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REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NR: 2023-131543
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES YES/NO
(3) REVISED:
DATE: 10/09/2025
SIGNATURE:
In the matter between:
S[...] R[...] M[...] APPLICANT
and
J[...] S[...] M[...] RESPONDENT
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to
the Parties / their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date of the
judgment is deemed to be 10 September 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MARUMOAGAE AJ
A INTRODUCTION
1. To say that family disputes are among the most difficult, complicated , expensive,
and time-consuming to resolve would be an understatement. Family members
who were once on the same team with a shared vision, over time, find
themselves at war with each other and view the court as the most efficient venue
for resolving their disputes. This is often the case with married persons whose
relationship has reached a point of no return, and they desire to go their separate
ways.
2. However, while they may agree on the actual divorce, they are unable to
immediately part ways because they are tied together not only by their children
but also by disagreements on the matrimonial consequences of their marriage.
Disagreements, accusations, counteraccusations, inadequate financial
disclosures, asset concealment , and unreasonable claims become the norm.
Evidence provided to the court is often designed to tell a particular story, but
hardly the entire story. It is often difficult to determine the true value of the parties’
separate estates or even that of their joint estate.
3. In this matter, t he Applicant described herself as an unemployed adult female.
She is sixty -two years old. The Respondent described himself as an adult male
pensioner. He is seventy -two years old. The parties married each other in
community of property in 1995. Given the allegations and counter-allegations
between the parties, as demonstrated by the facts presented below, even
Solomon’s wisdom may not be sufficient to resolve their specific disputes
adequately.
4. This case is one in a series of cases that the parties have already instituted and
would possibly institute against each other. In December 2023, the Applicant
instituted divorce proceedings against the Respondent. In April 2024, the
Applicant successfully launched a Rule 43 application where the Respondent
was ordered to pay interim maintenance of R 20,000.00 to the Applicant,
was ordered to pay interim maintenance of R 20,000.00 to the Applicant,
contribute towards the Applicant’s legal costs for R 25,000.00, and continue to
pay rates, electricity, and water at the parties’ matrimonial home where the
Applicant is residing. In this application, the court is asked to find the Respondent
in contempt of th is court order, which was granted on 31 July 2024 by Mokose J
(hereafter ‘Rule 43 order’).
5. The Applicant alleges that the Respondent is in contempt of this order and should
be committed to prison for a period of thirty days. However, the committal should
be suspended for a period of one year to allow the Respondent to purge the
contempt. If the contempt is not purged, the Respondent is to approach the court
to seek the Respondent’s committal to prison. The issue before the court is
whether the Respondent is in contempt of this court's order, and if so, whether he
should be committed to prison.
B ALLEGATIONS MADE BY THE PARTIES
6. According to the Applicant, the Respondent failed to comply with Mokose J’s
order fully. This is despite the Respondent being a businessman and having
substantial means to comply with this order. The Respondent received a pension
payout, has an entertainment business, and owns livestock. The Respondent
also receives income from his M4 investment. Despite the Applicant ’s reasonable
efforts, t he Respondent failed to negotiate in good faith to resolve the dispute
between the parties amicably.
7. The Respondent denies that he is in wilful and mala fide default of the Rule 43
order. However, he alleged that he is unable to comply with this order because he
is a pensioner and earns only approximately R24,666.69 per month. He also
receives an amount of R16,500.00 from M4 Investment. The Respondent alleges
further that he receives occasional income from Umtholo Beach Farm and cattle
farming.
8. The Respondent alleges that the Applicant is a businesswoman who is desirous
to live a luxurious life at his expense. The Respondent alleges that he attends to
the reasonable needs of the Applicant as far as he is financially able to. He
contends that he does not have sufficient financial resources to meet the
Applicant’s financial claims.
9. According to the Respondent, the Umtholo Beach farming is a tourism business
that lacks a stable cash flow. This business only attracts customers during the
festive season. The Respondent alleges that this business generates
approximately R50,000.00 in income during the festive season and around
R4,000 during the non-festive season.
10. The Respondent contends further that he has about eighty -two cattle, but the
cattle farming is a seasonal, very slow -growing business. The farm does not buy
and sell the cattle it breeds. He must grow the cattle and choose wisely a few that
can be sold. The Respondent alleged that due to the financial pressures, he was
forced to retrench employees at his farm. The Applicant disputes the
Respondent’s assertion relating to the income generated by Umtholo Beach
Farm and the farm where the Respondent’s cattle are placed.
11. Due to the Respondent’s failure to comply with the court order, the Applicant
alleges that she is facing serious financial difficulties, which led to her struggling
with payment of some of the services , such as running water, blocked sewage,
and uncut long grass at the matrimonial home, due to non -payment of the
municipality bills.
12. Since August 2024, the Respondent has paid varying monthly amounts, ranging
from R6,900.00 to R15,000.00, rather than the required R20,000.00 per month.
The Applicant alleges that the outstanding amount owed by the Respondent is
R219,413.87. On behalf of the Respondent, i t was argued that he does not have
the money to settle this amount.
13. The Applicant alleges that the Respondent failed to pay the municipality rates and
taxes. He also failed to make payments towards the Applicant’s legal costs. This
is despite the Applicant being aware of the Rule 43 order, which was granted in
the presence of the parties’ legal representatives in court. The Applicant alleges
that the Respondent’s actions are wilful and mala fide , designed to evade
compliance with the court order.
14. The Respondent alleges that he does not have sufficient financial resources to
sustain or meet the Applicant’s luxurious demands. He further alleges that the
Applicant owns a catering business, a clothing business, and an events
management business. According to the Respondent, he attempted to resolve
the dispute through various meetings amicably. However, every time an
agreement was reached between the parties, the Applicant failed to honour it.
15. The Applicant denied being a businesswoman and contends that she relies on
the Respondent for her livelihood through maintenance . She further denies living
a luxurious life. She maintains that the Respondent can afford to pay the
outstanding amount because his bank statement indicates that he received
substantial amounts ranging from R1000.00 to R85,631.85 from various sources
between September 2024 and December 2024.
16. According to the Respondent, he has forwarded settlement proposals on how he
will pay the outstanding amount. In particular, he proposed to the Applicant that
they sell Plot 1 […], an immovable property, to settle the joint estate debts and
outstanding Rule 43 expenses. An amount of R 1,900,000.00 was offered for this
immovable property. However, the Applicant rejected this proposal. It was argued
on behalf of the Applicant that selling this property is not a viable option because
it generally takes a long time to sell immovable properties in South Africa and the
Applicant needs maintenance now.
17. During the oral hearing, it was argued on behalf of the Respondent that sending
the Respondent to prison will not lead to the Applicant receiving the outstanding
money. Furthermore, although the Respondent does not readily have the amount
owed, there are matrimonial assets that could be sold to satisfy the debt. It was
further argued that the better option is to refer the dispute to mediation. It was
conceded that the Respondent is in contempt, but the contempt is not wilful.
18. The Applicant alleges that should the Respondent agree to the sale of some of
the assets held in the joint estate , he will be in a financial position to comply with
her demands. The Applicant alleges that the Respondent had never approached
her to sell the immovable property. However, she contends that she will never
oppose the sale of any property from which she will financially benefit. It was
argued on behalf of the Applicant that the Applicant is not opposed to the sale of
the cattle to pay arrear maintenance. However, the Respondent indicated that it is
not easy to sell the cattle.
C LEGAL PRINCIPLES
i) Contempt
19. The Supreme Court of Appeal in Snowy Owl Properties 284 (Pty) Ltd v Celliers
and Another, held that:
‘[i]t is trite that an applicant who alleges contempt of court must establish that: (a)
an order was granted against the alleged contemnor; (b) the alleged contemnor
was served with the order or had knowledge of it; and (c) the alleged contemnor
failed to comply with the order. Once these elements are established, wilfulness
and mala fides are presumed and the respondent bears an evidentiary burden to
establish a reasonable doubt. Should the respondent fail to discharge this
burden, contempt will have been established’.1
20. This court in K.S v N.Sheld, held that:
‘[o]nce it is shown that the order is granted and served or has come to the notice
of the respondent and that the respondent has disobeyed or neglected to comply
with the order, wilfulness and mala fides will be inferred and the applicant will be
1 (1295/2021) [2023] ZASCA 37 (31 March 2023) para 22.
prima facie entitled to a committal order. The evidentiary burden then rests on the
respondent to advance evidence that establishes a reasonable doubt as to
whether he is in contempt of the order’.2
21. The Constitutional Court in Pheko and Others v Ekurhuleni Metropolitan
Municipality (No) 2, held that:
‘[t]he 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’.3
22. In Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto
and Others v Compensation Solutions (Pty) Limited, it was held that:
‘[n]ot every court order warrants committal for contempt of court in civil
proceedings. The relief in civil contempt proceedings can take a variety of forms
other than criminal sanctions, such as declaratory orders, mandamus, and
structural interdicts. All of these remedies play an important part in the
enforcement of court orders in civil contempt proceedings. Their objective is to
compel parties to comply with a court order. In some instances, the disregard of
a court order may justify committal, as a sanction for past non-compliance. This is
necessary because breaching a court order, wilfully and with mala fides,
2 (D1137/2021) [2023] ZAKZDHC 94 (1 December 2023) para 19. This court also held that ‘ [c]ivil
contempt procedure has been a useful mechanism in securing compliance with orders of court and
contempt procedure has been a useful mechanism in securing compliance with orders of court and
has survived constitutional scrutiny. It is clear that contempt of court proceedings exists to protect the
rule of law and preserve the honour of the judiciary. This lies at the heart of any constitutional
democracy’ (para 17).
3 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) para 1.
undermines the authority of the courts and thereby adversely affects the broader
public interest’.4
D EVALUATION
23. It was correctly conceded that the Respondent is in contempt of the Rule 43
order. There is an order granted against the Respondent to pay interim
maintenance, municipal bills, and to also contribute towards the Applicant’s costs.
The Respondent is clearly aware of this order. However, there is a need to
assess whether the Respondent failed to comply with the order. It is common
cause that the Respondent made monthly interim maintenance payments but did
not pay the amount that he was ordered to pay. This means that there was partial
compliance with the court order regarding the interim maintenance.
24. The Respondent did not decide to disregard paying the required interim
maintenance. He paid several monthly amounts, ranging from R6,900.00 to
R15,000.00, rather than the required R20,000.00 per month. He maintained that
he could not afford to pay the full amount because his monthly income is
insufficient to cover this amount.
25. However, if the Respondent was faced with financial difficulties, it was not for him
to unilaterally choose how to ‘service’ the court order. It is not clear why, when he
realised that it was difficult to comply fully with the court order , he did not
approach the court to vary it. It cannot be a defence in a contempt application
that the Respondent does not have enough money to comply with the court order,
when no efforts were made to relax the payment burden.
26. The evidence also demonstrates that the Respondent did not contribute to the
Applicant’s legal costs as directed to do. It is not entirely clear why this part of the
order was not complied with, because the court also ordered that the contribution
4 (CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) (26
September 2017) para 54. The leading authority in these matters is the 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 2021 (5) SA 327 (CC) , where an order of committal to
prison was granted by the Constitutional Court sitting as a court of first instance.
amount should be paid in installments. The municipality and electricity bills also
remain unpaid. Th is effectively makes the Respondent be in default of the Rule
43 order.
27. There is nothing that the Respondent placed before the court that demonstrate s
that he did not deliberately fail to comply with the Rule 43 order. The Respondent
did not provide the court with adequate evidence of his income sources.
According to the Respondent, his monthly income is R24,666.69. However, he
also has various sources of income , bank or financial statements of which were
not provided to the court.
28. The Respondent provided his statements from his personal bank account. These
statements covered the period between August 29, 2024, and February 24, 2024.
These statements indicate that amounts ranging from R1000.00 to R85,631.85
were paid to the Respondent from various sources. There is no full account of the
Respondent’s financial responsibilities , which were serviced by these amounts,
which made it impossible upon receipt to use part of this money to comply with
the Rule 43 order. With respect to any of his businesses, the Respondent made a
bold claim that they do not generate enough money without providing any
evidence to support that assertion.
29. If the Respondent was acting in good faith, he would have provided the bank or
financial information relating to his other sources of income. Failure to provide the
court with such evidence raises suspicion of concealment of financial resources,
a conduct that is prevalent in matrimonial disputes. Such evidence would have
assisted the court in determining whether the Respondent had sufficient income
to comply with the Rule 43 order.
30. The Respondent only informed the court, without any proof, that his tourism
business makes about R 50,000.00 during the festive season and R 4,000.00
during other times of the year. It is unclear whether these amounts were
during other times of the year. It is unclear whether these amounts were
generated monthly during these periods. In motion proceedings, the court cannot
accept the version of a litigant merely because it is placed under oath. These
kinds of allegations can be easily supported with credible evidence through
annexures.
31. The Respondent’s allegation that the Applicant is a businesswoman with at least
three business interests is difficult to take seriously. The Respondent lived with
the Applicant for several years. Surely, if there was a business that the Applicant
was engaged in , there should be some proof that is placed before the court to
support that assertion.
32. If such proof is difficult to obtain or is non -existent, at the very least, there must
be a confirmatory affidavit from someone who knows the Applicant’s business
interests to confirm them to the court. There is no evidence to suggest that the
Applicant is not unemployed and is instead engaged in business activities. This
allegation stands to be rejected.
33. While the value of mediation cannot be denied when parties enter into that
process with utmost good faith and the desire to resolve their disputes amicably, I
disagree that the parties should be ordered to attend mediation in this contempt
application. In this Division of the High Court, it is already a requirement that,
before a divorce trial can start, the parties should subject themselves to
mediation. At this stage, the primary concern is that there is an order that must be
followed to ensure the integrity of the judiciary is preserved.
34. The e xtent that the Respondent may, as a matter of fact, be experiencing
financial difficulties that make it impossible for him to comply with the Rule 43
order, he is not remediless. He can approach the court to vary the interim
maintenance order by placing the necessary proof before the court , where a
proper inquiry can be held. I doubt that such an inquiry can be adequately
undertaken by a court tasked with issuing a contempt of court order.
35. The Respondent also claimed that he proposed that one of the immovable
properties should be sold, and there was already an offer placed on this property.
properties should be sold, and there was already an offer placed on this property.
However, there is no evidence of such an offer that has been placed before the
court. I agree with counsel for the Applicant that it is not easy to sell an
immovable property in South Africa , and the process can take a considerable
amount of time to complete. The Applicant is unemployed and requires
immediate interim financial assistance. The sale of properties pending the
finalization of divorce can be a subject of mandatory mediation that the parties
are expected to undergo.5
36. I am of the view that the Applicant has established that the three elements of
contempt of court have been satisfied. As such, the Respondent’s willfulness and
mala fides are presumed. The Respondent bears an evidentiary burden to
establish a reasonable doubt that his conduct was not wilful and mala fide.6 In my
view, the Respondent failed to discharge this burden.
37. The Respondent failed to take the court into his confidence by not presenting
credible evidence honestly and frankly, which would have assisted the court in
understanding his true financial position. The Constitutional Court has
established that individuals who disobey court orders can be imprisoned for
contempt of court, regardless of their age.7
38. However, I am convinced that age is an essential factor to consider in these kinds
of matters. Furthermore, the South African constitutional structure requires those
vested with judicial authority to exercise caution when considering orders that
5 J.P.V.S v M.M.V.S and Others J.P.V.S v M.M.V.S and Others (3957/2023) [2023] ZALMPPHC 77 (28
August 2023) para 42, where it was held that ‘[i]t is further trite law that in the event a party cannot
afford to pay maintenance a court may order that the assets be sold to satisfy the obligation to pay
maintenance’.
6 See also S v S.H (771/21) [2023] ZASCA 49 (13 April 2023) para 20, where it was held that ‘[i]t 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.[8] 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’.
7 See generally 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 2021 (5) SA
327 (CC).
may potentially interfere with the liberty of litigants before them . Particularly when
alternative remedies are available.
39. The main issue here is not for the Respondent to be committed to prison, but for
the Applicant to receive the interim maintenance and support to which she is
entitled, as indicated in the Rule 43 order. The Respondent must be given a fair
opportunity to purge his contempt. It is only when the Respondent fails to do so
that the issue of committal would become a real option.
40. The Respondent also runs businesses that are likely to suffer should he be sent
to prison. It is not only the interest of the Applicant that should be considered , but
also the interests of all of the Respondent’s employees. South Africa already
faces a significant unemployment challenge. Courts should not unnecessarily add
to this challenge when this can be avoided.
41. The approach followed by the Constitutional Court in Matjhabeng is instructive. I
think an order that would compel the Respondent to comply with a court order,
with the threat of imprisonment, appears to be ideal. In fact, this is an order that
was favoured by the minority judgment in the Zuma matter, where it was held that
a court should order a suspended committal to coerce a person found to be in
contempt of a court order to comply with the order. 8 This appears to be a
constitutionally compliant approach.
E CONCLUSION
42. Because the parties are married in community of property , the Applicant should
not beg to receive maintenance from what are effectively assets that are held in
the joint estate to which both parties are co -owners of undivided shares. The fact
that the Respondent effectively controls the keys of the joint estate does not
mean that the Applicant is not entitled to equal access and enjoyment of all the
assets held in the joint estate and their fruits.
43. It is disturbing that women are continuously forced to litigate to gain equitable
43. It is disturbing that women are continuously forced to litigate to gain equitable
access to their joint estate. Any person who decides to marry in community of
8 Ibid para 1.
property automatically reconciles themselves with the reality that all his assets
that he acquired before and during the subsistence of the marriage will be jointly
owned with his spouse.
44. It cannot be that when a marriage irretrievably breaks down, the financially
weaker spouse must be taken from pillar to post to obtain maintenance from the
joint estate. If indeed the Respondent cannot afford to comply with the Rule 43
order, he must take the necessary step s to be relieved of the burden placed on
him by the Rule 43 order.
ORDER
45. In the premises, I make the following order:
45.1. The Respondent is found to be in contempt of the order of Mokose J dated
31 July 2024;
45.2. The matter is referred to the Maintenance Court having jurisdiction to:
45.2.1. quantify the Respondent’s arrears with an appropriate payment
schedule;
45.2.2. assess the Respondent’s ability to contribute to the Applicant’s
maintenance needs; and
45.2.3. to issue an order with regards to the monthly maintenance payable
by the Respondent to the Applicant
45.3. The Respondent must initiate the maintenance proceedings at the
maintenance court within thirty days of this order.
45.4. If the Respondent fail s to initiate maintenance proceedings within 30
(thirty) days from the date of this order, the Applicant is granted leave to
approach the Court, on supplemented papers, for the authorization of a
writ of commitment to prison for contempt of court for a period of ninety
(90) days.
45.5. Mokose J dated 31 July 2024 remains in place until it is amended, varied ,
or set aside.
45.6. The Respondent shall pay the costs of the application , including those of
counsel on scale B.
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Counsel for the Applicant : Adv Nicky Terblanche
Instructed By : Rathidili Attorneys Incorporated
Counsel for the Respondent : Adv Fabriccius
Instructed By : Adams & Adams
Date of Hearing : 4 June 2025
Date of Judgment : 10 September 2025