As highlighted in the Viljoen case, navigating divorce and contempt of court issues underscores the importance of adhering to Settlement Agreements to avoid costly and emotionally taxing legal disputes.
The Viljoen v Viljoen 2022-025096 Contempt of Court matter (South Gauteng High Court) is a significant case that we had the privilege of assisting our client with. This complex legal matter highlights key issues related to divorce and the enforcement of Settlement Agreements that were made Orders of Court. Our involvement underscores the importance of ensuring compliance with court orders to avoid severe consequences, such as contempt proceedings. Through this article, we explore the case details, legal principles, and crucial lessons that arose from our client’s experience.
Today, it is clear that it is often better to settle a divorce where possible rather than drag the matter into a long, costly, and taxing trial. To this end, many parties who have decided to settle use a Settlement Agreement to decide on the terms of a divorce before approaching the court and requesting that it be made an Order of Court.
Unfortunately, not all cases see the Settlement Agreement followed as it was intended to be.
The case in point is a matter for Contempt of Court, which was brought before the Johannesburg High Court after a divorce had been granted, and as might have been guessed from the above, a Settlement Agreement made an Order of Court.
Subsequently, the Defendant, now Respondent, failed to comply with the terms set out in the Settlement Agreement, prompting the Application at hand.
The Parties in the Application were married to one another on 7th March 1988 and elected to divorce one another, countersigning a Settlement Agreement in July and August of 2023, respectively.
Following the Settlement Agreement being made an Order of Court in October 2023, the Plaintiff contacted the Defendant on multiple occasions, requesting that the Defendant comply with its terms.
Particular emphasis was placed on the desire to transfer a business into the Plaintiff’s name, providing all information, executing all documents, and taking all steps necessary to formally transfer the property to her name. This was in addition to meeting any conditions required by the Companies and Intellectual Property Commission.
However, although initially undertaking to follow through on these steps, the Defendant failed to comply with these terms, prompting the current contempt of High Court Application.
It is worth noting at this point that the Plaintiff had complied with the obligations placed upon her in the Settlement Agreement, paying R1 000 000.00 to the Defendant within three working days of the Settlement Agreement’s signature.
For many months, the Respondent consistently resisted compliance and failed to fulfill the terms of the Court Order related to the divorce settlement in the Viljoen case. Had the Respondent adhered to the Court Order, further legal proceedings, including the contempt of court application, could have been avoided. Unfortunately, this compliance did not materialize, necessitating legal action.
Finally, as a last resort, the Plaintiff launched a Contempt of Court Application against the Defendant, making them Applicant and Respondent, respectively, and claiming that the Respondent was to be found in contempt of the Court Order of October 2023. He was directed to comply with the Court Order, and if he failed to do so, he was to be imprisoned for failing to abide by it.
Was the Respondent in wilful contempt of court?
Rule of Law
Contempt of Court requires that certain steps have been followed and requirements met before contempt of court can be deemed to exist.
Firstly, a Court Order must exist.
Secondly, the offending party must have knowledge of the Court Order, usually affected through serving the Order on the party.
Thirdly, the Order must not have been complied with.
The Respondent then is required to prove beyond reasonable doubt that his contempt was neither wilful nor mala fides.
It is clear from the outset that a Court Order existed, in terms of which the Settlement Agreement was made an Order of Court.
Further, the Respondent failed to abide by the terms as contained in the Settlement Agreement in terms of the Court Order.
As a result thereof, it can already be shown that there was non-compliance on their part.
With regard to the service element, or that the Respondent had knowledge of these terms, the Respondent had signed the Settlement Agreement. However, it is worth noting that the Settlement Agreement had not been made an Order of Court at that point.
The Court Order was served with the Settlement Agreement upon the Respondent. Prior to the Contempt of Court Application being launched, it had additionally been served on the Respondent, leaving them without excuse to claim they had no knowledge of the terms of which they were in breach.
At this point, the Respondent was required to prove that there was no wilful intent to be in contempt of court and that they were not acting mala fides.
At the hearing date for the Contempt of Court Application, the Respondent did not appear before the court. Hence, the court ordered that the Respondent was guilty of contempt of court, ordering them further to comply with the terms of the Settlement Agreement and Court Order within 15 days of service of this Court Order.
The court then issued a rule nisi, returnable on 26th August 2024, and called on the Respondent to show cause, if any, why a Final Order should not be issued on the terms sought in the Application. This is as good a time as any to note that the Application did seek the imprisonment of the Respondent.
Obviously, the Respondent would be worried about a Final Order for their imprisonment.
The unstamped Order of the First Hearing was served upon the Respondent on the same day, and the Stamped Order was to be served upon the Respondent, leaving the required amount of time for the Respondent to comply with the Court Order before the return date of 26th August 2024.
Unfortunately, the Respondent would still fail in their court-ordered responsibilities, and their attorneys were contacted about such.
A Writ of Commitment, also known as a Writ of Committal, was then drawn and prepared for the return date.
Immediately preceding the return date, the Respondent transferred the business to the Applicant, and the rule was extended to 7 October 2024.
The matter was then finalised, allowing our client to move forward and focus on her business.
As a result of the above, the matter became settled. However, punitive costs were claimed by the Applicant (one could assume this was a result of the longstanding period of contempt of court) and granted against the Respondent.
In order to save yourself the trouble of having a Contempt of Court Application brought against you, it is vital to follow the terms of the Settlement Agreement, to which you agreed. Not much more needs to be said on this part.
After all, how bad must one’s settlement terms be in order for imprisonment to be preferable?
As an Applicant, however, I know that there are further key points to be taken away from this.
For Contempt of Court Applications after a divorce, the Settlement Agreement must have been made an Order by the Court for the terms to be viewed as a Court Order.
The offending party must have been aware of their obligations regarding the Settlement Agreement. While they did sign it, it may be best to serve the Order and the Settlement Agreement on the offending party after the Order has been granted and the Agreement made an Order of Court. Such would be an ironclad manner of ensuring the offending party has knowledge of their obligations.
The last requirement for the Applicant to prove ‘in contempt of court’ proceedings is that there was a breach of the Court Order. Double-check, and if uncertain, consult an attorney to determine if the Court Order has, in fact, been breached.
The Offending Party (the Respondent) will then have to prove that such breach was not wilful or mala fides or be found guilty of contempt of court.
It is important to note that while the Respondent may have avoided imprisonment by eventually complying with the Court Order, our client was awarded a cost order in her favour on an attorney-and-client scale. This demonstrates that non-compliance can still result in significant financial repercussions, even if compliance is achieved later, ultimately providing little relief for the offending party in the broader context.
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