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[2024] ZAECQBHC 41
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S.A v N.B.A (1238/2020) [2024] ZAECQBHC 41 (26 November 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE No: 1238/2020
In the matter between:
S[...]
A[...]
Applicant
and
N[...]
B[...]
A[...]
Respondent
JUDGMENT
MAKAULA J:
Background
[1]
The applicant brought an urgent application on 4 August 2022 seeking
the following
order.
“
1.
That's the court dispense with the forms and service provided for in
the rules and allow the matter to be heard as one of urgency;
2. That the Respondent be
found to be in contempt of the order of court of 13 July 2021, a copy
of which is annexure “SA1”
hereto;
3. That if it is content
be found to be liable to the applicant in the sum of R88 000.00
in area maintenance in terms of the
order of court of 13 July 2021;
4. That the Respondent be
directed to make immediate payment of the aforesaid sum of R88 000 00
in arear maintenance to the Applicant;
5. That the Respondent be
imprisoned for a period of one month, or alternatively this court
impose such sentence as it considers
appropriate, in the event that
the respondent fails to make payment of the aforementioned arear
maintenance of R88 000 00
within 5 days of this order;
6. That the Respondent
pay the costs of this application on a scale as between attorney and
client;
7. Any further and/or
alternative relief that this court may deem appropriate in the
circumstances.”
[2]
The urgent application was opposed by the respondent and papers were
exchanged over a lengthy period.
When the matter was argued before me
on 20 June 2024, the amount had varied from R88 000 00 to
R294 500.00. Noteworthy
upfront is that it took 2 years before
the application was ripe for hearing. Therefore, the issue of urgency
has come and gone.
[3]
Briefly, the parties are married to each other and are in an
acrimonious divorce which is still pending.
As aforesaid, my brother,
Gqamane J issued an order, amongst others, that the Respondent should
pay an amount of R22 000.
00 monthly, directly to the applicant
on or before the 30
th
of each month. Such failure led to
the application before me. It is not essential that I should delve
into the background laid
out in the founding affidavit as how the
arrears came about since such is not hotly contested by respondent.
It is common cause
that the respondent defaulted in complying with
the said order, adducing various reasons for doing so, which I shall
deal with
later.
B.
The Facts.
[4]
As previously stated, the issue of the respondent being in arrears is
not in dispute.
What is is whether the respondent is able to settle
the arrears and carry on complying with the order. The applicant
contends that
the respondent can do so since he is a medical doctor
who runs a private medical practice and is employed by the Department
of
Health at Livingstone Hospital in Gqeberha. The applicant, based
on the calculations made by her attorneys for purposes of the Rule
43
application, avers that the respondent generates a monthly income
from his practice alone, amounting to approximately R400 000
00 per
month and from his employment with the Department of Health a salary
of approximately R73 000 00 per month. Primarily, the
applicant
submits that the respondent is able to pay for the maintenance, put
differently, to comply with the order for the reason
that (a) he had
just bought a house for R3.2 million, (b) has recently married two(2)
wives in terms of Muslim Laws and fathered
three (3) more children
(c) has engaged no less than four firms of attorneys to
represent him including a senior counsel.
For those reasons, the
applicant argues that the respondent is deliberately and
unjustifiably disobedient to the court order and
is also willfully
disobeying it.
[5]
The respondent admits that there is an order for the payment of
maintenance as stated above.
Running the risk of repeating myself,
the respondent further admits that he is in arrears in respect of his
maintenance obligation
as stated by the applicant. The respondent
contends that his failure to adhere to the court order was not mala
fide
or willful in that he found himself in extreme financial
predicament as he is the sole breadwinner and solely responsible for
all
their three children's tertiary education. He states that he has
tried all means possible to rectify the situation but to no avail.
However, he continues to make meaningful payments as his financial
position permits. To do so, he sold two of his vehicles, the
proceeds
of which were paid towards the settlement of the arears. The
respondent states that he has addressed correspondence to
the
applicant advising her that he is trying to access his pension fund
through the Government Employees Pension Fund (GEPF) to
liquidate the
arrears. His attempts in this regard came to naught due to the ‘two
pot’ system which would have enabled
him to access a portion of
his pension, had not been gazetted. In furtherance of his attempt to
liquidate the arrears, he has put
two of his immovable properties on
the market for sale, also making an undertaking that the proceeds
thereof shall be used to liquidate
the amount outstanding. In this
regard he undertook to provide the conveyancer with an irrevocable
instruction to effect payment
directly to the applicant’s
attorneys on registration of transfer of the full arrears amount
owing by him. The respondent
advises that he is taking all reasonable
steps to liquidate assets to meet the full extent of the arrear
amount due to the applicant.
C.
Analysis.
[6]
Cameron JA (as he then was)
[1]
summed
up the requirements of contempt of civil proceedings as follows
“
1.
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders and survived constitutional
scrutiny in the form of the motion court application adapted to
constitutional requirements.
2.
The respondent in such proceedings is not an ‘accused person’
but is entitled to analogous protection as are appropriate
to motion
proceedings.
3. In particular,
the applicant must prove the requirements of contempt (the order;
service or notice; non-compliance; willfulness
and
mala fides
beyond reasonable doubt.
4. But once the
applicant has approved the order, service or notice and
non-compliance the respondent bears an evidential
burden in relation
to willfulness and
mala fides
: should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was willful and
mala fides
, contempt will have
been the established beyond reasonable doubt.
5. A
declarator and other appropriate remedies remain available to a civil
applicant on proof on the balance of probabilities.”
[7]
It is common cause that the first three (3) requirements i.e. the
order, service or
notice and non- compliance with the order dated 13
July 2021 has been established beyond reasonable doubt by the
applicant and
conceded by the respondent. What remains is whether the
order was disobeyed willfully and with
mala fides
by the
respondent. As authoritatively stated above the respondent must
establish beyond reasonable doubt that he was not in willful
default
of the court order and did not do so with mala fides.
[8]
The submission by the applicant is that the respondent has dismally
failed to discharge
the evidential burden that rested in him to
disprove willfulness and mala fides. The applicant further places
reliance on the judgment
of my brother Lowe J in an application in
terms of Rule 43(6) to disprove the assertion by the respondent that
he cannot afford
to pay the maintenance ordered by the court and to
liquidate the arrears. Starting with the latter submission, Lowe J
did not decide
whether the respondent had sufficient cash to pay for
the maintenance. Two issues served before him namely, (a) an
application
for further contribution towards the applicant’s
costs of litigation, and (b) an application by the respondent to
rescind
the order by Gqamane J in terms of Rule 46(6). The
application therefore before Lowe J, is distinguishable from the
current application.
In in resolving the issue, Lowe J said the
following about the affordability of the respondent.
“
50.
The fact of the matter is that whilst the respondent complains that
his financial position has deteriorated, and that his income
is
insufficient to meet his expenses by a considerable margin, what he
does not appreciate is that there are a considerable number
of
immovable properties either in his name, or in his and the
applicant's name jointly, of which he is essentially in control,
which would enable him without difficulty to meet whatever claim is
reasonable as to a contribution to costs, having regard to
the equity
today even after deduction of bond indebtedness.
[9] This is the
contention proffered by the respondent in that the applicant is not
prepared to come on board in assisting him to
dispose some of the
properties to meet the maintenance demands. I am not in the list
deciding the issue except to say there is
such an averment by the
respondent.
[10]
As stated in the authorities cited above; it is incumbent upon the
respondent to discharge the
evidential burden resting upon him as to
his willingness to comply with the order. Further, it is for the
respondent to establish
that his non- compliance with the order was
not
mala fides
, in other words, done with malicious intent.
[11]
The SCA in Fakie
[2]
the court
said the following about the test;
“
10.
These requirements – that the refusal to obey should be both
wilful and mala fide, and that unreasonable non-compliance,
provided
it is bona fide, does not constitute contempt – accord with the
broader definition of the crime, of which non-compliance
with civil
orders is a manifestation. They show that the offence is committed
not by mere disregard of a court order, but by the
deliberate and
intentional violation of the court’s dignity, repute or
authority that this evinces.
15
Honest
belief that non-compliance is justified or proper is incompatible
with that intent.” (Footnotes omitted)
[12]
As adumbrated
above, the respondent cites instances where he tried to purge his
contempt by, for example, selling his two motor
vehicles, trying to
access his pension fund, putting two of his properties on the market
for sale, approaching standard bank to
register a new bond on any of
the properties to no avail. He attached documentary proof, which was
sent to the plaintiff’s
attorneys, to substantiate his claims
by annexing annexures “NA7 to NA11” respectively.
[13]
The applicant neither denies nor deals with the issue of selling the
two motor vehicles. Further,
the issue of access to the pension fund
is not denied by the applicant except to say that she was not going
to be party to any
court order granting access to the respondent
pension fund with GEPF. In essence that indicates that the applicant
was not willing
to assist in accessing the pension fund to liquidate
the maintenance arrears. In respect of the denial of a new bond by
Standard
Bank, the applicant denies knowledge of that except to say
that the correspondence attached was illegible. The applicant does
not
dispute the fact that two properties have been placed on the
market as the correspondence indicated except to say nothing
indicates
that the properties are on market based on the
correspondence from Just Properties which is an estate agent. The
latter concern
by the applicant should be viewed in the light of the
undertaking by the respondent that the properties will be sold, and
the conveyancer
will be given instructions to pay the proceeds
thereof to the applicant's attorneys. The correspondence was attached
merely to
establish the values of the properties as the contents so
reveal.
[14]
Gleaning from the efforts made by the respondent in attempting to
sell his properties and collecting
money to settle the maintenance
arrears it cannot be said that the latter did not make a concerted
effort to page his contempt.
It is further so that the respondent
cannot be said to have been willful and
mala fides
in not
abiding with the court order dated 13 July 2021. I cannot even find
that the steps taken and undertaken by the respondent
and not denied
by the applicant are unreasonable in the circumstances. It is my
finding that the respondent has discharged the
evidential burden
bestowed upon him to prove that he did not willfully and with
mala
fides
disobeyed the said court order.
[15]
I find it difficult based on the papers and the submissions made by
counsel as to exactly how
much the respondent is in arrears with his
maintenance. As stated above, the amount was said to be R88 000.
00 and it later
was amended to be R294 500.00. I shall
work on the assumption that the latter amount is the correct one.
In the
event I am wrong, the trial court shall well vest to deal and
revisit the order in this regard. I consider it appropriate
that the issue of the costs of this application be held over until
the end of the divorce proceedings.
[16]
Consequently, I make the following order:
1.
The application to hold the respondent in contempt of the order of
this court
dated July 2021 is dismissed.
2.
The respondent is ordered to pay an amount of R30 000,00monthly, on
or before
the seventh (7) day of each month until the arrears
amounting R294 500,00 are paid.
M MAKAULA
JUDGE OF THE HIGH
COURT
Appearances
For the Applicant
: Bukky
Olowookorum
Instructed
by
: BUKKY
OLOWOOKORUN ATTORNEYS
For the Respondent
: Adv
Nepgen SC
Instructed
by:
: JOYZEL
OBBES INC.
Date
heard
: 20 June
2024
Judgment
delivered
: 26
November 2024
[1]
Fakie
NO v CCII Systems (PTY) LTD 2006(4) SA 326 (SCA) at para 42. Fakie
was confirmed by the Constitutional Court in Pheko and
Another v
Ekuruleni City 2005(5) SA 600 at para 36)
[2]
“
9.The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed
‘deliberately
and mala fide’.
12
A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him- or herself entitled
to
act in the way claimed to constitute the contempt. In such a case
good faith avoids the infraction.
13
Even
a refusal to comply that is objectively unreasonable may be bona
fide (though unreasonableness could evidence lack of good
faith).
14