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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable:YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO 

Case no: 4911/2020

In the matter between:

DESIRÉ GILLAN                                                                                              Applicant

and

STANLEY VICTOR GILLAN                                                                          Respondent

CORAM:                                            I VAN RHYN, AJ

HEARD ON:                                     22 JULY 2021

DELIVERED:                                    30 AUGUST 2021

            INTRODUCTION.

[1]        The application concerns an order holding the respondent to be in contempt of court arising out of his alleged failure to comply with the order granted in Rule 43 proceedings on 4 February 2021 and to be committed to goal for a period of 90 days or such period and conditions as the court may deem fit and a further order for the suspension of the term of imprisonment on the condition that the respondent comply with the court order.

[2]       The parties were married to each other on the 19^th March 2016. At the time an ante-nuptial contract was prepared in terms whereof the parties were to be married out of community of property with exclusion of the accrual system.  The ante-nuptial contract was not registered with the Registrar of Deeds thereby making the provisions of the ante-nuptial contract binding between the parties but not on any third parties. During 2020 the respondent issued summons for a decree of divorce under case number 4642/2020.

[3]        On 4 February 2021 the applicant (the defendant in the main action) obtained an order in terms of the provision of Rule 43 of the Rules of Court (“Rule 43 application”) in terms whereof the respondent was ordered to:

(1)       Pay maintenance, pendente lite to the applicant in the amount of R8 000.00.

(2)       Pay a contribution towards the applicant’s legal costs in the amount of R5 000.00 payable in monthly instalments of R1 000.00.

(3)       All payments referred to above were to commence on or before the 15^th of February 2021 and thereafter to be made on or before the 7^th of each consecutive month.

[4]        The respondent failed to comply with the order granted in terms of the Rule 43 proceedings in that he failed to make any payments since the order was granted. The total amount outstanding during March 2021 amounted to R18 000.00. This amount has since escalated to more than R50 000.00.

            THE APPLICABLE LEGAL PRINCIPLES.

[5]     All orders of court, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside[1]. The object of the proceedings for the breech of an order of court is the imposition of a penalty with the intent to vindicate the court’s honour as well as a remedial or coercive effect.[2] In Fakie NO v CCII Systems (Pty)[3] Ltd Cameron JA stated as follows:

“It is a crime unlawfully and intentionally to disobey a Court order. This type of contempt of Court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the Court. The offence has, in general terms, received a Constitutional ‘stamp of approval’, since the rule of law – a founding value of the Constitution – ‘requires that the dignity and authority of the Courts, as well as their capacity to carry out their functions, should always be maintained.”[4]

[6]     Although an unlawful and intentional non-compliance with an order of court in a civil matter is a criminal offence, the procedure whereby an applicant can persuade the non-complier to adhere to the order has become known as the procedure for civil contempt.[5] The test whether disobedience of the order constitutes contempt is whether the breach was committed ‘deliberately and mala fide’.[6]  An application for an order of committal must show[7]:

 (a)         That an order was granted against the respondent;

(b)       The order must have been duly served on, or brought to the notice of the respondent;

(c)        There must have been non-compliance with the order; and

(d)       The non-compliance must have been wilful and mala fide.

[7]     The court will not grant an application for committal if no wilful or mala fide disregard of the order has been proved.  In Pheko and others v Ekurhuleni City^[8]  the current status of our law regarding contempt of court orders were explained. The Constitutional Court confirmed the decision by the Supreme Court of Appeal, per Cameron JA in Fakie, and held that the standard to be applied to grant the sanction of committal in civil proceedings should be beyond reasonable doubt. Where committal is the sanction, the importation of protections is mandated by the Constitution.^[9]

[8]        However, once an applicant has established the first three of the requirements for contempt, 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.^[10]

            THE RELEVANT FACTS.

[9]        The applicant and respondent have been married for five (5) years and a few months. No children were born from their marriage. The respondent was employed as an auto electrician at a business known as Stan’s Auto Electrical & Aircon and Mechanical (Pty) Ltd (the “Company”) of which the applicant is the director and sole shareholder. The respondent resigned on 21 September 2020 and commenced with a similar business with the help of his assistant, Moses. From the contents of the affidavits filed in the Rule 43 application it is evident that the respondent earned a monthly income of R35 000.00 varying up to R59 000 per month. A substantial amount of his income was spent on paying for motor vehicle parts. These expenditures fluctuated between R14 000 and R37 000.00 per month. His other expenditures were, inter alia, the following:  rent for his workshop in the amount of R 9 000.00, Moses’s salary in the amount of R 5 000.00 and maintenance for his child from a previous marriage in the amount of R 3 900.00. After subtracting his expenses, the respondent was left with a deficit of between R2000.00 and R 7 000.00 each month.

[10]     The respondent appended copies of his bank statement held at Capitec Bank for the period from 14 September 2020 to 5 December 2020 to his opposing affidavit in the Rule 43 application. From perusing the bank statements, it is evident that the respondent received several deposits ranging between R 6 000.00 to R 350.00 and made several payments to suppliers of motor parts i.e., Goldco Motor & Cycle S Bloemfontein, Imperial Isuzu, Delta Service Station during this period. The respondent explained that quite a few of his clients made direct payments to his bank account but that he also received cash payments for smaller “jobs”. He, at times, also utilised the cash received to pay for parts. However, since the beginning of the Covid-19 pandemic he has received substantially fewer work opportunities and expressed reservations concerning the potential closure of his business, if his business continued in a further downward spiral. His affidavit was attested to on 22 December 2020.

[11]     The applicant itemized her monthly expenses in her affidavit filed in the Rule 43 application.  Her accommodation in a flat amount to R 3 800.00 per month. Her further expenses for: water and electricity, food, clothing, personal expenditures, vehicle instalment, fuel, chronic medication and doctor’s fees and an amount of R 500.00 for unforeseen expenses, adds up to a total amount of  R19 050.00 per month. The applicant is unemployed and no further information was made available regarding her personal circumstances. It appears as if the applicant’s Company has been left with severe financial difficulties and an indebtedness of approximately R221 000.00.  The reason for the protracted divorce case, seems to be focussed on accusations by both parties concerning the financial responsibilities in respect of the Company’s dire financial situation.

[12]     The respondent blamed the applicant of turning down several possible employment opportunities and rather rely on maintenance from the respondent.  In the respondent’s particulars of claim he tendered payment in the amount of R 6 000.00 per month in respect of maintenance towards the applicant and repeated the tendered amount in his opposition to the claims in the Rule 43 application. He furthermore stated that he is not in a position to pay any contribution towards her costs.

[13]     Due to the respondent’s failure to adhere to the order granted in the Rule 43 proceedings, the applicant proceeded to issue a Writ of Execution in order to recover the arrear maintenance from the respondent. The applicant is not aware of the existence of any assets which can be attached and abandoned further enforcement of the Writ of Execution. The unsuccessful attempt to recover the arrear maintenance led to the present application for contempt of court.

[14]     The respondent’s response to the application for contempt is an acknowledgement of the failure to comply with the order granted on 4 February 2021, but his reason for failure to adhere to the court order consists of a lack of means due to the impact of the Covid-19 pandemic on the economy and his business.  His financial situation has dramatically deteriorated during the period since February 2021, to such an extent that he has fallen in arrears with his rental for accommodation and maintenance in respect of a minor child from a previous marriage.

[15]     On 11 February 2021, a mere 7 days after the order was granted in the Rule 43 proceedings, the respondent’s attorneys addressed a letter to the applicant’s attorneys pointing out that the respondent does not have the financial means to pay the amount of R8 000.00 on or before 15 February 2021. The attorney for the respondent stated that their client indicated that he had received an employment offer which he was seriously considering due to the fact that his business is no longer viable. The prospect of applying for an order in terms of the provisions of Rule 43(6) to vary the existing order was under consideration at the time.

[16]     The respondent did in fact accept the employment offer and confirmed same in his opposition to the contempt of court application. A letter from his current employer, Hyper Cars situated at Monument Road, Bloemfontein, confirming that the respondent has been in their employment since 1 April 2021 is appended to his opposing affidavit. The respondent’s monthly salary in the amount of R10 000.00 is confirmed. According to the respondent most of the equipment that he used since he commenced with his own business, belonged to the Company of the applicant.  The Company was in arrears in respect of instalments on the equipment which resulted in most of the equipment being attached by different suppliers and creditors, which furthermore resulted in the close down of his business.  The respondent has to pay rent for his accommodation in Watkey Street, and maintenance in respect of his minor child as well as other essential living expenses. Apparently, he could also no longer afford payment of his assistant, Moses’s salary.

            EVALUATION OF THE EVIDENCE.

[17]     The application was enrolled for hearing on 22 July 2021. On the 12^th of July 2021 the attorney of record for the respondent filed a notice of withdrawal. The respondent appeared in person and reiterated that he receives a monthly income of R10 000.00 and is simply not in a position to make any payments in respect of maintenance or a contribution towards costs as ordered by the court. He furthermore indicated that the reason for the withdrawal of his former attorney was due to a lack of funds to proceed with an application in terms of the provisions of Rule 43(6) and to appear at the hearing of this application. The respondent applied for legal aid to continue with the opposition of the present application but due to his monthly income amounting to R10 000.00, he was disqualified.

[18]     It is common cause that the applicant’s Company, where both of the parties were employed during their marriage, developed serious financial difficulties. The applicant has not obtained other employment and remains reliant on the respondent for maintenance.  The applicant argues that the respondent failed to append further bank statements or any form of proof that he does not receive cash or other payments for work done in his spare time.  It is therefore contended that the respondent’s failure to adhere to the court order is indicative of his disregard to his legal duty towards the applicant and should not be indulged.

[19]     During arguments, and subsequent to an explanation by the court of the possible consequences for his disregard of the court order, the respondent indicated that he might be able to borrow money to make a payment to the applicant. The matter stood down to enable the respondent to approach his employer for a loan. When the matter was called after the lunch break, the respondent informed me that he was able to obtain a loan from his current employer in the amount of R5 000.00. His employer made an electronic fund transfer (“EFT”) to the applicant’s attorney’s trust account. This was confirmed by the applicant’s attorney.

[20]     The evidence before me however, does not establish that the failure of the respondent to comply with the order granted on 4 February 2021 was done with a deliberate disregard of the court order.  It is significant that the correspondence addressed by respondent’s attorney to the applicant’s attorney, in February, foreshadowed the fact that the respondent may find himself in circumstances where he is no longer able to continue with his business and that he will not be able to comply with the court order. Even though the respondent tendered payment of an amount of R 6 000.00 per month as maintenance pendente lite, the possibility that he may not always be able to comply with his commitments was stated by the respondent’s former attorney. From the bank statements appended to the respondent’s opposing affidavit filed in respect of the Rule 43 application it is evident that his expenses in relation to accommodation (R 3 500.00), maintenance to his minor child (R 3 900.00), food, personal and travel expenses (R 4 000.00) exceed his current monthly salary in the amount of R 10 000.00.

[21]     The respondent now works full time for his current employer. He is not able to spend as much time with his own business after hours and is not able to pay for his former assistant. He lost most of his equipment and is simply not able to generate the income in his spare time to comply with the court order. The evidence before me does not establish, beyond a reasonable doubt, that the applicant is guilty of contempt.  The parties are involved in an acrimonious divorce which involves the applicant’s Company. The applicant’s contention regarding the potential income of the respondent when they worked together is insufficient to conclude that the respondent is deliberately and mala fide defying a court order. The fact that the respondent anticipated an application to vary the order granted on 4 February 2021 is indicative of an attitude that is anything but contemptuous.  On the contrary, it reflects an appreciation by the respondent that the order must be complied with and that court sanction would be required for a variation of the obligation. The fact that the respondent appeared in court without legal assistance to oppose the application for contempt, is a further indication of his concern for the matter and respect towards the court.  On the basis of what I have set out above it follows that the application for contempt must fail.

COSTS OF THE APPLICATION.

[22]     I turn now to deal with the question of an appropriate cost order to be made.  Costs, it is trite, are within the discretion of the court.  In exercising that discretion, a court takes into account the circumstances of the matter, the issues adjudicated and the results of such adjudication, the conduct of the parties and what would be fair and just between the parties. In these circumstances I consider that it would be appropriate for each party to pay their own costs.

[23]     In the result I make the following orders:

1.    The application for committal of the respondent for contempt of court is dismissed.

2.    Each party is to pay his or her own costs.

I VAN RHYN, AJ

On behalf of the Applicant:             Mr L H W CATO

Instructed by:                                    McIntyre van der Post Attorneys

                                                            Bloemfontein

On behalf of the Respondent:        Mr S V Gillan (in person)

                                                       (svgillan@gmail.com)

(Formerly represented by Bokwa Attorneys).

[1] Van Wyk v Tredoux NO [2001] 3 All SA 565 (O) at 571-572.

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