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
(TRANSVAAL PROVINCIAL DIVISION)
           			
						DATE: 18/5/2006
                                                                                   CASE NUMBER: 37415 / 05
UNREPORTABLE

In the matter between:

M Z                                                     			APPLICA NT

And 

T Z    	                                                  			RESPONDENT

JUDGMENT

MAVUNDLA J

1.		This is an application to have the respondent referred to jail for 	such period and conditions as this Court deems fit, due to the 	Respondent’s contempt of an order granted by this Court on the 22 	August 2003 under case number 7013/03.

2. 		As it would be expected the application is being opposed.

3. 		The Applicant and the Respondent were married to each other, 	which marriage was dissolved by this Court when a divorce order 	was granted on the 22 August 2003. Out of the marriage there are 	two children born, a girl and a boy, both are now majors. At the time 	of the divorce the youngest was still a minor and his custody was 	granted to the present applicant who was the plaintiff in that matter. 	The Respondent was the defendant and he was ordered to pay 	an amount of R1000.00 per month towards the maintenance of the 	youngest child and a further amount of R1000.00 per month 	towards the maintenance of the Applicant, the plaintiff in those 	proceedings.

4. 		It is common cause that the Respondent has to date only paid an		 amount of R1000.00 in compliance of the aforesaid maintenance 	order.

5. 		There has been various exchange of correspondence between the 	attorneys of the respective parties. I shall in due cause refer to only 	that correspondence which I consider relevant for purposes of 	this judgment. 

6.		In the matter of Sparks v Sparks 1998 (4) SA 714 at 725F-G, 	Satchwell referred to Holtz v Douglas & Associates (OFS) CC 	en Andere 1991 (2) 797 (O) at 802C it was pointed out that to 	succeed on a contempt order application the “applicant must show 	that the respondent was guilty of a willful and mala fide refusal or 	failure to comply with therewith.”

7. 		In casu the Respondent does not dispute that there is an order 	made against him. On his own admission he is not complying with 	this order. Once the above stated requisites have been proven by 	the applicant, willfulness or mala fides is inferred  since the 	Respondent is regarded as having intended the natural 	consequences of his action and the Respondents bears the 	evidential burden of rebutting this, vide  Mbenenge AJ in Uncedo 	Taxi Service Association v Mtwa 1999 (2) SA 495 at 500F as 	well as at 501C-G where he say “It seems to me that, in view of the 	criminal nature of civil contempt proceedings,  reference to “onus” 	being on the respondent to rebut the inference of willfulness and / 	or mala fides on a balance of probabilities can only serve to cloud 	the issue at hand, I have had  recourse to certain judgments of the 	Constitutional Court wherein the constitutionality of a reverse onus 	is dealt with. One of such judgments is S v Zuma and Others 1995 	(2)SA 642 (CC) 1995 (1) SACR 568; 1995 (4) BCLR491), where 	the reverse onus is dealt with in the context of constitutionality of 	presumption, but with the problem arising from suggestion that in 		contempt of court proceedings a respondent ‘bears an  onus on a 	balance of probabilities’ to disprove willfulness and mala fides in 	certain  circumstances, I have found the following dictum in the 	Canadian case of R v Oakes (1986) 26 DLR (4th) 200 at 222, 	which has been cited with approval in the Zuma case, to be 	illuminating:
 
‘If an accused bears the burden of disproving on a balance of 	probabilities an essential element of an offence, it would be 	possible for a conviction to occur despite the existence of a 	reasonable doubt. This would arise if the accused adduced 	sufficient evidence to raise a reasonable doubt as to his or her 	innocence but did not convince the jury on a balance of 	probabilities that the presumed fact was untrue.’

It would be more appropriate, therefore, so to speak of an 	evidentiary burden as resting on a respondent against whom 	committal for contempt is being sought to demonstrate his bona 	fides and the fact that disobedience of the Court order was neither 	willful nor mala fide. In S v Fouche 1974 (1) SA 96 (A) (cited with 	approval in the Maninjwa case supra ) it was held , even when it is 	said that there is an onus on the accused to rebut a so-called  	prima facie case, that it is sufficient if he produces evidence that 	creates a doubt whether culpa was present or not”

8.		I have been referred by counsel for the applicant to the well 	researched as yet unreported  judgment of my brother, Van 	Rooyen AJ in the matter of Theresa Natalie Deyzel v Gerhardus 	Johannes Deyzel Case no. 19869/ 2005 (TPD) where he 	discusses the issue of the reverse onus on the respondent in 	contempt of court proceedings, as in casu. He cites, inter alia, the 	matter of Laubscher v Laubscher 2004 (4) SA 350 (T) where De 	Vos, J said that:

“It may well be that to deprive a person of his liberty upon proof on a balance of probabilities is unconstitutional, as it may be unconstitutional to place an onus on a person faced with this possibility, but it seems to me that such limitations are reasonable and justifiable. To, my mind, it would not be unfair or  unreasonable in civil contempt proceedings to expect of an applicant who is not the State to prove as in all other civil matters, what needs to be proved on a balance of probabilities. I therefore do not agree with the approach in the Uncedo Taxi matter as set out above. To my mind, the correct approach in matters of civil contempt, where the applicant is a private person, has been described and discussed correctly in matters decided prior to the new Constitution…” 

9. 		As it was correctly pointed out in S v Beyers 1968 (3) SA 70 at 	at 80H-g that contempt court proceedings are of a dual nature, 	namely civil or criminal, the ultimate purpose in both matters is to 		punish the non-complying party of the order of the Court and to		 induce him 	to comply with such order. The raging debate, as well 	articulated by Van Rooyen AJ in the Deyzel matter is the yard 	stick to be employed in deciding whether the non-complying party 	has a 	justifiable reason not to comply with the said order. This 	problem was raised, albeit in a different context and circumstances 	in the 	matter of Mabaso v Felix 1981 (3) SA 865 (A) at 872B-C 	when the Court observed that “A discrepancy between the civil and 	criminal law in the incidence of onus may appear anomalous, more 	especially when the same elements constitute both the crime and 	delict…That fundamental principle is that, when an accused pleads 	not guilty, he raises the general issue whether or not he is guilty or 	innocent of the offence charged; the burden of proving his guilt then 	rests throughout on the prosecution; and it is not for the accused to 	prove his innocence by, for example, proving self- defence or some 	other excuse or justification, although, of course, he must raise it as 	a defence in the course of the proceedings.

English law is to that effect as the result of the Woolington and 	Mancini cases, 1935 AC 462 and 1942 AC 1. See Russell on 	Crime 11th ed at 760 and R v Lobell (1957) 1 QB 547 there cited.		Policy then is the explanation for the difference between the 	criminal and the civil law. In the anxiety that no accused should be 	punished for a crime without proof of his guilt our common law 	deliberately places the burden of proving every disputed issue, 	save insanity, on the prosecution. But in civil law, as will presently 	appear, consideration of policy, practice, and fairness inter parties 	may require that the defendant should bear the overall onus of 	averring and proving an excuse or justification for his otherwise 	wrongful conduct…” and the second reason why the onus of 	proving excuse or justification is being placed on the defendant is 	that usually “the circumstances so excusing him or justifying his 	wrong doing are peculiarly within his own knowledge” 

10. 		Van Rooyen AJ accepts that in matters of this nature, as in casu, 	are of criminal nature. He is of the view that that the applicant must 	prove beyond reasonable doubt that there is a court order that has 	been made against the respondent and that such order has not 	been complied with.  It would seem that he accepts the approach 	articulated by Mbenenge AJ that once it has been established that 	there is an order and it has not been complied with then there is an 	evidentiary onus on the respondent to rebut the prima facie case 	against him. He says that the respondent must show that there is a 	reasonable doubt that he did not abide by the order intentionally.

11.		In the present case, as early as on the 12 November 2003 the 	attorneys acting on behalf of the Respondent per letter marked 	annexure E  attached to the Applicant’s affidavit stated that;

3.1.	 Easy Software Solution is not in operation and thus does 	not have an    income;

    	  	3.2.	All our client’s policies have been cancelled;

   	 		3.3.   Our client does not have investments in the bank.

3.4.	As regards the maintenance issue, it is our client’s 	instructions that at the present our client does not earn 	income and we have to proceed to vary the order relating to 	the amount of maintenance.”

It is therefore clear that the Applicant was aware that the 	Respondent was stating that he is unable to comply with the 	Court Order because he does not earn any income.

12. 		The parties have been staying together prior to the divorce. The 	Applicant, I presume, must have been aware of the financial 	position of the Respondent during that period prior to the divorce. In 	her founding affidavit she does not place facts upon which this 	Court can conclude that the Respondent is in a position to comply 	with the Court Order.		
In her replying affidavit she attempts to refute the averment of the 	Respondent that he is not in a position to comply with the Court 	order, by stating that the Respondent is a qualified programmer and 	that he earns a suitable income. She however does not state how 	much he is earning. She does not state how much the Easy 	Software Solution CC of which the Respondent is member, was 	generating at the time she was still staying with the Respondent. 	This must be seen in the light of the fact that the parties were 	married to each other on the 28 November 1979, a period of 	almost 24 years. I would have expected her to place before this 	Court such facts, through her founding affidavit to enable the Court 	to conclude that the Respondent does not have any reason not to 	comply with the court order.  

13.		The Respondent denies that he is in willful default. He says that the 	business of which he is a member is generating no income and he 	has no investments or policies which he can use to generate 	money to pay maintenance. 

14.	 	In evaluating the question whether the evidential burden placed on 	the Respondent has been discharged I must look at the totality of 	the evidence before me. Each and every case has got to be judged 	on the bases of its own peculiar facts. As I have said that the 	Applicant has not placed before me material facts upon which I can 	conclude that, objectively speaking, the Respondent has means to 	comply with the court order and that therefore his non-compliance 	therewith is done with the requisite mens rea to be in contempt of 	the Court order.  Although I have not recapped every thing 	contained in the papers before me and merely referred to what I 	consider to be most relevant, I have taken into consideration every 	relevant fact, which is contained in the affidavits.  I have taken into 	consideration the undisputed fact that the Respondent is staying 	with the daughter of both parties upon whom he says he is 	dependant. Having regard to the totality of the facts before me, I am 	unable to reject the explanation of the Respondent as not being 	reasonably possibly true. Where there is an order to pay 	maintenance, and the respondent is of no means to comply with 	such an order, it would be wrong, in my view, to say that simply 	because the applicant has proven that there is an order and such 	an order is not being complied with, that therefore, without much 	ado from the applicant, the respondent must be deprived of his 	liberty.  Where the applicant is in a position to demonstrate that the 	respondent does have means to comply with such an order, then 	the applicant in the main application must place such facts before 	the Court, in anticipation to negate any allegation to the contrary by 	the respondent. Such facts must not be placed before the court 	through the replying affidavit, this is, and in my view important 	having regard to the serious consequences of possible deprivation 	of the liberty of the respondent in such matters. 

15.		I am unable to reject the version of the applicant when he says that 			he has no means to comply with the Court order. In other words, he 		has acquitted himself of the evidential burden resting upon him. 			The reason for this is because the Applicant has failed to put before 		me sufficient material on the bases of which , I can find that the 			Respondent does have means to meet the Court order and that 			when he says , he does not have same, he is lying.

16.		Consequently I conclude that the Applicant has failed to 				demonstrate that the Respondent is mala fides or in willful 				contempt of the order of this Court.

17.		I am therefore of the view that the application must fail and that the 			cost must follow the event as it is trite.

18.		In the premises the following order is made:	

ORDER

Order it is ordered: 
That the application is dismissed with cost.

N.M. MAVUNDLA
JUDGE OF THE HIGH COURT

HEARD ON THE:  21 APRIL 2006
DATE OF JUDGMENT: 18 MAY 2006
APPICANT`S ATT: SHAPIRO & SHAPIRO
APPLICANT`S ADV: 
DEFENDANT`S ATT: PRETORIA JUSTICE CENTRE
DEFENDANT`S ADV:M .K. STEENEKAMP