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[2012] ZAECGHC 22
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Hintsa v Hintsa (1046/2012) [2012] ZAECGHC 22 (3 May 2012)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
CASE NO.: 1046/2012
Date heard: 3 May 2012
Date handed down: 3 May 2012
In the matter between:
M D HINTSA …........................................................................................Applicant
and
N A HINTSA …......................................................................................Respondent
_____________________________________________________________
JUDGMENT
KEMP, A.J.:
The applicant in this matter sought orders declaring his ex-wife to be in contempt of court and committing her for imprisonment for 24 months. The parties were divorced on 23 April 2010 in terms of an order incorporating a deed of consent agreed to by the parties. One of the provisions dealt with in the consent paper regarded the division of the joint estate, and in terms of which the parties agreed that a Receiver should be appointed.
The applicant represented himself at the hearing and there was no appearance for the respondent. The applicant deposed to an affidavit in support of the application, to which he annexed letters addressed to the Receiver from two estate agents and a valuer who had apparently been appointed by the Receiver, one Leon Keyter, an attorney. There were no supporting affidavits - either by Keyter, either of the estate agents or the valuer. I quote the relevant portions of the first estate agents letter:
“We made appointments with her, but she has not honoured them and most of the time she does not anwer her phone. I went to her workplace and she told me that she does not have the time for that. I went to the house twice after hours and no one was home. She does not seem interested in the valuation of the property which she lives in.”
The Receiver then appointed a valuer, who made arrangements to see the respondent at her house on a Saturday morning. He had the following to say about his experience:
“Having knocked on the door I sensed there was something amiss when there was no immediate response. I had to let myself in and on opening the door. I met Mrs Hintsa only 2 – 3 metres away standing with with a broom in her hand. It appeared she had made no effort on her part to let me in. she demanded to know how I had found the house and from that moment on, I sensed hostility in her voice. I cannot remember our conversation after that and I can only recall the insults regarding my presence when she asked me why I had to come from Port Alfred and demanded that an Estate Agent from Grahamstown be appointed to do the job. I remember asking her why she had not told me on Wednesday when we met that she wanted on Estate Agent from Grahamstown and not me. I was very annoyed as I had never been insulted in this way before in all my 40 years of experience. I turned and walked out to my car and left.”(sic)
The Receiver then appointed an estate agent who was also an appraiser, who had more success and was able to carry out the valuation of the immovable property. The relevant portions of his letter to the Receiver relate to his attempt to value the moveables:
“Mrs Hintsa and her house guests (7 males) were hostile and I was asked to leave the house at one stage. I asked Mrs Hintsa to please point out the Movables (as per my list) to be appraised. Mrs Hintsa said that her Attorney (Mr Mili) had given her strict instructions that the Movable property was not to be appraised and in spite of my insisting, she refused, point blank, to identify the items to be valued. An ugly argument took place between Mrs Hints and her guests and I was again asked to leave. The house guests (males) at this point had become extremely hostile and for reasons of my own personal safety I decided to leave the property having failed to carry out the appraisement of the Movable property. I have attended to hundreds of Appraisals over the years (Divorce and Deceased Estates) and this one was definitely the most challenging of all.”(sic)
From what is contained in the letters it is clear that the immovable property was valued, albeit with some difficulty, and that respondent advised the last valuer that her attorney had advised her that the movables were not to be valued. The Receiver was only invested with the power to determine the value of assets, and to obtain valuations for the purposes of doing so, in the absence of agreement between the parties. The last valuer’s statement that the respondent had indicated that her attorney had advised her that the movable property was not to be appraised may well indicate that some agreement had been reached in respect of the value thereof and in any event indicates a lack of mens rea. Although improbable under such circumstances, there is no allegation by the applicant that there had not been such an agreement.
The applicant never alleged that the respondent was ever made aware of the divorce order, and whilst it may be probable that she became aware of it, there being no specific allegation to that effect, I am unable to find beyond any reasonable doubt that she was ever made aware of the order. One of the essential requirements for a finding of contempt of court are accordingly lacking. In Fakie NO v CCII Systems (Pty) Ltd,1 the court discussed the requirements for a finding of contempt and emphasized that the applicant must prove “the order; service or notice; non-compliance; and wilfulness and mala fides beyond reasonable doubt.” 2
Whilst I am satisfied that the order has been proven, I am not satisfied that the respondent is aware of the order. I am also not satisfied that the balance of the requirements have been proven, as the provisions of Rule 6 (1) of the Supreme Court Act3 have not been complied with. “Save where proceedings by way of petition are prescribed by law, every application shall be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief.” The allegations relating to non-compliance, wilfulness and mala fides are not contained in the applicant’s affidavit. He relies on what is essentially hearsay evidence and thus not admissible in the absence of a finding that it be admitted. He has not laid any basis for such a finding.
Finally, I am not satisfied that the relief the applicant is seeking is entirely appropriate. Whilst it may be so that the parties hold each other in contempt, and whilst it is important for the courts to be vigilant and to assist wherever possible in ensuring that its orders are carried out effectively, the courts should not be used as weapons for matrimonial combatants to bludgeon each other with. I would be surprised if the valuers and the Receiver, with the input of the applicant, were not able to come to some agreement regarding the value of the movables. The last valuer was in the house and must have gained some idea regarding the state of some of the movables. It may well be that the Receiver has been able to come to such a conclusion. In the absence of a supporting affidavit from him I have no idea what his views are.
Under all the circumstances I am not satisfied that the applicant is entitled to the relief sought and the application is accordingly dismissed.
____________________
L D KEMP
ACTING JUDGE OF THE HIGH COURT
For applicant: Self.
For respondents: No appearance.
C:\_clients\e_l\ldk judgements\grahamstown\3 may\HINTSA - CONTEMPT OF COURT.doc
2At para [42]
3Act No. 59 of 1959