Bates v Bates (3236/02) [2004] ZAWCHC 3 (19 January 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2004
>>
[2004] ZAWCHC 3
|

|

Bates v Bates (3236/02) [2004] ZAWCHC 3 (19 January 2004)

IN THE HIGH COURT OF
SOUTH AFRICA
REPORTABLE
(CAPE
OF GOODHOPE PROVINCIAL DIVISION)
CASE
NO: 3236/02
In
the matter between
ROSALEE
HILDA BATES Applicant
and
CHARLES JAMES DRURY BATES
Respondent
JUDGMENT
DELIVERED ON 19 JANUARY 2004
YEKISO
J
[1] The Applicant in these proceedings has instituted contempt of
Court proceedings against the Respondent arising from the alleged
failure by the Respondent to comply with his maintenance obligations
in terms of the Divorce Order granted on 17 March 1980 under
case no:
I991/80
[2] In
terms of the Consent Paper entered into between the Applicant and the
Respondent which was incorporated in the Decree of Divorce,
the
Respondent, as Plaintiff in that action, undertook to make certain
monthly payments in respect of the maintenance of the Applicant
and
the minor children born of the marriage. Over and above the monetary
obligations which the Respondent was obliged to fulfil,
the
Respondent further undertook to provide for the provision of
accommodation and payment of rentals for the Applicant and the minor
children, the provision of a motor vehicle for the Applicant and as
well as replacement of Applicant’s household furniture and
effects
as and when circumstances would justify replacement of such items.
[3] The
maintenance of Applicant, the provision of a motor vehicle,
accommodation and replacement of household furniture and effects
was
made subject to a
dum casta
clause save that the
dum casta
clause would be suspended in the event the Applicant established a
common home with a member of the opposite sex and live with such
a
party as husband and wife.
[4] The
relevant clauses of the Consent Paper, which I propose to reproduce
in full, except for clauses 2(a), 2(c) and 2(d) which
provide for the
maintenance of the minor children all of whom have since attained the
age of majority, read as follows:
“
2. Plaintiff undertakes and
agrees in order to make due provision for the maintenance of
Defendant and the four minor children born
of the marriage between
the parties to effect payment of the undermentioned sums and to
provide as hereinafter prescribed:
2(b) To
effect payment to Defendant monthly in advance on the first day of
each and every month with effect from the 1
st
March 1980, free of exchange at such address at Cape Town as
Defendant may from time to time appoint in writing, of R 150.00 per
month as and for maintenance in respect of Defendant personally,
which payments shall continue until her death or remarriage,
whichever
event shall first occur, save that should Defendant
establish a common home with a member o the opposite sex and live
with such party
as wife and husband, then and in such event
Plaintiff’s obligation with respect to payment of any maintenance
in respect of Defendant
personally shall be suspended whilst such
liaison continues.”
2(e) For
as long as Plaintiff is legally liable to maintain Defendant as
hereinbefore set forth, Defendant shall be entitled to occupy,
free
of any payment whatsoever in respect of rental and/or water and/or
electricity, the immovable property constituting the former
common
home and situate and known as 7 Lakeview, Pekalmy, Cape, in respect
whereof Plaintiff is the registered owner, or such alternative
dwelling as the parties might mutually agree upon from time to time.
It is however specially understood and agreed that Defendant’s
right of occupation as hereinbefore set forth shall cease in the
event of Defendant establishing a liaison on the basis hereinbefore
referred to consequent whereupon Plaintiff’s obligation to effect
payment of maintenance in respect of Defendant personally shall
be
suspended, and this provision shall mutates mutandis apply in respect
of the provision by Plaintiff is the free use of a motor
vehicle to
which reference is hereinafter made.
2(f) Plaintiff furthermore
undertakes and agrees for as long as he is legally liable to maintain
Defendant as hereinbefore prescribed,
to provide her with the free
use of a motor vehicle analogous to such motor vehicle as is present
at being utilised by her.
2(g) Plaintiff
acknowledges that his obligations with respect to maintenance in
respect of Defendant personally as hereinbefore set
forth, shall be
binding on his estate.”
“
3(a) Defendant
shall be entitled to retain as her own free and unfettered property
all household furniture and effects of whatsoever
nature or
description at present situate at the former common home.
3(b)
Plaintiff specially undertakes and agrees for as long as he is
legally liable to maintain Defendant to replace from time to
time the
furniture and household effects hereinbefore referred to as and when
same become unserviceable and/or reasonably require
replacement, at
his own proper cost and expense.”
[5] As can be seen in terms of clause (b) of the
Consent Paper, the Respondent’s obligations in terms of this clause
constitutes
an order ad pecuniam solvendam whereas the Respondent’s
obligation relating to the provision of accommodation, provision of a
motor vehicle and replacement of household furniture and effects are
orders ad factum praestandum.
[6] During
1995 the Applicant made an application in the Maintenance Court,
Bellville for an increase in the amount of maintenance
payable in
terms of the Divorce Order dated 17 March 1980 which, as at the time
of the Application, provided maintenance in respect
of the Applicant
in an amount of R 150.00 and an amount of R 100.00 in respect of one
minor child, T., who had not yet attained the
age of majority and had
not yet become self supporting. The Respondent consented to an
increase in an amount of R 1 500.00 per
month in respect of the
Applicant and to a further amount of R 1 500.00 in respect of the
minor child.
[7] No
reference was made in that application to the Respondent’s
obligations relating to the provision of accommodation and payment
of
rentals, the provision of a motor vehicle and the replacement of
household furniture and effects. The Order dated 28 December
1995
made by the Maintenance Court, Bellville merely reads as follows:
“
The
Maintenance Order dated 17/03/1980 made by the Supreme Court Cape
Town is substituted by the aforegoing Maintenance Order.
Dated
at Bellville this 28
th
day of December 1995.”
The Order was made in
terms of section 5(7) of the Maintenance Act, 23 of 1963, which has
since been repealed and substituted by the
Maintenance Act, No 99 of
1998
. The latter piece of legislation came into operation on 26
November 1999.
[8] During
1999 the Applicant launched yet a further application for an increase
in maintenance payable to herself only as the youngest
of the
children, T., had by then also reached the age of majority. This
application culminated in the Respondent consenting to maintenance
payable to the Applicant in an amount of R 3000.00 per month with
effect from 1 November 2000. This order, made on 3 October 2000,
substituted the earlier order made on 28 December 1995 by the
Maintenance Court, Bellville.
[9] On
this occasion the parties recorded that there was a dispute as
regards the non-pecuniary regime of the Order granted on 17
March
1980 and the record of this dispute was annexed as annexure “A”
to the consent form signed by the Respondent. Annexure”A”
annexed to this consent form reads as follows:
“
It
is recorded that there is a dispute between the parties whether the
following claims of the Applicant in terms of the Consent Paper
which
were incorporated in a decree of Divorce on 17 March 1980 were
subsequently compromised by Applicant and it is recorded that
the
maintenance of R 3000 (three thousand rand) does not cover the
expenses contemplated in the following clauses of the Consent
Paper.
Clause
2(e) of the Consent Paper (the claim for accommodation including
electricity costs and water costs);
Clause
2(f) of the Consent Paper (the claim in respect of a motor car);
Clause
3(b) of the Consent Paper (the claim for replacement of household
furniture and effects);
The
Applicant reserves her rights to approach the appropriate forum to
pursue these claims.”
What annexure “A” in effect records is that the maintenance of R
3 000.00 per month does not cover the expenses, and in effect,
the
Respondent’s obligations contemplated in paragraphs 2(e), 2(f) and
3(b) of the Consent Paper.
[10] The Respondent is opposing this application on three principal
grounds, namely:
[10.1] That
he and the Application had reached an agreement during early December
1995 that the Respondent would pay the Applicant
an amount of
R 17 000.00 in full and final settlement of all or any claims
which the Applicant may have against the Respondent
arising from the
Respondent’s obligation to provide the Applicant with
accommodation, a motor vehicle and the replacement of household
furniture and effects. The Respondent further alleges in his papers
that because of this agreement, the Applicant’s cash component
of
the maintenance was considerably increased from an amount of R 1
500.00 per month to an amount of R 3 000.00 per month.
[10.2] The
entire Maintenance Order granted by the High Court on 17 March 1980
was substituted by the order granted by the Maintenance
Court,
Bellville on 28 December 1995, and that the latter order was in turn
substituted by the one granted on 3 October 2000.
[10.3] That
these proceedings be stayed until the Applicant pays the Respondent’s
taxed bill of costs totalling an amount of R 22
135.65 together with
interest thereon
a tempore morae.
Ms
Williams
appeared for the Applicant whilst
Mr Seale
appeared for the Respondent.
[11] As
correctly pointed out by
Ms Williams
in her submissions and in
argument before me the issues I am required to determine are:
[11.1] Whether
the agreement referred to in paragraph 10.1 of this judgment was
indeed concluded between the Applicant and the Respondent.
[11.2] Whether
the order of the Maintenance Court, Bellville dated 28 December 1995
substitute the whole of the Respondent’s obligation
in terms of the
Consent Paper or only the Respondent’s obligations in terms of
paragraph 2(b) of the Consent Paper.
[11.3] Whether
these proceedings should be stayed pending payment of the
Respondent’s unpaid bill of costs. I shall now consider
these
issues in turn.
THE ALLEGED
COMPROMISE AGREEMENT
[12] In her Replying Affidavit, the Applicant denies having concluded
an agreement of compromise I have already referred to in paragraph
10
of this judgment. The Respondent in turn alleges that the agreement
of compromise was concluded between him and the Applicant
during
early December 1995. The Respondent does not state in his Answering
Affidavit precisely when and where the agreement of
compromise was
concluded; who represented each one of the parties when the agreement
of compromise was concluded. Each one of the
parties was legally
represented in the maintenance proceedings which were pending at the
time the alleged compromise agreement was
concluded. No explanation
is given why the alleged compromise agreement was concluded outside
the framework of the parties’ legal
representatives. No
explanation is given why such an agreement was not reduced to
writing, which could well have been helpful to
obviate any potential
future dispute.
[13] On
15 December 1995 the Respondent gave Applicant a series of cheques,
one of which is dated 15 December 1995 and the rest post-dated;
the
Respondent does not state in his papers whether he personally gave
these cheques to the Applicant or whether somebody else handed
the
cheques to the Applicant on his behalf. It was contended on behalf
of the Applicant in argument, and which contention was not
disputed
in argument, that the series of cheques were handed over to the
Applicant by the Respondent’s accountant at the time,
one Karen
Hillcock on 15 December 1995, it being the same date the Respondent
signed a consent to increase the maintenance payable
to the Applicant
and the minor child to an amount of R 1 500.00 each per month. It is
significant to note that the consent form
signed by both the
Applicant and the Respondent and witnessed by one M White and Karen
Hillcock contains a statement
“Each
party will pay their legal costs”. T
here is no reference
in it to an agreement of compromise.
[14] It
is apparent that the Respondent had given the consent form signed by
the parties to his attorneys of record. This consent
form in turn
was forwarded to the Maintenance Officer, Bellville by the
Respondent’s Attorneys under cover of their letter dated
20
December 1995. The contents of this letter read:
“The complainant and our client, Mr Bates, have concluded an
Agreement and we accordingly enclose herewith a written consent in
terms of section 5(7) of the Maintenance Act, 1963 (Act 23 of 1963).
Would you kindly ensure that same is made an Order of Court
and
confirm to us in writing that our client need not attend the enquiry
scheduled for the 7
th
February 1996.”
Once again no reference is made in this correspondence to a
compromise agreement allegedly concluded between the Applicant and
the
Respondent.
[15] In
response to a yet further application by the Applicant to the
Maintenance Court, Bellville for an increase in maintenance,
the
Respondent’s attorneys, per their letter dated 18 April 2000,
elicited such information from the Applicant pertaining to the
rental
paid by the Applicant in respect of accommodation since January 1996
to date of the attorneys’ aforementioned letter; records
relating
to any motor vehicle in which the Applicant had a direct or indirect
interest including lease agreements and instalment
sales agreement
since January 1996 to date of the attorneys’ aforementioned letter
and details relating to purchase by the Applicant
of household
furniture and effects since January 1996 to date of the Respondent’s
attorneys’ aforementioned letter. This information,
elicited as it
was from the Applicant by the Respondent’s attorneys, would be
irrelevant if the agreement of compromise was indeed
concluded.
[16] On
8 December 2000 the Respondent, by way of a Chamber Book Application,
sought to apply for the variation of the Consent Paper
incorporated
in the Divorce Order granted on 17 March 1980. Paragraph B of the
Variation Agreement annexed to the Chamber Book Application
reads as
follows:
“
The
personal maintenance payable by Plaintiff to Defendant in terms of
clause 2(b) of the Consent Paper was increased by the Magistrate’s
Court, Bellville on 28 December 1995 to an amount of R 1 500.00 per
month and subsequently on 3 October 2000 to an amount of R 3
000.00
per month.”
In the same Chamber Book Application
the Respondent sought the following paragraph to be added as
paragraph 2(h) to the original Consent
Paper, namely:
“
THE
PARTIES ACCORDINGLY AGREE TO VARY THE CONSENT PAPER BY INSERTING THE
FOLLOWING NEW CLAUSE 2(H):
‘2(h) The maintenance payable in
terms
of clause 2(b)
above
(including such substituted maintenance amount as varied by a
maintenance court) shall increase
annually
on the 1
st
November of every year with effect from 1
st
November 2001 at
a rate commensurate with the
rate of increase in the Consumer Price Index as
notified
by the Director of Statistics for the Republic of South Africa, or
his
equivalent,
for the middle income group in the Western Cape area for the
preceding year.”
(My
underlining)
Once again no reference is made to
the agreement of compromise allegedly concluded by the parties during
early December 1995. The
Chamber Book Application merely sought to
record that clause 2(b) of the Consent Paper was substituted by the
order of the Maintenance
Court dated 28 December 1995 in terms
whereof the amount payable by the Respondent in respect of
maintenance was increased to an
amount of R 1 500.00 and a further
order by the Maintenance Court dated 3 October 2000 in terms of which
maintenance payable by
the Respondent was increased to R 3 000.00.
It is also significant to note that the alleged agreement of
compromise was neither
communicated to the Clerk of the Maintenance
Court, Bellville nor to the Registrar of this Court in order that
same be recorded accordingly.
[17] The
Applicant admits having received the cheques referred to in paragraph
12 of this judgment but denies having concluded the
agreement of
compromise as alleged by the Respondent. She states in her Replying
Affidavit that when she accepted the cheque dated
15 December 1995
and the rest of the post dated cheques she was under the impression
that these were advance payments made to her
in view of the fact that
the Respondent would shortly be leaving for the United Kingdom where
the Respondent used to spend four (4)
months of the year commencing
from the Christmas period. This is not surprising if one has regard
to the letter dated 15 July 1991,
annexed as annexure “B” to the
Applicant’s founding affidavit under case no: 16468/92, High Court,
Cape Town and addressed
to the Applicant by the Respondent’s
attorneys of record wherein it appears that the Respondent had in the
past advanced to the
Applicant an amount of approximately R 20 000.00
over and above the maintenance amount then payable by the Respondent.
The Applicant
further denies that it was communicated to her that the
cheques were given to her in full and final settlement of whatever
claims
she may have had against the Respondent arising from the
arrear maintenance. The Respondent states in his Answering
Affidavit that
during 1996 the Applicant instituted criminal
proceedings for contempt of court but that the Attorney-General
declined to prosecute.
The Applicant denies this averment in her
Replying Affidavit. If this averment by of the Respondent were to
be accepted as true,
same would fly in the face of the alleged
compromise agreement concluded during early December 1995, hardly a
period of a year having
elapsed from the time the alleged conclusion
of the agreement of compromise was concluded and the time the alleged
criminal contempt
proceedings would have been instituted.
[18] There
obviously is a dispute surrounding the alleged conclusion of the
agreement of compromise. However, I am of the view the
dispute of
fact raised by the Respondent does not amount to a real or genuine
dispute of fact as to render this issue incapable of
determination
without resort to oral evidence. More so, in my view, the
probabilities outweigh any probable conclusion of the alleged
compromise agreement due regard had to the absence of any reference
to such an agreement in the Respondent’s attorneys’
correspondence
to the Maintenance Court, Bellville dated 20 December
1995; absence of reference to the alleged compromise agreement in the
Chamber
Book Application of 8 December 2000; the eliciting from the
Applicant of information per a letter by the Respondent’s attorneys
of record dated 18 April 2000 which information would be irrelevant
if the compromise agreement was indeed concluded and the institution
of the criminal contempt proceedings hardly a period of a year having
elapsed from the time the compromise agreement was allegedly
concluded.
Accordingly
I find it highly improbable that a compromise agreement was concluded
as alleged by the Respondent or at all. More so,
I am finding it
highly improbable that the Applicant would agree to a waiver of
benefits of a substantially high value in the form
of provision of
accommodation, payment of rentals, replacement of household furniture
and effects and the provision of a motor vehicle
for a mere payment
of an amount of R 17 000.00 even if monthly payments in respect of
maintenance would be increased to the amount
the Respondent had
consented to pay.
THE SUBSTITUTION DEFENCE
[19] I have already made the point that the Respondent’s
maintenance obligations in terms of the Consent Paper to which
reference
is made in paragraph 4 of this judgment are two fold,
namely those obligations which require the Respondent to make payment
of money
such as is envisaged in terms of clauses 2(a) and (b) of the
Consent Paper and those obligations which require the Respondent to
perform an act such as those obligations envisaged in terms of clause
2(e), the provision of accommodation, clause 2(f) the provision
of a
motor vehicle and clause 3(b) which deals with the replacement of
household furniture and effects. Except for the Respondent’s
obligations in terms of clauses 2(g) and 3(a) the rest of the clauses
fall within the maintenance regime.
[20] In
this application the Applicant relies upon the provision of clauses
2(b), 2(e) and 2(f) and to clause 3(b) of the Consent
Paper. The
Respondent, on the other hand, contends that the Applicant cannot, in
her proposed relief, place reliance on any of
the provisions of the
Consent Paper as the Bellville Magistrate’s order of 28 December
1995 replaced the entire maintenance order
granted by the Supreme
Court on 17 March 1980. It is further the Respondent’s contention
that the provisions of section 5(4)(b)
of the then applicable
Maintenance Act, No 23 of 1963 in terms whereof the Magistrate made
the order dated 28 December 1995, contemplates
the substitution of
the entire maintenance provisions of the High Court Order dated 17
March 1980 and not mere variation of certain
individual maintenance
provisions of that order as the Applicant seeks to contend, relying
heavily in this regard on
Purnell v Purnell 1993(2) SA 662(A)
at
667I-668A.
The Respondent contends further that, in as much as
the parties had reached a compromise agreement, the provisions of the
original
Consent Paper relating to the maintenance payable by him
were compromised and that the Applicant cannot rely thereon to
advance her
claim. I have already made a determination as regards
the conclusion or otherwise of the compromise agreement in paragraph
18 of
this judgment and my comments as regards whether or not the
alleged compromise agreement was concluded will not be repeated here.
[21] In
order to make a proper determination of the issue as to whether or
not the Maintenance Order of 28 December 1995 issued by
the
Magistrate Bellville substituted the whole of the maintenance
provisions of the High Court Order of 17 March 1980, the Respondent’s
obligations in terms of the Consent Paper incorporated in such Order
require a close scrutiny.
[22] It
is worth repeating that the Respondent’s obligations for the
maintenance of Applicant, excluding the maintenance of the
minor
children, all of whom have since attained the age of majority, are
contained in clauses 2(b), 2(e), 2(f) and 3(b) of the Consent
Paper.
The Respondent’s obligations in terms of clause 2(b) constitute
an order
ad pecuniam solvendam
whereas the Respondent’s
maintenance obligations in terms of the rest of the Consent Paper,
that is paragraphs 2(e) – provision
of accommodation, 2(f) –
provision of a motor vehicle, and 3(b) – replacement of household
furniture and effects, constitute
an order
ad factum praestandum
.
There is
consensus
between the parties that the Maintenance
Court is competent to enforce both the orders
ad pecuniam
solvendam
and orders
ad factum praestandum
. It is the
Respondent’s contention that the Maintenance order of 28 December
1995 issued by the Magistrate Bellville substituted
both the
Respondent’s obligations
ad pecuniam solvendam
and
ad
factum praestandum
. The Applicant’s contention, on the other
hand, is that the Magistrate’s order did not extend beyond the
Respondent’s obligations
in terms of clauses 2(a) and (b) of the
Consent Paper and thus does not reach the Respondent’s obligations
ad factum praestandum
.
[23] As
has already been pointed out elsewhere in this judgment, during 1995
the Applicant made an application to the Maintenance
Court, Bellville
for an increase in the amount of maintenance payable in respect of
herself and the remaining minor child, T., who
had not yet attained
the age of majority at that stage. In that application the
Respondent consented to an increase in maintenance
in respect of the
Applicant herself and the minor child in an amount of R 1 500.00 each
per month with effect from 31 January 1996.
This increase clearly
related to the Respondent’s obligation
ad pecuniam solvendam
.
There is no specific reference at all to the Respondent’s
obligation
ad factum praestandum
contained in the Consent
Paper other than a reference, in paragraph (d) of the Consent form
signed by both the Applicant and the Respondent
that
“the
maintenance order dated 17 March 1980 made by the Supreme Court
(CPD) – Case No: 1991/80 be substituted by the aforegoing
order”
.
It is on basis of this order by the Magistrate Bellville that the
Respondent contends that not only his obligation in terms of
paragraph 2(b) of the Consent Paper were substituted but that his
entire obligations, including his obligations a
d factum
praestandum
were substituted and that, in view thereof, the
Applicant’s claims are without foundation, relying on such
decisions as Pu
rnell v Purnell
supra, amongst others.
[24] The
decision in
Purnell
was considered by Comrie J in
Cohen v
Cohen
2002(2) SA 571(C)
at
576H – 578A.
In
Purnell
the Consent Paper, amongst others, provided for
maintenance payable to the wife for a defined period of two years, it
having been
within the parties’ contemplation that the husband’s
maintenance obligation would cease after the expiration of a period
of two
years. The maintenance amount was subsequently varied by the
Maintenance Court. A subsequent application by the wife to the
Witwatersrand
Local Division for a declaration that maintenance would
be payable indefinitely was upheld on the basis that the subsequent
order
by the Maintenance Court replaced/substituted the entire order
initially granted by the Witwatersrand Local Division and declared
that maintenance payable to the wife was of indefinite duration.
The order of the Witwatersrand Local Division was confirmed by
the
then Appellate Division in a subsequent appeal.
[25] On
the strength of
Purnell
and other subsequent decisions, Comrie
J held in
Cohen
supra that the subsequent variation by the
Maintenance Court of the maintenance order of the High Court meant
the variation of the
whole of the relevant clause in which the
Plaintiff’s maintenance obligation to the Defendant had initially
been defined. However,
the Supreme Court of Appeal, in an appeal
against the decision of Comrie J, held a different view, holding that
the existing High
Court order ceases to be of force and effect, but
only insofar as the order of the Maintenance Court expressly or by
necessary implication
replaces such order. The Appeal Court thus
held that the order of the Maintenance Court varying the amount
payable does not affect
the other parts of the Consent Paper which do
not deal with the amount of maintenance payable. (see
Cohen v
Cohen 2003(3) SA 337 (SCA)
at
343H
para 17)
[26] In
the matter in point the Applicant applied for the variation of an
amount payable in respect of maintenance for herself and
that of the
minor child. The Respondent consented to an increase to the amount
of R 1 500.00 per month in respect of the Applicant
herself and to a
further amount of R 1 500.00 in respect of the minor child. There
is no reference at all in the consent form
signed by the Respondent
to those aspects of the Consent Paper dealing with the Respondent’s
maintenance obligations
ad factum praestandum
. The
Respondent signed the consent to maintenance on 15 December 1995.
The consent was made an order of Court by the Maintenance
Court on 28
December 1995. This consent was forwarded to the Maintenance Court
by the Respondent’s attorneys under cover of their
letter dated 20
December 1995. The consent was made an order of Court by the
Maintenance Court on 28 December 1995. Since neither
of the parties
were present when the order was made, it is safe to assume that such
order was made by the Magistrate in Chambers.
Paragraph (d) of the
consent refers to the substitution of the maintenance order dated 17
March 1980 made by the High Court, CPD
which was to be substituted by
the Maintenance Court order of 28 December 1995. There is no
reference in this order to the Respondent’s
obligation to perform
an act. Based on the reasoning and the principle as applied by the
Supreme Court of Appeal in
Cohen
supra, I cannot find that the
order issued by the Maintenance Court, Bellville either expressly or
by necessary implication, was
intended to substitute the entire order
granted by the Supreme Court on 17 March 1980.
RELIEF FOR
COMMITTAL FOR CONTEMPT
[27] The Respondent resists the Applicant’s claim for an order for
contempt of court on the basis of the alleged agreement of compromise
and, further, on the basis that the order of 28 December 1995 issued
by the Maintenance Court, Bellville substituted the High Court
order
of 17 March 1980 in its entirety, and that the substitution was not
limited to the Respondent’s obligations
ad pecuniam solvendam
but that such substitution extended to the Respondent’s obligations
ad factum praestandum
. I have already found against the
Respondent in both these issues so that the question I have to
determine is whether the finding
against the Respondent on the issues
of compromise and substitution
ipso facto
justifies the
conclusion that the Respondent is guilty of contempt of court.
[28] As
correctly pointed out by
Mr Seale
in his submissions and
argument the
onus
of proof that the Respondent is in contempt
rests with the Applicant. In order to discharge this
onus
the
Applicant must show:
that an order was granted against the Respondent;
that the Respondent is aware of the existence of the order; and
that the Respondent has either disobeyed the order or neglected to
comply with it. (See
Herbstein and Van Winsen: The Civil
Practice of the Supreme Court of South Africa (now the High Court
and the Supreme Court of Appeal)
4
th
Edition 825; Consolidated Fish Distributors (PTY) Ltd v Zive and
Others 1968(2) SA 517(C)
at
522)
As further correctly pointed by
Mr
Seale,
even if the Applicant succeeds in discharging the
onus
resting on her the Respondent may, by way of evidence, rebut the
inference that he has intentionally disobeyed the Court’s order

(See further
Herbstein and Van Winsen
supra at 826 and other
authorities cited at footnote 106)
[29] As to requirements (a) and (b),
there is no dispute that the High Court granted an Order on 17 March
1980 and that the Respondent
has all along been aware of the terms
thereof. There is further no dispute as regards the discharge by the
Respondent of its obligations
ad pecuniam solvendam
the
Applicant acknowledging in her papers that the Respondent
consistently discharged his obligations in this regard. The only
issue
in dispute is whether, over and above his obligations
ad
pecuniam solvendam
, the respondent also discharged his
obligations
ad factum praestandum
. I shall deal with this
issue in turn.
[30] On
7 December 1992 the Applicant instituted proceedings on notice of
motion against the Respondent under case no: 16468/92 for
an order
for committal of the Respondent to prison/goal on the basis that the
Respondent failed or refused to pay increased rentals
in respect of
the premises occupied by the Applicant; that the Respondent refused
or failed to replace the Applicant’s household
furniture and
effects and also to provide the Applicant with the replacement motor
vehicle.
[31] The
Respondent opposed the aforementioned proceedings on the basis that,
amongst other things, the Applicant and the Respondent
had concluded
a revised agreement in terms of which the Respondent paid to the
Applicant an overall figure in respect of maintenance
and that, in
turn, the Respondent would be released from his obligation as regards
payment of rentals and the provision of furniture.
In paragraph 25
of her founding affidavit in the aforementioned proceedings the
Applicant refers to a number of items which then
required to be
replaced, including a Mazda 323 motor vehicle which, at the time she
deposed her affidavit, was 5 years old and had
covered approximately
100,000 km. In his answering affidavit the Respondent did not
respond to the allegation relating to replacement
of the motor
vehicle.
[32] The
Respondent states as follows in paragraph 25(a) of his affidavit
deposed to on 4 January 1993:
“a) I
acknowledge that if I am furnished with details of the furniture
requiring replacement I will, to the extent that I am legally
obliged
to do so, replace same.
I stress however that Applicant when
agreeing to accept an overall figure in respect of maintenance in the
sum at present being paid,
released me from any further obligation in
this regard.
” (The emphasis is mine)
Further, the Respondent states as follows in paragraph 14 of his
affidavit in answer to a claim in respect of rentals:
“
To
the best of my knowledge and belief I have not paid rental to
Applicant’s father as alleged in that, in terms of the revised
agreement between the Applicant and myself there was no obligation on
me to do so.”
[33] However,
the position adopted by the Applicant in these proceedings is a
complete change of front. The Respondent does not
now base his
denial of his obligations to the revised agreement he alleges he had
concluded with the Applicant but on a compromise
agreement he alleges
he had concluded with the Applicant during December 1995 and also on
the basis of all his obligations in terms
of the Consent Paper having
been substituted by the maintenance order of the Magistrate,
Bellville dated 28 December 1995. It is
difficult to comprehend why
it would have been necessary to conclude an agreement of compromise
if there already was in existence
a revised agreement in terms of
which the Respondent was released from his obligations. In my view,
the allegation of the conclusion
of a compromise agreement is a clear
manifestation of the continuation of a trend on the part of the
Respondent to evade his maintenance
obligation. I accordingly find
that the Respondent failed to discharge his maintenance obligation by
failing to provide the Applicant
with accommodation, failing to
adequately assist the Applicant with rental payments and to provide
the Applicant with a motor vehicle.
[34] This
finding justifies an inference that the Respondent was not
bona
fide
in his dealings with the Applicant when it comes to
discharge of his obligations to provide Applicant with accommodation,
assistance
in rental payments, the replacement of household furniture
and effects and the provision of a motor vehicle, that the Respondent
disobeyed aspects of the High Court Order granted on 17 March 1980
and that such disobedience is due to wilfulness on the part of
the
Respondent. What now remains to be determined is whether there is
merit in the Respondent’s contention that these proceedings
be
stayed until such time the Applicant pays the Respondent’s taxed
legal bills totalling an amount of R 22,135.65. To this issue
I now
turn.
STAY OF THE
PROCEEDINGS
[35] It may well be so that the Applicant is indebted to the
Respondent in respect of the Respondent’s taxed legal bills.
However,
the Respondent does not appear to be without a remedy short
of depriving the Applicant of her right to have her dispute settled
before
a court of law. There are more than sufficient mechanisms
available to the Respondent to enforce his claim against the
Applicant.
This could be by way of a Writ of Execution against the
property of the Applicant or to initiate proceedings to have the
Applicant’s
financial position enquired into without a view to a
possible order for periodical payments to liquidate her indebtedness
in favour
of the Respondent in the event of the Applicant not being
possessed of property on which to levy execution.
[36] To
deprive the Applicant of her right of access to a court of law in the
circumstances of this particular matter is not the best
course to
follow. This right is fundamental to a viable and dynamic legal
system having as its principal feature justiciable human
rights. (See
D E Devenish: A Commentary on the South African Human Rights
Butterworths 486)
I
am accordingly exercising my discretion in regard to this issue in
favour of the Applicant. An order for a stay of these proceedings
will not be in the interest of justice.
[37] Having
thus determined all the issues referred to in paragraph 11 of this
judgment in favour of the Applicant, it follows therefore
that the
Applicant is entitled to the relief claimed in terms of the Notice of
Motion.
[38] It
is accordingly ordered as follows, namely:
[38.1] The
Orders by the Maintenance Court, Bellville granted on 28 December
1995 and 3 October 2000 substituted the Respondent’s
obligations in
terms of clauses 2(a) and 2(b) only of the Consent Paper incorporated
in the Decree of Divorce granted by this Court
on 17 March 1980 under
case no: I991/1980
[38.2] The
Respondent is in contempt of the Order of this Court granted on 17
March 1980 under case no: I991/1980 in so far as his
obligations in
terms of clauses 2(e), 2(f) and 3(b) of the Consent Paper
incorporated in the aforementioned Order are concerned.
[38.3] Arising from such contempt the
Respondent is committed to Goodwood Prison to serve imprisonment for
a period of one hundred
and eighty (180) days.
[38.4] The
Order in terms of paragraph [38.3] hereof is suspended on the
following conditions:
[38.4.1] Within
fourteen (14) days of the granting of this Order the Respondent is
ordered to provide Applicant with accommodation
as is envisaged in
clause 2(e) of the Consent Paper incorporated in the Court Order
aforesaid.
[38.4.2] Within
fourteen (14) days of the granting of this Order the Respondent is
ordered to provide the Applicant with a motor vehicle
as is envisaged
in clause 2(f) of the Consent Paper incorporated in the Court Order
aforesaid.
[38.4.3] Within
fourteen (14) days of the granting of this Order the Respondent is
ordered to replace all of Applicant’s household
furniture and
effects as is currently unserviceable and/or reasonably require
replacement at the Respondent’s costs and expenses.
[38.5] The
Respondent is ordered to pay the costs of these proceedings.
………………………………
N J Yekiso, J