Burger v Burger (15561/13) [2013] ZAGPPHC 406 (8 November 2013)

Burger v Burger (15561/13) [2013] ZAGPPHC 406 (8 November 2013)

The court found that the respondent had the financial means to comply with the maintenance and cost orders, as demonstrated by his professional status, substantial legal fee payments, and evidence of income. His explanations for non-payment were unsatisfactory and contradicted by his ability to pay other expenses. The respondent's failure to pay was not due to genuine inability but rather a wilful and mala fide disregard of the court's orders, as he prioritized other issues and failed to pursue available remedies for variation. The respondent's conduct justified a finding of contempt, but the court considered a suspended sentence appropriate, conditional on payment of specified arrears...

Citation
[2013] ZAGPPHC 406
Parties
Applicant: Liesel Cara Burger; Respondent: Abraham Gerhardues Burger
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 November 2013
Case Number
15561/13
Procedural Posture
Contempt Application / Final Judgment
Outcome
Respondent declared in contempt of court; sentenced to four months imprisonment, wholly suspended for three years on conditions of payment.
Judges
Tlhapi V.V
Legal Topics
Maintenance Orders, Contempt of Court, Variation of Orders, Arrear Maintenance
Family and Children Civil Procedure Maintenance Orders Contempt of Court Variation of Orders Arrear Maintenance

Case Brief

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Parties

Liesel Cara Burger

Applicant

Abraham Gerhardues Burger

Respondent

Procedural Posture

Contempt Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent's failure to comply with maintenance and related orders was wilful and mala fide.
  2. 2 Whether the respondent should be declared in contempt of court and sentenced accordingly.
  3. 3 Whether the respondent's financial circumstances justified non-compliance with the orders.

Ratio Decidendi

The court found that the respondent had the financial means to comply with the maintenance and cost orders, as demonstrated by his professional status, substantial legal fee payments, and evidence of income. His explanations for non-payment were unsatisfactory and contradicted by his ability to pay other expenses. The respondent's failure to pay was not due to genuine inability but rather a wilful and mala fide disregard of the court's orders, as he prioritized other issues and failed to pursue available remedies for variation. The respondent's conduct justified a finding of contempt, but the court considered a suspended sentence appropriate, conditional on payment of specified arrears...

Court Disposition

Respondent declared in contempt of court; sentenced to four months imprisonment, wholly suspended for three years on conditions of payment.

Orders

  • The respondent is declared to be in contempt of the orders of this court handed down on 30 July 2010, 23 August 2010, and 31 July 2012.
  • The respondent is sentenced to four months imprisonment, wholly suspended for three years, on condition that he pays the fees due to Ms Fourie in the amount of R1796.00 on or before 30 November 2013.