The High Court in Johannesburg has sentenced a man to six months’ imprisonment after finding him in contempt of court for not for fulfilling all the terms of an interim maintenance order.
The sentence was suspended on condition that he paid the arrear amounts within three days of the court order and complied with his interim maintenance order obligations.
The man, identified as “AJS”, and his wife, “FSS”, are married in community of property and are involved in an acrimonious divorce, according to the judgment handed down last week.
In 2018, the High Court ordered AJS to pay maintenance to his wife and his two children and cover their general expenses. The Rule 43 order was amended in 2021.
He was ordered to pay an allowance of R30 000 a month, and property maintenance expenses, a DStv subscription, and the children’s cellphone costs up R2 100 a month. AJS was also ordered to retain his wife and children as dependants on his medical scheme and pay “all necessary and reasonable excess medical expenses not covered” by the scheme.
His wife contended that AJS owed more than R270 000 for the period between December 2022 and September 2023.
FSS also said their daughter owed university fees of R60 951, and she would not be able to graduate if they were not paid. FSS said she had to pay their daughter’s rental of R8 300 and allowance of R6 000 out of her monthly allowance or by borrowing money from family members.
AJS said he did not have to pay the university fees because they were not part of the Rule 43 order.
According to the judgment, FSS was “totally dependent” on her husband for maintenance. Her bank account statement of 7 September 2023 showed a balance of R106.74.
FSS is in poor health. She has auto-immune diseases, compressed spine fractures because of osteoporosis and osteopenia of the bones. She had a knee replacement in February 2023, the second knee replacement operation in 10 months.
When the Rule 43 order was granted, she suffered from aggressive breast cancer for which she had chemotherapy and radiation treatments, and she underwent a double mastectomy in 2018. But AJS refused to pay her medical expenses.
FFS said could not afford to litigate, so she sent emails with schedules of the arrears to her husband’s attorney, but to no avail.
Constitutional imperative
AJS took issue with his wife for bringing an urgent application, saying she should have sought a round-table discussion or issued a writ of execution.
Judge Portia Nkutha-Nkontwana said AJS’s contention was “founded in oblivion” because it was negated by the history of litigation between the parties and the concession that their relationship was defined by rancour. He has vigorously opposed his wife’s writ of execution in respect of the arrears to 22 January 2022.
It was also untenable for AJS to impugn that his wife failed to avail herself of a round-table discussion to discuss the schedules and invoices. His attorney told the court that AJS has never looked at the schedules, because his position as a director kept him busy all week, according to the judgment.
Judge Nkutha-Nkontwana rejected AJS’s contention that his wife should continue depleting her assets and live on borrowed funds pending the final determination of a Rule 43(6) application.
“He seems to forget that they are still married and as such he cannot divest himself from the duty to maintain the applicant. Most importantly, the Rule 43 order is binding and must be honoured until it is varied or discharged.”
The judge said it is well accepted that all court orders, whether correctly or incorrectly granted, must be obeyed unless they are properly set aside. It is a constitutional imperative for the effectiveness and legitimacy of the judicial system.
Wilful and male fides
Judge Nkutha-Nkontwana said AJS was a “frequent contemnor”.
Earlier this year, the High Court found him in contempt for failing to pay arrear amounts owed to the City of Ekurhuleni Metropolitan Municipality in respect of the former matrimonial home, where his wife lives. The contempt order was suspended on condition that he purged the contempt, which he did.
Despite this, AJS “persists with his blatant disdain” for the Rule 43 order.
AJS “dismally failed” to provide the court with comprehensive information about this financial position, Judge Nkutha-Nkontwana said.
AJS alleged he was employed by his businesses, but he did not disclose details of his employment, earnings, and tax deductions. He expected the court to accept his “mere say so” that he used loans from his companies to meet his Rule 43 obligations.
Judge Nkutha-Nkontwana agreed with FSS’s contention that her husband was prosecuting the Rule 43(6) application at a snail’s pace and avoiding opposing her writ of execution in an attempt to out-litigate her because she could not afford to litigate at each and every turn.
AJS “seems to hold a fallacious view that he can litigate at his leisure, be in court as and when he has money or at the convenience of his attorney”, the judge said.
The court found that AJS’s default was wilful and mala fides beyond reasonable doubt. Since he was a repeat contemnor, there was no reason he should not be committed to imprisonment.
Judge Nkutha-Nkontwana suspended the six months’ imprisonment for one year on condition that AJS paid the arrear maintenance and expenses of R274 639 within three days of the date of the court order and complied with his obligations in terms of the original and amended Rule 43 orders.
He was also ordered to pay the costs of his wife’s application on the attorney-and-client scale.
