M and Another v D (41339/2018) [2022] ZAGPJHC 705 (19 September 2022)

M and Another v D (41339/2018) [2022] ZAGPJHC 705 (19 September 2022)

The court found that the respondent was in contempt of the court order dated 13 June 1997, specifically clause 4.2 of the settlement agreement, which required the creation of a Trust for the benefit of the minor children and the transfer of the property into the Trust. The respondent's arguments regarding impossibility of performance and lack of funds were rejected, as there were no legal impediments to compliance and the costs of creating a Trust were minimal. The respondent failed to approach the court for variation or setting aside of the order and acted wilfully and mala fide in not complying. The respondent's conduct undermined the authority of the court and the rule of law,...

Citation
[2022] ZAGPJHC 705
Parties
Applicant: M [....], C [....] 1 J [....]; Applicant: D [....] 1, N [....]; Respondent: D [....] 2, L [....] A [....]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 September 2022
Case Number
41339/2018
Procedural Posture
Contempt Application / Final Judgment
Outcome
The respondent is declared to be in contempt of the court order dated 13 June 1997 and is ordered to comply with clause 4.2 of the settlement agreement by creating a Trust and transferring the property into the Trust for the benefit of the intended beneficiaries. The respondent is liable for costs on the attorney...
Judges
Mudau
Legal Topics
Contempt of Court, Settlement Agreement, Trust Creation, Divorce Order Enforcement
Civil Procedure Family and Children Contempt of Court Settlement Agreement Trust Creation Divorce Order Enforcement

Case Brief

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Parties

M [....], C [....] 1 J [....]

Applicant

D [....] 1, N [....]

Applicant

D [....] 2, L [....] A [....]

Respondent

Procedural Posture

Contempt Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent is in contempt of the court order dated 13 June 1997, specifically clause 4.2 of the settlement agreement.
  2. 2 Whether the respondent was obliged to create a Trust for the benefit of the minor children and transfer the property into the Trust.
  3. 3 Whether the respondent's non-compliance was wilful and mala fide.

Ratio Decidendi

The court found that the respondent was in contempt of the court order dated 13 June 1997, specifically clause 4.2 of the settlement agreement, which required the creation of a Trust for the benefit of the minor children and the transfer of the property into the Trust. The respondent's arguments regarding impossibility of performance and lack of funds were rejected, as there were no legal impediments to compliance and the costs of creating a Trust were minimal. The respondent failed to approach the court for variation or setting aside of the order and acted wilfully and mala fide in not complying. The respondent's conduct undermined the authority of the court and the rule of law,...

Court Disposition

The respondent is declared to be in contempt of the court order dated 13 June 1997 and is ordered to comply with clause 4.2 of the settlement agreement by creating a Trust and transferring the property into the Trust for the benefit of the intended beneficiaries. The respondent is liable for costs on the attorney...

Orders

  • The respondent is declared to be in contempt of the order granted by this court on 13 June 1997, particularly clause 4.2 of the settlement agreement.
  • The respondent must, within 30 days of this order, give effect to clause 4.2 of the agreement.