IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not Reportable
Case no: 5330/2019
In the matter between:
K-A S Applicant
and
RA S Respondent
Neutral Citation: KA S v RA S (5330/2019) [2025] ZAFSHC 248 (18 August 2025)
Coram: Opperman J
Heard: 7 August 2025 & 14 August 2025
Delivered: The judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 18 August 2025 at 17h00.
Summary: Application for rule nisi order – contempt of court – non-compliance
with settlement agreements made orders of court inter alia maintenance of minor
children.
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__________________________________________________________________
ORDER
__________________________________________________________________
The main application
1. A rule nisi is granted, calling on the respondent to give reasons, if any, on or
before, the return date of 18 September 2025, why a final order in the following
terms should not be granted:
1.1 That the respondent should not be found guilty of contempt of this Honourable
Court’s order dated 27 October 2022 under Case No.: 5330/2019 and/or the order
dated 5 September 2024 under Case No.: 5330/2019.
1.2 That the respondent should not be sentenced to direct imprisonment for a
period of 6 (six) months, such period to be suspended for a period of 3 (three) years,
subject thereto that:
1.2.1 The respondent purges his contempt within a period to be determined by
the Court on the return date, by:
1.2.1.1 Paying the outstanding C onsumer Price Index-increase on the
maintenance to the applicant as well as arrear maintenance accumulated for
June 2025 and July 2025 totalling to R31419.44;
1.2.1.2 paying the outstanding medical expenses to the applicant in the
amounts of R7945.08 and R1584.57;
1.2.1.3 paying the amount of R12200.00 to the applicant in respect of
repairs to the applicant’s vehicle;
1.2.1.4 taking out Gap Cover on the medical aid as stipulated in
paragraph 2.4 of the Deed of Settlement which was made an order of this
Court on 27 October 2022.
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1.2.2 The respondent is not again convicted of contempt of court committed
within the period of suspension.
2. The respondent is granted leave to supplement the papers.
3. Costs to stand over for adjudication on the return date.
The counter application
1. A rule nisi, with return date to be 18 September 2025, is issued calling upon
the applicant to show cause on why a final order should not be made in the following
terms:
1.1. That the applicant should not be found guilty of contempt of this Honourable
Court’s order dated 27 October 2022 under Case No.: 5330/2019 and/or the order
dated 5 September 2024 under Case No.: 5330/2019.
1.2. The applicant should not be sentenced to direct imprisonment for a period of
6 (six) months, the aforementioned period to be suspended for a period of 3 (three
years), subject thereto that:
1.2.1.The applicant purges the contempt within a period to be determined by
the court on the return date by:
1.2.1.1. Paying the respondent for the Vodacom Account in the amount
of R11222.54 as stipulated in paragraph 5 of this Honourable Court’s order
dated 27 October 2022 under Case No.: 5330/2019; and
1.2.1.2. paying the respondent for the outstanding Eskom Accounts in the
amount of R1501.36 as stipulated in paragraph 4.1 of this Honourable Court’s
order dated 27 October 2022 under Case No.: 5330/2019; and
1.2.1.3. paying the respondent for the outstanding Eskom Accounts in the
amount of R13085.09 as stipulated in paragraphs 8 and 11 of the Honourable
Court’s order dated 5 September 2024 under Case No.: 5330/2019.
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1.2.2. The applicant is not again convicted of contempt of court committed
within the period of suspension.
2. The applicant is granted leave to supplement the papers.
3. Costs to stand over for adjudication on the return date.
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__________________________________________________________________
JUDGMENT
__________________________________________________________________
Opperman J
Introduction
[1] This judgment concerns an extended dispute regarding inter alia child
maintenance and non -compliance with court orders. The parties divorced in 2022
after commencing litigation in 2019. The ongoing animosity has led to almost six
years of rows, failed mediation and more litigation. This is detrimental to the welfare
of the minor children1 and undermines the administration of justice.
[2] The situation has now spilled over into a rule nisi application seeking an order
against the respondent for contempt of court that is both coercive and punitive and,
specifically for failing to comply with an order issued by this Court in the divorce
proceedings in 2022. The respondent opposes this application and, by way of
counter-application, seeks a similar order declaring the applicant in contempt of
court for purported violations of various provisions of both the settlement agreement
incorporated in the decree of divorce and a subsequent settlement order confirmed
by this Court in 2024.
[3] It is a sui generis scenario in law that demands caution to be applied because
the best interest of minor children is at stake. Both parents could now be committed
to incarceration on the applications and again the children will suffer – bizarrely the
parties rely on the best interest of the child -principle decreed in s 28 of the
1 They are 15 and nine years old.
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Constitution. One wonders when sanity will prevail. Alternative remedies are
available and redress can be obtained in the Maintenance Act 99 of 1999 that might
be less invasive and to the benefit of the minor children . The parties ,
notwithstanding, opted to seek reparation in the form of a contempt of court ruling.
[4] The reality remains that the applicants have a right to come to this Court in
terms of s 34 of the Constitution to remedy the contempt shown to the court orders.
The judgment in Bannatyne v Bannatyne2 (Bannatyne) confirms this but also refers
to the recourse in the Maintenance Act:
‘[8] When the High Court entertains civil proceedings for committal for contempt it does so in the
exercise of its inherent jurisdiction to ensure that its orders are obeyed. A maintenance court does
not have those inherent powers, but there are statutory remedies for the enforcement of its orders.
Its orders may be enforced by execution upon the property of the person against whom the order
has been made, or by the attachment of emoluments or debts due to him (s 26) and the failure to
comply with such an or der might also constitute a criminal offence (s 31). The respondent
submitted, however, that those remedies are not exclusive and that the High Court, in the exercise
of its inherent jurisdiction (more particularly when the order affects children), is entitled to commit
for contempt of such an order.
[9] I am willing to assume for purposes of this appeal that the High Court is indeed entitled to
commit for contempt of the order of a maintenance court. If that is so then clearly it is a matter
that falls within its discretion. In my view, any such discretion is one that ought to be exercised
sparingly and only in exceptional circumstances for the Legislature has provided effective
remedies that were not intended to be ignored.’ (Accentuation added.)
[5] The lis lies between the parties as well as between the parties and the Court.
[5] The lis lies between the parties as well as between the parties and the Court.
The conundrum is pertinently construed in Dezius v Dezius:3
2 Bannatyne v Bannatyne and Another (CCT18/02) [2002] ZACC 31; 2003 (2) BCLR 111; 2003 (2) SA 363 (CC) (20
December 2002).
3 Dezius v Dezius (37655/05) [2006] ZAGPHC 77; [2007] 1 All SA 483 (T); 2006 (6) SA 395 (T) (21 August 2006).
7
‘[3] This application certainly calls for circumspection and careful consideration before a
committal order is issued for disobeying an order of court pertaining to interim maintenance and
contribution towards legal costs.
[4] An order for committal for contempt of court arising from matrimonial issues pendente
lite invariably involves the likelihood of depriving the offending spouse of his liberty, suspended
or otherwise, and concomitantly jeopardising the prospects of the recipient spouse in procuring
any maintenance and contribution towards legal costs.
[5] Lord Ormrod in Ansah v Ansah aptly alluded that:
“Such a breach or breaches of an injunction in the circumstances of such a case as this do not
justify the making of a committal order, suspended or otherwise. Breach of such an order is,
perhaps unfortunately, called contempt of court, the conventional remedy for which is a summons
for committal. But the real purpose of bringing the matter back to the court, in most cases, is not
so much to punish the disobedience, as to secure compliance with the order in the future. It will
often be wiser to bring the matter before the court again for further dir ection before applying for
committal order. Committal orders are remedies of last resort; in family cases they should be the
very last resort. They are likely to damage complainant spouses almost as much as offending
spouses.”
[6] An offender should not be deprived of his liberty except in accordance with the precepts of
fundamental justice and in compliance of procedural safeguards. The public sanction of
imprisonment for disobedience of a court order requires conclusive proof. It is, therefore,
imperative that, before a committal order is issued, the court should scrutinise the facts with great
care.’4 (Accentuation added and footnotes omitted.)
4 See also Fakie v CCII Systems (Pty) Ltd [2006] SCA 54 (RSA) (Fakie) para 30 per Cameron JA:
4 See also Fakie v CCII Systems (Pty) Ltd [2006] SCA 54 (RSA) (Fakie) para 30 per Cameron JA:
‘While the applicant may disavow punishment as a motive . . . the means the court is asked to employ remains the
same: the public sanction of imprisonment for disobedience of a court order. The invocation of that sanction in my
view requires conclusive proof. No less than punitive committal, purely coercive committal uses imprisonment, or its
threat; and whenever loss of liberty for disobedience of an order of court is threatened it seems to me necessary and
proper that the infraction should be proved conclusively.’
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[6] The above said; t he judgment will comprise the legal principles associated
with a rule nisi order, contempt of court with an emphasises on the necessity of
complying with judicial decisions to preserve the rule of law , maintenance
responsibilities, the evaluation of evidence in motion applications, and the obligation
of legal practitioners to advise and direct their clients toward the most effective and
lasting solution.
The relief sought5
[7] The applicant wants it to be ordered that:
‘1. A rule nisi is granted, calling on the Respondent to give reasons, if any, on or before, the
return date of 18 SEPTEMBER 2025, why a final order in the following terms should not be
granted;
1.1 That the Respondent be found guilty of contempt of Court;
1.2 That the Respondent shall pay a fine, the amount of which is to be determined by the Court
in the event of him being found guilty of contempt of Court;
1.3 That the Respondent should not be sentenced to direct imprisonment for a period of 6
months, such period to be suspended for a period of three years, subject thereto that;
1.3.1 The Respondent pays the fine referred to in paragraphs 1.2 above within 30 days of date of
this order; and
1.3.2 The Respondent purge his contempt within 30 days of date of this order, by;
1.3.2.1 Paying outstanding CPI increase on the maintenance to the Applicant as well as arrear
maintenance accumulated for June 2025 and July 2025 totalling to R31 419.44;
1.3.2.2 Paying outstanding medical expenses to the Applicant in the amounts of R7,945.08 and
R1,584.57;
1.3.2.3 Paying the amount of R12,200.00 to the Applicant in respect of repairs to the Applicant’s
vehicle;
1.3.2.4 Taking out Gap Cover as stipulated in paragraph 2.4 of the Deed of Settlement which was
made order of this Court on 27 October 2022; and
made order of this Court on 27 October 2022; and
5 Draft Orders submitted to the Court after hearing of the arguments on 7 August 2025.
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1.3.3 The Respondent is not found guilty of contempt of Court for a period of three (3) years
from the date that this order is granted;
2. That the Respondent is ordered to pay the costs of this application, such costs to include
the wasted costs occasioned by postponements of 10 April 2025, 15 MAY 2025 and 19 JUNE
2025, including costs of counsel, which stood over for later adjudication on party and party Scale
A.’
[8] The respondent claims for an order as follows:
‘1. A rule nisi, with return date to be 25 SEPTEMBER 2025 be issued calling upon the
Applicant to show cause on why a final order should not be made in the following terms:-
1.1. That the Applicant should not be found guilty of contempt of this Honourable Court’s
Order dated 27 October 2022 under Case No.: 5330/2019;
1.2. That the Applicant should not be found guilty of contempt of this Honourable Court’s
Order dated 5 September 2024 under Case No.: 5330/2019;
1.3. The Applicant should not be ordered to pay a fine, the amount of which to be determined
by the above Honourable Court in the event of them being found guilty of contempt of court;
1.4. The Applicant should not be sentenced to direct imprisonment for a period of 6 months,
the aforementioned period to be suspended for a period of three years, subject thereto that:
1.4.1. The Applicant pay a fine, the amount of which is to be determined by the above Honourable
Court; and
1.4.2. The Applicant purge the contempt within 30 days of this Order by;
1.4.2.1. Paying the Respondent for the Vodacom Account in the amount of R11 222.54 as
stipulated in paragraph 5 of this Honourable Court’s Order dated 27 October 2022 under Case No.:
5330/2019; and
1.4.2.2. Paying the Respondent for the outstanding Eskom Accounts in the amount of R1
501.36 as stipulated in paragraph 4.1 of this Honourable Court’s Order dated 27 October 2022
under Case No.: 5330/2019; and
1.4.2.3. Paying the Respondent for the outstanding Eskom Accounts in the amount of R13
1.4.2.3. Paying the Respondent for the outstanding Eskom Accounts in the amount of R13
085.09 as stipulated in paragraphs 8 and 11 Honourable Court’s Order dated 5 September 2024
under Case No.: 5330/2019;
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1.4.3. The Applicant not be found guilty of Contempt of Court for a period of three (3) years from
the date that this order is granted;
1.5. The Applicant is ordered to pay the costs of this counter -application on party and party,
Scale A.
2. Costs to stand over for later adjudication’
The rule nisi
[9] The applications are for a rule nisi order in both instances . Fagan JA in Ex
parte Alexander and Others,6 stated that a prima facie case will suffice for a rule nisi
order. An application for a rule nisi must be in the utmost good faith. Failure to make
full disclosure of all known material facts (in other words, facts that might
reasonably influence a court to come to a decision) may lead a court to refuse the
application or to set aside the rule nisi on that ground alone, quite apart from
considerations of wilfulness or mala fides.7 Mala fide contempt of court applications
are more often than not an attempt to revenge against an ex-spouse. The Court must
protect the administration of justice and sanctity of the justice system against
conduct of this nature.
[10] It is trite that a rule nisi will call upon interested parties to show cause, if any,
on a fixed date why the rule should not be made final. The order does not affect the
ultimate onus in the case but to obtain a rule nisi the onus is lighter than when the
rule is to be confirmed.8
6 Ex parte Alexander and Others 1956 (2) SA 608 (A) at 611D.
7 National Director of Public Prosecution v Kyriacou 2003 4 All SA 153 (SCA), Thint (Pty) Ltd v National Director
of Public Prosecutions and Zuma v National Director of Public Prosecutions 2009 1 SA 1 (CC); 2008 12 BCLR 1197
(CC) para 296. According to Reclamation Group (Pty) Ltd v Smit 2004 1 SA 215 (SE), the bad faith or material non -
disclosure must be obvious from the papers.
8 4 LAWSA 3 ed para 185.
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[11] In Ex parte St Clair Lynn 9 it was ruled that applicant must be entitled to the
ultimate relief sought. Ex parte Saiga Properties (Pty) Ltd10 declared that a rule nisi
cannot be issued unless a cause of action is made out. A rule nisi does not serve as
a remedy for a bad case.
The cause of action; contempt of court
[12] The cause of action is contempt of court. Section 165(5) of the South African
Constitution provides that “an order or decision issued by a court binds all persons
to whom and organs of state to which it applies.” This unequivocal statement ensures
that no one, regardless of their status or power, is above the law. Court orders,
whether viewed as correct or incorrect, must be obeyed until set aside through proper
legal channels.11
[13] It is important to note that simply claiming inability to pay maintenance
without evidence will not excuse non -payment. It is common cause that the
respondent has not complied with the payment of the maintenance as ordered and
has given preference to other financial responsibilities to the detriment of his
maintenance obligations . Maintenance obligations are preferential to any other
liability. He, for instance also, did not obtain medical GAP-cover and paid the school
fees late. His monthly payment of the maintenance was not paid timeously and in
full. Again, this is common cause. In the current application he did not make a full
and open disclosure of his financial position with added prove to corroborate a
general averment of lack of financial ability to honour the maintenance payments.
9 Ex parte St Clair Lynn 1980 3 All SA 795 (W); 1980 3 SA 163 (W).
10 Ex parte Saiga Properties (Pty) Ltd 1997 2 All SA 474 (E).
11 Department of Transport and Others v Tasima (Pty) Limited (CCT5/16) [2016] ZACC 39; 2017 (1) BCLR 1 (CC);
2017 (2) SA 622 (CC) (9 November 2016).
12
[14] The same goes for the counter application by the respondent against the
applicant. As counsel for the respondent correctly pointed out in their heads of
arguments dated 7 August 2025:
‘37. In terms of the original Decree of Divorce, the Applicant was solely responsible for her
own debts and accounts, including cell phone contracts. The Applicant was to pay the Respondent
the monthly amount once the cell phone contract was placed in her name.
38. Vodacom continued to debit the Respondent's account while the Applicant only made four
payments totalling R4 400.00 towards her obligation. The Applicant's payments and averments are
in themselves an acknowledgement that she has failed to meet her obligation, and with respect, the
Applicant's excuses do not cure her contempt in this regard.
39. It is inconceivable that the Applicant is aware and acknowledges her obligation, fails to
comply and then uses t his Court's time to claim amounts from the Respondent. Moreover, the
Respondent has paid for the Applicant's Vodacom Account.
41. The Applicant's evidence in this regard does not prove that she paid the Eskom accounts,
it merely shows that a payment was made. Further, the Applicant does not dispute that the
Respondent made numerous payments towards the Eskom account and that the Applicant has not
complied with her obligations towards the Eskom Account.’
[15] In any legal system, the principle of compliance with court orders lies at the
heart of the rule of law. Court orders are not mere suggestions but binding directives
designed to resolve disputes, maintain public order, and uphold justice.
Disobedience of such orders undermines the judicial system and disrupts the delicate
balance of governance.
[16] The consequences of non-compliance go beyond individual cases, threatening
the integrity of the legal system as a whole. This lis lies with the Court. The act is
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criminal; the disobedience also causes civil liability between the parties. Victoria
Park Ratepayers' Association v Greyvenouw CC12 states that:
‘It appears to me that the main purpose of the practice of seeking a rule nisi in cases such as this
is to regulate how the matter is to proceed. Contempt of court has obvious implications for the
effectiveness and legitimacy of the legal system and the judicial arm of government. There is thus
a public interest element in each and every case in which it is alleged that a party has wilfully and
in bad faith ignored or otherwise failed to comply with a court order. This added element provides
to every such case an element of urgency.’
[17] The children bear the brunt in cases such as here. Ironically, as said, the parties
use s 28 of the Constitution to promote their cases. A parenting plan to be drafted ,
which formed part of the court orders, has not even seen the light of day. They, in
essence, completely defeated the court’s order to ensure the rights of the children to
have access to their parents in a structured manner.
[18] Herbstein and Van Winsen,13 with reference to case law, correctly found that
orders of court requiring compliance are, generally speaking, divided into two
categories: orders ad pecuniam solvendam (i.e. orders to pay a sum of money) and
orders ad factum praestandum (i.e. orders to do or abstain from doing a particular
act). Not every order of court can be enforced by committal for contempt. The order
must be one ad factum praestandum before the court will enforce it in that manner.
When the order is for the payment of money simpliciter (for example an order to pay
damages) it cannot be enforced by a committal for contempt even if the person
ordered to pay has the means to do so but refuses to pay.
12 Victoria Park Ratepayers' Association v Greyvenouw CC [2004] 3 All SA 623 (SE) at 627.
13 A Cilliers, C Loots and H Nel Herbstein and Van Winsen: The Civil Practice of the High Courts 5 ed (2) at 1106: In
what cases are proceedings for committal for contempt appropriate.
14
‘Orders for the payment of money for the maintenance of wives and children, while seemingly are
orders ad pecuniam solvendam, are treated as orders ad factum praestandum and are therefore
enforceable not only by the ordinary methods of execution but also by way of committal for
contempt. Indeed, these are the most usual cases in practice in which applications for committal
arise.’14
[19] Contempt procedure is summary in its nature, and the usual method of
initiating such proceedings is by way of an application for the issue of a rule nisi.15
For a civil contempt application to succeed, an applicant must demonstrate the
following elements: Existence of a valid court order , knowledge of the order, non-
compliance and wilful and bad faith disobedience.
[20] In S v S.H 16 the Supreme Court of Appeal reiterate the rationale and
evidentiary law in contempt proceedings as in casu:
‘[17] All South Africans have a duty to respect and abide by the law. As the Constitutional Court
stated in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others , courts
‘unlike other arms of the State . . . rely solely on the trust and confidence of the people to carry out
their constitutionally mandated function’ which is to uphold, protect and apply the law without
fear or favour. Disregard of court orders is an attack on the very fabric of the rule of law.
[18] The attempt to evade payment of maintenance orders is particularly egregious as it also
undermines the best interest of the child principle. If court orders in respect of maintenance are
habitually evaded with relative impunity, not only is the justice sys tem discredited but also the
interests of the child are not adequately protected. Courts are enjoined to be alive to recalcitrant
14 Ibid at 1107. The learned authors, at fn 74, refer to Ferreira v Bezuidenhout 1970 (1) SA 551 (O), Sparks v Sparks
1998 (W) SA 714 (W) and Bannatyne v Bannatyne (Commission for Gender Equality as Amicus Curiae) 2003 (2) SA
363 (CC). (Contempt proceedings for the enforcement of children's maintenance, being a fundamental right contained
in s 28 of the Constitution).
15 Ibid at 1102: Procedure.
16 S v S.H (771/21) [2023] ZASCA 49 (13 April 2023).
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maintenance defaulters who use legal processes to side -step their obligations towards their
children.17
[19] The requirements for contempt of are now trite. They are the existence of a court order; the
contemnor must have knowledge of the court order; there must be non-compliance with the court
order; and the non-compliance must have been wilful or male fides. Once the first three elements
have been shown, wilfulness and male fides will be presumed and the evidentiary burden switches
to the contemnor.18
[20] It has been recognised by our courts that where a committal is ordered, the standard of proof
in civil contempt matters has to be the criminal standard. In those circumstances, wilfulness
and male fides have to be shown beyond reasonable doubt. Put differently, the contemnor has an
evidential burden to create a reasonable doubt as to whether his conduct was wilful and male fide.
There is a different standard of proof where no criminal sanction is sought; then, the standard of
proof is that of a balance of probabilities. While all wilful disobedience of a court order made in
civil proceedings is a criminal offence, civil mechanisms that are designed to induce compliance
without resorting to committal, are competent when proved on a balance of probabilities . The
hybrid nature of contempt proceedings which results in committal, combine civil and criminal
elements. But this does not mean that contemnors are not afforded the substantive and procedural
protections which apply to any individual facing the loss of his freedom.’19
[21] During the hearing of the case the Court alerted counsel to the lack of concrete
and appropriate evidence of the different defences of lack of funds and knowledge
of the amounts due. The agreement by counsel was that a rule nisi order will cure
this and the parties will be granted the opportunity to adduce the evidence. The
solution in the case might lie here if the legal practitioners direct the parties to the
17 Bannatyne para 32.
17 Bannatyne para 32.
18 Fakie; Pheko and Others v Ekurhuleni Metropolitan Municipality [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015
(6) BCLR 711 (CC) and Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of State v Zuma and Other [2021] ZACC 18; 2021 (9) BCLR 992
(CC); 2021 (5) SA 327 (CC).
19 See also Matjhabeng Local Municipality v Eskom Holdings Limited and Others and Mkhonto and Others v
Compensation Solutions (Pty) Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) para 61.
16
correct remedies in maintenance law and the reality of maintenance law as was
alluded to in the case law referred to above. This brings the case to the adjudication
of evidence in motion proceedings.
Motion proceedings and Plascon-Evans
[22] The general rule is that motion proceedings are about deciding questions of
law on undisputed facts. Unless the court can decide the application on the
undisputed or common cause facts, it must dismiss the application or refer any
material dispute of fact to trial or oral evidence.
[23] Rule 6(5)(g) of the Uniform Rules finds application and decrees that where
an application cannot properly be decided on affidavit , the court may dismiss the
application or make such order as it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the generality of the afore-
going, it may direct that oral evidence be heard on specifie d issues with a view to
resolving any dispute of fact and to that end may order any deponent to appear
personally or grant leave for such deponent or any other person to be subpoenaed to
appear and be examined and cross-examined as a witness or it may refer the matter
to trial with appropriate directions as to pleadings or definition of issues, or
otherwise. Generally, if there is a foreseeable dispute of fact, the applicant must
initiate action proceedings.
[24] But if a dispute of fact emerges those are not the only two options available
to the court. Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd20 determines
when or whether a matter can be decided on the papers. Where there is a dispute as
20 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
17
to the facts a final interdict should only be granted in notice of motion proceedings
if the facts as stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order. Where it is clear that facts, though not
formally admitted, cannot be denied, they must be regarded as admitted. In certain
instances, the denial by respondent of a fact alleged by the applicant may not be such
as to raise a real, genuine or bona fide dispute of fact. If in such a case the respondent
has not availed himself of his right to apply for the deponents concerned to be called
for cross -examination under rule 6(5) (g) of the Uniform Rules of Court and the
Court is satisfied as to the inherent credibility of the applicant’s factual averment, it
may proceed on the basis of the correctness thereof and include this fact among those
upon which it determines whether the applicant is entitled to the final relief which
he seeks. Moreover, there may be exceptions to this general ru le, as, for example,
where the allegations or denials of the respondent are so far -fetched or clearly
untenable that the Court is justified in rejecting them merely on the papers.
[25] A rule nisi order is not a final interdict or order, and the parties must only
demonstrate their case on a prima facie basis. They met the onus here. The order will
invite the parties to show cause as to why it should not be made final. The elements
of the cause of action must , on the return date, be proven on the appropriate onus.
They may apply for the matter to be referred to oral evidence or even trial.
Conclusionary remarks
[26] The parties must be rebuked for their conduct here. I t is unacceptable. They
had years to bring an end to the debacle, and the law provides alternative and less
invasive solutions. They had the luxury and assistance of mediators, legal
18
representatives and the Office of the Family Advocate that surely endeavoured to
make good sense of the matter with the aim of bringing judicious solutions.
[27] Legal practitioners must guide their clients to serve the best interest of their
minor children.21 It is also of concern that the Maintenance Court did not allow the
respondent to make an application for the amendment of the maintenance order as
he had a right to do , albeit that the application was too late and after continuous
transgression of the court order over years.
[28] Maintenance is mathematics and nothing else. It is an unemotional calculation
of the reality of the financial state of the parties and the needs of the children. It is
not static and is subject to change as circumstances do. It is a division of the child's
total expenses by the total income of both parents to determine each parent's
proportional share.
[29] Section 6(4) of the Children’s Act 38 of 2005 requires that in any matter
concerning a child an approach which is conducive to conciliation and problem -
solving should be followed and a confrontational approach should be avoided; and
a delay in any action or decision to be taken must be avoided as far as possible.
[30] This Court will not hesitate to call the app licant and the respondent to order
even if it means by incarceration. A strong message must bring an end to the
21 B.M.G.S v M.B.S and Others (26675/2022) [2024] ZAGPPHC 24 (8 January 2024):
‘[34] Legal practitioners are officers of the court and do not owe a duty to their clients only, but they also owe a duty
to the courts and the legal system. It is therefore important to always bear in mind that legal practitioners have an
ethical duty to advice their clients to obey Court Orders, whether the client agrees with such an Order or not. Failure
to do this may sometimes be interpreted as making common cause with a client who continues to be in defiance and
violation of the Court Orders, alternatively, having failed to properly advice client accordingly.
[39] The Constitutional Court in Eke v Parsons affirmed the essential characteristics of a Court Order and accepted
that a Court Order must be enforceable and immediately capable of execution. The rule of law requires not only that
a court order be couched in clear terms but also that its purpose be readily ascertainable from the language of the order.
This is because disobedience of a court order constitutes a violation of the Constitution. (emphasis added)’ .
19
lawlessness in this case and cases alike. The children of this country suffer at the
hands of their parents, and the justice system is ridiculed. I will not impose fines
because the two litigants, on their own evidence, cannot afford it and it will prejudice
the children. The parents forced the Court into a corner wherein p unitive
incarceration is the only outcome and final end of the case. The rule nisi order will
grant them one last chance to mend their ways and show why they must not be found
to be in contempt of court . They will be granted a final opportunity to purge the
contempt.
[31] The costs of this application, as well as all reserved costs , will have to stand
over for later adjudication. It is not as simple as costs to be in the cause because, as
the matter currently stands, no party is successful.
[32] Mokgoro J in Bannatyne has the final say in this judgment:
‘[27] Systemic failures to enforce maintenance orders have a negative impact on the rule of law.
The courts are there to ensure that the rights of all are protected . . . If court orders are habitually
evaded and defied with relative impunity, the justice system is discredited and the constitutional
promise of human dignity and equality is seriously compromised for those most dependent on the
law.’
Order
[33] In the result the following orders are made:
The main application
1. A rule nisi is granted, calling on the respondent to give reasons, if any, on or
before, the return date of 18 September 2025, why a final order in the following
terms should not be granted:
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1.1 That the respondent should not be found guilty of contempt of this Honourable
Court’s order dated 27 October 2022 under Case No.: 5330/2019 and/or the order
dated 5 September 2024 under Case No.: 5330/2019.
1.2 That the respondent should not be sentenced to direct imprisonment for a
period of 6 (six) months, such period to be suspended for a period of 3 (three) years,
subject thereto that:
1.2.1 The respondent purges his contempt within a period to be determined by
the Court on the return date, by:
1.2.1.1 Paying the outstanding C onsumer Price Index-increase on the
maintenance to the applicant as well as arrear maintenance accumulated for
June 2025 and July 2025 totalling to R31419.44;
1.2.1.2 paying the outstanding medical expenses to the applicant in the
amounts of R7945.08 and R1584.57;
1.2.1.3 paying the amount of R12200.00 to the applicant in respect of
repairs to the applicant’s vehicle;
1.2.1.4 taking out Gap Cover on the medical aid as stipulated in
paragraph 2.4 of the Deed of Settlement which was made an order of this
Court on 27 October 2022.
1.2.2 The respondent is not again convicted of contempt of court committed
within the period of suspension.
2. The respondent is granted leave to supplement the papers.
3. Costs to stand over for adjudication on the return date.
The counter application
1. A rule nisi, with return date to be 18 September 2025 , is issued calling upon
the applicant to show cause on why a final order should not be made in the following
terms:
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Appearances
For applicant: R van der Merwe
Bloemfontein
Instructed by: McIntyre Van Der Post Attorneys
Bloemfontein
For respondent: CMD Rawson
Bloemfontein
Instructed by: UFS Law Clinic
Bloemfontein