Successful contempt orders seem to be less rare than they once were, if two recent judgments are anything to go by.
Just as courts are handing down more decisions finding public servants personally liable for part of the legal costs, so too, successful contempt orders – across a variety of issues – are also becoming less rare.
Messy divorce
This week I found two interesting applications for contempt. One from Pretoria concerns a couple in a messy divorce. During September 2015, the court ordered that the husband was to keep the wife, who has a serious heart condition, on his medical aid for six months after the divorce. But even though the divorce is not yet finalized he has twice removed her from his medical aid. She brought an urgent application after the first time and was reinstated. On the second occasion, during December 2018, the court ordered that the wife be immediately put back on his medical aid. By May 2019 he had still not complied.
Instead, he added another woman to his medical aid. The high court has now found him in contempt of court by refusing to comply with the December 2018 order. He was thus sentenced to 30 days in jail, suspended for 12 months on condition that his wife is added as a beneficiary within 15 days.
The second case, from Pietermaritzburg, concerned a business rather than a personal matter. It involved Absa Bank, a loan made to Transcon Plant and Civil CC, an agreement between the two over repayment of the loan and the order of court reflecting that agreement.
Wilful
Absa asked for a contempt order against Transcon and its sole member, Wesley Naidoo, for failing to comply with that April 2016 court order. And, as with all contempt applications, the court had to be convinced that Transcon’s failure to obey the earlier judge’s order was willful and in bad faith.
In terms of the 2016 court order the agreement between the two parties was cancelled and Transcon had to return the assets listed in the instalment sales agreements. Naidoo was not cited as a party in the April 2016 case, but there was no dispute that he was the sole member and manager of Transcon whose main business involved servicing the civil engineering and construction industry and the ‘hire of plant, machinery and equipment in the building construction industry’.
Arrears
Transcon owed its creditors about R6m, with assets of R12m, mostly in equipment and vehicles. Absa had financed the remaining 18 assets, with about R5,7m owing of which R850 000 represented three months’ arrears.
According to Transcon, it had a contract with a mining company to hire plant machinery and equipment for five years, but it had no working capital because Absa had cancelled its overdraft facilities.
Both sides accepted that Transcon could not keep to the payment plan worked out with Absa because Group Five defaulted on its undertaking to repay money owed to Transcon. Absa then attached 14 of the listed items but could not find the remaining four pieces of machinery.
Theft
While Naidoo, on behalf of Transcon, claimed that the missing items were stolen, Absa disputed this. Only one theft had been reported stolen to the police, and Absa argued that the other allegations were made to avoid being found in contempt of court.
The judge also found that once Transcon and Naidoo discovered the alleged theft, they continued to misrepresent that they still had the goods.
She held that they had not established reasonable doubt that they were not in willful and bad faith default of the 2016 court order and she thus found Transcon and Naidoo in contempt of court. The sheriff was directed to take Naidoo into custody for 30 days, spending from 17h00 every Friday until 7h00 every Monday in jail.
The sentence would, however, be suspended if the remaining assets were returned to Absa within 30 days.
* Financial Mail, 8 August 2019