Makau v Makau (CIV/T/ 360 of 96) [2002] LSCA 152 (17 December 2002)

IN T HE H I GH C O U RT OF L E S O T HO H E LD AT M A S E RU CIV/T/360/96 In the matter between: M A R G A R ET M A T S E B I SO M A K AU Applicant And DANIEL M O H A PI M A K AU Respondent For the Applicant: Mr. Sello For the Respondent: Mr. Mosito J U D G E M E NT Delivered by the Honourable Mr. Justice T. Monapathi on the 17th day of Deeember.2002 Applicant applies for committal of Respondent for contempt on alleged failure to pay arrear monthly maintenance since August 2000. The question of principle that arose during argument was a simple one. It was where an application for committal for contempt for failure of payment of monthly maintenance resulted in "a conviction." The sentence had been suspended on agreement by the parties to settle the total amount outstanding. The question was whether the application could be resuscitated merely by way of setting down of the same about two years later even if the impression given was that the punishment was suspended pending payment of earlier maintenance. -2- Mr. Sello for Applicant submitted that whether a lump sum for the monthly payments owing up to August 2000 was settled and paid, as soon as the Respondent stood owing for subsequent months he stood to be committed by a mere setting down of the application. Mr. Mosito for the Respondent contended otherwise. His argument was in the main that a fresh application had to be motivated where a new contempt is alleged to have arisen or was committed by way of failure to pay further maintenance. ] will come to this later. I however agreed with Mr. Sello that no lump sum was claimed in the notice of motion except that later after conviction a certain amount of arrear maintenance was agreed upon by the parties. The notice of motion for committal for contempt of court was filed on the 17th of January 2000. This was against the background that the Respondent had defaulted paying maintenance of M2500.00 per month to Applicant's Attorneys as ordered by the court as ancillary to divorce proceedings on the 2nd September 1999. In his answering affidavit the Respondent annexed copies of receipts for payment made either to court or his attorney. It may have been that a total payments were not clear until the parties reached the agreement about that lump sum on the . 9th August 2000 which may have been paid later. The last calculation was then in the amount of Ml3,502.33 or such was the amount allegedly paid over to the Applicant. The impression I got flowing from the attitude of the Respondent to the supplementary affidavit of the 19th July, 2000 was that the Respondent was not able to disprove that he had failed to pay over and above the original areas of the month of November, 1999 including April, May and June, 2000. To me the arithmetic which seems to have given both the Applicant and Respondent a lot of headache is a simple one. It would be resolved by calculating the number of months by monthly maintenance from September, 1999 up to June, 2000. Subtracting therefrom the paid month of M13,502.33. If the amount leaves a debit balance carry over the balance was to be carried over to the additional monthly payments up to August, 2000. There is no agreement that these sum constituted all arrears due at the time of its payment. This had to be cleared if it was proved that it was all the arrears. -3- Having done above a credit or debit balance will show. Having calculated from June, 2000 any current balance will carry over until the day when another order is made for committal. Because this was not done I exercised my discretion the way I did in my order. The proposition is simple. Balanced against the sum of M13,502.33 and the total amount of monthly payment to the date of application will be the amount owing for which application for committal would be appropriate. The difficulty is brought about because there is no proof or allegation by the Applicant of what exactly the Respondent is owing except that the court made its ruling on the 31st August, 2000 the Respondent owed monthly maintenance up to June, 2000. It can only mean that the Respondent became owing for additional months to date if he did not pay. But how much was it ? The present position is that it is not clear what the total amount of monthly maintenance is except that the great probability is that some maintenance must have been owing since the date of the court's order of August, 2000. Mr. Mosito was not willing to venture as to what amount his client was owing without proper evidence or averments properly set out. Indeed I accepted that he ought to be allowed to consult his client first. I agreed however with Mr. Sello that the Respondent must be owing some amount of arrear maintenance but it was not clear as to what the amount added up to. -4- I recorded that as at the time of the order of contempt in August 2000 there had even been filed an application for variation of the amount of maintenance by the present Respondent. The application was opposed but was never argued. There is again in the file a notice of motion filed by the Applicant this time for variation or deleting "of the order made by this Honourable court on 21st July 1998 by substituting there fore the following months for four children namely: Ml,057.34, Ml,664.90 per month, Ml,660.90 per month and Ml,057.00 per month." This application was served on the Respondent on the 16th October, 2002. Presumably the application is uncontested. There had also been several postponements and set downs for hearing ending on the last one of the 13th December, 2002 I was able to count about three additional notices of that kind. Included in the scenario are squabbles about the proper setting down of the application all which added to the matter crying out for an attitude that seeks for finality and reasonableness in approaching it. So far something seemed to be lacking. The answer to the problem seems to be that the application for contempt that was finalized in August, 2002 was closed because the Respondent under took to purge by way of paying up and he did attempt to pay up. He may have not paid up fully but this remains a matter of evidence. Such evidence was lacking. It could only be cured by a supplementary affidavit to which the other side had to respond. This court can not therefore commit Respondent for contempt by imprisonment or otherwise in the absence of fresh evidence. Conceptually it would have been better but not quiet ideal if a fresh Notice of Motion had been filed to enable Respondent to respond thereto before argument but not after when it was realized that the step taken by the Applicant was problematic only by reason of the fact that it was unclear as to how the agreement between the parties was complied with. In any event there should be fresh evidence by way of supplementary affidavit. -5- In the total circumstances of this matter and in my view fresh evidence has to be placed before court to enable the Respondent to make up his attitude after due consultation. As I said ideally it would have to be a fresh Notice of Motion which would even be more proper and elegant than a supplementary affidavit but we are faced with a situation where there is a doubt as to what happened about the calculations that stemmed from the last order of this court. In fact the real worry is how much has in fact been paid. It suggests therefore that the matter seems to belong to the past order. That is why the convenience of a fresh Notice of Motion even if it were good need not necessarily follow. The procedure ultimately conceded to by Mr Sello would be akin to re-opening of unopposed motion and adducing of further evidence. For the principles see L. F. Boshoff Investments vs Cape Town Municipality 1969(2) SA 257(C. P. D.). The answer to the question I posed is that the facts do not perfectly cry out for an ideally fresh process or a Notice of Motion. There is a doubt as to what transpired after the order of August 2000. I repeat that most probably the Respondent is in arrears by more than one month but this has to be properly proved. The finding that I make is that the argument by Mr. Sello fails with cost to the Respondent with the order that m . the Applicant may file a fresh supplementary affidavit as he also requested in the end. This is my order. T. MONAPATHI JUDGE