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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

(EASTERN CAPE – PORT ELIZABETH)                                                                

CASE NO.: 733/2012

In the matter between:

M. A. H.                                                                                                                       Applicant

And

J. L. H.                                                                                                                    Respondent

JUDGMENT

BESHE, J:

[1] The order that is sought by the applicant is the following:

1. Declaring that the respondent is guilty of contempt of this Court’s order issued on 19 August 2003, under case no. 1343/2003.

2. Committing the respondent to a period of imprisonment as this Court deems fair and appropriate, to be suspended on condition that the respondent immediately cease his contempt of this Court’s order by complying therewith in the following respects:

2.1 Paying to the applicant the arrears maintenance for herself and her dependent children as set out in annexures MH 12.1 TO MH 12.3 hereto;

2.2 Placing the applicant and her dependent children on a medical aid scheme of his choice in compliance with his obligation in terms of clause 5 of annexure “B” to this Court’s order dated 19 August 2003 in Case No. 1343/03;

2.3 Paying to the applicant the amounts stipulated in clauses 3 and 4 of the aforesaid annexure “B” on or before the first day of every month.

3. In the event that the respondent does not comply with any of the terms of this Court’s order, permitting the applicant to set the matter down on the same papers, duly supplemented as may be necessary, to seek the respondent’s committal for a period of direct imprisonment or such other punishment as this Court deems fair and appropriate in the circumstances.

4. Sentencing the respondent to such punishment, as this Court deems just and equitable in the circumstances.

5. Directing that the respondent pay the costs of this application on an attorney and client scale.

6. Further, and or alternative relief.

[2] The applicant and the respondent were  [……..] by order of the High Court, Port Elizabeth, on the [……..]. Together with a decree of [……..] the settlement agreement entered into by the parties, who were defendant and plaintiff respectively, was made an order of the court. The salient terms of the agreement are the following:

(i) The applicant was granted custody of the couple’s minor children.

(ii)The respondent was ordered to pay R1 000.00 per child per month as and for maintenance until the minor children became self-supporting.

(iii) The respondent was ordered to pay R3 000.00 per month to the applicant as rehabilitative maintenance until she remarries, or commences cohabiting with another partner or becomes self-supporting.

[3] Applicant alleges that from the beginning of 2006 respondent failed to pay maintenance towards her. This led to a writ being issued against the respondent as a result of which he settled the outstanding amount. It would seem that the payment of the outstanding amount was made from the proceeds of respondent’s immovable property.

[4] In March 2009, respondent once again fell into arrears with maintenance to the amount of approximately R9 000.00. A writ of attachment was issued against him in respect of which the Sheriff returned a nulla bona  certificate. It appears however that respondent had immovable property, in the form of sectional title unit in North End, Port Elizabeth. During 2009 respondent sent applicant a letter alleges that she is self-supporting and that she is a member of a Close Corporation that owns the guest house where she works.

[5] It is common cause that the guest house in question is owned by a Close Corporation in respect of which applicant is the holder of a 30% member interest.

[6] According to the applicant, she is not self-supporting. The guest house was purchased by her aunt one C. B. and her fiancé who permanently reside in Switzerland. It transpired that the bond in respect of guest house could not be registered in their names because they were not South African citizens. Although her name was included as one of the members of the Close Corporation purchasing the guest house, she has never had any financial interest in the guest house. After the divorce she was offered the job of managing the guest house by her aunt. The agreement was that she would not earn a salary. But she and the parties’ daughters would get free accommodation. This is confirmed by her aunt in her confirmatory affidavit. She does not have any work experience or educational qualifications. In addition she suffers from high blood pressure and diabetes. She is in remission from breast cancer. Applicant also alleges that the respondent is gainfully employed by Seeff Properties in a well-paid position.

[7] Respondent on the other hand, maintains that the applicant is self-supporting and has been for many years. That he paid maintenance to the applicant in good faith unaware that she was self-supporting. That in any event he is not possessed of means to support the applicant since his financial position has deteriorated considerably over the years. To the extent that on occasion he fell in arrears with maintenance. He further alleges that the guest house is frequently patronized. The guest house financial statements for 2009 reflecting gross income to be ± R8 000.00 are inaccurate. That, financial statements for subsequent tax years have not been furnished by the applicant. That the Close Corporation does not seem to have a bank account seeing that the financial statements in respect of the Close Corporation reflect a nil amount for bank charges. Contends that this is highly unlikely in view, inter alia of the fact that the advert for the guest house states that deposits can be made via bank transfer. He points out that applicant has chosen not to disclose the guest house bank account. He also points out that he considers being anomalies in what is purported to be the agreement governing the ownership of the guest house. Points out that applicant and the children undertake frequent trips to Cape Town where the eldest daughter stays and overseas.

[8] Respondent maintains that he is not possessed of means to pay maintenance in terms of the court order. [That is over and above his contention that applicant is self-supporting]. That he is therefore not in wilful and deliberate breach of the court order. As an estate agent he does not draw a salary but depends on commission earned. Respondent also contends that in view of the disputes of fact regarding inter alia, whether applicant is self-supporting and whether he is possessed of means to pay maintenance, and consequently whether he is in wilful default of the court order, it was inappropriate to proceed by way of motion proceedings. In reply, applicant prays in the alternative that the matter be referred for oral evidence to be heard only in so far as the issue of respondent’s ability to pay is concerned. To this end, she attaches a contingent application for referral of the issue to oral evidence in terms of Rule 6 (5) (g). Rule 6 (5) (g) provides that:

“(g) Where an application cannot properly be decided on affidavit the court may dismiss application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.”

[9] It is trite that a party who seeks final relief on motion must in the event of a dispute, accept the version presented by his opponent unless the latter’s allegations are, in the court’s opinion, not such as to raise a real, genuine or bona fide dispute. In Wightman v Headfour (Pty) Ltd 2008 (2) All S 512 SCA at 13 Heher JA had this to say as regards what constitutes a real, genuine and bona fide dispute of fact:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him.”

[10] In my view there appears to be genuine disputes of fact as to whether applicant is self-supporting and whether or not respondent is possessed of means to pay maintenance. It will therefore be appropriate to refer those issues to oral evidence.

[11] Regarding the contempt of court aspect, the principles that are applicable in such proceedings were enumerated in Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) where Cameron JA, as he then was stated inter alia that:

“The test for when disobedience to a civil order constitutes contempt of court has come to be stated as whether the breach was committed “deliberately and mala fide”. 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 contempt. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).” (paragraph 9)

Later in the judgment Cameron JA states that if a real, genuine or bona fide dispute arises as to one of the facta probanda such as whether an admitted or proven non-compliance was wilful or mala fide, the applicant has not applied for the matter to be referred for oral evidence, and the respondent’s version is not “fictitious or so far-fetched and clearly untenable” that it is not worthy of credence, the court must decide the matter on the facts stated by the respondent, together with those that applicant avers and respondent does not deny. In my view the issue of whether respondent is in contempt of the court order in question is linked to the issue whether applicant is self-supporting and whether respondent is possessed of means to pay maintenance. That therefore it will not be appropriate to make a pronouncement on the issue of contempt of court. As this issue can also only be decided after the hearing of oral evidence regarding the two issues mentioned above.

[12] In the result the following order will be made:

1. The application is postponed to a date to be arranged with the Registrar of this Court for the hearing of oral evidence in terms of Rule (6) (5) (g).

2. The issues to be resolved are:

(i) Whether applicant is self-supporting.

(ii) Whether respondent is able to pay maintenance.

(iii) Whether respondent is in contempt of Jansen J’s order of the 19 August 2003.

3. Within 60 days of this order, each of the parties shall make discovery on oath of all documents relating to the issues referred to above which are or have, any time been in possession or under the control of such parties, in particular bank and financial statements covering the period in question. Such discovery is to be made in accordance with Rule 35 of the Uniform Rules of Court.

4. Costs to stand over for later determination.   

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N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

 

For the Applicant       :           Adv: T M G Euigen

 

Instructed by           :           DE VILLIERS & PARTNERS

                                                32 Erasmus Drive

                                                Summerstrand

                                                PORT ELIZABETH

                                                Tel.: 041 – 583 1978

                                                Ref.: Mr E de Villiers

 

For the Respondent     :        Adv: P W A Scott SC

 

Instructed by            :           DE VILLIERS INC.

                                                165 Cape Road

                                                Mill Park

                                                PORT ELIZABETH

                                                Tel.: 041 – 399 3100

                                                Ref.: M Von Benecke/pb/MAT4348

 

Date Delivered :                13 May 2014

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