SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
Case No.: 17760/2019
In the matter between:
R[…] K[…] Applicant
and
I[…] K[…] Respondent
JUDGMENT (Sanction)
___________________________________________________________________
ANDREWS, AJ
[1] The Respondent was declared in contempt of court on 3 September 2020,
pursuant to a Rule 43 order granted on 12 April 2017. He was sentenced to a period
of 30 (thirty) days’ imprisonment which was wholly suspended subject to certain
conditions, which were not complied with. The Applicant launched an application to
direct the Registrar to issue a writ of commitment for contempt of court, committing
the Respondent to imprisonment for a period of thirty (30) days, which application
was opposed.
[2] The matter was fully argued. J udgment in this matter was handed down on
20 J une 2024. The matter was adjourned for a Trustee’s Report and Correctional
Supervision Report after finding that direct imprisonment would not be an
appropriate sanction, given the ch anged circumstances and dire health conditions of
the Respondent.
[3] The Trustees Report dated 4 July 2024 together with the Trustees Second
Meeting Report to Creditors dated 5 July 202 3, elucidated the following salient
information, namely that:
1. the Applicant lodged a claim against the Insolvent Estate for an amount of
R1 631 343.85 (“the claim”);
2. the Applicant’s claim was not submitted to “proof and proved” (sic) at a
Meeting of Creditors due to a danger of a contribution on proved concurrent
creditors;
3. the Applicant was advised of the position and failed to respond to the trustees
when she was requested to confirm whether she still required them to prove
her claim notwithstanding the danger of a contribution;
4. unless further assets are recovered, ther e is no prospect of a concurrent
dividend being paid to creditors of the estate including the Applicant.
[4] At the commencement of the proceedings, the court was alerted to the fact
that the curator bonis of the insolvent (the Respondent) raised various obje ctions to
the first liquidation and distribution account. Nothing turns on this additional
information as the gravamen of the Trustees Report is that the estate will not be in a
position to pay the Applicant’s claim, or any part thereof.
[5] In considering an appropriate sanction, this Court is mindful of the dual
purpose of contempt proceedings. In this regard, the sentence to be imposed should
ideally contain both a punitive and coercive element. It is therefore clear that to
commit the Re spondent to a term of imprisonment in these circumstances can be
likened to attempting to squeeze water from a stone.
[6] Notwithstanding, the Respondent cannot be absolved from the consequence
of punishment. The Respondent was found to be a suitable candidate to be placed
under Correctional Supervision. The Constitutional Court has described this form of
sentence as “an innovative form of sentence” which is flexible to meet the specific
circumstances of each offender’s case.
[7] The matter of costs stood over for later determination. It is trite that the issue
of costs falls within the discretion of the court which must be exercised judicially. The
Respondent was placed under curatorship by an Order of Court granted on 30
October 2023 under case number 17 174/2023. Therefore, in the exercise of my
discretion, in the circumstances of this matter, I am of the view that there should be
no order as to costs.
Order:
[8] After having heard Counsel for the Applicant and Counsel for the Respondent,
and having considered the document filed on record, the court directs that:
1. In terms of Section 276(1)(h) the Respondent is sentenced to 30 (thirty) days
Correctional Supervision. The court further orders that the Respondent
subjects himself to:
(a) House arrest for the duration of 30 (thirty) days with a maximum of 24
hours per day, except for the purposes of medical care (if needed),
collecting his social grant , church attendance, and other purposes to fulfil
the aims of correctional supervision.
(b) The Respondent is ordered to report to the Correctional Office, Cape
Town Community Corrections within 5 (five) days from date of receipt of
this order and thereafter on the days, time (s) and place(s) as determined
by the Commissioner or his delegate.
(c) The Respondent is to comply with any reasonable orders regarding the
compliance and administration of this sentence when issued by the
Commissioner or his delegate.
(d) The Respondent is to inform the Commissioner or his delegate
immediately in writing of any change of his residential address.
2. This programme of Correctional Supervision may be ameliorated or relaxed in
order to fulfil the aims of correctional service provided that the period of house
arrest is not shortened by more than a third.
3. No order as to costs.
________________________________
P ANDREWS, AJ
Acting Judge of the High Court
Western Cape Division
APPEARANCES:
Counsel for the Applicant: Attorney C Beirowski
Instructed by: Beirowski Attorneys
Counsel for the Respondent: Advocate P Tredoux
Instructed by: Neville Cohen & Associates
Hearing date: 19 September 2024
Judgment Delivered: 25 September 2024
NB: The judgment is delivered by electronic submission to the parties and their legal
representatives.