THE SUPREME COURT OF APPEAL OF SOUTH AFRICA …

1 THE SUPREME COURT OF APPEAL OF SOUTH AFRICA . JUDGMENT. Case No: 499/12. Reportable In the matter between: SANDRA LEE DE HAAS APPELLANT. and GARRY JOHN FROMENTIN FIRST RESPONDENT. THE SHERIFF OF THE COURT : SANDTON SECOND RESPONDENT. TURQUOISE MOON TRADING 309 (PTY) LTD THIRD RESPONDENT. Neutral citation: De Haas v Fromentin (499/12) [2013] ZASCA 144 (30. September 2013). Coram: Mthiyane AP, Theron and Petse JJA and Van der Merwe and Zondi AJJA. Heard: 10 September 2013. Delivered: 30 September 2013. Summary: Contempt of COURT arising out of failure to pay maintenance in terms of agreement of settlement oral variation of agreement of settlement not established and in any event unenforceable as result of non-variation clause no reason to interfere with exercise of discretion of COURT below in respect of sanction.

2 2. _____. ORDER. _____. On APPEAL from: North Gauteng High COURT , Pretoria (Kollapen AJ sitting as COURT of first instance): The APPEAL is dismissed. _____. JUDGMENT. _____. VAN DER MERWE AJA (MTHIYANE AP, THERON AND PETSE JJA AND. ZONDI AJA CONCURRING): [1] The issue in this APPEAL is whether this COURT should interfere with the sanction for contempt of COURT imposed in respect of the first respondent by Kollapen AJ in the North Gauteng High COURT , Pretoria. The judgment of the COURT a quo is reported as GF v SH & others 2011 (3) SA 25 (GNP).

3 It granted leave to APPEAL to this COURT . [2] The second and third respondents have no interest in the APPEAL . The first respondent (the respondent) does, but did not participate in the hearing of the APPEAL . The appellant rightly did not persist in an attempt to place further evidence before this COURT . [3] The issue arose in the following manner. The appellant and the first respondent (the parties) were married to each other on 21 March 1992. Two children were born of the marriage, namely a boy born on 26 February 1995. and a girl born on 27 September 1997.

4 However, the marriage did not last. On 27 August 2002 the marriage between the parties was dissolved by order of the high COURT . An agreement of settlement between the parties was also made an order of COURT . In terms of the agreement of settlement custody of the minor children was awarded to the appellant, subject to the right of 3. reasonable access to the children of the respondent, who was the plaintiff in the action. [4] Clauses 4 and 5 of the agreement of settlement (the maintenance order) provided for maintenance for the children as follows: 4.

5 MAINTENANCE IN RESPECT OF THE CHILDREN. The Plaintiff shall pay maintenance in respect of the minor children at the rate of R5 000,00 (Five Thousand Rand) per month, per child, with effect from the first day of the month preceding the granting of a Final Order of Divorce and thereafter on the first day of each and every succeeding month. The maintenance referred to in hereof shall escalate annually at the Consumer Price Index (CPIX) rate, effective 12 (twelve) months after the granting of a Final Order of Divorce and thereafter on each anniversary of the granting of the decree of divorce.

6 Notwithstanding the provision embodied in paragraph hereof, same shall not be construed as a waiver by either of the parties from applying to COURT for an increase or decrease of the maintenance referred to in paragraph hereof. 5. EDUCATION AND MEDICALS IN RESPECT OF THE CHILDREN. The Plaintiff undertakes to make payment in respect of the children, either to the Defendant or to the creditors concerned, at the Defendant's option, against statements of account to be produced to him of: all medical, dental, physiotherapeutic, orthodontic, hospital, nursing home, surgical, ophthalmic, and like expenses, medicines not covered by prescriptions and prescribed medication.

7 Nursery, primary and secondary private school fees and extra lessons;. levies, school books, stationery, school uniforms and compulsory school outings within the Republic of SOUTH AFRICA ;. extra-mural sporting, cultural and academic activities, together with the costs relating to tuition fees, sporting equipment and attire relating thereto, including the cost of general tournaments, subject to a maximum payment of R500,00 (Five Hundred Rand) per month, per child in respect of all of the aforesaid;. the fees, books and equipment relating to the children's tertiary education at any university, college, art, computer or secretarial school or other place of like learning in the Republic of SOUTH AFRICA , including residence fees, subject to each child applying himself/herself with due diligence and showing an aptitude therefor.

8 '. 4. [5] However, within a few years disputes arose between the parties in respect of the payment of maintenance for the children. Despite attempts at settlement, these disputes and the acrimony between the parties escalated and on 15 April 2010 the appellant obtained a writ of execution against the moveable goods of the respondent for the sum of R303 , consisting of alleged arrear maintenance in terms of the maintenance order for the period May 2008 to April 2010. [6] The respondent responded thereto by issuing an application for setting aside the writ of execution on the ground that he was not in breach of his obligations in terms of the maintenance order.

9 The appellant in turn filed a counter-application in which she inter alia claimed an order declaring the respondent to be in contempt of COURT , in that he wilfully and mala fide breached the provisions of the maintenance order and an order committing the respondent to imprisonment or imposing an appropriate suspended sentence. [7] The COURT a quo set aside the writ of execution. It also declared the respondent to be in contempt of COURT in relation to the provisions of the maintenance order and imposed the following sanction: (3) The applicant is sentenced to six months' imprisonment, wholly suspended for three years, on condition that [he pay] the amount of arrear maintenance in the sum of R73 140,85, as follows: ( ) R20 000 by 20 December 2010.

10 ( ) R20 000 by 20 January 2011. ( ) R20 000 by 20 February 2011. ( ) R13 140,85 by 20 March 2011.'. In addition each party was ordered to pay their own costs in relation to the main application, the counter-application and the respondent's applications for condonation and striking out. There is no cross- APPEAL against the order declaring the respondent to be in contempt of COURT . As a result of subsequent events the appellant does not claim relief on APPEAL in respect of the order setting aside the writ of execution. 5. [8] The appellant relies on two grounds for the submission that the sanction is inappropriate.