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 DIVISION, CAPE TOWN)
CASE NO: 7333/2024
In the matter between:
E[...] W[...] Applicant
And
V[...] T[...] H[...] Respondent
Coram: Parker, AJ
Matter heard on 16 September 2024
Judgment delivered on 14 October 2024, electronically by circulation to the parties’
representatives via email.
JUDGMENT
PARKER, AJ
Introduction
[1] This application concerns an order declaring the Respondent to be in contempt
of the court arising out of his failure to comply with an order obtained by the parties
granted by the Honourable Ms Justice Steyn dated 7 November 2022. The order
incorporated the provisions of a consent paper and parenting plan under case number
257/2022.
[2] The Applicant seeks sentencing the Respondent to a period of imprisonment,
alternatively community service, or such sanction as the Court deems appropriate,
which sentence is suspended on the condition that the Respondent complies with the
terms of the court order.
[3] The parties were involved in an intimate romantic relationship for a period of
about 9 years and three minor children were b orn from the relationship, namely, I[…]
W[...], a girl born on 2 January 2015, T […] M[…] W[...] and M[…] H[…] W[...], who are
twin boys, born on 25 August 2017 (“the children”). In or during April 2022, the marital
relationship broke down irretrievably and the Respondent vacated the common
matrimonial family home
[4] The Order dat ed 7 November 2022, was granted in terms of which the
Respondent was directed, “pending the finalization of a trial incorporating a
maintenance hearing and/or Part B of the application” . For the sake of brevity I
summarise the prayers which led to the non compliance in respect of this application.
4.1 to maintain the minor children by, inter alia, paying cash maintenance in
the amount of R60 000.00 per month to the Applicant , the first payment
due on 15 November 2022,
4.2 bearing the children’s medical aid and medical expenses,
4.3 bearing some of the children’s educational expenses and
4.4 paying the rental due and the utilities account in respect of the former
family home where the Applicant and the children still reside.
The First Contempt
[5] The Applicant had previously brought contempt proceedings in respect of other
relief, regarding the Respondent’s failure to reimburse her for the shortfall in the cash
maintenance in respect of the children for November 2022, and cer tain educational
expenses incurred on behalf of the children. Although the Respondent has continued to
fail to reimburse Applicant in respect of certain specific medical and educational
expenses incurred in respect of the children subsequent to the first contempt application
being launched, those claims are not included in the current application. The first
contempt Order was granted by Justice Gamble on 22 August 2024 and held the
sanction in abeyance provided the Respondent complies with certain conditions.
The pre break up
[6] The Applicant claims that the Respondent was responsible for the financial
support of the children throughout the duration of the relationship and that both she and
the children were entirely reliant on him. The Respondent disputes this assertion,
asserting that the Applicant was employed, earned an income, and contributed to the
domestic expenses and the maintenance of the children.
[7] Subsequent to vacating the family home, the Respondent tendered to pay an
amount of R22 500.00 per month to the Applican t in respect of the children’s
maintenance, which tender was not accepted by the Applicant, who contended that the
amount tendered was a significant reduction in their standard of living that they were
accustomed to previously. The Respondent proceeded to make payment in terms of the
tender from May 2022, despite her rejection thereof. This was then resolved in terms of
the Steyn J Court Order.
Current contempt of court application
[8] Contrary to the order referred to in paragraph 4 above, and since 1 March 2024,
the Respondent has only been paying a cash maintenance in the amount of R22 500.00
per month, paying only the children’s school fees and no other educational expenses,
paying only the medical aid premium and no other medical expenses and refusi ng to
pay the rental due in respect of the former family home.
[9] The Applicant contends that her contempt application is urgent due to the
following:
9.1 the Respondent’s failure to pay rental puts the Applicant and the minor
children at risk of being e victed from their home, which is not in the best
interests of the parties.
9.2 the Respondent’s failure to pay the aftercare fees for the children at G […]
(the aftercare programme at G […] Primary), results in the children are no
longer attending aftercare, which is not in their best interests because:
9.2.1 the family home in Oubaai is located approximately 20kms from the
children’s school and the Applicant relies on the services provided
by the aftercare to assist in taking care of the children after school
and before extra -curricular activities and/or take care of the twins
while she accompanies I […] to her extra -curricular activities and/or
vice versa, especially considering the children’s demanding
schedule.
9.2.2 the twins, who struggle with school and were a t risk of being held
back if they did not receive proper educational support, benefit
greatly from the assistance with homework provided at aftercare.
9.2.3 due to the Respondent’s non-compliance with the Order – including
failing to reimburse the applicant for the children’s additional
medical expenses, such as play therapy, speech therapy and
occupational therapy – and reducing the cash maintenance by
almost two-thirds, the children are not receiving the therapeutic and
educational support they require. This support must be reinstated
as a matter of urgency.
[10] According to the Applicant, he is a wealthy business man in the mining industry
with various busi ness interests whilst she is a homemaker. After the breakdown of the
relationship (1 May 2022) the Respondent unilaterally reduced the maintenance from
R 112 000.00 to R 22 500.00 per month.
Respondent’s counter application
[11] The Applicant’s urgent application was served on the Respondent on 11 April
2024. On 24 April 2024, the Respondent delivered a counter application for a variation
of his maintenance obligations in terms of the Steyn J Order. His affidavit therein spans
250 pages (includi ng annexures), serves both as an answering affidavit to the urgent
application and as a founding affidavit to his counter application. The Respondent
raised various defences in his opposing affidavit to the contempt. One central defence is
the Respondent’s reliance on alleged changed financial circumstances that allegedly
came about in February 2024 making it impossible for him to comply with the Order.
[12] The Respondent tried to portray his failure to comply with the Order as the Order
has “ fallen away ” because he purportedly “withdrew the extant part of the matter”
pending before the George High Court under case number 257/2022 in which the Order
was granted.
[13] In response, the Applicant argues that the Respondent’s purported “notice of
withdrawal” is irregular as the matter is part -heard and can only be withdrawn with the
consent of the Applicant or the leave of the court, neither of which has been sought or
obtained by the Respondent. 1 Additionally, even if the Respondent were to validly
withdraw the extant part of his application, the Applicant’s counter application is not
withdrawn and, accordingly, the Order remains extant.
Discussion
[14] Therefore, it is thus evident that the Order remains extant and that the
Respondent’s conduct constitutes a failure to comply therewith despite his efforts to
persuade the court that the order fell away, or if the order has not fallen away, he “ did
not comply with it on legal advice to the effect” and his conduct is accordingly not willful
and not intended to flout an order . I respectfully submit that this contention is without
merit and does not benefit the Respondent.
[15] The following facts and circumstances demonstrate the Respondent’s willfulness
and mala fides in failing to comply with the Order, which are:
15.1 The history of the litigation shows that the Respondent has been
dissatisfied with the Order since it was granted on 7 November 2022. I
agree with Applicant, he has made various attempts to shirk his
1 To the extent that the Respondent contends this is not trite, see the recent unreported judgment of
Investec Bank Limited v Abada [2023] ZAGPPHC 181; 30528/2021 (23 March 2023) where the applicant
launched an application for the home to be declared specially executable, which proceedings were flawed
and resulted in an interim order by Holland -Muter AJ referring certain issues to ora l evidence. The Court
stated as follows at paras 6 -7: “ The applicant, realizing the flaw in the first application, decided to
withdraw the application. ….As a result of the stage of the proceedings (it had been set down) it could
only be withdrawn with e ither the consent of the respondent or the leave of the court. The applicant
therefore tendered costs to the respondent and requested that the matter be withdrawn. The respondent
in this moment was faced with an election: to object or to consent to the w ithdrawal. …If the respondent
objected, the applicant would have had to convince the court it was in the interest of justice to permit the
applicant to withdraw the application – despite the interim order having been granted.”
obligations in terms of the Order yet failed to bring an application for
variation earlier timeously, although, he initially sought the Court’s reasons
for the Order and indicated that he considered appealing same whereafter
he changed tact and sought to bring an application in the Mainten ance
Court for a variation of the Order.
15.2 If one has regard to the Respondent’s application to the Maintenance
Court, dated March 2023 attached to his affidavit as “VH5”, it is evident
that the Respondent has been seeking to reduce his maintenance
obligations to R7 500.00 per month per child, and the limitation of
additional payments to school fees and the medical aid premium only,
since March 2023, without any mention of alleged changed financial
circumstances. In the application to the Maintenance Court. Without
delving into the merits of that application, the alleged “good reason” for a
variation of the Order relied on by the Respondent, are his objections to
the circumstances in which the Order was granted, not any alleged
changed financial circum stances. I therefore cannot accept his change in
financial circumstances being reliable.
15.3 The terms of the proposed variations in April 2024 and March 2023 also
happen to accord with the terms of the Respondent’s initial tender, in
April/May 2022 when he vacated the former family home, to “pay
maintenance in the amount of R7 500.00 per month pe r child, in addition
to paying the children’s school fees, aftercare fees and medical aid
premium directly to the relevant third parties”.
15.4 Despite alleging a change in his financial position in February 2024 (which
he allegedly had knowledge of since December 2023), the Respondent
did not initially seek a variation of the Order but only did so when the
Applicant proceeded with contempt proceedings. The Respondent now
contends in his counterapplication that his financial circumstances have
changed and that he is seeking a variation in the same terms as sought in
the Maintenance Court over a year ago (for different reasons) and in the
same terms as his first tender in April 2022.
15.5 I agree with Applicant, the Respondent’s reliance on “changed financia l
circumstances” to justify his non -compliance with the Order, is contrived
and merely the latest tactic employed by the Respondent to skirt his
maintenance obligations in terms of the Order and pay only what he
considers to be reasonable maintenance. This is unacceptable.
[16] The Respondent contends the reason for his financial position having changed
markedly resulted from loss in business, when in December 2023, an order with one of
the businesses was terminated. He is one of 4 directors of this busi ness. This loss had
an effect on the other entities he was engaged in. He annexed an accountant’s report
reflecting an increase in average shortfall to meet the Steyn Order, and showed that his
legal fees increased and therefore could no longer abide by t he Order. This, he says
(the change in financial circumstances) was communicated via his attorneys on 21
February 2024 to the Applicant to which she refused to accept, and efforts to engage
her were fruitless.
[17] The Respondent seemingly relies on the inherent power of the court to vary
simple interlocutory orders at any time prior to final judgment for the variation sought
herein. Whilst Courts have the power to alter interlocutory or procedural orders on good
cause shown,2 the general rule that a court may not alter its own judgment does not
apply to simple interlocutory orders which are susceptible to variation.3
[18] Such orders are open to reconsideration, variation or rescission on good cause
2 Sandell and Others v Jaco bs and Another 1970 (4) SA 630 (SWA); Technical Systems (Pty) Ltd and
Another v RTS Industries and Others 2024 JDR 0046 (WCC).
3 Duncan NO v Minister of Law and Order 1985 (4) SA 1 (T) at 2 E-F.
shown4 and our courts have exercised the power to vary simple interlocutory orders
when the facts on which the orders are based have changed. In South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 5 the Court held
that “At common law a purely interlocutory order may be correc ted, altered or set aside
by the Judge who granted it at any time before final judgment” , and in Sandell and
Others v Jacobs and Another 6 , the Court stated that “an interlocutory order may be so
varied or set aside, either by the Judge who originally made the order, or by any other
Judge sitting in the same Court and exercising the same jurisdiction.”7
[19] However, while courts have the power to vary these ord ers, “a Court will not
lightly exercise such a power” and an invitation to alter even an interlocutory order
should be approached with “considerable diffidence.”8
[20] This is an indication that the power ought to be exercised with caution and only
by the Judge who initially issued the order, or by any other Judge sitting in the same
Court and exercising the same jurisdiction. The rationale for this limitation is that the
Court tasked with deciding whether to vary an interlocutory order must have knowl edge
of the facts and circumstances under which the order was granted in the first place to be
able to determine that good cause exists to vary same.
[21] The Order in this case was granted by the George High Court under case
number 257/2022. Whilst this Court has the necessary jurisdiction to hear the
Applicant’s contempt application, I respectfully submit that the same cannot be said of
the Respondent’s variation application. This application must be heard by a Judge
sitting in the same Court and exercis ing the same jurisdiction as the Honourable Ms
4 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at
550; Duncan NO at 3; and Zondi v MEC , Traditional and Local Government Affairs and Others 2006 (3)
SA 1 (CC).
5 1977 (3) SA 534 (A)
6 1970 (4) SA 630 (SWA)
7 At 634D.
8 Technical Systems (Pty) Ltd and Another v RTS Industries and Others 2024 JDR 0046 (WCC) para [55];
Sandall supra at 634D-F.
Justice Steyn who was sitting at the George High Court when the Order was granted.
[22] More importantly, the general rule is that a person in contempt of a court order
will not be heard by that court until he has purged the contempt.9
[23] In this regard, Readam SA (Pty) Ltd v BBS International Link CC and Others 10
where the Court found that it is inappropriate that a Respondent in contempt
proceedings should be granted the opportunity to apply for variati on of the order which
he has not complied with, which effectively allows him to obtain judicial sanction for his
course of conduct. Of course there are instances where variations can be met,
however, it is my view not when the contempt needs to be purged.
[24] I am mindful that i n Zondi v MEC, Traditional and Local Government Affairs 11 ,
the Constitutional Court stated that in deciding whether to amend an order, the courts
are required to determine what is just and equitable in the circumstances of the
particular case and can vary an order where it is in the interests of justice to do so,
however this does not apply in this instance.
[25] The Respondent addressed his concerns on the appropriate sanction. He states
imprisonment would have serious consequences for him as he would be unable to work
whilst he is to seek to rescue the business in what he describes as a time of great
financial peril, when he is meant to minimize losses and try to turn the business around.
For him , imprisonment would destroy what is left and make it impossible to pay the
Applicant what he has tendered. I accept a committal will be grave as he would also not
be able to exercise contact and care to the children which would clearly not be in their
best interests.
[26] To succeed with contempt proceedings and compel performance, the Applicant
9 As formulated in Hadkinson v Hadkinson [1952] 2 All ER 571 (CA) and adopted and applied in Kotze v
Kotze 1953 (2) SA 184 (C).
10 2017 (5) SA 184 (GJ) at 197H – 198F.
11 2006 (3) SA 1 (CC).
is required to prove the existence of an order an d I rely on Pheko and Others v
Ekurhuleni City12; that the order has been duly served on or brought to the notice of the
alleged contemnor ; t he non -compliance with the order ; and t he noncompliance was
mala fides.
[27] Where an Applicant ha s established the first 3 requirements the evidential
burden shifts to the Respondent to negate it on a balance of probabilities, the
presumption of willfulness or mala fides, if he fails then contempt is established13.
[28] I am satisfied that the Applicant has satisfied the requirements of Rule 6(12)(b)
that an applicant seeking to be heard as a matter of urgency must explicitly set out in
the founding affidavit (a) the circumstances rendering the matter urgent and (b) the
reasons why he could not be afforded substantial redress at a hearing in due course.14
[29] The urgency which is also occasioned due to the Respondent’s failure to pay the
rental, puts the Applicant and the minor children at risk of being evicted from their home,
which is not in the best interests of the children.
[30] The Respondent fails to adequately explain his role, shareholdin g and
involvement in the web of businesses and trusts he speaks about. There are many
questions to be answered, he may have other sources of income n ot accounted for
including that of the various trusts of which he is a trustee and beneficiary, which
requires further disclosures. For me to apply my mind to a variation requires the
interrogation of records. At this stage, I cannot deal with the Respond ent’s personal
balance sheet provided since his alleged wealth may be contained within the corporate
and trust structures. Above all he needs to purge his contempt.
Conclusion
12 2015 (5) SA 600 (CC), para [36].
13 Judicial Commission v Zuma supra para [47].
14 Salt and Another v Smith 1991 (2) SA 186 (NmHC) at 187A – B.
[31] As previously stated, the Respondent must demonstrate a significant change in
circumstances rendering him unable to comply with the court order which he has failed
to do due to insufficient disclosure of his assets and those of associated trusts and
entities, beyond the financial statements of Record Project Engineering and the Rossi
Trust. This Court cannot assess the alleged impact of the change in income on the
Respondent’s ability to pay without adequate disclosure regarding the assets of the
Respondent and the trusts under his control
[32] The Respondent’s actions are troubling and warrant attention. His course of
conduct is fraught with risk and it is significant that Judge Gamble has already found
him to be in contempt opting to reserve judgment on the penalty.
[33] Considering all the evidence it would not be appropriate to let the Respondent off
with minimal consequences. To do so would send a detrimental message to South
African citizens, implying that disregard for court orders are tolerated. This would set a
harmful precedent undermining the authority of court orders and potentially
discouraging vulnerable groups including women and children from asserting their rights
to maintenance, health and education.
[34] Confidence in the legal syste m hinges on the meaningful exercise of the
constitutional right to access courts, which necessitates, that litigants have faith in the
judiciary’s capacity to safeguard their rights particularly when seeking enforcement
against recalcitrant individuals, wh ose non compliance jeopardises children’s access to
essential maintenance, health and educational provisions.
[35] I have taken into account the Respondent’s plea regarding his business and
family obligations and have factored that into the sanction’s str ucture. Considering the
financial struggles women often face, permitting the ignoring of the court orders would
be a dereliction of my Constitutional and my judicial duties, potentially rendering such
orders ineffective. However, as I am constrained to sa feguard the rights and well-being
of the children involved, the Respondent cannot escape the consequences he brought
upon himself.
[36] I accordingly order as follows:
a) The Respondent is declared to be in contempt of the court order granted
by the Honourable Ms Justice Steyn of the above Honourable Court on 7 th
November 2022 under case number 257/2022.
b) The sanction imposed upon the Respondent shall be as follows:
i) The Respondent shall be committed to imprisonment for a
period of 30 (thirty) days, to be served as periodic
imprisonment at weekends between 17h00 on Friday and
06h00 on Monday, such sentence of committ al be
suspended on condition that the Respondent complies with
the court order by paying the full arrear rental, maintenance,
health and educational needs within 60 days and continues
to comply with the c ourt order until the final determination of
Part B of the application, alternatively until it is varied.
ii) The Respondent to rectify his contempt, before he can be
heard by this Honourable Court in his counter application for
a variation,
c) The Respondent shall pay the applicant’s costs incurred on an attorney
and client scale A.
________________________
R K PARKER
ACTING JUDGE OF THE HIGH COURT
Appearances:
Counsel for Applicant : Adv. A Thiart
Instructing Attorney : Maurice Philips Wisenberg – Ms K
Counsel for Respondent : Adv. D Van Reenen
Instructing Attorney : BDP Attorneys – Mr G De Beer