SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1) NOT REPORTABLE
(2) NOT OF INTREST TO OTHER JUDGES
CASE NO: 2025-038486
DATE: 8 OCTOBER 2025
In the matter between:
N[…] J[…] S[…] (Formerly I[…] H[…]) Applicant
and
E[…] H[…] Respondent
Neutral Citation: S[…] v H[…] (2025/038486) [2025] ZAGPJHC --- (8 October
2025)
Coram: Adams J
Heard: 8 October 2025 – ‘virtually’ as a videoconference on Microsoft
Teams
Delivered: 8 October 2025 – This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 13:00 on 8 October 2025.
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Summary: Application for leave to appeal costs order – s 17(1)(a)(i) of the
Superior Courts Act 10 of 2013 – an applicant now faces a higher and a more
stringent threshold –
The requirements for civil contempt of court are well established – an applicant
who seeks a committal order must establish inter alia wilfulness and mala fides
– proof beyond reasonable doubt is required – convictions for civil contempt of
court axiomatically very serious – for this reason the standard of proof is one
beyond reasonable doubt –
Leave to appeal granted.
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ORDER
(1) The applicant’s application for leave to appeal succeeds.
(2) The applicant is granted leave to appeal to the Full Court of this Division.
(3) The costs of the applicant’s application for leave to appeal shall be costs
in the appeal.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original opposed
application by the applicant for inter alia an order to have the respondent
declared to be in contempt of an order of this Court (per Thobane AJ) dated as
far back as 22 May 2015. The applicant is the applicant in this application for
leave to appeal and the respondent herein was the respondent in the said
application, which came before me in the Family Court on 28 May 2025.
[2]. On 30 May 2025 I handed down an ex-tempore judgment in that
application and granted an order in the following terms:
‘(1) The respondent is declared to be in breach of the order of this Court (per
Thobane AJ) dated 22 May 2015, in terms of which a settlement agreement
concluded between the parties was made an Order of Court, in that: -
(a) He failed to substantially comply with paragraph 4.1 of the settlement
agreement, in terms of which he was ordered to pay maintenance in respect of
the minor children in the amount of R13 011 per month;
(b) He failed to substantially comply with paragraph 4.2 of the settlement
agreement, in terms of which he was ordered to pay the outstanding school
fees to S[…] J[…]’s C[…] not covered by the applicant’s staff discount;
(c) He failed to earmark the proceeds of the Oasis Investment policies for the
tertiary education of the minor children as per paragraph 4.4 of the settlement
agreement.
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(2) The respondent be and is hereby ordered and directed to purge his continuous
and ongoing breach of the said court order and to fully comply with the letter and
the spirit of the court order dated 22 May 2015 and its terms, failing which the
applicant is granted leave to approach the Court on the papers in this application
(duly supplemented, if necessary) for a contempt of court order.
(3) The respondent shall pay the applicant’s costs of this application on the party and
party scale, including costs of counsel on scale ‘B’ of the tariff applicable in terms
of the Uniform Rules of Court.’
[3]. The applicant appl ies for leave to appeal against the whole of my
aforesaid judgment and the said order granted by me, as well as the reasons
therefore, on the basis that I had erred in fact and in law in finding that, whilst
the respondent was in breach of the 2015 Court Order, it had not been
demonstrated that he (the respondent) was in contempt of the said court order. I
erred, so the submission goes, in my finding that the respondent was not in
wilful and mala fide contempt of the court order. I should have found, so the
applicant argues, that, viewed objectively and on his own version, the conduct
of the respondent was wilful and mala fide.
[4]. The case on behalf of the applicant is furthermore that the contempt by
the respondent lies therein that for a long period of time he made no attempts to
comply with the clear and unambiguous terms of the court order. He then, at the
eleventh hour, attempted to cure his contempt by launching a variation
application in the Maintenance Court. I erred, so the contention continues, in
finding in effect that the launching of the maintenance court application is an
indication that subjectively the respondent lacked the requisite mens rea
necessary for contempt of court.
[5]. In conclusion on this aspect of the matter, the applicant argues in sum
that I erred by disregarding the evidence which, according to the applicant,
that I erred by disregarding the evidence which, according to the applicant,
establishes that the respondent’s conduct amounted to wilful and mala fide
contempt of court.
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[6]. There are further grounds raised on which the application for leave to
appeal is based, such as a claim that I should have granted a punitive costs
order against the respondent . Moreover, the applicant argues that my order
‘does not dispose of all the issues in the case’ and works against a prompt
resolution of the real issues between the parties. My order, so the contention
goes, does not deal with the amount by which the respondent is in breach of the
2015 Court Order nor does it deal with the date on or before which the breach
of the said order ought to be purched.
[7]. The point about this matter and that made in my judgment is that, if
regard is had to the evidence as a whole and the version of the respondent, it
cannot be said with any conviction that it has been demonstrated that he is in
contempt of court. That position going forward may change. However, as things
stood at the time of the hearing of the matter, contempt of court had not been
proven by the evidence before me.
[8]. The respondent explained in his answering affidavit that the reason for
his non-compliance with the court order is not because of a wilful and mala fide
disregard of the order, but because the maintenance is unaffordable to him due
to material changes in his circumstances. It is for this reason that he had
launched proceedings in the Maintenance Court for a variation of the
maintenance payable.
[9]. In Cathay Pacific Airways Ltd v Lin
1, the Supreme Cour of Appeal held
as follows: -
‘[26] The requirements for civil contempt of court are well established. An applicant
who seeks a committal order must establish the following:
(a) that a court order was made;
(b) that the order had been served;
(c) non-compliance with the order;
(d) wilfulness and mala fides.
1 Cathay Pacific Airways Ltd v Lin 2017 JDR 0585 (SCA).
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Proof beyond reasonable doubt is required. But, once the applicant has adduced
sufficient evidence to prove requirements (a), (b) and (c), the respondent bears an
evidentiary burden in respect of requirement (d). A failure by the respondent to adduce
evidence that establishes a reasonable doubt as to whether non-compliance was wilful
and mala fide, will mean that civil contempt will have been established beyond
reasonable doubt.’ (Emphasis added).
[10]. On the basis of this authority, I had concluded that contempt of court had
not been established beyond a reasonable doubt. As pointed out by the SCA in
Cathay Pacific , c onvictions for civil contempt of court are axiomatically very
serious. For this reason the standard of proof is one beyond reasonable doubt.
The point is that, in coming to the conclusion I did in my judgment, I applied the
well-established principles laid down in Fakie, Tasima and Pheko. Importantly, I
applied, as I was required to do, the proper approach to disputes of fact where
final relief was being sought.
[11]. As for the applicant’s objection to the costs order made in paragraph 3 of
the Court Order, it needs to be borne in mind that, in granting the impugned
costs order, I exercised a ‘true’ or ‘narrow’ discretion, which was, in my view,
done judicially. I cannot be said that I err ed simply because, in the exercise of
my discretion, I ordered costs ‘in a fair, just and reasonable manner taking into
account the undisputed facts of the application’.
[12]. The traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect that another court may
come to a different conclusion to that reached by me in my judgment. This
approach has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of
2013, which came into operation on the 23
rd of August 2013, and which
provides that leave to appeal may only be given where the judge concerned is
provides that leave to appeal may only be given where the judge concerned is
of the opinion that ‘the appeal would have a reasonable prospect of success’.
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[13]. In Ramakatsa and Others v African National Congress and Another 2, the
SCA held that the test of reasonable prospects of success postulates a
dispassionate decision, based on the facts and the law , that a court of appeal
‘could’ reasonably arrive at a conclusion different to that of the trial court. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
[14]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that the Court of Appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed, therefore,
the appellant must convince this Court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established than that there is a mere
possibility of success. That the case is arguable on appeal or that the case cannot be
categorised as hopeless. There must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal.’
[15]. In Mont Chevaux Trust v Tina Goosen 3, the Land Claims Court held (in
an obiter dictum) that the wording of this subsection raised the bar of the test
that now has to be applied to the merits of the proposed appeal before leave
should be granted. I agree with that view, which has also now been endorsed
by the SCA in an unreported judgment in Notshokovu v S
4. In that matter the
SCA remarked that an appellant now faces a higher and a more stringent
threshold, in terms of the Superior Court Act 10 of 2013 compared to that under
threshold, in terms of the Superior Court Act 10 of 2013 compared to that under
the provisions of the repealed Supreme Court Act 59 of 1959. The applicable
2 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021);
3 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
4 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
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legal principle as enunciated in Mont Chevaux has also now been endorsed by
the Full Court of the Gauteng Division of the High Court in Pretoria in Acting
National Director of Public Prosecutions and Others v Democratic Alliance i n
Re: Democratic Alliance v Acting National Director of Public Prosecutions and
Others
5.
[16]. Whilst I remain of the view that wilfulness and mala fides on the part on
the respondent have not been demonstrated, I am persuaded that the issues
raised by the applicant in her application for leave to appeal are issues in
respect of which another court is likely to reach conclusions different to those
reached by me. The appeal has, in my view, reasonable prospects of success.
[17]. Leave to appeal should therefore be granted.
Order
[18]. In the circumstances, the following order is made:
(1) The applicant’s application for leave to appeal succeeds.
(2) The applicant is granted leave to appeal to the Full Court of this Division.
(3) The costs of the applicant’s application for leave to appeal shall be costs
in the appeal.
_________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
5 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).
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HEARD ON: 8 October 2025
JUDGMENT DATE: 8 October 2025 – judgment handed down
electronically
FOR THE APPLICANT: R Orr
INSTRUCTED BY: Thomson Wilks Incorporated, Cape Town
FOR THE RESPONDENT: No appearance
INSTRUCTED BY: Schreuder Attorneys, Kenilworth, Cape
Town