Editorial note: Certain information has been redacted from this judgment in compliance with the law. |
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 4265/21
_________________ _____/_____/________ SIGNATURE DATE
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In the matter between:
JMB | Applicant |
And
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NPMB (Born N) | Respondent |
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J U D G M E N T
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KEIGHTLEY J
Introduction
This is an application for leave to appeal my order and judgment handed down ex tempore in urgent court on 11 February 2020. The applicant for leave to appeal, Mr B, was the applicant in those proceedings. He sought an order directing Ms B to return the couple’s three minor children to their primary residence in Dunkeld West, Johannesburg from B..., KwaZulu-Natal. Ms B in turn instituted an urgent counter-application in which she sought his committal for contempt of court and an order permitting her to relocate with the children to B....
The order I made appears at page 15 to 17 of the transcript of my judgment.
In essence, I found Mr B to be in contempt of court, and I committed him to prison for a period of 60 days subject to certain conditions. All of those conditions related to his breach of the Rule 43 order granted in 2019. They included payment to Ms B of the maintenance arrears under the Rule 43 order, ongoing payment of the monthly maintenance amounts and the provision to Ms B of a motor vehicle as directed under the Rule 43 order.
In addition, I ordered that Ms B return to Johannesburg with the minor children, once the maintenance payments had been made, and the motor vehicle provided to her. I also made directions as to the ongoing payment of maintenance, payment of school fees and related expenses and the placement of Ms B and the children on a medical aid, as per the Rule 43 order.
My order provided that Mr B vacate the common home at [redacted], Dunkeld West by 26 February 2021 (the vacation order) and that he relocate his business from the premises by 26 March 2021 (the business vacation order). I specified contact provisions for Mr B with the children. I directed the Family Advocate, on an urgent basis, to provide a supplementary report with regard to the primary residence of the minor children and contact rights (paragraphs 15 and 16 of the Order).
Mr B appeals against all of the relief granted, save for that contained in paragraphs 15 and 16 of the Order.
He has identified numerous grounds of appeal. I will endeavor to deal with them in categories, rather than in the details specified in the Notice of Application for Leave to Appeal.
Background and context
Before I deal with the bases for the application for leave to appeal, it is important to give some context to the circumstances in which the Order was made. As I have indicated, this matter came before me in urgent court. The heart of both the application and counter-application was the consideration of the best interests of the children, as I note expressly in my judgment. If one reads the affidavits filed in the application, it is patently clear to any reader that Mr and Ms B had an extremely toxic relationship and that the children were caught in the middle. Not only emotionally, but they were physically caught in the middle while their parents were still living on the same property. It was quite obvious, as it would be to any Judge in my position, that it would not be in their best interests for the current situation to continue. However, Ms B had now removed the children to B.... It was obvious that this also impacted on the best interests of the children, as she sought the Court’s imprimatur to make this situation permanent.
I requested the parties to consider whether there was any scope for the parents to narrow the issues. This resulted in each party uploading draft orders for me to consider, and addressing me on them. These draft orders are available on Caselines. However, no settlement was forthcoming and I ultimately had to make the order that in my view, as upper guardian of the children, best served their interests.
The return of the children to Johannesburg and related issues raised in the application for leave to appeal
The applicant’s first ground of appeal relates to my order that the children return to the primary residence. He says that I erred in directing that their return was conditional on the payment of maintenance being made to Ms B under the Rule 43 order. He contends that I failed to take into account all of the factors cited in section 7 of the Children’s Act and that I thus failed to apply the best interests’ standard. He lists a range of averments that he says I failed to take into account including Ms B’s alleged problems with alcohol, aggression, and neglect of the children; the fact that he says that he is the primary parent; the mental, emotional and psychological impact of the removal of the children from Johannesburg; and Ms B’s apparent boyfriend, who Mr B alleges, is involved in criminal activities.
These allegations were made by Mr B in his replying affidavit in his urgent application. There was no supporting evidence of Ms B’s alleged alcohol abuse, or her aggression and she denied these allegations strenuously. She also denied that Mr B effectively raised the children, as he asserted. It was common cause before me that the parties had both previously sought to have the children placed in their primary care. However, after investigating the matter, the Family Advocate recommended that Ms B should be the primary caregiver. Against this common cause fact, it is difficult to see how Mr B’s assertions of Ms B’s alleged inadequacies as a mother could carry weight.
On the evidence before me there was nothing to indicate that the children’s best interests would not be served by the children remaining in Ms B’s primary care, as recommended by the Family Advocate. In terms of my Order, they would return with Ms B to Johannesburg once Mr B had placed Ms B in funds to permit her to maintain herself and her children in the former common home. It would not have been in their best interests to return to Johannesburg while Mr B remained in complete arrears with his maintenance obligations, thus depriving Ms B of the ability to care for them. It was common cause before me that save for one payment of R7000. 00, Mr B has failed to make any monetary maintenance payments to Ms B under the Rule 43 order. How Ms B could be expected to return to Johannesburg and care for the minor children in those circumstances is not dealt with by Mr B. Contrary to Mr B’s contentions, my order was designed to protect the best interests of the minor children.
Mr B alleges that I erred in failing to take into account that Ms B’s alleged boyfriend, named Robert, is engaged in criminal activities and had plotted to kill the Mr B. This, he said, was a factor that should have weighed against the children remaining with Ms B.
These allegations were not made in the founding affidavit before me. In fact, they were contained in an affidavit filed by Mr B in a previous urgent application that he sought to have heard on 24 December 2020. That matter was struck from the Roll when Mr B’s legal representative failed to appear. Mr B simply attached that founding affidavit to his founding affidavit before me. He made no particular reference in his founding affidavit before me to the alleged boyfriend, and plots to kill him. It was therefore not evidence properly placed before me. In addition, the screenshots provided by Mr B as alleged proof of the relationship and the plot to kill him are either unreadable, or do not appear to support the allegations. In any event, Ms B denies that she has a boyfriend.
Mr B contends that I failed to take into account that when Ms B took the children to B... he had no certainty of their whereabouts, and no contact with the children as Ms B terminated all contact with them. These averments are not supported in the affidavits that served before me. On the contrary, on 1 December 2020, Ms B’s attorney wrote to Mr B’s attorney advising him that Ms B would be taking the children with her to KwaZulu-Natal in December and that she would return on 27 December, so that Mr B could have the children for the New Year period. This letter is common cause. In response, Mr B claimed that he did not know about the letter.
In her answering affidavit, Ms B stated that Mr B knew that the children were with her at her family home in B.... He had in fact visited the home several times previously. Further, that it was Mr B who had blocked her from his cellphone, and so she had no way of contacting him, or letting the children use her phone to contact him. However, she explained that the children had had contact with Mr B through her aunt, Dolly Mkhuisi. This was not denied by Mr B in reply. In fact, he conceded that it had been him who had blocked contact with Ms B.
Mr B says that I failed to take into account that Ms B’s conduct in removing the children impeded their education in that they were prevented from attending both onsite schooling and virtual schooling. My Order made provision for Ms B to return to Johannesburg as soon as Mr B had placed her in funds so that she could exercise the role of primary caregiver in the previous matrimonial home. He declined to do so, resulting in the children remaining in B.... They were not out of school. Ms B testified in her affidavit that the children were attending Faithway College, a semi-private school near B... with the financial assistance of her uncle.
Mr B contends that I failed to properly interrogate the circumstances under which the minor children were residing in KwaZulu-Natal and the impact this would have on them. Related to this is the averment that I unlawfully made Mr B’s exercise of his parental rights conditional on him making payment of monies to Ms B, and that I accordingly denied the children their right to have meaningful contact with Mr B. Further, that my Order sanctioned the immediate relocation of the minor children to an unknown and untested environment in the absence of an investigation. There are many other related averments that make the same point.
It is important to appreciate that the Order must be considered holistically. It does not sanction the relocation of the children. In fact, it is clear from the timelines set in the Order that it in fact sanctions the move by Ms B and the children back to Johannesburg as soon as possible. This is evident from the fact that the arrear maintenance and first post-arrear maintenance payments were to be made to Ms B by no later than 19 February 2021. This appears in paragraph 4(a) and (b) of the Order. The motor vehicle was to be provided by 26 February 2021. This appears from paragraph 4(c) of the Order.
The purpose of these timelines and the need for these payments to be made urgently was to ensure that it would be practically possible for Ms B to relocate to Johannesburg as soon as possible after the Order was granted. This was to ensure that the best interests of the children were served. Without a vehicle, Ms B could not return to Johannesburg, as it was common cause that Mr B had never provided her with the vehicle he was ordered to provide under the Rule 43 order. In fact, in his suggested amended order uploaded onto Caselines, he tendered the provision of a vehicle to her. Without the payment of the maintenance amounts that had been ordered by the Rule 43 Court, Ms B could not care for the children as the primary caregiver in Johannesburg. It was common cause that in Johannesburg she lacked the family support structure that she had in B....
In summary, then, the Order was intended to balance, and was directed at balancing the interests of both parents, and to best serve the needs of the minor children. It was in their best interests to return to Johannesburg as soon as possible. My Order, when read holistically makes provision for this. This is why short deadlines were set for the payment periods. The need for payment and the provision of the vehicle was not to punish Mr B or to relegate his parental rights. On the contrary, it was to ensure that when the children returned to Johannesburg, their needs would be properly catered for. In the absence of any payments by Mr B of the maintenance amounts under the Rule 43 Order to date, such payment was necessary to secure the children’s best interests.
Similarly, Mr B’s vacation of the common property and the vacation of his business from that property were subject to time limits. It was clearly inimical to the interests of the minor children for their parents to live on the same property, and for Mr B to continue to operate his business from there. One only has to read the allegations and counter-allegations in the affidavits to appreciate that this is so. The time limits were therefore also aimed at ensuring that the children could return to Johannesburg as soon as possible, and be freed of the toxic environment that existed while their parents were living and/or working on the same property.
I should make it clear that Ms B’s case in opposing Mr B’s application and in support of her relocation application was that it had become impossible for her to see to her children’s needs in Johannesburg in view of Mr B’s failure to make any of the maintenance payments. She said that she had had to borrow money from family and friends to survive. She stated: “I cannot live without any support in Johannesburg and without any money.” Mr B did not dispute that he has never paid maintenance. He claimed that Ms B had inherited some R3million from her brother on his death. This was rejected by Ms B, who pointed out that her brother had died at the age of 28 and whatever he left went to his mother. There was simply no evidence to support Mr B’s allegation of this alleged wealth on her part.
Without the maintenance payments that the Rule 43 Court had ordered, Ms B cannot support herself and the children in Johannesburg. Mr B did not seriously contest this. The payment of those amounts commensurate with her return with the children to Johannesburg accordingly was necessary and in the children’s best interests. This is what my Order provided for. It was not a drastic Order. It was an Order directed at serving the best interests of the children in the drastic circumstances which had befallen them as a result of their parents’ extremely unpleasant divorce.
For these reasons, I am not persuaded that there are reasonable prospects that another court would find that I erred granting the relief set out in paragraphs 6-10 of my Order.
The vacation orders
Mr B says that the vacation order amounts to an unlawful eviction order, and that I failed to consider whether he had alternative accommodation. I have already indicated why in this case it was plainly in the interests of the minor children that their parents no longer reside on the common property. Ms B has filed two domestic violence protection orders against Mr B. One was settled after Mr B agreed to pay R7 000. 00 maintenance and move into the separate cottage on the property. Mr B had Ms B arrested on charges of malicious damage to property. The allegations and counter-allegations made between them are such that it is impossible for the children to remain unaffected. Ms B avers that Mr B persuaded the oldest child to take pictures of Ms B in the bath. Mr B does not deny this. Whatever the rights and wrongs may be between the parties, it is clearly not an environment that is safe for the children’s emotional well-being.
It was this situation that informed the vacation order. It was not an eviction order under PIE. No-one contended that Mr B was in unlawful occupation of the property. In fact, Mr B made the suggestion in his revised draft order that he could move from the property. He now complains that this was not a legal tender for him to move. Whatever the status of his draft vacation order, the fact remains that even Mr B understood the need for a change to be made in the living arrangements if the children were to return to Johannesburg. He was fully represented by Senior Counsel throughout the proceedings. He would hardly have raised the idea of his vacating the premises if he had nowhere else to go. This was an order made in the best interests of the children.
As to the business vacation order, Mr B did not suggest that he would move his business. In fact, in his amended draft order, he sought a direction that he be permitted to continue to operate his business from the premises. However, the evidence before me was that Mr B was present at the offices on the common property every day (save for when he was travelling, which, he says he was not doing much during the Covid period). He exercised his contact rights with the children there as well. Ms B complained that the body guards at the office made it difficult for her to access the children if they were with Mr B in his offices. The overlap between work premises and home premises for Mr B clearly represented fertile ground for the continuation of the animosity between the parents. Even if Mr B personally vacated his living quarters, this would not solve the danger to the well-being of the children: for so long as he and Ms B shared the common property on a daily basis while he worked there, the children’s well-being was jeopardised by the continued hostilities between them.
Mr B was, as I have said, represented by Senior Counsel at all stages of the hearing. The removal of his office from the premises was canvassed at the hearing and his Counsel ably represented him before me.
For these reasons, I am not persuaded that there are reasonable prospects that another court would find that I erred granting the relief set out in paragraphs 11-14 of my Order.
The contempt of court order
As to my holding Mr B in contempt of the Rule 43 Order, he contends that I erred in that there was no “clear, objective, factual and substantiated evidence that the applicant could in fact afford payment of his obligations”. Various other averments are made linked to this general ground for leave to appeal.
Mr B does not deny that he has never effected a single payment of the maintenance order or the contribution of costs orders made by the Rule 43 Court. Nor does he dispute that he was found to be in contempt of that Order by Matsamela AJ on 7 September 2020. Despite that finding, he failed to make any payments. He applied for leave to appeal the first contempt order on 28 October 2020. However, at the time of the hearing before me, Ms B averred that the appeal had lapsed. The court file on Caselines reveals that Mr B requested reasons for the Matsamela AJ order on 29 April 2021, and that these were delivered on 28 June 2021. Thereafter, a supplementary application for leave to appeal was filed in the first contempt order on 15 July 2021. It is plain, then, that at the time of the second contempt hearing before me, Mr B was not actively seeking leave to appeal the first contempt application.
Once it is established that a person is in breach of an order of court, it is trite that she or he bears the onus of establishing that the breach was not willful and male fides. In his answering affidavit, in response to the averments that he was in contempt of the Rule 43 Order, Mr B asserted that he was not in contempt because he paid school fees and provided “food and everything the minor children’s (sic) need and all the household expenses. “I eat with the children as we stay on the same house/premises.” He says further that: “I never had the money and do not have the money the Respondent claims.” And further: “I am not wealthy. The Respondent married me thinking that I have lots of money, and when she realised there was no money, she started asking for separation and became disrespectful, and abusive towards me.” He referred to Ms B’s motive for seeking to hold him in contempt again as follows: “It is telling that the Respondent had to wait for me to launch this application before she can counter with hers to have me jailed. She has deliberately held on to the Order with a view to scare me from seeking access to my children.” The Order referred to here is the Matsamela AJ contempt order.
He says further: “I have laid my financial position bare and am repeating them here. I am no longer able to afford the life I had before.” He submits that: “… I do not owe the Respondent any money.” (My emphasis) And: “Due to the pandemic that has ravaged all sectors of business, I have lost all my business deals and contacts. I did not agree those amounts.” The “amounts” in question are the amounts of R30 000 cash maintenance per month from 1 November 2019, and the contribution towards costs in the amount of R30 000. 00. These amounts were directed under the Rule 43 Order. The arrear maintenance amount at the time that Ms B deposed to her affidavit was R473 000. 00.
He also claimed not to be unaware of the Matsemela AJ contempt order in his answering affidavit filed before me. I make reference to this in my judgment which is subject to this application for leave to appeal. It is quite clear that Mr B must have known of the order because he applied for leave to appeal it.
Mr B contends throughout his answering affidavit that he is the one to purchase food and maintain the house. He also buys clothing for the children and gives them cellphones and airtime, and pocket money. In addition, he has paid for their school fees and their school clothing. The payment of school fees and uniforms is not disputed by Ms B.
As to medical aid, he says that the children “were never on medical aid save for the younger. I am not on Medical aid as I cannot afford.” He refers in general terms to his “financial strain”, that he is “not as wealthy as the Respondent alleges”, and that: “I have no money but debts”. He asserts that: “The Respondent married me for money… .”
In her affidavit Ms B listed some of the Mr B’s assets of which she was aware. These included the Dunkeld West property, another property in Northcliff, properties in Zimbabwe, shares and others. Not all of these are held in his name. She estimated the value of the Dunkeld West property to be R18 million, the Northcliff property to be valued at about R900 000. 00, and a Harare property to be valued at R2 million. To this, Mr B answered in general terms that: “I deny the correctness of the contents of this paragraph.” There were also averments of multimillion Rand investments, to which Mr B replied that this was his clients’ money and not his. In addition, he asserted that Ms B was: “… blinded with money and not interested in the children. The main reason she married me was money and not building a family.”
In response to Ms B’s averments of some of his spending patterns, he avers that they were the result of sponsorships and donation funds raised by third parties. A common refrain in his answering affidavit is the Ms B has the money to provide for herself and only pretends to be destitute. He also avers that: “I pay for all household running costs and not the Respondent’s alcohol and drug needs.”
Mr B did not favour the court with any financial records attached to his affidavit to support his bald assertions that he was under financial constraints and could not pay the amounts directed under the Rule 43 Order. On the contrary, the tenor of his answer to the contempt application brought before me was illustrative of a man who does not believe it is fair to pay money to his wife from whom he is estranged. His answers were those of a man who will decide for himself what his children need and will provide them. He will not pay amounts to which he has not agreed, even if these have been directed in a court order.
There was no evidence, and indeed, no clear case made out by Mr B that although he understood that there was a court order in place directing him to pay itemised amounts, he was simply unable, despite all attempts to do so, to honour his legal obligation to make the payments. As I have already indicated, the onus rested on Mr B to make out this case and he failed to do so. As I indicated in my judgment, he handed up some financial documentation from Standard bank at the hearing. However, I rejected that as being indicative of a genuine and bona fide inability on his part to pay the amounts directed.
These were the facts before me. They fell far short of Mr B establishing that he genuinely was unable to pay the amounts directed under the Rule 43 Order.
It is inconceivable that Mr B ’s financial position deteriorated so rapidly once the Rule 43 Order was made that he was unable to make one single maintenance payment ever. His averment that this is the real reason he has not complied with that Order is so untenable as to be rejected. And if indeed he did find himself genuinely unable to meet his commitments under the Rule 43 Order, he has always had lawyers acting for him. They no doubt would have advised him of his right to apply for an amendment to the Rule 43 Order, thus obviating the threat that he might be found in contempt of court. He has never done so. In fact, while Ms B was on affidavit as saying that her attorney is acting for her at a reduced fee, Mr B instructed Senior Counsel to appear on his behalf. At the hearing of the application for leave to appeal, he was once again represented by one of the most experienced Senior Counsel in matrimonial matters (although she did not represent him at the earlier hearing). Ms B was no longer represented by an attorney, but had pro bono Counsel acting on her behalf.
It is clear from the affidavits filed by Ms B that one of the bones of contention in the divorce proceedings is Mr B’s disclosure of his true financial worth. This is not an uncommon feature in divorces. However, what was established when the matter came before me was the fact that the Rule 43 court had, after considering the financial information it had in front of it, directed Mr B to pay monthly maintenance to Ms B and the children. He has never done so, and he failed to establish that his reason for his common cause breach is that he was genuinely unable to pay.
Mr B contends that I erred in referring to his appeal against the first contempt order as having lapsed and using this to label him a “serial committer of contempt.” Also, that I erroneously said in my judgment that he had been ordered by the Magistrate’s Court to pay R7 000. 00 to Ms B as emergency funding. It is so that the Magistrate’s Court did not order him to pay the latter amount: it was in fact a settlement agreement reached between the parties linked to one of the Domestic Violence Protection Orders. Be that as it may, this does not detract from the fact that is common cause that he has never met his monthly maintenance obligations, whether those agreed upon by him, or those directed by the Court (save for one payment of R7 000. 00). This alone makes him a serial contemnor.
As to the leave to appeal, Ms B averred on her papers that the appeal had lapsed. Mr B gave no evidence to counter this averment. If he was waiting for the Judge’s reasons, he did not say so at the time. The reasons that were provided by Matsamela AJ indicate that he was requested to give reasons only in April 2021, after the date on which the matter came before me.
For these reasons, I am not persuaded that there are reasonable prospects that another court would find that I erred granting the relief set out in paragraphs 1-4 of my Order.
The alleged variation of the Rule 43 Order
Mr B contends that I erred in amending the Rule 43 Order when no such applicaiton was before me. This is based, it would appear, on paragraph 8 of the Order, where I directed him to ensure that the rates, taxes, lights and water are paid timorously in respect of the Bompas Road, Dunkeld West property, even though it may be registered in the name of a separate entity. There was no dispute between the parties that historically Mr B bore responsibility for making sure these payments were effected. If Ms B and the children were to move back into the Bompas Road property, and Mr B was to move out, it was important for there to be certainty that these amounts would be paid. It would not be in the interests of the children if their water and electricity was terminated through non-payment. In fact, Mr B recognised this because in his revised draft order uploaded to Caselines on 11 February 2021, paragraph 4.11 read: “the Applicant is ordered to continue paying for all the expenses relating to the primary house, namely water, electricity, rates and taxes, repairs and the general upkeep of the house”. I have explained why certainty in this regard was important in the interests of the children. It was also an order that was ancillary to the order directing Ms B to return to reside in the property. It was not an attempt to vary the Rule 43 Order.
For these reasons, I am not persuaded that there are reasonable prospects that another court would find that I erred granting the relief set out in paragraph 8 of my Order.
Costs
As to costs, Mr B contends that I erred in directing that he pays costs on a punitive scale. It is trite that costs lie for the discretion of the court a quo. Mr B’s complaint is that I did not take into account that he was forced to come to court after Ms B had refused to return from KwaZulu-Natal with the children after the December holiday. However, this was by no means the only factor relevant to the question of costs, as my judgment made clear. Mr B’s failure to comply with his obligations under the Rule 43 Order precipitated this state of affairs. Further, this was the second time that Mr B had been found in contempt of the Rule 43 Order. These were factors which weighed with me in making a punitive costs order against Mr B.
For these reasons, I am not persuaded that there are reasonable prospects that another court would find that I erred granting the relief set out in paragraphs 17 of my Order.
Conclusion and Order
Under s17(1)(a) of the Superior courts Act, leave to appeal may only be given where the Judge is of the opinion that the appeal (i) would have a reasonable prospect success or (ii) there is some other compelling reasons why the appeal should be heard, including conflicting judgments on the matter under consideration. The test for granting leave under this section is well settled. The question is not whether the case is arguable or another court may come to a different conclusion (R v Nxumalo 1939 AD 580 at 588). Further, the use of the word “would” in s 17(1)(a)(i) imposes a more stringent and vigorous threshold test than that under the previous Supreme Courts Act, 1959. It indicates a measure of certainty that another court will differ (Mont Cheveaux Trust v Goosen [2014] SALCC 20 (3 November 2014); Notshokuvo v S [2016] ZASCA 112 (7 September 2016)). The Mont Cheveaux test was endorsed by a Full Court of this Division in the unreported case of Zuma & Others v the Democratic Alliance & Others (Case no: 19577/09, dated 24 June 2016).
It should be apparent for the detailed reasons that I have provided above that I am not satisfied that Mr B has satisfied the requirements for the granting of leave to appeal.
I accordingly make the following order:
“The application for leave to appeal is dismissed with costs, insofar as Ms B is able to establish such costs.”
____________________________
R M KEIGHTLEY
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 03 December 2021.
Date Heard (Microsoft Teams): 26 OCTOBER 2021
Date of Judgment: 03 DECEMBER 2021
On behalf of the Applicant: AA De Wet SC
Instructed by: STEVE MERCHAK ATTORNEY
On behalf of the Respondent: L PETER
Instructed by: MICHEAL KRAWITTZ & CO
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