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[2024] ZAFSHC 390
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E.J.L v H.J.C.L (3254/2024) [2024] ZAFSHC 390 (29 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable / Not
reportable
Case no: 3254/2024
In
the matter between
E[…]
J[…] L[…]
Applicant
and
H[…]
J[…] C[…] L[…]
Respondent
Neutral
citation:
E[…] J[…]
L[…] v H[…] C[…] L[…] (3254/2024)
Coram:
MPAMA AJ
Heard:
14 NOVEMBER 2024
Delivered:
29
NOVEMBER 2024
Summary:
contempt of court – non
compliance with court order – authority of courts
ORDER
1
The respondent is found to be in contempt
of the court order dated 26 February 2024.
2
The respondent is sentenced to imprisonment
for a period of 30 (thirty) days, which imprisonment is suspended for
a period of one
(1) year on condition that the respondent complies
with the court order dated 26 February 2024.
3
The respondent is ordered to comply with
the court order dated 26 February 2024 and more specifically paras 4
and 5 thereof within
10 (ten) days from the date of this order.
4
The Applicant is authorized to approach the
Honourable Court on the same papers, duly supplemented where
necessary, for an order
committing the Respondent to imprisonment in
the event of the Respondent failing to adhere to the court order
dated 26 February
2024.
5
The Respondent shall pay costs on this
application on Scale A as contemplated in Rule 67A of the Uniform
Rules of the Court.
JUDGMENT
Mpama AJ
[1]
This is an application for contempt of
court. The applicant and the respondent are married to each other out
of community of property
with the inclusion of the accrual system.
They are embroiled in divorce proceedings which commenced when the
respondent issued
divorce summons on 11 July 2023 against the
applicant.
[2]
Subsequent to the divorce
proceedings, the applicant brought an application in terms of rule 43
of the Uniform Rules of the Court
on 11 September 2023 which
culminated in an order being made by this court on 26 February 2024
for,
inter alia
,
the payment of maintenance by the respondent for the parties’
two minor children at an amount of R6000.00 monthly per child;
payment of monthly school fees, hostel fees and tutoring fees for the
minor children; and payment of the minor children’s
fair and
reasonable medical, dental, hospital and related medical expenses not
covered by the medical aid fund.
[3]
The applicant alleged that the
respondent failed to comply with the order made by the court for the
maintenance of his minor children
pendente
lite
, brought this application and
seeks the following orders against the respondent:
‘
1.
That the Respondent be found to be in contempt of court order dated
26 February 2024.
2.
That the Respondent be sentenced to
imprisonment for a period of 30 (thirty) days, which imprisonment is
suspended for a period
of one (1) year on condition that the
Respondent complies with the court order dated 26 February 2024.
3.
That the Respondent be ordered to comply
with the court order dated 26 February 2024 and more specifically
paragraphs 4 and 5 thereof
within 10 (ten) days from the date of this
order.
4.
That the Applicant be authorized to
approach the Honourable Court on the same papers, duly supplemented
where necessary, for an
order committing the Respondent to
imprisonment in the event of the Respondent failing to adhere to the
court order dated 26 February
2024.
5.
That the Respondent be ordered to pay the
costs of this application on an attorney and client scale.’
[4]
The applicant contended that there is a valid court order, the
respondent has full
knowledge of the order, he is in breach of the
order and his non-compliance with the order was wilful and
mala
fide.
The applicant referred the court to the case of
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture v Zuma and Others
[1]
where
it was said that ‘[i]t cannot be gainsaid that orders of court
bind all to whom they apply. In fact, all orders of court,
whether
correctly or incorrectly granted, have to be obeyed unless they are
properly set aside.’
[2]
The
applicant submitted that until the order is set aside or substituted
by a competent court, the respondent is bound by the order
despite
his application filed in the maintenance court for the substitution
or variation of the order.
[5]
The application is opposed by the respondent, who acknowledged his
non-compliance with the order.
However, he disputed that his
non-compliance was wilful or
mala fide.
His defence is that
the applicant rendered it impossible for him to comply with the
order. The respondent averred that it was expressed
to the
applicant’s attorney that he will be able to pay maintenance if
he continues to receive the rental income from the
properties owned
by Constantia Trust and that the generated income was to be used by
him to satisfy the court order. He accused
the applicant of
underhanded tactics in that, unbeknown to him, she planned for the
rental income to be paid to her. This altered
his financial position,
rendering it impossible for him to afford payments. This prompted him
to seek recourse in the Magistrates’
Court for substitution of
the order in terms of
s 16(1)
(b)
of the
Maintenance Act 99 of
1998
as he no longer had the wherewithal to pay. The respondent
argued that since he did not haphazardly abandon the court order but
approached the maintenance court for the variation of the order his
non-compliance is not wilful or
mala fide
.
[6]
In reply, the applicant refuted the respondent’s claim that the
she went behind the respondent’s
back and secured the
collection of the rental money. The applicant asserted that the
respondent, knew that the applicant was collecting
the rental amount
and with such knowledge, consented to the payment of maintenance as
per the court order. The applicant reiterated
her stance that since
the respondent’s application for substitution of the court
order has not yet been heard, the respondent
had a duty to comply
with the court order and his actions were contemptuous.
[7]
The only issue for adjudication is whether the respondent’s
conduct is wilful or
mala fide
. The central question is
whether the respondent should be committed to prison for his failure
to make payments in terms of the
order made
pendente lite.
[8]
An applicant in a contempt application must show that (i) there is a
court order (ii) served on
the respondent (iii) there is
non-compliance with the terms of the order and (iv) the respondent’s
wilfulness or
mala fides
. Once the applicant has established
this, the respondent bears an onus to show that he is not in wilful
default. The relief sought
by the applicant is committal, the
standard of proof is beyond reasonable doubt, whereas proof on a
balance of probabilities is
required where the remedies sought do not
result in depriving someone his freedom.
[9]
The Constitutional Court
in
Pheko and Others v Ekurhuleni City
[3]
(
Pheko
)
reiterated the importance of compliance with court orders as integral
to the rule of law in the following terms:
‘
It
follows from this that disobedience towards court orders or decisions
risks rendering our courts impotent and judicial authority
a mere
mockery. The effectiveness of court orders or decisions is
substantially determined by the assurance that they will be
enforced.’
[4]
The Court continued and
held:
‘
Courts
have the power to ensure that their decisions or orders are complied
with by all and sundry, including organs of state. In
doing so,
courts are not only giving effect to the rights of the successful
litigant but also and more importantly, by acting as
guardians of the
Constitution, asserting their authority in the public interest. It is
thus unsurprising that courts may, as is
the position in this case,
raise the issue of civil contempt of their own accord.’
[5]
[10]
The court in
Pheko
at para 28 went further and defined contempt of court as follows:
‘
Contempt
of court is understood as the commission of any act or statement that
displays disrespect for the authority of the court
or its officers
acting in an official capacity. This includes acts of contumacy in
both senses: wilful disobedience and resistance
to lawful court
orders . . . Wilful disobedience of an order made in civil
proceedings is both contemptuous and a criminal offence.
The object
of contempt proceedings is to impose a penalty that will vindicate
the court’s honour, consequent upon the disregard
of its
previous order, as well as to compel performance in accordance with
the previous order.’
[11] It
is not in dispute that the respondent made a payment of R12000.00 in
March 2024, R6000.00 in April and
May 2024 and contributed an amount
of R5600.00 towards school and hostel fees, notwithstanding the fact
that these fees amount
to more than R35 000.00 per annum and are
in arrears. The respondent admitted his non-compliance with the
order.
[12] It
is also not in dispute that on 28 March 2024 the respondent
approached a maintenance court for the substitution
of this order.
The application for variation is still pending and postponed to 11
February 2025. The applicant criticized the respondent
for his
stance, suggesting that the correct forum for hearing an application
for variation of the court order was this Court and
not the
maintenance court. I do not intend to make a finding as to which
court is competent to entertain the application for variation.
Firstly, my view is that this is a non-issue for the purposes of this
application and secondly, the matter is
sub judice.
[13] I
had an opportunity to peruse the R43 application (as both parties
agreed that it be placed before me for
adjudication of this matter).
The result is that I could not find any evidence to support the
respondent’s claim that he
agreed to pay maintenance as he was
to collect rental income. What is clear and factual from those
proceedings is that when he
consented to the maintenance order, he
was fully aware that the applicant was collecting the rental income.
[14]
For as long as the order has not been set aside nor varied by the
court, the respondent has no other option
but to fully and diligently
comply, even if he may feel it is wrong or incorrect in some
respects. Court orders are to be obeyed.
The respondent’s
application for variation of the order is pending in the maintenance
court. Until the court order is varied
or set aside by a competent
court, it is binding on the respondent. As things stand, the
respondent has not contributed towards
maintenance of his children as
per the court order, despite having full knowledge of the existence
of a valid court. The
respondent’s reasons for
non-compliance are rejected as they lack basis and are not true.
[15]
Upon proper analysis of the facts, I am satisfied that the respondent
has not discharged an evidentiary burden
of showing that his conduct
is not wilful and
mala fide
and has shown no good cause as to
why he should not be held in contempt of court.
Order
[16]
In the premises, I make the following order
1
The respondent is found to be in contempt
of the court order dated 26 February 2024.
2
The respondent is sentenced to
imprisonment for a period of 30 (thirty) days, which imprisonment is
suspended for a period of one
(1) year on condition that the
respondent complies with the court order dated 26 February 2024.
3
The respondent is ordered to comply with
the court order dated 26 February 2024 and more specifically paras 4
and 5 thereof within
10 (ten) days from the date of this order.
4
The Applicant is authorized to approach the
Honourable Court on the same papers, duly supplemented where
necessary, for an order
committing the Respondent to imprisonment in
the event of the Respondent failing to adhere to the court order
dated 26 February
2024.
5
The Respondent shall pay costs on this
application on Scale A as contemplated in Rule 67A of the Uniform
Rules of the Court.
MPAMA, AJ
APPEARANCES
For
the Applicant:
Advocate
J Els
Instructed
by:
Schoeman
Steyn Inc
c/o
Horn & Van Rensburg Attorneys
For
the Respondent:
Advocate
C L H Harms
Instructed
by:
Christo
Faber Inc c/o Stander & Associates
Attorneys
[1]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture v Zuma and Others
[2021]
ZACC 18; 2021 (9) BCLR 992 (CC).
[2]
Ibid para 59.
[3]
Pheko
and Others v Ekurhuleni City
[2015]
ZACC 10
;
2015 (5) SA 600
para 1
[4]
Ibid para 1.
[5]
Ibid para 2.