SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 17286/17
In the matter between:
E[…] V[…] A[…] APPLICANT
and
J[…] A[…] V[…] A[…] RESPONDENT
Coram: BARENDSE AJ
Heard: 9 October 2025
Delivered: 14 October 2025
ORDER
1 The application is dismissed with costs on scale B, including the costs
of counsel.
JUDGMENT
BARENDSE AJ
[1] This is an application in which the Applicant is asking the court to
impose sanctions on the Respondent for contempt of two court orders.
[2] In paragraph 3 of the Notice of Motion ("NOM") the Applicant
requests that the Respondent be sentenced to imprisonment for a
period of sixty days, alternatively a period of imprisonment that the
Court deems appropriate, alternatively that the Court imposes a
sentence, penalty or fine that the Court deems appropriate.
[3] The Applicant further seeks costs on the a ttorney and own client scale
including costs of counsel on the highest scale.
FACTUAL BACKGROUND
[4] The parties were previously married and the marriage was dissolved
by an Order of Divorce incorporating a Settlement Agreement, granted on 2
December 2019.
[5] The Divorce Order made provision for payment of maintenance by
Respondent to Applicant in an amount of R16 500 per month for a period of
three years. After the three-year period the parties would agree on an amount
of monthly maintenance. Failing such agreement, the parties would approach
the Maintenance Court to make an assessment.
[6] The Respondent initially complied with his maintenance obligations by
making payment of the amount of R16 500. After the three-year period had
elapsed the parties were unable to agree on an amount for continued
maintenance and the Respondent referred the matter to the Maintenance
Court during 2023.
[7] The fate of the maintenance proceedings was a prominent feature in
previous contempt proceedings. Elaboration thereon is not for present
purposes necessary save to state that on 13 July 2023 it was postponed for
settlement purposes and that, on the same date, the Applicant received a
Short Message Service (SMS) to the effect that the maintenance matter was
closed.
[8] As from July 2023 the Respondent reduced the monthly maintenance
payment to R5000 and did not increase this for inflation. It appears from the
papers that according to the Respondent, this was all that he could afford to
pay. Given that Respondent was then no more complying with the Divorce
Order, the Applicant instituted contempt proceedings in the High Court on 6
October 2023. For reasons that will appear later it is not necessary to delve
into the averments made by the parties in the above proceedings.
[9] The above proceedings came before The Honourable Andrews AJ on
an opposed basis and culminated into an Order dated 18 September 2024
(the September 2024 Order"). This Order provided for the following:
1. That the Respondent is found to be in contempt of the Order of this
Court made on 2 December 2019 under case number 17286/2017;
2. The matter is referred to the Maintenance Court having jurisdiction
to :
(a) Quantify the Respondent's arrears with an appropriate payment
schedule;
(b) assess the Defendant's ability to contribute to the Plaintiff's
maintenance and needs; and
(c) to issue an order with regards to the monthly maintenance payable
by the Respondent to the Applicant.
3. Should the Respondent fail to initiate maintenance proceedings
within a period of thirty days from date of this order, the Applicant is
granted leave to approach this court to impose an appropriate
sanction. The Applicant is granted leave to supplement the papers
with due regard to the computation of the arrear amount as the time
(sic) of the launch of these proceedings.
4. The existing order made on 2 December 2019 under case number
17286/2017 remains in place until such time as it is amended, varied
or set aside.
[10] The Respondent applied for Leave to Appeal against the September
2024 Order. Leave to Appeal was denied and the Respondent did not take
matters beyond that.
[11] The present application was launched on 28 January 2025, the
Respondent gave notice of opposition thereto after which it was agreed that
the Respondent would file an Answering Affidavit by 20 March 2025 and
that the matter would be postponed to 21 August 2025. This will be
expanded on later in this judgment.
APPLICANT'S CASE
[12] In her Founding Affidavit ("FA") to this application the Applicant
averred that the Respondent was in contempt of the September 2024 Order
in that he did not initiate the maintenance proceedings within the 30 day
period envisaged in paragraph three of the Order and that he was
consequently in contempt thereof.
[13] Applicant further contended that given that the 2 December 2019
Order remained in force, Respondent remained in contempt thereof. The FA
outlines that Respondent persisted with payment of R5000 per month and
sets out the arrears that accumulated. In a supplementary FA dated 3 July
2025 details of the payments made by Respondent between January 2025
and July 2025 were provided. This illustrates that the payments remained at
R5000 per month.
[14] Applicant submitted that the Respondent's continued disregard for the
December 2019 Order was deliberate and intentional and that he has
deliberately and intentionally disregarded the September 2019 Order by not
initiating proceedings in the Maintenance Court within thirty days as
required.
RESPONDENT'S CASE
[15] The Respondent filed the Answering Affidavit (AA) referred to in
paragraph 11 ( under the heading of "Opposing Affidavit") on 7 August
2025. He seeks condonation for the late filing of this affidavit. In paragraph
5 of the Opposing Affidavit ("OA") he proffered the explanation that this
came about because his counsel failed to diarise this step and that she only
realised this omission by the end of July. His attorney was, during May and
June, engaged in a time-consuming matter described as a '…very publicised
and controversial matter…' concerning a Stellenbosch student and this
contributed to the oversight.
[16] No confirmatory affidavit by Respondent's attorney was filed and
Respondent's counsel admitted from the bar to the failure on her part. She
submitted that as the counsel appearing for Respondent it was impermissible
for her to file an affidavit to this effect.
[17] While the explanations proffered by Respondent for the almost five-
month delay in filing the affidavit may at face value appear flimsy, the court
has to take all relevant factors into consideration when exercising its
discretion. Importantly, the court must arrive at a conclusion as to what is in
the interests of justice.1
1 Grootboom v National Prosecuting Authority And Another 2014 (2) SA 68 (CC) at [23]
[18] The relief being sought in these proceedings impact the Respondent's
constitutional right of liberty and the court cannot pronounce on this
application without proper consideration of his version. This can only be
achieved by a proper consideration of his Opposing Affidavit (OA) and to
achieve this, the court condones the late filing of the affidavit. It may be
added that the late filing of the affidavit did not delay these proceedings.
While Applicant did not consent to condonation, counsel for Applicant,
wisely so, did not seriously challenge same during argument.
[19] At the heart of the present application is the Respondent's failure to
comply with paragraph three of the September 2019 Order by not, within 30
days, initiating an application to the Maintenance Court for the purposes of
what was contained in paragraph 2 of the said Order. It is necessary to
consider the circumstances around this in more detail.
[20] The judgment in the application for leave to appeal was handed down
on 20 November 2024. On 28 January 2025 Appellant's attorneys wrote to
Respondent's attorneys informing them that application was made for an
order holding the Respondent in further contempt of the September 2024
Order. This letter is found at page 59 of the record. Respondent's attorney
replied on 29 January 2025 and inter alia recorded that Respondent had no
intention of disregarding the court order, that the attorney underwent surgery
which contributed to a delay, that the attorney made inquiries to the
Maintenance Court and was informed that the matter should be re-enrolled
by way of an affidavit containing such a request. Respondent's attorney
appealed to Applicant not to proceed with a further contempt application but
to allow for an opportunity to enrol the matter in the Maintenance Court.
This email is found at page 61 of the record.
[21] On 29 January 2025 Applicant's attorney sent an email to
Respondent's attorney which concluded with a request for payment of R312,
744.60 within two days to prevent the application from proceeding.
Respondent's attorney filed the affidavit for the request to re-enrol the matter
in the Maintenance Court on 6 February 2025.2 On 6 February 2025 the
Applicant's attorneys wrote to the maintenance officer essentially stating that
the High Court application for contempt must first be concluded before
Respondent can be provided with a date in the Maintenance Court.
REASONING
[22] The September 2019 Order envisaged a review and quantification of
Respondent's maintenance obligations by the Maintenance Court, as the
forum best placed to do so. While the Order held the Respondent in
contempt of the Divorce Order, no sanction was imposed, other than an
order directing the Respondent to initiate the Maintenance Court
proceedings. This Order further granted leave to the Applicant to approach
the court to impose an appropriate sanction if Respondent fails to initiate the
maintenance review proceedings within the stated period.
[23] This court is now seized with whether Respondent is in contempt of
the September 2019 Order and if so, what sanction should be imposed.
Applicant's case is that there was wilful and mala fide disobedience of the
2 Record page 65
court orders. It has to be considered whether the Applicant discharged the
onus for the relief being sought.
[24] The Applicant needs to prove three requisites namely that a court
order was made, that it was served on the Respondent, and non-compliance.3
The Respondent then has to produce evidence that will establish reasonable
doubt. Failing this, a finding should follow that the Applicant has satisfied
the criminal standard of proof and that contempt was established beyond
reasonable doubt.
[25] This court considered the facts and Respondent's conduct in the
context of what was recorded in paragraphs [18] and [19] above and
concluded that it cannot be found beyond reasonable doubt that the
Respondent intentionally and in bad faith disobeyed the September 2024
Order, particularly paragraph three thereof. In the absence of such contempt
there is no basis for the imposition of a sanction.
[26] Does the above mean that the September 2024 Order has no further
binding effect or consequences? The answer is an emphatic "No'". The
aforesaid Order expressly provided that the December 2019 Divorce Order
remained in place until varied or set aside. Further, the fact that Respondent
was not this time around held in contempt for non-compliance with
paragraph three of the September 2024 Order does not exempt him from
complying therewith. The court has accepted that Respondent initiated the
Maintenance Court proceedings, albeit late, and he remains under obligation
to continue that process. Failure to do so will expose him to another
application for contempt of court and committal.
3 SA Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at [41]
[27] The application is accordingly dismissed with costs, such costs to be
payable on Scale B and to include the costs of counsel.
_____________________________
R.D. BARENDSE
ACTING JUDGE OF THE HIGH COURT
Appearances:
For applicant: Adv T Möller
Instructed by: Riaan Badenhorst Attorneys
For respondent: Adv L Theron
Instructed by: DVN Attorneys