million
rand).
The money was obtained from the sale of his shares.
The applicant effected the necessary payments and admits that the
respondent
was up to date with his maintenance payments at the time
the proceedings were instituted, but is at present in arrears pending
this action for the months of September, October and November 2007.
There is a dispute of facts with regard as to how much
money the
applicant spent from these proceeds. Such dispute is however
immaterial for the purposes of the present application.
[5]
The respondent offers to pay a sum of R100 000-00 upfront and
furthermore to increase
the monthly maintenance payments form R1
500-00 to R3 000-00 per month. He is currently in a drug
rehabilitation programme
as part of the bail conditions in criminal
proceedings at the Somerset West magistrate’s court.
Presently he is unemployed
and has no source of income. Neither
does he have proper accommodation.
APPLICABLE LAW
[6]
Sec 28(2) of the Constitution of the Republic of South Africa
provides that the child’s
best interests are of paramount
importance in all matters concerning the child. Similarly, the
Maintenance Act 99 of 1998
has also taken significant steps in
putting mechanisms in place to ensure the recovery of maintenance
from recalcitrant parents.
[7]
In
Mngadi v Beacon Sweets and Chocolates Provident Fund and Others
2004 (5) SA 388
at 396E-397A Nicholson J observed as follows:
“
The
law has never shrunk from interdicting a debtor from dissipating
funds to thwart the rights of creditors. Such cases are
decided
because the plaintiff should not have an injustice done to him by
reason of leaving his debtor possessed of funds sufficient
to satisfy
the claim, when circumstances show that such debtor is wasting or
getting rid of such funds to defeat his creditors,
or is likely to do
so. In general an applicant needs to show a particular state of
mind on the part of the respondent, ie
that he is getting rid of the
funds, or is likely to do so, with the intention of defeating the
claims of creditors, except possibly
in exceptional cases.
In
those cases the effect of the interdict is to prevent the respondent
from freely dealing with this own properly to which the
applicant
lays no claim. I interpolate to state that
in
casu
the children are creditors, though
only admittedly insofar as each month’s maintenance is due and
payable, but have a
spes
in
the lump sum in the future. Justice may require this
restriction in cases where the respondent is shown to be acting
mala
fide
with the intent of preventing
execution in respect of the applicant’s claim. See
Knox
D’Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) ([1996]
3 All SA 669)
at 372C (SA);
Mcitiki
and Another v Maweni
1913 CPD
648
at 687;
Bricktec (Pty) Ltd v
Pantland
1977 (2) SA 489
at 493
E-G.
It
seems to me that it is no great leap for the courts to extend the
last mentioned principles to cover safeguarding a payout in
the hands
of a fund, such as the first respondent herein. The provisions
of the Pension Funds Act apply to that situation
– that is the
payment of future maintenance – with full force more especially
s 37A(I) and the proviso thereof which
protects dependants and
‘
entitles the fund to pay any
such benefit or any benefit in pursuance of such contributions, or
part thereof, to any one or more
of the dependants of the member or
beneficiary or to a guardian or trustee for the benefit of such
dependant or dependants during
such period as it may determine’.”
[8]
It has been firmly established that, where the future maintenance
claims of a minor
child are threatened, the courts do not hesitate to
issue orders attaching lump sum pension fund benefits. (See
Magewu v Zozo and Others
2004 4) SA 578
;
Soller v
Maintenance Magistrate Wynberg and Others
2006 (2) SA 66
;
Burger
v Burger an Another
2006 (4) SA 414.)
This is so whether or
not the recalcitrant parent is in arrears.
APPLICATION OF THE LAW
OF THE FACTS
[9]
Mr. Le Roux submitted, on behalf of the respondent, that he is not
unwilling to contribute
to the maintenance of the minor child.
Further more, if one looks at the context of the respondent’s
life, it becomes
clear that he has been a successful and relatively
wealthy man who has been employed at a high-income level with many
executive
responsibilities. But the question that begs to be
answered is, what is the worth of that success and wealth if it is
inconsistent
and mismanaged to the extent that the paramount
interests of the minor child are compromised. The conduct of
recklessly spending
just over a million rand in a period of 3 months
flies in the face of the respondent being a dedicated parent.
Clearly, this
court is entitled to intervene in order to secure the
interest of the minor child. Similarly, the fact that he is
attempting
to rehabilitate himself and has plans of starting up a
business does not provide sufficient justifications for the refusal
in respect
of the relief sought.
[10]
One of the submissions made by Mr. Le Roux is that maintenance of
minor children is a reciprocal
duty of both parents and it would be a
violation of the respondent’s right to dignity to attach the
amount in toto without
due regard to the fact that the respondent is
also entitled to his livelihood.
[11]
It is necessary to reiterate that sec 28(2) of the Constitution
elevates the interests of the
child to paramouncy. The effect
therefore is that even if this provision were to be carefully
balanced against the right
to dignity, the right of the child takes
centre stage.
THE
RELIEF IN THE PRESENT MATTER
[12]
The
interim
order issued by HJ Erasmus J is as follows:
“
1.
Applicant is permitted to bring this
application on an urgent basis and condoning the Applicant’s
non-compliance with the
Rules of Court insofar as time periods and
the giving of notice of this application is concerned.
2.
A rule
nisi
is
issued calling upon Respondent to show cause, if any, on Monday 15
October 2007 at 10h00 or as soon thereafter as the matter
may be
heard why an order in the following terns should not be made final:
2.1
The Sheriff is authorized and directed to attach and seize the full
net proceeds due to
the Respondent from the sale of the property
known as erf 1[...], Somerset west, (also known as 1[…] Y[...]
W[...] Close,
Bayview Heights, Somerset West).
3.
The Sheriff is authorized and directed to attach and seize the sale
proceeds
referred to in 2.1 above from whomsoever will attend to the
registration of transfer of the said property from the Respondent to
the purchaser of the said property.
4.
The Sherriff is authorized and directed to hold the funds so attached
and seized
in Trust in an interest bearing account pending the final
outcome of :-
4.1
the Applicant’s application to the Somerset West Maintenance
Court for a determination
of the amount of monthly maintenance to be
paid by Respondent in respect of the Respondent’s minor child
J[...] R[...] G[...];
4.2
The Applicant’s application to this Court for the appointment
of a Receiver who will
be authorized and directed:-
4.2.1 to
take possession and control of the funds held in Trust by the
Sheriff;
4.2.2 to
retain in Trust such amount as would equal the total of:-
4.2.2.1
the amount ordered by the Somerset West Maintenance Court
(together with an annual escalation thereof equal to the annual
increase
in the Consumer Price Index) for such period until the minor
child, J[...] R[...] G[...], attains the age of majority;
4.2.2.2
an amount to be determined by the Receiver which would
equal the
anticipated educational expenses payable by the Respondent until the
said minor child, J[...] R[...] G[...], completes
her secondary
education;
4.2.2.3
an amount to be determined by the Receiver which would
in the
discretion of the Receiver be adequate to cover the reasonable and
necessary medical expenses of the minor child, J[...]
R[...] G[...],
until the said minor child attains the age of majority.
4.2.3 to
pay to the Applicant on a monthly basis form the funds held by him in
Trust such monthly maintenance amount
as shall be determined by the
Somerset West Maintenance Court and any other amounts payable
by the Respondent in terms of
the order of the Witwatersrand Local
Division of the High Court dated 7 April 2000 under case number
887/2000 until such time as
the funds held in Trust are exhausted or
until the said minor child attains the age of majority;
4.2.4 to
recover his fees from the funds held by him in trust;
4.2.5 to
pay to the Respondent any amount not disbursed by him in terms of
4.2.2.1, 4.2.2.2, 4.2.2.3, 4.2.3 and 4.2.4
above.
5.
The Respondent is to pay the costs of this application.
6.
The Applicant is to issue the application referred to in 4.1 and 4.2
above within
thirty (30) days of this order.
7.
The Respondent is permitted to anticipate the return date of this
application
by giving Applicant twenty four (24) hours notice.
8.
Service of this order shall be effected on the Respondent by the
Sheriff.
9.
Paragraphs 2.1, 3, 4 and 5 above shall operate as an interim order
pending the
return day of the rule
nisi.”
[13]
It gives the minor child the protection she requires against the
squandering of the money by
the first respondent. The minor
child is 11 years old and currently in grade 6. Should she
pass, she is expected to
be in High School in the next two years.
The present balance of the amount is R650 000-00. This is a
substantial amount.
[14]
It is not disputed that the respondent has neither accommodation nor
means to earn a living.
It would cause him substantial
injustice if this fact was not taken into account. It is
therefore necessary to amend it.
In the result I issue the
following order.
[15]
The rule
nisi
issued by this court on 11 September 2007 is
confirmed but amended as follows:
1.
The Sheriff is directed and authorized to seize an amount of
R400 000-00
due to the respondent from the sale of the property.
2.
The first respondent is ordered to pay the costs.
NDITA, J