Judgment record
Debrah Gloria Koumdes v Paul Koumdes
HH 35-2012HH 35-20122012
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HH 35-2012
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DEBRAH GLORIA KOUMIDES
versus
PAUL KOUMIDES
HIGH COURT OF ZIMBABWE
GUVAVA J
HARARE, 13 January & 16 February 2012
FAMILY LAW COURT
Opposed Application
E Morris, for the applicant
J Samukange, for the respondent
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
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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withdrawn all the funds held in a Cyprus account held by the respondent.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.
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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.
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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:
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"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.
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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
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functus officio. The authors HERBSTEIN and VAN WINSEN in “The Civil Practice of
the Supreme Court of South Africa”4 th 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
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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:
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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