A husband repeatedly in contempt on his obligation on Rule 43 Order

November 1st, 2023

SFS v AJS (GJ) (unreported case no 11676/2018, 11-10-2023) (Nkutha-Nkontwana J)

 The Gauteng Local Division of the High Court authorised and issued a warrant of arrest of the respondent in a case where the husband has been in repeated contempt. The respondent was held in contempt of the order granted on 29 June 2018 by Mokose AJ on 15 October 2021 by Windell J, under case number 11676/2018. This was as a result of an urgent court application seeking an order in terms of r 6(12) of the Uniform Rules of Court.

The applicant who is totally dependent on the respondent for maintenance, contended that the respondent is in contempt of the order granted by Makose AJ, as amended by the order granted by Windell J (r 43 order). The High Court said that this was the second contempt application against the respondent. The High Court added that the first application was served before Tshombe AJ on 20 June 2023. The respondent was accused of contemptuous refusal to make payment of the utility charges in respect of the former matrimonial home in which the applicant resides. The respondent was found to be in contempt and ordered to make payment of the arrear amounts owed to the City of Ekurhuleni Metropolitan Municipality with a punitive costs order. It was noted that it seemed the applicant had subsequently purged the above contempt.

The High Court pointed out that the applicant contended that the arrears amount the respondent is obliged to pay in terms of a r 43 order was equal to R 264 639 for the period between December 2022 to September 2023, which compromised –

  • R 110997 in respect of the cash maintenance and grocery allowance;
  • R 25 891 in respect of swimming pool and home maintenance expenses;
  • R 20 700 in respect of the gardener’s wages;
  • R 11 140 in respect of cell phone accounts;
  • R 47 143 in respect of medical expenses for the children; and
  • R 48 768 in respect of the applicant’s medical costs.

The High Court said that it was common cause that C[…] is an independent adult and married but still lives with the applicant in the matrimonial residence. While A[…] is a student at Stellenbosch University. The High Court pointed out that the respondent was blatantly refusing to pay for A[…]’s university fees because they are not part of the r 43 order, so he contended. The High Court pointed out that the applicant contended that she has to use whatever maintenance and loans from family members to pay for A[…]’s rental of R 8 300 and allowance of R 6 000. And often cannot do so. A[…]’s university fees are outstanding by a sum of R 60 951,20 and if not paid, she was not going to graduate this year.

The High Court said that the applicant’s ABSA bank account statement of 7 September 2023 showed a balance of R 106,74. That she also has health issues, which include auto-immune diseases, namely Rheumatoid arthritis and Hashimoto disease; she recently had a full knee replacement on 16 February 2023, being the second knee replacement operation in ten months; and compressed spine fractures due to osteoporosis and osteopenia of the bones, which cause her constant chronic pain. The High Court pointed out that at the time the r 43 order was granted, the applicant suffered aggressive HER2-positive breast cancer for which she had chemotherapy and radiation treatments as well as undergoing a double mastectomy in 2018. Yet, the respondent refused to pay her medical expenses per the r 43 order.

The High Court also added that the applicant had demonstrated that she does not have the means to litigate and as such tried to obviate same by sending e-mails with schedules of the arrears that were due and payable per the r 43 order to the respondent through his attorney of record, Mr Vardakos. Mr Vardakos has been on record since 2020 and conceded having received the communication from the applicant but either did not attend to it because he was travelling abroad or was busy with other matters, so he submitted. The court pointed out that the respondent was not a man of straw but a hardworking businessman with many assets including some which are abroad, as contended by the applicant. Yet he is a repeated contemnor who had deliberately frustrated the ordinary enforcement of the r 43 order. As a result, there is an accumulation of significant arrears, which include monies payable for medical care.

The High Court said that in contempt proceeding, the applicant bears the onus to prove, beyond reasonable doubt, the rudiments of contempt which are –

  • existence of an order;
  • service or notice of the order; and
  • wilfulness and mala fides.

However, the respondent bears an evidential burden in relation to wilfulness and mala fides. The High Court added that the respondent conceded the existence of the order and in terms of the first contempt order was suspended on the condition that he purges the contempt, which he did. Even so, the respondent persists with his blatant disdain for the r 43 order.

The High Court pointed out that despite his allegation that he is employed by his businesses, the respondent failed to open up to the court about the details of his employment, proof of his earning, tax deduction, etcetera. The High Court added that the respondent expected the court to accept his mere say so that he previously used loans from his companies to meet his obligations per r 43 order as he failed to provide proof in a form of loan agreements or loan account or bank statement.

The High Court said that it is accepted that all court orders, whether correctly or incorrectly granted, have to be obeyed unless they are properly set aside. That it is a constitutional imperative for effectiveness and legitimacy of the judicial system. The High Court pointed out that in all the circumstances, the respondent has failed to discharge the evidentiary burden in showing that his default was not wilful and mala fide. The High Court added that the wilfulness and male fides have been shown to be beyond reasonable doubt. Since the respondent is a repeated contemnor, there is no reason why he should not be committed to imprisonment.

The High Court made the following order:

‘1. The application is heard as a matter of urgency and that the Rules relating to time periods be dispensed with in terms of rule 6(12) of the Rules of the above Honourable Court.

  1. The respondent, A[…] J[…] S[…] is declared in contempt of the court orders granted on 29 June 2018 by Mokose AJ and on 15 October 2021 by Windell J, under case number 11676/2018.
  2. The respondent is hereby committed to imprisonment for a period of 6 months, which shall be suspended for a period of one … year on the following conditions:

3.1. The respondent pays to the applicant arrear maintenance and related expenses totalling the sum of R 274 639.

3.2 The respondent complies with his obligations set out in the Court Orders granted by Mokose AJ and on 25 October 2021 by Windell J, under case number 11676/2018.

  1. The respondent is ordered to pay the costs of the application on the attorney and client scale.’

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (Nov) DR 28.