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[2014] ZAWCHC 149
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Stander v Marais (10357/2014) [2014] ZAWCHC 149; 2015 (3) SA 424 (WCC) (17 September 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN
[REPORTABLE]
CASE
NO: 10357/2014
In the matter
between:
DANIELA
STANDER
...........................................................................
Applicant
And
ROGER
CHRISTOPHER
MARAIS
..................................................
Respondent
JUDGMENT
DELIVERED
ON WEDNESDAY, 17 SEPTEMBER 2014
INTRODUCTION
1. The application
arises from the terms of the divorce order granted by the Southern
Divorce Court on 29 November 2010 under case
number CT 6490/2010.
The divorce order incorporates a Consent Paper, which sets out in
precise terms, the rights and duties
of the parties to each other.
The applicant seeks orders from this Court arising from the
enforcement and implementation
of the divorce order of that Court.
She contends that the respondent has failed to meet his obligation
under the Consent
Paper, and is therefore in contempt of the order of
that Court. She further contends that, as a consequence of the
respondent’s
non-compliance with the order of that Court, she
has and continues to suffer material prejudice. The respondent, while
conceding
failure to fully comply with the terms of the court order,
nonetheless contends that he is not in contempt in that his
non-compliance
is not
mala fide
or deliberate. However, the
respondent’s real defence to the relief sought by the applicant
in this Court is that this Court
is barred from enforcing the terms
of a divorce order granted by the Southern Divorce Court for a number
of reasons dealt with
below.
2. The first issue
therefore is whether this Court has jurisdiction to enforce orders
granted by a lower court, the Southern Divorce
Court. In order
to appreciate the submissions made relating to this Court’s
jurisdiction it is important to set out
the relief sought by the
applicant.
3. The applicant
seeks the following orders:
3.1.
Granting leave that this matter be heard as one of urgency in terms
of Rule 6(12) of the Rules of Court and condoning the applicant’s
non-compliance with the Rules pertaining to form, time periods and
service;
3.2.
Preventing the respondent from further breaching the order by the
Southern Divorce Court, dated 29 November 2010 under case
number
6490/2010, as set out in the founding affidavit of the applicant by;
3.2.1.
Effecting timeous monthly payments in the full amount of the
installments due under the loan account with regard to a bond
registered over Erf 9………. Cape Town at Marina Da
Gama to Standard Bank Homes Loans under account number 2………….
3.2.2.
Effecting timeous payments in the full amount of the installments due
with regard to the rates and taxes and municipal services
used with
regard to Erf 9……. to the City of Cape Town
Municipality under account number 1………….
3.2.3.
Effecting payment of all arrear amounts due Standard Bank Home Loans
and the City of Cape Town Municipality under the respective
accounts
as referred to above.
3.3.
That the respondent be held in contempt of the divorce order granted
by the Southern Divorce Court on 29 November 2010 in a
matter under
case number CT 6490/2010;
3.4.
Ordering that the immovable property, Erf 9………,
Cape Town, situated at 1…. R…… C…...
M………
Da G……, M……., Western Cape (“Rusten
Close”), be sold on auction
to the highest bidder as provided
in clause 11.6 of the Consent Paper;
3.5.
That the respondent be ordered to pay the costs of this application
on a punitive scale as between the attorney and own client.
4.
On the
issue relating to jurisdiction, the respondent opposes the relief
sought against him and for that relies on Dreyer v Welbols,
[1]
a decision of the South Gauteng High Court. On behalf of the
respondent, Counsel opposes this Court’s jurisdiction,
mainly
on the ground that the applicant has not pursued his remedies under
the Magistrates’ Court Act 32 of 1994. In
terms of
section 106 of the Act, a willful failure to comply with an order,
ad
factum praestandum,
of
the magistrates’ court is a criminal offence punishable by a
fine, or imprisonment or both.
[2]
He contends that the High Court should decline to engage the
process-in-aid
remedy or rely on its inherent jurisdiction to adjudicate this
matter. This, he further contends, is because the applicant has
failed to provide any grounds for this Court to assume jurisdiction
on the basis of inherent jurisdiction or to grant the
process-in-aid
remedy.
5. On the merits of
the application, the respondent contends that:
5.1.
That the provisions of the Consent Paper on which the applicant
relies in support of her prayer that the immovable property
situated
at Rusten Close (“the Rusten Close property”) be sold,
have orally been varied or amended by agreement between
the parties,
alternatively, any application that such property be sold on auction
is premature. Accordingly, the respondent is
not in breach of the
order in this regard.
5.2.
In so far as he failed to comply timeously and in full with his
obligations in terms of clauses 15.1 and 15.2 of the Consent
Paper,
the respondent is not in contempt of Court as he has not disobeyed
the order willfully and in bad faith;
5.3.
In
seeking an order that the respondent be compelled to in future comply
with his obligations in terms of clauses 15.1 and 15.2
of the Consent
Paper,
[3]
the applicant requires
this Honourable Court to grant a superfluous or unnecessary order in
respect of matters that are in any
event
res
judicata;
5.4.
There are no arrears owing to Standard Bank and the City of Cape Town
in respect of the Rusten Close property; and
5.5.
This application is brought in bad faith and constitutes an abuse of
the process of this Honourable Court. As such the application
must be
dismissed with costs on a punitive scale.
6. The respondent
has given a complete answer to all the allegations and not merely
sought to have this matter dismissed on the
basis of his preliminary
objection to the question of this Court’s jurisdiction. The
first step therefore is to determine
the question of this Court’s
jurisdiction for it is trite that a Court must operate within the
confines of its power.
JURISDICTION
7. Black's Law
Dictionary, sixth edition, defines jurisdiction as follows:
"A
term of comprehensive import embracing every kind of judicial action.
It is the power of the court to decide a matter in
controversy and
presupposes the existence of a duly constituted court with control
over the subject matter and the parties. Jurisdiction
defines the
powers of courts to inquire into facts, apply the law, make
decisions, and declare judgment. The legal right by which
judges
exercise their authority. It exists when court has cognizance of
class of cases involved, proper parties are present, and
point to be
decided is within powers of court."
8. This is expanded
upon in Anderson's "
A Dictionary of Law, A.D. 1893
"
as follows:
"Power
to hear and determine a cause. Power to hear and determine the
subject-matter in controversy between parties to a suit,
to
adjudicate or exercise any judicial power over them. (Relates to the
exercise of judicial powers.) Refers to the power of the
court over
the parties, the subject-matter, the
res
or property in
contest, and the authority of the court to render the judgment or
decree which it assumes to make. (By jurisdiction
over the
"subject-matter" is meant the nature of the cause of action
or relief sought; and this is conferred by the sovereign
authority
which organizes the court, and is to be sought for in the general
nature of its powers or in the authority specially
conferred.
Jurisdiction of the "person" is obtained by the service of
process, or by the voluntary appearance of the
party in the progress
of the cause. Jurisdiction of the
"res"
is obtained
by seizure under process of the court, whereby it is held to abide
such order as the court may make concerning it.
Hence want of
jurisdiction may be shown as to the subject-matter, the person, or,
in proceedings in
rem
, as to the thing.”
9. The primary
contentions advanced by Mr. Van der Merwe for the respondent against
this Court’s jurisdiction to enforce the
orders of the lower
court are the following;
9.1.
First, it is contended that the applicant has not pursued her
remedies under the Magistrates’ Court Act 32 of 1944, more
particularly in terms of section 106 of the Act, which provides that
a willful failure to comply with an order,
ad factum praestandum,
of the Magistrates’ Court is a criminal offence punishable
by a fine, or imprisonment, or both.
9.2.
Secondly, the ‘process-in-aid’ remedy, whereby a court
may enforce a judgment of another court, which cannot be
effectively
enforced through its own process, is not an appropriate remedy in
this matter because the Magistrates’ Court
is capable of
securing compliance with its own orders, presumably via the section
106 procedures.
9.3.
Thirdly,
the contempt of court prayer for allegedly violating the terms of the
order of the lower court may be heard by a High Court
only on the
basis of its inherent discretion. The respondent submits that this
court must not exercise its discretion because the
applicant has, for
such discretion, relied on no exceptional circumstances. There
are no ‘
good
and sufficient reasons’
[4]
for this Court to exercise its discretion in favour of granting the
relief sought by the applicant, so the argument goes. In particular,
the respondent contend that the onus of the applicant to make out a
case in favour of this court exercising discretion in favour
of
enforcing the terms of the lower court order had not been met since
the applicant was unable to show that the magistrates’
court
does not have an effective remedy to protect the rights of the
applicant.
10.
Whether
or not this Honourable Court grants the
process-in-aid
remedy depends on whether the relief sought by the applicant may be
enforced through the mechanism of section 106 of the Magistrates’
Court Act. The
process-in-aid
remedy is a discretionary remedy. The Constitutional Court in
Bannatyne v Bannatyne (CGE as amicus curiae)
[5]
held that the
process-in-aid
remedy will not ordinarily be granted for the enforcement of a
judgment of another court if there are effective remedies in that
court which can be used. However the Honourable Court went
further and stated that, “
there
may be instances in which the facts of a particular case justify
approaching a High Court for such relief.
”
According to the Constitutional Court therefore, a Court must be
guided by the peculiarity of the circumstances of each
case to
determine whether to invoke the
process-in-aid
remedy.
11. The success of
the respondent’s objection to the jurisdiction therefore
depends on a number of issues. First I did
not understand the
respondent to be suggesting that the principle that he is relying on
is inflexible and immutable. It depends
on the nature of the
relief sought by the applicant. If the relief sought by the
applicant may be enforced only through the
mechanism of section 106
of the Magistrates’ Court Act in the Southern Divorce Court,
then this Court must trend carefully
to assume jurisdiction. If
however the Southern Divorce Court does not have an effective remedy
to enforce its orders in
terms prayed for by the applicant, then this
Court may utilize the
process-in-aid
remedy to assume
jurisdiction. Finally, I must determine whether this Court may assume
jurisdiction on the basis set out in the
Constitutional Court in
Bannatyne v Bannatyne, based on the peculiarity of the facts of this
case. The question is
therefore whether there are “
facts
of this particular case that justify approaching a High Court for
such relief.”
THE
RELIEF SOUGHT BY THE APPLICANT
12. This Court was,
by Mr. Spamer for the applicant, encouraged to pay particular
attention to the precise terms of the orders sought
by the applicant
because, so he persisted, it is where the answer to the respondent’s
objection to this Court’s jurisdiction
resided. The
encouragement bore fruits because as I did, it became clear that the
respondent’s objection to this Court’s
jurisdiction is
unsustainable on a number of grounds.
13.
The
respondent’s objection to the Court’s jurisdiction, in my
view, is based on a failure to fully comprehend and appreciate
the
scope of the applicant’s relief. His approach is based on
the belief that the applicant’s main relief is
confined to the
issue of contempt. If the issues were confined to the contempt
of court referred to in section 106 of the
Magistrates’ Court
Act, this Court would hesitate to assume jurisdiction.
[6]
The relief sought by the applicant is not confined to the issue
of contempt, which if it were, could exclude the jurisdiction
of this
Court.
14. It bears to
emphasize that the authorities that I was referred to and those I
sought answers from, do not regard the principle
that a High Court
will not exercise jurisdiction to enforce orders of a lower court, to
be immutable and inflexible. A High
Court should not be
pusillanimous in addressing questions relating to its jurisdiction
mainly because to it, is granted the inherent
powers now engraved in
section 173 of the Constitution to regulate its own processes and to
develop the common law, taking into
account the interests of
justice. Furthermore section 38 of the Constitution gives to a
court the power to grant appropriate
relief where it is alleged that
a right in the Bill of Rights has been infringed or threatened.
15. The right of the
applicant is to dignity, which is guaranteed in section 10 of the
Constitution. Any breach of the terms
of the Consent Paper
exposes the applicant to the indignity of having no choice over when
to exercise her rights to dispose of
property registered in her name.
Furthermore, the applicant has a right in section 34 of the
Constitution to have her dispute with
the respondent resolved by the
application of law decided in a fair public hearing before a Court.
The fact that she still
has to negotiate with the respondent the
enforcement of the court order presents a scenario that justifies
this Court invoking
its inherent jurisdiction to deal with the
dispute. It is clear that the conceded failure by the
respondent and the robust
opposition to this application will
continue to present intractable challenges for the effective
implementation of the Court Order
and in the process stifle the
applicant’s attempt to free herself from the trap of her failed
marriage to the respondent.
Without fully complying with the
Court Order, the parties remain prisoners of each other, and cannot
enjoy the benefits of their
divorce, whatever those may be. The
applicant appears determined to enjoy the benefits of the divorce
order and seeks to free herself
from the consequences of the
respondent’s failure to give effect to the Court Order. A
failure to comply with the Court
Order may, if left unchecked, have a
deleterious effect on the applicant’s plans to live her life
beyond the divorce and
hamper her attempts to start a new life
unencumbered by the burden of her past life.
16. In trying to
extricate herself from her past, she has found herself threatened
with expenses that the respondent is legally
responsible for or
decisions about the Rusten Close property, which she has no legal
interest in keeping. The declaratory and directory
orders are her
attempt to seek redemption from the Court, which has the power to
grant the orders. The question relating
to jurisdiction is
therefore answered by the inherent jurisdiction of the Court to
fashion appropriate remedies. Judicial
timidity is inimical to
the proper administration of justice and a Court ought not to quickly
surrender its power or likely defer
its authority to exercise
jurisdiction on matters that implicate the Bill of Rights.
Section 172(1)(b) of the Constitution
makes it plain that a Court has
discretion to make any order that is just and equitable. This gives
the High Court the right to
treat with suspicion arguments advanced
to constrain its powers to intervene to resolve legitimate disputes
involving the protection
of constitutional rights, and to advance the
effective and proper administration of justice.
17.
The
respondent’s submissions against the jurisdiction of this Court
to adjudicate this dispute in this application are therefore
misconceived. The submissions overlook the scope of the relief
sought by the applicant and that the Southern Divorce Court
has
nothing in its judicial armory to enforce its order in terms sought
by the applicant. The facts of this case therefore call
from this
Court reliance on its discretionary powers to summon to its aid the
process-in-aid
remedy. In any event, this Court has inherent power to regulate
its processes and to grant justice to parties serious about
enforcing
their constitutional and legal rights. In my view it is
constitutionally permissible to rely on the principle of
the High
Court’s inherent jurisdiction to resolve real disputes
affecting ordinary people’s rights. Inherent jurisdiction
of
the Court is a virile and viable doctrine, and has been defined as
being the reserve fund of powers, a residual source of powers,
which
the Court may draw upon as necessary whenever it is just or equitable
to do so, in particular to ensure the observance of
due process of
law, to prevent vexation or oppression, to do justice between the
parties and to secure a fair hearing between them.
[7]
THE
APPLICANT’S SUBMISSIONS
18.
The
applicant’s submission in support of the relief sought is crisp
and expressed with commendable clarity. It is that
the
respondent has breached the terms of the Consent Paper – an
accusation conceded to by the respondent. It is further
that
the breach is to the detriment of the applicant. The respondent
does not deny that accusation. On the strength of this
breach the
applicant seeks a declaratory order that the respondent is in
contempt. She relies on the decision of the Supreme Court
of Appeal
in Fakie
[8]
to support the form
of declaratory relief. The applicant expressly refused to
pursue the route of section 106 of the Magistrates’
Court Act
in which contempt may result in a criminal sanction. All that
she wants is for the respondent to comply with his
obligations under
the Consent Paper and her approach is to seek an order in the form of
specific performance. To the extent
that there is ambiguity as
to the precise nature of those obligations under the Consent Paper,
she seeks a declaratory order similar
to that referred to in
Fakie.
[9]
19. I see nothing
wrong with this eminently reasonable and sensible approach. The
order sought would be in the nature of an
order for specific
performance predicated on a declaration that the respondent is in
breach of the terms of the Consent Paper.
The contempt alleged
by the applicant is the breach of the Consent Paper. In her
submission, the breach of the Consent Paper
is the contempt since the
Consent Paper is an order of Court.
20. On that approach
I must first determine whether there is indeed a breach of the
Consent Paper. If there is a breach, I
must declare that such
breach has taken place. I must thereafter determine whether
consequent relief in the form of directory relief
is justified in the
sense that it is just and equitable.
HAS
THE RESPONDENT BREACHED THE TERMS OF THE CONSENT PAPER?
21. The parties are
ad
idem
on the terms of the Consent Paper. The
respondent makes it crystal clear that he does not dispute the
provisions of the Consent
Paper. He also accepts that he has
failed to take transfer of the Rusten Close property in breach of the
11.2 of the Consent
Paper, which states, “
subject to clauses
11.5 and 11.6 hereunder, Defendant will take transfer of the Rusten
Close property. Defendant will present
written proof to the
Plaintiff that he has secured bond finance with an established bank
or other financial institution against
registration of a Mortgage
Bond on its normal terms and condition over the property, within 40
calendar days of the date of signature
of this agreement.
”
He also concedes that the property has not been sold to date contrary
to 11.6 of the Consent Paper which provides
that in “
the
event of the Defendant failing to take transfer of the Rusten Close
property, or should it not be sold within six months of
being placed
on the market, whichever event shall last occur, then the Rusten
Close property will be auctioned to the highest bidder
by an
auctioneer appointed by Plaintiff.”
22. To this
concession, the respondent vehemently denies being in contempt since,
so he contends, he has not acted deliberately
or in bad faith in not
complying with the terms of the Consent Paper. He pleads a
variation of the Consent Paper in terms
of which it is alleged that
on 20 November 2010, the parties expressly agreed that the respondent
could take as long as he liked
to procure the transfer of the Rusten
Close property to him and that he could remain in such property
pending such transfer.
The consequence of this alleged
variation according to the respondent is that the parties effectively
deleted, alternatively suspended,
clauses 11.5 and 11.6 of the
Consent Paper which provides for the sale of the property in question
to a third party.
23.
Even
though there is no reply to the allegation of a variation of the
Consent Paper, I am not prepared to accept such a variation
as
binding. The Consent Paper is a Court Order and no variation
may be made to a Court Order unless the Court that granted
it
authorizes such a variation. I am not prepared to accept that
the parties, without the involvement of the Court, can simply
change
or ignore a Court Order, which is binding on all parties
concerned.
[10]
I believe
the principle to be trite. Section 165(5) of the Constitution
provides that an order or decision issued by
a court binds all
persons to whom and organs of state to which it applies. It
would undermine the proper administration of
Court Orders and
consequently the integrity of the Courts, if parties, who have chosen
to have their Consent Paper made an order
of Court, were to change
the terms thereof without the involvement of the Court. A Court
has the power to vary its orders
but in limited circumstances
provided for in its rules. A Court though will not give its
imprimatur to the actions of individual
litigants who decide, without
a proper basis to vary the terms of a Court Order. To do so
would result in Court Orders being
ignored by parties. As
already stated above, a party that wishes to vary a Court Order,
must, in a properly considered application
set out a basis for it.
24. Even if I am
wrong on the principle that parties cannot vary or delete parts of a
Court order without its involvement, I am
comfortable that there is
no evidence to suggest that this Court Order was varied in the terms
alleged by the respondent.
This means that the parties are
bound to the terms of the Consent Paper as they appear in the Court
Order.
25. I must
consequently hold that the respondent has no answer to the allegation
that he breached the terms of the Consent Paper
regarding the
disposal or sale of the Rusten Close property. In fact it is a
finding made with ease because in essence the
respondent has conceded
the failure to comply with the terms of the Consent Paper. All that
he contends to avoid the consequences
of non-compliance with a Court
Order is that his failure to comply was not deliberate or
mala
fide
. The Court accepts his defence on the issue of
contempt. However the applicant is entitled to an order in
terms of
which it is declared that the respondent has failed to
comply with the terms of the Court Order. As a consequence of
such
declaration, the Court must then grant directory relief relating
to the disposal or sale of the Rusten Close property.
26. Having found
that the respondent has failed to comply with the terms of the Court
Order, what remedy is just and equitable under
the circumstances?
The issue of the Rusten Close property can no longer be left to the
dictates of the parties alone but
must be enforced through the Court
Order. The operative clause governing the sale of the Rusten
Close property must therefore
be given effect to, in particular
clause 11.6 which provides for the sale of the property by auction in
the event of the respondent
failing to take transfer within the
period of six months referred therein. I am prepared to make
that order, more particularly
given that the respondent did not
display an encouraging attitude towards fully complying with the
terms of the Court Order. His
attitude in this
application was bellicose and it seems to me that a robust approach
should be taken by this Court to curb any
further non-compliance with
the Court Order and more particularly on the disposal of the Rusten
Close property.
27. In any event, it
is clear from the papers that there is no dispute that the property
should be sold by auction in terms of this
clause. In his
voluminous affidavit, the respondent said in paragraph 320 that “
I
never objected to the sale of Rusten Close and remain willing that it
be sold, provided that it is sold for its fair market value,
which
will never be achieved on a forced sale or even an auction, and that
a sufficient period is afforded to me to sell such property.”
28. This reasonable
concession is spoilt by the unreasonable demand that the property be
sold for a fair market value, and that
the manner of its sale must
exclude a sale by auction. The respondent’s conditions,
in my view, if accepted would constitute
a deletion or amendment of
clause 11.6 of the Court Order without a proper basis. This
Court, as already stated above, will
not countenance such a
position. A Court cannot be expected to enforce an agreement
that is at variance with its order. To
order that the Rusten Close
property be sold on the respondent’s terms would constitute an
unjustifiable and untenable interpretation
of the Court Order, more
particularly clause 11.6 of the Consent Paper. There are
further difficulties with the respondent’s
contentions on the
conditions for the sale of the Rusten Close property, which if
accepted would result in the property not being
disposed of in
accordance with a Court Order but the market forces. The respondent’s
conditions, in my view, would frustrate
the proper implementation of
a Court Order and undermine the rights of the applicant. That, a
Court will not sanction.
29. The machinations
of the housing market are fraught with frustrating speculation on the
perfect price that could tie the applicant
to this property for a
time longer than is reasonable. The conditions, in any event,
appear designed only to benefit the
respondent and to prejudice the
applicant. Any attempt to predict with precision the fair
market value of the property would
be an exercise in futility.
It is also unfair to demand from the applicant that she remains tied
to this property as an unwilling
registered owner, when she can
extricate herself from it by enforcing her rights under clause 11.6
of the Consent Paper.
She is entitled to enforce her rights
under the Court Order and to insist that the respondent complies with
the terms of the Court
Order.
30. The respondent’s
conditions therefore are designed to usurp from the hand of the
applicant the only tool that she can
utilize to extricate herself
from the unenviable position of being an unwilling registered owner
of the property. It is clear
that she has patiently held the
fort for the ungrateful respondent, permitting him to borrow her
integrity by remaining the registered
owner – with all the
risks that go with such ownership. The proposal of the
respondent is unimpressive and demonstrates
that he is unwilling to
release his erstwhile wife from the trap of owning property that she
does not really own. I am prepared
to accept that she agreed to
be the registered owner in order to assist the respondent. The
registration of ownership was,
in reality to the respondent’s
benefit and her ownership of the property has shielded the property
from the reach of possible
creditors.
31. Having said
that, this Court would also rely on the principles of ownership to
ensure that the terms of the Court Order are
fully implemented.
As registered owner of the property, the applicant is, in any event,
entitled to dispose of the property
as she choses. Despite the
position common to both parties in respect of who the real owner of
the property is, it is clear
to me that there is no legal impediment
from the applicant asserting rights generally accorded to registered
owners of property,
which includes the right to sell the property.
32. In the
circumstances, I am inclined to grant the order directing that the
Rusten Close property be sold by auction to the highest
bidder by an
auctioneer appointed by the applicant and all costs relating to such
sale be paid to the respondent on demand thereof
and the proceeds of
the sale be utilized as set out in the Southern Divorce Court dated
29 November 2010 under case number 6490/2010.
This would
achieve the objectives of the Court order and in the process ensure
the proper administration of justice.
DECLARATORY
ORDERS
33. On the
concessions made by the respondent himself I am prepared to hold that
the respondent failed to comply with the terms
of the Consent Paper
in so far as they relate to the Rusten Close property. I have
already held that the respondent’s
non-compliance is not
contemptuous in the sense that it was not deliberate or
mala
fide
. The applicant particularly asked this Court not to
make that contempt finding envisaged in section 106 of the
Magistrates’
Court Act. What the applicant wants is an order
akin to that of specific performance in which her rights are affirmed
and spelt
out succinctly for the world to know.
34. I am content on
the evidence that the respondent was not willful and
mala fide
in his failure to comply with the terms of the Consent order.
He faced financial difficulties that made it difficult for
him to
fully comply with the terms of the Consent Paper. I was
particularly encouraged that the respondent has paid everything
he
owes on the property including arrears due to the City of Cape Town.
The only issue of contention between the parties
is the disposal of
the Rusten Close property, which remains registered in the name of
the applicant as a consequence of the respondent’s
failure to
take transfer. The position of the respondent is made difficult
by a judgment entered against him by the South
African Revenue
Services. However such difficulty should not saddle the
applicant or prevent her from exercising her rights
to dispose of the
property by way of auction in pursuance of her right under clause
11.6 of the Court Order.
35. Having said so,
I am persuaded to follow the guidance of the Constitutional Court in
the Rail Commuter Action Group and provide
for a
declarator
,
which in my view serves not only to clarify the rights of the
parties, but also provides a sound justification for the directory
relief involving the sale of the Rusten Close property. In the
circumstances I would be prepared to make the order:
35.1.
That the respondent has failed to comply clause 11.6 of the Consent
Paper contained in a divorce order granted in the Southern
Divorce
Court dated 29 November 2010 under case number 6490/2010;
35.2.
Directing that the immovable property known as ERF 9………
Cape Town at M…… D…. G………
and situated at 12 R……… Close, M………
D………. G…….., M………..,
Cape Town be sold by auction to the highest bidder by an auctioneer
appointed by the applicant and all costs related to such sale
be paid
to the respondent on demand thereof and the proceeds of the sale be
utilized as set out in the divorce order of the Southern
Divorce
Court dated 29 November 2010 under case number 6490/2010.
COSTS
36. The applicant
has been successful and should therefore be awarded costs. Both
parties asked this Court to make punitive
cost order in favour of the
successful party. I am prepared to oblige the prayer and to grant the
applicant, the successful party,
a cost order on a punitive scale for
reasons I deal with below. She submitted that the conduct of
the respondent warranted
a punitive cost order and I agree.
First the answering affidavit contained 316 pages in which the
respondent conceded that,
“
the substantial portion of these
facts and circumstances may not be regarded as particularly relevant
to the merits of the current
dispute between the applicant and
myself
.”
37. Secondly, given
the concessions made by the respondents, the legal defences mounted
against the applicant’s reasonable
demands for the proper
implementation of the Court Order were extravagant. The respondent
adopted a deliberately hostile position
in an attempt to frustrate
the applicant from enforcing her rights under the Court Order.
The soi-disant businessman cannot
continue to hold the applicant
hostage to an arrangement that is clearly inconsistent with a Court
Order by insisting that she
remains the registered owner of the
Rusten Close property any longer than was conceived by the parties
when they entered into the
Consent Paper.
38. The Court is
persuaded that the approach of the respondent to the issue of the
Rusten Close property is unreasonable and if
not stopped will not
only cause perpetual prejudice to the applicant but undermine the
integrity of the Court and the effective
implementation of its
Orders. The approach of the respondent is unreasonable for a
further important reason. It stands in
stark and direct violation of
the Court Order. The order of this Court must accordingly
restrain this conduct and ensure
that Court Orders are obeyed with
unquestioning reflex.
39. The respondent’s
conditions that he seeks to impose on the applicant to prevent the
disposal of the Rusten Close property
are not only inconsistent with
his duties under the Court Order. They are inconsistent with the
Court Order and cannot be given
effect to without undermining the
integrity of the Court. For that I am persuaded that a punitive cost
order is justified.
40. In the
circumstances, I make the following orders:
40.1.
The respondent’s preliminary objection to this Court’s
jurisdiction is dismissed.
40.2.
Declaring that the respondent has failed to comply clause 11.6 of the
Consent Paper contained in a divorce order granted in
the Southern
Divorce Court dated 29 November 2010 under case number 6490/2010;
40.3.
Directing that the immovable property known as ERF 9……….
Cape Town at M……… D……..
G……..
And situated at 1…… R……. Close, M………..
D…….
G………., M…………,
Cape Town be sold by auction to the highest bidder by an auctioneer
appointed by the applicant and all costs related to such sale be paid
to the respondent on demand thereof and the proceeds of the
sale be
utilized as set out in the divorce order of the Southern Divorce
Court dated 29 November 2010 under case number 6490/2010.
40.4.
The respondent is ordered to pay costs on the scale of attorney and
own client.
T.
MASUKU
Acting
Judge of the High Court
APPEARANCES:
FOR APPLICANT :
ADV. E. SPAMER 021 424 8610/083 449 1865
Instructed by :
JD LAW, SOMERSET WEST
(REF. MR. J.
BOTHA 021 851 4676
FOR RESPONDENT:
ADV. D. VAN DER MERWE 021 424 6710/082 900 6587
Instructed by :
VAN EEDEN BEIROWSKI INC, GOODWOOD
(REF. MS V
BEIROWSKI 021 592 5560)
[1]
2013 (4) SA 498
GSJ at para 4; He also relied on Bannatyne (CGE, as
amicus
curiae
)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) para 20
[2]
section 106 of the Magistrates’ Court Act reads as follows:
‘
106
Penalty for disobedience of judgment or order of court
Any
person willfully disobeying, or refusing or failing to comply with
any judgment or order of a court or with a notice lawfully
endorsed
on a summons for rent prohibiting the removal of any furniture or
effects shall be guilty of contempt of court and shall,
upon
conviction, be liable to a fine or to imprisonment for a period not
exceeding six months or to such imprisonment without
the option of a
fine.’
[3]
Clause 15 states that:
“
15. Until
such time as the Rusten Close property has been transferred into
Defendant’s name, or that of a third party pursuant
to a sale,
the Defendant will:
15.1.
Continue to timorously (sic) make payment to Standard Bank in
respect of the all bond payments;
15.2.
Pay all rates and taxes owing to the City Council in respect of the
Rusten Close property, including all sewerage and water
charges,
insurance and reasonable maintenance expenses.”
[4]
Bannatyne v Bannatyne (CGE as amicus curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) at
para 23 “It is for the applicant to show that there is good
and sufficient reason for the High Court to enforce
the judgment of
another court. What constitutes ‘good and sufficient
circumstances’ warranting a contempt application
to the High
Court will depend upon whether or not in the circumstances of a
particular case the legislative remedies available
are effective in
protecting the rights of the complainant and the best interests of
the children. That much is confirmed
in s 38 of the
Constitution, which permits a court to grant appropriate relief
where it is alleged that a right in the Bill of
Rights has been
infringed or threatened.
[5]
Ibid at para 22
[6]
Dreyer v Wiebols and Others
2013 (4) SA 498
(GSJ) at [9]; Els v
Weideman
2011 (2) SA 126
(SCA) at [33]
[7]
G. Sanam, Halsbury’ Laws of England, 4th ed.
(London-Butterworths);
See
Also
,
Issac H. Jacob, “The Inherent Jurisdiction of the Court:
(1970)
[8]
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 345B
[9]
See also the judgment of the Constitutional Court in Rail Commuter
Action Group and Others v Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005
(4) BCLR 301
(CC) at para 106-108
[10]
Of course it is open to a party to abandon an order granted in his
or her favour