SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 1308/2024
In the matter between:
J[...] S[...] H[...] Applicant
versus
M[…] S[…] H[...] First Respondent
E[…] H[...] Second Respondent
R[…] H[...] Third Respondent
Coram: Adhikari AJ
Heard: 26 January 2024
Delivered: 26 January 2024
REASONS FOR THE ORDER MADE ON 26 JANUARY 2024
DELIVERED ON 16 FEBRUARY 2024
Delivered: These reasons for the order made on 26 January 2024 were
handed down electronically by circulation to the parties' legal representatives
by email. The date for the provision of reasons is deemed to be on
16 February 2024.
2
ADHIKARI, AJ
[1] These are the reasons for the order granted on 26 January 2024, pursuant to
an application for reasons in terms of Rule 49(1)(c) delivered by the applicant
(‘Ms H[...]’) on 30 January 2024. The provision of these reasons was unfortunately
delayed because Ms H[...]’ attorney was apparently unable to locate the court file for
some two weeks. The file was returned to my chambers only on 12 February 2024.
[2] Acrimonious and protracted divorce proceedings are pending between
Ms H[...] and her husband, the first respondent (‘Mr H[...]’).1 There are two minor
children born of the marriage both of whom reside with Ms H[...]. Ms H[...] instituted
proceedings in 2019 in terms of Rule 43 for interim relief pendente lite
(‘the Rule 43 proceedings’). This Court per Le Grange ADJP granted an order in the
Rule 43 proceedings on 3 April 2019 which directed which Mr H[...], inter alia, to pay
maintenance to Ms H[...] and the minor children pendente lite (‘the Rule 43 Order’).
[3] The divorce proceedings have not been finalised despite the passage of some
5 years. The parties have been embroiled in ongoing litigation relating to Mr H[...]’
alleged non-compliance with the Rule 43 Order.
[4] On 11 June 2021 Ms H[...] instituted urgent contempt proceedings seeking ,
inter alia , compliance with paragraphs 3.1; 3.2 ; 5 and 6 2 of the Rule 43 Order.
These provisions all relate to the payment of maintenance pendente lite to Ms H[...]
1 In the remainder of this judgment I refer to Ms H[...] and Mr H[...] collectively as ‘the parties’.
2 Paragraph 3.1 provides that Mr H[...] is to contribute an amount of R6 000 per month per child
toward the maintenance of the children. Paragraph 3.2, in relevant part, provides that payment of
the aforesaid amounts is to made on or before the first day of the month succeeding the granting
of the order.
Paragraph 5 provides that Mr H[...] is to pay an amount of R5 000.00 per month to Ms H[...] in
respect of maintenance pendente lite. Paragraph 6, in relevant part, provides that that payment of
the aforesaid amounts is to made on or before the first day of the month succeeding the granting
of the order.
3
and the minor children (‘the maintenance contempt application’) . A copy of the
maintenance contempt application was not placed before me in these proceedings,
nor was the relief that was sought in Part B of that application dealt with in the
founding affidavit in this application. I was able to glean from the allegations in the
founding affidavit, as well as from a copy of the judgment that was granted by
Maher AJ in the maintenance contempt application, that in Part A of the notice of
motion in the maintenance contempt application Ms H[...] sought an order directing
Mr H[...] to immediately comply with paragraphs 3.1; 3.2; 5 and 6 of the
Rule 43 Order. It is however, unclear what relief she sought in Part B save that relief
was sought in the form of a rule nisi.
[5] On 15 June 2021 this Court granted an order by agreement between the
parties in the maintenance contempt application that provided, with respect to Part A,
that Mr H[...] would immediately comply with the provisions of the Rule 43 Order.
The order, in addition, postponed the hearing of Part B of the maintenance contempt
application to 19 August 2021 and set a timetable regulating the further conduct of
Part B. On 19 August 2021 this Court granted a further order by agreement in
respect of Part B of the maintenance contempt application, in which it was confirmed
that Mr H[...] would comply with the provisions of the Rule 43 Order, failing which
Ms H[...] was granted leave to re-enrol Part B on 72-hours’ notice.
4
[6] Ms H[...] re-enrolled the maintenance contempt application i n
November 2022.3 It appears from the judgment of Maher AJ that Ms H[...] sought to
hold Mr H[...] in contempt of paragraphs 3.1; 3.2; 4.4; 4 5 and 6 of the Rule 43 Order
as this is the relief that was eventually granted by Maher AJ. It is unfortunate that
Ms H[...] failed to deal in her founding affidavit in this application, with the nature of
the relief sought in the re- enrolled the maintenance contempt application, given that
she contends in these proceedings that the “[Mr H[...]] has signally failed to comply
with numerous Orders of Court” and that “there has still been no compliance by
[Mr H[...]] with the Rule 43 Order”.
[7] It is unclear when the re- enrolled maintenance contempt application was
heard, however, judgment was handed down in that matter on 18 July 2023.
Mr H[...] applied for leave to appeal against the judgment of Maher AJ. The
application for leave to appeal was heard on 18 August 2023. On
14 September 2023 Maher AJ dismissed the application for leave to appeal.
[8] On 10 October 2023 Ms H[...] instructed her attorneys to issue a writ for
Mr H[...]’ committal to prison “as a result of [his] continued non- compliance”.
Ms H[...]’ founding affidavit in these proceedings is silent as to the nature of Mr H[...]’
“continued non-compliance” which resulted in her instructing her attorneys to issue
the writ. On 11 October 2023 the proceeds of an Old Mutual retirement annuity held
by Mr H[...] was paid over to Ms H[...]. On 12 October 2023 Mr H[...] was arrested by
the Sheriff and incarcerated at Pollsmoor Prison. Later that day the writ was stayed,
pursuant to urgent proceedings in this Court before Erasmus J, who in addition, took
3 In the founding affidavit in these proceedings, Ms H[...] states that she re-enrolled the maintenance
contempt application on 22 November 2022 but in the judgment of Maher AJ he states that the
application was re-enrolled on 17 November 2022.
4 Paragraph 4.4 of the Rule 43 Order provides that Mr H[...] is to pay the electricity account at the
property in Stonehurst Mountain Estate where Ms H[...] and the minor children reside.
5
on the role of the case management judge in the divorce proceedings in that he was
of the view that the divorce proceedings ought to be finalised expeditiously.
[9] On 13 December 2023 the Supreme Court of Appeal granted Mr H[...] leave
to appeal to the full bench of this Division against the contempt order granted by
Maher AJ.
The proceedings before this Court
[10] Ms H[...] approached this Court on an urgent basis for relief in two parts.
[11] In Part A of the notice of motion she sought orders directing that:
[11.1] Mr H[...] pay arrear school fees in respect of the minor children
within 48 hours;
[11.2] Mr H[...] comply with paragraph 3.4 of the Rule 43 Order;
5
[11.3] In the event that Mr H[...] failed to pay the arrear school fees and
to comply with paragraph 3.4 of the Rule 43 Order within
48 hours, that the second and third respondent s (collectively
‘the paternal grandparents’)6 pay the arrear school fees within
48 hours and that the paternal grandparents pay the minor
children’s comprehensive educational costs as provided for in
paragraph 3.4 of the Rule 43 Order; and
5 Paragraph 3.4 of the Rule 43 Order provides that the first respondent is to contribute to the
maintenance of the minor children pendente lite by paying the children’s comprehensive
educational costs.
6 The second and third respondents are the first respondent’s parents and the paternal
grandparents of the minor children.
6
[11.4] In the event that Mr H[...] and/or the paternal grandparents failed
to pay the arrear school fees and to comply with paragraph 3.4 of
the Rule 43 Order:
[11.4.1] a warrant of arrest be issued for Mr H[...]’ immediate
committal to prison; and
[11.4.2] that Mr H[...] be sentenced to a period of 6 months
imprisonment, or such alternative period as the C ourt
may determine.
[12] In Part B of the notice of motion Ms H[...] sought orders directing that:
[12.1] A rule nisi be issued calling on Mr H[...] and the paternal
grandparents to show cause why the following orders should not
be granted:
[12.1.1] An order finding Mr H[...] in contempt for failing to
comply with paragraph 3.4 of the Rule 43 Order;
[12.1.2] An order directing that Mr H[...] be sentenced to a
period of 12 months’ imprisonment, suspended for
2 years on condition that:
12.1.2.1. Mr H[...] or the paternal grandparents pay
the arrear school fees within 48 hours of
the order being granted; and
12.1.2.2. Mr H[...] complies with the Rule 43 Order.
7
[12.1.3] A warrant of arrest be authorised and issued for
Mr H[...]’ immediate committal to prison for failing to
adhere to the conditions of the order granted;
[12.1.4] An order directing that Mr H[...] pay a fine due to his
contempt of the Rule 43 Order;
[12.1.5] An order directing that service of the order granted by
the Court may be served by email or any other means
on Mr H[...] and the paternal grandparents;
[12.1.6] An order directing that the order granted by the Court
not be suspended pending an appeal; and
[12.1.7] An order that Mr H[...] pay the costs of the application
on an attorney and client scale.
[13] Ms H[...] sought relief in respect of both Part A and Part B on an urgent basis.
[14] In Part A, Ms H[...] in effect sought a final order holding Mr H[...] in contempt
of the Rule 43 Order. This is clear from the fact that she sought an order directing
that Mr H[...], failing which the paternal grandparents, pay the arrear school fees
within 48 hours and that in the event of non- payment by any of the parties, Mr H[...]
be sentenced to a period of imprisonment. Consequently, in respect of the relief
sought in Part A, Ms H[...] bore the onus of meeting the requirements for contempt of
court.
8
[15] The requirements for contempt of court are trite. 7 They are: the existence of a
court order; the contemnor must have knowledge of the court order; there must be
non-compliance with the court order; and the non- compliance must have been wilful
or male fides. Once the first three elements have been shown, wilfulness and male
fides will be presumed and the evidentiary burden switches to the contemnor.
Where a committal is ordered, the standard of proof in civil contempt matters is the
criminal standard, 8 meaning that wilfulness and male fides must shown beyond
reasonable doubt.9 The contemnor has an evidential burden to create a reasonable
doubt as to whether his conduct was wilful and male fide. There is a different
standard of proof where no criminal sanction is sought - then, the standard of proof is
that of a balance of probabilities. 10 The hybrid nature of contempt proceedings
which results in committal, combines civil and criminal elements . A lleged
contemnors are entitled to the substantive and procedural protections which apply to
any individual facing the loss of his freedom.
[16] Mr H[...] did not dispute that he was aware of the existence of the
Rule 43 Order. He did, however, dispute that he had failed to compy with the order,
and that his conduct was wilful or mala fide. In essence, Mr H[...] contended that
paragraph 3.4 of the Rule 43 Order does not require him to pay the school fees for a
specific school, but only that he must pay for the children’s comprehensive education
costs. In addition, he contended that while he cannot afford the school fees for the
school that the children were attending in 2023, he is prepared to, and able to pay
the school fees for a less expensive school. Mr H[...] stated in his answering affidavit
7 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA); Pheko and Others v Ekurhuleni
Metropolitan Municipality 2015 (5) SA 600 (CC).
8 Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v
Compensation Solutions (Pty) Limited 2018 (1) SA 1 (CC) at para [61].
9 Matjhabeng at para [62].
10 Fakie at para [17]; Matjhabeng at para [64] – [67].
9
that he can afford to and is willing to pay the school fees for W […] G[…] H[…] S[…]
(‘WGHS’) where the annual school fees are R43 525.
[17] The minor children attended R[…] H[…], Constantia (‘R[…]’) until the end of
2023. Due to the impasse between the parties , the children have not been enrolled
in any school for the 2024 academic year. It was not in dispute between the parties
that the children’s annual school fees at R[...] exceed R270 000 per year. It was
further not in dispute that Mr H[...] had arranged for the children to attend WGHS and
that the children had been accepted into WGHS, but that Ms H[...] refused to consent
to the children moving to any school other than R[...] . Ms H[...] contended that
moving the children to another school would not be in their best interests and that
the children did not want to move to another school . It bears emphasis that no
evidence was placed before me as to why moving the children to a less expensive
school such as WGHS, or indeed to any school other than R[...], would not be in their
best interests.
[18] At the hear ing I expressed concern about the fact that the children were not
enrolled in any school , given that the academic year had started on
17 January 2024. Mr H[...]’ attorney reiterated that his client had made
arrangements with WGHS to accept the children for the 2024 academic year and
that his client had tendered to pay the school fees for WGHS. Ms H[...]’ attorney
reiterated that her client refused to consent to the children attending WGHS. In the
founding affidavit Ms H[...] stated that the older child had been enrolled at W […]
G[…]’ P[…] S[…] in 2015 but had to return to R[...] later that year because she could
not “adjust to the curriculum structure at W[…] G[…]’ P[…] s[…] and risked having to
repeat the grade”. No evidence was placed before me to substantiate the contention
10
that some eight years later, the eldest child would still face the same difficulties if she
were to attend WGHS nor was there any evidence before me that the younger child
would experience the same or similar difficulties if she was to attend WGHS.
[19] Ms H[...]’ attorney in argument stated that her client was of the view that the
children could not be expected to attend WGHS because it is a “government school”
and that the children were accustomed to the “ private school” environment of R[...] .
Notwithstanding the stance of Ms H[...] and in light of my concern that the children
were not attending any school at all, I stood the matter down to give the parties the
opportunity to try reach an agreement on enrolling the children at WGHS . The
parties were unfortunately unable to reach agreement.
[20] The order sought by Ms H[...] in Part A, would potentially result, inter alia , in
Mr H[...] losing his liberty. Consequently, before granting such relief it was
incumbent on me to determine whether Mr H[...] had failed to comply with the Rule
43 order, and if so, to determine whether his conduct was male fide and wilful
beyond a reasonable doubt. This in turn, required me to determine whether his
failure to meet his financial obligations in respect of the payment of school fees was
intentional, or as a result of the deterioration of his financial circumstances.
[21] Ms H[...] contended that Mr H[...] had failed to pay the R[...] school fees for
November and December 2023 and for January 2024, in the sum of R79 764.32.
[22] Ms H[...] stated in the founding affidavit that she had instructed her attorneys
to issue a writ for the attachment of Mr H[...]’ Old Mutual retirement annuity and that
on 13 October 2023 she received a payment of R277 653.62 from Old Mutual
pursuant to the warrant of execution. She further stated that she had used part of
this sum to settle the children’s outstanding school fees at R[...] and that on
11
16 October 2023 R[...] had confirmed that the arrear school fees for the 2023
academic year had been settled as a consequence of the payment.
[23] Ms H[...] stated in the founding affidavit that she used the remainder of the
sum received from Mr H[...]’ retirement annuity to settle her outstanding legal fees .
She did not disclose how much she paid in respect of legal fees, however, given that
the arrear school fees at the time amounted to R79 764.32, it is reasonable to
assume that the balance, being a sum of approximately R197 899 was paid in
respect her legal fees.
[24] In Part A of this application Ms H[...] sought an order directing that Mr H[...]
pay the sum of R40 414.60, which she characterised as “arrear school fees owing to
R[...]”. It appeared from the founding affidavit , that the sum of R40 414.60 was in
fact the amount that R[...] required for the children to commence schooling for the
2024 school year. T he school fees for 2023 were fully paid , and the reason that
Ms H[...] sought payment of the sum of R40 414.60 was because insisted that the
children attend R[...] and refused to consent to their enrolment at WGHS or any other
school. Consequently, it was not accurate to characterise this amount as “arrear
school fees”.
[25] Further, the Rule 43 Order only required that Mr H[...] pay an initial
contribution to Ms H[...]’ legal costs in the amount of R25 000 payable in 3 monthly
instalments commencing on 1 May 2019, and there is no allegation that this amount
was not paid. It is therefore unclear on what basis Ms H[...] was entitled to use the
sum received from Mr H[...]’ retirement annuity to settle her legal fees, as opposed to
paying for the children’s 2024 school fees.
12
[26] The Rule 43 Order does not state that Mr H[...] is required to pay the R[...]
school fees, but rather that he must pay “the children’s comprehensive educational
costs”. Mr H[...] arranged for the children to attend WGHS and tendered to pay the
school fees for WGHS. In addition, Mr H[...] set out his current financial position in
detail in the answering affidavit . He stated that he was previously able to meet his
obligations in terms of the Rule 43 Order because he took out a loan in the amount
of R600 000, secured by a bond over his property, and that he used the loan to pay
his arrear and ongoing maintenance obligations , and further that these funds have
now been depleted. Ms H[...] sought to dispute these allegations , contending that
Mr H[...] had failed to annex proof of how these funds were spent , or that the funds
had been used to pay his maintenance obligations. That was, however, beside the
point. Ms H[...] could and did not dispute that he no longer has these funds available
to pay for the R[...] school fees.
[27] Mr H[...] explained in his answering affidavit that he earns a nett month salary
of R40 779.69 and annexed his salary advice. He provided details of his monthly
expenses which amount to R41 438.61, before paying the children’s school fees and
the maintenance payment due to Ms H[...] and the children in terms of the
Rule 43 Order. He explained that pay s the school fees and the maintenance
payments from loans taken out with various financial institutions and annexed recent
bank statements from the financial institutions at which he holds accounts, including
FNB, Discovery Bank, Wesbank/Direct Axis, Old Mutual, and Absa.
[28] In response, Ms H[...] denied these allegations contending that the bank
statements annexed to the answering affidavit “do not reflect an inability to afford the
13
educational costs of the minor children” and that Mr H[...] had failed to disclose “a ll
financial statements for the financial institutions listed”.
[29] Ms H[...] did not, however, engage meaningfully with the content of the bank
statements in her replying affidavit. She merely stated that there was no evidence
as to how Mr H[...] had spent a loan that he received from Wesbank and pointed to
one payment of R10 000 made into one bank account , contending that there was no
evidence as to where that payment came from. These allegations, however, did not
take the matter any further. Ms H[...] made no attempt to show that Mr H[...] earns
an income in excess of that which he had disclosed, and she mad e no attempt to
dispute the nature and extent of his disclosed monthly expenses , or the nature and
extent of his indebtedness.
[30] Having regard to all the evidence, there was no basis on which to find that
Mr H[...]’ failure to pay the sum of R40 414.60 constituted contempt of paragraph 3.4
of the Rule 43 Order, or that his conduct was male fide and wilful beyond a
reasonable doubt.
[31] As regards the relief sought against the paternal grandparents, they are not
parties to the Rule 43 Order. While it is so that where a grandchild is in need of
support, the grandparent will have a legal duty to maintain the child if both parents
are unable to support the child and the grandparent is able to provide support , the
proper forum for th at debate, is a maintenance inquiry , not contempt proceedings.
There was no basis on which to hold the paternal grandparents liable, in contempt
proceedings, for Mr H[...]’ obligations in terms of the Rule 43 Order, even if Ms H[...]
had been able to demonstrate that Mr H[...] had failed to comply with that order.
14
[32] For these reasons I dismissed the relief sought in Part A of the notice of
motion. In that the relief sought in Part B of the notice of motion was premised on a
finding that Mr H[...] had failed to comply with paragraph 3.4 of the Rule 43 Order, in
light of the findings set out above, I dismissed the relief sought in Part B as well.
[33] Finally, the conduct of Ms H[...] leaves much to be desired. It bears emphasis
that Ms H[...] failed to refer in her affidavits to the fact that the divorce proceedings
are subject to case management before Erasmus J. There was no explanation
proffered for this failure, or for why these proceedings were brought in the urgent
court without any reference to Erasmus J as the case management judge. These
unexplained failures are concerning.
[34] Ms H[...]’ refusal to consent to the enrolment of the children into any school
other than R[...] has resulted in the children not attending school at all. Her conduct
in this regard is unreasonable and manifestly not in the interests of the minor
children. She mischaracterised the sum of R40 414.60 as “arrear school fees” in
circumstances where the only reason that this amount was sought was due to her
unreasonable stance that the children could only attend R[...] and no other school.
Ms H[...] sought to hold Mr H[...] in contempt and sought his immediate imprisonment
for a supposed failure to pay the children’s school fees in circumstances where he
had arranged for their enrolment at WGHS and had tendered to pay the school fees
for that school. There was no legal basis for the relief that she sought.
[35] Further, she sought to hold the paternal grandparents liable in circumstances
where there was no basis for any such relief . The founding papers were not served
on the third respondent, the maternal grandmother. The papers were sent to the
maternal grandmother via WhatsApp. Mr H[...] filed an affidavit in which he state d
15
that his mother, the third respondent, is bed ridden, frail and in ill -heath and that the
content of the application had greatly upset her and resulted in a deterioration of her
symptoms. He further stated that she is not in a position to instruct attorneys or to
depose to an affidavit herself. In support of these contentions he annexed a letter
from her physician confirming the third respondent’s health conditions. He further
appealed to the Court to have regard to the fact that the legal proceedings had had a
negative impact on the third respondent’s well-being and health.
[36] In response, Ms H[...] stated:
“… the relief sought against the Second and Third Respondent s do (sic) not
include any request for their committal.
I assume Dr. Rosenthal received and perused a copy of the Notice of Motion
as he indicated in his correspondence dated 22 January 2024.
Thus, I do not know why the Third Respondent or the aforesaid Doctor (sic)
would be of the opinion otherwise and make appeal (sic) to this Honourable
Court in circumstances where no committal consequence (sic) is requested
against the Third Respondent.
Furthermore, the correspondence from the Doctor (sic) does not stipulate if he
physically saw and examined or assessed the Third Respondent on a certain
date nor provide dates regarding the various diagnoses.”
[37] The tenor of Ms H[...]’ response is callous and entirely inappropriate.
[38] The only reason that I did not award costs on a punitive scale against
Ms H[...] is because she is unemployed, and her sole source of income is the
16
maintenance received pendente lite from Mr H[...] in terms of the Rule 43 Order.
Further, Ms H[...] has in the past used the maintenance received to defray her legal
costs. Consequently, if I had awarded costs against her, I have no doubt that
Ms H[...] would ultimately have sought to recover her costs from Mr H[...] in further
proceedings in terms of the Rule 43 Order. For this reason I directed that each party
pay their own costs in this matter.
[39] It is clear that the litigation in respect of interim maintenance will continue
unabated until the divorce is settled or finally determined by a court. No doubt
Erasmus J reached the same conclusion which is why he took on the rol e of case
management judge in respect of the divorce. It further appears that Ms H[...]’ legal
representatives are either unwilling or incapable of bringing any sort of sense to bear
on the process. It is in the interests of the minor children and in the interests of the
proper administration of justice that the divorce is finalised as soon as possible. It is
for this reason that I directed that the parties immediately approach the Registrar of
Erasmus J to manage the further conduct of the divorce action.
In the result I made the following order:
1. The application is dismissed with costs to stand over.
2. The parties must immediately approach the Registrar of Erasmus J to manage
the further conduct of the divorce action .
___________________________
M. ADHIKARI
Acting Judge of the High Court
17
APPEARANCES:
Applicant’s Attorney: Nicole Lawrence Inc.
Ms N Lawrence
Respondent’s Attorney: G van Zyl Attorneys
Mr D van Zyl