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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-024319
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
F. MARCANDONATOS
04 September 2025
In the matter between:
M.M Applicant
and
M.F Respondent
This judgment was handed down electronically by circulation to the parties'
and/or the parties' representatives by email and by being uploaded to Case
Lines. The date and time for hand -down is deemed to be 10h00 on 04
SEPTEMBER 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MARCANDONATOS AJ:
INTRODUCTION
[1] The Introductory remarks by the Constitutional Court in Pheko & Others V
Ekurhuleni Metropolitan Municipality (II)1 sets the stage for these
proceedings as follows:-
“[1] The Rule of Law, a foundational value of the Constitution, requires
that the dignity and authority of the courts be upheld. This is crucial, as
the capacity of the courts to carry out their functions depends upon it.
As the Constitution commands, orders and decisions issued by a court
bind all persons to whom and organs of state to which they apply, and
no person or organ of state may interfere, in any manner , with the
functioning of the courts. It follows from this that disobedience towards
court orders or decisions risks rendering our courts impotent and
judicial authority a mere mockery. The effectiveness of court orders or
decisions is substantially determined by the assurance that they will be
enforced”.
[2] This is an opposed Application in terms of which Applicant seeks an Order
declaring Respondent to be in contempt of Court for the failure to adhere to an
Order granted in accordance with Uniform Rule 43 by Justice S enyatsi on 22
January 2024 (“the Order”).2
FACTUAL BACKGROUND
[3] In terms of the Order, Respondent is ordered to pay monthly maintenance ,
pendente lite, in respect of Applicant and the parties’ three and a half year old
son (“the child”), as follows3:-
1 [2015] ZACC 10
2 FA, annexure “FA2” – Court Order in accordance with Rule 43 proceedings dated 22 January 2024 ,
CL 13-26 to CL 13-29
3 Supra footnote 2
3.1. payment of R45 000.00 per month in respect of Applicant and the
child;
3.2. payment of all costs relating to the child’s education, which includes
tuition fees, registration fees, special levies and related educational
expenses, extra-mural activities, sporting activities in and out of school,
together with the required equipment and outfitting and school
functions, tours and outings;
3.3. payment of the costs associated with the retention of Applicant and the
child on Respondent’s medical aid scheme, payment of the premiums
thereof and payment of all medical costs in respect of Applicant and
the child not covered by the medical aid scheme;
3.4. payment of all costs associated with Applicant’s motor vehicle,
including insurance, licensing, repairs, tyres and maintenance;
3.5. payment of a contribution towards Applicant’s legal costs in the amount
of R50 000.00.
[4] According to Applicant, as at the date of her deposing to the Founding
Affidavit, being 02 March 2025 , Respondent was in arrears in respect of the
monthly cash contributions, the child’s school fees, the child’s attendance at
Madressa ( Islamic studies ) and the child’s extra-mural activities, additional
educational costs , medical aid premiums, additional medication not covered
by the medical aid, Vitality, vehicle insurance and the contribution to legal
fees, in the amount of R 722 454.47.4 Respondent’s total contribution of
R46 000.00 between the period February 2024 to February 2025, has been
allocated and included in the calculation of the arrear maintenance as at 02
March 2025.5
ISSUE IN DISPUTE
4 FA: par 15 CL 13–9, annexure “RA5” – schedule of maintenance arrears, CL 13-497 to 13-498
5 FA: par 15 CL 13-9, annexure “RA5” – schedule of maintenance arrears, Cl 13-497 to 13-498
[5] The identified issue in dispute is whether Respondent is in wilful and mala fide
contempt of the Order.
ISSUE FOR DETERMINATION
[6] The issue for determination is whether Respondent’s non-compliance with the
Order was wilful and mala fide.
PRINCIPLE SUBMISSIONS BY APPLICANT AND RESPONDENT
[7] Applicant contends that Respondent has failed to comply and make full
payments in respect of his monthly maintenance and that he is in arrears
therewith as referred to in paragraph 4 above.
[8] Applicant therefore seeks an Order in the following terms:-6
8.1. Respondent is declared to be in contempt of the Order;
8.2. Respondent be committed to prison for contempt of the Order for a
period of 30 (thirty) days;
8.3. alternatively to the above, the operation of the committal is suspended
on condition that Respondent complies with the Order with immediate
effect alternatively on such conditions as this Court deems appropriate;
8.4. the Maintenance Officer of the Johannesburg Maintenance Court,
alternatively the Registrar of the above Honourable Court, is directed to
furnish Respondent’s personal particulars to the Credit Bureau, namely
Experion, Trans Union, ITC, VCCB ( Vericred Credit Bureau ), XDS
(Xpert Decision Systems ) and Compuscan , for the purpose of
recording Respondent’s contempt of the offence of not making payment
6 NOM: CL 13-2 to 13-3
of the Order as provided for in Section 31(4) of the Maintenance Act,
99 of 1998;
8.5. Respondent to pay the costs of the Application on the attorney and
client scale, inclusive of the costs of Counsel.
[9] Respondent opposes the Application by stating:-
9.1. he is unable to afford payment in terms of the Order;7
9.2. he is unable to comply fully with the Order , resulting in there being
arrears in respect thereof;8
9.3. he instituted Appeal proceedings against the Order on 13 February
2024;9
9.4. he instituted variation proceedings in the Maintenance Court on or
about 13 November 2024;10
9.5. he has not made payment of the amounts directed in the Order, as a
result of his inability to do so.11
LEGAL PRINCIPLES
[10] The matter of Fakie N.O. v CC11 Systems (Pty) Limited 12 crystalises the
trite requirements for contempt as follows:-
10.1. the existence of a Court Order;
10.2. service or notice thereof on the alleged contemnor;
7 AA: par 84, CL 13-218
8 AA: par 93, CL 13-219
9 AA: paras 17 and 19, CL 13-206, annexure AA2, CL 13-309 to CL 13-315
10 AA: par 62, CL 13-214, annexure AA25, CL 13-339 to CL 13-357
11 AA: par 95, CL 13-220
12 [2006] ZASCA 52; [2006 (4) SA 326 (SCA)] at par 42
10.3. non-compliance with the terms of Court Order by the alleged
contemnor; and
10.4. wilfulness and mala fides on the part of the contemnor.
[11] The law on “ Civil” contempt of Court is well established. In the seminal
Judgment of Pheko & Others V Ekurhuleni Metropolitan Municipality ( II)13
the Constitutional Court in a un animous Judgment explains what is meant by
civil contempt as follows:
“[30] The term civil contempt is a form of contempt outside of the court,
and is used to refer to contempt by disobeying a court order . Civil
contempt is a crime, and if all of the elements of criminal contempt are
satisfied, civil contempt can be prosecuted in criminal proceedings,
which characteristically lead to committal. Committal for civil contempt
can, however, also be ordered in civil proceedings for punitive or
coercive reasons. Civil contempt proceedings are typically brought by a
disgruntled litigant aiming to compel another litigant to comply with the
previous order granted in its favour. However, under the discretion of
the presiding officer, when contempt occurs a court may initiate
contempt proceedings mero motu.”
[12] Bannatyne v Bannatyne 14 deals with the competence of a Court to enforce
money judgments by way of contempt proceedings:-
“[18] Although money judgments cannot ordinarily be enforced by
contempt proceedings, it is well established that maintenance
orders are in a special category in which such relief is
competent.”
13 Supra footnote 1
14 (CCT 18/02) [2002] ZACC 31, par 18
[13] In Matjhabeng Local Municipality v Eskom Holdings Limited & Others ,
Mkhonto and Others v Compensation Solutions (Pty) Limited 15 the
Constitutional Court summarised Fakie and Pheko and stated as follows:-
“Summing up, on a reading of Fakie, Pheko II, and Burchell, I am of the
view that the standard of proof must be applied in accordance with the
purpose sought to be achieved, differently put, the consequences of
the various remedies. As I understand it, the maintenance of a
distinction does have a practical significance: the civil contempt
remedies of committal or a fine have material consequences on an
individual’s freedom and security of the person. However, it is
necessary in some instances because disregard of a court order not
only deprives the other party of the benefit of the order but also impairs
the effective administration of justice. There, the criminal standard of
proof – beyond reasonable doubt – applies always. A fitting example
of this is Fakie. On the other hand, there are civil contempt remedies −
for example, declaratory relief, mandamus, or a structural interdict −
that do not have the consequence of depriving an individual of their
right to freedom and security of the person. A fitting example of this is
Burchell. Here, and I stress, the civil standard of proof – a balance of
probabilities – applies.”
[14] Accordingly, the Constitutional Court held in SS v VV -S16 that a person who
has not purged his contempt should not be entertained by a Court and where,
the Honourable Justice Kollapen AJ as he then was, stated as follows:-
“[35] Those interests will not be best served and will be undermined if
the applicant is allowed to proceed and deal with the merits of the
appeal in the absence of him remedying his conduct by complying with
the August Order. It will dilute the potency of the judicial authority and
it will send a chilling message to litigants that orders of court may well
it will send a chilling message to litigants that orders of court may well
be ignored with no consequence. At the same time, it will signal to
15 2017 (11) BCLR 1408 (CC), par 67
16 2018 (6) BCLR 671 (CC)
those who are the beneficiaries of such orders that their interests may
be secondary and that the value and certainty that a court order brings
counts for little. For all these reasons, and in particular that the subject
matter of this litigation involves the best interests of the child, the
interests of justice strongly militate against the applicant’s pursuing his
application. Proceeding with the hearing of this matter, where
adequate compliance with the August Order, which sought to ensure
payment of the basic maintenance for K, is in doubt, would create
“[c]ontinued uncertainty . . . [which] cannot be in the interests of the
child” and does not further the interests of justice.”
CONTEMPT OF THE ORDER
[15] Applicant bears the onus of proof and to demonstrate in respect of the
contempt, that:-
15.1. a Court Order was made;
15.2. the Order was served or Respondent has knowledge of the Order;
15.3. non-compliance with Order.
[16] The terms of the Order are clear, unambiguous , not disputed and
Respondent does not dispute knowledge of the Order.17
[17] It is common cause that Respondent has not complied with the Order.18
[18] Applicant contends that she has met her onus in regard to the aforegoing.
[19] In addition, Applicant submits that she pursue d every alternate avenue
available to her for the enforcement of the Order before she persisted with
the contempt Application in terms whereof:-
17 FA: par 19, CL 13-9, AA: par 85, CL 13-218
18 FA: par 15, CL 13-8, AA: par 93, CL 13-219
19.1. on or about 31 March 2024, Applicant caused a Writ of Execution to be
issued attaching Respondent’s First National Bank account , account
number: 7[...] in an amount of R48 154.40,19 which attached was
effected on 04 April 2024,20
19.2. given Respondent stating that the Writ could not be executed upon
given his Application for Leave to Appeal, Applicant approached Court
on an urgent basis for interdictory relief to safe -guard the funds in
Respondent’s First National Bank account in line with the Writ of
Execution issued, in terms whereof an Order was granted in terms of
which the FNB funds were interdicted from release, pending the
Application for Leave to Appeal, however, just prior to the release of the
funds held in the aforesaid FNB bank account, an Interpleader Notice
was served by an entity described as Greyrock Holdings (Pty) Limited
claiming that the funds held in FNB bank account were subject to a
cession; 21
19.3. during October 2024 , Applicant caused a Writ of attachment on
Respondent’s Honda Civic motor vehicle with registration number
Z[...],22 however, upon attachment and removal of the motor vehicle by
the Sheriff, Respondent claimed that the motor vehicle had been sold
to his mother during August 2024.23
WILFULNESS AND MALA FIDES
[20] There is a presumption of mala fides and wilfulness when the first three
elements of the test in Fakie have been established. In Pheko (supra) the
Court held that:
19 FA: par 36, CL 13-14, AA: par 36, CL 13-209, annexure “AA12”, CL 13-286
20 AA: par 37, CL 13-209
21 FA: paras 36, 37 and 39, CL 13-14 to CL 13-15
22 FA: par 41, CL 13-15
23 FA: par 42, CL 13-16
“[36]… Therefore the presumption rightly exists that when the first three
elements of the test for contempt have been established, mala fides
and wilfulness are presumed unless the contemnor is a ble to lead
evidence sufficient to create reasonable doubt as to the ir existence.
Should the contemnor prove unsuccessful in discharging this evidential
burden, contempt will be established.”
[21] The question that requires to be answered is therefore whether Respondent’s
non-compliance was indeed because of unaffordability, as alleged by him.
Although an evidentiary burden rests on Respondent to allege facts to create
doubt, Applicant bears the onus to prove beyond a reasonable doubt that
Respondent’s non -compliance was wilful and mala fide . Differently put, the
ultimate burden rests on Applicant that if on a conspectus of all the evidence it
is reasonably probable that Respondent’s non -compliance was wilful and
mala fide, Respondent cannot be subject to criminal sanctions.
[22] Courts draw a sharp line between a parent who will not pay and one who
cannot pay. Where inability is convincingly proven, contempt will not be
established. The onus is on the defaulter to show bona fides – for example a
genuine lack of means, coupled ideally with attempts to seek a reduction of
the Order or at least partial payments as a sign of good faith.
[23] On 13 February 2024, Respondent served an Application for Leave to Appeal
the Order , which was withdrawn pursuant to Senyatsi J confirming on 23
September 2024, that there was no Appeal against an Order arising from the
Rule 43 proceedings and that Respondent ’s Application for Leave to Appeal
the Order was irregular , thus resulting in Respondent withdrawing the
Application for Leave to Appeal on 12 November 2024.24
[24] On or about 13 November 2024, Respondent then instituted an Application
for variation of the Order in the Johannesburg Magistrate’s Court 25 in which
for variation of the Order in the Johannesburg Magistrate’s Court 25 in which
Application Respondent claims that he is a salaried employee earning a nett
24 FA: par 58, CL 13-18
25 FA: par 46, CL 13-16, AA: par 62, CL 13-214, annexure “AA25”, CL 13-339 to CL 13-357
salary of R14 827.00 an d an income from Uber of R7 500.00, i.e. a total
monthly income of R 22 327.00,26 and claims that his monthly expenses are
R18 721.00 and seeks that the Order be reduced to an amount of R5 500.00
per month in respect of the child.27
[25] Simply put, Respondent’s submissions are that to the extent that Applicant
disputes his ability to pay the ordered amounts, this is an issue that is already
before the Maintenance Court and in such instance it would be necessary for
the Maintenance Court proceedings to first conclude, prior to there being a
conclusive finding regarding Respondent’s ability, to make payment of the
Order in full. Respondent therefore states that Applicant acted prematurely in
bringing the Contempt Application whilst the maintenance Application is
pending. He submits further that t he variation Application in the Maintenance
Court currently under way will fully ventilate the financial position of
Respondent, as well as his ability to pay the amounts as per the Order. In
summary, Respondent says that the issue regarding his inability to make
payment in terms of the Order is currently pending before the Maintenance
Court and will be fully ventilated therein, meaning that due process needs to
be followed in that forum, and whatever concerns Applicant raises regarding
Respondent’s financial situation and/or his ability to pay, can be tested in such
forum.28
[26] No explanation is, however, tendered by Respondent as to how the shortfall of
R1 894.00 will be funded nor does Respondent therein provide details,
inclusive of bank account statements and supporting documentation as to how
and what changes and/or material changes there are in his financial position
from January 2024 when the Order was granted, to November 2024 when
he applied for the variation.
26 AA: annexure “AA25”, CL 13-342
27 AA: annexure “AA25”, CL 13-339 to CL 13-343
28 Respondent’s HOA: paras 37 to 44, CL 16-59 to CL 16-60
[27] Furthermore, no explanation is tendered by Respondent as to why he did not
approach the above Honourable Court for a variation in terms of Rule 43(6)
and instead having done so in the Magistrate’s Court.
[28] Applicant provides documentation evidencing the following:-
28.1. posts by Respondent on his social media accounts dated 10 and 12
September 2024, advertising his business, The Meat Cart;29
28.2. posts by Respondent on his social media accounts dated 15 to 22
January 2025, advertising his business, BWT (B[...] W[...] T[...]);30
28.3. a Take-a-lot debit order instruction and statement for SA Water
Wellness (Pty) Limited completed by Respondent as “Manager” on 31
July 2025;31
28.4. photographs of the business vehicles with Meat Cart branding ,32 which
Respondent admits to using;33
28.5. Respondent’s Standard Bank account statements reflecting payments
from Water Reimm and Meat Cart;34
28.6. that Respondent continues to receive bank statements for Versatile
Safety Supplies (Pty) Limited;35
28.7. that since the granting of the Order on 27 and 29 February 2024 ,
Respondent purchased event tickets from Ticket Pro in an amount of
29 FA: annexure “FA9.1” and “FA9.2”, CL 13-71 to CL 13-72
30 FA: annexure “FA9.3” to “FA9.10”, CL 13-73 to CL 13-81
31 RA: annexure “RA13”, CL 13-602
32 RA: annexure “RA13”, CL 13-602
33 RA: par 163, CL 13-460
34 SA: annexure “SA4”, CL 13-169
35 SA: annexure “SA2”, CL 13-164
R23 240.0036 and he travels internationally purchasing airline tickets for
R12 888.46 on 17 March 2024.37
[29] The aforegoing allegations by Applicant are not disputed , alternatively not
significantly and/or adequately challenged by Respondent.
THE LAW
[30] Irrespective of Respondent’s view or purported defences, a Court Order is
binding until varied or set aside.38
[31] It is trite that Respondent is required to make a full disclosure yet he has only
seen fit to annex the Application for a variation to the Maintenance Court with
limited information.
[32] With such limited information, this Court is unable to assess Respondent’s
defence insofar as it pertains to affordability. He has not taken this Court into
his confidence. The obligation to pay maintenance is serious , as was held in
JD v DD39 where Kollapen J remarked:-
”The obligation to pay maintenance is a serious and indeed onerous
one and in my view the very generalized nature of the respondent’s
assertions of being in a constant financial crisis falls considerably short
of what is expected of him in discharging the evidentiary burden that
rests upon him.”
[33] Although Respondent did not adopt a passive approach altogether, it would
have been expected that he at least produce documentary evidence to
support his contentions.
36 SA: annexure “SA1”, CL 13-157
37 SA: annexure “SA1”, CL 13-158
38 Bezuidenhout v Patensie Sitrus Beeherend Bpk 2001 (2) SA 224 (e) at 229 B to D, Department of
Transport v Tasima (Pty) Limited 2017 (2) SA 622 (CC)
39 JD v DD 2016 JDR 0933(GP) at par 11
[34] Respondent is also required to make disclosure about the nature and extent
of any business dealings in which he has an interest either directly or
indirectly, which will enable the Court to determine whether, in fact,
Respondent is unable to satisfy the Order , as he alleges , to show lack of
mala fides and wilfulness. Respondent failed to do so.
[35] A Court must remain wary of any “ wilfully and mal a fide engineering of a
decrease in salary or termination of employment to the extent that (the
Respondent) is for all intents and purposes unemployed simply for the
purpose of deliberately frustrating the Court’s Order”.40
[36] This is in particular where there is no documentary evidence to substantiate a
claim that Respondent’s income and/or that it has been reduced.
[37] Rogers J, remarked in KPT v APT 41 that the failure to provide the bank
statements is a critical gap in circumstances where reasonable doubt is to be
shown. Also in CN v TN 42 Dlodlo J, stated that there was no full disclosure
regarding the nature and extent of business dealings as well as personal
financial position and remarked further:
“One would have for instance expected that the respondent should
have provided details regarding the profit sharing arrangement… There
is no explanation about all this. The respondent’s failure to provide
documentary evidence supports the applicant’s assertion that the
respondent has failed to make a full disclosure of his personal financial
position…”
[38] To reiterate, a recurrent judicial refrain is that an Order must be obeyed until
properly varied or set aside. A party who finds an Order burdensome must
approach the Court for a variation in the appropriate forum (i.e. u nder Rule
43(6) for interim Orders or Section 8 of the Divorce Act for final consent
40 AG v DG at par 28
41 KPT v APT (1215/2019) WCHC (2 October 2020) par 89
42 2017 JDR 0951 (WCC) at par 17
Orders or via the Maintenance Act in Maintenance Court ) rather than engage
in self-help. Unilateral reduction of maintenance payments is almost per se
wilful disobedience. Furthermore, attempts to side-step the correct forum, will
be viewed as evidence of bad faith and there are several cases exp licitly
stating that a contemnor will not be heard on a variation Application while in
contempt.
[39] Sparse or misleading disclosure will count against a Respondent where
Respondent fails to fully explain his financial circumstances. A Respondent in
contempt proceedings can avoid conviction by demonstrating a lack of
wilfulness or bad faith , such as a genuine inability to comply , in which
Respondent must show that he genuinely lacked the resources despite trying
his best or there being substantial compliance.
[40] The burden on Respondent is not a full persuasive burden but is to raise
reasonable doubt and if his or her explanation meets that threshold, the Court
should refuse to find contempt.
[41] An inability defence requires Respondent to come forward with evidence, for
example, bank statements, that convinces a Court that non -compliance was
not a choice but a constraint.
[42] Furthermore, it is trite that the purpose of Rule 43 is to provide for expeditious
and inexpensive relief and a Rule 43 Order can be varied by a Rule 43(6)
Application. Importantly, Rule 43 is there for the benefit of women and
children, who are usually in the more inferior position and the failure to
enforce maintenance Orders will negatively impact upon them.
[43] Respondent attempted to appeal the Order and choose a course in terms of a
variation Application in the Maintenance Court . Rule 43 Orders, which are
Interim Orders, are not appealable , yet he did so. Furthermore, he
approached a Maintenance Court , which by its nature is not an expeditious
process, as opposed to a Rule 43(6) Application being the forum provided for
in terms of Rule 43 and intended to be expeditious.
[44] Respondent does not explain why he chose to approach the Maintenance
Court as opposed to an Application in terms of Rule 43(6) being the very
mechanism provided for to vary a Rule 43 Order.
[45] It is therefore my view that Respondent has used a backdoor approach and
has thereby “ utilised th e system to stall his maintenance obligations ”43 and
has thereby been disrespectful , cavalier and clandestine towards this Court,
including by making payment of an arbitrary amount of maintenance, in the
absence of demonstrating a genuine inability to pay and has therefore not
passed the muster to demonstrate lack of mala fides and wilfulness.
[46] As an aside, it is common cause that Respondent has been represented
throughout the proceedings, including in terms of the Application for Leave to
Appeal the Order , these proceedings and the variation Application in the
Magistrate’s Court, yet he does not explain how he has afforded same and it
does beg the question as to his ability to afford same, on the one hand, but
not afford to pay maintenance in terms of the Order, on the other hand.
[47] The Constitutional Court has warned against recalcitrant maintenance
defaulters who use the legal process to side -step their obligations towards,
inter alia, their children, wherein the Constitutional Court states:
“Courts need to be alive to recalcitrant maintenance defaulters who use
legal processes to side -step their obligations towards their children.
The respondent was entitled to apply for a variation of the maintenance
order. But whatever excuse he might have had for failing to comply
with the existing order, there was no excuse for his failure to pay even
the reduced amount that he contended should be substituted for it.
The respondent appears to have utilised the system to stall his
maintenance obligations through the machinery of the Act. It appears
from the evidence of the CGE that this happens frequently in the
43 Bannatyne: par 32 – Supra – footnote 13
maintenance courts. The hardships experienced by maintenance
complainants need to be addressed and the proper implementation of
the provisions of the Act is a matter that calls for the urgent attention of
the Department of Justice.”44
[48] Contempt of Court proceedings exist to protect the Rule of Law and the
authority of the judiciary. Contempt of Court is not an issue between the
parties, but rather is an issue between the Court and the party who has not
complied with a mandatory Order of Court.45
[49] I do not agree with Respondent’s contention that it is necessary for the
Maintenance Court proceedings to first conclude, prior to there being a
conclusive finding regarding Respondent’s ability to make payment of the
Order and/or in full. I furthermore do not agree with Respondent’s contention
that Applicant acted prematurely in bringing the Contempt Application whilst
the Maintenance Application is pending and/or that the Maintenance Court will
fully ventilate the financial position of Respondent as well as his ability to pay
the amounts as per the Order, which averment I view, as nothing less than
another disguised attempt by Respondent to appeal the Order . I reiterate
that Rule 43, being an interim measure pending the finalisation of a divorce
action, provides its own mechanism to vary such order.
[50] Furthermore, and against the backdrop and the very purpose of Rule 43
proceedings, i.e. being interim and expeditious, coupled with the fact that a
Rule 43 Order is not appealable, I disagree with the submissions of
Respondent’s Counsel that a Rule 43 Order can be varied in the Magistrate’s
Court. Respectfully, if this were the case, it would defeat the objective of the
interim remedy provided for in terms of Rule 43, pending divorce proceedings.
Practically, the result of such an approach, would mean that it could delay the
matter indefinitely. Approaching the Magistrate’s Court for a variation of a
matter indefinitely. Approaching the Magistrate’s Court for a variation of a
Rule 43 Order, I submit, is an abuse of the process in the circumstances,
44 Bannatyne: par 32 – Supra – footnote 13
45 SJCI v Zuma: paras 26 and 27 and E. K. v P. K. & Others [2023] ZAGPPHC 69, 53105/201 9
February 2023
more specifically, whereby this Court is seized of the matter and flies in the
face of the object and nature of Rule 43 proceedings, including Rule 43(6).
[51] I am, after contemplating the aforegoing as well as the considerations in the
aforesaid authorities, satisfied that Respondent’s failure to comply with the
Order, is wilful and mala fide.
[52] Respondent’s attempt to appeal the Rule 43 Order in circumstances wherein it
is trite that Rule 43 Orders are not appealable and the Application for a
Variation in the Maintenance Court as opposed to doing so in this forum in
terms of Rule 43(6), is in my view, indicative of his cavalier approach to this
matter. He has failed to have proper regard for the seriousness of the
consequences of his actions . Accordingly, my view is that the Application for
a variation in the Maintenance Court, ought to be suspended and the order I
intend to make, will be reflective thereof.
[53] What is more astounding is that Respondent filed a Supplementary Affidavit
on 11 August 2025,46 two days prior to the hearing hereof, consisting of some
87 pages (with annexures) to ostensibly add material and relevant information
and evidence given that raised by Applicant in her Replying Affidavit, which
filing was not opposed to by Applicant, yet Respondent still does not address
and provide this Court with evidence of his alleged inability to comply with the
Order, this despite Applicant having raised same in her Replying Affidavit.
[54] Section 165(5) of the Constitution is said to “ lie at the heart of the Rule of
Law” and enjoins all persons to whom a Court Order applies to obey the terms
thereof.
THE SANCTION
[55] The Constitutional Court in Pheko & Others V Ekurhuleni Metropolitan
Municipality (supra) identifies wilful disobedience of an Order made in civil
46 CL 17-89 to CL 17-171
proceedings as a criminal offence. The Court in Bannatyne (supra) stated
that Section 8(1) of the Constitution provides:
“The Bill of Rights applies to all law and binds the legislature , the
Executive, the Judiciary and all organs of State ”. Section 38 of the
Constitution states: “ Anyone listed in this Section has the right to
approach a competent Court, alleging that a right in the Bill of Rights
has been infringed or threatened and the Court may grant appropriate
relief, including a declaration of rights… ”. In terms of Section 8 of the
Constitution: “the Judiciary is bound by the Bill of Rights. Courts are
empowered to ensure that Constitutional rights are enforced. They are
thus obliged to grant “appropriate relief” to those whose rights have
been infringed or threatened.”.
[56] The Constitutional Court has emphasised that if litiga nts decide which Orders
they obey and which to ignore, our Constitution is not worth the paper upon
which it is written.
[57] Applicant sought in her Notice of Motion that Respondent is committed to
prison for contempt for a period of 30 ( thirty) days or such alternate period as
this Honourable Court deems appropriate.
[58] At the hearing of the matter Applicant’s Counsel handed an amended Order
seeking, inter alia, that Respondent be committed to prison for contempt for a
period of 30 ( thirty) days alternatively, the operation the committal is
suspended on condition that Respondent complies with the Order with
immediate effect.
[59] In considering an appropriate sanction, I am mindful that in contempt
proceedings, the sentence to be imposed should contain both a punitive and
coercive element and in exercising this Court’s discretion, it is to impose a
sentence that is also just and equitable in the circumstances.
[60] Although Respondent averred that he could not afford to make payment in
terms of the Order, he has been economical with the information he deemed
necessary to place before this Court concerning his financial affairs.
[61] As previously stated, the onus rests on Respondent to persuade this Court
that he could not afford the payment in terms of the Order to demonstrate that
his reduction of the monthly amount was not male fide or wilful. He has failed
to do so.
CONCLUSION
[62] Respondent cannot unilaterally change the terms of the Order and pay an
amount he deems appropriate. I am of the view , that had Respondent taken
the Court into his confidence fully, this Court might have been in a position to
consider the matter differently.
[63] This Court, on the facts presented by Respondent amplified by that argued by
Applicant, is unable to assess his level of affordability.
[64] Until such time as the Order is varied, it remains in place. As guardians of
the Constitution, Courts jealously guard Orders and ensure compliance “by all
and sundry”.47 It is said that “in doing so, Courts are not only giving effect to
the rights of the successful litigant but also and more importantly, by acting
guardians of the Constitution, assessing the authority in the public interest”.48
[65] It is my view that Respondent’s actions have proven himself not to be
prepared to respect this Court’s Order.
[66] I am satisfied that his actions are contemptuous and this Court is left with no
option but to issue a coercive Order.
47 Pheko (supra)
48 Pheko (supra)
[67] I am satisfied that all the elements for contempt as enunciated in Fakie
(supra) are met and therefore Applicant ought to succeed in her Application.
COSTS
[68] It is trite that a cost order follows the result. Applicant contended that costs on
an Attorney and client scale is warranted if regard is had to the fact that
Respondent has been provided an opportunity to purge the contempt.
Furthermore, it was argued that Respondent is not reasonable and bona fide
in his belief to approach the Maintenance Court as opposed to Rule 43(6).
[69] After carefully considering the complexity of the matter, its value and
importance to the parties, in the exercise of my discretion , I am persuaded
and of the view, costs on an attorney and client scale, is justified.
THE ORDER:
[70] After having heard Counsel for Applicant and Counsel for Respondent and
having considered the documents filed on Record, the Court directs that the
following Order is made:-
70.1. non-compliance with the Uniform Rule of Court is condoned and
Respondent Supplementary Affidavit is permitted;
70.2. Respondent is found to be in contempt of the Order of this Court made
on 22 January 2024 under case number: 2023-24319;
70.3. Respondent be committed to prison for a period of 30 ( thirty) days,
which committal is suspended for a period of 1 ( one) year on condition
that he complies with the Order, granted by this Honourable Court on
22 January 2024 within 3 (three) ordinary days from date of this Order;
70.4. should Respondent fail to comply with paragraph 70.3 of this Order:-
70.4.1. the performance and execution of the Warrant of Committal for
Contempt is hereby authorised; and
70.4.2. Respondent must submit himself to the South African Police
Services at Sandton Precin ct, failing which the South African
Police Services , Sandton should take all necessary steps to
ensure that Respondent is delivered to the keeper of Prisons in
order to be committed in terms of this Order;
70.4.3. the Registrar of the above Honourable Court is directed to
furnish Respondent’s personal particulars to the Credit Bureau ,
namely Experion, Trans Union, ITC, VCCB ( Vericred Credit
Bureau), XDS ( Xpert Decision Systems ) and Compuscan , for
the purpose of recording Respondent’s contempt of the offence
of not making payment of the Order as provided for in Section
31 of the Maintenance Act, 99 of 1998;
70.5. the Application pending in the Johannesburg Magistrate’s Court, is
suspended pending the granting of a Decree of Divorce;
70.6. Respondent be and is hereby ordered to pay the costs of th is
Application on the attorney and client scale, including the costs of
Counsel.
F. MARCANDONATOS
Acting Judge of the High Court
Gauteng Division, Johannesburg
Heard: 14 August 2025
Judgment: 04 September 2025
Appearances
For Applicant: ADV L GROBLER
Instructed by: SHAHEED DOLLIE INCORPORATED
For Respondent: ADV L DE WET
Instructed by: S.T ATTORNEYS