R […] H […] K […] v D […] L […] F […]
High Court of South Africa, Eastern Circuit Local Division, Thembalethu, George
Case Numbers 587/2023 & 22313/2024 – judgment delivered 19 June 2025
This judgment is reportable because it gives detailed guidance on the interplay between contempt-of-court proceedings and a subsequent Uniform Rule 43(6) variation application. The court also clarifies when the launching of fresh interlocutory proceedings constitutes an irregular step under Rules 30 and 30A, and explains the circumstances in which a litigant’s non-compliance with an existing Rule 43 order may bar or delay a later variation application. The decision will therefore assist practitioners and courts dealing with acrimonious matrimonial litigation where multiple interim applications overlap.
The judgment, as released, did not quote or rely on any previous authorities by name. No decided cases were expressly cited.
The judgment makes no direct reference to statutory provisions.
Uniform Rule 34(1)
Uniform Rule 43 (and specifically Rule 43(6))
Uniform Rule 30
Uniform Rule 30A
Four interlocutory applications, all rooted in protracted divorce proceedings, came before Mangcu-Lockwood J. They comprised: (a) an application to commit the husband, Mr F[…], for contempt of court for failure to pay R1 270 000 due under a Rule 43(6) order of 29 April 2024; (b) a fresh Rule 43(6) application by the husband to vary that same order on the basis of changed financial circumstances; and (c) Rule 30 and Rule 30A notices by the wife, Ms K[…], challenging the variation application as an irregular step. The court was required to consider the interrelationship of these applications, decide whether contempt had been established, and pronounce on the procedural regularity and timing of the husband’s variation proceedings.
Whether the husband’s non-payment amounted to wilful and mala fide contempt of the order of Gamble J.
Whether a litigant in breach of a subsisting Rule 43(6) order may institute a fresh Rule 43(6) application without first purging the contempt.
Whether the wife’s resort to Rule 30 and Rule 30A was procedurally sound or itself an abuse of process.
Mangcu-Lockwood J held that the husband’s persistent failure to pay the outstanding R1 270 000, despite having accessible assets, amounted to deliberate disobedience and thus contempt. The court declined to entertain the husband’s fresh Rule 43(6) variation until he had complied with, or successfully set aside, the existing order. The wife’s Rule 30/30A objection was therefore upheld, and the husband’s variation application was struck from the roll as an irregular step. A suspended committal order was granted, coupled with a peremptory directive that the outstanding amount be paid within ten court days, failing which the sheriff was authorised to act and a warrant of arrest would issue.
The parties are embroiled in acrimonious divorce litigation. On 29 April 2024, Gamble J made a comprehensive Rule 43(6) order obliging the husband to pay the wife R3 025 113.60, of which R2 000 000 was due within seven court days. The husband paid only R730 000, leaving R1 270 000 outstanding.
When pressed for payment the husband sought the wife’s consent to surrender two joint foreign-based policies (Quilter and Utmost) to raise the funds. The wife refused, contending that he had other readily available assets—including an Etoro investment account reportedly holding R946 000—and that the policies formed part of the broader matrimonial estate.
After several unanswered letters, the wife launched contempt proceedings on 24 October 2024. The matter was struck from the roll for want of appearance in December 2024 but was reinstated by order of the Deputy Judge President on 10 March 2025. Meanwhile, on 3 February 2025 the husband initiated a new Rule 43(6) application seeking to reduce his maintenance obligations, asserting a deterioration in his financial position.
The wife responded with Rule 30 and Rule 30A notices, arguing that the husband’s variation bid was an irregular step because he remained in default of the earlier order and because Rule 43(6) is not a vehicle to revisit matters already adjudicated absent a material change of circumstances supported by full disclosure.
The court had to decide, first, whether the husband’s failure to pay the outstanding R1 270 000 was both wilful and mala fide, constituting contempt. Secondly, it had to determine whether a party in default of a Rule 43 order can launch a fresh Rule 43(6) application, or whether such an application is impermissible until compliance (or a successful rescission) occurs. Thirdly, the court had to assess whether the wife’s invocation of Rules 30 and 30A was a legitimate procedural response or itself an abuse.
Mangcu-Lockwood J began by reiterating the trite elements of civil contempt: the existence of a valid order, knowledge thereof, and non-compliance that is both wilful and mala fide. The husband conceded knowledge of the order and the outstanding amount. His sole defence was inability to pay unless the wife consented to surrender the joint policies.
The court examined the evidence placed before it, including correspondence from the forensic accountant, Mr Harcourt-Cooke, indicating that the husband could readily access substantial funds in the Etoro account. No acceptable explanation was given for his failure to liquidate those assets. The court held that an alleged inability to pay is not bona fide when a contemnor elects not to utilise available resources.
Turning to the variation application, the court noted that Rule 43(6) may be invoked when material changes in circumstances arise. However, a litigant in wilful default is not entitled to approach the court for fresh relief until he has purged his contempt. Allowing such an application would undermine the authority of prior court orders and encourage tactical non-compliance. Because the husband had not complied with Gamble J’s order, the fresh Rule 43(6) constituted an irregular step.
Regarding the Rule 30/30A notices, the court found that the wife was entitled to object procedurally instead of filing a substantive answer to the defective variation application. Her failure to deliver an opposing affidavit did not render her notice an abuse; rather, it was a proportionate response meant to avoid unnecessary costs.
The court declared the husband in contempt but suspended committal on condition that he pay the outstanding R1 270 000 within ten court days. Failing such payment, the warrant of committal would automatically take effect and the sheriff was authorised to arrest him.
The husband’s Rule 43(6) variation application was struck from the roll with costs on an attorney-and-client scale for being an irregular step. The wife’s Rule 30 and 30A application succeeded, and she was awarded the costs of all four interlocutory applications, including the contempt proceedings.
A litigant’s inability-to-pay defence in contempt proceedings fails where evidence shows he has alternative assets that could be liquidated without undue hardship.
Rule 43(6) remains available for genuine changes in circumstance, but a party in wilful default must first purge that default before invoking the sub-rule. The court retains an inherent discretion to refuse to hear a party in contempt.
Rule 30 and Rule 30A provide effective procedural mechanisms to strike or stay steps that are irregular or amount to an abuse, especially in high-conflict matrimonial litigation where multiplicity of interlocutory applications may otherwise prejudice an innocent party.