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
(GAUTENG DIVISION, PRETORIA)
CASE NO: 54516/2018
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
16 October 2025
DATE SIGNATURE
K[...] S[...] S[...] APPLICANT
and
C[...] P[...] S[...] RESPONDENT
____________________________________________________
JUDGMENT
____________________________________________________
This judgment is handed down electronically by uploading it onto the
electronic file of this matter on caselines. As a courtesy, it will also be
sent to the parties’ legal representatives by email. The date of the
judgment will be presumed to be 16 October 2025`.
BASSON AJ
INTRODUCTION:
1. This is an application for compliance with a maintenance order
granted by this court in Rule 43 proceedings on 25 March 2019 and
the purging thereof failing which Respondent be committed to
prison (the “Contempt Application”).
BACKGROUND:
2. Applicant, a s Plaintiff, instituted divorce proceedings against
Respondent, as Defendant on 2 October 2018.
3. The parties were married on 20 August 2012, out of community of
property with the exclusion of the accrual system as provided for by
the provisions of Chap ter 1 of the Matrimonial Property Act, 88 of
1984.
4. Two children were born from the marital relationship namely a
daughter, on 18 May 2008 and a son on 5 March 2014.
5. Applicant, in the divorce proceedings, claimed a decree of divorce
and ancillary relief for inter alia rehabilitative maintenance,
maintenance for the two children (the “children”) born from the
marriage between the parties and payment of the children’s medical
costs and school fees.
The Rule 43 application:
6. Applicant, simultaneously with the divorce action instituted Rule 43
proceedings wherein she asked that the Primary residence of the
children remain with her, that Respondent be ordered to (a) pay
maintenance for the children a t R4 500.00 per month per child, (b)
pay maintenance for her at R3 000.00 per month, (c) keep her and
the minor children on his medical aid and pay the expenses in
respect thereof, (d) pay all the minor children’s school fees and
ancillary expenses and mak e a contribution to wards her legal costs
in the sum of R7 500.00.
7. Respondent defended the divorce action and opposed the Rule 43
application. It is necessary to, in some detail, expound on the
background facts and of what evolved after both the action and the
Rule 43 became defended.
8. Respondent, in his sworn reply to the Rule 43 Application asked that
the primary residence of the minor children be awarded to him,
alternatively that the family advocate investigate the primary
residence issue of the children. He tendered (pending the process)
to continue to pay the children’s medical aid, their transport and
school fees , clothing (in the sum of R500.00 which included their
school uniforms) and R1 000.00 per month towards groceries.
9. I find the tender of Respondent of R1 000.00 per month for
groceries, in light of the relief sought by him, peculiar. Respondent
nowhere (in his sworn reply) insis ted that the Applicant contributes
towards the payment of groceries. One can only but marvel at the
insuffiency of this tender.
10. Respondent’s penuriousness is underscored by the vague manner in
which he dealt or failed to deal with certain material facts in, not
only his sworn reply, but also other and later affidavits submitted.
11. What Respondent forlornly failed to address in his sworn reply is
inter-alia whether the payment of the medical aid for the children
in- or excluded costs and expenses not covered by his medical aid ,
whether or not the transport fees included only transport fees to
and from school or whether it included other transport fees in
respect of extramural and extracurricular activities, whether the
payment of school fees included or not, other school related
expenses such as after -school tuition, after-school activities, other
school related costs or extracurricular expenses , whether the
R500.00 per month for clothing and the R1000.00 per month for
groceries is in respect of both children, or not.
12. Respondent, not to be outdone, launched a counter application in
the Rule 43 proceedings wherein he inter-alia sought that the
primary care of the minor children be awarded to him . The counter
application was not entertained.
13. Council for Applicant, during argument in the contempt Application
submitted that it is evident that Respondent only sought that the
primary residency of the children be awarded him in order to avoid
the payment of monetary maintenance to Applicant in respect of her
and the children.
14. Both parties, in their sworn statements made disclosure of their
respective financial positions . The application served before the
Honourable Mr Justice Hiemstra AJ on 25 March 2019 when the
learned judge ordered Respondent to:
10.1 pay maintenance in respect of:
10.1.1 the children of R4 000.00 per month, per child from
1 April 2019;
and
10.1.2 Applicant at R1 000.00 per month from 1 April 2019;
10.2 “5. …….. contribute ……… towards the maintenance
requirements of the applicant and the minor children:
5.1 By retaining the Applicant and the minor children, at his
costs, as dependants on his current medical aid scheme,
or a scheme with analogous benefits and by paying the
monthly premiums (and any escalations) timeously on
due date. The Respondent shall also bear the costs of all
reasonable expenditure in respect of medical, dental,
surgical, hospital, orthodontic and ophthalmological
treatment needed by the children and not co vered by
the medical aid scheme, including any sums payable to
a physiotherapist, occupational therapist, speech
therapist, psychiatrist and chiropractor, the costs of
medication and the provision, where necessary of
spectacles and/or contact lenses;
5.2 by effecting payment of the children’s educational costs,
such costs to include, without limiting the generality of
the aforegoing, all crèche fees, school fees (primary and
secondary), additional tuition fees, the costs of
extracurricular school and sport ing activities, school
outings, camps and school tours (including the travel
and accommodation expenses related thereto) and the
costs of all extramural activities in which the children
participate, as well as the costs of books, stationary,
school uniform s, equipment and attire relating to the
children’s education and their sporting and/or extra
mural activities engaged in by them, as well as
transport costs for the children to go to school and
back.
6. That the Respondent shall make an initial contribution of
R7 500.00 towards the Applicant’s legal costs, payable
in equal monthly instalments of R500.00 per month.
The first payment to be made on or before 1 April 2019
and thereafter on or before the first day of each and
every succeeding month.
(the “Rule 43 Order”)
15. Respondent, by his own admission, did not comply with the Rule 43
order. This prompted Applicant to launch the present contempt
application which application Respondent, (at all relevant times duly
represented) opposed. After the Rule 43 Application order was
made, Respondent embarked on peculiar a pplications which will
briefly be dealt with below.
16. Before I therefore turn to the contempt application, I deem it
apposite to briefly refer to the steps taken by Respondent after the
granting of the Rule 43 order.
The Maintenance Court application:
14. The first of these was an application embarked upon by the
Respondent in terms of the Maintenance Act, 99 of 1998 (the
“Maintenance Act”).
15. Respondent, barely a week after the Rule 43 order, on 2 April 2019
approached the Maintenance Court, Pretoria North in terms of
Section 6(1)(b) of the Maintenance Act for the substitution or
discharge of the Rule 43 order.
16. Respondent therein asserted that good cause existed for the
substitution of the Rule 43 order and asked that it be substituted
with an order to the effect that he pays no maintenance toward s
Applicant or the minor children but only contribute (without
mentioning any amounts) towards the minor children’s school fees,
medical aid, school transport and school wear and expenses in
respect of sport or cultural activities.
17. It is not clear, from a reading of the papers, what the outcome of
this application was save that Respondent in his Answering Affidavit
to the contempt application stated that the Maintenance Officer
advised him to conclude the High Court matter before app roaching
the Maintenance Court.
18. In the result the Rule 43 order of Justice Hiemstra AJ stood.
The variation application:
19. Respondent attached to the contempt application, as annexure
“COC1”, an inchoate application to his Answering Affidavit. Therein
he sought a variation of the Rule 43 order (the “Variation
Application”). The last pages of the Variation Application did not
form part of the papers before me and it would therefore not be
deduced from the papers in what sense is sought the variation of
the Rule 43 order.
20. The Contempt application was issued on 5 September 2019 . From
the return of service it seems that it was served on Respondent on
10 October 2019. The Variation Application, is dated and was issued
on 9 October 2019 and served on Applicant’s attorneys on 11
October 2019. Despite Applicant’s statement in her replying affidavit
in the contempt application that there was no merit in the Variation
Application and that her oppo sition thereto was fully set out in her
response to the Variation Application, the answering affidavit to the
Variation Application did not form part of the papers that served
before me. Despite also Applicant’s indication that she would
request the court to adjudicate the Variation Application
simultaneously with the contempt application, this did not happen.
Nothing however turns on this.
21. It is evident that the Variation Application is not brought in terms of
Rule 43(6) . Because it contains no alleg ation of changed
circumstances nor was substantive proof submitted that there was a
material change in circumstances. It is also not clear whether this
application is premised on the provisions of Rule 42 or the common
law.
22. It can therefore be safely stated that, at the time when the
contempt application was heard, Respondent has not prosecuted the
Variation Application to finality. This seems to be the case because
reference was made in the Rule 6(11) application that the Variation
Application still needed be finalised.
23. What Respondent however stated in his answering affidavit to the
contempt application was that he could, due to financial constraints,
not proceed with the Variation Application. This was the same
explanation proffered in his Rule 6(11) application.
24. Respondent also, whilst conceding that the Variation Application was
late by some five (5) months, attempted to, in unintelligible fashion
explain that he had to prioritise the Variation Application because
“commonsense will dict ate that the variation must be heard first
before this (the contempt) application.”.
25. He also in similar vein further asserted that Applicant w ill not suffer
any prejudice because of the late filing of the papers because the
contempt application “ will not be heard before the variation and
again the applicant was also late in filing the answering affidavit on
my variation application as she will h ave ample time to file a
replying affidavit if she wishes.”
26. Respondent also asserted that he set out his bona fide defence to
the contempt application in his Variation Application. Upon scrutiny,
no defence to the relief sought in the contempt application, could be
found. Also, and despite again referring to the Variation Application
in the Rule 6(11) application, no defence was disclosed. Respondent
again failed to give an indication of the status of, or stage of the
Variation Application.
27. Ms Schoeman on behalf of Applicant, during argument submitted
that the Variation Application was but a further ploy to further
frustrate the finalisation of the process and further delay matters. It
was also argued that this was the same reason the Rule 6(11) was
launched at the eleventh hour. She also convincingly argued that it
was clear that the Respondent did not have a genuine appetite to
pursue the Variatio n Application and that it was but a further
attempt to delay payment and frustrate the consequences of the 43
Order.
The Rule 6(11) application:
28. Respondent, on Tuesday 9 May 2023 (the contempt application was
to be heard on 15 May 2023 ), had a voluminous 341 page
application titled “ Notice in terms of Rule 6(11) ” served on
Applicant’s attorneys . Therein (but for condonation sought for the
late filing thereof), he also sought leave to fi le the voluminous
supplementary affidavit. In the process he asked that Applicant pay
the costs of the application if she elected to oppose it.
29. In respect of this application, the following. Whilst there is no
prescribed form of notice of motion for i nterlocutory applications,
and whilst R ule 6(11) simply provides that ‘notwithstanding the
aforegoing subrules, interlocutory and other applications incidental
to pending proceedings may be brought on notice supported by
such affidavits as the case may req uire and set down at a time
assigned by the registrar or as directed by a judge’ as well as that
the somewhat cumbersome procedure proscribed Rule 6(5) need
not be followed by the parties, it is still trite that a reasonable
period need be afforded an oppo nent to oppose the application.
Failing this, an Applicant runs the risk of affording his/her opponent
insufficient time to oppose the application with the resultant
consequences such as a postponement and/or an adverse order for
costs..
30. In this instance no such courtesy was afforded Applicant. The court
was simply asked to grant condonation and allow the voluminous
supplementary affidavit. Despite not being granted this courtesy
Applicant’s legal representatives, in the little time afforded them,
prepared a comprehensive response thereto. The response was
electronically served on the Respondent’s attorneys on 11 May
2023 and delivered to them, by hand on 13 May 2023.
31. It is clear from the papers filed of record that Respondent delivered
his answering affidavit to the contempt application on 12 May 2020
(almost three (3) years before the contempt application was to be
heard) already. In turn, Applicant delivered her Replying Affidavit in
the contempt application on 28 September 2020. This was some
two (2) years and eight (8) months before the application in terms
of Rule 6(11) was delivered.
32. Despite the enormous lapse of time and despite Respondent, in
detail, setting out in the Rule 6(11) application certai n expenses he
incurred on behalf of the minor children during 2020 and 2021, he
failed to advance any reason or explanation for not trying to rectify
this at an earlier stage or for the late filing thereof.
33. In fact, Respondent blamed the lateness of the application (in an
effort to get condonation) “[ for] the simple reason that I was not
able to file the same earlier due to financial constraints.” This was
incidentally the same reason given in the Variation Application.
34. What Respondent endeavoured to do, is to attach to his affidavit
the Rule 6(11) application, reconciliations which he referred to as
“expense reports” identified by the abbreviation “ER”. In these
reconciliations numerous references are made to items title d “cash
allowances” allegedly made to provide for the children’s school
activities, food and personal care. In the process a multitude of,
what appears to be receipts and proofs of Electronic Funds
Transfers (“EFT”), was attached.
35. In his (brief) affid avit Respondent found time to still apportion
blame to Applicant for failing to finalise the divorce proceedings. In
the process he also accused her of being opportunistic in launching
the contempt application whilst stating that if he is to be
incarcerated, it will be to the detriment of the children. In the
process, the simultaneously vaguely asserted that he still intended
to continue with the rescission of or the variation of the Rule 43
order. As already stated, Respondent at no stage gave any
indication as to the status of this application. What however did is
to make mention of a delictual claim he intended instituting against
Applicant because of her extra marital relationship from which a
child was born and which she had registered under his name.
36. What is concerning is that it is clear that the Rule 6(11) application
was signed on 5 May 2023 already and the affidavit on 7 May 2023.
Yet it was only served on Applicant’s legal representatives on 9 May
2023. As already stated, this afforded Applica nt little, if any time to
comprehensively respond to the application. These actions
immediately raises the question why Respondent could not, as soon
as the notice of motion and affidavit was finalised, provide
Applicant’s legal representatives with an unsigned copy.
37. Respondent (or at least his legal representative) knew from 24 July
2019) that a contempt application was in the making when he was
warned of this in the aforesaid letter. A copy of this letter was
attached to the Founding Affidavit as annexure “FA2”.
38. Ms Schoeman, correctly so in my view, submitted that the lateness
of the Rule 6(11) application was deliberate and th at it was done in
a further attempt to further derail the contempt application and
scupper the continuation of the process.
39. Despite the voluminousness of the Rule 6(11) application and the
plethora of receipts and EFT’s attached to the affidavit, he f ailed to
indicate whether, if at all, he complied with, or purged or attempted
to comply with or purge the Rule 43 order.
40. Froneman J in Foster v Stewart Scott Inc.1 stated that:
“it is well settled that in considering applications for
condonation the court has a discretion to be exercised
judicially upon a consideration of all the facts. The relevant
considerations may include the degree of non-compliance with
the rules, the explan ation thereof, the prospect of success on
appeal, the importance of the case, the Respondent’s interest
in the finality of the judgment, the convenience of the court
and the avoidance of unnecessary delays in the administration
of justice, but the list is not exhaustive. These factors are not
individually decisive but are interrelated and must be
weighted one against the other. A slight delay and a good
explanation for the delay may help to compensate for
prospect of success which are not strong. Conversely , very
good prospect of success on appeal may compensate for an
otherwise perhaps adequate nation and long delay.”
41. Southwood AJA in Price Waterhouse Coopers Inc. and Others v
National Potato Co-operative Ltd2 held that:
“It has long been recognised in South Africa that a court is
entitled to protect itself and others against the abuse of its
process, but now all-embracing definition of ’abuse of process’
has been formulated. Frivolous or vexatious litigation has
1 (1997) n18 ILJ 367 (LAC).
2 [2004] 3 ALL SA 20 at para 50.
been held be an abuse of process and it has been said that
‘an attempt made to use for Alteri purposes machinery
devised for the better Administration of Justice’ would
constitute an abuse of the process. In general, legal process is
used properly when it is invoked for the vindication of the
rights or the enforcement of just plain’s and it is abused when
it is diverted from its true course so as to serve extortion or
oppression; or to exert pressure so as to achieve an improper
end. The mere application of a particular court procedure for a
purpose other than that for which it was primarily intended is
difficult of mala fides.” (References to authorities omitted).
42. Ponnan JA in Dentenge Holdings (Pty) Ltd v Southern Sphere
Mining and Development Company Ltd and O thers3 expressed
the well -known approach to condonation as follows by concluding
that factors are relevant to the exercise of a discretion to grant or
refuse condonation include:
“the degree of non-compliance, the explanation therefore, the
importance of the case , a Respondent’s interest in the finality
of the judgment of the court below, the convenience of this
court and the avoidance of unnecessary delay in the
administration of justice’.
3 [2013] 2 ALL SA 251 (SCA) at para 11,
43. The aforesaid factors are not individually decisive but are
interrelated and must be weighed against each other . The reasons
(only reason) provided by Respondent for non —compliance was
“[for] the simple reason that I was not able to file the same earlier
due to financial constraints.”
44. The degree of non -compliance with the Rules by Respondent, the
total lack of any explanation therefore, the importance of the case
for Applicant, the convenience of the court and the improper use of
legal process for, what can only be described as an effort to oppress
and inconvenience. This is to be frowned upon.
45. I, during argument expressed serious reservations about the
lateness of and the manner in which the Rule 6(11) application was
introduced to court. I therefore, after having heard argument ruled
that condonation will not b e granted and that the supplementary
affidavit will not be allowed.
46. I indicated that I would reserve the matter o f costs until the end to
be dealt with simultaneously with the order made in respect of the
contempt application. I will deal with this below.
The contempt application:
47. The three (3) elements for the test for contempt that need exist for
an application of this kind is the existence of a valid Court order,
knowledge thereof and non-compliance therewith.
48. It is common cause that Respondent was aware of the exact nature
and ambit of the Rule 43 order granted on 25 March 2019. His legal
representatives were present in court when the matter was argued
and pronounced upon. Prove of knowledge of the order is tha t
Respondent’s attorneys shortly after the order was granted on 25
March 2019, communicated with Applicant’s attorneys and, in a
letter informed them that Respondent intended to apply for a
variation of the order and/or the reduction of the Maintenance.
49. The Respondent, barely a week after the Rule 43 order was
granted, approached the Maintenance Court to have the order
amended.
50. It is alleged that Respondent has been in default of the court order
since 1 April 2019 and is not contributing towards t he maintenance
of the minor children. This is not disputed in the Answering Affidavit
to the contempt application or the Variation Application.
Respondent only in the Rule 6(11) application made vague
references to “cash allowances to provide for school ac tivities, food
and personal care” in respect of the minor children.
51. The only “defence” proffered by Respondent was that he is not in a
financial position to comply with the order and that he was, because
of this, not in wilful default or mala fide. R espondent advanced no
other reason, explanation or excuse.
52. Contempt of court proceedings exist to protect the rule of law and
the authority of the judiciary. It is not an issue between the parties
but rather an issue between the port other party who has not
complied with a mandatory order of Court.
53. Such proceedings are a recognised method of putting pressure on a
maintenance defaulter to comply with his or her obligation.4
54. The Constitutional Court in Bannatyne held that:
“Although money judgements 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.”
55. It is now trite, as expressed by the Cameron JA in Facie v C CII
Systems (Pty) Ltd ,5 that the standard of proof to be applied was
proof beyond reasonable doubt. The learned Judge of Appeal
summed the position up as follows:
4 Bannatyne v Bannatyne (Commission of Gender Equality, as Amicus) 2003 (2) SA
363 at para 20.
5 2006(4) SA 326 (SCA).
“(a) The civil contempt procedure is a valuable and
important mechanism for securing compliance with
court orders, and survives constitutional scrutiny in
the form of a motion court application adapted to
constitutional requirements.
(b) The respondent in such proceedings is not an ''accused
person'', but is entitled to analogous protections as are
appropriate to motion proceedings.
(c) In particular, the applicant must prove the requi sites of
contempt (the order; service or notice; non -
compliance; and wilfulness and mala fides) beyond
reasonable doubt.
(d) But once the applicant has proved the order, service or
notice, and non -compliance, the respondent bears an
evidential burden in relation to wilfulness and mala
fides: Should the respondent fail to advance evidence
that establishes a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will
have been established beyond reasonable doubt.
(e) A declarator and other appropriate remedies remain
available to a civil applicant on proof on a balance of
probabilities.”
56. In determining whether the Respondent is guilty of contempt of
court the following requirements as set out in Compensation
Solutions (Pty) Ltd v Compensation Commissioner [2016]
ZASCA 59 should be proved:
“The question which then arises is whether the Applicant
proved that the Commissioner’s failure to comply with the
[consent order] amounted to civil contempt of court, beyond a
reasonable doubt to secure his committal to prison. An
Applicant for this type of relief must prove (a) the existence of
a court order; (b) service or notice thereof; (c) non -
compliance with the terms of the order, and (d) wilfulness and
Mala fides beyond reasonable doubt. But the respondent
bears an evidentiary burden in relation to (d) to adduce
evidence to rebut the inference that is non -compliance was
not wilful and mala fide. Here, requisites (a) to (c) were
always common cause. The only q uestion was whether the
Commissioner rebutted the evidentiary burden resting on
him.” (Own emphasis)
57. As in Compensation Solutions , the only question in casu was
whether the Respondent rebutted the evidentiary burden resting on
him.
58. Mokgoro J in Bannatyne noted:
“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. The Judiciary must
endeavour to secure for vulnerable children and
disempowered women their small but life -sustaining legal
entitlements. If court orders are habitually evaded and defied
with relative impunity, th e justice system is discredited and
the constitutional promise of human dignity and equality is
seriously compromised for those most dependent on
the law.”
Further on learned Justice of the Constitutional Court also
said:6
“Compounding these logistical difficulties is the gendered
nature of the maintenance system. The material shows that
on the breakdown of a marriage or similar relationship it is
almost always mothers who become the custodial parent and
have to care for the children. This places an additional
financial burden on them and inhibits their ability to obtain
remunerative employment. Divorced or separated mothers
accordingly face the double disadvantage of being
overburdened in terms of responsibilities and under-resourced
in terms of means. Fathers, on the other hand, remain
6 Id in para [29].
actively employed and generally become economically
enriched. Maintenance payments are therefore essential to
relieve this financial burden.” (Own emphasis)
59. The Constitutional Court has al so warned against recalcitrant
maintenance defaulters who use legal processes to sidestep their
obligations towards their children. The Constitutional Court stated
this as follows:
“Courts need to be alive to recalcitrant maintenance
defaulters who use leg al 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 store these maintenance obligations through the
machinery of the Act. It appears from the evidence of the CGE
that this happens frequently in the maintenance courts. The
hardships experienced by maintenance complaints need to be
addressed in the proper implementation of the provisions of
the Act is a matter that calls for urgent attention of the
Department of Justice.”7
7 Bannatyne supra para 32.
60. In this matter, Respondent initially approached the Maintenance
Court for a variation of the order. When he failed, he did nothing
and waited until the application for his contempt was prepared and
served whereafter he prepared a Variation Application and simply
attached that application to his Answering Affidavit.
61. In the interim period awaiting the contempt application to be heard,
Respondent again rested on his laurels and did nothing to advance
the Variation Application. It was only when the contempt application
was served on him that he was galvanised into action but took no
further steps to advance the Variation Application.
62. Then, literally 3 court days before the contempt application was to
be heard, the voluminous application in terms of rul e 6(11) was
served on Applicant’s legal representatives leaving them with little
time to prepare a response. Respondent did not have the courtesy
to forewarn or to provide Applicant’s legal representatives with an
unsigned or unattested copy in order for t hem to timeously prepare
thereon. This is, in my view, an opportunistic snatching at an
opportunity that amounts to an abuse of process in order to, as
Applicant’s counsel argued, further delay and frustrate the legal
process.
63. A reading of the papers directs to an arrogance of the Respondent
that boils down to contempt. On his own version he did not comply
with the court order allegedly because of a lack of funds. The
Respondent was initially employed (when divorce proceedings
ensued) in a senior managerial position by the Auditor General. He,
during the course of the litigation, took up employment with a
private firm . Yet he did not, after the initial disclosure in his
response to the Rule 43 Application , disclose his new occupa tion
and/or income.
Costs:
64. The only aspect that remains is the issue of costs. In light of the
totality of all the circumstances and the Applicant’s wanton conduct,
my view is that the non -compliance with the Rule 43 order is
manifestly inappropriate.
65. Given the Respondent’s co nduct as expounded upon above and the
compromising of the Applicant’s and the minor children’s best
interests as well as this Court’s integrity, his continued opposition
and attempts to avoid the matter being finalised can only be viewed
as “so unreasonable or out of line that it constitutes an abuse of
process.”8 Accordingly, the Applicant should pay the Respondent’s
costs.
66. What remains to be determined is the scale of such costs. In Nel9
the court held, in relation to punitive cost orders:
“A cost order on an Attorney and client scale is an extra
ordinary one which should not be easily resorted to, and only
when by reason of special considerations, arising either from
the circumstances which gave rise to the action or from the
conduct of a party, should a court in a particular case deem it
just, to ensure that the other party is not out of pocket in
respect of the expense caused to it by the litigation.
As such, the order should not be granted lightly, as courts
look upon such orders with disf avour and are loathe to
penalise a person who has exercised the right to obtain a
judicial decision on any complaint such party may have .”
(References omitted)
67. This sentiment was emphasised by the Labour Appeal Court in
PCASA.10
8 Lawyers for Human Rights v Minister in the Presidency 2017 (1) SA 645 (CC);
2017 (4) BCLR 445 (CC) at paragraph 20.
9 Nel v Davis SC [2017] JOL 37849 (GP) at Paras 25-26.
10 Plastic Converters As sociation of South Africa (PCASA) obo Members v National
Union of Metalworkers Union of South Africa [2016] JOL 36301 (LAC) (PSASA) at
paragraph 46.
68. This matter however, is the kind of matter where a punitive order
of costs would be justified. Neglecting the Applicants and minor
children’s best interests and the failure to honour the Rule 43 order
that sought to ensure those interests are protected and preserve
this Court’s core integrity is precisely the kind of “extraordinary”
conduct worthy of a court’s rebuke with punitive sanctions.
69. Adding to those transgressions, the manner in which the
Respondent conducted himself and his failure to apprise this court
of any efforts to remedy his conduct whilst seeking to, in a
continuous manner, at the last minute bring applications whilst
disregarding due court process, is a further basis warranting
punitive costs.
70. The Respondent must accordingly pay the costs of the Applicant on
an Attorney and client scale. This cost order is applicable to the
proceedings in both the Rule 6(11) application and the contempt
application.
Conclusion:
71. On the conspectus of all the facts I find that the Applicant ha s
shown, beyond a reasonable doubt that the Respondent has
intentionally avoided complying with the Rule 43 order. Put
otherwise, in my view the Respondent has failed to rebut the
inference that he was not wilful and mala fide.
72. Under the circumstances, I make the following order:
1. The Respondent is declared to be in contempt of the court order
of Hiemstra AJ dated 25 March 2019.
2. The Respondent is committed to imprisonment for contempt of
court for a period of ninety (90) days which committal is
suspended in its entirety for a period of two (2) years on
condition that the Respondent fully complies with the order
granted on 25 March 2019 within seven (7) days from the
granting of this order.
3. Should the Respondent fail to comply with paragraph two (2) of
this order:
3.1 The performance and execution of the writ of Committal
for contempt of court is hereby authorised;
3.2 The Respondent should submit hi mself to the South
African Police Services, Brooklyn, failing which the
South African Police Services should take all necessary
steps to ensure that the Respondent is delivered to the
Head, Correctional Services in Pretoria in order to be
committed in terms of this order.
4. The Respondent is ordered to pay the costs of this application
which includes the costs incurred by the applicant in the Rule
6(11) application on an attorney and client scale which costs
should include the costs of Counsel as marked per brief.
J G W Basson
Acting Judge
High Court Division, Pretoria.
Counsel for Applicant: Adv J Schoeman
Attorney for Respondent: Mr Pillay