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
EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU, GEORGE

Case Number: 587/2023
& Case number: 22313/2024

In the matters between:

R[...] H[...] K[...] Applicant/Respondent

and

D[...] L[...] F[...] Respondent/Applicant

JUDGMENT ELECTRONICALLY DELIVERED ON 19 JUNE 2025

MANGCU-LOCKWOOD, J

A. INTRODUCTION

[1] There are four interlocutory applications between the parties which were set
down1 for hearing simultaneously, namely contempt proceedings, an application in
terms of Uniform Rule 43 (6), Rule 30 and Rule 30A applications. All four
applications aris e from prolonged, acrimonious divorce proceedings , followed by a

1 By order of Goliath J dated 10 March 2025.

Rule 43 court order by Sher J on 19 June 2023, and a Rule 43 (6) order granted by
Gamble J on 29 April 2024.

[2] It was after the granting of the Rule 43(6) order of Gamble J that the
interlocutory applications ensued. The terms of that order a re detailed, covering 7
pages plus an annexure ‘A’. In part, t he court order made provision for the
maintenance and parental responsibilities in respect of the parties’ two minor
children2, and for maintenance in respect of Ms K[...]3. The parties were agreed
before me that any matters involving the minor children sh ould be deferred for later
determination, since a court-ordered Family Advocate report is yet to come to hand 4.
It also needs to be stated that, characteristic of acrimonious litigation of this nature,
there are many allegations made by both parties regar ding a variety of issues, which
are not traversed in this judgment.

[3] The pertinent paragraphs of the Rule 43(6) order which relate to these
proceedings are set out as follows:

"1. [Mr F[...]] shall make payment to [Ms K[...]] in an amount equal to 60% (sixty
percent) of the net value of the estate as at date of this order, as declared by [Mr
F[...]], in an amount of R3 025 113. 60, without set-off or deduction, as follows:

1.1 An amount of R2 000 000.00 shall be paid [by Mr F[...]] within 7 court days
[from] date of this order; and

1.2 The remaining R1 025 113.60 within 12 months from date of this order.

2. [Ms K[...]] may at her own cost, appoint a forensic expert should she deem it
necessary, to further investigate the value of the estate, and should it be proven
that [Mr F[...]] has understated the value of the estate by more than 15%, which
value is at time of this order, [Mr F[...]] shall reimburse [Ms K[...]] for her costs of the
forensic expert and pay to [Ms K[...]] her 50% of the shortfall she would have been

2 At paragraphs 3 – 10 and 12 - 16.
3 At paragraphs 11 -11.6.
4 In terms of the Court Order of 10 March 2025.

entitled to, within 30 days from having received such report from the forensic
expert.

2.1 [Ms K[...]] shall [appoint] the forensic expert within 60 days of this court order.

2.2 Should [Mr F[...]] dispute such report, [Mr F[...]] is afforded an additional 30
days to lodge a dispute and take the appropriate legal step he deems fit, failing
which the report and findings shall be enforceable.

2.3 The powers of the forensic expert, are attached hereto as “A”, which annexure
is duly incorporated into this order.”

[4] As envisaged at paragraph 2 .3 of the order, annexure “A” was indeed
attached to the order and set out the powers and duties of the forensic expert to be
appointed. It is common ground that the order was taken pursuant to an open tender
made by Mr F[...] in terms of Uniform Rule 34(1), a copy of which appears in the
record of the contempt application. It is also common ground that, pursuant to the
court order, Ms K[...] appointed a forensic investigator, Mr Steve Harcourt-Cooke.

[5] On 6 and 8 May 2024 Mr F[...] made two-part payments totalling R730 000,
thus leaving an outstanding amount of R 1 270 000. When Ms K[...] demanded
payment of the outstanding amount, Mr F[...] requested her signature of
documentation to release funds which were kept in two foreign policies held in both
parties’ names, named Quilte r and Utmost , intending to use those funds to pay the
outstanding amount in terms of clause 1.1 of the court order.

[6] Ms K[...] refused to grant consent for the surrender of the policies , asserting
that the payment was not meant to be final payment in respect of the division of
assets in the divorce but a payment pendente lite. She also referred to assurances
made by Mr F[...] leading up to the granting of the order by Gamble J, to the effect
that he could afford to pay the amounts recorded in paragraph 1.1 of the court order.
She referred to several other assets which could be liquidated by Mr F[...] in order to

She referred to several other assets which could be liquidated by Mr F[...] in order to
effect the outstanding payment , including an account referred to as Etoro and
another named Revolut.

[7] The Etoro account in particular, was highlighted by the forensic investigator in
an e-mail dated 20 August 2024, in which it was stated that the Etoro help centre
had provided information which indicated how easy it would be to access the funds
contained in that account, which at that point had a cash balance of R946 000. The
forensic investigator’s email was reinforced by correspondence from Ms K[...]’s
attorneys to Mr F[...]’ attorneys dated 11 October 2024, which, in essence set out
reasons for why they though t it preferable to surrender the Etoro account compared
to the Utmost and Quilter policies. According to Ms K[...], the letters sent by her
attorneys did not elicit a response from Mr F[...] regarding why the Etoro funds could
not be utilised, or any other f unds accessed by Mr F[...], and she was compelled to
launch the contempt proceedings.

[8] By 24 October 2024, Mr F[...] had still not paid the outstanding amount in
compliance with the court order, and Ms K[...] launched the contempt application,
which was ini tially set down for 15 November 2024 on the unopposed roll. On 11
November 2024 Mr F[...] filed a notice of intention to oppose, as well as a notice of
withdrawal of his attorneys of record, and as a result of becoming opposed, the
matter was removed from the unopposed roll, and was postponed.

[9] It appears that both parties became unrepresented between December 2024
and January 2025. According to the documents in the contempt of court file the
matter was set down for 9 December 2024, and on that day, Erasmus J struck the
contempt application from the roll, a nd the court order to that effect is dated 12
December 2024, although no decision is recorded for striking the matter from the roll.
Regardless, and contrary to the suggestion of Mr F[...] that he was found not in wilful
contempt, the fact that the matter was struck off the roll and was not dismissed
means no decision was made regarding the merits of the contempt. That is the

means no decision was made regarding the merits of the contempt. That is the
reason the contempt matter was placed before this Court by court order of 10 March
2025.

[10] On about 3 February 2025 Mr F[...] launched a fresh application in terms of
Rule 43(6) seeking variation of the Rule 43(6) order of 29 April 2024,5 and setting the
matter d own for 7 March 2025. The relief sought in the fresh Rule 43(6) is wide -
ranging and includes relief relating to the children, which as I have already indicated,
will not be part of this judgment. Mr F[...] seeks variation of the interim maintenance
order o n the basis that material changes in circumstances have arisen since the
court order was made, including financial circumstances.

[11] In response, Ms K[...] filed notices in terms of Rules 30 and 30A, in which she
objected to Mr F[...]’ fresh Rule 43(6) application as an irregular step. She did not file
an opposing affidavit to the fresh application in terms of Rule 43(6). In essence, she
argues that the fresh Rule 43(6) application amounts to an appeal or rehearing of
what has already been adjudicated in the order of 29 April 2024, which she says is
impermissible. She points out that he has yet to comply with the court order of 29
April 2024, which conduct compelled her to launch the contempt proceedings. Then,
without purging his non-compliance, Mr F[...] has launched the Rule 43(6), which she
says amounts to an abuse of court processes.

[12] In explanation of her failure to file an opposing affidavit to the fresh Rule 43(6)
application, s he s tates she will be seriously prejudiced if she is required to file a n
opposing affidavit to an unduly prolix application, since she will have to fund litigation
that she cannot afford. The Rule 30 and 30A Notice is opposed by Mr K[...], who filed
an opposing affidavit as well as a set of 17-paged heads of argument, complaini ng
that the application is itself irregular and amounts to a delaying tactic of the fresh
Rule 43(6) application and an abuse of process because Ms K[...] failed to deliver an
opposing affidavit.

[13] When the matters came before Goliath DJP on 10 March 2025, she issued a

[13] When the matters came before Goliath DJP on 10 March 2025, she issued a
directive for the parties to each file a supplementary affidavit of not more than 25
pages, summarising the current status of the matter , inter alia: compliance with the
order of Gamble J dated 29 April 2024; the current status of the Utmost and Quilter

5 Although the affidavit for this application is deposed on 31 January 2025, the court stamp on the
affidavit is 28 February 2025 whilst the notice of motion is affixed with a stamp dated 4 February
2025.

accounts; and the status of all outstanding documentation requested by Ms K[...] for
purposes of a forensic investigation.

[14] One of the main pegs on which the fresh Rule 43(6) hangs is an allegation
that Ms K[...] had failed to cooperate by signing the necessary documents necessary
to release funds from the parties’ Utmost policy. The issue has taken up a lot of
volume in the pap ers. According to Mr F[...], on 7 May 2024 he gave two options to
Ms K[...], the first being to take full possession of the funds in those accounts, which
would enable her to access the funds within 7 days. The second option was for Ms
K[...] to authorise transfer of the funds into his name, which he would in turn transfer
to her once they were cleared in approximately four weeks. He states that Ms K[...]
opted for the latter, while she falsely claimed that she was unable to open a bank
account as a foreign natio nal, which he disputes because he had presented her with
clear evidence that foreign nationals were able to open bank accounts in South
Africa, but she refused or avoided signing the Utmost documentation and to
complete what he refers to as the ‘Know your Customer’ legal process, for the
release of such funds.

[15] In an effort to procure the signing of the Utmost documents by Ms K[...], the
matter was placed on the case management roll before Thulare J, and on 13 June
2024 he issued directives for Ms K[...] to sign a deed of assignment and surrender
form for the Utmost policy by close of business on the 17 June 2024, and to sign any
other outstanding documents required for such release within 24 hours. Mr F[...]
states that Ms K[...] failed to comply with that dir ective, and that by the date of
deposing to his affidavit of 31 January 2025, the funds had not been released due to
her non-compliance.

[16] For her part, Ms K[...] explains that, at some point, she could not sign the
documents because she did not have a proof of address, an issue directly arsing

documents because she did not have a proof of address, an issue directly arsing
from his failure to pay the monies due in terms of the court order, as well as her
immigration status. It is however, common cause that she did comply with the order
of Thulare J by signing the relevant documents, alth ough it is not clear when.
However, as at the date of the hearing, she had not received the funds, and in fact
she claimed that he stole them.

[17] In his supplementary affidavit Mr F[...] stated that the surrender of the Utmost
policy funds, which st ood at approximately R757 000, was in progress, and that the
funds were due to be released prior to the court hearing of 4 June 2025 and would
be transferred to Ms K[...] immediately. However, he stated that the second policy
(2[...]), presumably under Utmost, remain ed inaccessible due to Ms K[...]’s failure to
cooperate.

[18] Mr F[...] states that the Etoro funds would have not been sufficient to settle the
outstanding amount in full, which means the Utmost funds would have needed to be
released. Instead, according to him, it is Ms K[...] who unreasonably refused to sign
the necessary documents for release of the Utmost funds. If he had transferred the
Etoro funds to her while she continued to withhold her sig nature on the Utmost
documentation he would have been left with no access to any financial resources.

[19] It appears that an auditor was appointed on 16 July 2024. According to Mr
F[...] this was well beyond the 60-day deadline set in the court order although he
accepted it. He claims that, although Ms K[...] had sufficient financial means to cover
the costs of the audit at the time, she chose to allocate those funds elsewhere which
resulted in significant delays in finalising the audit process. He also complains that
despite furnishing hundreds of pages of financial documents to the financial auditor ,
and requests for an update from the auditor, no update has been received.

[20] In the Rule 43(6) application, Mr F[...] also wishes for the Court to take judicial
notice of the fact that Ms K[...] is not in dire financial need of the funds ordered by the
court in April 2024, as allegedly evidenced by her deliberat e delay in signing the
necessary documentation for the release of the Utmost funds, and her alleged
continued maintenance of an elevated and extravagant lifestyle, all of which are
inconsistent with her claims of financial hardship.

inconsistent with her claims of financial hardship.

[21] When the fresh Rule 43(6) application was b rought, Ms K[...] and the minor
children resided in her father's home. On that basis, Mr F[...] claimed that her
demand for monthly maintenance which includes R25,000 for accommodation was
unreasonable and unsustainable. As a result, he s ought an order that his

contribution towards her accommodation should be reduced to R15,000 per month,
and that the amount be reviewed within six months. However, in the later
supplementary affidavit, he acknowledges t hat Ms K[...] recently enter ed into a
tenancy agreement in her own name, and claims that this demonstrates her ability to
secure accommodation without his involvement. He also claims that there is ample
proof that Ms K[...] has income, including an existing maintenance order, bank
statements and the fact that her father has acted as surety.

[22] Mr F[...] states that clause 11.6 of the court order of April 2024, which requires
him to co -sign Ms K[...]’s lease, presents a contradiction because it simultaneously
absolves him of any financial liability in that regard. He therefore seeks an order that
the requirement be struck from the court order.

[23] He seeks an order that the financial audit be stayed in light of the fact that Ms
K[...] has not fully disclosed her funds, and in light of the fact that she has failed to
utilise funds paid to her for the intended purpose . He also seeks an order that the
costs of this application as well as the contempt application be paid by Ms K[...] on a
party-party scale given her vexatious litigation and obstructive conduct.

[24] In the supplementary affidavit, Mr F[...] points to the imminent sale of his UK
property, based on a conditional offer of purchase, upon which he is due to receive
approximately R7.8 million . After payment of the outstanding bond amount and
conveyancing costs, he estimates a profit of approximately R1.73 million , and,
provided Ms K[...] signs the Utmost documents, she is due to receive R1.148, 452
from the sale.

[25] He has also a nnexed updated financial documents to show his financial
strain. He claims that he offered Ms K[...] an opportunity to generate an income on a
commission-only basis through his business, which she declined. He also states that

commission-only basis through his business, which she declined. He also states that
if she pursues a forensic audit beyond this point she does so with full knowledge that
no further liquid or disposable assets exist.

[26] In essence, Ms K[...] disputes every averment made in Rule 43(6) application
as well Mr F[...]’ supplementary affidavit . She emphasises that the court order of

April 2024 was granted after Mr F[...] assured the court that he could afford to make
the payments reflected therein. She highlights that the terms of the court order are
interlinked and constitute an interconnected framework, and that his failure to make
payments in compliance with clauses 1.1 and 1.2, has had a direct bearing on her,
citing numerous examples. She also cites his non -compliance with the order of S her
J, resulting in some outstanding arrears. She also states that he has refused to co -
sign her lease agreements to secure housing for her and the children while also
pursuing their eviction.

[27] She states that, although he spent eight months claiming that the Etoro funds
were not accessible to him, he simultaneously dissipated the funds for self-gain.

B. RELEVANT LAW

[28] 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”.6

[29] 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 comp ly with it, both wilfulness and mala fides will be inferred. 7 Thus,
once the applicant has proved the order, service or notice, 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 order was wilful and male fide.8

[30] 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

6 Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA 517 (C) at 522B–D.
7 Townsend-Turner v Morrow 2004 (2) SA 32 (C) at 49C–D.

7 Townsend-Turner v Morrow 2004 (2) SA 32 (C) at 49C–D.
8Fakie N.O. v CCII Systems (Pty) Ltd and another [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at paras
[42]-[43].

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.9

[31] As for Uniform of Rule 43, its purpose is to provide a speedy and inexpensive
remedy. It allows for interim arrangements to be imposed on the parties in
matrimonial disputes pendente lite , until the divorce court can make a properly
informed decision a fter hearing viva voce evidence. An order made in terms of Rule
43 is not appealable in terms of section 16(3) of the Superior Courts Act 10
of 2013.10 As a result, Uniform Rule 43(6) provides that 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.”

[32] Rule 43(6) is strictly interpreted. 11 It requires that there be a material change
to a party’s circumstances subsequent to the grant of a Rule 43 order. 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.

[33] In Micklem v Micklem it was held as follows:

“Rule 43(6) does not provide for a rehearing of a former application, based on new
evidence. The court is not to be faced with virtually a review of a previous decision,
based on the existing facts, but now having been given time to deal with the matter
in more de tail, having being able to utilise more information, another slant being
given to these very same facts, or one or two additional facts might be discovered
which puts a different complexion on matters. After all, this is merely to assist parties
in resolving their differences and if one makes of Rule 43 procedure, a procedure
whereby acrimony is engendered and further issues are brought forward, which only
complicates the divorce instead of simplifying it, Rule 43 misses its point. In my view

complicates the divorce instead of simplifying it, Rule 43 misses its point. In my view
Rule 43(6) should be strictly interpreted to deal with matters which it says has to be

9 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.
10 See S v S and another 2019 (6) SA 1 (CC).
11 See Greenspan v Greenspan 2001 (4) SA 330 (C) at 335E–F.

dealt with, that is, a, material change taking place in the circumstances of either
party or child. That relates to a change subsequent to the hearing of the original Rule
43 application.”

[34] 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 elements which make up the broad overview of such
applicant’s financial situation should be made. 12 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 only that a change or even a significant
change in cir cumstances 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.13

[35] There is a duty on applicants in Rule 43 applications seeking equitable
redress to act with the utmost good faith (uberrimei fidei) and to disclose fully all
material information regarding their financial affairs, and any false disclosure or
material non-disclosure would mean that he or she is not before the court with “clean
hands” and on that ground alone the court will be justified in refusing relief.14

C. DISCUSSION

[36] It is common cause that Mr F[...] has not complied with clauses 1.1 and 1.2 in
terms of which he was to pay in amount of R2 million, followed 12 months later by an
additional amount of R1 025 113.60. By 10 May 2024 he had only paid an amount of
R729 000, and that remains the case to date.

[37] His retort regarding his failure to make the requisite payments is that it is due
to Ms K[...]’s failure to cooperate by signing the necessary Utmost documents. One
problem with this approach is that the court order was not made subject to, or
conditional upon, to any other occurrence of event or conduct by either party.

conditional upon, to any other occurrence of event or conduct by either party.

12 Du Preez v Du Preez 2009 (6) SA 28, at page 32 B-J-33A.
13 See CLJ v CLG [2023] ZAGPJHC 386 (26 April 2023) at para [22].
14 Du Preez v Du Preez.

Nevertheless, after Thulare J ordered Ms K[...] to sign the documents, she did sign,
although there was more wrangling between the parties.

[38] By the date of the hearing, the payment had not been received by Ms K[...]. A
few days before the hearing Mr F[...] states that he attempted to m ake payment of
some hundreds of thousands to Ms K[...], which she refused to accept. It was
argued before me that this was an indication that she is not in dire need of the funds
as she claims.

[39] However, the correspondence annexed to the papers and highligh ted by Ms
K[...] tells a different story. She explains that she did indeed complete all the forms
required for the release of the Utmost funds. However, she informed Mr F[...] that
she could not accept such a large international transfer due to banking regulations
and accordingly requested him to first transfer the money into his S outh African
account and thereafter transfer it to her South African account . Alternatively, she
suggested that he deposit it into her attorney ’s trust account, for transfer into her
South African account . He ignored her pleas , and attempted to transfer the money
internationally to her. The money was blocked and returned to him . Contrary to the
claims of Mr F[...], this is not an indication that Ms K[...] did not want or need the
funds. If anything, it is an indication that Mr F[...] does indeed have money to pay in
terms of the court order of April 2024, contrary to his claims that he is unabl e to
afford the payments.

[40] The rule 34(1) tender made by Mr F[...] and which formed the basis for the
court order of 29 April 2024 did not contain any condition for payment, and instead
provided as follows:

“1.1.1 the table annexed herewith as Annexure “WPT1”, which table sets out the
assets held in the Defendant’s estate , which assets are capable of division in
terms of section 24(1)(a) and/or section 24(1)(b) of the [Matrimonial Causes Act

terms of section 24(1)(a) and/or section 24(1)(b) of the [Matrimonial Causes Act
1973 of the United King dom], and in respect of which assets the estimated current
value is set out in “WPT1”;
1.1.2 the Immigration Act 13 of 2002;

1.1.3 the fact that the estimated value of the assets listed in WPT1 is subject to
fluctuations in interest rate, value of cryptocurrency and exchange rate.
1.1.4 Defendant shall make payment to Plaintiff in an amount equal to 60% (sixty
percent) of the net value of the estate in an amount of R3 025 113.60 as follows…”

[41] In annexure WPT1 of the tender, Mr F[...] set out what he estimated to be
each parties’ value of the estate, and the 60% that he offered to pay to Ms K[...] was
her set out as her portion which was calculated apart from his 40%. It was on the
basis of the amounts contained in that annexure that the court permitted Ms K[...] to
appoint a forensic investigator, to interrogate those claimed amounts.

[42] But even in that regard, the evidence shows that the re has been non -
compliance. In 2024 the appointed forensic investigator requested specified
documents which remain outstanding. In that regard, Ms K[...]’s erstwhile attorney
issued rule 35 notices to compel discovery , which have yet to be complied with.
Although Mr F[...] claims to have provided over a thousand documents, they do not
include the key documents specifically requested.

[43] Yet in these proceedings, Mr F[...] has provided ‘updated’ financial statements
which themselves must be verified – the very thing the court sought to facilitate over
a year ago through the appointment of the forensic investigator. Given the lapse of
time, the forensic investigator’s work will be affected and duplicated, if not nullified in
some respects. There are many unsubstantiated financial claims in the fresh Rule
43(6) application. They include the new claims of the sale of the UK property, which
too remains unverified. All while Mr F[...] fails to comply with the court order of Apr il
2024.The considerations of the proper and effective administration of justice militate
against the relief and approach sought by Mr F[...].

[44] It is understandable that, after numerous demands, Ms K[...] launched the

[44] It is understandable that, after numerous demands, Ms K[...] launched the
contempt application when she did. Inste ad of delivering an answering affidavit to
that application to explain the circumstances of his non-compliance, Mr F[...] became
legally unrepresented, and yet managed to launch, not only a fresh and voluminous
Rule 43(6) application, but also vociferous opposition to the Rule 30 and 30A
Notices, which were accompanied by heads of argument. All of this is a world apart

from the relatively inexpensive and quick remedy that is meant to be provided by
Rule 43 proceedings.

[45] One example of Mr F[...]’ dilatory tactics relates to his version regarding the
Etoro account. Whilst he failed to engage Ms K[...] when she and her legal
representatives and the auditor suggested use of those funds in order to meet the
shortfall in making payments in terms of the court order, it is clear from his fresh Rule
43(6) and supplementary affidavit that, at the time that these discussions were taking
place through legal representatives on both sides, he was dissipating the funds in
question.

[46] In these proceedings, his explanations regarding the Etoro account are less
than satisfactory and are rather opaque. He states that the Etoro funds have been
partially depleted as they were used to sustain Ms K[...] and himself, and were the
only funding he has access to for financial survival and to maintain his monthly
obligations, which include supporting the minor children. In this regard he explains as
follows: “For a period of three months, I was unable to draw a full salary, forcing me
to rely on the E toro funds to survive, meet my monthly financial obligations, and
settle various outstanding debts.” The monthly obligations specifically mentioned in
his supplementary affidavit in this regard are school fees, which he states have
increased by R5000 per m onth, as well as personal debt , including mortgage
arrears, service charge arrears and loans, which he states are now in excess of
R300,000.

[47] These allegations are emphasised i n his supplementary affidavit, where it is
stated that Mr F[...]’ business suffered a “dramatic and ongoing commercial
downturn”, and was burdened with liabilities exceeding R1,000,000, which includes
creditor arrears and operational debts. There is no detail provided regarding when
the alleged hardship lasting three months was incurred, or of the exact financial

the alleged hardship lasting three months was incurred, or of the exact financial
obligations and outstanding debts he refers to in the se averments. No specific dates,
or incidents or details are provided regarding the alleged dramatic downturn of the
business, or why it is allegedly ongoing, or why this includes operational debts if it is
sudden and dramatic as claimed . And importantly, none of this was stated to Ms
K[...] or her legal representatives at the time that they suggested use of those funds,

evincing mala fides. As Ms K[...] states, his reasons for refusing access to the Etoro
funds at the time were obfuscatory, relating to certain difficulties in accessing them.

[48] It is clear that, by launching the fresh Rule 43(6) Mr F[...] seeks a rehearing or
reconsideration of the Rule 43(6) order granted on 29 April 2024. That much is clear
from the relief he seeks which includes an order directing that the funds mentioned in
paragraph 1 of the court order be reserved for equitable division upon the finalisation
of the divorce proceedings , rather than being immediately released to Ms K[...]. And
that the reserved funds be equitably divided upon the finalisation of the divorce
action, ensuring a fair and just allocation in accordance with the overarching
principles of matrimonial law. He also claims for the first time that Ms K[...] has
received over 75% of the entire estate through interim measures, which is not in line
with the UK matrimonial law under which the parties are married. Further, that the
Rule 34 tender which he made, “was made under false pretence since it has come to
light that [miss K[...]] has concealed funds”.

[49] The various allegations made in the fresh Rule 43(6) application must be
viewed in the light of the fact that Mr F[...] has failed to purge his non -compliance
with the court order of 29 April 2024. It is not difficult to see that that the large
amounts of money ordered in terms of clauses 1.1 ad 1.2 of the court order had a
cascading effect on the rest of the court order. Needless to say, the court would not
have granted that order, if it was not satisfied that the payments were due to Ms K[...]
as an interim measure.

[50] In that context, Ms K[...]’s explanation for why, for example, she was
compelled to utilise more of the medical funding available for her and the children, is
understandable. She has been compelled to live on a shortfall created by Mr F[...]’
failure to comply with the court order. Amongst other direct consequences of his

failure to comply with the court order. Amongst other direct consequences of his
failure to pay in terms of the court order, Ms K[...] states that she has been unable to
pay rental costs, clear her arrears, pay for the minor children's medical expenses as
well as her own, pay for debts accumulated since the first Rule 43 application in
2023, secure legal representation, pay for large family vet bills, pay for the shortfall in
monthly maintenance, pay for the children's educational tools, cash contribution and

cell phone allowance. The financial shortages have also affected her immigration
status.

[51] Yet in his fresh Rule 43(6) application, Mr F[...] claims that Ms K[...] is not in
dire financial need, and points to some of the circumstances created by his n on-
compliance to create a narrative that Ms K[...] is living beyond her means, contrary to
the finding of the court in the court order of April 2024. He seeks, for example, an
order removing Ms K[...] from his medical aid, and that she be required to obtain and
maintain her own medical aid at her cost.

[52] The fundamental problem facing Mr F[...] in his fresh Rule 43(6) is that he
has approached this Court with unclean hands, and given that the evidence shows,
not only his failure to com ply, but also mala fides and obfuscation on his part, the
legal authorities indicate that the relief he seeks should be refused. 15 He cannot be
rewarded for his failure to comply with the court order by a new order, which
exonerates him and, amongst other things, saves the money he was supposed to
pay in terms of clauses 1.1 and 1.2, for his benefit in the divorce.

[53] Another clear example that the fresh Rule 43(6) is, in effect an appeal, is the
request for an order removing the need for Mr F[...] to co -sign Ms K[...]’s lease
agreements on the basis that the court order is contradictory. He also states that Ms
K[...]’s father should act has her co -signatory. In this respect Mr F[...] seems to lose
sight of the fact that Ms K[...] lives with his children. Why should her father shoulder
the responsibility of providing security for her and the children’s accommodation? In
any event, it is not disputed that, for approximately a year before the court order was
granted, Ms K[...], who is not a South African citizen had stru ggled to obtain
accommodation without that a co -signature, and was subjected to credit cheques
and agents and was accordingly compelled to obtain the assistance of third parties.

and agents and was accordingly compelled to obtain the assistance of third parties.
No doubt, the co-signing order was granted with that background, in order to ensure
secure housing accommodation for Ms K[...] and the children.


15 Mgoqi v City of Cape Town and Another; City of Cape Town v Mqoqi and Another 2006 (4) SA 355
(C) at para 140.

[54] For all these reasons, there is abundant evidence, based on a balance of
probabilities, that Mr F[...]’ failure to comply with the court order was mala fide and
wilful, thus constituting contempt. T here is furthermore no basis laid for granting an
order in terms of his fresh Rule 43(6) application, and I am in agreement with Ms
K[...] that the application constitutes an appeal of the court order of 29 April 2 024,
which is impermissible. Accordingly, her notices in terms of Rules 30 and 30A must
be upheld. There is furthermore no reason why costs should not follow the result.

[55] In all the circumstances, the following order is made:

1. Mr F[...] is held in contempt of the court order of 29 April 2024, and is
ordered to comply with it by:
a. paying the outstanding payments in terms of clauses 1.1 and 1.2
thereof by end of 30 June 2025.
b. providing all the outstanding documents requested by the forensic
investigator, by end of 30 June 2025.

2. Mr F[...] is to pay the costs of the contempt application, where so
employed, on an attorney client scale.

3. Mr F[...]’ Rule 43(6) application is dismissed, and Mr F[...] is ordered to
pay his own costs in relation thereto; and

4. Ms K[...]’s Rule 30 and 30A notices are upheld, and Mr F[...] is ordered
to pay his own costs in relation thereto.


__________________________
N. MANGCU-LOCKWOOD
Judge of the High Court


APPEARANCES

For the applicant : Ms. R. H. K[...] (in person)

For the respondent : Adv J.J. Gildenhuys
Instructed by : A. Kassen
Hanekom Attorneys