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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 DIVISION, GRAHAMSTOWN

CASE NO: 342/2018

Date heard: 05 November 2020

Date delivered: 12 November 2020

In the matter between:

C[…] A[…] H[…]                                                                                        Applicant

and

M[…] H[…]                                                                                              Respondent

JUDGMENT

LOWE, J:

INTRODUCTION

[1]           The parties to this matter were married by way of an antenuptial contract subject to the accrual system on 25 November 1989.

[2]           There were four children born of the marriage.

[3]           Divorce proceedings were instituted on 13 February 2018.  Applicant claimed maintenance for herself and the only minor child at that time together with her claim for 50% of the accrual share.

[4]           Having been litigated for some time in an acrimonious fashion the divorce was finally settled on the day of hearing 30 April 2019. 

[5]           Both parties were well legally represented at relevant times during the divorce.  In the contempt proceedings Respondent acted on his own account at all times.  I carefully explained to him that it would be in his interest to have legal representation and the evidentiary burden that he bore.  He insisted nevertheless that he had no option but to proceed appearing personally. 

[6]           The order of divorce incorporated the parties’ Deed of Settlement.  In summary Applicant was awarded:

[6.1]     R10,000.00 per month maintenance.

[6.2]     R4,000.00 per month for the minor child.

[6.3]     The payments were to increase annually as per the CPI.

[6.4]     Applicant and the minor child would remain on Respondent’s medical aid.

[6.5]     Respondent was to pay the minor child’s educational expenses.

[6.6]     The parties retained the movables in their possession save for a Renault vehicle which would go to Applicant who transferred her share in their Paint City business to Respondent.

[7]           Respondent was then and remains a First National Bank Manager and sole shareholder and director of Paint City, Port Alfred.  He now resides in a capacious home being Green Fountain Farm Chalets which he owns (although bonded). 

[8]           It is undisputed that Applicant accepted life maintenance forfeiting her part of Paint City.

[9]           Respondent did not hold back during the litigation, or thereafter, in complaining to and about Applicant in regrettable terms.

[10]        The communications, post divorce, indicate a reluctance on Respondent’s part to accept the agreement he had concluded on the advice of Senior Counsel and Attorney.

[11]        In October 2019 he addressed all the Attorneys and Applicant in an email complaining bitterly about the legal costs and what he was bound to pay Applicant.

[12]        In this is a substantial threat that his one option (of two) was to cease all payments to Applicant.

[13]        On 11 October 2019 Respondent addressed a further abusive email to Applicant saying he would “not be able” to pay her.  This too was couched in unfortunate language and tone demonstrating deep animus towards Applicant.

[14]        Applicant believed it necessary for her to relocate to Cape Town, which she did.

[15]        In effect following his threats, Respondent made a final payment of maintenance to Applicant on 2 November 2019, subsequently consistently failing to pay the monthly sum to date hereof. 

[16]        The error of his ways was drawn to his attention by Applicant’s Attorneys.  

[17]        In response to a threat that Applicant would proceed against him, and in June 2020, Respondent made it clear that he intended to persist in his non-payment of Applicant’s maintenance and complained about the Divorce legal fees he had to pay.  He noted that he was seeking a variation of the order at the Maintenance Court.  He stated:

“In the interest of making an offer I offer R1,000.00 per month……”

[18]        Applicant’s attorney’s response on 8 June 2020, not surprisingly, was to point out that the order had not been varied and that the full sum was due.  A last chance to pay the arrears was afforded him and failing this contempt proceedings would ensue.

[19]        As per Respondent’s usual combative behaviour his response, when informed that contempt proceedings would be issued, was inter alia “See you in Court”.

[20]        Astonishingly having offered payment in June 2020 of R1,000.00 per month, not even this was paid to Applicant.

[21]        Shortly after having his reduction of maintenance proceedings postponed in the Magistrate’s Court (in November 2019), Respondent decided initially that from December 2019 he would not pay Applicant’s maintenance of R10,000.00 or any part thereof and he did not waiver herefrom to date.   

[22]        The only thing he had honoured in respect of Applicant’s entitlement was to keep her on his medical aid as he was obliged to do.

[23]        The arrears in respect of cash maintenance are now R119,975.28 with interest of R4,479.39 – a total of R124,454.67.

THE LAW

[24]        As is well known the enforcement of orders for maintenance by contempt proceedings are in a special category in which this relief is competent.

[25]        The leading case relevant is Fakie NO v CC11 Systems (Pty) Ltd [1].  At paragraph [42] Cameron J summarized the approach as follows:

“(a)      The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

(b)       The respondent in such proceedings is not an 'accused person', but is entitled to analogous protections as are appropriate to motion proceedings.

(c)         In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.

(d)         But, once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.

(e)         A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.”

[26]        On the papers the order, notice thereof and non-compliance is undisputed and indeed common cause. 

[27]        The only issue is whether Applicant has established wilfulness and mala fides, beyond reasonable doubt, in the failure to pay Applicant’s maintenance of R10,000.00 per month (or any part thereof).  In this regard Respondent has an evidentiary burden.

[28]        In short Respondent’s evidential burden was to provide evidence such as to establish reasonable doubt that his failure to pay any amount at all to Applicant was justified, or that he could not afford to pay any amount at all, or that he genuinely believed this to be the case.  This requires Respondent to put up a cogent case that he was not wilful, but particularly not mala fide, when he established this belief as each date for payment came and went, commencing at the beginning of December 2019 to now.

[29]        In considering this many factors must be assessed including Respondent’s allegation in the Answering Affidavit, his WhatsApp messages and emails, the information provided about his financial affairs (however selective this was), his bank documents, not all of which were produced, and the like.

[30]        In AK v JK [2] considering contempt proceedings the Court held:

“85.      Has the respondent discharged the evidential burden he bears to show that his failure to comply with the order of Le Grange, J was not willful or mala fide? In Maujean [3] King J described the act of willfulness thus:

“More specifically in the context of a default judgment ‘willful’ connotes deliberateness in the sense of knowledge of the action and of the consequences, its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be”.

I consider that the same approach is warranted in considering the element of willfulness in this matter given that it accords with the following dictum of Cameron JA in Fakie: 

`“[9] The test for when disobedience of a civil order constitutes contempt 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 the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).” (Internal references omitted)”

[31]        In AR v MN [4] Snyckers AJ stated[5]:

“22. What appears to me to be completely undeniable is the fact that, whatever father’s true current ability, when it comes to payment of maintenance and meeting the court order, he must at least be, to the tune of a significant amount every month, in mala fide contempt. This is because of his complete failure to pay anything at all, apart from one payment in August 2018, since February 2018.  Even the amount of R1 000 per child per month as a total amount that he alleged he was able to afford in March 2020 (which appears on the face of it to be risible in the circumstances), and was formally used to ground his application for a reduction in maintenance, did not find its way into any bank accounts that had anything to do with compliance with the court order.  The same can be said for the amount of R2 500 per month per child and one-third of the school fees which became the fall-back position, before the Maintenance Court – in circumstances where it was not suggested that this had suddenly become possible overnight and had not been possible the day before.  I agree with counsel for mother that the reasoning of Kollapen J in JD v DD 2016 JDR 0933 (GP) is apposite: if father were truly not mala fide, one would have expected him at the very least to have made payment of those amounts that he alleged he was able to pay in his application for reduced maintenance.”

[32]        The above addresses the fact that a total failure to pay, and not merely payment of a reduced amount, may well establish mala fides in making no payment at all.  This is relevant to the tender of R1,000.00 per month made by email referred to above, which sum however negligible did not find its way to Applicant.  The question as to why not was never answered.  As pointed out in AR v NM if he was truly not mala fide Respondent would have been expected to, at the very least, have made payment of the sum he tendered as this he must have concluded at best for him, he was able to pay. 

[33]        Further as pointed out in Fakie objective unreasonableness in the failure to comply may be bona fide but also can evidence bad faith.

THE REMAINING FACTS

[34]        In summary Respondent’s case properly construed sets up that he now says that despite being represented by experienced senior counsel and attorney, he was persuaded to enter into an unjust settlement and had, and continues to have, no financial ability to pay any sum at all in maintenance to Applicant.

[35]        In so doing there is considerable reticence on Respondent’s part to fully disclose his monthly income and expenditure (personal and the paint business) or why he paid the maintenance to November 2019 and abruptly ceased entirely, and as to why, beyond somewhat questionable and unsupported assertions of unaffordability. 

[36]        This must be seen in the light of the fact that his Bank Manager salary is R538,865.00 per annum as at 1 August 2020 and was before that R530,901.00. 

[37]        His net bank salary income monthly and other drawings and income, after all deductions (including Tax and Medical Aid for himself and Applicant) is R23,574.28, not an inconsiderable sum.

[38]        In general whilst complaining of total inability (“affordability”) and risk to his solvency and the business, Paint City, he was unable to demonstrate, on the objective evidence of such bank statements, that these were in either instance in arrears at any time.

[39]        This must all be seen in the context that on 10 October 2019 Respondent wrote to all that if he did not pay Applicant “anything” he would save R15,950.00 and be able to pay his legal fees – claiming then this was a sum he could pay for legal fees (per month presumably) but he chose not to pay Applicant the sum of R10,000.00 per month from December 2019 onwards or any sum at all. This of itself evidences an ability to pay in itself. 

THE DOCUMENTS ATTACHED BY RESPONDENT AND HIS ANSWERING AFFIDAVIT

[40]        To say that these were selective would be an understatement.

[41]        They also go within the allegations relevant, in an attempt, often unsuccessful to support same.

[42]        I will refer to some of the more important thereof.

[43]        Much is made of the fact that Respondent alleges that he was in fact misled by his competent legal team to sign a settlement he could not, even then (so he says), afford and is not reticent in casting blame and aspersion thereon.  He goes as far as saying he “felt under duress to sign”.   This is an absurd (not to say unsupported) allegation in respect of his own legal team. 

[44]        Significantly he says that his intention at that time was “not to have ongoing maintenance…”.  This is what he has now sought to achieve by withholding the R10,000.00 per month. 

[45]        He hides behind his allegation that he has sought a variation order in the Maintenance Court. 

[46]        What appears in this regard is that he launched a Maintenance Court matter in September 2019 which was postponed in November 2019 and set down later for March 2020.  Clearly as he did not have the result he desired in November 2019 he then unilaterally decided, in December 2019, to cease payment entirely without waiting the outcome of those proceedings.

[47]        He asks in the affidavit (with no counter application) for a variation order removing the R10,000.00 payment entirely.  

[48]        He makes unpleasant and bellicose statements about Applicant in vitriolic tones in correspondence and labels her “sly and contemptuous”. 

[49]        He encloses the business (November and December 2019) trading accounts saying these show substantial losses.  It will be noted that these disclose a “profit” of R22,595.00 in November 2019 and a loss of R10,916.00 in December 2019.  In argument when taken to the annexures relevant to the salary and wages deduction of R13,806.00 in November 2019, which became R37,339.00 in December 2019 an increase he failed to explain at all being lost for words. 

[50]        Significantly he says under oath that he made no tender of a sum against maintenance saying how was he to do so when “legal counsel” would not have acted differently “if I had made a small contribution”.   Significantly he then fails to say in this context what this contribution could have been and should have been.  This is a significant implicit admission that even on his case of “affordability” (a word he used frequently), he well knew that he could have afforded something but willingly and deliberately failed even to make payment of that lesser sum, well knowing that he could and exhibiting mala fide in failing to do so. 

[51]        He suggests effectively that he need not pay, and should not pay, as Applicant can in fact support herself and should be in employment, attributing to himself the right to decide this and quite wrongly allege that he could rely on his own view.

[52]        He carefully in his papers, and in argument, avoids saying how much he could have “afforded” to pay save arguing that a tender of R500 per month would not have been accepted.

[53]        On his own Maintenance Court application he gives his net income, after all deductions and tax, as R33,387.00 and in his income and expenditure schedule as R33,072.58.  Amongst his expenses he claims bond repayments and levy on his home of R7,854.00 per month with car deduction of R2,847.00 per month.  He spends R2,939.00 per month on life insurance (Momentum Life).  Significantly he claims DSTV at R819.00 per month; short term insurance R1,473.35 per month;  food and groceries for himself and his three sons at R6,000.00 per month; entertainment at R1,000.00 per month and to top it all a housekeeper 1 day a week, R600.00 per month. 

[54]        It is patently obvious, and this he clearly knew, that by having a less expensive vehicle, reducing his expense by not allowing the entertainment and DSTV sum and foregoing his housekeeper, he could have saved at least R2,419.00 per month.  In respect of a cheaper vehicle, he could have effected a further saving of say R1,000.00 per month and reduced insurance, say a total of at least R4,000.00 per month on his own figures.

[55]        This too was patently clear and must have been apparent to Respondent but he chose not to do so in furtherance of a deliberate decision to cease all payment of cash maintenance, and make payment of no sum at all in this respect.

[56]        Again the bank statements selectively produced are not ever in overdraft, either personal or business account.

[57]        Respondent’s immovable property referred to above is value at R875,000.00 with an outstanding bond of R521,643.78 (or lesser sum), there being therefor more than sufficient equity to comply with the Court order. 

[58]        The submissions made by Respondent, in argument, were simply more of the same.  Regrettably at paragraph 4.1 thereof he says:

“The Applicant’s legal counsel has since the beginning abused the legal process.”

[59]         This is not only unwarranted but indicative of Respondent’s attitude and I had to remind him in argument to refrain from personal insinuations about the legal team.   In his heads he accuses them of acting detrimentally to “his own client’s wellbeing…”  of using “scare tactics” and of “self interest”.  This all speaks for itself.

[60]        At no time in argument, despite being given the opportunity of doing so in dealing with why if in fact he cannot pay the full sum of R10,000.00, he did not tender a lesser sum to avoid this.  He in fact claims a shortfall monthly were he to do so of R11,559.00 but this ignores what I have already set out above. 

[61]        The business accounts are not audited accounts and are prepared with that reservation.

[62]        He tenders to Applicant finally in heads of argument that she “take ownership of the business at a consideration of R369,000”, whatever that means, and seeks against this to be released mostly from his maintenance obligation.  This even at face value is entirely wanting as any effective, relevant or reasonable tender. 

CONCLUSION

[63]        As pointed out above the Respondent bore the evidential burden in the respect set out above.

[64]        In so doing Respondent had to put up a cogent case that he genuinely held the belief that any further payment of the cash R10,000.00 component each month from December 2019 to date, he was bona fide in believing that he could make no payment at all, even if mistaken.

[65]        It is common cause that he ceased to pay deliberately but was this mala fide? 

[66]        Put otherwise did Respondent genuinely, albeit mistakenly, believe that he was entitled to act in the way he did?

[67]        Unreasonableness in the refusal to comply can in appropriate circumstance evidence lack of good faith[6].  It does so clearly in this matter as set out above.

[68]        In this matter almost from the get-go Respondent commenced complaining of his inability/reluctance to pay maintenance to Applicant.  He of course paid the full sum, complaining all the while, to November 2019.

[69]        The documents put up by Respondent do not bear out, at the very least, a total inability to pay the cash maintenance as analysed above – on the contrary they do the opposite.

[70]        Having solemnly and on the advice of a top notch legal team unreservedly entered into a carefully drafted settlement in which he undertook to pay R10,000.00 per month, and indeed paid this for a time, his complaints and assertions that his own legal team put him under duress in this regard cannot be so and as in AK v JK can only be described as self-serving.

[71]        The unpleasant messages and emails to Applicant and her attorney from early on are clearly indicative of the fact that Respondent made up his mind after the postponement of the Maintenance Court proceeding in November 2019 that he would refuse to pay any cash sum at all to Applicant.

[72]        Against his clear ability to pay at least half the amount on his own figures, and on the probabilities the entire amount, this smacks of a mala fide decision taken motivated by his animus towards Applicant often expressed in the correspondence, and the clear wish to not only teach her (and her “legal counsel”) a lesson, but force her to go to work or as he thought use the assets, he said she had, to maintain herself. 

[73]        He clearly had decided that notwithstanding his agreement to support her he did not want to do so and had set his mind against this, and claims falsely to his own knowledge, that he could not do so due to “affordability” issues.

[74]        This was patent and unilateral action to cease entirely to make payment of the R10,000.00, or any sum at all. 

[75]        Whist suggesting an alternative order in these proceedings and that this Court endorse his non-payment – he brought no counter application accordingly.  His suggestion was in any event inappropriate, unreasonable and even nonsensical and entirely avoided the real issue being that if he could not genuinely pay the full sum set out what he could in fact pay. 

[76]        He has been shown to be wilful and mala fide beyond reasonable doubt, this flowing clearly from my analysis above.  His animus and the clear ability to have paid a considerable part of the R10,000.00, if not the full sum, clearly evidence a deliberate mala fide decision, taken in November 2019 and monthly thereafter, to pay Applicant no cash sum at all.

[77]        In short he failed to take this Court into his confidence as to his full financial positon with the presentation of unaudited accounts and a failure to present the true position.  The increase of salary claims in the business in December 2019, the first month of his non-payment which he could not explain, speaks for itself in addition to all the many remaining relevant factors.  He failed to produce evidence to establish any reasonable doubt that he acted mala fide, and on all the evidence Applicant clearly discharged her onus beyond reasonable doubt.      

[78]        In the result the Respondent must be held to have acted wilfully and mala fide in contempt of the order of Court incorporating the parties’ settlement agreement of 30 April 2019.

RESULT

[79]        It flows from the authorities referred to above that this deliberate mala fide breach of the order must be visited with a sentence of imprisonment but this suspended for 2 years on condition that the arrear maintenance is paid as also the maintenance as per the Court order.  The outstanding arrears with interest to date hereof is R124,454.00.  For the benefit of Respondent I shall set a payment schedule for the arrears.  He must of course also make payment of the R10,000.00 per month sum in terms of the Court Order and agreement.

COSTS

[80]        Applicant sought and should be granted costs on an attorney and client scale in view of Respondent’s reprehensible conduct throughout these proceedings, and a punitive order is justified.

ORDER

[80]      Accordingly, it is ordered that:

1.            Respondent is directed to pay to Applicant the arrear amount of R124,454.00 in respect of his non-compliance with the maintenance order granted in this Court on 30 April 2019 under case number 342/2018 (“the order”), at the rate of R4,000.00 per month, such payment to be made by Respondent commencing on 1 December 2020, and monthly thereafter on the 1^st day of each month, until the full sum has been paid together with interest as referred to below.

2.            The aforesaid sum of R124,454.00 is to bear interest a tempore morae which is to run from 5 November 2020 until date of final payment and is to be calculated on the outstanding maintenance sum from time to time.

3.            Respondent is declared to be in contempt of the order.

4.            Respondent is committed to imprisonment for a period of 60 days.

5.            The period of imprisonment imposed on Respondent in paragraph 4 above is suspended for a period of 2 (two) years on condition that:

5.1         Respondent pays to Applicant the sum of R124,454.00 together with interest thereon in accordance with paragraphs 1 and 2 above;

5.2         Respondent complies with the order, including any amendment or variation thereof by any competent court.

6.         Respondent is directed to pay Applicant’s costs of suit on the scale as between attorney and client.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Obo Applicant:                     Adv A Beyleveld SC

Instructed by:                      Wheeldon Rushmere & Cole Attorneys, Grahamstown

Obo Respondent:                In Person

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