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[2024] ZAECMHC 70
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O.D.G v Z.G (CA42/2024) [2024] ZAECMHC 70 (28 August 2024)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. CA42/2024
In
the matter between:
ODG
Appellant
and
ZG
(The
names of the parties have been redacted to protect their
identities.)
Respondent
APPEAL JUDGMENT
HARTLE
J,
[1]
The appellant appeals with leave against a
judgment and order of this court dated 24 October 2023.
[2]
The
court below was concerned with an application launched by the
appellant against the respondent styled “
Urgent
Contempt of Court Proceedings for Committal
,”
which application was dismissed with costs. (“
the
committal proceedings
”)
[3]
The chief challenge on appeal is that the
court
a quo
erred in approaching the application as one for contempt rather than
only for the committal of the respondent arising from a clear
finding
of contempt made earlier by Matebese AJ in a preceding application.
[4]
There were in fact 3 preceding applications
launched in the course of the parties’ divorce litigation prior
to the committal
proceedings, the one cascading into the other.
[5]
In the first application, launched in terms
of the provisions of Uniform Rule 43, the appellant obtained an order
on 23 July 2021
directing the respondent to release and hand over a
BMW X5 motor vehicle to her; to pay her an amount of R34,000.00 per
month sourced
from rental income derived from one of their properties
for use as maintenance for their minor children; to maintain payments
in
respect of the bond, insurance, lights, water and rates relating
to one of the properties owned by their joint estate which was
occupied by the appellant and the children as their primary residence
(“
the property
”);
and to pay school fees and related expenses in respect of the
children (“
the original Rule 43
order
”).
[6]
Five days later the appellant launched an
urgent application due to the respondent's failure to comply with the
original rule 43
order (“
the first
contempt proceedings
”). The
application was initially opposed and a counter application resorted
to by the appellant in response to an application
brought by the
respondent to vary the terms of the original rule 43 order, but it
became settled pursuant to a consent order made
an order of court by
Malusi J on 24 August 2021. The order recorded that both
subject applications had been withdrawn and
repeated the respondent’s
obligation to pay for the bond and utility charges in respect
of the property “
until the bond
has been settled or paid in full
”;
to pay maintenance
pendente lite
for the minor children in the reduced sum of R20 000.00 per
month; to continue paying the school fees and related expenses
of the
three children; and “
to continue
paying for the BMW X5 including insurances and related expenses until
another alternative vehicle acceptable to the
(appellant)
has been provided
.”
[7]
In February 2022 the appellant yet again
launched contempt proceedings on the pretext that the respondent had
continuously and deliberately
failed to bring the bond account, water
services and rates charges in respect of the property up to date
(“
the second contempt
proceedings
”). The
appellant also complained in those proceedings that the respondent
had failed to pay the credit instalments
and related charges
concerning the BMW X5.
[8]
Matebese
AJ heard the application in the second contempt proceedings and on 15
February 2022 delivered a comprehensive judgement
in which he found
the respondent to be in contempt of the two prior orders but gave him
“
a lifeline
”
by affording him a period of 60 days to purge his contempt. The
respondent was also ordered by the court to file a
compliance
affidavit, which direction he duly complied with.
[9]
It
is apposite to set out the terms of the order of Matebese AJ’s
order which he noted in his judgment to have been uniquely
appropriate to vindicate the court’s honour and to keep tabs on
the respondent’s compliance with the two prior orders.
I
should point out further that although he found the respondent to
have been in wilful and
mala
fide
disobedience of the two court orders under contemplation he had
evidently taken his cue from the appellant’s affidavit filed
in
reply in which she had intimated that she did not desire an order for
criminal sanction against him but had instead proposed
an order
directing him to purge his contempt within a specified period of
time. He emphasized that the type of order suggested
by the
appellant in the end, which implicates supervisory relief, was
not inconsistent with our law and jurisprudence in
contempt
proceedings
[1]
but reasoned that
the respondent deserved a longer period than the one suggested by her
to provide him with a reasonable opportunity
to purge his contempt.
[10]
Matebese AJ’s order, referenced
vaguely by the appellant in passing in the committal proceedings,
provides as follows:
“
1.
The respondent is declared to be in contempt of the orders dated 23
July 2021 and 24 August 2021;
[2]
2. The respondent
is ordered and directed to comply with the said orders within sixty
(60) days from the date of this order,
in particular in the following
manner:
2.1 The respondent shall
pay to the applicant the monthly amount of R34000-00 ordered by this
court on 23 July 2021, including settling
the arrears to date and
shall continue to do so until the divorce proceedings are finalized;
2.2 The respondent shall
settle the arrears on the bond, the levies, rates and services and
continue to pay for same on a monthly
basis or as and when they fall
due for the property situated at (address withheld) as ordered and
directed by the court on 23 July
2021 and 24 August 2021.
2.3 The respondent is
directed to refund the applicant, by way of direct payment to her
account, the amount of R22 266.00 paid
by the applicant for the
BMW X5 tyres and to pay for the insurance on a monthly basis in
respect thereof.
2.4 The respondent is
directed to settle the outstanding arrears in respect of the BMW X5
and/or ensure that the vehicle remains
available for use by the
applicant and the children and is not repossessed by the bank by
reason of his failure to pay the instalment
due in respect thereof.
3. The respondent
is ordered and directed to file an affidavit in this court, and serve
same on the applicant’s attorneys,
within ten (10) days from
the date of expiry of the sixty (60) day period, detailing the extent
of his compliance with this order
and with the orders dated 23 July
2021 and 24 August 2021.
4. The respondent
shall pay the costs of this application.”
[11]
From the context of the record before us
the parties continued in earnest to settle the divorce action. A
decree of divorce was
ultimately issued on 7 February 2023
incorporating the provisions of their settlement agreement.
[12]
Nothing further transpired until, on 5 June
2023, the appellant approached the duty judge with an urgent
certificate complaining
that as a result of the respondent’s
failure to have paid for the utility charges in respect of the
property or to have maintained
the credit agreement in respect of the
BMW X5, she had received notices from the relevant municipality and
body corporate which
heralded that legal proceedings were imminent to
recover arrear utility charges and levies respectively.
Repossession of
the motor vehicle was also under threat. Either event
occurring would have negative implications for the interests of the
minor
children which was the primary premise for the claimed urgency.
[13]
Thus the committal proceedings were
launched in which the appellant prayed for an order that the
respondent be committed to prison
for a period of 30 days, provided
that the criminal sanction be suspended on condition that he comply
with the first two orders
as well as the divorce order (
sic
)
within 14 days of the urgent order anticipated, or subject to such
further or alternative conditions as the court might direct.
[14]
As
an aside the divorce order obviously brought an end to the main
action which gave life to the Rule 43 proceedings and its aftermath
in its own unique way.
[3]
Despite the usual clause in the parties’ settlement agreement
that was incorporated in their divorce order suggesting that
its
terms were in full and final settlement of all the proprietary and
related issues arising between them, they were however
ad
idem
amongst themselves that the arrears accumulated by the interim and
related orders were not eradicated thereby or intended to be
written
off. The problem of their existence remains very much at the
forefront of the appellant’s concerns. Both
the prospects
of the foreclosure of the bond (and the resultant threat of the
appellant’s home being sold in execution) as
well as the
recovery of the motor vehicle by the financier loom large to the
disadvantage of the appellant and the parties’
children. Only
the payment of the arrears will avoid these unfortunate
eventualities, an outcome that the respondent appears in
all the
earlier proceedings to have reconciled himself with.
[15]
Inasmuch
as the court
a
quo
found that the arrears were cancelled out by the divorce order and or
were written off, such a perception is a mistaken one in
conflict
with the parties own understanding of what the respondent’s
obligations are.
[4]
Indeed, in the divorce settlement the respondent has assumed the
responsibility for payment of the bond and credit agreement
respectively (including related utilities), arrears and all, even on
the proviso that these assets are to be vested in the appellant’s
name as her exclusive property. But as mistaken as the court
a
quo
was in finding that the orders that were the subject of the contempt
and committal proceedings before her (or at least certain
aspects of them) were not extant, she yet proceeded to deal with the
matter further on the assumption that their existence had
been
established as one of the requisites of contempt reiterated by the
Supreme Court of Appeal in
Fakie
NO v CCII Systems (Pty) Ltd
[5]
in such proceedings namely : the order; service and notice;
non-compliance; and wilfulness and
mala
fides
.
[16]
As a further aside the court
a
quo
was criticized on appeal for
finding that the committal proceedings were not urgent after
apparently having informed the parties
that it was unnecessary to
address it on the subject. Although the court was of the view in the
judgment that urgency had not been
established, it yet proceeded to
deal with the merits of the application. Having decided the
application in any event (and that
the issue of urgency was not
dispositive of the application) we find no need to press this ground
of appeal any further either.
[17]
The main enduring challenge of the appeal
is that the court
a quo
should not have entered into any debate about the respondent’s
contumacy in respect of his obligations spelt out in two court
orders. Instead, it should have accepted that this had already been
pronounced upon by the court in the second contempt application
(per
Matebese AJ) and that all it was called upon to do was to proceed to
commit him to prison and not to give him a further lifeline
as it
were because, by the time of the launch of the committal proceedings,
he had failed to purge his contempt.
[18]
This argument is best understood by having
regard to the relevant grounds stated in the appellant’s notice
of appeal as follows:
“
2.
The Learned Judge erred and misdirected
herself by dealing with the matter as if it is an application for
contempt even though it
was an application for committal. The effect
of the judgement appealed against had an impact of impugning and
overturning the judgement
by Acting Judge Matebese. In a nutshell the
Learned Judge made a ruling on what was not before her, something
that was dealt with
by Matebese AJ.
3. The Learned
Judge’s reasons for dismissing the application was that the
Appellant had not discharged the onus of
proving that the
respondent’s non-compliance is wilful and
mala fide
. It
is respectfully submitted that this was not the pronouncement that
the court
a quo
was called to make as this finding was already
made in Matebese AJ’s judgement.
4. All what was
required for the Learned Judge to do was to issue a coercive order
that would compel the Respondent to comply
with the orders. The
finding made by the Learned Judge had far-reaching implications and
would create a mockery of the justice
system in that one Judge makes
a finding on a particular issue and another judge (not sitting as a
court of appeal) makes a different
finding on the same issue in the
same matter.
5. The Learned
Judge erred and misdirected herself in finding that the Respondent
was justified in not complying with the
orders because of his
financial constraints and Covid 19 related reasons. The Judge further
found, in paragraph 46 of her judgment,
that she considered
Respondent’s partial compliance as a basis for finding that his
conduct was not wilful and
mala fide
. It was unfortunate that
this finding was at war with what was found by Matebese AJ in
paragraphs 25 to 27 of his judgment.”
[19]
It is necessary at the outset to consider
the nature of the application that was before the court
a
quo
.
[20]
Quite
evidently, whether the emphasis falls on the word “
committal
”
or the phrase “
contempt
of court
”
that appear in the header of the applicant’s notice of motion,
it is the remedy prayed for that puts the application
under scrutiny
foursquarely within the dimension of contempt proceedings requiring
the higher standard of proof and particular
deference to
constitutional dictates. The standards of proof are those set
out in
Fakie
: a balance of probabilities in respect of civil remedies, and a
reasonable doubt when a committal order is requested.
[6]
[21]
Merely
calling the application one for committal does not mean that the
court below could therefore disengage from a full enquiry
into the
requisites for contempt or compartmentalize them. This is especially
so since the sanction of imprisonment, or the threat
thereof, was at
that point on the cards.
[7]
[22]
Further
since the committal proceedings were a sequel to the structural order
granted by Matebese AJ (and the divorce had since
intervened) it is
self-evident that any introspection by the court into the requisites
for contempt would have to be considered
afresh and properly
established on the evidence having regard to the unique developments
since. This would necessarily involve
a consideration of the
exact extent of the non-compliance or breach of the original orders
(or aspects thereof), as well as the
terms of the subsequent contempt
order (per Matebese AJ), where applicable, and the respondent’s
endeavours at compliance
therewith.
[8]
[23]
In
summary the court below did not erroneously misdirect itself by
dealing with the application as one for contempt in the strict
sense
of the concept. It is the sacrosanct nature of these
proceedings and the implication of the criminal dimension to them
that calls special attention to their hearing with due regard to
constitutional dictates.
[9]
Whether the respondent’s failure to comply with the relevant
aspects of the prior orders that remained extant was contumacious
is
exactly the pronouncement that the court below was expected to make.
Indeed it would make the difference whether the appellant
could ask
for the order she desired in the event that the requisites were
proven beyond reasonable doubt, or whether she had to
content herself
with a mere declarator and other appropriate remedies remaining
available to a civil applicant on proof of a balance
of
probabilities.
[10]
[24]
It is also a misconception that the court
a
quo’s
consideration of the
necessary requisites that it was obliged to have regard to means that
it was in the process undermining the
findings of Matebese AJ made in
the antecedent proceedings.
[25]
I believe it follows logically instead that
the respondent’s historical contempt found at the time stands
as a firm judgement.
The respondent did not take issue with this
finding after the fact neither was it contended on his behalf in the
committal proceedings
that he should not have been found to have been
in contempt of the two prior orders as the court had found. He
also evidently
did not suggest that the remedy peculiar imposed by
Matebese AJ for his culpable breach of the main thrust of the two
prior orders
fell to be questioned in any manner.
[26]
The respondent ultimately complied with the
order insofar as he was directed to furnish a compliance affidavit,
albeit he contended
in it that he was battling to make ends meet and
to bring up the arrears. It was in this context that he
highlighted that
he had thrown all his weight into settling the
divorce action because the cost of litigating the action had proved
to be prohibitive.
[27]
Further, and quite self-evidently, he took
no steps to vary the terms of Matebese AJ’s order, simply
bemoaning the fact, at
least at the time of filing his compliance
affidavit in the manner that the supervisory order required of him,
that it had been
difficult for him to fully comply with the orders’
terms, but he also outlined what steps he had taken and what payments
he had in fact made by that date.
[28]
I am therefore not in agreement with the
sentiment expressed on behalf of the appellant that the court
a
quo’s
own pronouncement of the
requisite of culpable contumacy, whereas Matebese AJ had considered
the same requisite under separate circumstances,
creates a mockery of
the justice system.
[29]
Further
and in any event Matebese AJ’s finding of contempt was
vindicated by the peculiar order made that the court considered
appropriate for that moment in time and relative to the facts that
served before him. The proceedings were brought to their logical
conclusion by the imposition of a sanction in the form of a
structural order to vindicate the court’s authority.
[11]
[30]
That brings me to the final question
whether the court
a quo
can be criticized for concluding that although the respondent had not
fully complied with the court orders, it did not follow upon
malice
or wilful conduct towards the court which constituted its primary
reason for dismissing the appellant’s application.
I
think not on the evidence.
[31]
The respondent’s non-compliance with
the orders
per se
by no stretch of the imagination automatically equates to a finding
of contumacy on his part. Instead, the court
a
quo
accepted that he was not in wilful
default as he insisted in his answering affidavit because he was
trying by all might to bring
up the arrears.
[32]
Co-incidentally, the appellant hardly
engaged with this requisite for the contempt proceedings, simply
reverting to her stance that
the respondent’s wilful contempt
was old-hat and already decided.
[33]
While there may have been a good reason for
her to have launched an application for committal when she did
because the bond and
credit agreements were being called up, it
certainly required more than a generic averment that the respondent
had not purged his
contempt or tried to address the arrears. Whilst
the appellant relied on a replying affidavit filed in response to the
respondent’s
compliance affidavit this was deposed to some 11
months before the launch of the application, during which a number of
payments
could have been made in the interim. It certainly does
not follow axiomatically that because the banks were threatening
foreclosure
this equaled contumacious disobedience of court orders.
(Current payments made on the affected accounts that were
substantially
in arrears could also for example have been allocated
by the banks to the older arrears and interest). Given the detailed
structural
plan enunciated in Matebese AJ’s order one would
have expected the appellant to engage with each part of that order to
define
the exact extent of the non-compliance that would, if the
other requisites for contempt had been established, have justified
the
remedy of committal sought by her.
[34]
In the end, whether the application had
been dismissed for want of the appellant’s establishing clear
non-compliance of each
aspect of the prior orders that still required
obedience at the time and in the manner applicable, or for the reason
that the court
below decided that the respondent was not in wilful
default of the prior orders, the outcome in my view was the correct
one.
[35]
In the premises the appeal should not be
upheld, and the costs should follow that result.
[36]
I make the following order:
1.
The appeal is dismissed with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
agree,
F
DAWOOD
JUDGE
OF THE HIGH COURT
I
agree,
M
MAKAULA
JUDGE
OF THE HIGH COURT
DATE
OF APPEAL
: 21
August 2024
DATE
OF JUDGMENT :
28 August 2024
Appearances:
For
the Appellant: Mr. H Zilwa of Zilwa Attorneys, Mthatha (ref. Mr
Zilwa)
For
the Respondent: Mr. M Mneno instructed by Mgxaji Zazaza Attorneys,
Mthatha (ref. Mr. Mgxaji)
[1]
Matjhabeng
Local Municipality v Eskom Holdings Ltd & Others
2018 (1) SA 1
(CC) at paras 46 – 67.
[2]
Read with the judgment the effect of the declarator is that he was
declared to be in wilful contempt of the two prior orders.
[3]
It was conceded for example that the obligation on the respondent to
pay interim maintenance (as a monthly requirement in terms
of the
prior orders) came to an end by the issue of the divorce order.
[4]
The court
a
quo
observed that this was not one of those instances where the
existence of the Rule 43 order, which by obvious implication is of
a
pendent
lite
nature, “
survived
”
the decree of divorce. Indeed she expressed the view that the
orders of 23 July and 24 August 2021 had “
lapsed
”
with the finalization of the divorce proceedings.
[5]
[2006] ZASCA 54
at para
[42]
.
[6]
Pheko &
Others v Ekurhuleni Metropolitan Municipality (No. 2)
2015 (5) SA 600
(CC) at para [50] and
Fakie
supra
at paras [39] and [42].
[7]
Pheko
(No. 2) Supra
at para [35] and
Fakie
Supra
at
para [24].
[8]
There
is always a prospect and a hope that a contemnor might entirely
avoid the imposition of a sentence by complying with the
terns if a
structural order as employed by Matebese AJ.
[9]
Pheko
(No. 2) Supra
at para [35].
[10]
Fakie
Supra
at para [42.5]
[11]
The historical findings may well be the basis to justify a more
stringent sanction down the line.