Botswana: High Court

IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE

_{MAHLB-000650-07}

IN THE MATTER OF:

LUKIC LJUBICA APPLICANT AND

FERDO DIZDAREVIC RESPONDENT

IN RE:

LUKIC LJUBICA APPLICANT AND

FERDO DIZDAREVIC 1^ST RESPONDENT AUTON RUSETTE 2^ND RESPONDENT STOCKER FLEETWORD-BIRD 3^RD RESPONDENT ATTORNEY GENERAL (representing Registrar of 4^th RESPONDENT Deeds)

MR DB LEBURU FOR THE APPLICANT

_{MR R. KHAN (WITH F. KHAN) FOR THE RESPONDENT}

_{J U D G M E N T}

DINGAKE J:

1. This an application in which the applicant prays the Court to commit the respondent to prison for 90 days for failure to comply with the orders of the Court contained in its judgment dated 17^th of April 2008.

2. A brief outline of the background will put issues in sharp perspective. The parties hereto were formerly wife and husband. They were married in community of property. Following their divorce, the applicant brought an application before this Court in which she complained that the respondent had transferred Lot

8073, Gaborone, which formed part of the joint matrimonial estate, to his new wife, cited in that application as the second respondent. The applicant also sought, interalia, the division of the movable properties of the joint estate, a detailed account of rentals received in relation to Lot 8073 from January 2003 to August 2007 and to pay the applicant a proportion of her share in relation to the said rentals and ordering and directing a debatement of the account in relation to the parties’ business operating under the name and style Saphire Investments (Pty) Ltd.

3. The respondent was ordered to account for the rentals and to pay the applicant a proportion of her share within 14 days from the

17^th of April 2008. There was no timeframe within which the respondent was to provide for a debatement of the account in relation to the parties’ business under the name and style Saphire Investments (Pty) Ltd. There were other orders that the applicant alleged the respondent had disregarded, in addition to the accounts of rental and the operations of the parties business

aforesaid. Happily, these other matters were amicably resolved by the parties with the result that the issues that remained related only to the accounting for rental and operations of the business of the parties.

4. On the rental issue Mr. Leburu, learned Counsel for the applicant, submitted that the applicant was happy that the applicant had accounted for the rental and that he only complaint is that the respondent has not paid the applicant the proportion of the rental as ordered by the Court.

5. On the issue of the debatement, Mr Leburu submitted that nothing has been placed before the Court as debatement of the accounts. He argued that that the respondent made no effort to place before the Court material documents such as balance sheet, no audited financial statements and tax returns to show how the company was run as directed by the Court.

6. The respondent’s response is contained in its Answering Affidavit.

With respect to rental the applicant accepts that he did not provide the rental account within the 14 days ordered. He says he did not know about the order in sufficient time to comply with same. He also blames the applicant and or her attorneys for not being

cooperative or forthcoming in resolving the matter. The Answering Affidavit does not state the expenses incurred in maintaining the property which could be deducted from the rental such as agents’ fees, repair to the pool and others that Mr. Khan spoke of in his submissions. I have not had regard to the 1^st respondent’s Supplementary Affidavit because it was not authorized by Court.

7. On the issue of debatement, the respondent accepts that he has not been able to provide a full statement of accounts in relation to Saphire Investments (Pty) Ltd. He says the business was a disaster. He avers that originally, the accounts of the business were being finalized by Acumen. He says he could not afford the fees levied by Acumen and approached a smaller less expensive firm that appears to have closed shop.

8. Mr. Khan, learned Counsel for the Respondent, admitted that certain documents such as tax returns may not have been served on the applicant, but argued that certain financial statements have been made available to the applicant. However, the respondent’s Answering Affidavit makes no reference to such financial statements.

9. I turn now to consider whether on the basis of the above evidence, the respondent should be held to be in contempt of Court and be imprisoned as prayed.

10. First, it is important to state one fundamental principle that lie at the root of the entire concept of the rule of law. It is a grave matter to disobey a Court order. It is the plain and unqualified obligation or any person, against whom an order is made, to obey it, unless that order is discharged. Court orders are non negotiable. A person who disobeys a Court order undermines the rule of law and impugns the integrity and authority of the Court and is liable to committal to prison or fine as punishment.( Hadkinson v Hadkinson 1952 2 ALL E.R 567,CA)

11. The law is clear that in an application of this nature, the applicant must satisfy the Court, by evidence, that the refusal or failure to obey the Court order is willful and malafide. ( Wright v St. Mary’s Hospital, Melmoth and Another 1993 (2) SA 226; Putco Ltd v TV and Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809)

12. It is trite law that once a failure to comply with an order of Court has been established, willfulness will normally be inferred, and the onus rests on the person who failed to comply with such an order

to rebut the inference of willfulness on a balance of probabilities

(Sparks v Sparks 1998 (4) SA 714)

13. The respondent says he holds this Court in the highest respect and that he will not deliberately disobey the Court order. He then proffers the explanation already recited why he did not obey the Court order. There is no doubt, on the evidence that he has not complied with the Court order. I am prepared to give him the benefit of doubt that it may well be, as he says that the applicant or her attorneys frustrated him. On this, I make no finding of fact. The effect would then be that the respondent has just about succeeded to rebut willfulness.

14. On the debatement, his explanation was most unsatisfactory. That the business was a disaster cannot be a reasonable explanation for failure to account as ordered. The debatement sought will tell its own story. That indeed is the essence of debatement. The only reason I am not prepared to hold him in contempt on the issue of debatement is that no timeframe was attached to the order.

15. My overall finding is that the respondent has indeed failed, refused and/or neglected to comply with the Court order. On the evidence, it does not appear to have been malafide. This disobedience clearly

frustrated the applicant who could not enjoy the fruits of the judgment. She was entitled, and acted properly by approaching this Court for a remedy. The respondent by his disobedience has delayed the applicant’s enjoyment of the judgment by close to eight (8) months. That is too long a period. The applicant’s conduct impugned the honour and integrity of this Court.

16. In the premises:

16.1 The respondent’s failure to comply with the Court order was not willful and the prayer to imprison him is refused.

16.2 The respondent is ordered and directed to comply with Order

6 and 8, at page 24-25 of the judgment of this Court dated the 17^th day of April, 2008, within 21 calendar days from today (10^th March, 2009)

16.3 With respect to Order 6, above, on rental, the applicant having accounted, is required to pay the proportionate share within the aforesaid 21 days.

16.4 The respondent’s conduct having precipitated the application for contempt must pay costs of the application and it is so ordered.

--------------------- OBK DINGAKE JUDGE

DELIVERED IN OPEN COURT THIS 10^TH DAY OF MARCH, 2009.

MONTHE MARUMO & COMPANY – APPLICANT’S ATTORNEYS RAHIM KHAN & COMPANY – 1^ST RESPONDENT’S ATTORNEYS