J v J (67591/13) [2019] ZAGPPHC 434 (20 September 2019)

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

(GAUTENG DIVISION, PRETORIA)

Case Number: 67591/13

In the matter between:

K[….] J[….]

Applicant

and

O[….] A[….] J[….] Respondent

JUDGMENT

POTTERILL J

The common cause facts as background

[1] Acromonious litigation between the applicant and respondent has taken place from before the divorce and pursuant to the divorce that was granted on 17 March 2016. For ease of reference I throughout refer to the applicant and respondent as the applicant and respondent before me.

[2] On 15 May 2015 Kollapen J made a maintenance order pendente lite. On 24 May 2018 Opperman AJ was asked to declare whether that Rule 43 maintenance order was to be fulfilled by the respondent despite the decree of divorce.

[3] Opperman AJ on 24 May 2018 declared that the maintenance obligation was in full force and effect.

[4] On 9 July 2018 the respondent obtained leave to appeal against the Opperman AJ order and simultaneously the applicant was granted relief in terms of section 18(1) of the Superior Court Act 10 of 2013 (“the Act”).

The respondent was granted leave to appeal the main order of Opperman J dated 24 May 2019. On 9 July 2018 that appeal has lapsed.

[5] On 10 December 2018 the respondent exercised his automatic right of appeal as contemplated in section 18(3). The Full Court found in the applicant’s favour and upheld Opperman AJ’s order.

[6] On 14 December 2018 the respondent was on an urgent basis declared to be in contempt of court. On 19 February 2019 a reconsideration order of this contempt of court order was given in favour of the respondent. It is however relevant to note that this order was granted before the Supreme Court of Appeal twice upheld the orders of Opperman J by refusing leave to appeal.

[7] The decision of the Full Court was petitioned to the Supreme Court of Appeal and on petition the leave to appeal was denied on 10 April 2019. The respondent then referred the matter to the President of the Supreme Court of Appeal in terms of section 17(2) of the Act. This reconsideration order was denied by the President of the Supreme Court of Appeal.

[8] On 11 September 2019 Holland-Muter AJ made the following order on an urgent basis:

“It is ordered that

Part A

1. The respondent is contempt of the court orders dated 15 May 2015, 24 May 2018 and 10 December 2018.

2. The respondent to immediately comply with the payment in full of his obligations as set out in the order of 15 May 2018 which payment shall include all amounts due and owing as from April 2018 to date.”

[9] The respondent has not paid any maintenance and the applicant has thus launched this application which reads as follows:

“1. That this matter be heard as a matter of urgency and that the non-compliance with the Uniform Rules of Court be condoned as contemplated in Rule 6(12)(a);

2. That the Respondent be and is hereby interdicted and restrained from pursuing and/or instituting and/or prosecuting any appeal in respect of the order handed down by Holland-Muter AJ dated 11 September 2019 as well as this application prior to purging his contempt as ordered by Holland-Muter AJ in relation to the R43 order handed down by Kollapen J on 15 May 2015 by making payment of the full arrears amounting to R690 329.37 with interest a tempore morae calculated from end of April 2018;

3. That in the event of the Respondent’s failure to purge his contempt within 24 hours and order will be granted in terms of part B of the Contempt Application on 11 September 2019.”

[10] On behalf of the respondent it was argued that the second prayer is incompetent. No court can refuse a party his right of appeal and it would infringe on the respondent’s constitutional rights of access to courts and his right to appeal.

[11] This argument is bad in law. The respondent is appealing both the orders of Holland-Muter AJ. In the second order Holland-Muter AJ confirmed the respondent’s obligations to pay the maintenance as set out in the orders of 15 May 2018.

[12] Section 16(3) of the Act reads as follows:

“Notwithstanding any other law, no appeal lies from any judgment or order in proceedings connected with an application –

(a) by one spouse against the other for maintenance pendente lite;

(b) for contribution towards the costs of a pending matrimonial action;

(c) for the interim custody of a child when a matrimonial action between his or her parents is pending or is about to be instituted; or

(d) by one parent against the other for the interim access to a child when matrimonial action between the parents is pending or about to be instituted.”

[13] This court would thus not be taking away the applicant’s right to appeal this portion of the order granted by Holland-Muter AJ, but the Act itself. In S v S and Another [2019] ZACC 22 the Constitutional Court found on 27 June 2019 that this section does not infringe on the respondent’s right to access to court or his equality before the law.[1] This court in granting prayer 2 as requested would thus in fact be enforcing section 16(3) of the Act.

[14] It was also argued that the order for maintenance is a contractual one and not by operation of law. In the premises the respondent is a judgment debtor. The Constitutional Court has held that it is unconstitutional to imprison a person for a civil debt or as in casu, an undertaking to pay.

[15] The maintenance order was made in terms of Rule 43. The crux of the matter before Opperman J was whether the Rule 43 order had survived the decree of divorce or whether it was extinguished thereby.[2] The maintenance thus flows from the Rule 43. But, in any event, Rule 16(3) reads:

“Notwithstanding any other law, no appeal lies from any judgment or order in proceedings connected with an application …”

Even if the maintenance flows from this undertaking then the Rule 16(3) is a bar to him lodging an appeal because it clearly is “in connection” with a Rule 43 order.

[16] The last argument raised on behalf of the respondent was that the application for leave to appeal against the finding of contempt is still pending and there is accordingly no effective contempt on the part of the respondent.

[17] This argument is to be rejected. In SS v VVS [2018] ZACC 5 at paragraph [31] the Constitutional Court found as follows:

“In Burchell[3], the High Court, upon finding that a party was in contempt of an order of court, ordered as part of the relief it granted that, unless the offending party purged his contempt, he faced the risk of being precluded from continuing with any litigation in the High Court Such a sanction, which may at

first sight appear to run counter to the right of access to courts enshrined in section 34 of the Constitution, is in my view wholly appropriate in circumstances when one is dealing with conduct that may be described as contemptuous of the authority of the order issued by a court. It can only be described as unconscionable when a party seeks to invoke the authority and protection of this Court to assert and protect a right it has, but in the same breath is contemptuous of that very same authority in the manner in which it fails and refused to honour and comply with the obligations issued in terms of a court order. The High Court, in Di Bona,[4] supports the view that a court may refuse to hear a party until they have purged themselves of the contempt by coming to the following

conclusion:

‘The consequences of the rule are that anyone who disobeys an order of [c]ourt is in contempt of [c]ourt and may be punished by arrest of his person and by committal to prison and, secondly, that no application to the [c]ourt by a person in contempt will be entertained until her or she has purged the contempt’”

[18] This court is aware that the respondent is an attorney and an officer of the Court which in fact amplifies the impediment to justice:

“… I am of opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impeded the course of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.” (my own emphasis added)[5]

[19] The respondent’s excuse that he is relying on legal advice is untenable; in HEG Consulting Enterprises (Pty) Ltd and Others v Siegwart and Others 2000 (1) SA 507 (C) at 521 the court found that where the party in breach of the order is himself an experienced attorney it would not be sufficient to simply rely on the advice of his legal representative. If the respondent should accept the legal advice he would then foresee the possibility of the consequence and have reconciled himself to same.

[20] The court found in Bannatyne v Bannatyne [2002] ZACC 31; 2003 (2) SA 363 (CC) at par [18] as follows:

“Although many judgments cannot ordinarily be enforced by contempt proceedings, it is well-established that maintenance orders are in a special category in which such relief is competent.”

At par [20] the Court states:

“Contempt of Court proceedings are a recognised method of putting pressure on a maintenance defaulter to comply with his/her obligation.”

[21] The applicant seeks an attorney client costs order. No argument was made to the contrary on behalf of the respondent. All the previous orders were granted on attorney client scale. This court will also mark its disapproval of the conduct of the respondent.

[22] I accordingly make the following order:

1. It is ordered that this matter be heard as a matter of urgency and that the non-compliance with the Uniform Rules of Court be condoned as contemplated in Rule 6(12)(a);

2. It is ordered that the Respondent be and is hereby interdicted and restrained from pursuing and/or instituting and/or prosecuting any appeal in respect of the order handed down by Holland-Muter AJ dated 11 September 2019 as well as this application prior to purging his contempt as ordered by Holland-Muter AJ in relation to the R43 order handed down by Kollapen J on 15 May 2015 by making payment of the full arrears amounting to R690 329.37 with interest a tempore morae calculated from end of April 2018;

3. That in the event of the Respondent’s failure to purge his contempt within 24 hours an order will be granted in terms of part B of the Contempt Application on 11 September 2019.

4. The respondent is to carry the costs on an attorney client scale.

S. POTTERILL

JUDGE OF THE HIGH COURT

CASE NO: 67591/2013

HEARD ON: 20 September 2019

FOR THE APPLICANT: ADV. E.C. LABUSCHAGNE SC

ADV. S. STADLER

INSTRUCTED BY: Adams and Adams Attorneys

FOR THE RESPONDENT: ADV. T.P. KRÜGER SC

ADV. A. GRANOVA

INSTRUCTED BY: Brendan Weldrick Attorneys

DATE OF JUDGMENT: 20 September 2019

[1] S v S supra paragraphs [48] and ?

[2] Paragraph [13] of the Full Court judgment

[3] Reference to Burchell v Burchell 2006 JOL 16722 (E)

[4] Reference Di Bona v Di Bona 1993 (2) SA 682 (C) at 688F-G

[5] Byliefeldt v Redpath 1982 (1) SA 702 (AD)