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Contempt of Consent Paper

De Beer v Lichtenberg [7397/2012] ZAWCHC 48 (30 May 2012)

The parties had entered into a consent paper on 4 April 2011.  They were divorced on 20 April 2011.  The court now had to decide whether or not the Respondent was in contempt of the court order.  He had not paid all the maintenance he had to, in terms of the consent paper.  Neither had he complied with certain other provisions.

The Respondent had applied to the Maintenance Court to vary the maintenance.  He argued that the Applicant was a qualified doctor who could support herself and the children.  The Applicant however argued that the Respondent had sufficient funds to comply with the court order, as he earned R241 697 per month.

The Court was of the view that in testing whether disobedience of an order constitutes contempt, one must look at whether the breach was committed deliberately and mala fide.  In this case the Respondent now argued that he should have sought independent legal advice before signing the consent paper, and now has a shortfall in excess of R83 000 per month.

The Court in the end found that the Respondent not paying due to lack of funds was without substance.  The Court also took note that during the time when he had defaulted in terms of the consent paper, he had been going away on holiday.  He had spent two weekends in Mabula Game Lodge, four days in Langebaan and a weekend on Franschhoek.

The Court was of the view that the Respondent going away on holiday is proof of his lack of good faith in complying with the court order.  The Court found that the Respondent had a surplus each month.  He had not used the surplus to meet his obligations in the consent paper and the Court viewed this as being mala fide.

In the end the Court found that the Respondent was definitely in contempt of the court order.  He was given fourteen days to comply with the court order and pay the arrears in maintenance, which at that stage amounted to R38 000 for the children, and R110 000 in respect of his obligation to pay maintenance to the Applicant personally.

The Court also ordered that the Respondent take immediate steps to transfer ownership of the fixed property at 51 Doordrift Road, Constantia to the Applicant.  He also had to pay the mortgage bond and arrears thereon, as well as arrears on electricity and water.  He also had to pay to the Applicant the R 5000 as set out in paragraph 5.11 of the order and was ordered to pay the costs of the application.

The case is just another example of how strict the Courts have become when divorce orders are not complied with.  The Court does not have a sympathetic attitude to a party who defaults on a consent paper.

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