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[2010] ZAWCHC 120
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B.A.C v K.L.F.C (5059/09) [2010] ZAWCHC 120 (18 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 5059/09
In
the matter between
B
A C
Applicant
and
K
L F C
Respondent
JUDGMENT
DELIVERED ON 18 MAY 2010
ZONDI,
J
Introduction
[1]
On 17 April 2009 the applicant brought an urgent application against
the respondent in which she sought the following relief:
an
order declaring the respondent to be in contempt of an order made by
this Court on 04 March 2004 under case number 3722/03;
committal
of the respondent to jail for a period and on terms and conditions
to be determined by the Court alternatively ordering
the
respondent
to pay a fine in an amount and on terms and conditions to be
determined by the Court.
3.
suspending committal and/or fine subject to the payment by the
respondent of an amount R53 828-07 for arrear maintenance within
seven days from the date of the Order.
The
respondent appeared in person and opposed the application on various
grounds.
Ms
Badenhorst
appeared
for the applicant.
Factual
Background
[2]
The applicant and the respondent ("the parties") were
divorced from each other by order of this Court on 04 March
2004,
under case number 3722/03.
[3]
In terms of the parties' consent paper, the terms of which were
incorporated in the divorce order, the respondent was ordered
inter
alia to pay the applicant personal maintenance in an amount of R11
000-00 per month.
[4]
The maintenance payable by the respondent was to be increased by the
Consumer Price Index ("CPI") or by 10%, whichever
is the
lesser amount, on each anniversary date of the granting of the
divorce order.
[5]
The applicant alleges that since their divorce the respondent has
repeatedly failed to effect payment of the maintenance as
increased
by the CPI.
She
avers that since 01 March 2005 and despite demand the respondent has
refused and/or failed to pay the arrears relating to annual
CPI
increase due on the monthly maintenance.
[6]
The applicant points out that for the period between April 2005 and
March 2006 the respondent should have paid R136 620-00 but
paid R132
000-00. The arrears for the relevant period amount to R4 620-00.
[7]
The applicant further points out that for the period between April
2006 and March 2007 the respondent's total payments amounted
to R135
432-00 instead of R140 581-92. The respondent thus shortpaid by
R5149-92.
[8]
For the period from April 2007 to March 2008 the respondent paid R135
432-00 instead of R147 470-00. The arrear maintenance
for the
relevant period amounted to R12 038-40. During the period from April
2008 to February 2009 the respondent paid R116 274-00
when he should
have paid R148 293-73. The respondent underpaid the applicant for the
relevant period by R32 019-75.
[9]
The applicant alleges that the respondent is aware of the Court order
and the obligations it imposes upon him. She points out
that on 23
February 2009 she sent an email to the respondent requesting him to
adjust the maintenance. The respondent simply ignored
the applicant's
email.
[10]
The applicant further avers that on 19 December 2008 her attorneys of
record caused a warrant of execution to be issued against
the
respondent's movable property. The warrant of execution was served on
the respondent on 13 January 2009.
[11]
The respondent informed the Sheriff that he had no disposable assets
with which to satisfy the writ or part thereof.
[12]
The applicant alleges that the respondent is a medical practitioner
and is also a member and/or director of three companies
and that he
has sufficient income from which to meet his maintenance obligations.
[13]
The applicant submits that the respondent, by failing to pay the
increased maintenance amount due to her, is in wilful and
mala
fide
contempt
of an order of Court.
[14]
The respondent admits that he is aware of the Court order and the
obligations it imposes upon him. He concedes that he has
not been
paying the CPI increases on the applicant's personal maintenance but
advances various reasons for his default.
[15]
Firstly, the respondent pleads poverty. He alleges that he derives
his income from his medical practice which he says has not
been doing
well since his relocation from KwaZulu -Natal to Cape Town after the
divorce.
[16]
In this regard he has referred to the SARS Income Tax Assessments for
the period between 2003 and 2009. In 2003 tax year his
income is
indicated as
R166
430 00. In 2004 his income was R91 440-00. The 2005 tax assessment
indicates his income as R93 452-00. In 2006 his income fell
to R18
000-00 and he had no income in 2007 according to his income tax
assessment. In 2008 he had an income of R146 700-00.
[17]
He says he has no other source of income. He states that he has not
received an income from Cunicsar Vintners CC in which he
has an
interest. He alleges that Cunicsar Vintners CC has been trading at a
loss. He has ceased to be a director of Crons Properties
(Pty) Ltd.
[18]
The respondent further alleges that the applicant is aware of his
ailing financial situation. He says on 02 July 2008 he wrote
to the
applicant advising her of his financial predicament and appealed for
her understanding. Furthermore he unsuccessfully brought
an
application for a variation of the maintenance amount at the Wynberg
Magistrates Court on 04 October 2004.
[19]
Secondly, the respondent contends that the applicant maintenance
should be reduced as she is now employed. He avers that the
maintenance amount was fixed on the basis that the applicant was
unemployable at the time of the Court order.
Legal
Principles
[20]
The purpose of civil contempt of Court is to provide an alternative
sanction against the defaulter who refuses to comply with
an order of
Court. He may be committed to jail or be ordered to order to pay a
fine. The punitive coercion is intended to assist
the complainant to
enforce his or her remedy.
(Dezuis
v Dezuis
2006
(6) SA 395
(T) in paragraph 8).
[21]
Contempt of court means the deliberate intentional disobedience of an
order granted by a Court of competent jurisdiction
(Consolidated
Fish Distributors (Pty) Ltd v Zive and Others
1968
(2) SA 517
(C) at 522C).
[22]
In
Fakie
No. v CCII Systems
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at paragraph 9 Cameron JA held that the test for
contempt of Court is whether the breach was committed
"deliberately
and mala fide".
[23]
In paragraph 9 he pointed out that
"a
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled to
act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply that
is
objectively unreasonable may be bona fide (through unreasonableness
could evidence lack
of
good faith)".
[24]
In paragraph 10 of the judgment Cameron JA went on to hold:
"[10]
These requirements - that the refusal to obey should be both wilful
and mala fide , and that unreasonable non-compliance,
provided it is
bona fide , does not constitute contempt - accord with the broader
definition of the crime, of which non-compliance
with civil orders is
a manifestation.
They
show that the offence is committed not by mere disregard of a court
order, but by the deliberate and intentional violation
of the court's
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or proper is incompatible
with that
intent."
[25]
The standard of proof to be applied in contempt of Court proceedings
is whether the defaulter is contempt beyond reasonable
doubt.
[26]
Thus in an application for committal the applicant needs to show
firstly, that an order was granted against the respondent,
secondly,
that the respondent was either served with the order or was informed
of the grant of the order against him and could
have no reasonable
grounds for disbelieving the information and thirdly, that the
respondent has either disobeyed it or has neglected
to comply with
it.
[27]
Once these facts are established, in the absence of evidence raising
a reasonable doubt as to whether the respondent acted
wilfully and
mala
fide,
all
the requisites of the offence will have been established
(Fakie
No.
supra
at paragraph 23). In other words in order to avoid conviction the
respondent need only lead evidence that establishes a reasonable
doubt.
[28]
With this legal background I now turn to the facts of the instant
case and the defences raised by the respondent.
[29]
It is common cause that in terms of the divorce order the respondent
was
inter
alia
ordered
to pay maintenance to the applicant and that the maintenance
was
subject to a CPI related annual increase. The respondent admits
knowledge of the Court order and the obligations it imposed
upon
him. It is also common cause that the respondent has disobeyed the
Court order in that he has failed to pay the arrears
relating to the
annual CPI increases.
[30]
On the facts which are common cause I am satisfied that the
applicant has established a neglect on the part of the respondent
to
comply with the Court order.
[31]
The next question is whether the respondent's disobedience or
neglect is deliberate and intentional. This question is critical
because once knowledge of the order by the respondent, its service
and its non-compliance by the respondent are established,
in the
absence of evidence raising a reasonable doubt as to whether the
respondent acted wilfully and
mala
fide,
all
the requisites of the offence will have been established.
[32]
It is not the applicant's case that the respondent has neglected to
comply with the terms of the Court order in its entirety.
Her case
is that the respondent has failed to pay the CPI linked increased
portions of the maintenance amount and the total arrear
amount is
R53 827-07.
[33]
In response to the applicant's claim the respondent raises at least
two defences. Firstly, he alleges that the applicant
is now
gainfully employed and that his maintenance obligations to the
applicant should be reduced.
[34]
The respondent's defence is misplaced and has no merit on two
grounds. Firstly, he may not bring an application for a variation
of
the maintenance order in the contempt proceedings. The purpose of
these proceedings is to establish whether the respondent
complies
with an order of Court. The present proceedings are not intended to
serve as a platform to establish whether the existing
maintenance
order should be varied.
[35]
Secondly, the respondent's defence is not competent having regard to
the provisions of paragraph 5.2 of the Court order.
In terms of
paragraph 5.2 the respondent is precluded from approaching the Court
for a reduction in his maintenance obligations
to the applicant on
the ground that the applicant is earning an income unless he can
prove that such gross income exceeds R10
000-00 per month. The
respondent has provided no evidence regarding the monthly income
allegedly earned by the applicant. He
has failed to establish the
necessary threshold to bring himself out of operation of the
provisions of paragraph 5.2 of the Court
order. The respondent's
first contention is accordingly dismissed.
[36]
The second defence of the respondent is based on poverty. He alleges
that his financial situation has deteriorated to such
an extent that
he is now unable to pay CPI related annual increases. It is for this
reason that during October 2004 he unsuccessfully
applied for
reduction of the maintenance amount at the Wynberg Magistrates
Court.
[37]
The respondent forwarded a letter to the applicant on 02 July 2008
enclosing a copy of his latest Income Tax Assessment confirming
the
precarious position of his finances. He went on to state as follows:
"I
draw a sum of money out of my practise every month, just enough to
cover your maintenance. Some months there is not enough money
for
even that draw. I live on a day to day basis by a series of loan
accounts".
[38]
The respondent alleges that his medical practice ("the
practice") is the only source of his income. He says Cunicsar
Vintners CC, in which he has an interest, has not generated an
income for him as it has been trading at a loss. In response to
this
averment the applicant states that she has no actual knowledge of
the financial state of the respondent's company. In the
circumstances I will accept the respondent's version that he has not
derived an income from Cunicsar Vintners CC.
(Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 - 635)
[39]
Furthermore the respondent states that he has ceased to be a
director of Crons Properties (Pty) Ltd, a company which the
applicant alleges provides a source from which the respondent
derives an additional income. This averment is not disputed by
the
applicant. In her replying affidavit the applicant admits that she
is aware that this company was liquidated during the course
of last
year.
[40]
The respondent alleges that the turn-over of his medical practice
has been severely affected by changes that occurred over
the last
two years at the Claremont Medical Village where it is located.
[41]
The respondent points out that the majority of the practice
turn-over was derived from emergency referrals from Claremont
Hospital's Emergency Unit. He says his practice has not had an
emergency referral from the Claremont Hospital for more than two
years. The respondent further avers that when the practice took
premises at the Claremont Medical Village in 2006 it was the
only
Plastic and Reconstructive Surgeon practice located in the building.
He says since 2006 there are now four additional plastic
surgeons in
the same building with whom he has to compete and this has caused a
huge dent in his income.
[42]
On these facts I am satisfied that the respondent has succeeded to
show that his non-compliance with the Court order is not
wilful and
mala
fide.
My
finding is based on two grounds. First, it is clear from the
maintenance schedule (exh "BC4") prepared by the applicant
that up until the bringing of these proceedings the respondent had
consistently paid the capital amount portion of the maintenance.
His
non-compliance is in respect of paying the CPI related annual
increases. It is apparent from exhibit "BC4" that
since
April 2006 the respondent has consistently paid R11 286-00 per
month. Between March 2004 and March 2006 he consistently
paid R11
000-00 per month.
[43]
In my view in the contempt proceedings it is appropriate for the
Court to have regard to the extent to which the respondent
has
complied with an order of Court in determining whether his
non-compliance is wilful and
mala
fide.
(Southey
v
Southey
(1907)
21 EDC 133
at 137) and in the present matter I have to take into
account the extent of the respondent's partial compliance with the
Court
order.
[44]
Secondly, it is clear from the respondent's explanation that he
cites a change in his financial circumstances as a primary
reason
for his inability to pay the annual increase as required by the
Court order. He alleges that his financial situation has
changed
considerably and his income is far less than what he used to earn at
the time of the Court order. In support of these
averments the
respondent has annexed to his answering affidavit income tax
assessments for the period between 2003 and 2008.
His annual income
in 2003 was R166 430-00. In 2004 and 2005 his income was. about R93
000-00. Thereafter it dramatically went
down in 2006 and 2007 and
picked up to R147 700-00 in 2008.
[45]
There is no doubt in my mind that someone, who through a
bona
fide
lack
of means, defaults on payments in terms of a Court order cannot, for
that reason alone, be found to be in contempt of Court
and be
penalised therefor.
[46]
Although the respondent's explanation for non-compliance may appear
unreasonable it nevertheless lacks the elements of wilfulness
and
mala fide to justify a finding of contempt. Viewed objectively the
explanation for noncompliance raises a reasonable
doubt as to
whether he acted wilfully and
mala
fide
in
failing to pay the CPI related annual increase.
[47]
In the circumstances, I am not satisfied that the applicant has
proved beyond reasonable doubt that the respondent's disobedience
of
the Court order is wilful and
mala
fide
and
that the application for contempt of Court should fail.
[48]
I now turn to consider the question of costs. The respondent appears
in person in this matter and in the circumstances there
will be no
order as to costs.
The
Order
[49]
The application is dismissed with no order as to costs.
ZONDI
D H