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)
REPORTABLE
CASE NUMBER : 8953/2020
RULE 43 CASE NUMBER: 19120/2020
In the matter between
R[...] A[...] APPLICANT
and
I[...] E[...] K[...] RESPONDENT
JUDGMENT
Date of hearing: 24 February 2025
Date of judgment: 19 March 2025
BHOOPCHAND AJ:
1. The Respondent was held to be in contempt of a Rule 43 order and of a wilful
contempt of an attachment order, and sentenced to periodic imprisonment, which
was suspended for three years, provided he complied with certain conditions. This is
the second application to hold him in contempt , and the application is made during
the period of suspension of sentence arising from the first contempt order . The Court
must determine whether the Respondent is again in contempt of the Rule 43 order
and, if so, whether the contempt is wilful and in bad faith. If the Respondent has
again violated the dignity and authority of the Court, the Court must then consider
the appro priate sanction.
2. The application's urgency is no longer an issue. All the required materials,
including additional affidavits to support the application, are before the Court.1 The
Respondent's invitation to consider the papers in his upcoming Rule 43(6)
application to reduce his payment obligations was declined . The Court shall confine
the adjudication of this application to the papers properly before it.
3. The existence of the Rule 43 order and service on the Respondent is not in
dispute . To succeed in establishing the Respondent’s contempt of the Rule 43 order ,
the Applicant must prove non -compliance, wilfulness and mala fides on his part. The
Respondent bears an evidential burden to raise a reasonable doubt as to whether
his non -compliance was wilful and in bad faith. If the Applicant discharges her
obligation and the Respondent fails, then contempt will have been established
beyond reasonable doubt .2 The Plascon -Evans rule applies as the Applicant seeks
final relief in application proceedings .3 With the preliminary considerations out of the
way, the Court can examine the facts underlying this application.
BACKGROUND FACTS
4. The Applicant and Respondent were married by Muslim rites on 3 November
2012 and subsequently concluded a civil marriage on 31 August 2013 through an
antenuptial contract, excluding the accrual system. Both are Paediatricians , although
the Respondent is current ly engaged in business activit ies. Two daughters, S[...],
aged 10 and H[...] , aged 9, were born of the marriage. The Applicant instituted a
divorce action on 13 July 2020 , and those proceedings are ongoing.
1 Both parties
2 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) ( ‘Fakie’) at para 42 et seq
3 Plascon -Evans Paints Limited v Van Riebeek Paints (Pty) Limited [1984] ZASCA 51 ; 1984 (3)
SA 623 (A) at 634 - 5
5. On 26 May 2021, the Applicant obtained interim relief under Rule 43 for
maintenance , among other things, pendente lite (‘the Rule 43 order’) . The relevant
parts of the order are that the Respondent was ordered to pay the Applicant R25 000
per month for accommodation expenses and R13 000 per month for the children’s
expenses . The latter amounts were payable by the 7th day of each month and were
to increase annually in line with the Consumer Price Index . The current value of the
accommodation expenses is R29,046.39, an d R15,104.12 for the children . The
Respondent was required to maintain the children on his medical aid and cover their
additional medical expenses not included by the medical aid. The Respondent was
required to pay 75% of the children’s private school fees and all their educational
expenses. If the Applicant incurred costs related to the children’s medical and
educational expenses, the Respondent was required to reimburse those costs within
five days of receiving the relevant invoice or receipt from her . The Respondent had
to contribute R5000 per month towards the costs of an au pair .
6. The Applicant allege d she had to issue numerous writs of execution against
the Respondent to obtain arrear payments on the Rule 43 order. The writs proved
unsuccessful as t he Respondent had minimal funds in his account after the 7th of
each month , having been paid on the 25th of the previous month and prioritising his
needs above those of his Rule 43 obligations . Consequently, the Applicant attached
the Respondent’s retirement annuity with the Professional Provident Society on 18
November 2021 (‘the PPS order ’). The order enabled the Applicant to obtain
payment on the Respondent’s Rule 43 obligations “ to the extent that the (First)
Respondent does not comply with the Rule 43 order .”4 The PPS order made
provision for the payment of any arrear amounts due in terms of the Rule 43 order
within 5 days of the date upon which the Registrar of this Court certifie d them after
considering the supporting affidavit filed by the Applicant. The PPS order also made
provision for the payment of an arrears amount, which is not relevant to this
application.
4 The PPS Personal Pension Retirement Annuity Fund and Intembeko Investment Administrators
(Pty) Ltd were the Second and Third Respondents in the PPS Order.
7. The PPS order interdicted the PPS and another entity from making any
payments to the Respondent. The Respondent continued to breach the Rule 43
order , causing the Applicant to obtain the shortfall in payments from the PPS by
issuing three certificates in January, February, and April 2022. In May 2022, the
Respondent informed the Applicant that he had secured a loan , would make his
payments , and that the Applicant did not need to issue certificates against his
retirement annuity. In January 2023, the Respondent defaulted by making a short
payment. The Applicant duly issued a certificate to recoup the shortfall but was
informed by the PPS that they could not honour the certificate as the Respondent
had retired from the fund in August 2022 . Both the PPS and the Respondent had
breached the PPS o rder. The Respondent had withdrawn one-third of the funds, and
the remainder was transferred to a living annuity with an insurance and banking
group for the Respondent's benefit .
8. The Respondent answered the allegations about the PPS annuity. The PPS
broker contacted him in June 2022, a month after he celebrated his 55th birthday, to
inform him that he was eligible for retirement from the fund and could earn a better
return by investing elsewhere . He claimed that he was unaware that h is subsequent
investment in Old Mutual would be locked in and inaccessible . He used the amount
he withdrew to purchase an apartment. He sidestepped his breach of the PPS order,
claiming instead that he had not intentionally breached the Rule 43 orde r by
transferring the funds. He says he was unaware that funds could not be withdrawn
from his retirement annuity. These allegations are so improbable that they can be
rejected outright .
9. In April 2023, the Applicant applied to hold the Respondent in contempt of the
Rule 43 and PPS orders . On 23 June 2023, the Respondent was held to be in
contempt of the Rule 43 order and wilful contempt of the PPS order (‘the contempt
order’). The Respondent was sentenced to periodic imprisonment for one year, every
alternate weekend , when he did not exercise contact with the children. The sentence
was suspended for three years , provided the Respondent paid the arrears of R64
149.89 and deposited R557 807 within ten days of the order into the trust account of
the applicant’s attorney (‘ the trust fund’) . The latter amount was to be used in the
place and stead of paragraph 2 of the PPS order to the extent that the Respondent
did not comply with the Rule 43 order. No judgment is available to inform this Court
about the reasoning that led to the grant of the contempt order. The Respondent
avoided imprisonment by making the arrear and trust fund payments .
10. The proper approach to interpreting legal documents is to read the words
used in the context of the document as a whole and in light of all relevant
circumstances surrounding its creation .5 The principles of interpretation in Endumeni
apply equally to the interpretation of judgments and orders.6 As alluded to , no
judgment places the contempt order in the proper perspective or the context within
which it was given.7 The context must be gleaned from the circumstances leading to
the issuance of the three or ders.
11. Paragraph 3 of the contempt order specified that the trust fund was to be held
by the Plaintiff’s attorneys :
“…solely for the purposes of compliance by them, mutatis mutandis , in the
place and stead of the Second and Third Respondents in the PPS order , in
accordance with paragraph 2 of the PPS order, and that he (the Respondent)
does not breach the terms of the Rule 43 order , or any amendment thereto as
contemplated in terms of Rule 43(6) , for a period of 3 years.”
12. The preceding excerpt of t he contempt order refers to compliance with
paragraph 2 of the PPS order, which pertains to the extent to which the Respondent
fails to comply with the Rule 43 order. The text and purpose of the two orders are
clear in their intent, i.e., to effect complia nce with the Rule 43 order. The context and
circumstances relate to the Respondent , who defaulted on his Rule 43 payments
soon after the order was granted. The Applicant sought and obtained the PPS order
and drew on the Respondent’s annuity on three occasions when there was a
5 Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13;
[2012] 2 All SA 262 (SCA ); 2012 (4) SA 593 (SCA) (16 March 2012) at para 24
6 HLB International (South Africa) v MWRK Accountants and Consultants (113/2021) [2022]
ZASCA 52; 2022 (5) SA 373 (SCA) (12 April 2022)
7 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012]
ZASCA 49 ; 2013 (2) SA 204 (SCA) para 14; Van Rensburg and Another NNO v Naidoo and
Others NNO; Naidoo and Others NNO v Van Rensburg NO and Others [2010] 4 All SA 398
(SCA); 2011 (4) SA 149 (SCA) para 43 et seq , Firestone South Africa (P ty) Ltd v Genticuro AG
1977 (4) SA 298 (A),HLB supra
shortfall in his payments. The contempt order found the Respondent in wilful
contempt of the PPS order . It reinstated that source in the guise of the trust fund to
serve the same purpose, i.e., compliance with the Rule 4 3 order.
13. The PPS and contempt orders effectively established a mechanism to protect
the Respondent from being in wilful contempt of the Rule 43 order. What is unclear
about the formulation of the contempt order , without the benefit of the Court's
reasoni ng, is how the Respondent can breach the Rule 43 order in circumstances
where the trust fund has money, albeit in dwindling amounts, which has been funding
the Respondent ’s payment shortfalls. Let’s see what the parties say.
EVENTS AFTER THE CONTEMPT ORD ER
14. The Applicant demonstrated that, since August 2023, one and a half months
after the contempt order was issued, the Respondent has failed or refused to comply
with the Rule 43 order. The Applicant provided a table detailing the payments made
by the Responde nt between August 2023 and September 2024. The table of
payments did not include the costs of medical and educational refunds to which she
was entitled .8 Over fourteen months, the Respondent made timely payments by the
7th day of the month on four occasio ns. The Respondent did not make the exact
payment due on any occasion over the fourteen months . He paid just R14 500 on
five occasions and split two payments on two occasions.
15. The Applicant was required to instruct her attorneys to issue nine certificates,
enabling her to draw on the trust funds. Of the amount of R557 807, only
R116 298.01 remain ed when th is application was instituted. The Respondent was in
arrears for R34 319.59 when the Applicant completed her founding affidavit. She was
concerned that the trust fund would be depleted quickly . The Respondent ha d
structured his finances since the inception of the divorce proceedings to ensure that
he owned nothing in his name.
8 What is apparent is that the Applicant included the shortfalls in medical, educational , and au
pair payments she was entitled to in the amounts she withdrew from the trust fund.
16. The Respondent attribute d his failure to pay fully and promptly to a shortage
of funds. He alleged that there was an understanding between him and the Applicant
that she could access the trust fund to cover any shortfall. He alleged that he
informed the Applicant whenever he could not pay fully and tried to make up the
shortfall as soon as possible. The Applicant denied in reply that the Respondent had
a shortage of funds and a sserted that he paid his expenses before attending to the
Rule 43 obligations.
17. The Respondent expressed surprise that , since June 2023, the Applicant had
issued nine certificates to draw on the trust fund and had used R441,509 of the
amount . He alleged he paid most of the amounts due under the Rule 43 order. He
had made some monthly payments and de nied any shortfall in paying maintenance.
He bemoaned the Applicant’s failure to attach to her founding affidavit any certificate
to support her withdrawals. The Applicant had not provided the basis for the arrear
amount of R34 319.59 .
18. Over the fourteen months for which the Applicant provided a breakdown , the
Respondent calculated he had paid the Applicant , on average , R31 536.36 per
month9. The Applicant had drawn an average of R31 492.94 per month for the
corresponding period . Since the applic ation was instituted, the Respondent alleged
that he paid the Applicant R40 000 on 28 September 2024. He calculated that the
Applicant received R882 410.13 or an average of R63 029.03 from him and the trust
fund.
19. In reply, the Applicant stated that the ar rear amount reflected in her
application was due on 27 September 2024, the date she deposed to her founding
affidavit. She stated that she had made arrangements to recoup this amount by
issuing a certificate on 17 September 2024 . She did not cl aim it in her notice of
motion . The certificates attached to the Respondent’s supplementary affidavit
indicate that the certificate was approved for payment on the same day it was
issued, i.e., 17 September 2024. It is then apparent that there were no arr ears when
the application was instituted. The Applicant confirmed that the Respondent had
9 The correct average is R31 494.36
paid her the R40 000 he mentioned in his answering affidavit. The Applicant then
proceeded to calculate the Respondent’s outstanding arrears for the period after the
institution of the application. The Court would have been reluctant to allow this new
material in reply ; howeve r, the Respondent addressed his indebtedness in his
supplementary affidavit, denying any arrears.
20. The Applicant denied that there was an understanding between her and the
Respondent that allowed her to draw on the trust fund when he failed to pay. She
explained that issuing a certificate took about a week or longer, which meant her
debit orders could not be met. She stated elsewhere in her replying affidavit that she
has to wait until the 8th of each month to apply to the Registrar for the approval of the
certificate . The Registrar can take days ; she sometimes had to wait a week before it
was issued. The Respondent did not pay the costs of issuing a certificate, and she
had to incur exorbitant legal costs to obtain payment. No interest is levied on the
arrear amounts , and the exercise leaves her out of pocket. The trust fund was part of
the marriage's assets , and she could have never agreed to allow the Respondent to
use it to pay his maintenance obligations. The Applicant stated that the trust fund is
security for her to use when the Respondent defaults on his Rule 43 obligations. The
Court notes that this is exactly what the Applicant did on multiple occasions . The
Applicant noted th e criticism levelled at he r for drawing on the trust fund ,
notwithstanding the shortfall the Respondent admitted to paying on average each
month. The Court notes the Respondent’s protestations that he paid most of the
amounts under the Rule 43 order but considers that the statement beggars belief in
circumstances where he made payments well short of his obligations , e.g. when he
paid just R14 500 or lesser per month on five occasions.
21. The Applicant alleged that the Respondent admitted his contempt and had
been given ample time to cure it, which he ha d not done. The amounts reflected in
the table she prepared differed each month because she did not hold the
Respondent liable for the full amount when she paid either a lesser amount or none
under the expen ses for an a u pair . The increase in the Consumer Price Index took
effect in May 2024 but was only implemented in September 2024.
22. The Applicant denied claiming any historic indebtedness from the trust fund.
In addition to the amount the Respondent had to deposit in the trust fund, he had to
pay her R64 149.89, which were his arrears as of 7 June 2023. She had to pay the
outstanding school fees of over R150 000 from the trust fund. She denies that she
overre ached or irregularly accessed the trust fund. The Applicant accused the
Respondent of failing to provide details supporting his sweeping accusations. She
accounted for the arrear amount owed to her when she deposed to her affidavit
supporting this applicat ion and alleged that the Respondent was aware of the
breakdown.
23. The Applicant alleged that the Respondent's conduct had wreaked havoc on
her financial affairs , causing her immense financial stress and hardship. Stemming
from the Respondent’s late payments, her bond repayments were seldom met, and
she had to change her bond repayment dates repeatedly . Her credit score is
negatively impacted. In August 2024, she warned th e Respondent of his non -
compliance and her intention to apply to hold him in contempt of the Rule 43 order.
The Respondent responded with a payment of R25 000 on 2 August and stated that
he was under the impression that the trust funds would cover his non -payment .
24. The Applicant contended that the Respondent’s inability to pay was a blatant
lie. The Applicant utilised the information from the Respondent’s bank accounts to
challenge his alleged impecuniosity . The Respondent received a payment of
R1 129 652.96 on 29 February 2024 . The Applicant surmised that this amount was
from the sale of shares i n his current business. He ha d not paid her attorneys the
outstanding allocatur, although he had paid his own attorneys. He pri oritised
payments to friends and family over his obligations under the Rule 43 order. He has
paid various attorneys, his adult so n, and his first wife for his son’s car .
25. The bank statements for the period June 2023 to May 2024 indicate that the
Respondent incurred costs of flights to and from Pretoria, karate , yoga and
gymnasium fees, DSTV and Netflix subscriptions, purchases from Toy Kingdom and
Crazy Store, clothing purchases of R1000 per month and more than R7000 per
month eating out and buying takeaways . His grocery bills increased, notwithstanding
his separation from his partner . The Respondent ha d received addit ional funds from
his business . He ha d paid money to his ex -girlfriend’s business. The Applicant
contended that the Respondent does not owe h is ex -girlfriend money or that he
should p ay her in preference for his children’s maintenance. The Respondent has
paid R10 000 per month in respect of his Telkom account and over R7000 per month
to Vodacom for his cellphone. He spent R13000 at Toyota, probably for vehicle
service. He spends R1000 -R2000 per month at Woolw orths.
26. The Applicant contended that the Respondent has not applied to reduce his
Rule 43 obligations as his financial situation has not changed materially or
worsened. The Applicant detailed payments from the Respondent’s business over
his salary, averag ing R36 000 monthly over four months . The Respondent’s business
bore the expenses on his behalf.
27. The Respondent denied that his actions disrupted the Applicant’s financial
affairs. The Applicant had not substantiated her assertions that her bond, medical
aid and other debit orders were affected. He ha d no idea of her earnings or what her
salary covered every month . Since the Rule 43 order was granted, the Applicant has
purchased a property worth R4 200 000 in a luxury estate where she resides with the
children. The Applicant alleges that she cannot survive financially despite being a
highly qualified medical specialist in private practice. She receives over R60,000
monthly from him, in addition to his contributions to the children’s medical aid, school
fees, and extracurricular expenses. He c ould n ot accept that the Applicant was
experiencin g immense financial stress and hardship or that she had suffered any
financial prejudice, especially as the Applicant had not provided sufficient proof to
this Court. The Applicant earned far more than she disclosed during the Rule 43
proceedings in 2021. His attorney inquired about the trust fund , but they were
ignored.
28. The Respondent alleged that he had done his utmost to comply fully with the
Rule 43 order . He maximised his loans, sold assets, and restructured his life and
career to ensure the children and the Applicant were comfortable. He could not
afford to bring an application to reduce his obligations. He admitted to receiving the
proceeds from the sale of his shares. He used the proceeds to satisfy his Rule 43
obligations and repay loans accumulated over the course and duration of this matter.
He had to pay his previous wife, his older children and his sister , who had assisted
him. He admit ted paying his attorney partly for overdue amounts. He still owes his
attorney over R250 000 .
29. The Respondent began his business, P […], in 2013 . It has shown growth over
the past six years. His shareholding has , however, fallen below 50%. He receives a
fixed salary and has an employment contract. He owes the company over R3 million.
Although he has attempted to reduce his expenses on takeaways and coffee shops,
most of his daily business meetings occur in those venues. He does not consider
that R7000 per month is excessive in this regard.
30. The Respondent alleged that he defaulted on his bond and other financial
commitments due to payments to the Applicant. He has no choice but to pay for a
mobile phone to remain in contact with the children and to conduct his business. The
Applicant has incurred legal costs due to the malicious, ongoing, and aggressive
manner in which she litigates. The Applicant challenged the reports from child
experts that recommended reasonable contact with him. The Applicant demanded
further investigations when experts suggested that she had alienated the children
and threatened urgent litigation if he did not agree .
31. The Respondent argued that his karate fees of R450 monthly are justified, as
he has practised the discipline for thirty years. His medical aid subsidises his gym
fees. He did yoga for a few months, believing that the R1200 cost for unlimited
classes would be cheaper than attending psychological therapy. He has been under
immense mental st rain due to the arduous conditions of the Rule 43 order, the
constant legal onslaught from the Applicant’s attorneys, parental alienation, and the
pressure of building a business to meet financial commitments.
32. The Respondent alleged that he cancelled the DSTV subscription but retained
the Netflix account for the children’s entertainment. He admitted to occasionally
treating the children with gifts. He also buys clothes for the children, as the Applicant
does not send the ir clothing .
33. The Respondent explai ned the situation with his ex-Bronwyn. The Applicant’s
attorney contacted Bronwyn. With the attorney's assistance, a protection order was
taken against him . This incident caused further financial strain as he had to defend
the proceedings. He plans on renting out his home to obtain additional income and
enable him to fulfil his Rule 43 obligations.
34. The Respondent denied receiving additional expenses from P […] for his own
use. The funds he rece ived were added to his loan account and taken during
emergencies when urgent payments had to be made to the Applicant or for legal
expenses.
35. The amount paid to Bronwyn’s company was a historic loan as an investment
to acquire a business. Bronwyn’s business has shut down. The Respondent hopes
that his business may get some return on the loan from the liquidation process. The
amounts attributed to Telkom were failed debit orders . The service charges on the
vehicle were required as repairs were needed before he could sell it. The amounts
spent on groceries are for when he is in Pretoria with the children. His purchases
indicate that he buys necessities and spends little on luxurie s.
36. The Respondent received R87,624.08 from P […], R21 339.80 from Care
Works, and R4,512.74 from Old Mutual. He sources an additional R10,000 monthly
to meet his Rule 43 obligations. He accuses the Applicant of exaggerating his
income to promote a na rrative that he deliberately seeks to avoid paying when, in
fact, the opposite is true. He says that h e can only pay when he has the funds . He
continually seeks additional funds, which must be repaid, resulting in a spiralling debt
burden. His basic expenses far exceed his income, and he has had to sell assets to
reduce or defer monthly payments.
37. As part of the business growth he is involved in, the Respondent sees new
and existing client s in Gauteng. The company covers his flights, car rental , and other
expenses. He tried to persuade the Applicant to change the children’s school to a
more affordable one, but his assumption that the children would move school at the
beginning of this year was incorrect. He has upgraded his medical aid to include
medication and dental benefits , thereby preventing unnecessary disputes between
him and the Applicant. He ha d sought ad hoc locum work as a relief paediatrician
over the previous festive season. He attempted to settle the divorce through a
mutual friend, but since the Applicant instructed an attorney, progress through this
dispute resolution avenue stalled.
38. The Respondent submitted that his actions demonstrate his best efforts to
fulfil his obligations and ensure he remains a fully present father by maintaining
contact with the children in Pretoria while growing and developing his business. The
Applicant immediately issues certificates against the trust fund, even if he is a day
late with his payments. He suggests that because the Applicant does not inform him
of her drawings against the trust fund, he makes late payments , and the Applicant
benefits from the double income.
39. In reply, the Applicant st ated that her means are irrelevant to the
Respondent’s contempt . She did not receive more than R60,000 from the
Respondent, and her income had not increased since the Rule 43 order was made .
The Respondent is obliged to comply with the Rule 43 order until such time he
approaches the Court to vary the order under Rule 43(6). Despite the Respondent's
protestations, the Applicant does not believe that the income declared is truthful . She
says that the Respondent admitted his income is almost double his obligations , and
accordingly, his failure to pay is wilful and mala fide .
40. The Applicant denied stating that she could not use the trust fund for
maintenance. She stated that her being forced to use those funds does not excuse
the Respondent’s obligations nor cure his contempt. The fact that she told him she
would settle the outstanding school fees from the funds recovered demonstrates that
she has always been upfront and honest and has not sought to recover any am ounts
not owed nor to duplicate monies recovered. Her attorneys have had to send letters
since the Rule 43 order was granted , as the Respondent seldom complies . She sent
WhatsApp messages, copies of invoices, proof of payment, and requests for
additional payments. The Respondent cannot feign ignorance of his obligations
every month , as she has submitted the details to him timeously a nd in advance each
month.
41. The Respondent’s admitted income exceeds R110,000, and his expenses
unde r the Rule 43 order, according to his version, amount to R75,000 . He can afford
the obligations. He elects not to pay them. The Respondent bought his adult son a
car and repaid loans rather than complying with the court order, despite knowing he
faced impr isonment if he did not comply. The Respondent did not provide proof of his
payslips or his employment contract . In circumstances where the Respondent is
required to pay maintenance, he should not eat out at all , and if this is a business
expense, the busin ess should cover i t. The children have told her that they are sick
of takeaways. The Respondent can go away on holiday only if he has met all his
obligations. The Respondent flew to Pretoria and then travelled to Pietermaritzburg,
using thousands of rands when he was in wilful contempt of the order.
42. The Applicant denies that the Respondent is an employee of P […]. If he were ,
then the company would pay his company expenses and exorbitant cell phone co sts.
The Applicant states that she incurs legal fees as the Respondent fails to make
payments in full or on time. The issues relating to the children are completely
irrelevant to this application. She denies that the Respondent should practise karate,
go to the gym, or do boxing or yoga when he is not paying for the children’s
maintenance. They should be prioritised above all else. If he had opted for
psychotherapy, the medical aid might have covered the cost . They each have their
wardr obes for the children.
43. The Applicant admitted that her attorney met and spoke to Bronwyn , but that
occurred because Bronwyn approached the attorney. The Respondent has not
included a conf irmatory affidavit from Bronwyn. She sees no benefit in the
Respond ent renting out his home as he will have to secure alternate accommodation
in Cape Town. He has reserved accommodation at the Protea Hotel as a
contingency in case he receives bookings on Airbnb . This solution does not seem
beneficial for her and the children. The Respondent’s bank statements show that he
paid R 6500 in March and April to the company associated with Bronwyn , and by
denying this, he is not being honest with the Court. The A pplicant admit ted that she
erred insofar as the Telko m payments were concerned. The Respondent continues
to lead a high standard of living . She d isputes the Respondent’s allegations
regarding the securing of loans without him providing proof. As the Respondent
admits his income exceeds his obligations, his c ontempt is wilful. The Respondent
portrays himself as someone selling everything to meet his obligations. He sold one
house and bought a more expensive, larger , and more extravagant house in a luxury
apartment building, which features, among other amenities, 24 -hour security, a
fitness centre, a sauna, and a heated pool. He bought a second car and then sold
the old one. The Respondent can afford the order but chooses to pay at his
convenience.
44. The Applicant concludes by stating that the Resp ondent has the means to
make payment and that his non -compliance is wilful . It is also clear that the
Respondent is purposefully seeking to decimate the funds held in trust as security for
his maintenance obligations, thereby rendering the orders against h im
unenforceable. She contends that he does so intentionally to cause her financial
strain and to incur legal costs that she cannot afford. All these are intended to put
pressure on her to settle the divorce favourably to him, on his terms. She has had to
incur legal costs repeatedly to draft and send letters through her attorneys, issue
certificates to secure payment, and now bring this application. The Respondent is
fully informed every month of his commitments and can ascert ain what should be
paid.
45. The Respondent is playing a manipulative game as he can make payments
on time when under pressure and has money available to pay for unnecessary and
luxury expenses for himself.
46. As the Respondent has breached the terms of the Rule 43 order and has
done so within three years of the contempt order , she seeks that the suspended
sentence imposed on him be put into operation. The contempt order was intended to
prevent the Respondent fr om disregarding the Rule 43 order and to pay strictly by its
terms; he has shown no regard for it. He has not rehabilitated himself. She submits
that an order of imprisonment is appropriate. The Respondent can attend all work
commitments and see the children every second weekend if he is periodically
imprisoned every alternate weekend for one year. She believes imprisonment is the
only sanction the Respondent will respect and finally take to heart. It is also the only
remedy available to her to stop the Respondent’s conduct.
47. The Respondent denied his non -compliance or late compliance was wilful or
mala fide . The Applicant knows he has limited financial income and is severely
indebted. He alleged that he informed the Applicant when payments would be late to
enable her to restructure her finances for short periods. He has attempted to make
partial payments when he has been unable to pay i n full. He has not only attempted
to make good on any partial payment, but the Applicant has received exorbitant
sums from the trust fund. The Applicant wants to settle the divorce on exorbitant
figures beyond the value of his entire estate. She has chosen to bring urgent
litigation through the High Court when far less costly remedies are available. The
Applicant does not want to settle the d ivorce mainly due to her exorbitant legal costs,
which exceed R4.4 million.
48. The Respondent states that he made a late or missed payment, not in bad
faith, but due to a lack of affordability. The Applicant concealed from the Court that
he had disputed certain amounts and communicated with her when payments were
made late.
49. The Respondent contended that he would not earn an income if he were
imprisoned for contempt of Court . His inability to earn an income would severely
impact his ability to fulfil his parental duties to the children . His contact with them
would be jeopardised, and the Applicant and the children would be severely
financially prejudiced. The Applicant states that she heavily relies on the money she
receives from him. Alternative week end imprisonment would mean he would have to
give up the Board positions he holds at CareWorks and P […]. The institutional
investor in P […] would terminate his employment i n the company . He could not
practice as a doctor with a criminal sentence or r ecord. The H ealth Professions
Council of South Africa (‘HPCSA’) requires all doctors to maintain a criminal -free
record throughout their careers. The HPCSA views criminal records as a potential
barrier to entry into the profession and a risk to public safety. The Respondent
concludes by stating that talk of imprisonment is merely hypothetical as he is not in
wilful and mala fide contempt of the Rule 43 order.
50. In reply, the Applic ant state d that the Respondent inform ing her of his late
payments does not cure his contempt . He had to comply in full and on time . He has
not done so. The Respondent’s conduct is not of a man in financial distress. She
denies receiving exorbitant sums fro m the monies held in the trust fund. She has
received the amounts owed to her. She has also secured money from the trust fund
to settle their daughters school fees, thereby avoiding their expulsion from school.
51. The Respondent alleges that there are less costly remedies available to the
Applicant to achieve her goal but mentions none. The Respondent took the PPS
funds notwithstanding a Court order in which he agreed that the funds would be
preserved. Her only reme dy is to find him in contempt once again for his ongoing
non-compliance and to seek to uplift the suspension of imprisonment so that he may
finally and hopefully comply. She is equally suffering a great deal of emotional and
financial stress , but the Respo ndent only considers himself. She denies that she has
concealed anything from the Court. The Respondent does not aver that the
payments are incorrect ; he merely criticises her for not including the ad hoc
expenses in the table she compiled , which she made clear are not included. He
provides no proof to counter what she has said. She does not ask for imprisonment
lightly. She wants the father of her children to prioritise their well -being and needs
above his own and to favour his obligations. He has created the situation and must
bear the consequences thereof.
52. The Applicant denies that the Respondent could not serve on the board of his
businesses or earn an income. She refers to the Companies Act , which states that
this would only be the case if the Respondent were found guilty of fraud , theft,
forgery, or an offence involving fraud, misrepresentation or dishonesty. The
Respondent believes that he is above the law and can choose to pay when and how
much he wants, with no sanction against him. She was a dvised that maintenance
defaulters are blacklisted as such conduct is viewed adversely. The Respondent has
been aware since June 2023 of the ramifications of his ongoing wilful and mala fide
contempt, yet he continues unabated. They did not reach an agreement on the
children’s alleged change of schools.
53. The Applicant outlined her complaint regarding the amounts owed for
employing an au pair . She informed the Respondent when she employed the au pair
part-time or when she did not employ one at all . She accordingly reduced the
amounts payable by the Respondent ; however, despite her efforts, the Respondent
still refused to pay any of the amounts claimed. The Respondent contended that he
repeatedly asked the Applicant to provide him with the au pair’s name, curriculum
vitae, employment contract, timesheet, and pr oof of payment. He asserted that he
never refused to pay, but he required evidence that the Applicant had employ ed and
paid an au pair . He did not believe the request to be unreasonable as the Applicant
had been erratic in employing one but added the amoun t without providing proof of
the costs. The Applicant denied that the Respondent was entitled to the information
as no documentation of the type he required existed.
54. The Respondent also defaulted on his payments to the school the children
attended. The R ule 43 order states that the Respondent must bear 75% of the
children’s school fees in private education. The order does not state that the amount
is payable to the Applicant. The Respondent answered the allegation by stating that
he has been doing his utm ost to pay his share of the school fees. He obtained a loan
in October 2024 to settle the outstanding amount owed to the children’s school, and
he undertook to settle his portion as soon as he was able to arrange the funds . The
Applicant replied that the school fees were still in arrears.
55. The Rule 43 order states that the Respondent shall pay R5000 per month as
a contribution towards an au pair once the Applicant has appointed one for the minor
children. Thus, the amount was payable once an au pair was appointed. The order
entitled the Respondent to know when the au pair was appointed and nothing more.
The Applicant asserted that she provided him with information about what the order
required. She told him about when she had paid a reduced amount and when she
had not employed one.
56. The parties dealt with the certificates issued by the Applicant in their
supplementary affidavits. The R espondent persisted with his allegations that the
Applicant had overreached and received more than what was due to her. The
Applicant denied the accusations.
ARGUMENTS
57. The Applicant argued that the only question the Court had to determine was
whether the Respondent’s default was wilful and mala fide . The Respondent had to
present evidence that raised a reasonable doubt as to whether his non -compliance
was wilful and mala fide, failing which the Applicant established contempt beyond a
reasonabl e doubt. The Applicant alleges that the Respondent evaded the specific
averments in the founding affidavit, instead making sweeping statements and
proceeding to wantonly and untruthfully attack her. She asserts that her conduct is
not under scrutiny in this application. As the Respondent has not specifically denied
the Applicant’s allegations, the Court should accept her version as correct. As the
Respondent has repeatedly violated his Rule 43 obligations, a suitable and harsher
punishment ought to be imposed to ensure that the Respondent complies. The
children and the Applicant suffer extreme hardship through the Respondent’s
continuous breach. The Respondent has conceded that he is in arrears with his
maintenance obligat ions under the Rule 43 order , which he never pays on time. His
opposition to the application was unwarranted and only served to exacerbate his
contempt.
58. The Respondent focussed his argument on three bases, namely, compliance,
wilfulness and affordability. He referred to the wording of the PPS and contempt
orders to support his contention that, regardless of whether the funds came directly
from him or the trust fund , the Applicant has been paid her Rule 43 du es. The arrear
amount reflected in the founding affidavit had also been retrieved from the trust fund.
At worst for the Respondent, the payments may not have been timeous , but there
was compliance, if not fully, then substantial ly.10
59. The Respondent submi tted that if the Court found the Applicant ha d
discharged her onus of proving non -compliance with the Rule 43 order , then th at
non-compliance on his part had not been wilful or mala fide . The Respondent ha d
but an evidential burden to raise a reasonable doubt and refute wilfulness and mala
10 Consolidated Fish (Pty) Ltd v Zive and Others 1968 (2) SA 517 (C ) at 522 D -E, Victoria Park
supra
fides . Any dispute of fact had to be determined on his version. The Respondent
relied on the understanding between him and the Applicant that she could access the
trust fund for any urgent shortfall as a mean s of negating contempt . The Applicant
paid the children’s school fees in November 2 023 after informing the Respondent
that she would access the trust fund to cover his outstanding amount. He informed
the Applicant in August 2024 that he understood the purpose of the trust fund was to
recoup the shortfalls in payment of his Rule 43 obligations. The Applicant did not
dispute this at the time. The Applicant’s conduct in drawing on the trust fund on at
least nine occasions since the contempt order meant that she interpreted the
arrangement in the same manner as the Respondent did. The Respondent
submitted that his version on this aspect had to be accepted . His version c ould not
be rejected under the Fakie test.11 He had raised a reasonable doubt as to wilfulness
and mala fides , and the Applicant ha d failed to discharge the onus placed upon her.
60. Elaborating on his submission regarding substantial compliance, the
Respondent submitted that substantial compliance also detract ed from wilfulness
and mala fides . He explained that he had been stretched to his absolute financial
limits and ha d paid as muc h as possible towards the full amount due each month. He
had defaulted on a host of his expenses , including his bond, credit cards, vehicle
instalments and loan payments. The material disputes rel ated to his payment of
school fees and the expenses of an au pair . The Respondent asserts that his
indebtedness is to the school , not the Applicant. He ha d arranged directly with the
school to settle any arrears and future payments. He submit ted that he ha d
subst antially complied with the payment of school fees.
61. The Respondent was reluctant to pay the expenses r elated to the au pair
without proof of employment. In this respect, the Court notes that the au pair’s
expenses were deducted from the trust fund regardless of the Respondent’s position
on paying this obligation. The Respondent submitted that , in respect of the au pair
and the school fees, his version must be accepted . It cannot be rejected under the
Fakie test. He had raised a reasonable doubt as to wilfulness and mala fides , and
the Applicant ha d failed to discharge her onus beyond a reasonable doubt.
11 Fakie supra at para 58
62. The third leg of the Respondent’s submissions related to affordability. He
submit ted by present ing cogent evidence of his inability to meet his obligations he
has overcome the requirement of wilfulness and mala fides , and the Applicant could
not prove contempt beyond reasonable doubt. He indicated in his answering affidavit
that his total earnings amount to R121 027.62 and his basic expenses R157 129.03,
leaving a monthly shortfall over R36 000. He sa id that he ha d no further capacity to
meet the shortfall. The Court has already covered the Respondent's earnings and his
alleged shortfall. The Court notes that the Respondent had instituted a Rule 43(6)
application to reduce his obligations . The Respondent relied on the reasoning in
case s that conveyed there could be no finding of wilfulness and mala fides when a
spouse provide d sufficient evidence of unaffordability.12 The Respondent reiterated
that his version should be accepted and that the Applicant has failed to disc harge her
burden beyond a reasonable doubt.
63. The Respondent alleged that the application was premature, even on the
Applicant’s version. She complained of future conduct that had not occurred and
may never eventuate. It was argued on behalf of the Respondent that he may have
misconstrued the order, thus negating wilfulness. He had complied substantially with
the order. He understood that the Applicant could access the trust fund if he fell short
of his payments. In an application procedure, any dispute of fact ha d to be
determined on the allegation s he ma de, unless it was so untenable that it c ould be
rejected out right.
64. The exercise of the power of commi ttal, even where an apparently strong
prima facie case has arisen, is entirely with in the discretion of the Court; for the party
in default may show that they were unable to comply with the order.13 The Applicant ,
noting this is a repeat offence , requests a fair sentence if the Court finds the
Respondent in contempt of the Rule 43 order . The Applicant also seeks
reinstatement of the previously suspended sentence. The Court noted the applicant's
ambivalence in the orders sought . It would have appear ed logical to uplift the
12 KPT and Others v APT (1215/2019) [2020] ZAWCHC 110 (2 October 2020) at para 76, HG V
AG (2331/2017, 3487/ 2019 ) [2019] ZAWCHC 125 (20 September 2019) at para s 11 and 12
13 Slade v Slade (1884) 4 EDC 243
suspended sentence if a repeat offence occurred during its tenure. Counsel were
invited to addre ss whether the Court could impose an alternative sentence if it found
the Respondent in wilful contempt. The Respondent’s skill s could be employed more
constructively in a healthcare environment rather than letting him languish in prison
every second weekend for one year. The Court appreciates Counsels ’ responses .
65. The Applicant emphasised the purpose of a contempt finding.14 At the core of
judicial authority is the Constitution and the rule of law . No person, regardless of their
social or professional stature , is above the law. The apex Court has held that
contempt proceedings are neither criminal nor civil but a sui generis amalgamation of
the two.15 The Applicant argued that the Court should consider the sentence when
imposing a punitive sanction. Coercive and punitive sanction s serve different
purposes. A coercive sanction aims to ensure compliance with the original order,
allowing the Respondent to avoid imprisonment by adhering to the order. Its primary
goal is effectiveness, not punishment. It incidentally vindicates the Cou rt’s authority .
Conversely, a punitive sanction cannot avoid imprisonment. It imposes an
unsuspended sent ence reflecting the seriousness of the default and the
Respondent's contumacy. It asserts the Court's authority and sets an example to
warn other defau lters.16
66. As alluded to, the Court formed the impression that it had to uplift the
sentence imposed in the first contempt order. The Applicant correctly frames the
question as being whether this Court can amend the sentence imposed in the
contempt order. In R K v IK , Andrews AJ considered whether a Court can reconsider
a sanction and substitute it for a different sentence.17 The Respondent’s
circumstances had changed. His estate was sequestrated, and his health had
deteriorated. Wilful disobedience of a Court order i n civil proceedings is a criminal
offence.18 The cornerstone of sentencing is the triad of factors that a Court considers
14 Victoria Park Ratepayers Association v Greyvenouw CC and others (511/03) [2003] ZAECHC
19 (11 April 2003
15 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of St ate v Zuma and Others (CCT 52/21)
[2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021)
16 Id supra
17 R.K v I.K (17760/2019) [2024] ZAWCHC 306 (20 June 2024)
18 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10 at para 28
before imposing a sentence, i.e., the crime, the criminal, and the interests of society .
19 The Court considered imposing a sentence of house arrest in place of the
suspended one-month imprisonment sentence but required a correctional
supervision report to determine whether house arrest, as per section 276(1) of the
CPA, was suitable .
67. Section 276 (1) of the Criminal Procedure Act 51 of 1977 (‘the CPA’) sets out
the types of sentences a Court can impose . Section 276A allows for converting
prison sentences not exceeding five years to a form of correctional supervision.
Courts are permitted to impose correctional supervision as an alternative to
imprisonment, either as a stand -alone sentence or as part of a suspended sentence.
Correctional supervision involves the strict monitoring of offenders , often including
house arrest, community service , and regular reporting to a correctional officer . The
services of a social worker are required to determine whether a convicted person is
suitable for community service and to identify the appropriate programme for the
offender .
68. Courts have considered an d imposed sentences of community service. In
Tholo , the Court order ing contempt imposed a sentence of 250 hours of community
service.20 The subsequent Court , dealing with a repeat offence of contempt, ordered
the unrepresented Respondent to deal with speci fic allegations by affidavit as a
precursor to determining whether it should uplift the community service sentence .
The Applicant submitted that a Court imposing such a sentence should consider the
duration of the community service, where it will be performed, how it will be
monitored, whether it is an appropriate sanction for the Respondent’s non -
compliance and the Respondent’s prior conduct concerning the first contempt order
and the link of the rationality of the sentence with the Respondent’s non-compliance.
Each of the factors require d evidence.
69. The Applicant contend ed, without substantiation, that a community service
sentence cannot be ration ally linked with a failure to pay maintenance. The Court
disagrees , as community service may well be the appropriate sentence in certain
19 S v Zinn 1969 (2) SA 537 (A)
20 Tholo v Tholo 2024 JDR 3172 (GP)
instances. The Applicant does not believe that a fine is any more appropriate as it
would erode the Respondent’s estate and the Applicant’s accrual claim.
70. The enforcement of Rule 43 orders and maintenance orders falls under
different statutes: the Rule 43 order under the Superior Courts Act 10 of 2013 and
the Uniform Rules of Cou rt, and maintenance obligations under the Maintenance Act
99 of 1998 . Whilst the Maintenance Act allows for criminal proceedings in cases of
non-compliance, Rule 43 does not. Contempt proceedings under Rule 43 , which
attract sentences of imprisonment, requ ire the applicant to prove contempt to be
wilful and mala fide on a criminal standard, i.e., beyond a reasonable doubt.
However, whilst the legal basis differs, the outcomes, such as imprisonment , can
converge in cases of wilful non -compliance.
71. The Appli cant argued that the Respondent’s circumstances had not changed
and were distinguishable from the facts of the R K v IK case. This submission is not
entirely correct. The circumstances relating to both parties had changed. Those
affecting the Respondent include the reduction in his income resulting from the loss
of his rooms at the medical centre where he practised . The Applicant had relocated
with the children to Pretoria and had to establish an income -generating practice
there.
72. The Applicant accepts that the facts which led to the contempt order being
granted were the Respondent’s cancellation of his annuity and his failure to make
payment of his Rule 43 obligations. The Applicant accordingly sought that the
suspended sentence imposed in the contempt order be uplifted , meaning that the
Respondent should be imprisoned every alternate weekend when he is not
exercising parental contact with the children.
73. The Applicant di d not consider the effect of imprisonment on the children.
There is no indication in her papers that she sought their view on this aspect. Apart
from pleading the effect of his incarceration on the financial well-being of the
Applicant and the Children, the Respondent did not address the effect that his
imprisonment may have on them emotionally or psychologically. The Applicant
argued that the Respondent’s non -compliance is felt by the children daily and hurts
the girls . In a situation akin to the one at hand, a Court contemplating imprisonment
for contempt should consider referring the matter to the family advocate for a report
in the absence of one from any other suitably qualified expert being submitted by the
parties .
74. Relying on the triad of factors involved in criminal sentencing, the Respondent
argued that the failure to make timeous interim maintenance payments is not
equivalent to serious and violent crimes such as murder, armed robbery, and rape
and does not deserve the equivalent punishment of incarceration. The Respondent
did not acknowledge that contempt of court undermines the fundamental principles
of the law and the authority of the Court. The Respondent provided facts relating to
the offender, including, among others, his age, profession, impact on the children,
and his ability to pay maintenance. The interests of society and the Courts' authority
were dealt with in oral argument.
75. The Respondent further argued that by upholding a suspended sentence of
imprisonment , the Court assumes the position of a criminal Court and imposes
punishment.21 Section 297 (7) of the CPA permits a further suspension of the
suspended sentence under certain conditions.22 An upliftment of a suspended
sentence is not a mere formality but entails a fully -fledged exercise of judicial
discretion.23 It requires as much consideration and judicial discretion as the
imposition of a sentence. In certain instan ces, the analysis requires even more
thought and scrutiny. If the condition was unreasonable from the outset, then it
should not be put into operation. A trivial or technical breach does not deserve the
upliftment of the sentence. If the imposition will n o longer serve any deterrent or
21 Stow v Regional Magistrate, Port Elizabeth NO and Others 2019 (1) SACR 487 (SCA) at para
45
22 S297(7) of the CPA allows for a further postponement of the passing of a sentence or further
suspen d the operation o f a suspended sentence in circumstances where a Court has
postponed the passing of a sentence , suspended the operation of a sentence, or suspended
the payment of a fine and may if it is satisfied that the person concerned has through
circumstances beyond their control, be unable to comply with any relevant condition or for any
other good a nd sufficient reason.
23 Moroe v Director of Public Prosecutions , Free State and Another 2022 (1) SACR 264 (FB) (10
March 2021)
reformative purpose, it should not be ordered. The Court has to judicially consider
the provisions of sections 297(7) and (9) of the CPA at all times.24
76. However, where a court finds a recalcitrant litigant to be possessed of malice
on balance, civil contempt remedies other than committal may still be employed.
These include any remedy that would ensure compliance , such as declaratory relief,
a mandamus demanding the contemnor to behave in a particular manner, a f ine, and
any further order that would have the effect of coercing compliance.25
77. The Respondent submitted that correctional supervision or community service
is a competent sentence for contempt of Court, even where a second instance of
contempt is found a nd a suspended sentence imposed. One of the objectives of
correctional supervision is to promote the social responsibility and human
development of all prisoners and persons subject to community corrections. The
imposition of correctional supervision resid es under the Department of Correctional
Services. The imposition of correctional supervision, however, falls under section
276A of the CPA. It requires the Court to consider a report of a probation officer or a
correctional official. Sections 50, 52, and 60 of the Correctional Services Act 111 of
1998 outline the objectives, set out the types, and stipulate the conditions when
imposing correctional supervision, respectively.
78. The Respondent obtained a letter from a shelter for abused women and
children . The Respondent served the shelter in different capacities. The shelter
volunteered to assist the Court in ensuring that the Respondent fulfilled his
obligations if the Court were inclined to order that t he Respondent be sentenced to
community service.
79. The Respondent asserted that , when compared to other cases of contempt
for failure to pay maintenance or comply with Rule 43 orders, the facts of this case
do not warrant a sanction of imprisonment . In AR v MN26, the Respondent was in
arrears for R742 000, had not made truthful disclosure about his earnings, was
24 Moroe supra at para 16 quoting Hiemstra’s Criminal Procedure at pages 28 -85
25 Pheko supra at para 37
26 AR v MN (26583/2014) [2020] ZAGPJHC 215 (21 September 2020)
addicted to online gambling, and did not pay anything at all. Th at Court endorsed the
reasoning in JD v DD ,27 which states that if the father were truly not acting mala fide ,
he would have at least paid the amounts he stated he could afford in his application
to reduce his maintenance obligations. Despite the Court finding that the father’s
position was extraordinarily brazen, he received a suspended sentence of thirty days
imprisonment. In EK v PK ,28 the Respondent’s indebtedness exceeded R2 million.
His Rule 43(6) application had been dismissed . The Respondent jet-setted around
Europe, sold properties for approximately R13 million, and failed to present any facts
to dispute the Applicant’s allegations. The Court found the Respondent to be in
contempt for the second time and sentenced him to ninety days' imprisonment,
which was wholly suspended for two years, subject to certain conditions. In
Bannatyne ,29 the Court stated that there was no excuse for the Respondent not to
pay even the reduced amount he contended he should pay in his application for a
variation of the maintenance order. The lower Court had sentenced the Respondent
to ninety days imprisonment wholly suspended for five years. The matter was
referred back to the Maintenance Court as the Respondent had subsequently made
payments
80. In summary , the Court is not bound to uplift and apply the suspended
sentence on a repeat contempt offence. It is obliged to reconsider the factors
applicable to sentencing. A Court may impose any of the appropriate sentences
prescribed in the CPA, including community service. The imposition of the latter
sentence should be informed by the necessary reports prescribed in the Correctional
Services Act . However, the Court notes that correctional s upervision is an adjunct to
a sentence of imprisonment that has already been imposed . The question of whether
a Court can impose community service as a competent alternative to imprisonment
in the c ontext of civil contempt cases has been answered affirmatively in one
instance; however, even then, the Court may need to satisfy itself about the
appropriateness of the sentence for the particular offender as well as where the
sentence will be served and other factors before imposing it.
27 JD v DD 2016 0933 (GP)
28 EK v PK and Others [2023] ZAGPPHC 69, 53105/2021 (9 February 2023)
29 Bannatyne v Bannatyne 2003 (2) SA 363 (CC)
81. The Applicant sought costs on an attorney -client scale . The Applicant
submitted that failure to comply timeously with a Court order may result in an order
to pay the Applicant’s costs between attorney and client.30 To impose any other
order of costs would mean that the Applicant would be out of pocket. The
Respondent submitted that the application should be dismissed with costs.
EVALUATION
82. The law relating to contempt proceedings is settled.31 The Applicant must
prove the requisites of contempt , including order, service, or notice, non -compliance,
wilfulness, and mala fides . The Respondent bears an evidential burden concerning
wilfulness and mala fides . The Respondent must establish a reasonable doubt as to
whether the non-compliance was wilful and mala fide . If the Respondent fails,
contempt will have been established beyond a reasonable doubt .
83. The Applicant sought to hold the Respondent in contempt of the Rule 43
order. Viewed clinical ly, it is evident that the Respondent has consistently failed to
meet his obligations , either fully or on time . Late p ayments may mitigate but do not
excuse contempt .32 However, these submissions do not take into account the
foundational context and circumstances underlying this application. Those facts ,
along with the Court’s interpretation of the Rule 43 order, the PPS order, and the
contempt order, were covered in the opening p aragraphs of this judgment.
84. The Respondent admitted to some non -compliance, in that not all payments
were made promptly, but denied that this amounted to contempt. The Applicant ha d
thrice drawn the Respondent’s payment shortfall from his annuity following the PPS
order and on nine occasions, including the arrears, when this application was
instituted following the contempt order. The Respondent initially complied with his
Rule 43 obligations through direct payments and subsequent payments sourced
from the annuity and the trust fund . The Applicant belatedly realised that her
recourse to the annuity at first and then the trust fund was reducing her accrual from
30 York Timbers Ltd v Minister of Water Affairs and Forestry 2003 (4) SA 477 (T) at 507
31 Fakie, Pheko v Ekurhuleni City II [2015] ZACC 10 ; 2015 (5) SA 600 (CC); 2015 (6) BCLR 71 1
(CC) (Pheko ), and Zuma supra
32 HG v AG supra
the marriage. The Court notes that the parties' marital regime is one of out -of-
community of property, excluding accrual. The Applicant has not explained how she
is entitled to the Respondent’s assets.
85. The Applicant’s reliance on the trust fund to make up the Respondent’s
payment shortfall s does not avoid his contempt of the Rule 43 order. The Applicant
relied upon HG v AG , where it is stated that there is a duty on a judgment debtor to
discharge his maintenance obligations proactively . She should not have to seek
payment from the trust fund as if it were a com mercial debt.33 The analogy is not
entirely appropriate in this case. Maintenance -related attachment orders prioritize the
well-being of dependents, whereas commercial attachment orders focus on debt
recovery. The PPS and contempt orders were made for purpose orders, i.e., to
obtain the arrear amounts to the extent that the Respondent does not comply.34
Retirement annuities are generally shielded from attachment for commercial debt.
86. The Applicant accused the Respondent of placing his interests above those of
his Rule 43 obligations . The late payments inconvenienced her and created
hardships for herself and the children. She speaks of hardships but declines to
reveal what she earns or offer any other basis for her alleged impecuniosity. Those
facts are irrelevant to the determination of this application , she says. Why then allege
hardships when she canno t take the Court into her confidence? The Applicant
contended that Contempt applications are urgent as the vindication of the Court’s
authority is at stake. The application was instituted on an urgent basis. The Applicant
does not say why she waited fifteen months before instituting this application after
the Respondent first paid short in the aftermath of the contempt order. The
Applicant’s claim about vindicating the Court’s authority rings hollow in the
circum stances.
87. The Applicant has alleged that the Respondent has prioritised his own
expenses and those of his other famil ies and companions above that of his Rule 43
obligations. He has indulged in non-essential activities . The details are noted , but do
33 HG v AG supra at para 39
34 See M.O v R.O and Another (15617/2022) [2024] ZAWCHC 8; - (5 January 2024) for the
principles applicable in attaching annuities for the payment of maintenance obligations
not disturb the finding that the Respondent has complied with the quantum of his
Rule 43 obligations.
88. Any order of the Court is to be obeyed. It is a crime to disobey a court order
unlawfully and intentionally .35 If the Rule 43 order explicitly required the Respondent
to make full payments by a specific date , and the annuity and subsequent trust fund
was only intended as a backup for arrears, the Respondent’s failure to pay the full
amount c an still be considered to be non-compliant . The fact that the Applicant has
been drawing from the annuity and trust fund to cover shortfalls does not necessarily
absolve the Respondent of his primary obligation to comply with the Rule 43 order .
The object of contempt proceedings is to obtain the imposition of a sanction that will
vindicate the court’s honour consequent upon disregarding its previous order and
compel performance under the previous order.36 There is no performance that the
Court can compel once it finds no arrears owing in the Respondent’s Rule 43
obligations.
89. However, the PPS order is specifically worded to address the Respondent's
non-compliance with the Rule 43 order , and the contempt order reaffirms the
purpose of the PPS order regarding non -compliance . As employed in this case, an
attachment order can be an effective remedy , and recourse to seeking punitive
sanctions can be avoided to ensure compliance .37 In these circumstances, the Court
is not persuaded that the Respondent is in contempt of the Rule 43 order.
90. None of the three orders relevant to this application are supported by
judgments . The principles of interpretation in Endumeni apply equally to th e
interpretation of court orders.38 The interpretation of these orders cannot be
ascertained from the language of the judgment . It has to be ascertained from the
language of the order s themselves. As in the case of interpreting a document, the
wording of t he order s must be scrutinised to determine their intention.39 The starting
35 Fakie supra at para 6
36 Pheko supra at para 28
37 Dezius v Dezius (37655/05) [2006] ZAGPHC 77; [2007] 1 All SA 483 (T); 2006 (6) SA 395 (T)
(21 August 2006) , at para 29
38 HLB International (South Africa) v MWRK Accountants and Consultants (113/2021) [2022]
ZASCA 52; 2022 (5) SA 373 (SCA) (12 April 2022)
39 HLB at para 26
point is to determine the manifest purpose of the order. It is necessary to place the
order in proper perspective and to consider the context in which it was made.40
91. The contempt order is unclear in one respect , specifically regarding the
conditions that must be fulfilled to avoid imprisonment. Although it allows for the
Applicant to draw upon the trust fund when the Respondent fails to comply, it also
requires the Respondent to avoid breach ing the terms of the Rule 43 order. Without
a judgm ent to support this order, this Court is unable to second guess the Court on
how this part of the order was crafted.
92. If the Court is incorrect in its finding that the Respondent is not in contempt of
the Rule 43 order, then, after considering the evidence presented in the affidavits,
the Court concludes that the Respondent is not wilfully or mala fide in non -
compliance and thus not in contempt of the Rule 43 order. There are compelling
reasons that favour this finding. The Respondent under stood that the purpose of the
trust fund, reinforced by the Applicant’s conduct in making numerous drawings
against the fund and her recourse to it to pay the children’s school fees , was to cater
for the shortfalls in his payments . A purposeful disregard is insufficient, as the non -
complier may genuinely, albeit mistakenly, believe they are entitled to behave in the
manner claimed to constitute contempt . In such a scenario, good faith mitigates the
infraction .41 In HG v A G, the Court found that in circumstances where the
Respondent believed that a shortfall in payments would be secured from his share
options, did not constitute contemptuous conduct.42
93. The Applicant did not dispute the Respondent’s understanding of the trust
fund's purpose when he communicated that to her in writing. The Court declines to
accept that the Respondent has substantially complied with the Rule 43 order. He
has n ot, and it is only by the grace of the trust fund that he can claim that there has
been full compliance with the quantum of the Rule 43 order. As for the shortfalls in
payment , they were neither wilful, nor in bad faith.
40 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012]
ZASCA 49 ; 2013 (2) SA 204 (SCA) para 14; Van Rensburg and Another NNO v Naidoo and
Others NNO ; Naidoo and Others NNO v Van Rensburg NO and Others [2010] 4 All SA 398
(SCA); 2011 (4) SA 149 (SCA) para 43 et seq , HLB supra
41 Fakie at para 9
42 Hg v Ag supra at para 15
94. The Respondent has demonstrated that he cannot afford his payment
obligations. He has declared his salary under oath , which the Court accepts. His
salary has substantially reduced . He lost his medical rooms due to his inability to
shoulder the burden of after-hours duties at the medical centre where he practised ,
after he was obliged to spend weekends in Pretoria to ensure contact with the
children. He is indebted to the company he formed and has a substantial monthly
shortfall in paying his expenses and co mplying with his Rule 43 obligations.
95. The Respondent submitted that his version on th e defences he raised had to
be accepted under the Plascon Evans rule. His version could not be rejected in
accordance with the Fakie test. He has raised a reasonable doubt as to wilfulness
and mala fides , and the Applicant has failed to discharge the onus of proving
wilfulness and mala fides on his part beyond reasonable doubt . The Court agrees.
The Respondent cannot be subjected to crimina l sanctions for contempt .43
96. The parties have put out their washing for the public to view. They have
engaged each other in interim and expensive litigation . Rushing to court in respect of
issues that should have been objectively resolved before the instit ution of this
proceeding, at the very least , is to be deprecated. The Applicant should have
realised that this application was misconceived. It was instituted urgently , despite her
version being that the Respondent had been in contempt of the Rule 43 order since
August 2023 , one and a half months after the first contempt order . The parties
should rather expend their efforts on finalising their divorce.
97. Contempt of Court is not a finding lightly made , nor is it any easier if twice
displayed . Context is the thread, the core of this tale. The peculiar facts and Court
orders require d scrutiny for justice to prevail. Two hearts once united now clash in
spite ; hang not your linen for the crowd to pry in the courtroom’s glare, where
tempers ignite . Resolve your differences; l et the discord die. Why drift along a torrent
of strife , engulfed in bitterness as incisive as a knife? Settle the storm, escape the
43 Fakie supra at para 14, Matjhabeng Local Municipality v Eskom Holdings Ltd & others;
Mkhonto & others v Comp ensation Solutions (Pty) Ltd [2017] ZACC 35 ; 2018 (1) SA 1 (CC)
paras 67 and 85 -88)
gloom , grab the chance to heal, and reclaim your purpose in this li fe. Judgment
seeks not vengeance or ire but the truth alone; it does require.
98. In the premises, the Court makes the following order .
ORDER
The application is dismissed with costs . The costs are to include the costs of the
postponement of 1 November 2024.
________________________
Bhoopchand AJ
Acting Judge of the High Court
Western Cape Division
Cape Town
Judgment was handed down and delivered to the parties by e -mail on 19 March
2025
Applicant’s Counsel: L Buikman SC
Instructed by Catto Neethling W iid Inc
Respondent’s Counsel: S B Van Embden
Instructed by Maurice Phillips Wisenberg