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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number : 15617 /2022
In the matter between:
M[...] O[...] Applicant
and
R[...] O[...] Respondent
JUDGMENT DELIVERED ON 23 JANUARY 2025
VAN ZYL AJ:
Introduction
1. The p arties to these proceedings were married in March 2012. They have
three minor children. Unfortunately, the marriage has since broken down, and
a divorce action was instituted in September 2022. There are now two
applications serving before this Court: OFFICE OF THE CH I EF JUSTICE
REPUOU. C OF SOUTI -J AFRICA
1.1 The first is an application by the applicant seeking to hold the
respondent is in contempt of court for failure to comply with his
obligations under an order granted on 6 October 202 3 in terms of
Rule 43 (“the Rule 43 order”).
1.2 The second is an applicati on by the respondent pursuant to the
provisions of Rule 43(6), for the variation of his obligations under the
Rule 43 order.1
2. The issues raised in the applications are intertwined and I shall accordingly
address the issues on the basis of the evidence as a whole.
The relevant legal principles
Contempt of court
3. The applicant seeks, in the first instance, an order of civil contempt against
the respondent . Contempt of court, in the present context, has been defined
as “the deliberate, intentional (i e wil ful), disobedience of an order granted by
a court of competent jurisdiction ”.2
4. Wilfulness is an e ssential element of the act or omission alleged to constitute
contempt.3 In addition to the element of wilfulness , there must be an element
of mala fides .4 Once it is shown that the order was granted (and served on or
otherwise came to the notice of the respondent) and that the respondent had
disobeyed or neglected to comply with it, both wilfulness and mala fides will
be inferred .5 Thus, once the applicant has proved the order, service or notice,
1 The applicat ion included relief for the variation of the contract regime in respect of the parties’
children. The respondent has, however, abandoned such relief, and nothing needs to be said
about it.
2 Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA 517 (C) at 522B –D.
3 Culverwell v Beira 1992 (4) SA 490 (W) at 493D –E.
4 Jayiya v Member of the Executive Council for Welfare, Eastern Cape 2004 (2) SA 611
(SCA) at 621E.
5 Townsend -Turner v Morrow 2004 (2) SA 32 (C) at 49C –D.
and non-compliance, an evidentiary burden rests upon the respondent in
relation to wilfulness and male fides , that is, to advance evidence that
establishes a reasonable doubt as to whether non -compliance with the or der
was wilful and male fide .6
5. Even though the defaulting party may be wilful, such party may still escape
liability if they can show that they were bona fide in their disobedience.
Where the defaulting party has genuinely tried to carry out the order and has
failed through no fault of his or her own, or has been unable but not unwilling
(for example, by reason of poverty), to carry out the order, proceedings for
committal will fail.7
Applications for the variation of a Rule 43 order
6. Rule 43(6) provid es for a change in a party’s circumstances subsequent to the
grant of a Rule 43 order. The Court may, “ on the same procedure, vary its
decision in the event of a material change occurring in the circumstances of
either party or a child, or the contribution towards costs proving inadequate.”
7. Rule 43(6) is strictly interpreted.8 There must be a material change in the
relevant party’s circumstances . It is not permissible to seek a re -hearing or a
review of an existing order under the guise of a Rule 43(6) application, or
effectively to appeal the existing order.
8. In an application for a reduction in the interim maintenance payable based on
a decline in the financial situation of an applicant under the subrule , a full and
frank disclosure of all of the elem ents which make up the broad overview of
such applicant’s financial situation should be made. The applicant bears the
onus of establishing on a balance of probabilities that a material change has
occurred. To succeed, an applicant must demonstrate not onl y that a change
6 Fakie N.O. v CCII Systems (Pty) Ltd and another 2006 (4) SA 326 (SCA) at paras [42 ]-[43].
7 Matjhabeng Local Municipality v Eskom Holdings Ltd and others; Mkhonto and others v
Compensation Solutions (Pty ) Ltd 2018 (1) SA 1 (CC) at paras [85] -[88]; and see the
discussion in Erasmus Superior Court Practice Vol. 1 (revision service 18, 2022) at A2 -173.
8 See Greenspan v Greenspan 2001 (4) SA 330 (C) at 335E –F.
or even a significant change in circumstances has occurred , but must place
sufficient facts before the Court to enable it to determine the materiality of that
change in the context of the applicant’s broader financial circumstances.9
9. The facts giving rise to th e present application s are considered against this
background.
The Rule 43 order
10. The applicant launched a Rule 43 application in June 2023. The Rule 43
order granted on 6 October 202 3 directed , inter alia , the respondent to make
payment to the applicant of the follow ing:
10.1 R18 000,00 per month as cash maintenance for the applicant and
the parties’ three minor children.
10.2 The costs of retaining the applicant and the children as dependent
members of the respondent’s medical aid scheme, and further to pay
the costs of all reasonably incurred private health care expenses not
covered by the medical aid (this part of the order was granted by
agreement between the parties) .10
10.3 Certain specified motor vehicle and fuel expenses (this was grante d
by agreement) .
10.4 Rental in respect of the applicant’s and the children’s residence (this
was granted by agreement) .
10.5 The monthly salary of the applicant’s domestic worker (this was
granted by agreement); and
9 See CLJ v C LG [2023] ZAGPJ HC 386 ( 26 April 2023) at para [22].
10 The respondent says that the portions of the order indicating that it was done by agreement
are not correct – he did not agree to it. The applicant disputes this. Nothing much turns on
this, but the fact remains th at the order stands as it is, and the respondent has done nothing
to have it corrected or rescinded on the basis that there is an error in it.
10.6 A contribution of R50 000,00 towards the appli cant’s legal costs.
11. The Rule 43 order contained a recordal reading as follows:
“It is recorded that O[…] A[…] D[…] (Pty) Ltd11 has been placed in provisional
liquidation by the Gauteng High Court under case number 2023 -017995 with
an expected r eturn date of 24 October 2023. In the event of a final order of
liquidation being granted this may constitute a material change in the
respondent’s circumstances for purposes of rule 46(3) ”.
12. The respondent, together with his brother, was a co-founder, co-director and
50% shareholder of O[…] at the time , from which he would pay various of the
expenses referred to in the Rule 43 order , including the applicant’s and the
children’s housing, the vehicle instalment, the medical aid costs, and the
domestic work er’s salary .
13. The enforcement of the Rule 43 order was arduous. The applicant launched
a contempt application for the first time during November 2023 when the
respondent failed to make payment in terms of the order. After initially
opposing the contempt application the respondent tendered the arrears, and
an order by agreement between the parties was granted on 28 November
2023. The November 2023 order granted the applicant leave to approach the
Court again, on supplemented papers, in the event of the re spondent
defaulting again.
14. Although the respondent defaulted again on 1 December 2023, the applicant
used the mechanism provided for in section 26(4) of the Maintenance Act 99
of 1998, read with section 37D(1)(d)(iA) of the Pension Funds Act 24 of 1956,
to recover some of the maintenance due to her and the parties’ children from
the available funds in the respondent’s retirement annuities . The initial
application, in respect of arrear maintenance which was due and payable on 1
11 “O[...] ”.
December 2023, was heard on 19 December 2023. Judgment was granted in
the applicant’s favour on 5 January 2024.12
15. The respondent defaulted again on 1 January 2024, and the applicant
launched a second application under section 26(4) of the Maintenance Act.
The second application wa s heard on 7 June 2024 and the applicant was able
to recover some of the arrear maintenance due to her and the children for the
period 1 January 2024 to 16 May 2024.
16. The present contempt application , which was instituted in August 2024, arises
from the re spondent’s failure to comply with the Rule 43 order from 1 June
2024 onwards. According to the applicant, the respondent has consistently
failed to comply since that date , not only in respect of the cash payments for
maintenance, fuel, rent and the domest ic worker, but also in respect of his
other obligations pertaining to the medical aid and the applicant’s vehicle.13
17. The mechanism provided in section 26(4) of the Maintenance Act is no longer
available to the applicant, as the funds in the respondent’s re tirement
annuities have been depleted.
18. The applicant accordingly seeks an order that the respondent is in contempt
of court and that he be sentenced to imprisonment or community service of a
specified period, suspended on condition that he comply with the Rule 43
order.
The respondent’s default, and his alleged changed circumstances
19. Over the period J anuary 2024 to August 2024, the respondent has paid am
amount of R10 000,00 (sometimes R10 250,00) per month to the applicant,
except in April 2024 when he p aid R16 850 . His arrears in respect of
maintenance stood at almost R140 000,00 as at 1 August 2024. In addition,
12 MO v RO and another [2024] ZAWCHC 8 (5 January 2024).
13 The vehicle belonged to O[...] and has be en repossessed because of the company ’s failure to
pay the instalments due in res pect thereof.
he has not yet paid the R50 000,00 owing in respect of a contribution towards
the applicant’s legal costs.
20. The applicant describes the hards hip that she has endured as a result of the
respondent’s default. She is herself under debt review, and therefore unable
to procure loans from financial institutions. As the respondent has relocated
to Johannesburg (he is renting a cottage from his siste r) and sees the children
for the period of a week every month , the applicant is essentially a single
mother left to shoulder most of her and the children’s day to day expenses by
herself. Her net salary is about R46 600,00 per month. Having regard to the
papers as a whole, there is no doubt that the applicant and the minor children
need the interim maintenance as set out in the Rule 43 order , although there
are in my view justified concerns raised by the respondent regarding the need
for the applicant to scale down by, for example, moving to a more affordable
residence (the applicant is currently renting a n apartment in Bakoven ,
although she points out that she is paying a rental that is lower than the
market -related rental ).
21. The question remains, howeve r, whether the respondent can afford to pay
such maintenance,14 given what the respondent says was a material change
in his financial circumstances. It appears from the history of this matter that
the respondent has never complied with the Rule 43 order ex cept during the
time that t he applicant had access to his retirement annuit y funds to pay the
monthly obligations under the order .
22. I have mentioned the fact, recorded in the Rule 43 order, that O[…] was
provisionally liquidated in May 2023 . The applica tion was brought by a
creditor, and was not a friendly liquidation. In response thereto O[…] agreed
to a payment arrangement with the creditor, to which it was unable to keep. It
closed its doors at the end of November 2023, and was finally voluntarily
liquidated on 28 February 2024.
14 Grauman v Grauman 1984 (3) SA 477 (W) at 479F.
23. The respondent points out that O[...] ’s winding -up has resulted in him, as
surety, being sued for O[...] ’s debts, and it appears that two judgments have
been granted against him15 in a total sum of about R4 million.
24. The respo ndent says that, because of O[...] ’s demise, he can no longer pay
the maintenance stipulated in the Rule 43 order, as he has no income from
O[...] , and he cannot make drawings from O[...] to pay his and the applicant’s
expenses. He says that the fact that O[...] ’s provisional and possible final
liquidation was recorded in the Rule 43 order was an acknowledgement of the
fact that the respondent’s financial position depended on that of O[...] , and
would influence the respondent’s ability to fulfil his Rule 43 obl igations.
25. The respondent accordingly asks that the cash maintenance payable to the
applicant and the children be reduced to R5 000,00 per month, and that the
other expenses (rental, utilities, domestic worker, school fees, books and
stationery and other s chool expenses) be shared equally between the parties.
He offers to pay 25% of the vehicle instalment and 50% of the vehicle
insurance, and to pay the children’s medical aid cost.
26. The variation application was foreshadowed in correspondence dated 5
Decem ber 2023 from the respondent’s attorney, and instituted on 8 December
2023 . It was however never prosecuted until it was finally set down for
hearing together with the applicant’s present contempt application. The
respondent explained that he had no fund s to advance the variation
application while having to deal with the litigation instituted by the applicant
since the grant of the Rule 43 order. He has since entered into a payment
arrangement with his attorney.
27. Although there are insinuations in the applicant’s papers that O[...] was
allowed to fail financially as a stratagem on the respondent’s side to avoid his
financial liabilities after divorce, there is nothing of substance on the papers as
a whole to support this. It is not disputed that O[...] has in fact been
15 Jointly and severally wit h his brother as co -surety.
liquidated. It has substantial judgment debts. The respondent indicates that
the applicant was fully aware of the company’s financial difficulties while the
parties were still together. She is a former employee of the company , and
witnesse d it deteriorating during the Covid pandemic .
28. The respondent has since December 2023 taken a salaried job, working for a
company called I […] as its national sales manager.16 The applicant argues
that I […] is effectively O[...] in a new form but this is, again, not substantiated
on the papers. O[...] ’s business was different from that of I […]. O[...] was a
wholesale r and distributor of various goods, whilst Ignite sells vapes. The
respondent was a co -founder, co -director , and co -shareholder of O[...] , but
has no interest in the ownership of I […]. As a director of O[...] the respondent
could structure his finances to arrange for some of the payment of the family’s
expenses from the business.17 For example, the applicant used to have the
use of an O[...] fuel card, loaded with the stipulated amount for fuel. Due to
O[...] ’s liquidation this facility is no longer available. As an employee of I […],
the respondent can no longer make these types of arran gements .
29. I agree with the respondent’s submission that O[...] ’s final liquidation, together
with the need to accept salaried employment, constitute material changes in
his circumstances as contemplated in Rule 43(6). In addition, the respondent
no longer has assets in the form of his retirement annuities that can be used
to pay his maintenance obligations.
30. A consideration of the papers indicates that the respondent is not making
ends meet, but that he is setting aside R10 250,00 per month as maintenance
for the applicant and the children . The applicant receives assistance from
family and friends, rents a vehicle from her mother and stepfather, and is
employed by her current life partner. The respondent accuses her of refusing
to make lifestyle changes and wishing to maintain an unaffordable lifestyle,
16 There is a dispute as to whether the respondent received his first salary in January 2024
(which is what the respondent says) or in December 2023 already (which is what the
applicant believes). In the bigger s cheme of things this dispute does not take matters much
further.
17 A monthly payment used to be made from a loan account in O[...] to the respondent’s mother.
These payments ceased upon the closure of O […]’s doors in November 2023.
9.
which he - the respondent – can no longer finance :
“The parties are no doubt aware that in most cases persons who have
become divorced will be compelled by necessity to reduce their standards of
living, for where the available means of support are not adeq uate to maintain
both according to their former scale of living, each must of necessity scale
down his or her budget. In the case of most of us divorce brings a measure of
hardship or at least some degree of deprivation. To say that two can live as
cheaply as one is not true. The fact of the matter is that two living together
can live more cheaply than two living apart, for obvious reasons such as the
need for two residences plus rates, maintenance, service charges and all the
rest of it; two cars plus the concomitant expenses; two lots of household
goods to buy and maintain; and so forth. … The fact that each former spouse
now has to pay for things formerly enjoyed in common places a heavier
burden on the finances than was formerly the case. It is therefore clear that in
most cases both parties will have to reduce their standard of living to some
extent. ”18
31. The respondent concedes that he is in default of the Rule 43 order, but
argues that such default is not wilful and mala fide :
“[9] … A deliberate disr egard is not enough, since the non -complier may
genuinely, albeit mistakenly, believe him or herself entitled to act in the way
claimed to constitute the contempt. In such a case, good faith avoids the
infraction. Even a refusal to comply that is objective ly unreasonable may
be bona fide (though unreasonableness could evidence lack of good faith).
[10] These requirements - that the refusal to obey should be both wilful
and mala fide, and that unreasonable non -compliance, provided it is bona
fide, does not constitute contempt - accord with the broader definition of the
crime, of which non -compliance with civil orders is a manifestation. They show
that the offence is committed not by mere disregard of a court order, but by
18 Kroon v Kroon 1986 (4) SA 616 (E) at 637C -F.
the deliberate and intentional violation of the court's dignity, repute or authority
that this evinces. Honest belief that non -compliance is justified or proper is
incompatible with that intent. ”19
32. The Rule 43 order was granted with the spectre of O[...] ’s liquidation looming
in the backgroun d. The monthly total of the payments to be made under the
Rule 43 order is R67 000,00. The respondent’s salary is about R41 400,00
after the deduction of tax . His expenditure (including R10 250,00 in respect of
maintenance) amounts to about R43 000,00 p er month. The respondent’s
only other assets were his retirement annuities, which have now been
depleted. He owns no other assets of significant value, and has no vehicle.
His debts – including credit card debt of R100 000,00 and, particularly , the
judgments granted against him – run into millions of rands. The applicant
argues that the existence of the credit card debt shows that the respondent
has “ further bank/credit card accounts ” which he has failed to disclose. This
may be so but it does not take matters much further , as the account is (or the
accounts are) on the respondent’s version woefully overdrawn.
33. The applicant argues that the respondent’s income and expenses are
deliberately contrived to create the impression that he earns an insignifican t
salary. She argues that the expenses are “conveniently placed within the
parameters of the respondent’s income ”. In this respect, the applicant points
out the following:
33.1 The respondent has not produced his employment contract and it is
therefore uncle ar whether he earns commission (the respondent
states that he does not).
33.2 The respondent’s payslips indicate that he receives a fixed salary of
R30 000,00 per month and an allowance of R19 500,00 per month,
including a seemingly fixed expense claim of R3 7 26 per month.
There is no provision for a company vehicle or vehicle allowance
19 Fakie NO supra at paras [9] -[10].
(the respondent does not own a vehicle). The respondent has
previously indicated that he receives a reimbursement for fuel.
33.3 It is strange that the respondent was required to purchase a cell
phone for work purposes, and that he has to pay for his own data.
33.4 In his answering affidavit in the contempt application, the respondent
avers that he pays a rental amount of R8 000,00 per month,
inclusive of lights and water, and that his travel allowance of
R10 000,00 is used for when he spends the week in Cape Town with
the children, and includes his food. In his supplementary affidavit,
the respondent states that the rental amount includes his food.
33.5 The respondent was able to pay an a dditional R6 850,00 to the
applicant in respect of a “medical issue” in April 2024, but is silent on
where those additional funds came from.
34. It is so that there are inconsistencies in the respondent’s various affidavits.
They are, however, relatively min or in the context of the bigger picture. I
agree with the submissions made by the respondent’s counsel that his
financial position necessitates a variation of the Rule 43 order. Even taking
account of the issues raised by the applicant in relation to the respondent’s
financial circumstances, t he respondent is not able to comply with the order
as it stands. As indicated, h is retirement funds have been deleted, and he
has no assets. He has provided his most recent bank statements as well as
his salary sli ps, from which it appears that his only source of income is his
salary (the applicant speculates that he must have an additional source of
income, but there is no substantiation for this on the record) . The parties earn
roughly similar net salaries. They both have substantial debts. According to
the applicant, her and the children’s monthly expenses amount to about
R106 000,00, of which R55 000,00 relate to the children. Given that the
parties’ combined income after tax amount s to only about R87 000, t his is
clearly unsustainable.
35. In conclusion, FS v ZB20 it was held that the lack of financial instructions is a
plausible reason for a delay in ligating a variation application under Rule
43(6).21 The Court can assess whether a respondent in contempt
proce edings can make payment under the Rule 43 order.22 Contempt must
be proved beyond a reasonable doubt. Unsubstantiated allegations of other ,
undisclosed financial recourses have little weight, if any, and the Court looks
at the financial position as stated by the respondent.23
36. In the circumstances I am unable to find that the respondent is in contempt of
court because of his default after June 2024 .
37. I am further of the view that the Rule 43 order stands to be varied in the
respects set out in the order belo w. The proposed order do es not in all
respects align with what the respondent suggested; for example, the
respondent’s offer is too low in some respects, and it is not necessary for the
respondent to pay the applicant’s service providers directly in all i nstances ,
except where indicated (which instances were stipulated in the Rule 43 order) .
The respondent can pay the required funds to the applicant, who can manage
her own financial administration. I am also not inclined to do away with the
contribution towards the applicant’s legal costs as stipulated in the Rule 43
order , but shall allow it to be paid in instalments .
Costs
38. Each of the parties has sought costs against the other in both applications . I
am not inclined to grant a costs order against eit her. The parties are currently
awaiting a trial date in the long -pending divorce action, but they should
nevertheless seriously attempt to settle it sooner rather than later , mak ing an
end to the ongoing and pricey interlocutory disputes.24
20 [2023] ZAWCHC 152 (20 June 2023).
21 In para [1] of the judgment.
22 Para [22].
23 Para [36].
24 See the admonition in FS v ZB supra at paras [20] -[21].
Order
39. In the premises, i t is ordered as follows:
1. The applicant’s application to hold the respondent in contempt of
court i s dismissed.
2. The respondent’s application in terms of Rule 43(6) is successful to
the extent that paragraph s 3 and 4 of the Rule 43 order dated 6
October 2023 are varied to read as follows:
“3.The respondent shall maintain the applicant and the children
pendente lite as follows , as from 1 February 2025, and thereafter on
the first day of every month by way of electronic funds transfer or
debit ord er, into such bank account as the applicant may nominate
from time to time :
3.1 By making payment to the applicant in the amount of
R10 000,00 per month as cash maintenance for the
applicant and the children , without deduction or set -off.
3.2 By paying 50% of t he children’s school, creche and
aftercare fees, as well as 50% of the costs of school books
and stationery, extramural activities, and other reasonable
education -related expenditure.
3.3 By bearing the costs of retaining the applicant and the
children as dep endent members o n his current medical
scheme.
3.4 By bearing 50% of the cost of all reasonably incurred
medical expenses for the children in private health care
which are not covered by the medical aid scheme, including
but not limited to medical, dental phar maceutical (both
prescription and non -prescription and including levies and
all required supplements), surgical, hospital, orthodontic,
ophthalmic (including the provision where necessary of
spectacles and/or contact lenses), psychological,
psychiatric, ph ysiotherapeutic, occupational therapeutic,
chiropractic and similar medica l expenses. The respondent
shall reimburse the applicant for any such costs incurred
by her or pay the relevant service provider within 7 (seven)
days of presentation of the relevan t invoice or receipt.
3.5 By paying 50% of the following expenses in respect of the
motor vehicle currently in the applicant’s possession:
3.5.1 Finance or lease instalments, if any;
3.5.2 Comprehensive motor vehicle insurance
(including excess);
3.5.3 Licensing, maintenanc e, repairs and
servicing, the replacement of tyres and
wheel balancing whe re necessary.
3.6 By paying an amount of R1 000,00 to the applicant per
month for fuel.
3.7 By paying 50% of the rental (which rental is currently an
amount of R24 000,00) in respect of th e applicant’s and the
children’s dwelling , and any annual increases due to be
paid, directly to the lessor.
3.8 By paying 50% of the monthly salary of the applicant’s
domestic worker directly to the domestic worker.
4. The respondent shall pay an initial con tribution towards the
applicant’s costs in the divorce action in an amount of R50 000,00,
which sum is to be paid directly to the applicant’s attorneys of record
in three instalments, being R20 000,00 (payable on or before 28
February 2025), R20 000,00 (pa yable on or before 31 March 2025) and
R10 000 (payable on or before 30 April 2025).”
3. The balance of the Rule 43 order remains in place.
4. Each of the parties will pay their own costs of suit in relation to the
Rule 43(6) application and the contempt applic ation .
___________________________
P. S. VAN ZYL
Acting judge of th e High Court
Appearances :
For the applicant : Ms J. McCart hy, instructed by Maurice
Phillips Wisenberg
For the respondent : Mr L. van Zyl, instructed by JJB Attorneys