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[2024] ZAECQBHC 60
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E.M.T v N.T (3672/2023) [2024] ZAECQBHC 60 (10 October 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 3672/2023
Date
Heard: 1 August and 10 September 2024
Date
Delivered: 10 October 2024
In
the matter between:
E[...]
M[...]
T[...]
APPLICANT
and
N[...]
T[...]
RESPONDENT
JUDGMENT
MULLINS
AJ:
INTRODUCTION
[1]
The parties are involved in the throes of a defended divorce action
which shows no
signs of being resolved any time soon. The
disputes referred hereunder emanate from that action.
[2]
To avoid confusion I will refer throughout to the Plaintiff in the
action (Mrs T[...])
as the Applicant and the Defendant (Mr T[...]) as
the Respondent.
[3]
The Applicant was represented by Ms
Crouse SC
and the
Respondent by Mr
Joubert
. I am indebted to counsel for
their assistance.
[4]
The parties were married to each other on 2 March 1996 out of
community of property
with the inclusion of the accrual system.
Two sons, both of whom are majors, but who are to a large extent
still dependent,
were born of the marriage. Fortunately, they
play no part in these proceedings.
[5]
Subsequent to the institution of the divorce action, on 26 October
2023 the Applicant
launched a Rule 43 application, which the
Respondent opposed. After hearing argument Eksteen J made the
following order (the
“Rule 43 Order”):
“
1.
The Respondent pay maintenance
Pendente
Lite
to
the Applicant in the amount of R15 000.00 per month, the First
Payment to be made within five (5) days of this order and
thereafter
on or before the 1
st
day of each subsequent month, without set-off or deduction of any
costs of whatsoever nature.
2.
The Respondent retain the Applicant on the current medical aid scheme
or a scheme
with similar benefits, and is to pay all premiums
thereof, as well as reasonable medical costs not covered by the said
medical
aid scheme.
3.
The Respondent ensure that the Toyota Fortuner motor vehicle
currently in possession
of the Applicant is serviced annually, the
First service to be carried out within 10 days of this order, and to
pay for such service.
4.
The Respondent continue to make payment towards the erstwhile joint
household
which he had been paying at the time of vacating the
erstwhile matrimonial home, inclusive of, but not limited to,
electricity,
DSTV, WI-FI, alarm system and insurance.
5.
The Respondent make a contribution to the Applicant’s legal
costs in the
amount of R90,000.00 which is to be paid in three equal
instalments, the first instalment to be paid by 31 December 2023, and
the
subsequent instalments by 31 January 2024 and 29 February 2024,
respectively.
6.
The costs of the application will be costs in the action.”
[6]
What is before me are the following:
(a)
An application to have the Respondent found guilty of contempt of
court for failing to comply
with the Rule 43 Order, which is opposed
by the Respondent (the “Contempt Application”);
(b)
An application by the Respondent in terms of Rule 43(6) for a
variation of the Rule 43 Order,
which is opposed by the Applicant
(the “Variation Application”).
[7]
As the two matters are essentially two sides of the same coin it was
directed that
they be heard together. In addition, the original
Rule 43 is relevant because it has a direct bearing on whether the
Respondent
has made out a case for a variation.
[8]
The Contempt Application was launched on 12 January 2024 and the
Variation Application,
which is essentially a counter-application, on
4 June 2024. The reason for the substantial period of time
between the two
applications is explained by the allegation by the
Respondent that he only discovered the Applicant’s changed
circumstances
at a much later date.
[9]
I do not intend to traverse the allegations and counter-allegations
contained in the
voluminous papers before me.
[1]
Suffice it to state that after hearing argument I was satisfied that
the Respondent was in contempt of the Rule 43 Order,
but that insofar
as the Variation Application was concerned certain further
information was necessary. In the circumstances
I handed down
an order which reads as follows (the “Interim Order”):
“
A
CONTEMPT
OF COURT APPLICATION
1.
The respondent, Mr T[...], is hereby held to be in contempt of court
due to his wilful
and mala fide failure to comply with the order of
this honourable court, dated 5 December 2023 (the court order).
2.
The respondent is sentenced to undergo 30 days imprisonment, which
sentence is suspended
for 18 months on condition that, within 20 days
of this order, he:
2.1.
Pays all arrear maintenance, and continues to pay the maintenance as
provided for in paragraph 1 of the court order;
2.2.
Pays all the arrear reasonable medical costs not covered by his
medical
aid scheme, and continues to pay these costs, as provided for
in paragraph 2 of the court order;
2.3.
Attends to the annual service of the Toyota Fortuner motor vehicle,
as
provided for in paragraph 3 of the court order.
3.
In the event of the respondent failing to comply in paragraph 2 above
and/or failing
to comply with the court order in the future, the
applicant may approach the court on the same papers, suitably
amplified, for
the implementation of the suspended sentence.
4.
The Respondent is ordered to pay the costs of the contempt of court
application on
an attorney and client scale.
5.
If requested by either party, reasons for the order will be provided
on finalisation
of the Rule 43(6) application.
B.
RULE 43 (6) APPLICATION
1.
In accordance with Rule 43 (5):
1.1.
The respondent, Mrs T[...], shall within 10 days of this order file
an
affidavit:
1.1.1.
Providing the details of her current employment at H[...] House
School, Sunland, in particular
the details of her salary package;
1.1.2.
The details of her medical conditions, lupus and depression, together
with supporting affidavits,
if necessary;
1.2.
The applicant, Mr T[...], shall within 10 days of this order file an
affidavit:
1.2.1.
Attaching his bank and credit card statements for the period 01 March
2024 to 15 August 2024;
1.2.2.
Detailing any other income or benefits he receives in addition to
what is reflected in the
statements.
2.
Within 5 days of compliance with paragraph 1 above the parties may
file a further affidavit
dealing only in the issues referred to
above.
3.
Pending compliance with paragraphs 1 and 2 above the application is
postponed sine
die. The parties are to approach the presiding
judge to arrange a suitable date for the further hearing of the rule
43 (6)
application.
4.
Costs of the application are reserved.”
[10]
As is evident from the Interim Order the Respondent was found to be
in contempt of court and
on pain of imprisonment was ordered to purge
his contempt.
[11]
Insofar as the Variation Application was concerned, the changed
circumstances alleged by the
Respondent was that subsequent to the
Rule 43 Order the Applicant had found a job and was gainfully
employed. This was not
in dispute, but despite it being of
obviously crucial importance to the matter she did not disclose her
salary, nor was Ms
Crouse
able to advise me from the bar what
she was earning.
[12]
I accordingly ordered the Applicant to disclose on affidavit the
details of her current employment.
[13]
In addition, due to the manner in which the Respondent had patently
lied about his income in
the Rule 43 and the Contempt Application he
was ordered to disclose on affidavit all income and benefits in
addition to those already
disclosed.
[14]
Based on the further information the parties were permitted to file
further affidavits dealing
only
with the issues referred to in
Part B of the Interim Order and the matter was postponed to be
resumed before me in due course.
[15]
Both parties complied with the Order. When the matter resumed
on 10 September 2024 both
parties had filed lengthy affidavits
[2]
essentially re-arguing the Rule 43. Both parties, but in
particular the Applicant, ignored paragraph B2 of the Interim Order
(see above) which was to the effect that further affidavits were
permitted dealing
only
with the issues mentioned
in Part B of the Interim Order. Be that as it may, in the
interests of finality, I allowed the matter
to proceed.
[16]
Of relevance from the Applicant’s point of view is that she is
employed by H[...] House School
as a “
permanent employee
”
earing R11,550.00 gross per month, plus an additional R8,325.00 for
attending to aftercare (which amount is variable).
Her net
income for July 2024 (being the only salary slip disclosed by her)
was R17,408.91.
[17]
Unfortunately, any further information as to her medical condition is
sadly lacking. She alleges
that she suffers from lupus (a
neurological disease) and depression. Apart from her own
self-diagnosis there is no independent
medical evidence to support
her contention that (a) she suffers from the illnesses she contends,
and (b) that as a result thereof
she is unable to work, or at the
very least should not be working. Given that she claims to be
on prescribed medication for
anxiety and depression, the complete
lack of detail is concerning, if not suspicious.
[18]
From the Respondent’s point of view his further affidavits
clearly show that he is in a
position to afford to pay the
maintenance ordered in the Rule 43 Order. However, he alleges
that due to the fact that the
Applicant is now earning in excess of
what he was ordered to pay her (R15,000.00) he is entitled to a
variation deleting the said
amount.
[19]
The Applicant counters this by stating that the only reason she
sought employment was because
of the Respondent’s failure to
comply with the Rule 43 Order which,
inter alia
, forced her to
dip into an inheritance. She says that even with her current
income and the R15,000.00 per month she doesn’t
come out.
[20]
Both arguments have merit. However, it must be borne in mind
that the Applicant was previously
employed and lost her job, not due
to ill-health, but because she was retrenched. When forced due
to circumstances (the Respondent’s
contempt) she was able to
find employment and is holding down a job despite her protestation of
ill-health.
[21]
The bottom line is that her circumstances have changed for the better
and this will be reflected
in the order I intend to make.
[22]
The Variation Application became side-tracked by a dispute over
whether the Respondent (actually
his mother) is in the process of
selling the house in which the Applicant currently resides.
Despite the Respondent’s
denial, it would appear that this is
the case and it resulted in the Applicant filing a further affidavit
(in addition to the voluminous
one in response to the Interim Order)
dealing with,
inter alia
, her relocation costs, and the like.
She says she has found alternative accommodation, but the costs of
the move are very sketchy.
[23]
This issue can be dealt without further ado: if and when the
house is sold and the Applicant
is forced to relocate she will be
entitled to bring an application in accordance with Rule 43(6).
Until then her circumstances
have not changed. The same applies
if her employment should come to an end.
[24]
In conclusion, I am satisfied that the Respondent has made out a case
for a variation.
[25]
Insofar as costs are concerned, the resumed hearing was occasioned in
large measure due to the
Applicant’s failure to disclose her
income in the first place. In
MTM
v MMGT
[3]
Liebenberg
AJ stated (at para [17]):
“
[17]
There is
a duty on an applicant who seeks equitable redress to act with the
utmost good faith, and to disclose fully all material
financial
information. Any false disclosure or material non-disclosure
may justify refusal of the relief sought
.”
[Underlined for emphasis].
And
in
Du
Preez v Du Preez
[4]
Murphy
J opined (at para [16]):
“
[16]
Moreover, the power of the court in rule 43 proceedings, in terms of
rule 43(5), is to “dismiss the
application or make such order
as it thinks fit to ensure a just and equitable decision”.
The discretion is essentially
an equitable one and has accordingly to
be exercised judicially with regard to all relevant considerations.
A misstatement
of one aspect of relevant information invariably will
colour other aspects with the possible (or likely) result that
fairness will
not be done.
Consequently,
I would assume, there is a duty on applicants in rule 43 applications
seeking equitable redress to act with the utmost
good faith
(
uberrimei
fide)
and
to disclose fully all material information regarding their financial
affairs. Any false disclosure or material non-disclosure
would
mean that he or she is not before the court with “clean hands”
and on that ground alone the court will be justified
in refusing
relief
.”
[Underlined for emphasis].
[26]
In the present matter, unlike the authorities quoted above, it would
not be appropriate to dismiss
the application as it is the Respondent
who is seeking relief in the form of a reduction. He is not
responsible for the material
non-disclosure.
[27]
In retrospect it is obvious why the Applicant was reluctant to
disclose her income. It
was detrimental to her case. As a
result of this omission the moral high ground which she enjoyed in
the Contempt Application
has completely dissipated. In the
circumstances she should be held liable for the costs of the resumed
hearing on 10 September
2024 on the same basis as the Respondent was
ordered to pay the costs of the Contempt Application.
[28]
The Respondent is entitled to a reduction in the maintenance payable,
but not to the extent claimed
by him, bearing in mind the fact that
the Applicant was forced to utilize a substantial amount of her
inheritance due to the Respondent’s
contempt, and it has been
nearly a year since the Rule 43 Order was made.
[29]
I make the following order:
1.
Paragraph 1 of the Court Order of 5 December 2023 is varied by the
replacement
of the sum of R15,000.00 with the sum of R7,500.00
payable by the Respondent (Mr T[...]) to the Applicant (Mrs T[...]),
as from
1 November 2024.
2.
Save for the above the Court Order dated 5 December 2023 remains in
all respects
unaltered.
3.
The Applicant (Ms T[...]) is to pay the costs occasioned by the
hearing on 10
September 2024 on an attorney and client scale.
NJ
MULLINS
(ACTING
JUDGE OF THE HIGH COURT)
REPRESENTATION
:
Obo
the Applicant:
Adv.
L Crouse SC
Instructed
by:
ANNALI
ERASMUS INC.
11
Bird Street
Central
GQEBERHA
Obo
the Respondent:
Adv.
G Joubert
Instructed
by:
Steyn
Inc. (PE)
29
Bird Street
Central
GQEBERHA
[1]
The Rule 43
application is 90 pages in length; the Contempt Application
is 106
pages long; the Variation Application is 128 pages. Total 324
pages.
[2]
A further 173
pages.
[3]
Gauteng
Division, Johannesburg: case no. 2023-012335
[4]
[2008] 22600
(T)