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 CAPE DIVISION, MAKHANDA)
REPORTABLE
Case no: 2630/2024
96/2025
In the matter between:
A[...] D[...] M[...] Applicant
and
S[...] L[...] M[...] Respondent
In re: the matter between:
S[...] L[...] M[...] Applicant / Defendant
and
A[...] D[...] M[...] Respondent / Plaintiff
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] The parties are embroiled in divorce proceedings and there are three
inextricably linked applications that require determination. Firstly, the court must
adjudicate a contempt of court application. Mrs M[...] (the defendant / the applicant)
initiated contempt proceedings pursuant to an order of this court, per Nobatana AJ,
dated 23 July 2024 (the order). In terms of the order, Mr M[...] (the plaintiff / the
respondent) was directed, inter alia, to pay increased maintenance and has failed to
do so. Secondly, and as a defence to the contempt proceedings, the plaintiff applies
in terms of Uniform Rule 42(1)( a), alternatively the common law, for rescission,
alternatively variation, of the order. Finally, the defendant seeks to vary an order of
court dated 13 February 2025 pertaining to the obligations of the parties in respect of
school fees (the school fees order).
Rescission
[2] It is convenient to consider the rescission application first. The plaintiff
initiated divorce proceedings in the Western Cape Division. On 18 October 2023,
Francis J ordered the plaintiff to pay maintenance, educational costs and legal costs,
following an application in terms of Uniform Rule 43. The defendant subsequently
brought an urgent application in terms of this rule before Nobatana AJ in this court,
alleging a material change in the plaintiff’s financial circumstances and that she was
unable to maintain the minor children on the sum ordered by Francis J. At that stage,
the divorce proceedings were still pending in the Western Cape D ivision and the
plaintiff was resident in the United Arab Emirates. 1 The subsequent order varied the
Uniform Rule 43 order granted by Francis J in certain respects, mainly by increasing
the maintenance payable from R26 000,00 to R55 000,00 from 1 July 202 4.2 It is
1 The divorce action was transferred to this court on 24 March 2025.
2 The order was expressed as follows:
2 The order was expressed as follows:
‘It is ordered that:
apparent from the face of the order that it was granted ‘in terms of the provisions of
Rule 43 … pending the final determination of the divorce proceedings instituted in
the High Court of South Africa, Western Cape Division, Cape Town …’.
Jurisdiction
[3] Did the court have jurisdiction to grant the order? In JS v WF,3 Van der Schyff
J noted that jurisdictional questions concerning children necessitate a sui generis
approach. Depending on the nature of the relief sought, a court would be required to
navigate between applicable provisions contained, inter alia, in the Superior Courts
Act, 2013, the Children’s Act, the Divorce Act, 1979 and applicable international law
principles to determine whether it possessed the necessary jurisdiction to adjudic ate
the matter. To that list may be added reference to rule 43, given that the rule
regulates interim care of any child and interim contact with any child.
[4] Rule 43(1) reads as follows:
‘This rule shall apply whenever a spouse seeks relief from the court in respect of
one or more of the following matters:
(a) Maintenance pendente lite;
In terms of the provisions of rule 43, claiming the following from you, pending the final determination
of the divorce proceedings instituted in the High Court of South Africa, Western Cape Division, Cape
Town, under case number 16454/2022 of the Honourable Court:
1. Directing the Respondent to increase the maintenance amount of R26 000.00 to R55 000.00
from the 1st of July 2024 onwards;
2. Directing that the remaining obligations of the Respondent as set out in paragraph 1.1, 1.2,
1.3, and 1.4 in the Order dated the 11th of October 2023 in case number 10675/2023 remain
the same;
3. Directing the Respondent to effect payment of R100 000.00 as and for the loan repayment
within 7 (seven) days of this order being granted, together with interest at 10% from 21 st
March 2019 to date of final payment;
4. Directing the Respondent to pay R132 806.00 in respect of arrear educational, medical, and
4. Directing the Respondent to pay R132 806.00 in respect of arrear educational, medical, and
extra-mural accounts as contemplated by clause 1.3 and 1.4 of the order in case number
10675/2023, within 7 (seven) days of this order b eing granted together with interest at the
legal rate from date of the relevant debt to date of first payment;
5. Directing the Respondent to make available, in Bushman’s Mouth, Province of the Eastern
Cape, the furniture set out in annexure “SM10” to the Fou nding Affidavit within 30 (thirty) days
of this order being granted;
6. Directing the Respondent to pay the sum of R250 000.00 as an interim contribution to the
Applicant’s costs by depositing same into the trust account of the Applicant’s attorneys of
record within seven (7) days of the order being granted;
7. Costs to be costs in the divorce proceedings.’
3 JS v WF [2020] ZAGPPHC 350 para 28.
(b) A contribution towards the costs of a matrimonial action, pending or about
to be instituted;
(c) Interim care of any chid;
(d) Interim contact with any child.’
[5] Rule 43 is a procedure, calculated to be expeditious and inexpensive,
whereby defined issues may be resolved on an interim basis pending the final
adjudication of the divorce. The rule applies to matrimonial proceedings which are
pending before ‘the court’ . As the court noted in SW v SW ,4 (SW) considering both
the Uniform Rules and the Superior Courts Act, 2013, 5 ‘the court’ before which the
procedure may be invoked is (ordinarily) only that court before which the main lis in
the divorce action is pending.6
[6] SW considered and relied upon the decision of this court in Green v Green 7
(Green).8 In that matter, Jones J expressed the position as follows:
‘It would, I think, be going too far to lay down that under no circumstances will
a Court of one Division or country entertain a Rule 43 application in respect of
a divorce action pending in another Division or country. Reference has
already been made in Venter’s case supra to the possibility of a Court making
an interim custody award in these circumstance s where this is urgently
required in the best interests of the child. In appropriate circumstances the
reasoning in Massey’s case may justify a Court in exercising jurisdiction in
preliminary matters though the main action is pending elsewhere. But in the
ordinary course authority and common sense dictate that a claim which is
pendente lite should be tried in the Court in which the lis itself is to be tried.’
[7] The judgment in Green preceded the enactment of the Children’s Act, 2005. 9
The court in Green accepted that there may be circumstances which would justify a
4 SW v SW and Another 2015 (6) SA 300 (ECP) (SW) para 12.
5 Superior Courts Act 10 of 2013.
6 SW above n4 para 13.
7 Green v Green 1987 (3) SA 131 (SE).
6 SW above n4 para 13.
7 Green v Green 1987 (3) SA 131 (SE).
8 See DE van Loggerenberg Pollak: The South African Law of Jurisdiction (2025) (RS 2, 2020) ch 12–
296 and further.
court exercising its inherent jurisdiction to protect the best interests of a minor child
in circumstances where that was urgently required during matrimonial proceedings.
As a result, the applicant in SW argued that the court had the jurisdiction to entertain
a rule 43 application, notwithstanding that the divorce action was pending before a
different court. The court in SW rejected that contention:10
‘Although the Green judgment refers to the possibility of a court entertaining a
‘Rule 43 application’, a reading of the judgment, together with the authorities
referred to in that judgment, suggests that the jurisdiction referred to, namely
to intervene in the interests of the minor child, is not in fact the exercise of
jurisdiction in terms of rule 43 … The jurisdiction of the court to make orders
pendente lite arises in the first instance from the fact that the litigation is
pending before that court. Where, however, the cour t otherwise has
jurisdiction it may be able to exercise its general or inherent jurisdiction in
relation to proceedings pending before another court. When it does so, it does
not, in matrimonial matters, do so on the basis of the provisions of rule 43 …
[which] regulates the procedure in matrimonial matters by which the court
exercises its jurisdiction to make appropriate orders pendente lite in relation to
matters pending before it. The jurisdiction referred to in Green is not
jurisdiction which the court exercises by virtue of the divorce action pending. It
is an aspect of its inherent jurisdiction to protect the interests of minor children
… to give effect to the paramountcy of the best interests of the minor child …’
[8] The court then summarised the position:11
‘Two things flow from this. The first is that a litigant who is party to a divorce
action pending before another court cannot invoke the jurisdiction of this court
to secure the relief contemplated in rule 43 by the exercise of the procedure
to secure the relief contemplated in rule 43 by the exercise of the procedure
provided in rule 43. In other words, a rule 43 application cannot be brought in
this court if there is a divorce action pending in another court … What was left
open in [earlier] cases was not the possibility of utilising the rule 43 procedure.
9 Act 38 of 2005.
10 SW above n4 paras 17, 19, 20 (emphasis as contained in SW).
11 SW above n4 para 20 (emphasis added).
Rather it was that a cour t could exercise its inherent common -law jurisdiction
to act in appropriate circumstances in the interests of minor children to make
an order, notwithstanding that there are proceedings pending before another
court. The second is that in order to invoke th e common -law inherent
jurisdiction the applicant must establish (a) that considerations of urgency
justify the intervention; and (b) that the intervention is necessary to protect the
best interests of the minor child.’
[9] In Macphail v Macphail and Another , Lowe J considered an urgent rule 43
application involving the present parties. 12 In those proceedings, the defendant
sought a rule nisi to set aside a directive of a parental coordinator regarding the
removal of the parties’ children to Cape Town for a hol iday period. The court
accepted that it had jurisdiction to determine the matter based on the provisions of
the Children’s Act, 2005 13 and the judgment of the SCA in FS v JJ ,14 which
concerned the best interests of a child and the rights of unmarried fathe rs in the
context of the Children’s Act. The defendant relies on this judgment in opposing the
application for rescission based on lack of jurisdiction.
[10] Section 29 of the Children’s Act specifically permits selected kinds of
applications to be brought be fore courts within whose area of jurisdiction the child
concerned is ordinarily resident. 15 It does not permit a court to accept jurisdiction in
all matters in which children are involved based purely on their ordinary residence
within that court’s jurisdi ction. FS v JJ confirms as much and, importantly, the SCA
cautioned against a practice of forum-shopping:16
‘…I would caution against a practice of forum -shopping, even in cases
concerning disputes over parenting rights and responsibilities. High Courts
12 M[...] v M[...] and Another (unreported Eastern Cape Division, Makhanda, case no. 1188/2024,
delivered 4 April 2024) (M[...]) paras 62–70.
delivered 4 April 2024) (M[...]) paras 62–70.
13 Act 38 of 2005 (the Children’s Act).
14 FS v JJ and Another 2011 (3) SA 126 (SCA) (FS).
15 The only applications listed are those permissible in terms of sections 22(4)( b) (date of effect of a
parental responsibilities and rights agreement), 23 (assignment of contact and care to interested
person by order of court), 24 (assignment of guardianshi p by order of court), 26(1)( b) (order
confirming paternity) or 28 (termination, extension, suspension or restriction of parental
responsibilities and rights) of the Children’s Act.
16 FS above n14 para 38.
should not in general be faced with litigation requiring them in effect to set
aside an order made in another jurisdiction. And as a rule, since one is
entitled to assume that any order has been made in the best interests of a
child, should those interests change over time, the court that made the initial
order should be approached for a variation. Much of the difficulty may now be
resolved with the enactment of s 29 of the Children’s Act, which came into
operation only in 2010. It provides that an applicati on under ss 23 and 24 (for
parental responsibilities and rights by an interested part) may be brought in a
High Court within whose area of jurisdiction the child is ordinarily resident.
Where that does not assist, however, reliance on formalism and a resor t to
inflexible rules is to be discouraged, a matter to which I shall revert when
dealing with the second judgment in the Northern Cape High Court.’
[11] The SCA’s remarks pertaining to ‘formalism’ and ‘inflexibility’ were occasioned
by a biased approach on the part of the presiding judge in the court a quo in that
matter. This included an invitation to one of the parties to bring an application for an
order that the other was in contempt of court, so that the court was criticised as
being ‘more concerned about legal niceties than the child’s best interests’.
[12] Considering these authorities, and as a starting point, it appears to be
appropriate to draw a dis tinction between rule 43 applications pertaining to matters
regulated by s 29 of the Children’s Act and other rule 43 applications. Care and
contact of children are matters regulated by s 29 of the Children’s Act and rule
43(1)(c) and ( d). While couched un der rule 43, the application before Lowe J
triggered the provisions of s 29, read with s 23, of the Children’s Act so that the court
heard the matter based on the children being ordinarily resident within its jurisdiction.
The learned judge emphasised that the relief sought was not a variation of the
The learned judge emphasised that the relief sought was not a variation of the
Western Cape Division order but rather a matter pertaining to care and contact with
the three minor children. 17 In effect, the court exercised jurisdiction based on ss 23
and 29 of the Children’s Act and held t hat it would have been formalistic to refuse to
17 The court added that, to the extent necessary on the facts, limited variation of the Western Cape
Division order was justified: M[...] above n12.
hear the matter because the application had been framed purely in terms of rule
43.18 I respectfully align myself with that approach.
[13] Unlike the situation confronted by Lowe J, however, the application befor e
Nobatana AJ was an ordinary rule 43 application for maintenance, rather than for
interim care or contact with the children. Although the defendant linked the claim for
increased maintenance to the needs of the children, and unlike the case before
Lowe J, the application did not trigger the application of s 29 of the Children’s Act.
[14] This is not to suggest that it will only be in the instances enumerated in s 29
that a court will exercise jurisdiction based on where the children are ‘ordinarily
resident’. As the SCA alluded to in FS v JJ, while s 29 is expected to resolve much of
the difficulty, the door remains open for a court to exercise its common -law, inherent
powers of jurisdiction in appropriate circumstances in the best interests of a child.
This r emains the exception where the divorce action is being adjudicated by a
different court. 19 On the authority of Green, deviation from the ordinary position
required a proper case to be made out that considerations of urgency justified the
intervention and t hat the intervention was necessary to protect the best interests of
the minor children. Leaving aside the fact that the application before Nobatana AJ
was framed in terms of rule 43, that case was not made out on the papers. 20 Read
with SW, such jurisdicti on is not exercised by virtue of the divorce action pending
before the court but rather an aspect of the court’s inherent jurisdiction to protect the
interests of minor children. Such jurisdiction cannot be invoked automatically in any
claim for maintenance simply because a child would likely obtain some benefit from
an increase in the maintenance amount. To permit this would unjustifiably
circumvent and negate the established position, as expressed in Green, when the
circumvent and negate the established position, as expressed in Green, when the
main action is pending before a different court and where interim care or contact with
a child is not in issue. By the doctrine of precedent, this court is not at liberty to
18 Ibid.
19 AC v RC [2015] ZAECPEHC 1 para 19.
20 There were contradictory allegations that ‘the sum previously ordered is insufficient … I was never
able to maintain the children on the amount’ and ‘I am no longer able to maintain the minor children,
and myself, on the sum of R26 000.00’ and the bulk of the application focused on alleged ‘short
payment’, repayment of a debt, furniture and a contribution to costs. The answering affidavit to the
rescission application reflects that the defendant was ‘struggling on R26 000,00 per month for myself
and our three teenage sons and hence the request for an increase…’.
ignore the judgment in Green unless that decision is clearly wrong. I am unable to
draw that conclusion.
[15] The effect of the preceding analysis is that the court lacked jurisdiction when it
made the order. It may be added that, on the defendant’s own papers before
Nobatana AJ, the plaintiff was permanently resident in Dubai. A domicile of choice
shall be acquir ed by a person when they are lawfully present at a particular place
and have the intention to settle there for an indefinite period. 21 On the probabilities,
including due consideration of the plaintiff’s submissions to the court dated 8 July
2024 (the plai ntiff’s letter), the plaintiff’s domicile at the material time was Dubai. As
such, the court could not exercise power in terms of s 8(2) of the Divorce Act, 1979 22
(the Act) absent the plaintiff’s consent. 23 Not only did the plaintiff’s letter contain no
such consent, the plaintiff also alluded to an application for additional maintenance
struck from the roll in the maintenance court in Alexandria because of the Francis J
order and the pending divorce proceedings in the Western Cape Division.
Considering the wording of s 8(2), any argument that the court had jurisdiction based
on s 2 of the Act, read with the definition of ‘divorce action’, fails based on the maxim
that general rules do not derogate from special ones.24
Nullity?
[16] The fact that the order wa s granted in circumstances where the court lacked
jurisdiction is not by itself dispositive of the present litigation. The validity of court
orders is derived from the Constitution, 1996, itself. Section 165(5) of the
Constitution states that ‘an order or decision issued by a court binds all persons to
21 S 1 of the Domicile Act, 1992 (Act 3 of 1992).
22 Act 70 of 1979.
23 S 8(2) provides: ‘A court other than the court which made an order referred to in subsection (1) may
rescind, vary or suspend such order if the parties are domiciled in the area of jurisdiction of such first -
mentioned court or the applicant is domiciled in the area of jurisdiction of such first -mentioned court
and the respondent consents to the jurisdiction of that court.’
24 See GE D evenish Devenish on Interpretation (2nd Ed) (2024) at 531. S 2(1): ‘A court shall have
jurisdiction in a divorce action if the parties are or either of the parties is –
(a) domiciled in the area of jurisdiction of the court on the date on which the action is i nstituted; or
(b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has
been ordinarily resident in the Republic for a period of not less than one year immediately
prior to that date.’
whom and organs of state to which it applies’. 25 Following Department of Transport
and Others v Tasima (Pty) Ltd 26 (Tasima), and Ekurhuleni City v Rohlandt Holdings
CC and Others 27 (Rohlandt), a court order can no longer be ignored or rescinded
merely upon proof that it would have been regarded as a common -law nullity. 28 It
suffices to establish that there was a court and that the court issued an order. Once
that is established, any order so issued is v alid and binding until set aside, even if it
is grossly wrong. Judicial orders wrongly issued exist in fact, may have legal
consequences and are not to be treated as nullities. 29 Court orders must be
appropriately challenged to be set aside and it is the c ourt that, once invalidity is
proven, can overturn the decision. Parties cannot usurp the court’s role in making
legal determinations.30
[17] In Van Dyk and Another v Rhodes ,31 a full court confirmed that the ordinary
principles of rescission or appeal will a lways apply to court orders wrongly granted,
no matter what error led to their issuance. Accepting that authority puts paid to the
argument that the plaintiff incurred unnecessary costs in launching the rescission
application when the basis for this was al ready canvassed as a defence to the
contempt proceedings. In the circumstances, he was obliged to institute appropriate
proceedings to set aside an order wrongly issued, separate from defending the
contempt application.
Delay
[18] I am satisfied that the appl ication for rescission has been brought within a
reasonable period, despite the lapse of a year since the order was served on the
plaintiff. In coming to this decision, I have considered that the plaintiff was
unrepresented for part of this time and that h is representatives raised the issue of
25 Also see s 2, read with s 172(2)( a), as discussed in Department of Transport and Others v Tasima
(Pty) Ltd 2017 (2) SA 622 (CC); 2017 (1) BCLR 1; [2016] ZACC 39 (Tasima).
26 Tasima above n25.
26 Tasima above n25.
27 Ekurhuleni City v Rohlandt Holdings CC and Others 2025 (1) SA 1 (CC); [2024] ZACC 10.
28 Van Dyk and Another v Rhodes 2025 (4) SA 313 (GJ) ( Rhodes) para 1. Cf The Master of the High
Court (North Gauteng High Court, Pretoria) v Motala NO and Others 2012 (3) SA 325 (SCA); [2011]
ZASCA 238 paras 14–15, and the cases cited there.
29 Tasima above n25 para 182.
30 Tasima above n25 paras 191, 192.
31 Rhodes above n28 para 1.
the court’s jurisdiction in granting the order by the end of October 2024. This basis
for rescission was also raised during January 2025 in opposition to the contempt
application. There were also bona fide efforts to settle the matter for some time
thereafter. Considering these factors as a part-explanation for the delay, the absence
of any real prejudice to the defendant and the prospects of success, the delay in
applying for rescission is condoned.
The Divorce Act, 1979
[19] In addition to relying on rule 42 and the common law, counsel for the plaintiff
relied on s 8 of the Act, as interpreted in Sharma v Harry ,32 in heads of argument
and during argument, as a basis for rescission. To the extent that this amounted to a
new point, it is open to this court to consider the argument given that each of the
well-established pre-conditions have been met.33 It is a point of law in the true sense,
foreshadowed in the affidavits or supported by the established facts in the record.
There is also no prejudice to the defendant given that the parties have fully
addressed the question of rescission and variation of the order and considering that
the argument was raised squarely in the plaintiff’s heads of argument.
[20] Rule 43 regulates the procedure to be followed whenever a spouse seeks
interim relief from the court in respect of various matters, including maintenance
pendente lite . The substantive basis for maintenance in the context of a pending
divorce is the Act, read with the common law and the Children’s Act, 2005. 34 Section
8(1) of the Act provides for rescission of a maintenance order made in terms of this
act ‘at any time … if the court finds that there is sufficient reason therefor…’. 35 A rule
43 maintenance o rder is a maintenance order granted in terms of the Act and is
accordingly susceptible to rescission in terms of s 8(1). 36 In the present
circumstances, the finding that the order was granted absent the necessary
32 Sharma v Harry [2019] 3 All SA 645 (GJ) (Sharma).
32 Sharma v Harry [2019] 3 All SA 645 (GJ) (Sharma).
33 Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) para 109.
34 Act 38 of 2005. See, for example, JG v CG 2012 (3) SA 103 (GSJ) para 28. Also see Cilliers et al
Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa (5th Ed) (2009) at 1535.
35 ‘Divorce action’ is defined in s 1(1) of the Act to include ‘an applic ation pendente lite for an interdict
or for the interim custody of, or access to, a minor child of the marriage concerned or for the payment
of maintenance…’.
36 Sharma above n32 para 25.
jurisdiction constitutes sufficient reason to grant the rescission sought on that basis,
and without the need to establish the requirements in terms of s 42(1)( a) or the
common law.
The common law
[21] If this approach is erroneous, it is appropriate to consider whether rescission
is warranted based on either the rules or common law. It is convenient to consider
the common law position first. To succeed, an applicant is required to prove that
there is ‘sufficient cause’ or ‘good cause’ to warrant rescission.37 This is assessed as
follows:38
‘First, the applicant must furnish a reasonable and satisfactory explanation for
its default. Second, it must show that on the merits it has a bona fide defence
which prima facie carries some prospect of success. Proof of these
requirements is taken as showing that there is sufficient cause for an order to
be rescinded.’
[22] Under the common law, the courts of Holland enjoyed a relatively wide
discretion, and adopted a more lenient attitude, in respect of ‘applications for
purgation of procedural defaul ts and the rescission of default judgments’. 39 The
exercise of the court’s discretionary power has, broadly speaking, been influenced
by considerations of justice and fairness, having regard to all the facts and
circumstances of a particular case.
[23] In the present instance, the plaintiff was employed and resident in Dubai when
the second rule 43 application was launched. The application was e-mailed to him on
26 June 2024, the defendant noting that his attorneys had withdrawn and that he
was no longer legal ly represented. In response, he addressed a letter to the
37 De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) (De Wet) at 1033C and 1042G.
38 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector including Organs of State (Council for the Advancement of
the South African Constitution and Democracy in Action Amicus Curiae) 2021 JDR 2069 (CC) (Zuma)
para 71.
39 De Wet above n37 at 1040D–1041D.
presiding judge on 8 July 2024. That correspondence informed the court, inter alia,
that ‘…I do not have resources or legal skills to defend this action at present and I
respectfully request that My Lord stand the matter over until next year when I hope to
have an improved financial position … I have taken up a new post, but I am still in
the training and probationary period … I have yet to earn the leave entitlement which
would allow me to attend the court in person…’.
[24] This constitutes a reasonable and satisfactory explanation for default in my
view, rather than action in wilful disregard or indifference of court rules and
processes. This was not an instance where the plaintiff deliberately and fre ely failed
or omitted to take steps to avoid the default, so that he must be saddled with the
consequences. Unrepresented as he was, he took personal steps to convey his
position to the court, including the reasons for his inability to attend in person. In
addition, while it is apparent that the plaintiff’s circumstances changed favourably
once he was employed by Emirates, also in respect of his entitlement to benefits, so
that an increase in the maintenance amount ordered by Francis J may well be
justified, I am satisfied on the papers that the application was made bona fide and
that the plaintiff has shown a bona fide defence to the defendant’s claims which
prima facie have some prospect of success based on the financial information
presented.40 On this basis too, it is appropriate to rescind the order in the exercise of
the court’s discretion. I consider it fair and just to do so having regard to all the facts
and circumstances of the matter. It is therefore unnecessary to consider whether a
case has also been made out for rescission in terms of rule 42.
Contempt
[25] A rescinded default judgment is a nullity and neither advantage nor
disadvantage can flow therefrom. The plaintiff is entitled to proceed on the basis that
disadvantage can flow therefrom. The plaintiff is entitled to proceed on the basis that
the status quo ante the judgment be restored. Once a judgment has been rescinded,
the consequences thereof fall to be set aside.41
40 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) para 11.
41 Naidoo v Somai 2011 (1) SA 219 (KZD) at 221G –H; Securiforce CC v Ruiters 2012 (4) SA 252
(NCK) at 261D–E.
[26] In the circumstances, I am in any event satisfied that the plaintiff was not in
wilful contempt of the order or that his non -compliance with its provisions was in bad
faith. Objectively assessed, the plaintiff’s actions were not intended to obstruct
justice deliberately or intentionally or to act in with contumacious disrespect for
judicial authority. At the very least the plaintiff has discharged the evidential burden
and there is reasonable doubt whether he acted wilfully and in bad faith. The
application for contempt is accordingly dismissed.
Variation of the school fees order
[27] On 13 February 2025, this court issued the school fees order, by agreement
between the parties, pursuant to an urgent application launched by the defendant.
The material parts of the school fees order are quoted below:
‘4. The payment of the account for J[...] to attend St Andrew’s College during
the 2025 academic year will be arranged by the applicant [the defendant],
without recourse to the respondent [the plaintiff].
5. The respondent will continue to pay directly to the applicant the equivalent
as was required to be paid in 2024, in regard to J[...]’ educational costs …
pursuant to the provisions of the court order of 11 October 2023 (in the
Western Cape High Court …).
6. To the extent that there is a shortfall in regard to the amounts referred to in
paragraph 5, above, emanating from J[...]’ schooling at St Andrew’s College,
payment of such shortfall shall be arranged by the applicant without recourse
to the respondent.
7. The respondent will not be liable to pay any amount directly to St Andrew’s
College in regard to J[...]’ schooling at St Andrew’s College during the 2025
academic year, unless agreed or ordered otherwise by this Honourable Court
…
10. The respondent is to appr oach his employer in regard to the possibility of
the school fees for J[...] and M[...] to attend St Andrew’s College being
covered (and, if so, the extent to which they would be covered), within thirty
covered (and, if so, the extent to which they would be covered), within thirty
(30) working days, and to provide certainty on this i ssue to the applicant prior
to the main divorce action being finalised (whether by way of settlement or
otherwise).
11. In the event that the respondent’s employer undertakes to pay any portion
(or all) of J[...] and M[...]’s fees for St Andrew’s College d uring the 2025
academic year, then the applicant’s liability in regard to such fees shall reduce
accordingly …
15. Paragraphs 1 to 13 of this order shall (subject to any amendment by this
court) remain in effect until the main divorce action is finalised, or until the end
of the 2025 academic year, whichever is the later, alternatively as may be
ordered by this court in due course.’
[28] The defendant seeks to vary paragraph 15 of the school fees order by making
the plaintiff liable to pay all amounts due to St Andrew’s College for 2025 within
seven days, coupled with an order directing the plaintiff to sign all admission
documents with the school in respect of J[...], and costs. The defendant seeks these
amendments to compel reimbursement of school fees paid by the children’s
maternal grandfather, and to ensure formal enrolment of the children at St Andrew’s
College through signature of the admission forms. The basis for this is that the
plaintiff, despite enjoying the employment benefit of private schooling for his children,
has not taken any steps to activate the benefit. The application was launched
urgently on the basis that the defendant’s father’s retirement investment was being
depleted and that he could not afford his grandchildren’s private schooling whe n this
was the plaintiff’s obligation. It was further alleged that J[...]’ tenure at the school was
under threat.
[29] The plaintiff argued, inter alia, that the school fees order had been agreed to
on the basis that the defendant had managed to secure fundin g for J[...] to attend St
Andrew’s College for the entire 2025 academic year. Paragraph 4 was framed
accordingly. The plaintiff had submitted the relevant information to his employer
accordingly. The plaintiff had submitted the relevant information to his employer
without receipt of a response at the time the application was argued.
[30] I accept that private school fees constitute significant financial expenditure.
This explains why the plaintiff was seemingly determined to avoid the responsibility
of bearing such costs during 2025 while the divorce remained unfinalized. There is
simply no proper explanation on the papers as to why and how the defendant’s
financial position, pertaining to the St Andrew’s schooling, has been altered since the
time the school fees order was agreed to between the parties. The allegation that
J[...]’ tenure at the school is now at risk, a few months after the parties agreed to
specific school funding arrangements for 2025, is bald and unsubstantiated. It does
not help matters that no confirmatory affidavit was filed by the defendant’s father in
respect of his ch anged circumstances, bearing in mind that the anticipated costs of
private schooling would have been apparent prior to the school fees order being
agreed. That order was carefully crafted to operate only until the end of the 2025
academic year, if the divorce was not finalised by that time. The defendant expressly
agreed to make the necessary arrangements without recourse to the plaintiff, who
remained obliged to pay what had been paid during 2024 in respect of J[...]’
schooling. Interpreting the school fee s order, it is apparent that the plaintiff was only
willing to obtain reimbursement from his employer, without accepting personal
liability for the 2025 school year. On the papers, the defendant has failed to make
out a proper case for varying the school f ees order on an urgent basis. In arriving at
that conclusion, I accepted that the plaintiff had acted in terms of the school fees
order in raising the matter with his employer, albeit that no response had been
received at the time the application was argue d. Considering the affidavits and
supporting documentation presented, the defendant’s belief that the plaintiff has
refused to comply with the school fees order, or simply refuses to take up the
employment benefit of private schooling, is erroneous.
Costs
[31] This court has a wide discretion in respect of the awarding of costs,
notwithstanding that both parties sought costs orders against the other. In respect of
notwithstanding that both parties sought costs orders against the other. In respect of
the application for rescission, I am mindful that the plaintiff sought an indulgence,42
and that the defendant opposed the jurisdictional basis for rescission, at least in part,
by relying on the order of Lowe J in the previous rule 43 application. 43 Given the
events that resulted in the order by default and the basis for the a pplication for
42 Phillips t/a Southern Cross Optical v SA Vision Care (Pty) Ltd 2000 (2) SA 1007 (C) at 1015.
43 See Williams v Shackleton Credit Management 2024 (3) SA 234 (WCC) para 67.
rescission, including the authority in point, the opposition to the application was
unreasonable in my view, so that it is appropriate for each party to pay their own
costs.
[32] In arriving at that decision, I am mindful of the nature of the p roceedings and
the acrimonious, sustained litigation that has enveloped the parties. To quote TN v
NN:44
‘Costs fall to be decided judicially in the exercise by the court of a broad
discretion in the strict sense of the concept. The general rule that costs should
follow the result does not always work satisfactorily in matrimonial
proceedings, and particularly when the interests of the parties’ children fall to
be addressed as part of the issues for determination … I think it would also be
appropriate, in what were primarily matrimonial and family law proceedings, to
take into account the apparent inequality of the financial means of the parties.
The first defendant is a well -established senior attorney and self -described
entrepreneur, whereas the plaintiff is a middle-ranking civil servant dependent
upon a comparatively modest salary. She has incurred substantial debt in
respect of legal expenses leading up to the trial. To burden her with the
liability to pay the first defendant’s costs of suit would work unduly harshly in
the circumstances and, having regard to her role as primary caregiver, would
also probably redound negatively against the material best interests of the
parties’ minor child.’
[33] Such considerations appear to find application in respect of both the contempt
application and the application to vary the school fees order. The contempt
application was defeated due to the rescission of the underlying judgment and the
variation application failed based on this court’s interpretation of the school fees
order and reading of the affidavits and supporting documentation. Neither application
was brought in bad faith and I consider it inappropriate to saddle the defendant with
was brought in bad faith and I consider it inappropriate to saddle the defendant with
the costs in the context of the overall litigation between the parties, their r espective
financial positions and the role of the defendant as the primary caregiver of the minor
44 TN v NN and Others 2018 (4) SA 316 (WCC) para 31.
children. As a result, each party is ordered to bear their own costs in respect of all
these proceedings, including the costs reserved on 12 June 2025.
[34] It go es without saying that a future court considering litigation between the
same parties may adopt a less benign approach. More importantly, it is hoped, in the
best interests of the children, that the parties may be guided by those who advise
them towards an expeditious yet fair finalisation of their divorce.
Order
[35] The following order is issued:
1. The respondent’s late filing of an application for rescission is condoned.
2. The order granted by Nobatana AJ on 23 July 2024 under case number
2630/2024 is rescinded.
3. The contempt application under case number 2630/2024 is dismissed.
4. The application to vary the order dated 13 February 2025 under case number
96/2025 is dismissed.
5. Each party to pay their own costs.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 1 August 2025
Delivered: 21 August 2025
Appearances:
For the Applicant: Adv TS Miller
Instructed by: Wheeldon Rushmere & Cole
Makhanda
For the Respondent: Adv SA Sephton
Instructed by: Nolte Smit Inc
Makhanda