SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.: 2024 -143281
In the matter between:
S[...] L[...] Applicant
and
A[...] C[...] Respondent
REASONS DELIVERED ON 2 1 MAY 2025
VAN ZYL AJ :
1. The parties to these proceedings were married on 27 April 2009 under
Shariah law . They have two minor children. Their civil marriage still subsist s,
albeit on a ruined foundatio n.
2. On 17 January 2025 I granted the following order s in the urgent court :
2.1. The applicant’s non -compliance with the rules of this Court relating to
forms and service is condoned, and the application to hold the
respondent in contempt of court is heard as o ne of urgency in terms of
Rule 6(12).
2.2. The respondent is declared to be in contempt of the order granted on
31 May 2021 under case number 5440/2021 (per the Honourable
Justice Allie) pursuant to the provisions of Rule 43.
2.3. The respondent is sentenced to 24 0 (two hundred and forty) hours of
periodical imprisonment over weekends from 18:00 on Friday until
06:00 on Monday until such time as the stipulated number of hours has
been reached .
2.4. The sentence set out in paragraph [ 2.3] is suspended on condition that
the respondent:
2.4.1. Comply with the Rule 43 order by paying the arrear
amount owing to the applicant in the sum of R16 000,00
on or before 17:00 on Monday, 20 January 2025; and
2.4.2. Comply with terms of the Rule 43 order in the future.
2.5. In the event of the respon dent failing to comply with the provisions of
paragraph [ 2.4], the applicant shall be entitled to apply on the same
papers, duly amplified if necessary and on notice to the responden t, for
an order uplifting the suspension of the sentence and for a warrant of
arrest to be issued for the respondent’s committal.
2.6. The respondent’s counter -application is dismissed.
2.7. The respondent shall pay the costs of the contempt application and the
counter -application on the scale as between attorney and client.
3. These are , briefly, the reasons for the grant of the se order s.
The contempt application
4. The applicant launched a contempt application against the respondent after
the latter had failed to pay certain expenses arising from an order granted on
31 May 2021 pursuant to the provisions of Rule 43.1 The orders relevant to
these proceedings were that the respondent was to pay the applicant’s and
children’s monthly rental to a maximum of R26 000 per month. He was also
directed to pay the applicant’s and children’s month ly DSTV/Multichoice,
Netflix, internet/Wi -Fi subscription fee, yearly TV license costs, and the
applicant’s monthly cell phone costs.
5. The unpaid expenses giving rise to the contempt application consisted of two
months ’ rental in respect of the applicants’ and the minor children’s residence
(being the rental owing for November 2024 and December 2024 in the total
sum of R16 000,00 ) as well as various additional expenses payable in terms
of the order for the period July to October 2024 (in the total sum of R2 7
129,13) . The applicant accordingly claimed maintenance arrears in the sum
of R43 129,13.
6. On the day of the hearing , I was informed that the respondent had made
payment of the additional expenses the previous day , albeit clearly grudgingly
if regard is had to the content of his answering affidavit . The amounts owing in
respect of rental remained unpaid.
7. In terms of Rule 43 o rder, the respondent was to pay R52 860 ,00 per month
for cash maintenance, which was reduce d to R39 360.00 from 1 August 2021
provi ded that the respondent paid the applicant’s rental up to a maximum of
R26 000 ,00 per month.
1 Under case number 5440/2021.
8. The applicant reside d in her deceased sister’s home. Although she was her
sister’s heir, the applicant d id not yet own this property , and had to pay
R8 000,00 per month towards the rental of the property directly to the
deceased estate.
9. The respondent denied that any rental was payable, arguing that the applicant
could reside there for free because the property would eventually be hers
anyway. He accused the appl icant of trying to extract more money from him
under the pretence of having to pay rental. He therefore refuse d to contribute
towards this rental, despite being obliged to do so in terms of the Rule 43
order.
10. I did not regard the respondent’s argument as having merit. The executrix of
the deceased estate confirm ed on affidavit that the rental of R8 000,00 was
payable. The attorneys representing the estate also confirmed what the
situation was . The applicant, despite being her sister’s heir, was not enti tled
simply to treat the property as her own before the estate had been wound up.
The estate had to pay expenses in respect of the property, and there was
nothing underhand in it re quiring rental from the applicant for the latter and the
children to have the use of the house .
11. I do not have to dwell extensively on the applicable legal principles. Contempt
of court, in the present context, has been defined as “ the deliberate,
intentional (i e wilful), disobedience of an order granted by a court of
competent jurisdiction ”.2 Wilfulness is an essential 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 ot herwise came to the notice of the
respondent) and that the respondent disobeyed or neglected to comply with it,
both wilfulness and mala fides will be inferred.5 Thus, once the applicant has
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.
proved the order, service or notice, and non -compliance, an evid entiary
burden rests upon the respondent in relation to wilfulness and male fides , to
advance evidence that establishes a reasonable doubt as to whether non -
compliance with the order was wilful and male fide .6
12. Even though the respondent’s conduct may ha ve been wilful, he may still
escape liability if he can show that he was bona fide in his disobedience.
Where he has genuinely tried to carry out the order and has failed through no
fault of his own, or has been unable but not unwilling (for example, by r eason
of poverty), to carry out the order, proceedings for committal will fail.7
13. Maintenance arrears payable under an order of court may also be recovered
either by way of contempt proceedings.8 In relation to the applicant’s claim,
the following is rele vant in relation to what the parties should place before the
court:
“A claim for arrear maintenance under a Court's order is exigable without any
averment or proof that the plaintiff had, in order to maintain herself, incurred
debts during the period in q uestion and notwithstanding the fact that she
earned, or could have earned, an income from employment … Therefore
where there has been a failure to pay maintenance and such payments have
fallen into arrears, the aggrieved party is fully entitled to obtain a writ and have
it executed and, because failure to pay a maintenance instalment is
also prima facie tantamount to a contempt of court, the onus would rest
squarely on the defaulter to establish circumstances warranting the exercise
of the Court's discreti on to stay the writ ….
Execution should therefore generally be allowed unless the applicant for a
stay shows that real and substantial justice requires that such a stay should
be gra nted … ”.9
6 Fakie N.O. v CCII Systems (Pty) Ltd and another 2006 (SCA) paras 42 -43.
7 Matjhabeng Local Municipality v Eskom Holdings Ltd and others; Mkhont o and others v
Compensation Solutions (Pty) Ltd 2018 (1) SA 1 (CC) at paras 85 -88.
8 Strime v Strime 1983 (4) SA 850 (C) at 852C.
9 Strime supra at 852D -G.
14. In the present matter there was no issue as regards the grant o f the order and
the fact that it had come to the respondent’s attention. It was common cause
that he had failed to comply with its terms. The question was whether such
failure was wilful and mala fide .
15. The respondent made no secret of the fact that he w as dissatisfied with the
terms of the Rule 43 order. From the papers it seemed that this has been the
case since the grant of the order. He had faced a previous contempt
applicatio n for non -payment of the Rule 43 order, in which an order was
granted agai nst him on 25 October 2024.10
16. In HG v AG11 it was held:
“Non-compliance with a court order by a person who has knowledge of it is
prima facie contemptuous. It is not open to a person to whom a court order is
directed to decide the degree to which complianc e will be made. If a time for
compliance forms part of the order, it must be respected faithfully, not on a
'more or less' basis. Non -compliance of any degree is never a 'triviality' . If it
cannot be respectably explained, it is an act of contempt, and lia ble to be
punished as such. Wilful or reckless late payment does not purge contempt;
at most it may be mitigatory. ”
17. The respondent was entitled to apply for a variation of the maintenance order
in the event of material change in his circumstances . He had not done so.
Until the order was varied, he remain ed liable in terms thereof. On the
evidence before me there was no suggestion that he was unable to afford the
rental payments ; the contrary appears from the papers .
18. This Court is enjoined to be alive to recalcitrant maintenance defaulters who
use legal processes to side -step their maintenance obligations. Attempts to
10 The order was granted by the Honourable Justice Nuku unde r case number 20788/2024 . It
seems th at the respondent is also contemptuous of an order granted under case nnumber
8030/2021 by the Honourable Ms Justice Baartman who directed the respondent on 17
October 2024 to deliver his reply to the applicant’s Rule 35(3) notice in the divorce action – a
directive which he has ignored.
evade maintenance orders relating to minor children are particularly egregious
as it undermines the best interests of the child principle :12
“Compliance with court orders is always important. There is a particular
scourge in this country of spouses, particularly husbands, failing to pay
judicially ordered maintenance. ”
19. The explanation for the respondent’s non-compliance is not satisfactory ; they
merely serve to convey the impression that he is so angry at the applicant that
he would take every possible opportunity of thwarting her. The respondent
deliberately did not pay, seeking to justify his conduct with a strained
argument. On the fac ts before me there is no reasonable doubt that the
respondent is in contempt of the Rule 43 order.
20. I regarded a short period of periodical imprisonment in the event of the
responden t not paying the arrears as appropriate, suspended in order to give
the re spondent the opportunity to make payment of the arrears still owing .
The counter -application for the appointment of a curator ad litem
21. The respondent launched a counter -application for the appointment of a
curator ad litem to the parties’ two minor child ren. The counter -application
was de livered together with his answering papers in the contempt application .
It was brought on an urgent basis , to be heard together with the contempt
application .
22. There was a paucity of information on the papers as to why such an
appointment was necessary, and what the powers and role of the curator ad
litem would be in the context of the parties’ ongoing litigation . At the time,
there was an arrangement in place in relation to the children’s ca re and
contact . The childre n were primarily in the applicant’s care. The respondent’s
11 [2020 ] ZAWCHC 7 (10 February 2020) p ara 12. Emphasis supplied.
12 KPT and others v APT [2020] ZAWCHC 110 (2 October 2020) para 95; and see Samuels v
Salie -Hlophe 2023 JDR 1119 (SCA) para 18.
contention that the children were being neglected and exposed to dubious
influences was speculative, and not supported by any evidence that would
raise a red flag in relation to the children’s wel l-being . He cast aspersions on
the applicant’s lifestyle, which he clearly disapproved of, but there was no
evidence that the children were being harmed by the applicant’s lifestyle
choices. Notably, the relief the respondent sought in his urgent applica tion
did not include a request for the variation of the parties’ arrangements in
respect of the minor children’s care.
23. The parties are very much at loggerheads, and the affidavits in these
proceedings were brimful of invective. The aggression was palpab le at the
hearing. This is an unfortunate situation, because it bodes ill for any
possibility of resolving the disputes in a civil manner. The state of affairs
cannot be a happy one for the children. The relief sought in the counter -
application would not , without proper substantiation, investigation and
consideration, ameliorate the situation.
24. The respondent faced another hurdle. This Court stated as follows in CN v
TN:13:
“ … Ordinarily, courts should not allow respondents such as the present one
to be heard until such time that their/his contempt has been purged. It comes
as no surprise at all that the applicant invites me not to allow the respondent
to be heard until such time that he purges his contempt. … It has been held
authoritatively that this a pproach is especially of importance in matters
involving the best interests of the minor children. … Indeed the respondent’s
failure to pay in terms of the court order has clearly l eft the minor children of
the parties without maintenance support. I view the failure to pay maintenance
in a very serious light. In Kotze v Kotze supra the judge cited the following
dicta of Romer, L. J. in Hadkinson v Hadkinson 1952 (2) A.E.R. at page 571:
‘Disregard of an order of the court is a matter of sufficient gravity,
whatever the order might be. Where, however, the order relates to a
13 [2017] ZAWCHC 63 (31 May 2017) para 3. Emphasis supplied.
child, the court is, or should be, adamant on its due observance. Such
an order is made in the interests of the we lfare of the child and the
court will not tolerate any interference with o r disregard of its decisions
on these matters.’ ”
25. In the light of my finding that the respondent was in contempt of the Rule 43
order, the counter -application should thus not have been entertained.
26. Be that as it may, I did consider the relief sought by th e respondent . Counsel
for the applicant argued that the counter -application had been born out of the
respondent’s need to control the funds paid to the applicant: if he could gain
control over the children, he could control their financial care and would not
have to pay anything to the applicant in that regard. This contention was
vehemently disputed by the respondent’s counsel. Whatever the case, it was
not necessary to speculate. The respondent’s counter -application simply did
not, in my view, make o ut a proper case for the relief sought, and certainly not
on an urgent basis.
Costs
27. The applicant was the successful party, and there was no reason to depart
from the general rule that costs follow the event. The failure to comply with
the terms of the Rule 43 order constitutes blameworthy conduct that justifies a
punitive costs order. Th at is the usual order granted in matters concerning
contempt .
Order
28. For these reasons, I granted the order referred to at the outset.
________________ __________
P. S. VAN ZYL
Acting Judge of the High Court
Appearances :
For the applicant : Ms L. Bezuidenhout , instructed by Herold Gie Attorneys
For the respondent : Mr M. Holland , instructed by Parkar Attorneys Inc.