Cape Town - The Constitutional Court has upheld an appeal against a divorce and cost judgment ordering a man to pay R500 000 to his ex-wife for rental income made from a Mozambique property.
David and Rochelle Riley were married in Zimbabwe in 1989, out of community of property, under the accrual system.
They relocated to South Africa in 2015 and their divorce was granted in February 2018.
Both parties were to remain joint owners of a property in Maputo and would be equally entitled to whatever rental income the property generated.
The divorce agreement also said David would transfer 40% of his shareholding in his businesses in Mozambique and in his South African business to Rochelle within 60 days.
In January 2019, Rochelle launched a contempt application in the North Gauteng High Court in Pretoria on the basis that she had not received her share of the rental income from the Mozambique property, and that David had not transferred the business shares into her name.
In July that year, the high court granted an order of contempt on the basis that David had wilfully failed to comply with the divorce order.
David opposed the contempt application and brought a counter-application in which he sought an order allowing him to retain sole ownership of the property in Mozambique. He also wanted to keep all shares in his Mozambique businesses instead of signing over 40% to Rochelle.
In its ruling, the high court held David in contempt of the divorce order and sentenced him to 60-day imprisonment unless he made payment of Rochelle’s rental income share into her South African bank account within 30 days of the order.
David applied for leave to appeal against the whole of the contempt order, but this was dismissed by the high court and the Supreme Court of Appeal, leaving him with the last resort of the Constitutional Court.
In the Constitutional Court, David argued the high court had unilaterally amended the order of the Mozambique property and imposed as a fine the 60-day imprisonment even though the enforcement of judgments debts does not form a part of contempt proceedings.
In a unanimous judgment written by Judge Zukisa Tshiqi, the Constitutional Court ruled that it was in the interests of justice for it to grant David leave to appeal.
Judge Tshiqi found that David’s failure to make the payment did not place him in contempt of the court order as the evidence before the high court did not establish that his failure to comply with the order was wilful and in bad faith. The court also pointed out that imprisonment for the failure to pay a debt was unconstitutional.
mwangi.githahu@inl.co.za