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, PRETORIA
CASE NO: 2025 - 211382
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE
MOKOSE SNI
In the matter between:
N[...] L[...] C[...] Applicant
and
M[...] N[...] C[...] Respondent
JUDGMENT
MOKOSE J
[1] The applicant approaches this court on an urgent basis, seeking an order that
the respondent be declared to be in contempt of a divorce order granted in the
Regional Court sitting at Pretoria on 10 April 2024. Furthermore, she seeks an order
that the respondent’s contact rights in respect of their minor daughter be suspended
pending the outcome of an investigation by the Office of the Family Court and that
any contact between the respondent and the minor child be exercised under
supervision of a social wor ker. The applicant also seeks an order that the minor
child commence therapy.
[2] The respondent denies that he is contempt of the court order and seeks an
order that the penal relief sought be denied and that the court denies the order
sought for interim supervision of contact rights. In the alternative, the respondent
seeks an expedited Family Court investigation while maintaining the existing contact
regime.
[3] The parties were divorced on 5 April 2024 in the Regional Court sitting at
Pretoria. A settlement agreement was concluded by the parties and incorporated
into the divorce order. The settlement agreement dealt with the parties’ patrimonial
arrangements as well as the minor child’s care and contact rights and maintenance.
In particular, the settlement agreement granted the primary residence to the
applicant and rights of contact were granted to the respondent wherein the
respondent would spend alternat ive weeks commencing on Friday at 16h00 to
Sunday 17h00 with the minor child. The settlement agreement further granted the
respondent the right to spend 7 (seven) days during December with the Respondent
and that the December holidays be arranged in such a way that the minor child
spends every second December with the other party. The settlement agreement
also authorised the parties to deviate from such order pertaining to the contact rights
as they saw fit to assist one another.
[4] Initially, the respondent exercised bi -weekly contact rights in respect of the
minor child. However, the parties agreed to the minor child spending one evening
sleepover with the respondent in a weekend. The applicant contends that this has
become the norm due to the insistence of the respondent who has a domineering
and aggressive personality despite her reservations.
[5] The applicant contends that despite an arrangement having been made as
stated above, she started having concern s over the safety of the minor child in the
respondent’s care for a whole weekend. These concerns were born from allegations
respondent’s care for a whole weekend. These concerns were born from allegations
of the respondent having a propensity to frequently abuse alcohol and spending
most weekends at friends’ houses without proper attention being given to the best
interests of the minor child. Furthermore, she contends that the respondent
punishes her by treating the minor child poorly.
[6] She contends that she discussed her concerns with the respondent on
various occasions and the practicality of weekly over -night visits and suggested that
they revert to the bi -weekly arrangement however, this resulted in the respondent
arriving at her home without notice to collect the minor child.
[7] The applicant described certain incidents that the respondent had been
involved in including road -rage incidents, driving recklessly even in a game reserve
with the minor on his lap. She also described an incident where he would give the
minor child a hiding from not falling asleep as quickly as he would have wanted.
Overall, his behaviour had become more aggressive not only with her but with the
minor child. The applicant is of the view that such behaviour is concerning and has
influenced the minor child’s behaviour. In particular, she has been in altercations of
a physical nature at school. Furthermore, the minor child has recently found
pleasuring herself in front of the television, which actions must be considered with
other incidents such a finding the respondent masturbating in the garage, meters
away from the minor child whilst watching pornography.
[8] The applicant further contends that she is constantly threatened with arrest by
members of the South African Police Services for being in contempt of a court order,
which allegations of contempt are untruthful. The applicant is of the view that the
respondent relishes in the idea of her arrest without considering the impact of such
an action if it were to occur.
[9] The respondent contends that the application lacks urgency and that in any
event, the applicant has failed to make out a case for the relief soug ht. He contends
that her papers are devoid of the necessary primary facts and consist of bald
averments which are nothing more than characterisation of the respondent and her
own conclusions which allegations do not constitute evidence.
own conclusions which allegations do not constitute evidence.
[10] I will determine firstly whether the matter is urgent in the circumstances. The
court is obliged in its determination of urgency to interrogate the allegations of the
parties in the papers and decide whether the matter should be heard on an urgent
basis. In terms of Rule 6(12)(b) of the Uniform Rules of Court a party seeking urgent
relief must set out explicitly in his affidavit, the circumstances which render the
matter urgent with full and proper particularity and must also set out the reason why
he or she would not be afforded redress at a later date.
[11] The applicant avers that she will not get redress in due course should this
court not hear the matter on an urgent basis. The respondent’s behaviou r is getting
mor aggressive so too are the untruthful allegations made to the South African Police
Services and that he will do anything to have her arrested. She further avers that the
minor child is being exposed on a regular basis to similar aggression and the
unbecoming behaviour of the respondent as well as the age-inappropriate behaviour
around the minor child.
[12] I have considered the allegations and counter -allegations by both parties and
am of the view that the matter is sufficiently urgent for it to be given the required
attention. Matter s pertaining to minor child ren are inherently urgent and must be
treated with the necessary urgency that they deserve.
[13] Secondly, I will deal with the relief that has been sought, and which seems not
to be in contention between the parties. That is the order sought that the minor child
commence play therapy within 3 days of the granting of the order and that the
respondent be ordered to pay for such therapy. It seems that the respondent is not
averse to such an order and says in his answering affidavit that he denies that he
has refused play therapy for the minor child. Furthermore, an email was sent to the
applicant’s attorneys o f record confirming his support of such therapy however, he
requested that he be involved in the decision thereof. Accordingly, the relief sought
is granted pertaining to the therapy.
[14] The applicant further seeks an order that the respondent be declared in
contempt of the order granted by the Regional Court sitting at Pretoria on 10 April
contempt of the order granted by the Regional Court sitting at Pretoria on 10 April
2024. The applicant contends that in terms of Clause 3 of the settlement agreement,
the respondent was ordered to purchase her half share of the immovable property
for an amount of R300 000,00. The respondent was further ordered to see to the
arrangements of releasing the applicant from the operation of the bond and transfer
the property into his name. The applicant further contends that to date, the
respondent has not executed the order pertaining to the transfer of the property and
has also not paid the total amount due to her, there being an amount of R90 000,00
outstanding. Furthermore, the applicant contends that the respondent failed to pay
maintenance for two months amounting to the sum of R17 000,00 in respect of
maintenance for February and March 2025.
[15] The respondent admits that the transfer of the property to his name has not
been finalised and avers that what is outstanding in respect thereof is the building
plans which the applicant is obliged to pay a share thereo f as she was a half -share
owner in the property and that these were costs to be borne by all owners of the
property. Furthermore, and in respect of the maintenance, he denies that he is in
arrears as alleged and explains that the maintenance being pursued by the applicant
is respect of December 2024 and January 2025 when the parties were attempting to
reconcile and lived with him in the former matrimonial home. At such time he
covered all expenses pertaining to the minor child.
[16] All citizens and residents of the Republic of South Africa have a duty to
respect and abide by the laws of the country. In the matter of Secretary of the
Judicial Service Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of State v Zuma and Others 1 it was
held that ‘courts unlike other arms of State………rely solely on the trust and
confidence of the people to carry out their constitutionally mandated function which is
to uphold, protect and apply the law without fear or favour. Disregard of court orders
is an attack on the very fabric of the rule of law.’
[17] The requirements for contempt of court are trite. They are the existence of a
court order; the contemnor must have knowledge of the court order; there must be
non-compliance with the court order; and the non -compliance must have been wilful
non-compliance with the court order; and the non -compliance must have been wilful
and mala fides. Once the first three elements have been shown, wilfulness and mala
fides will be presumed, and the evidentiary burden shifts to the contemnor. Should
the contemnor (the respondent) fail to discharge this burden, contempt would have
been established.
1 2021 (5) SA 327 (CC) at para 1
[18] The parties are ad idem that the order was indeed granted by the Magistrate.
The respondent admits knowledge of the Court order, and there is clearly a partial
compliance of the court order in that he has failed to pay the balance of the amount
of R90 000,00 and also that he has not taken transfer of the immovable property .
This is not in dispute between the parties.
[19] The settlement agreement signed by the parties states that the respondent
(plaintiff in those proceedings) will be responsible for all transfer and bond
cancellation cost (sic) to transfer the half portion of the applicant ( defendant in those
proceedings) to the respondent . The respondent contends that the costs of the
building plans should also be borne by the applicant and it is for this reason that he
has failed to furnish the balance of the amount due to the applicant. He explains that
he has been unable to transfer the property for the same reason. There is no
suggestion of a contribution on the part of the applicant for the building costs in the
settlement agreement. Furthermore, the parties were aware of the issue pertaining
to the building plans long before the settlement agreement was signed. If the parties
had intended that the applicant contributes to the building plans, surely it would have
been inserted as a condition in the settlement agreement. One may not unilaterally
re-interpret, vary or suspend a court order. In the case of Matjhabeng Local
Municipality v Eskom Holdings Limited 2 it was held that substituting one’s own view
of an order for the court’s order is in itself contemptuous.
[20] I have also considered the answering affidavit pertaining to the issue of
maintenance and am of t he view that the respondent has failed to pay maintenance
as alleged. No proof of payment of the amount was furnished to the court,
furthermore, no proof of an agreement of set -off of the amount had been agreed to
furthermore, no proof of an agreement of set -off of the amount had been agreed to
by the parties. Accordingly, I am of the view that that the respondent’s non -
compliance and his interpretation of the clause in the settlement agreement is in
itself contemptuous.
2 2018 (1) SA 1 (CC) at para 53 to 55
[21] The applicant further seeks an order from the court that the respondent’s
contact rights be suspended pending the outcome of the Family Advocate’s report
and a report back to this court . The applicant furthermore seeks an order that the
respondent be entitled to contact with the minor child under the supervision of a
registered social worker, the cost of which should be borne by the respondent
himself.
[22] As state above, the applicant described events which led her to believe that it
is not in the best interests of the minor child that the respondent exercises his rights
of contact without the supervision of a registered social worker . The respondent
denies this and contends that the applicant discloses no proper basis on which to
suspend or subject his contact rights to supervision. He contends further that a
substantial portion of the founding affidavit consists of historical events some of
which are not corroborated . These include allegations such as those of leaving the
minor child unattended in a bath. As proof of his relationship with the minor child,
evidence was also furnished to the court of a loving relationship between th e
respondent and the minor child.
[23] The incidents must be looked at in totality. However, these incidents are at
the very least disconcerting especially where some allegations were not denied such
as the allegation that he watched pornography in a room where the minor child could
easily have accessed. But the best interests of the minor child need to be re-visited
and re-assessed by this court. I am of the view that it is also not in the minor child’s
best interests that contact between them should immediately cease however, an
assessment needs to be done in view of the allegations before this court. It is also in
the applicant’s belief that the minor child should have a relationship with her father
however, an assessment should be done.
[24] The applican t has suggested to the court that Ms Jana van Jaars veld, an
[24] The applican t has suggested to the court that Ms Jana van Jaars veld, an
educational psychologist, be appointed to do the assessment of the best interests of
the minor child which could be done on an urgent basis, thus f urnishing the court
with a report . There was no opposition by the respondent to that suggestion and
accordingly, an order to that effect will be made.
[25] In light of the allegations before this court and the order sought pertaining to
the contact of the minor child by the respondent in the interim period , I am of the
view that the incidents alleged give rise for concern. Accordingly, the contact rights
of the respondent every second Saturday and Sunday be exercised under
supervision of a social work, the costs of which must be borne by the respondent.
However, an order is made further that there must be daily telephonic contact with
the minor child between the hours of 19H00 and 20H00.
[26] In terms of Clause 4.4 of the settlement agreement, the parties agreed that
the minor child shall spend 7 days during the December holiday with the respondent.
In view of the concerns raised by the court, the minor child shall continue to spend
the 7 days with the respondent, albeit under the supervision of a social worker and
between the hours of 09H00 and 17H00.
[27] The applicant further seeks an order for costs of the application including the
costs occasioned by the postponement of the matter on 19 November 2025. The
respondent contends that he was ready to proceed on the said date and that,
accordingly, should not be mulcted with the costs of that day.
[28] The general rule pertaining to costs is that the successful party should be
awarded costs. This rule should not be departed from unless there are good
reasons for doing so.
[29] The matter was to be heard on 19 November 2025 however, counsel for the
applicant was busy with another matter before another judge in the morning when
we were ready to proceed. He appeared in court later that day when counsel for the
respondent intimated that the replying affidavit had been filed late resulting in them
not having had enough time to consider its contents. Furthermore, Advocate May,
on behalf o f the respondent sought consent from the court to file a further affidavit
which he had prepared in support of the impending h earing. This consent was
which he had prepared in support of the impending h earing. This consent was
granted with consent for a further affidavit being filed by the applicant if so sought.
The applicant also filed a further affidavit in response to the response to the replying
affidavit. This resulted in the matter being postponed to 26 November 2025.
[30] In view of the fact that the parties were not ready to proceed on 19 November
and further requested an opportunity to file further papers, I am of the view that each
party bears its own costs for the appearance on 19 November 2025.
[31] Accordingly, the order granted is as follows:
1. That this application be heard as an urgent application in accordance with the
provisions of Rule 6(12) of the Uniform Rules of Court and that the
requirements pertaining to service and time periods be dispensed with.
2. The minor child shall commence with play therapy within 3 days of the
granting of this order which costs shall be borne by the respondent.
3. That the respondent is in contempt of the order granted by the Regional Court
sitting at Pretoria of 10 August 2024 in respect of paragraphs 3 and 5.
4. The respondent is ordered to comply with the said order within 60 days of the
granting of this order failing which he shall be committed to imprisonment for a
period of 60 days.
5. The respondent shall pay the sum of R90 000,00 to the applicant being the
amount outstanding in terms of the settlement agreement as per paragraph 4
of the order above.
6. Ms Jana van Jaarsveld is appointed to prepare a report in the best interest of
the minor child, which report shall be filed by 7 February 2026 . The costs of
such report to be borne by the respondent.
7. Pending the finalisation of the report, the respondent shall be entitled to the
following contact with the minor child:
7.1 Daily telephonic contact with the minor child between the hours of 1 9H00 and
20H00;
7.2 Contact on alternative Saturdays and Sundays from 09H00 to 17H00 under
the supervision of an independent social worker , the costs of which are to be
borne by the respondent;
7.3 Holiday contact with the minor child for a week during December 2025 which
contact is to be exercised under the supervision of an independent social
worker between the hours of 09H00 and 17H00 each day , the costs of which
worker between the hours of 09H00 and 17H00 each day , the costs of which
are to be borne by the respondent.
8. Each party to bear its own costs for 19 November 2025.
9. The respondent is to bear the costs of the application on a party and party
scale.
______________________
SNI MOKOSE J
Judge of the High
Court of South Africa
Gauteng Division,
PRETORIA
For the Applicant: Adv S Stadler
On instructions of: Adams & Adams Attorneys
For the Respondent: Adv A May
On instructions of: Naude Attorneys Inc
Date of hearing: 19 and 26 November 2025
Date of judgment: 5 December 2025