In the matter between:
SAMSON RAPEANE Applicant
BERNADETTE RAPEANE Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola onthe 21st day of April,1993
This is an application for an order staying the writ of
execution in CIV\T\286\84 pending the determination of CIV\APN\56\86
On the 12th February, 1986 the respondent instituted
contempt proceedings against the applicant in CIV\APN\56\86 alleging
applicant did not comply with the order of this Court in the
parties divorce matter. The application was opposed and that matter
is till pending before this Court.
It is the applicant's submission that the respondent
cannot issue a writ of execution before CIV\APN\56\86 is determined
as he disputes his liability to maintain the respondent. He
avers that the minor children are now living with him after
2 the respondent gave their custody to him.
It was the condition of the maintenance order that
'maintenance order pendente lite should be continued pending the
division of the
The applicant avers that the assets of the joint estate
were depleted until there was nothing to divide. The applicant avers
he considers the matter urgent as he is likely to suffer
irreparable harm if the writ were to be executed while his liability
continue to maintain is still to be determined in CIV\APN\56\86 to
The respondent has not filed any opposing affidavit
instead her attorney filed a notice in terms of Rule 8 (10) (c) of
the High Court
Rules submitting that the question of applicant's
liability to pay maintenance to the respondent is res judicata
inasmuch as his
liability was decided in CIV\T\286\84.
I agree with the point of law raised by the respondent's
attorney. If the children are now living with the applicant it was
for him to apply to this Court for a variation of the
original order. In CIV\APN\56\86 the respondent seems to deny that
are permanently living with Che applicant. That is a
matter that will be decided when one of the parties
decides to set down CIV\APN\56\86, It seems to me that
none of them is prepared to do that.
I am of the view that the crucial question in this
matter is whether the division of the joint estate has been completed
or not. If
it has been completed the applicant is no longer under any
obligation to pay maintenance. One has to look at the report or
of Mr. Buys who was appointed the liquidator of the joint
estate by the order of this Court in the divorce proceedings.
In his supporting affidavit (which is Annexure "E"
to respondents's replying affidavit in CIV\APN\56\86) Mr, Buys
that in terms of his appointment as liquidator he took
possession of the bottle store. He avers that the applicant was not
with him right from the beginning. He confirms that
maintenance had been paid to the children from the proceeds of the
He informed the attorneys for both parties that the
bottle store and the estate could not afford to pay maintenance and
fees of the children from the proceeds of the bottle store
as he would only be using turnover to pay from and that he would not
able to buy any stocks.
In paragraph 6 of his affidavit Mr. Buys denies he ever
brought the applicant under the impression that he (Mr. Buys) was
4 responsible for payment of maintenance from the
proceeds of the bottle store as he clearly informed him that the
bottle store was
unable to maintain any payment. Applicant's
attorneys were also clearly advised of the situation.
In paragraph 7 of his affidavit Mr. Buys makes the point
that as far as the bottle store is concerned there are no further
to be divided between the parties except for the fittings
which will be revealed in the Estate Accounts.
In paragraph 8 he informs the Court that he is not able
this stage to complete his appointment as Trustee as he
has no cooperation from the applicant as he has informed his
attorneys to return the motor vehicle to him and that
he has not been able to trace the cash which the respondent alleges
to the estate. He alleges that until such time these problems
have been cleared up he is unable to complete the division of the
There is also the question concerning the house, the
liquidator has not been able to come to a final conclusion.
Under the circumstances outlined above it is quite clear
that the liquidator has not completed his work i.e. the division of
estate. The applicant cannot be heard to say that
liability to pay maintenance for his wife and children has
ceased. The order of maintenance is very clear; it never
said that payment of maintenance should be made out of the proceeds
bottle store. All it said was that the order of payment of
maintenance granted pendente lite shall continue until the division
the parties' joint estate. Because the division of the joint
estate has not been completed because of lack of cooperation by the
applicant with the liquidator the liability of the applicant shall
It is worth noting that in CIV\APN\24\84 the applicant
was sentenced to a fine of M300 or 6 months' imprisonment for
contempt of the
court's order dated the 28th November, 1983. That was
the order of payment of maintenance pendente lite.
According to the writ of execution the applicant has not
been paying maintenance on regular basis. The arrear maintenance is
as follows: February, 1984 - R200; July, 1984 -R200;
February, 1985 - R185; from March, 1985 to October, 1985 at R500x8 +
total - R4,585.00.
It is quite clear from the writ of execution that
immediately after he was sentenced for contempt of the Court's order
started defaulting again. This Court cannot suspend the
operation of its order when no sound reasons are given.
6 In the result the rule is discharged with costs.
J.L. KHEOLA JUDGE
21st April, 1993.
For Applicant - Mr. Nathane For Respondent - Mr.
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