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[2024] ZAFSHC 294
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D.J.V.R v J.F.J.V.R (830/2022) [2024] ZAFSHC 294 (20 September 2024)
SAFLII
Note:
Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 830/2022
In
the matter between
D[…]
J[…] V[…] R[…]
APPLICANT
and
J[…]
F[…] J[…] V[…] R[…]
RESPONDENT
Coram:
Ramdeyal AJ
Heard:
12 September 2024
Delivered:
20 September 2024
ORDER
1.
The
application is dismissed.
2.
Costs
in the cause.
JUDGMENT
Ramdeyal
AJ
Introduction
[1]
The
applicant approaches this court requesting that the respondent be
found guilty of contempt of court for failure to pay maintenance
for
herself timeously, in terms of a court order dated 21 July 2022 and
for failing to comply with a court order dated 20 June
2023,
following a Rule 43 and Rule 43(6) application, respectively. The
applicant contends that the respondent has, on various
occasions,
made late payments in terms of the first court order. The applicant
avers that the late payments by the respondent to
her is economic
abuse and a ‘strong-arm tactic’ (see para 23 of the
applicant’s opposing affidavit in this regard).
She has monthly
obligations to honour. She denies his averments in his opposing
affidavit and submits that the respondent is willfully
in default in
paying her interim maintenance late. She further avers that the
respondent is trying to economically badger her and
torment her into
submission.
[1]
[2]
Contempt
of court is understood to be the commission of any act or statement
that displays disrespect for the authority of the court
or its
officers acting in official capacity, which includes willful
disobedience and resistance to lawful court orders. Willful
disobedience of a court order made in civil proceedings is both
contemptuous and a criminal offence. The term civil contempt is
a
form of contempt outside of the court and is used to refer to
contempt by disobeying a court order.
[2]
[3]
Not every court order
warrants committal for contempt of court in civil proceedings. The
relief in civil contempt proceedings can
take a variety of forms
other than criminal sanctions, such as declaratory orders, mandamus,
and structural interdicts. All of
these remedies play an important
part in the enforcement of court orders in civil contempt
proceedings. Their objective is
to compel parties to comply
with a court order. In some instances, the disregard of a court order
may justify committal, as a sanction
for past non-compliance. This is
necessary because breaching a court order, wilfully and with mala
fides, undermines the authority
of the courts and thereby adversely
affects the broader public interest.
[3]
[4]
In
this case it is common cause that the there are two existing interim
court orders. It is not the applicant’s contention
that the
respondent failed to comply at all in respect of the first order but
that it was not paid on time. He made late payments
for the months of
December 2023 to June 2024. The payments ranged between 3 to 18 days
late.
[4]
[5]
In
respect of the second leg of the contempt proceedings, it is
contended that the respondent failed to comply with the court
order
[5]
to
make payment to the applicant in the amount of R4000 per month in
respect of remuneration for the domestic worker and other related
expenses and is in default of payment of approximately R41 000. All
payments in respect of both court orders were to be paid on
or before
the last day of each month.
[6]
The
respondent avers in his opposing affidavit that he is not withholding
payment from the applicant purposefully or intentionally,
but he is
not earning enough money to comply with the order and has to wait for
funds from the business to become available so
that he can pay the
applicant.
[6]
[7]
The
respondent avers that at the time of the Rule 43 application, the
domestic worker was in his employ at the communal home. He
paid her
an amount of R4000 per month with some additional expenses. The
applicant, after vacating the communal home, terminated
her services
and employed another domestic worker. He is not aware of the contract
conditions of the new domestic worker. However,
in respect of his
domestic employee of eight years, who’s services were
terminated by the applicant, he had to reinstate
her by employing her
at his business and paying her the monthly salary as she threatened
to approach the CCMA for being unfairly
dismissed. The applicant’s
conduct was uncalled for and it cost him further expenses.
[7]
He did
in any event offer to pay the arrears to the applicant at an amount
of R1000 per month but the applicant refused to accept
same. The
domestic worker is now employed in his business to counteract the
applicant’s dismissal of her employ.
[8]
For
these reasons and having to reinstate the domestic worker as referred
to in the court order, he refused to continue to pay the
additional
R4000 per month to the applicant because he was now paying the
domestic worker in question at his business.
[8]
He
concedes that he did not apply for a variation of the court order,
but that was due to limited financial resources and believed
that
this could have been resolved out of court.
[9]
He
makes contributions to their major and minor children’s
expenses solely; he has a blind child and exclusively maintains
him.
The expenses for their blind child attending school in Worcester is
substantial and, together with the applicant’s expenses,
may
result in him not being able to cope with all the expenses imposed on
him.
[10]
He may
not have paid timeously and stopped paying the applicant for the
services of the terminated domestic worker, for the reasons
mentioned
above, but he does more than what is expected of him as per the court
order. He pays towards a storage unit for the applicant
which amounts
to R3 230.00 per month, which does not form part of any order of
court.
[9]
Whilst it is incumbent of the respondent to comply
with the court orders and to apply for a variation of same if need
be, it is
important to consider the fact that the applicant did make
the payments required and with regard to the domestic worker,
remedied
the situation himself, even though it would have been
preferable to approach the court for a variation of same in terms of
rule
43(6) of the Uniform Rules of court.
[10]
It
is incumbent on a court to ensure that the respondent’s conduct
was
male fide
and
wilful, beyond a reasonable doubt. Whether the failure to meet his
financial obligations to the respondent was intentional,
or as a
result of the deterioration of his financial circumstances, it
remains an important aspect to consider.
[11]
[11]
In
Fakie
NO v CCII Systems (Pty) Ltd
[12]
(
Fakie
)
it was held:
‘
Finally,
as pointed out earlier (para 23), this development of the common law
does not require the applicant to lead evidence as
to the
respondent’s state of mind or motive: once the applicant proves
the three requisites (order, service and non-compliance),
unless the
respondent provides evidence raising a reasonable doubt as to whether
non-compliance was wilful and mala fide, the requisites
of contempt
will have been established. The sole change is that the respondent no
longer bears a legal burden to disprove wilfulness
and mala fides on
a balance of probabilities, but need only lead evidence that
establishes a reasonable doubt.’
[13]
The Court continued
‘
To
sum up:
i)
The civil contempt procedure is a valuable and
important mechanism for securing compliance with court orders, and
survives constitutional
scrutiny in the form of a motion court
application adapted to constitutional requirements.
ii)
The respondent in such proceedings is not an
‘accused person’, but is entitled to analogous
protections as are appropriate
to motion proceedings.
iii)
In particular, the applicant must prove the
requisites of contempt (the order; service or notice; non-compliance;
wilfulness and
mala fides) beyond reasonable doubt.
iv)
But once the applicant has proved the order,
service or notice, and non-compliance, the respondent bears an
evidential burden in
relation to wilfulness and mala fides: should
the respondent fail to advance evidence that establishes a reasonable
doubt as to
whether non-compliance was wilful and mala fide, contempt
will have been established beyond reasonable doubt.
v)
. .
.’
[14]
[12]
The
respondent filed a detailed affidavit explaining his reasons for the
late payments, the offer he made to the applicant for the
arrear
maintenance for the domestic worker as well as how he had to remedy
the situation when the applicant terminated the domestic
worker’s
services. More especially the respondent pays for storage for the
applicant in the amount of R3200 which is not
disputed by the
applicant. The respondent makes these payments despite not
being an order of court.
[13]
T
he
applicant chose to institute application proceedings. The approach to
be adopted by the court in such an eventuality is trite.
The matter
must be decided on the respondent’s version.
[15]
[14]
In
National
Director of Public of Prosecutions v Zuma
[16]
the
Supreme Court of Appeal clarified the
Plascon-Evans
principle
as follows:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant's (Mr
Zuma’s) affidavits, which have been admitted
by the respondent
(the NDPP), together with the facts alleged by the latter, justify
such order. It may be different if the respondent’s
version
consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or
so clearly
untenable that the court is justified in rejecting them merely on the
papers.’
[17]
[15]
A
respondent’s version can be rejected in motion proceedings only
if it is ‘fictitious’ 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.
[18]
On
the accepted test for fact finding in motion court proceedings, it is
impossible to reject the respondent’s version in
this case as
fictitious or unworthy of credence.
[16]
The
respondent has discharged the evidentiary burden on him. He has
established a reasonable doubt that his non-compliance was not
willful and mala fide.
[17]
In
the result I make the following order:
1.
The
application is dismissed.
2.
Costs
in the cause.
Appearances:
T
RAMDEYAL, AJ
On
behalf of the Applicant
Adv.
GSJ Van Rensburg
Instructed
by:
Bezuidenhouts
INC
BLOEMFONTEIN
On
behalf of the Respondent
Adv.
C Coetzer
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
[1]
As expounded in para 27
of the applicant’s replying affidavit.
[2]
Pheko
and Others v Ekurhuleni Metropolitan Municipality
[2015]
ZACC 10; 2015 (5) SA 600 (CC).
[3]
Matjhabeng Local
Municipality v Eskom Holdings Limited and Others; Mkhonto and Others
v Compensation Solutions (Pty) Ltd
[2017]
ZACC 35
;
2017 (11) BCLR 1408
(CC) para 54.
[4]
S
ee
court order FA 1 of the court bundle.
[5]
FA2
of the court bundle.
[6]
Paragraph
6 of opposing affidavit.
[7]
See
para 8.1 to 8.2 of the opposing affidavit.
[8]
Paragraph 8.4 of the
opposing affidavit.
[9]
Paragraph 9.2 of the
opposing affidavit.
[10]
Paragraph 10 of the
opposing affidavit.
[11]
See
S
v SH
[2023]
ZASCA 49.
[12]
Fakie
NO v CCII Systems (Pty) Ltd
[2006[
ZASCA 52; 2006 (4) SA 326 (SCA).
[13]
Ibid para 41.
[14]
Ibid para 42.
[15]
See
Plascon
Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
; 1984 (3) 623 (A)
.
[16]
National
Director of Public of Prosecutions v Zuma
[2009]
ZASCA 1; 2009 (2) SA 277 (SCA).
[17]
Ibid para 26.
[18]
Footnote 12 para 56.