CONTEMPT OF COURT

In the recent case of PTT v ST [2023] ZAGPPHC, the applicant brought an application to declare the respondent to be in contempt of court. The respondent only paid maintenance for the first two months following the granting of the Rule 43 order. The respondent cited ill-health and poor performance of his business as a reason for not complying with the court order. However, it was shown that the respondent received a pension pay out of R1 996 061.42 during April 2020. Notwithstanding this, the respondent still did not pay maintenance, rather the respondent said that he expended about R1 200 000.00 towards payment of loans of the joint estate at the time.

In this case, the applicant filed a legal action to have the respondent held in contempt of court and to impose a suspended imprisonment sentence, which would be conditional on the respondent's compliance with a court order known as the Rule 43 order.

The background of the case involves a marriage between the parties and divorce proceedings that were initiated. In November 2021, the parties agreed to convert their marital regime from a community of property to one outside the community of property.

The Rule 43 order contained several provisions, including:

1. Payment of monthly maintenance by the respondent to the applicant of R25 000 per month.

2. Providing the applicant with a Chevrolet Cruise vehicle and covering the associated costs (finance, maintenance, services, tires, and short-term insurance).

3. Contributing R40,000 toward the applicant's legal costs, payable in four equal installments.

It was undisputed that the respondent only made the maintenance payments for the first two months (March and April 2020) and had not made any further payments. In his defense, the respondent cited health issues and poor business performance as reasons for not complying with the court order.

However, it was revealed that the respondent had received a significant pension payout of R1 996 061.41 but had not used any of it to fulfill his obligations under the court order. The respondent claimed to have used a substantial portion of the payout to pay off joint estate debts without consulting the applicant. Additionally, there were other lump sum payments that were not adequately accounted for.

The respondent had offered to pay R10,000 per month in a letter. The applicant rejected this offer, arguing that it did not address the fundamental issue of non-compliance with the Rule 43 order.

Later in the argument, the respondent's counsel raised a new contention that the Rule 43 order ceased to exist when the divorce was finalized in May 2023. They claimed that the settlement agreement, which became part of the divorce decree, was not the same as the one the respondent had agreed to.

The court, however, stated that the settlement agreement, incorporated into the court order, clearly stated that the Rule 43 order would continue until it was modified, and no such modification had occurred. The settlement agreement itself stipulated that the respondent was to pay maintenance of R25,000 per month until certain conditions were met, and the respondent had not sought the rescission of the divorce court order or denied the authenticity of his signature on the settlement agreement.

The respondent's counsel made arguments on the merits of the application, claiming that the respondent was not willfully in default. They argued that the respondent lacked the funds to seek a variation of the Rule 43 order and had recently offered to pay a reduced amount due to his financial difficulties.

In contrast, the applicant presented a strong case. The respondent's defense was seen as self-contradictory, as he claimed to have no money on one hand and, on the other hand, said he had used the money to pay off joint estate debts without consulting the applicant. The applicant also contended that the defense of the settlement agreement being incorrect was contrived and inconsistent with the terms of the court order. The respondent had agreed to pay R25,000 per month as maintenance in the settlement agreement but had failed to comply.

Given the respondent's conduct, which was largely acknowledged by his own counsel, the court concluded that the respondent was in willful default and that his non-compliance was mala fide. Therefore, the court issued the following orders:

1. Declared the respondent to be in contempt of court for failing to comply with the Rule 43 order.

2. Granted an order for the respondent's imprisonment for a period of 30 days, with a warrant for his arrest authorized for that purpose.

3. Suspended the order of committal to imprisonment for 30 days, during which time the respondent could settle the overdue maintenance payments and contributions toward the applicant's legal costs or make alternative arrangements acceptable to the applicant.

4. Ordered the respondent to continue making monthly payments of R25,000 to the applicant, as specified in either the Rule 43 court order or the divorce court order.