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
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO.: D2272/2024
In the matter between:
L[...] C[...] B[...] APPLICANT
and
A[...] R[...] B[...] RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
The following order shall issue:
1. The application to declare the respondent in contempt of the order of 25
February 2025 is dismissed.
2. The counter-application to declare the applicant in contempt of the order of 25
February 2025 is dismissed.
3. The respondent is directed to pay to the applicant within 14 days of the date of
this order:
(a) R45 000 in relation to the April 2025 rental; and
(b) R120 000 in relation to furniture costs.
4. The respondent undertakes to grant the applicant access to the storage facility
to remove the items contemplated in paragraph 16 of the February 2025 order
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on not less than seven (7) days’ notice, such right to be exercised by the
applicant within one (1) month of the date of this order.
5. The applicant is directed to return to the matrimonial home the following items
within one (1) month of the date of this order:
(a) Black lounge suite;
(b) Coffee table;
(c) Carpet;
(d) Rocking chair;
(e) Wicker chair;
(f) Big Green Egg;
(g) Wooden Carved chair;
(h) Stone side table;
(i) Gold side table; and
(j) Wood side table.
6. There is no order as to costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PUDIFIN-JONES AJ
Introduction
[1] The applicant and respondent are the defendant and plaintiff respectively in
pending divorce proceedings. On 23 February 2025, a consent order was made an
order of this court in a rule 43 application (“ February 2025 order”). The February
2025 order regulated care and contact of the parties’ minor child and made provision
for interim obligations relating to the payment of maintenance for the minor child and
the applicant, as well as various ancillary matters.
[2] On 17 June 2025, the applicant instituted the present proceedings on an
urgent basis (“ main application”). The applicant seeks to declare the respondent in
contempt of the February 2025 order on the basis that the respondent has failed to
make payment of certain amounts due in terms of that order. Although the initial
3
allegations regarding non-compliance were broader, by the time that the matter was
argued on 27 February 2026, the amounts claimed as outstanding were limited to (i)
the April 2025 rental amount of R45 000 and (ii) an amount of R120 000 which was
directed to be paid by the respondent to the applicant in relation to the purchase of
furniture.
[3] The applicant further seeks additional orders:
(a) condoning her failure to remove certain items from a storage facility
within the time period provided in the February 2025 order;
(b) ordering “that despite the terms of the Rule 43 Order, Applicant be
granted the right to relocate to any safe Estate in Ballito”; and
(c) directing that a forensic psychologist be appointed at the cost of the
respondent in relation to the minor child.
[4] The respondent opposes the main application and has launched a counter-
application, in which he seeks to declare the applicant in contempt of the February
2025 order and to direct the applicant to purge her contempt by returning a list of
items specified in Annexures “A” and “B” to the Notice of Motion in the counter-
application, which it is alleged that the applicant has removed from the matrimonial
home contrary to the February 2025 order. The respondent further initially sought an
order directing the applicant to select a psychologist from the list provided by him
pursuant to the February 2025 order, but I was advised that this issue had fallen
away as at the date of argument. The relief in the counter-application was originally
sought in two parts (Part A in which interim relief was sought and Part B for final
relief); however, it was argued before me as an application for final relief.
The February 2025 order
[5] The matter has a complex history, involving multiple interlocutory and
contempt applications, with voluminous papers and a plethora of correspondence
between the respective legal representatives of the parties. I intend to address only
between the respective legal representatives of the parties. I intend to address only
those aspects of the papers which I consider relevant to the issues before me.
[6] At the heart of these proceedings is the February 2025 order. This order
directed the respondent to make several monthly and ad hoc payments to the
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applicant, including a cash contribution of R65 000 per month (para graph 3); to pay
100% of the applicant’s and minor child’s medical aid costs and necessary medical
expenses (para graphs 4 -6); and to pay 100% of the minor child’s educational
expenses including tours and extra -murals (para graphs 7 -8). The order further
provided (and I quote these paragraphs in full as they are the subject of the
contempt proceedings):
‘10. The Applicant is to vacate the matrimonial home, situated at 1[...] L[...], S[...] Estate,
Ballito, KwaZulu-Natal, by no later than 31st May 2025.
11. Pendente lite the Respondent shall pay rent up to R45 000 ( Forty-Five Thousand
Rand) per month on a property of the Applicant’s choice in the S[...] Estate, for the
Applicant and the minor child to reside in.
12. The Applicant shall enter into the lease agreement with the Landlord directly, and the
Respondent shall stand as guarantor for the rental payment up to R45000 per month.
…
14. The Applicant undertakes not to remove any of the bespoke/custom furniture, soft
furnishings, art pieces and appliances from the matrimonial home, situated at 1[...]
L[...], S[...] Estate, Ballito, KwaZulu-Natal.
15. The Applicant will be entitled to remove furniture from the matrimonial home situated
at 1[...] L[...], S[...] Estate, Ballito, KwaZulu-Natal as set out in the list attached hereto
marked annexure “A”. The removal of kitchen contents shall be divided between the
parties as agreed. Towels and linen from Bedroom 1 and [the minor child’s ] bedroom
shall be removed by the Applicant.
16. The Applicant is entitled to remove furniture from the storage unit, save for the
personal items of the Respondent, by no later than 28 March 2025.
17. The Respondent shall provide the Applicant with an amount of R120 000.00 (One
Hundred Twenty Thousand Rand) for the purchase of furniture, within 7 (seven) days
of signing the lease agreement.
…’
The law on contempt
of signing the lease agreement.
…’
The law on contempt
[7] Both parties seek to hold the other in contempt of the February 2025 order. It
is accordingly necessary to set out briefly the legal principles pertaining to contempt.
[8] An order declaring a party to be in contempt of court ex facie curiae (outside
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of a court) encompasses the unlawful and intentional disobedience of a court order,
which undermines the dignity, authority and effectiveness of the courts and thus the
rule of law. 1 In order to constitute contempt, the breach must be wilful and mala fide
– a deliberate disregard of a court order alone is insufficient, since a respondent who
genuinely and in good faith believes themselves entitled to act as they did does not
act with the requisite intention.2 The object of contempt proceedings is both to
impose a penalty that will vindicate the court’s honour and to compel performance in
accordance with the previous order.3
[9] The requirements for establishing contempt are the existence of an order that
must have been duly served on, or brought to the notice of, the alleged contemnor;
non-compliance with the order; and wilfulness and mala fides.4 The applicant must
prove the requisites of contempt beyond reasonable doubt. However , “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.”5
[10] In the present case, there are no disputes around the existence and
knowledge of the February 2025 order. Notwithstanding that this order was issued by
consent, it remains a binding and enforceable order, to which effect must be given.6
[11] The core issue is accordingly whether there was disobedience of such order
by either the applicant or the respondent, and, if so, whether that disobedience was
wilful and mala fide. I address the allegations of the applicant in the main application,
1 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (Fakie) para 6.
2 Fakie para 9.
3 Pheko and Others v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC) para 28.
3 Pheko and Others v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC) para 28.
4 Fakie para 42.
5 Ibid para 42(d).
6 See Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) para 41 where the Constitutional Court
held: ‘Where the parties themselves, through a settlement agreement reached with legal
representatives present on each side, prefer to dispense with the strictures of a rule and request that
the court recognise this preference by means of a consent order, for one party suddenly to perform a
volte-face and demand strict adherence with that self-same rule borders on the ludicrous. Justice
between the two litigants demands that their settlement agreement, which was made an order of
court, must be given effect. After all, a court's duty is to do justice between litigants. In this instance
justice demands that Mr Eke be held to his bargain.’ (Footnote omitted.)
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and the respondent in the counter-application in turn.
The issues in the main application
The April 2025 rental amount
[12] It is common cause on the papers that the respondent has not made payment
of the April 2025 rental amount under paragraph 11 of the February 2025 order.
[13] The respondent denies that he was obligated to do so. He avers that he was
not provided with the signed lease agreement until 8 May 2025 (despite the fact that
it had been signed on 25 February 2025) and that he was entitled to have sight of
the agreement before acting on his obligations. The respondent further claims that,
since the applicant was only obliged to vacate the matrimonial home on 31 May
2025, he was not obliged to pay for rental unreasonably in advance of that date. The
respondent has paid the rental amounts from May 2025 onwards.
[14] I am satisfied that the respondent was obliged, under the February 2025
order, to pay the April 2025 rental. Had the respondent wished to make it clear that
he would only pay for rental from May 2025 onwards, this ought to have been
provided for in the consent order. It was not. Moreover, the respondent has now
been provided with the signed lease agreement and has made payment from May
2025 onwards. His refusal to do so for April 2025 is not justified.
[15] However, I do not consider that the applicant has met the threshold of
establishing that the respondent’s default in relation to the April 2025 rental was
wilful or mala fide. There is sufficient doubt raised by the respondent regarding his
conduct that I cannot find that the respondent was in contempt.
[16] I accordingly intend to order that the respondent pay the R45 000 outstanding
in relation to April 2025 rental.
The furniture payment
[17] The respondent admits that he has not paid R120 000 to the applicant as
required by para graph 17 of the February 2025 order in relation to the purchase of
furniture. He again denies that he is liable to do so. In his Answering Affidavit he
furniture. He again denies that he is liable to do so. In his Answering Affidavit he
asserts, first, that he had set -off these amounts against certain expenditure that he
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alleges the applicant had incurred on his credit card; and second, that he was not
obliged to make payment because the applicant had failed to comply with her
reciprocal obligations under the order inasmuch as she had taken additional furniture
out of the matrimonial home, contrary to paragraphs 14 and 15 of the order, and had
failed to remove the furniture from the storage facility as contemplated in paragraph
16 of the order.
[18] I do not agree that the respondent’s obligations under paragraph 11 of the
February 2025 order are conditional. On the contrary, the fact that the R120 000
payment was due within seven days of the lease agreement being signed indicates
that the respondent was obliged to make payment prior to the applicant moving out
of the matrimonial home.
[19] As regards set -off, the orders in the February 2025 order are maintenance
orders which are not liable to be set off against other debts .7 Notably, in the
Answering Affidavit, the respondent tendered to pay the R120 000 to the applicant
should the advice he had received in relation to set -off not be correct. I intend to
order this payment.
Access to the storage unit
[20] The applicant’s need for condonation in relation to access to the storage unit
has fallen away. Mr Potgieter SC for the respondent confirmed in his oral address
that the tender that the applicant may remove the items from storage on seven days’
notice remains in place, and I intend to make an order to that effect.
The relocation relief and the forensic psychologist
[21] The applicant seeks the following further orders in the Notice of Motion in the
main application:
‘5. That, despite the terms of the Rule 43 Order, Applicant be granted the right to
relocate to any safe Estate in Ballito.
6. That the Respondent be liable for the costs of a Forensic Psychologist, to be
appointed within 7 days of the court order granted.’
7 See M.D.N v S.D.N [2020] ZAWCHC 157 paras 23-25 and the authorities cited therein.
8
[22] In argument before me, Mr Stadler for the applicant asserted that the
relocation relief was not, strictly speaking, a variation of the February 2025 order, but
rather that it was relief that I should grant in my broad discretion, taking into account
the best interests of the minor child.
[23] I do not agree. Properly construed, the relief in prayer 5 is a variation of the
February 2025 order, and accordingly the applicant was required to make out a case
for materially changed circumstances under Uniform rule 43(6). The applicant has
failed to do so. Nor am I able to conclude from the papers before me that it is in the
minor child’s best interest to move out of the S[...] Estate.
[24] In any event, there is a further insuperable difficulty for the applicant in
relation to this relief. In November 2025, a further interlocutory application was
launched in which the applicant sought a formal variation of the February 2025 order.
Amongst others, the applicant sought orders permitting her to move with the minor
child to Kloof and directing the appointment of a forensic psychologist in relation to
the child. During the November 2025 proceedings, the issue of lis pendens was
raised by the respondent (in relation to the relief sought in these proceedings). The
applicant stated the following on oath in her Founding Affidavit in the November
2025 proceedings:
‘In as far as the Respondent will raise lis pendens in respect of my right to freedom
of movement and the appointment of a forensic auditor, I abandon prayers 5 and 6 of
the notice of motion attached hereto as annexure “C”.’
That Notion of Motion relates to the present proceedings.
[25] The applicant has accordingly unequivocally abandoned her right to seek the
prayers sought in prayers 5 and 6 of the Notice of Motion.
The issues in the counter-application
[26] In the counter-application, the respondent seeks to hold the applicant in
contempt of the February 2025 order and seeks an order directing the applicant to
contempt of the February 2025 order and seeks an order directing the applicant to
return the movables listed in Annexures “A” and “B” to the Notice of Motion in the
counter-application. Annexure “A” lists various items described as having “significant
sentimental value” to the respondent; and Annexure “B” pertains to items which are
9
alleged to have been removed by the applicant from the matrimonial home without
the respondent’s consent and contrary to the February 2025 order.
[27] The respondent has drawn up the Annexure “B” list based on a comparison of
the current items in the matrimonial home with photographs taken after the
renovation of the matrimonial home in 2020. He alleges a value in excess of
R630 000 in relation to the furniture that was removed from the matrimonial home by
the applicant.
[28] The applicant, in her Answering Affidavit in the counter-application states this
to be a gross over -exaggeration and claims that, given the age of the items in
question (between 6 ½ and 16 years old), the value of the Annexure “B” items is
around R43 570. She denies further that she has unlawfully removed items from the
matrimonial home; explaining that she only removed items which are either personal,
inherited or items which had been given or gifted to her during the course of the
parties’ 20 -year pe rsonal relationship. In addition, the applicant explains that she
removed certain items of furniture that she required in order to establish a home for
herself and the minor child. She asserts, too, that the bulk of the items in question
remain in her possession, and that there has been no intentional dispossession,
stating that at all times she has acted in the best interest of the minor child.
[29] There is a clear dispute of fact in relation to certain of the items and whether
or not they were removed from the marital home. There are also disputes as to
whether the items form part of the marital estate, or belong solely to the respondent,
or indeed to the applicant. This is not something that I can resolve on the papers
before me. These questions will form part of the issue s to be resolved in the divorce
trial in due course.
[30] During the hearing, the applicant undertook that she would return ten items to
the matrimonial home that she admitted that she had taken in order to establish a
the matrimonial home that she admitted that she had taken in order to establish a
home for herself and the minor child. I intend to hold the applicant to this undertaking
and order the return of these items.
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Costs
[31] Both parties sought costs from each other. In my view, both parties have
achieved some success and will undoubtedly feel some disappointment at the
outcome of this application. It is appropriate that there is no order as to costs.
Order
[32] I grant the following order:
1. The application to declare the respondent in contempt of the order of
25 February 2025 is dismissed.
2. The counter-application to declare the applicant in contempt of the
order of 25 February 2025 is dismissed.
3. The respondent is directed to pay to the applicant within 14 days of the
date of this order:
(a) R45 000 in relation to the April 2025 rental; and
(b) R120 000 in relation to furniture costs.
4. The respondent undertakes to grant the applicant access to the
storage facility to remove the items contemplated in paragraph 16 of
the February 2025 order on not less than seven (7) days’ notice, such
right to be exercised by the applicant within one (1) month of the date
of this order.
5. The applicant is directed to return to the matrimonial home the
following items within one (1) month of the date of this order:
(a) Black lounge suite;
(b) Coffee table;
(c) Carpet;
(d) Rocking chair;
(e) Wicker chair;
(f) Big Green Egg;
(g) Wooden Carved chair;
(h) Stone side table;
(i) Gold side table; and
(j) Wood side table.
6. There is no order as to costs.
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_________________________
PUDIFIN-JONES AJ
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Case Information
Date of Hearing : 27 February 2026
Date of Judgment : 05 March 2026
Appearances
Counsel for the Applicant : Mr S Stadler
Instructed by : Adams & Adams
c/o PM Law Inc.
410 Main Road, TL Samuel Centre
Office 8A, Escombe
Queensburgh
c/o Messenger King
Heerajh Ghazi Attorneys
6th Floor, Royal Towers
30 Dorothy Nyembe Street
Durban
: Tel: 012 436 6155
: Ref: SVN/jdw/F1267
: Email: Shani.vanNiekerk@adams.africa
Counsel for the Respondent : Mr A E Potgieter SC
Instructed by : Benita Ardenbaum Attorneys
1st Floor, 2nd Building
98 Armstrong Avenue
La Lucia Ridge
13
Durban
: Tel: 031 536 6000
: Ref: Mrs Ardenbaum/KBailey-Hill
: Email: office@baatorney.co.za