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in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 5785/22

In the matter between:

NLD Applicant

and

M L Respondent

Neutral citation: NLD v ML (Case no 5785/22) [202 5] ZAWCHC…(06 August
2025)

Coram: LEKHULENI JD
Heard: 4 July 2025
Delivered: Electronically on 6 August 2025

Summary: Family law – Rule 43 order. Respondent failing to comply with the order –
Applicant claiming arrear maintenance – Respondent ordered to pay arrears
immediately - Failing which, applicant allowed to bring application for contempt of
court – Respondent ordered to pay the costs of the application.

ORDER
___________________________________________________________________

1 The respondent is ordered to make immediate payment of the sum of
R277 066.48 to the applicant at her nominated bank account.
2 That failing compliance with paragraph 1 above, within 15 court days of this
order, the applicant is hereby granted leave to set the matter down again on a
10 court days’ notice to the respondent for an order that the respondent be
found to be in contempt of the order of the court made on 31 August 2022 by
Loots AJ and that the court impose an appropriate sanction on the
respondent.
3 The respondent is ordered to pay the costs of this application on a party and
party scale, including the costs of counsel on scale B.


JUDGMENT
___________________________________________________________________

LEKHULENI J:

Introduction

[1] This is an application in which the applicant seeks an order that the
respondent be ordered to make immediate payment of the sum of R277,066.48 for
arrear maintenance owed to the applicant. The applicant also seeks an order that
should the respondent fail make payment of the said of amount within ten court days
of the order, the applicant should be granted leave to set the matter down on a five
court days’ notice to the respondent for an order that the respondent be found to be
in contempt of court of the R ule 43 order granted by Loots AJ, on 31 August 2022,
and that the court imposed the appropriate sanction on the respondent. The

applicant also sought an order that the respondent be ordered to pay the costs of
this application on an attorney and own client scale.

Background Facts

[2] The applicant and the respondent were married in Switzerland on 23 June
2000, and their marriage is still subsisting. Two children were born from their
marriage, and both children have reached the age of majority. On 11 November
2020, the applicant institu ted divorce proceedings against the respondent under
case number 16689/2020. The divorce proceedings are pending in this Court , and
their matter is at a pre -trial stage. The applicant resides in the Western Cape within
the area of jurisdiction of this cour t, and the respondent resides in Switzerland with
the two children.

[3] It is common cause that in August 2022, the applicant brought an application
in terms of Rule 43 of the Uniform Rules of Court against the respondent for interim
maintenance and other ancillary orders. The respondent opposed the application.
After the matter was heard, Loots AJ, on 31 August 2022 granted an order in terms
of which the respondent was ordered to pay the applicant maintenance pendente lite
in the sum of R20 000 per month without deduction or set off on or before the first
day of each month commencing on 01 September 2022 by way of electronic transfer
or debit order into the bank account of the applicant.

[4] The respondent was also ordered to bear the costs of the monthly premiums
in respect of the applicant’s medical aid and to pay the applicant’s monthly expenses
inclusive of homeowners insurance in respect of the property; monthly Liberty Life
retirement annuity; Old Mutual retirement annuity; Life/dread disease policy; Telkom
account to a maximum of R500 per month ; Pope Alarm s monthly premium and
Vitality premium. The combined sum that the respondent was ordered to pay was
R31,773.70 per month, effective from 1 September 2022.

[5] The applicant asserted in the present application that the respondent

[5] The applicant asserted in the present application that the respondent
breached the terms of the order, as he has failed to, neglected, or refused to make
any payments for the instalment due in respect of the maintenance to her or into her

personal bank account or into the trust account of her attorneys. The applicant stated
that the respondent wilfu lly failed to comply with the order and is therefore in
contempt of this court's order.

[6] The applicant stated that, as of 1 September 2022, the respondent was
required to pay her R31,773.70 per month. As a result, by 1 May 2025, this totals 32
monthly instalments. Therefore, the total amount owed to her by the respondent, in
accordance with the Rule 43 order issued by this court, is R1,016,758.40 . According
to the applicant, this amount excludes the return air tickets, which are liable to be
paid by the respondent. The applicant asserted that the respondent paid the monthly
instalments of R31 773.70 from September 2022 until January 2023. To this end, the
respondent paid a total sum of R158 868. 50.

[7] The applicant averred that she had attached and received from the joint
estate of the parties the sum of R865,063.83. The applicant stated that fifty percent
of this payment was her own share, and the balance, R428,944.95, was from the
respondent’s share. The applicant further averred that the amount the respondent
owes her as of 1 May 2025 is the sum of R277,066.48. The applicant submitted that
the respondent is in violation of the court order in not paying promptly what is due to
her. The applicant reques ted that the court grant the order sought in the Notice of
Motion.

[8] The respondent, on the other hand, disputed that he was in wilful default in
not complying with the said court order. The respondent asserted that on 4 January
2023; while skiing with his family in Grindelwald, he had an accident as he fell and hit
his head. He was hospitalised the same day. He was discharged on 5 January 2023,
and he returned to where he stayed with his family. Pursuant to the injury, on 8
January 2023, he felt confus ed and disoriented and had a headache and pain in his
head and shoulder. He subsequently collapsed and was taken to the hospital. At the

head and shoulder. He subsequently collapsed and was taken to the hospital. At the
hospital, he was later informed that he had suffered a coronary stroke and that such
a stroke was likely to have been c aused by his fall, which he experienced during the
skiing trip.

[9] Following this, he was in a coma for about 3 days. Medical tests and imaging,
such as brain scans, were conducted by the doctors who advised him that the
damage caused by the stroke, amo ng others, affected his ability to vocalise and
write down his thoughts completely. The respondent asserted that he could not
return to work or handle more complex issues, such as administrative and financial
matters, on his own and required external suppo rt regarding business decisions and
the signing of contracts. The respondent stated that his sister reported the accident
and his condition to the Child and Adult Protection Authorities in Basel-Landschaft on
27 January 2023. Her sister notified the author ities that the respondent needed
support, and the authorities were obligated to investigate the report of risk. The Child
and Adult Protection Authorities instituted their own process of investigating the
accident.

[10] Based on their assessment, the Chi ld and Adult Protection Authorities was of
the view that the appointment of a legal guardian to assist the respondent with asset
management in accordance with article 394 read with article 395 of the Swiss Civil
Law Code ZGB, was urgent and necessary after the accident, as it had become
clear that the respondent could not act for himself. A legal guardian was appointed to
manage the respondent's affairs, including his income, assets, and legal
proceedings. The respondent avers that this appointment was comm unicated to the
applicant’s legal representatives on 28 February 2023.

[11] On 31 March 2024, his curatorship in Switzerland was terminated as the
respondent had made sufficient progress and was deemed able to manage his own
affairs. The respondent asserts that, notwithstanding this termination, he has not
been able to work and will likely never be able to work again. The respondent stated
that prior to the accident and stroke, he was employed as a project manager by H[...]

that prior to the accident and stroke, he was employed as a project manager by H[...]
& C o. in Switze rland. From May 2021, he earned CHF 6,708.10, which was
equivalent to R148,260 per month in 2023. According to the respondent, he is no
longer able to work and is not employed by H[...] & Co. The respondent further
averred that he had previously received a monthly stipend from his former employer,
and they, in turn, had received reimbursement from the Swiss Accident Insurance
Organisation. This amounted to roughly 80 percent of his salary, and these payments
came to an end on 30 June 2025.

[12] From July 2 025, he receives a monthly disability pension from the Disability
Pension and Integrity Compensation in the sum of CHF 7,133.35, which is equivalent
to 80 percent of his previous salary. According to the respondent, this is the
maximum amount he can receiv e, given that occupational and medical assessments
record a 100 percent incapacity for work. Notwithstanding the fact that he no longer
earns a salary, his expenses include rental costs, medical expenses, and
maintenance payments for his two children, both of whom reside in Switzerland. His
monthly expenses are as follows: rental, CHF 700.00 per month; EGK health
insurance, CHF 534.65 per month; administrative costs, CHF 660.06 per month;
rental for their children, CHF 1,350 per month; tuition fee for their daughter, CHF
143.33; and maintenance for his son, CHF 533.05.

[13] The respondent stated that he used the balance of his funds to buy food,
hygiene and cleaning products, clothing, haircuts and travel expenses. The
respondent further asserted that his circumstances have drastically changed since
the Rule 43 order was granted on 31 August 2022. He has instructed his attorney to
proceed with a Rule 43(6) application, or alternatively, to attempt to settle the divorce
with the applicant.

[14] The respondent disputed that he was in wilful contempt of the Rule 43 order.
He submitted that he suffered a stroke in January 2023 and was subsequently
hospitalised, and then moved to a rehabilitation centre, and was placed under
curatorship for 13 months. He was unable to work or earn an income and, therefore,
could not comply with the Rule 43 order, as his estate was managed by appointed
curators. To this end, the respondent asserted that he was unable to comply with the
Rule 43 order and therefore his a ctions were not wilful. The respondent implored the
court to dismiss the applicant’s application.

Discussion

[15] As foreshadowed above, the applicant and the respondent are still married to

[15] As foreshadowed above, the applicant and the respondent are still married to
each other. Their divorce is pending in this court. During 202 2, Loot AJ directed the

respondent to pay the applicant maintenance pendente lite monthly in the sum of
R31,773.70 collectively.

[16] It is perhaps apposite to remind ourselves that o ne of the legal consequences
of marriage, whether in or out of communit y of property, is that the spouses owe
each other a reciprocal duty of maintenance according to their means. The scale on
which support must be contributed depends upon the social position, financial means
and style of living chosen by the spouse. (Jodaiken v Jodaiken 1978 (1) SA 784 (W)
at 788H). The scope of the duty is determined by the couple's standing in the
community and standard of living and is by no means confined to bare necessities.
(Cary v Cary [1999] 2 All SA 71 (C) 77). If income is insufficient to provide support
for a spouse, it may be necessary to liquidate assets. ( Dodo v Dodo 1990 (2) SA 77
(W) 93).

[17] Furthermore, a duty to maintain a person depends upon the reasonable
requirements or needs of the person claiming it and the ability of the party from
whom it is claimed to furnish it. (Oberholzer v Oberholzer , 1947 (3) SA 294 (O) at p
297). Maintenance is an expenditure of a recurring nature which is usually paid out
of income. However, the circumstances may be such that the income is inadequate
or non-existent, and the value of the parties' assets may become relevant and
material in deciding questions of maintenance. (Jodaiken v Jodaiken 1978 (1) SA
784 (W) at 789C).

[18] In the present matter, it is common cause that the respondent has been
receiving an income. The respondent contended that he was involved in an accident
and, as such, he was unable to pay his wife maintenance. I accept that the
respondent was under curatorship; however, he was still receiving a monthly stipend
from his previous employer, and they received a reimbursement from the Swiss
accident insurance organisation. Accordi ng to the respondent, this accounted for 80
percent of his salary. These payments came to an end in June 2025. In other words,

percent of his salary. These payments came to an end in June 2025. In other words,
despite the accident, the respondent continued to receive an income.

[19] Notwithstanding, the respondent did not inform his cu rators to pay
maintenance to his wife in compliance with the Rule 43 order of this court. Insofar as

the applicant alleges that the appointed curators managed his estate, I would like to
believe that he would have clearly instructed them which expenses to pay. In my
view, t he respondents could and should have instructed his curators to pay the
interim maintenance to the applicant. As correctly pointed out by the applicant in her
replying affidavit, the respondent’s funds are in Swiss francs, one of the stro ngest
currencies in the world. The respondent could have easily made payments to the
applicant in rands, which is weaker than the Swiss franc.

[20] What I also find very concerning in the respondent’s answering affidavit is that
at no time does the respo ndent provide any proof that he did not have the funds
available to pay the applicant. Furthermore, the respondent pleads poverty; however,
in paragraph 50.3 of the answering affidavit, the respondent states that
R20,295,128.87 of funds is available, held in trust, for which he is one of the income
and capital beneficiaries. The respondent is fully capable of accessing his portion of
these funds to pay maintenance to the applicant as per the court order. Evidently, the
question whether the respondent was an d can furnish maintenance poses no
difficulty for this Court. At all relevant times, the respondent had the means to pay
maintenance to the applicant but failed to do so.

[21] As previously stated, I accept that the respondent was involved in an accident
and that there was a possible reduction in his income compared to before the
accident. However, it is troubling to note that, despite the respondent’s assertions of
a reduced in come, the respondent neglected to meet his maintenance obligations.
The respondent made no effort whatsoever to make a payment of at least a reduced
amount, nor has he taken the necessary steps to vary the Rule 43 order in terms of
Rule 43(6) of the Rules of Court. In my opinion, this failure and nonchalant attitude
constitutes contempt of court.

constitutes contempt of court.

[22] The respondent asserted that as of 1 July 2025, he receives a monthly
disability pension of CHF 7,133.35 from the Disability Pension and Integrity
Compensation, which amounts to 80 percent of his previous salary. This amounts to
approximately R160 617. 01 in South African Rands. Out of this amount, the
respondent spends CHF 3921.09 for his monthly expenses. The respondent is left
with a disposable sum of CHF 3212. 26 from his salary after paying all his monthly

expenses. According to the respondent, he uses this amount to buy food, clothing
and travelling expenses. I am of the view that there is enough balance for the
respondent to pay maintenance in terms of the Rule 43 order.

[23] Moreover, I find it concerning that the respondent allocates a portion of his
resources to travel from Switzerland to Schlierbach, Germany, to take his partner to
work, while neglecting to provide financial support to his wife . It must be stressed
that the respondent is still married to the applicant and owes a duty of support to her.
In stark contrast, there exists no similar obligation towards his partner. Furthermore,
he was ordered by this Court t o pay maintenance pendente lite in terms of Rule 43.
The respondent needs to prioritise his responsibilities and adhere to the principle of
putting first things first.

[24] I am mindful of the argument raised by Ms Janssen , the respondent’s
counsel, that the applicant did not spell out clearly in the founding affidavit how much
the respondent owes her. However, in my view, the respondent has not paid his
maintenance obligations as ordered by the court. The applicant was forced to
liquidate some of the parties' assets by issuing warr ants of execution to cover her
maintenance. To this end, I agree with Mr Hack, the applicant’s counsel, that the
amount of R277,066. 48 that the applicant seeks is far less than the total arrears that
the respondent owes the applicant.

Order

[25] Consequently, having considered the argument s raised and having read all
the documents filed of record, the following order is granted:

25.1 The respondent is ordered to make immediate payment of the sum of
R277 066.48 to the applicant at her nominated bank account.
25.2 That f ailing compliance with paragraph 25.1 above , within 15 court days of
this order, the applicant is hereby granted leave to set the matter down again
on a 10 court days’ notice to the respondent for an order that the respondent

on a 10 court days’ notice to the respondent for an order that the respondent
be found to be in contempt of the order of the court made on 31 August 2022

by Lo ots AJ and that the court impose an appropriate sanction on the
respondent.
25.3 The respondent is ordered to pay the costs of this application on a party and
party scale, including the costs of counsel on scale B.


__________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT


APPEARANCES:

For the Applicant: Adv B. Hack
Instructed by: Lucas Dysel Crouse Inc

For the Respondent: Adv J. Janssen
Instructed by: Herold Gie Attorneys