FAILURE TO PAY MAINTENANCE

A K v J K (19890/2018) [2020] ZAWCHC 143 (3 November 2020) 
Court: Western Cape Division, Cape Town
Case No: 19890/2018
Dates heard: 13 June, 2 August, 12 December 2019, 12 March & 24 July 2020
Delivered: 3 November 2020
Judge: Gamble, J

HEAD NOTE

Doctor who told his ex-wife he was no longer willing to fund you lying on your couch every day faces two years behind bars if he doesn’t pay her R1.5m of spousal maintenance within a month.

​Contempt of court – where the wife was awarded lifelong maintenance, the husband unilaterally opted to decrease paying same – The court found that he had acted willfully and with mala fides

SUMMARY

In this case, the parties were divorced by way of a deed of settlement on 19 September 2013. The order incorporated spousal maintenance of R52 000 per month up until the wife (applicant) dies, remarries, or cohabits with another man for more than six months. The settlement agreement incorporated an escalation clause, and by the time the matter went to court, the monthly maintenance was R69 384,48. The husband (respondent) unilaterally made the decision to start decreasing the amount of maintenance. By May 2020, he was paying R10 000 per month and was owing R1 539 158,96. As a result, the wife lodged an application for contempt of court. The court found that the wife was still alive, had not remarried, nor was she cohabiting with anyone else.

The respondent was a specialist ophthalmologist. He managed a practice called Dr. J.A.K and operated various other private companies. On 12 March 2020, counsel for the respondent provided an expert report prepared in 2011 during the divorce. Experts from both sides concurred that the respondent's assets, and his ability to pay maintenance, were to be determined in line with the entities that he controlled.

It was difficult to ascertain the respondent's financial position due to the fact that he did not furnish all the necessary documents, and the experts from both sides did not have a meeting. The virtual hearing of 24 July 2020. Counsel for the respondent contended that aside from the fact that the respondent's gross annual income was R13 to R14 million, he had fallen into hard times, and the applicant had to carry some of the consequences. But counsel for the appellant quickly reminded the court that the respondent had still not given full disclosure about his finances.

The court noted that it was common cause that there was a court order, which the respondent knew about but still failed to comply. Consequently, the only matter was whether the breach was willful and mala fide. (See Fakie No v CCll Systems (Pty) Ltd 2006 (4) SA 326 (SCA) and Bannatyne v Bannatyne 2003 (2) SA 363 (CC) regarding the requirements for contempt of court).

In Maujean t/a Audio Video Agencies v Standard bank Ltd 1994 (3) SA 801 (C) at 803H – l, the court described willfulness in the context of default judgment as follows "…deliberateness in the sense of knowledge of the  action and the consequences.." The court found that such an approach was warranted in considering the willfulness element as it accords with the court's reasoning in Fakie.

It was argued that the respondent only realised in February 2018 that his finances were weakening so
much that he could not afford to pay maintenance. The court contradicted the argument because the respondent had always threatened to stop paying maintenance way before that point. Besides, there was uncontested expert evidence which revealed that he was still able to afford the payments. The court also pointed out that even though the respondent's accountant expressed some reservations about the deed of settlement, the respondent did sign it and continued to pay the money every month for four years without defaulting. The court found that the respondent's true motivation for stopping to pay maintenance was documented in a WhatsApp text to his ex-wife. He told her that he no longer felt like working to support her and that he was contemplating retiring in 2021. He also informed her that she must move on with her life as he did not intend to maintain her forever.

The court also held that it was obvious in the respondent's answering affidavit that he knew that he could not unilaterally decide to disobey a court order. Yet, he proceeded to do so. It was further held that not only did he behave willfully, but he was also shown to be mala fide. For example, he undertook to provide the court with full details of his financial position and never did.

In summary, it was held that he had failed to adduce evidence, which demonstrates a reasonable doubt that he acted without willfulness and mala fides. Consequently, it was held that the respondent should pay the outstanding R1 539 158,96 to the applicant within one month and to continue paying the monthly maintenance. He was sentenced to 60 days imprisonment, which was suspended for two years on the condition that he complies with the court order.