IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
(l) REPORTABL E: No
(2) O F INTERE ST TO OTHER JUDG ES: N o
(3) REVIS ED .
SIGNATURE DATE: 21 November 2025
Case No . 2025-203538
In the matter between:
VM Applicant
and
JM Respondent
JUDGMENT
WILSON J:
1 On 13 November 2025, I gave orders in my urgent Family Court interdicting
the respondent, JM , from executing a warrant of arrest he had obtained in the
Springs Domestic Violence Court against the applicant, VM , pending VM 's
appeal against that order. I also struck from the roll JM's counter-application
for relief compelling VM to give effect to a prior agreement to sell the parties'
2
matrimonial home, and I dismissed an application for leave to intervene
brought by VM’s former attorneys.
2 I gave my reasons for making these orders ex tempore. Shortly after the
hearing, however, I was told that the recording machine in the courtroom I sat
in to hear the case had failed while I was giving judgment, and that my full
judgment ex tempore could not be retrieved. Accordingly, I informed the
parties that my written reasons would be given as soon as this judgment could
be produced. These are my reasons.
3 The parties were married in community of property on 30 August 2004. Their
marriage ended on 18 April 2024, when the Regional Court at Springs issued
a decree of divorce. The Regional Court’s decree divided the marital estate
and determined that the primary residence of the parties’ three minor children
would remain with VM at the erstwhile marital home. VM retained an option to
purchase JM’s share of that property, within three months, failing which the
property would be placed on the open market. VM did not exercise her option
to purchase JM’s property within that time, but still hopes to do so, and is
actively seeking finance to that end. She has not co-operated with JM to place
the property on the open market.
4 VM’s refusal to co-operate with the sale of the property led JM to obtain an
order in the Regional Court authorising him to sell the property without JM’s
co-operation. VM sought to rescind that order. VM approached this court to
stay the sale of the property pending the rescission application, but Fisher J
struck her urgent application from the roll on 3 July 2025. Nevertheless, on 28
3
August 2025, VM’s rescission application was successful, and the order
authorising JM to sell the property without VM’s co-operation was set aside.
5 Undeterred, JM then approached the Springs Domestic Violence Court for a
final protection order, alleging, amongst other things, that VM’s refusal to co-
operate with the sale of the property constituted “economic abuse” within the
meaning of the Domestic Violence Act 116 of 1998. Notwithstanding VM’s
opposition, on 16 October 2025, the Magistrate granted the order sought, and
restrained VM from committing acts of “economic abuse” against JM. As is
apparently usual in these cases, the Magistrate issued a warrant of arrest
which could be executed if VM acted in breach of the order. The Magistrate
did not give his reasons for making such a far-reaching order at the time he
handed it down, but I was told during argument that those reasons were
eventually provided at VM’s request on 13 November 2025.
6 On 17 October 2025, JM’s attorneys threatened to execute the warrant of
arrest if VM “further delay[ed] the transfer” of the property to a purchaser JM
had apparently identified. It was this threat that animated the application which
came before me on 13 November 2025.
7 That application sought to suspend the protection order pending appeal, but
there at least two reasons why that relief could not be granted. The first was
that there was no notice of appeal filed against the order, since VM had elected
not to file such a notice until the Magistrate had given his reasons. The second
problem was that the notice, even if filed, would not have entitled me to
suspend the final protection order, since section 6 (7) (b) of the Domestic
Violence Act provides that an appeal does not on its own suspend the
4
operation of a final protection order. Since a final protection order is to be
treated as an order of the Magistrates’ Court that issued it, the proper course
would have been to approach the Magistrate to suspend the order under
section 78 of the Magistrates’ Court Act 32 of 1944.
8 Nevertheless, on the material presented to me at the time I made my order, I
was driven to the conclusion that final protection order probably did not
authorise JM to have VM arrested merely because she would not co-operate
with the sale of the property. It is not clear on the face of the order whether
VM’s conduct amounted to “economic abuse” within the scope of the Domestic
Violence Act. If the Magistrate thought so, there was no material before me
explaining why he had reached that conclusion.
9 On the face of things, one party’s failure to abide by a settlement agreement
reached in divorce proceedings governing the sale of the matrimonial home
does not amount to economic abuse under the Act. Economic abuse is the
deprivation of financial resources to which a complainant is entitled under law
or requires out of necessity; the disposal of household property or other
property in which the complainant has an interest without the complainant’s
permission; the use of the complainant’s financial resources without
permission; or coercing a complainant to relinquish control over their assets
or income.
10 None of this language grafts easily onto the facts of this case. Perhaps, purely
at a textual level, VM’s failure to co-operate with the sale of the matrimonial
home might be cast as the deprivation of financial resources to which JM is
entitled, but I think that this risks stretching the Act significantly beyond its
5
purposes. Read as a whole, the Act is meant to provide a complaint with
immediate relief from coercive or abusive behaviour. It is not meant to provide
process-in-aid of execution of a decree of divorce, especially since it is open
to JM to execute the decree of divorce in the usual way, by means of civil
contempt proceedings if need be.
11 I was also concerned that no consideration appears to have been given to the
effect of executing the warrant of arrest on the minor children living with VM
at the former marital home. In S v M 2008 (3) SA 232 (CC), the Constitutional
Court required that careful and sensitive regard be given to the impact the
imprisonment of a primary caregiver would have on her minor children. I do
not think that the considerations can be much different when deciding whether
or not to authorise the arrest of a primary caregiver for domestic violence.
12 It was chiefly for these reasons that I decided to restrain the execution of the
warrant of arrest – at least for the purposes of compelling VM to co-operate
with the sale of the house – pending the prosecution of any appeal against the
final protection order. My order provides for that restraint to lapse if an appeal
is not prosecuted within one month. In the appeal, if it proceeds, the proper
scope of the order, the statute that underlies it, and the appropriate weight to
be attached to the fact that VM cares for three of the parties’ minor children,
can be considered at length. For now, the difficulties I have expressed with
the Magistrate’s order seems to me to provide VM with at least a prima facie
right not be to arrested as a domestic abuser for failing to co-operate with the
sale of the matrimonial home, at least until the appeal is determined.
13 JM brought a counter-application to compel VM to co-operate with the sale.
There was no urgency in that application, wh ich I struck from the roll. In any
event, JM has his ordinary civil remedies. He can execute the decree of
divorce in the usual way at any time. In my view, at least prima facie, it is in
civil contempt proceedings that the mean ing of the decree can be ascertained,
and any disobedience of it can be addressed. Domest ic violence proceedings
are, in my view , unfit for that purpose.
14 It remains finally to deal with an application for leave to intervene brought by
VM 's erstwhile attorneys. The basis of that application appears to be that, in
his answering affidavit, JM made allegations to the effect that VM's attorney
had forged, or co-operated with an effort to forge, a Regional Court order
restraining the sale of the property. Neither the details of the allegation nor
their accuracy really matter, since it is trite that mere mention of a person in
legal proceedings does not give that person standing to intervene in them.
Only a direct and substantial interest in the relief sought could do that. VM 's
former attorneys plainly have no such interest.
'V--
SD J WILSON
Judge of the High Court
This judgment was prepared by Judge Wilson. It is handed down electronically by
circulation to the parties or their legal representatives by ema il, by uploading it to the
electronic file of this matter on Caselines, and by publication of the judgment to the
South African Legal Information Institute. The date for hand-down is deemed to be 21
November 2025.
HEARD ON:
DECIDED ON:
13 November 2025
21 November 2025
6
7
For the Applicant: MPT Maluleke
Instructed by Sibuyi Attorneys
For the Respondent: Y Omar
Instructed by Omar Attorneys
For the applicant for K Gobinca
leave to intervene: Mudau M Attorneys