GUVAVA J: The facts giving rise to this application are
mainly common cause. The applicant and the respondent were formerly husband and
wife. A decree of divorce was granted in this court on 5 August 2010. The
applicant has approached this court alleging that the respondent is in contempt
of this order and applies for relief in the following terms:
"1. THAT the respondent purge his contempt of
the order of this Honorable Court in case number HC 6886/08 dated 5 August 2010
within five days of service of this order by paying to the applicant the
following amounts:
1.1.1
AUS $58,092-94 into the applicant's account being
Westpac Australia, Westpac Reward Save Account, Account Number 032719399814.
1.1.2
One half of the amount held in the bank account in South Africa, namely:
1.1.3
FIRST NATIONAL BANK, FOURWAYS BRANCH, GAUTENG ACCOUNT
NO 00001182582 as at 10 December 2008 duly substantiated by certified copy of
the bank statement for December 2008, into the applicant's bank account being
Westpac Australia, Westpac Reward Save Account, Account Number 032719399814.
2. THAT
should the respondent fail to effect payment as aforesaid within five days of
the date of service of this order the Deputy Sheriff together with such members
of the Zimbabwe Republic Police as he requires, shall arrest the respondent and
bring him before this court to show cause why he should not be detained in
custody with immediate effect at Harare Central Prison until such time as he
complies fully with the provision of para 1 above.
3. THAT the
respondent shall pay the costs of this application on the scale of the Law
Society Tariff current for the time being, on a Legal Practitioner and client
basis."
The
applicant states in her founding affidavit that her claim arises from the
admissions which were made by the respondent in a pre-trial conference minute
dated 1 September 2010. She states that on 27 May 2010 she learnt that the
respondent had withdrawn all the funds held in a Cyprus account held by the
respondent. She in turn withdrew the funds which were held in the Australia
account and deposited them in a different account. She has made repeated
request for half of the money held in the Cyprus account and states that she
is prepared to pay half of the money in the Australian account to the
respondent after she has deducted her inheritance money.
The respondent opposed the
application on three main grounds. He submitted firstly that the order made by
the court on 5 August 2010 did not deal with the division of money which was
held in accounts outside Zimbabwe
and therefore he was not in contempt of any court order. Secondly he stated
that the money which the applicant was claiming in his Cyprus account
was his inheritance money to which she was not entitled. The money in his South
African account belonged to him and he further stated that whilst she had
enjoyed access to the account whilst they were still married that privilege had
since been withdrawn. Finally he stated that the applicant had appealed against
the court's judgment thus suspending its operation. He thus submitted that he
was not in contempt of any order.
Contempt
of court has been defined as "a willful and mala fide refusal or
failure to comply with a civil court order constituting a contempt for which
the State can prosecute" (See Levy v Benatar 1987 (1) ZLR 120 (S). In order
for a party to be in contempt of court the applicant must show that the
respondent willfully disobeyed a court order. The order which was issued by
this court was made in the following terms:
"1. That a decree of divorce shall issue.
2. That
custody of the minor child A be and is hereby awarded to the plaintiff with the
defendant having reasonable access to him.
3. That the defendant shall be entitled to have access to the minor
child as set out below:
(a) every alternate weekend from
close of school on Friday afternoon until he returns the minor child to school
on Monday morning and
(b) every alternate public
holiday, half of every school holiday and alternate Christmas periods.
4. That the defendant shall contribute to the maintenance of the
minor child A:
(a) by paying to the
plaintiff the sum of US$500-00 for A, the first such payment for the month of
June 2010 to be made forthwith and subsequent payments to be made on the first
day of each succeeding month until the child attains the age of 18 years or
becomes self-supporting whichever last occurs; and
(b) by maintaining the minor
child A as a dependent on a medical and dental aid policy and bearing all
shortfalls and shall reimburse the plaintiff in respect of any monies paid by
her for the medical or dental treatment of the minor child; and
(c) by paying all school
fees, including tertiary education, and any costs and charges in regard to the
education of the minor child including the costs of school uniforms, sport
clothing and equipment, footwear and any extra mural activities as well as the
cost of all transportation arising in respect of school activities up to
tertiary education.
5. That the plaintiff shall
reside in the matrimonial home with the minor child until such time as the
minor child attains the age of 18 years or becomes self- supporting, whichever
last occurs.
6. That at the expiry of
the period referred to in para 5 above the matrimonial home which is equally
co-owned by the parties, shall be sold and the net proceeds shall be equally
divided between the parties subject to the following:
(a)
if the parties cannot within 30 days of the minor child
attaining the age of 18 years or becoming self-supporting whichever last
occurs, agree on a valuator, the Registrar shall at the request of either party
appoint a valuator from his Panel of Valuators within 30 days of such request;
(b) the valuator shall as
soon as possible value the property and if there are any outstanding
obligations, shall indicate the net value thereof;
(c) the costs of valuation
shall be paid by both parties in equal shares;
(d) The plaintiff shall,
within 6 months of the date of the valuation referred to in subpara (b) above
pay to the defendant 50% of the net value of the property as determined in
terms of subpara (b) above;
(e) If the plaintiff fails
to comply with subpara (d) above then the defendant is given the option to pay
to the plaintiff 50% of the net value of the property within 6 months
thereafter; and
(f) In the event that
neither party is able to pay out the other in terms of subpara(s) (d) and ?
above, then the property shall be sold to best advantage by an independent
estate agent appointed by the Registrar from the Registrar's Panel of Estate
Agents and the net proceeds shared equally between the parties;
.
7. That all household
furniture and contents in the matrimonial estate shall remain in the
matrimonial home until the house is sold in terms of para 6 above when the
furniture and contents will then be equally divided between the parties as
agreed at the pre-trial conference.
8. That the defendant shall pay costs of
suit."
It
is quite clear that the order does not deal at all with the sums claimed. It is correctly conceded by the applicant in
her heads of argument that the order of the court a quo made no order as regards the division of cash assets held in
Australia, Cyprus and South Africa. At p 4 of the heads of arguments counsel
for the applicant states as follows:
"Regrettably,
that means that the respondent cannot be held in contempt of the order given at
trial ."
Clearly therefore the applicant erred
in filing an application for contempt of court.
Counsel
for the applicant in their Heads of Argument and in submissions to the court
submitted that the court should however, on the papers filed, grant a
declarateur stating that the applicant is entitled to the sum of money in the foreign
accounts. The applicant's counsel filed an amended draft order attached to his
Heads of Argument which states as follows:
Whereupon
after reading documents filed of record and hearing Counsel:
IT
IS ORDERED:
1.
It be and is hereby declared that the respondent is
under a legal obligation in terms of this Order to pay to the applicant the sum
of US$58 092-94, together with one half of the amount that was standing as at
10 December 2008 in the bank account in South Africa, namely: FIRST NATIONAL
BANK, FOURWAYS BANCH, GAUTENG; account number 00001182582.
2.
The applicant is under similar legal obligation to pay
to the respondent the sum of AU$13 192-47.
3.
Should either party fail to tender their respective
obligations herein, within 10 (ten) days of the date of service of this Order,
the aggrieved party shall have the right to approach this Honourable Court on
the same papers, supplemented where necessary for an Order of Contempt of Court
against the defaulting party.
4.
The respondent shall bear the costs of this application
on the punitive scale of attorney and own client."
Advocate
Morris for the applicant argued most
persuasively that the court in the exercise of its inherent powers may grant
the amended order sought as the respondent had made admissions during the trial
that the applicant was entitled to the money claimed.
I was however not persuaded by this argument
for several reasons. Firstly, it is trite that in application procedure the applicant's
case stands or falls on their papers. The applicant cannot seek to raise a new
point in argument. In the case of Crundall Brothers (Pvt) Ltd v Lazarus N O & Anor 1990 (1) ZLR 290
at 300 SMITH J stated as follows:
"When as in
this case the proceedings are launched by way of notice of motion, it is to the
founding affidavit that which the judge will look to determine what the
complaint is. As was pointed out by KRAUSE J in Pountas' Trustee v Lahanas
1924 WLD 67 at 68 and has been stated in many other cases:
'.an applicant
must stand or fall by his petition and the facts alleged therein and that,
although sometimes it is permissible to supplement the allegations contained in
the petition, still the main foundation of the application is the allegation of
facts stated therein, because those are the facts which the respondent is
called upon either to affirm or deny.'"
In
this case the applicant's founding affidavit states in no uncertain terms that
she seeks an order for contempt of a court order. The respondent in the opposing affidavit answered
to the claim for contempt of court which had been brought against him. No other
opportunity was available for him to deal with the new claim which was now
being sought by the applicant as it was raised in heads of argument. It seems
to me that the proper way to have proceeded in this matter would have been for
the applicant to withdraw the application and to file one which was in line
with her new claim. Advocate Morris submitted that the cost of filing a fresh application was not justified as
the applicant had merely changed the relief sought and the relief could be
granted on the same papers. Whilst the issue of costs cannot be denied, it does
not justify denying another party in the proceedings with the right to be
appraised of the nature of the case they are facing and to be given a right to
respond.
Secondly, it was not immediately
clear what the legal basis of application was. It was not clear from the
arguments placed before me whether or not this was an application to
supplement, clarify or correct the judgment which had been made by the court on
5 August 2010. Whilst it is accepted that this court has inherent jurisdiction
under common law to supplement, clarify or correct its own judgment it can only
do so in very limited circumstances. The rationale being that once a court has
delivered a judgment it becomes functus
officio. The authors HERBSTEIN and VAN WINSEN in "The Civil Practice of the
Supreme Court of South Africa"4th edition at p 686 outlines the
circumstances in which the court can exercise these powers. These are set out
as follows:
"(1) The principal judgment or
order may be supplemented in respect of accessory or consequential matters, for
example costs or interest on the judgment debt that the court overlooked or
inadvertently failed to grant.
(ii) The court may clarify its judgment or
order if on a proper
interpretation
the meaning of it remains obscure, ambiguous or otherwise uncertain so as to
give effect to its true intention, provided that it does not thereby alter "the
sense and substance" of the judgment or order.
(iii) The court may correct a
clerical or arithmetical or other error in its judgment or order so as to give
effect to its intention. This exception is confined to the mere correction of
an error in expressing the judgment or order and does not extend to altering
its intended sense or substance.
(iv) If counsel has argued
the merits but not made submissions on costs and the court in granting the
judgment, also makes an order relating to costs, I may thereafter correct,
alter or supplement that order.
It would appear
that save in so far as questions of costs are concerned, this list of
exceptions is exhaustive."
In my view the application before me does not
fall within the exceptions set out therein and there is no basis for granting
the order sought.
Thirdly,
the admissions relied upon by the applicant were in my view extremely vague. Particular reference was made to para(s) 3 and
6 of a document which was titled "ADMISSIONS". I will quote the full
text of these paragraphs. Paragraph 3 states as follows:
"That the assets constituting
the marital estate at the date of institution of proceedings be equally divided
between the parties."
and para 6
states :
"That the marital estate
comprises the marital home (which is equally co-owned by the parties) and
assets of each of the companies LIMELIGHT and DEBPA, the motor vehicles and
household contents (excluding items inherited by either party or pre-owned by
them prior to marriage) and the monies in the external accounts (excluding the plaintiff's
inherited monies in the account in Australia"
In
my view the wording of the admissions in respect to the money held in these
external accounts was extremely vague and imprecise. The admissions do not name
the accounts which are subject to be shared or the amounts held therein. It is
apparent from the wording of the admission that the parties also held their
inherited funds in some of the accounts. The applicant, on the basis of this
admission seeks an order from this court making an award to her of a specific
amount from the Cyprus account and half of the money in a South African account.
It is apparent from the papers before me that the amount was not determined or
agreed at trial. The respondent, in his opposing affidavit, disputed the amount
claimed in the Cyprus
account. He further disputes applicant's entitlement to any money held in the
South African account. It seems to me that these are disputes of fact which
cannot be determined on the papers. I am not satisfied that on the papers
before me the applicant has furnished the requisite proof of her entitlement to
the amounts claimed in the amended draft order.
This
case highlights the need for legal practitioners to draft admissions with
clarity and precision. The manner in which the admission relating to the
external accounts is crafted in this case is so vague that it can be subject to
different interpretations as is now apparent in this case. It also raises the
importance of counsel seeking, in their submissions to the court at the end of
a trial, that agreements reached at pre trial conference stage be encompassed
as part of the order of the court. This is necessary for the parties to enforce
their agreements in the event of non compliance by one of the parties.
The respondent seeks costs on a legal
practitioner and client scale. In my view he is entitled to such costs. The
applicant should not have persisted in her claim in view of the concessions
made in her Heads of Argument and the apparent dispute on the papers with
respect to the money claimed and the lack of clarity with regards to the legal
basis for the order sought. I will therefore make an award of cost as prayed by
the respondent.
I therefore make the following order:
The
application is hereby dismissed with costs on a legal practitioner and client
scale.
Atherstone & Cook, applicant's legal practitioners
Venturus &
Samukange, respondent's legal practitioners
