IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No:    15818/2009

In the matter between:

and

JUDGMENT DELIVERED ON 24 MARCH 2010

ALLIE, J

[1] On 6 August 2009, applicant brought an urgent application to set aside a warrant of execution against movable property and attachments made in accordance with the warrant.

[2] On 10 September 2009, the first respondent filed a counter application seeking a variation of the order of divorce by removing joint decisions about the nature and extent of remedial assistance and extra tuition required and about the participation of their children in extra-mural activities. First respondent also seeks the removal of joint decisions and the substitution of her as the sole decision maker on issues concerning the appointment of a remedial tutor and the counselling of the children with regard to their future use of Ritalin. Finally first respondent seeks the removal of applicant's liability to pay education related expenses and medical costs and the substitution for that liability with a globular maintenance payment by applicant of R8 000 per month per child plus R1 300 per month per child for school fees and R250 per month per child in respect of prescription medication.

[3] On 30 October 2009, the application was postponed by agreement for the hearing of oral evidence on certain defined issues.

[4] In the counter application, the first respondent seeks an order declaring applicant to be in contempt of the court order dated 5 December 2008 in terms of which applicant had the obligation to pay education and medical costs. First respondent prays for an appropriate sanction for the alleged contempt.

[5] It is common cause that the three younger sons of the parties have been diagnosed with Attention Deficit Hyperactive Disorder (ADHD) and require ongoing treatment as well as remedial education.

[7]     First respondent now lives on a farm with her partner and her four sons.

[8] First respondent sells designer clothing on a small scale and owns the former common home from which she derives a modest rent.

[9] Applicant is a qualified architect who scaled down his large architectural practice in Johannesburg which he operated from his own building to the small practice he now conducts from his home in Stellenbosch.

[10] Applicant admitted that by the time the warrant was issued and the attachments made, he was in arrear with the payment of school fees and had failed to pay the fees of the children's paediatrician, Doctor Van der Walt.

[11] Applicant denies that he was obliged to pay the following amounts allegedly forming part of the maintenance which first respondent alleges were in arrear and for which she had the warrant authorised.
11.1 Remedial tutors because first respondent appointed different ones to those that he chose.
11.2 The pole vaulting tutor's fees because they orally agreed to each pay half.
11.3 School clothes for 2009 because he purchased sufficient at the end of 2008.
11.4 The repair of a computer because there are other computers available.
11.5 School stationery as he already paid for stationery in January 2009.
11.6 Soccer coach fees as it is a sport in addition to what is offered at the school.
11.7 For the cost of a locker as he considered it to be an additional expense.
11.8 Dentistry fees because he believed it was unnecessary for the children to visit a dentist.
11.9 The applicant indicated that he does not wish to pay for the prescribed medication for ADHD if the children are not using it regularly and he alleged that he became aware that they were not using it as prescribed.
11.10 Samuel's bicycle and related equipment as he chose to purchase an expensive bike from his spending money.
11.11 The cost of travel of the children from Johannesburg to Port Elizabeth during part of a school holiday because he alleged that the respondent had to pay.
11.12 The cost of vitamins and supplements which he believes is unnecessary.
11.13 The cost of a life coach about which he claims to have no knowledge.
11.14 The cost of sporting equipment which he said he could not afford.

[12] Applicant also argued that he could not afford the cost of the items mentioned above and he did not receive proof of the expenses incurred. On behalf of the first respondent, it was argued that applicant did not raise the issue of requiring proof previously.

[13] Applicant was not initially forthcoming with the documents required by first respondent to prove his alleged substantial decline in income since the beginning of 2009. After a court order compelling applicant to make certain documents available for inspection, applicant provided some and alleged others were with his accountant.

[14] On a perusal of the bank statement and invoices presented by applicant, it emerged that in December 2008 shortly after the applicant agreed to the variation of the final order of divorce, he made huge withdrawals and payments. He argued that the money was used, primarily to pay his arrear accounts but it was pointed out that he dined extravagantly, purchased expensive Christmas gifts and incurred holiday expenses then.

[15] On 26 January 2009, applicant wrote to the first respondent saying that he would like her understanding and assistance with the amount of maintenance payments that he will have to pay. He stated that the economic recession placed his financial position under pressure.

[16] First respondent answered the letter by saying that they should each honour their obligations and not discuss the financial situation with their sons.

[18] In his evidence -in -chief, Mr Pellissier attempted to show that he did not receive substantial work requiring his architectural expertise during 2009 and so he decided to take on project management work where he could charge a fee for managing building work based on the total value of the work.

[19] He commenced managing the project of his neighbour, Mrs Du Preez. He alleged that he initially allowed Mrs Du Preez to pay the money required for the building work into his bank account from which he would make payments for labour and material. He later opened sub-accounts on the internet which he used for project purposes. He agreed that this method of operating caused him to incur huge amounts of bank fees and that it made it very difficult for his accountant to extract which payments were for his fees earned and which were disbursements for the project.

[20] Mr Pellissier also testified that he tried to earn extra income by moving his wife, her daughter and himself into a flat on his property and by renting his main house out to someone who later vacated his home.

[21] He sketched a situation where his income was irregular and unpredictable as well as considerably lower than previously.

[22]   He admitted that his cash flow was good in December 2008.
[23] He admitted that on 5 December 2008 he had dinner at a smart restaurant in Franschoek at a cost of approximately R800 and that he spent considerable amounts on Christmas gifts. He also paid for airline tickets on 12 August 2008.

[24] He pointed out that he entered into a fee-sharing arrangement with another firm of architects to work on the construction of a medical centre. He said that the firm had already commenced the project when he joined and had already received certain payments. He then gave testimony which clearly did not accord with the probabilities, namely that the representative of the client who wished to construct the medical centre had already paid out R217,690,00 without signing any written agreement.

[25] He also asked his parents in May 2009 to assist in paying the school fees. He admitted during cross examination that there were already signs of the economic recession in the decline in new work that he received by December 2008 but he could not explain why he agreed to the variation of the divorce order whereby he assumed liability for certain payments.

[26] Mr Pellissier produced a summary of his financial position reflected in exhibit "C" which shows that over the period January 2009 to January 2010 he earned an irregular income. During cross examination when he was presented with an analysis of the financial movement in his bank accounts, he admitted, that in January 2009, for example, he earned R23,196.68.   He could not remember where a deposit of R10,000.00 came from on 18 August 2008 when asked about it during cross examination.

[27] In his evidence-in-chief, he said that his aunt, Therese Drostde lent him some money. During cross examination he admitted that he also did some work for his aunt.

[28] He agreed largely with the analyses of the financial movement in his bank accounts that were put to him during cross examination. Those analyses reveal an average monthly income of R58,000.00 for applicant.

[29]   Respondent closed her case without leading any evidence.

[30] On behalf of the respondent it was submitted that the amount due and owing to her under the warrant of execution stands to be reduced by the sum of R24,100.00, being the amount paid by applicant subsequent to the issue of the writ and before the hearing of oral evidence.

[31] Applicant admitted that certain amounts are due and owing under the writ such as the doctor's account, the dentist's account and certain stationery expenses.

"In terms of the aforesaid order, defendant is obliged to pay the education costs (Clause 1.20.1) and the medical costs (Clause 1.20.3) in relation to the children"

[39] In her schedule annexed to the affidavit, first respondent includes as part of the amounts she allege that applicant is liable for, an amount of R2.400.00 for vitamins and supplements. This item is singled out because it is a clear example of why particularity is required when amounts are claimed as expenses forming part of a party's maintenance obligation. The Registrar of this court, could clearly not establish from the affidavit and accompanying schedule whether the vitamins and minerals, for example, constitute a reasonable medical expense as contemplated by paragraph 1.20.3 of the court order.

[40] The authorities cited above clearly contemplate sufficient particularity in the form of invoices so that the party against whom the writ is authorised cannot claim prejudice.

[41] In this case, the applicant justifiably claims prejudice, in as much as, he has not received invoices for most of the items making up the sum claimed as due and payable. First respondent has also not shown in the affidavit that the amounts claimed in addition to prescribed medicines, doctor's fees and school fees are reasonable.

[42] Turning to the issue of whether the first respondent could claim the payment of school fees for which she was not liable to the schools and for which applicant assumed liability.

[44] The schools to which applicant assumed liability for the fees of their children were clearly not demanding payment from first respondent.

[49] I am accordingly of the view that the writ has been justified in respect of the R700 contribution that application was obliged to pay towards the fees of doctor Van der Walt in terms of paragraph 3 of the order of court and may have been justified in respect of other amounts claimed excluding school fees provided that invoices for the expenses were attached to the affidavit requesting the issue of the writ.

[50] The applicant has not explained why his failure to comply with the court order of 5 December 2008 was not wilful. If anything, he considers himself entitled to unilaterally suspend compliance with the order when he believes he cannot afford the payments or he believes the expenses claimed are unreasonable.

[53] Accordingly, paragraph 1.12 of the court order of 5 December 2008 should be varied by substituting the words "the plaintiff' for the words "the parties".

[54] Paragraph 1.16 deals with Jean Pierre's need to consult with and be assessed by doctor Van der Walt. Jean Pierre has already had the assessment and there appears to be no difficulty with the children diagnosed with attention deficit disorder being treated by doctor Van der Walt. This paragraph should therefore remain unchanged.

[56] I am not persuaded that the applicant's refusal to pay the amounts claimed were not foreshadowed by an intransigent stance adopted by the first respondent as evidenced by correspondence between the parties' respective legal representatives. Applicant's request that first respondent should explain the amounts claimed by using the words "verduidelik asseblief are not unreasonable. First respondent's responses are the short, cryptic notes contained in annexure "EP2" to the affidavit accompanying the writ. First respondent's responses are loaded with emotive language. I cannot conclude as first respondent's counsel urged me to, that unless a globular maintenance amount is paid by applicant, the problem of arrear payments will recur.

[57] Although applicant has been less then forthcoming to this court about his true income and financial position, his evidence that the economic recession has caused a decline in the building industry and accordingly a decline in his field of work rings true. That decline may well not be to the extent that he claims but the reduction in globular maintenance originally claimed by first respondent in her counter-application from R15 000,00 per month per child to R8 000.00 per month per child is a recognition of a decline in the financial position of applicant.

[58] As the global recession dissipates, applicant should be able to improve his financial position.

[59] He no longer has very young children for who he has to make the sacrifice of reducing his architectural practice so that he can spend more time with them. He has to balance that need with their need to be properly maintained in the standard of living that they are accustomed to.

It is ordered that:

1. The writ was justifiably issued in the amount of R1700,00 only and is set aside for all amounts exceeding R1700,00.

2.1 The Applicant is accordingly sentenced as follows for such contempt: To a term of 3 months imprisonment suspended for 1 year on condition that applicant is not found in contempt of a court order regulating his children's maintenance obligations during the period of suspension.

3.1	"The plaintiff shall appoint a remedial tutor, who shall be at least a third year education student from Stellenbosch University to assist the children with revision and home work everyday after school. In the event that the tutor becomes unavailable or resigns, the plaintiff shall appoint a similarly qualified replacement;
3.2	The defendant shall pay the costs of the tutor."

ALLIE, J