Visser v Visser (21127/2009) [2009] ZAWCHC 231 (15 December 2009)

Visser v Visser (21127/2009) [2009] ZAWCHC 231 (15 December 2009)

The respondent failed to adduce sufficient evidence to establish a reasonable doubt that his non-compliance with the maintenance and costs contribution order was due to inability to pay rather than lack of will. The respondent's denials regarding ongoing income and private work were unsubstantiated, and his bank statements revealed withdrawals that could have been used to comply with the order. The respondent did not seek to file further evidence to rebut the applicant's claims about his income sources. The maintenance order remained unvaried, and the respondent's conduct was found to be wilful and mala fide. Accordingly, the respondent is declared in contempt of the court order.

Citation
[2009] ZAWCHC 231
Parties
Applicant: Carina Louise Visser; Respondent: Gideon Johan Visser
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 December 2009
Case Number
21127/2009
Procedural Posture
Urgent Application / Application for Contempt of Court Order Under Uniform Rule 43
Outcome
The respondent is declared to be in contempt of the maintenance and costs contribution order. He is directed to pay all amounts due within 10 days, failing which he must show cause why he should not be sentenced to imprisonment or another appropriate sentence. Costs are awarded against the respondent on the attorney...
Judges
Breitenbach
Legal Topics
Maintenance Pendente Lite, Contempt of Court, Uniform Rule 43, Contribution to Costs, Burden of Proof, Variation of Maintenance Order
Family and Children Civil Procedure Maintenance Pendente Lite Contempt of Court Uniform Rule 43 Contribution to Costs Burden of Proof Variation of Maintenance Order

Case Brief

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Parties

Carina Louise Visser

Applicant

Gideon Johan Visser

Respondent

Procedural Posture

Urgent Application / Application for Contempt of Court Order Under Uniform Rule 43

Legal Issues

  1. 1 Whether the respondent is in contempt of the maintenance and costs contribution order made under Uniform Rule 43.
  2. 2 Whether inability to pay constitutes a valid defence to contempt of a maintenance order.
  3. 3 Whether the respondent has discharged the evidential burden to establish reasonable doubt as to wilfulness and mala fides in non-compliance.

Ratio Decidendi

The respondent failed to adduce sufficient evidence to establish a reasonable doubt that his non-compliance with the maintenance and costs contribution order was due to inability to pay rather than lack of will. The respondent's denials regarding ongoing income and private work were unsubstantiated, and his bank statements revealed withdrawals that could have been used to comply with the order. The respondent did not seek to file further evidence to rebut the applicant's claims about his income sources. The maintenance order remained unvaried, and the respondent's conduct was found to be wilful and mala fide. Accordingly, the respondent is declared in contempt of the court order.

Court Disposition

The respondent is declared to be in contempt of the maintenance and costs contribution order. He is directed to pay all amounts due within 10 days, failing which he must show cause why he should not be sentenced to imprisonment or another appropriate sentence. Costs are awarded against the respondent on the attorney...

Orders

  • The respondent is declared to be in contempt of the order made by this court (per Van Reenen J) on 31 August 2009 in case number 20817/2008.
  • The respondent is directed to pay to the applicant all amounts due under such order within 10 days.