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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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable / Reportable
Case no: 4599/2024
In the matter between
R[…] V[…] H[…] APPLICANT
And
S[…] P[…] V[…] H[…] RESPONDENT
Neutral citation: V[…] H[…] v V[…] H[…] (4599.2024) [2026] ZAFSHC 94 ( 11 March
2026)
Coram: NAIDOO J
Heard: 5 June 202 5
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand-
down is deemed to be 11h00 on 11 March 2026.
Summary: Rule 43 order breached – contempt of court proceedings and counter
application for variation of Rule 43 order in terms of r ule 43(6) – no changed
circumstance exist and no exceptional circumstances shown to invoke s 173 of the
Constitution – counter application dismissed – application for contempt of court granted.
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ORDER
____________________________________________________________________________________
1 The respondent is found to be in contempt of the court order issued out of this
Court, in terms of Uniform Rule 43, on 10 October 2024, under the hand of Acting
Judge De Kock (the Rule 43 order);
2 The respondent is sentenced to 90 days’ imprisonment, which is suspended for
three (3) months on condition that the respondent complies with the Rule 43 order;
3 Leave is granted to the applicant to approach this court on the same papers, duly
amplified, to put into operation the suspended term of imprisonment, mentioned in para
2 above, should the respondent fail or neglect to comply with the Rule 43 order;
4 The counter application is dismissed with costs
5 The costs of the contempt of court application shall be costs in the cause.
JUDGMENT
____________________________________________________________________________________
Naidoo J
[1] The applicant obtained an order in terms of Uniform Rule 43, in terms of which
the respondent was ordered to pay interim maintenance to the applicant and a
contribution to her legal costs. He w as also ordered to facilitate the removal by the
applicant of household items, from the communal home, which the applicant required.
He did not comply with the order . The applicant launched the current application for an
order finding the respondent to be in contempt of the court order and sanctioning him
with imprisonment (the main application) . The respondent opposed the application and
filed a counter application seeking the dismissal of the main application and an order
varying the Rule 43 order by deleting the paragraphs directing him to pay spousal
maintenance and the contribution to the applicant’s legal costs. The applicant opposed
the counter application. The respondent further sought the striking out of certain
portions of the applicant’s opposing affidavit (to the counter application) and replying
portions of the applicant’s opposing affidavit (to the counter application) and replying
affidavit in the main application, but subsequently abandoned thi s quest. I will,
accordingly, not deal further with this aspect. I pause to mention that this is a bitter and
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acrimonious marital dispute.
[2] The applicant sought the following relief in the main application:
a the respondent be found in contempt of the court order of this court issued by
acting judge De Kock on 10 October 2024 (the Rule 43 order);
b the respondent be com mitted to imprisonment for 90 days or such other period
as the court may deem fit;
c Alternatively, the imposition of any other form of penal ty that the court may deem
fit;
d Suspension of the term of imprisonment referred to in (b) or the penalty imposed
in (c) above for such period as the court may determine, on condition that the
respondent complies with the Rule 43 order;
e Leave be granted to the applicant to approach this court on the same papers,
duly amplified, for putting into operation the suspended period of imprisonment , in the
event that the respondent fails or neglects to comply with the alternative prayer in (c)
above;
f Costs of the application.
[3] For completeness, I set out the terms of the Rule 43 order:
‘
1. The respondent shall pay maintenance in the amount of R33 000.00 per month
pendente lite, which excludes payment of the medical aid of the applicant currently paid by
Rene Boerdery Trust. The first payment be on the first of November 2024 and thereafter on
each first day of each succeeding month.
2. The respondent shall make a contribution towards the applicant’s legal costs in the
amount of R10 000 within 10 days of this order.
3. The respondent shall cooperate at(sic) facilitating the retrieval of household items that
the applicant reasonably requires to furnish her residence, from the communal home. The
parties are ordered to make the necessary arrangements within 10 days of this order.
4. Cost of this application shall be costs in the cause.’
As I indicated earlier, the respondent failed to comply with the Rule 43 order, hence the
applicant launched this application.
[4] The applicant’s version is that shortly after the Rule 43 order was granted, her
[4] The applicant’s version is that shortly after the Rule 43 order was granted, her
attorneys wrote to the respondent’s attorneys on 16 October 2024, providing the latter
with the details of their bank account, into which the respondent was required to pay the
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R10 000.00 in respect of his contribution to the applicant’s legal costs . The r esponse
from the respondent’s attorneys, on the same day , was that the respondent’s view was
that the Rule 43 order w as patently wrong and unjust and cannot be complied with, as
the respondent was not a beneficiary of the Rene Boe rdery Trust and cannot use the
Trust as his personal ‘war chest’. He offered to pay the contribution to legal costs off, at
the rate of R300.00 per month. The applicant’s response was that the order was
granted against the respondent and if he did not comply, the applicant would seek a
contempt of court order against him. The applicant and respondent are co- trustees of
the Rene Boerdery Trust (the Trust) and the Envan Boerdery Trust (Envan). On 30
October 2024, immediately before the respondent was d ue to commence payment of
maintenance in terms of the R ule 43 order, he removed the applicant’s signing powers,
as a trustee, on the bank accounts of those two trusts , without a resolution from the
trustees of the two trusts, authorizing such action.
[5] The Trust had also been paying for the applicant’s medical aid. Her attorneys
wrote to the respondent’s attorney advising that the monthly premium in respect of the
medical aid had been increased. This was done on the basis that the respondent is the
person who has authority to operate the Trust ’s bank account. He responded that he
was not ordered by the court to pay the medical aid premium and that the Trust had
never paid the medical aid. The applicant stated that the amount was, however , paid to
her and she paid the medical aid. Similarly, with regard to the retrieval of household
assets that the applicant required, she alleges that the respondent packed certain items
into bags and left them outside the home, and the applicant was not allowed access into
the communal home. She alleged that she did not receive all the items she had
requested. A slew of correspondence was exchanged between the parties’ legal
requested. A slew of correspondence was exchanged between the parties’ legal
representatives in this regard, and reasons why the applicant could not have certain
items. I do not deem it necessary to go into the details of their squabbles over specific
items. It appears that the applicant did receive some items pendente lite, and whatever
disputes remain will surely be resolved when the divorce action is dealt with.
[6] The thrust of the respondent’s opposition is that he does not have the financial
means to comply with the Rule 43 order , as he receives a modest income from the
Trust, which covers his basic expenses. He is not a beneficiary of that Trust or the other
trusts mentioned in the papers ; he is only a trustee. For this reason, he is of the view
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that the Rule 43 order is patently wrong and unjust . The respondent acknowledges that
there is no change in circumstances on which he relies for requesting a variation of the
order. He alleges that the exceptional circumstances in which he finds himself , which
prohibit his compliance with the Rule 43 order , are what he relies on. What is evident
from his version, is that he has financial control of the various trusts, even though the
applicant is a co-trustee or director of an entity which allegedly owns some of the assets
she claims are marital assets. The respondent detailed what is allegedly the precarious
financial position of the Trust.
[7] He also gave extensive details of the assets which he uses and benefits from,
but which belong to one or other entity which he ostensibly manages in the capacity of
trustee or director. From this he attempts to demonstrate that he has no personal assets
or income to maintain the applicant or contribute to her legal costs. The respondent,
according to him, is a trustee of E nvan, which sold the property it owned to the South
African Government, and the proceeds of the sale were transferred to the Trust . Envan
holds a 25% shareholding in an entity called Sebenzani Farming Gr oup (Pty) Ltd, which
is allegedly a dormant company . Envan has no significant income stream, he argues.
The respondent is also a trustee of the SP V […] H[…] Trust , which has no income
stream, but which owns a property on which the applicant’s mother resides rent-free. He
is a director of an entity known as De Pan Boerdery (Pty) Ltd (De Pan), which owns the
two farms it leases to another farmer and for which it receives rental of R400 000.00 per
month. He receives no financial benefit from De Pan as all rental income had been used
by the ‘Trusts’ to conduct ‘its’ farming operations. It is noted that no specific details are
provided as to who controls the operations and finances of these various entities , but
provided as to who controls the operations and finances of these various entities , but
the tone of his narrative suggests that he does. It is also evident that millions of Rands
are generated by these various entities each month, but the respondent alleges that he
receives no income for the work he does for and on behalf of these entities.
[8] The respondent as I indicated, brought a counter application in which he sought
the following relief:
‘1. The main application to be dismissed with costs.
2. The Rule 43 order granted by the Honourable Acting Judge De Kock be varied by the
deletion of:
2.1 Paragraph 1, directing the payment of spousal maintenance; and
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2.2 Paragraph 2, directing the payment of a contribution towards the applicant’s costs.
3. Costs of the Counter Application.’
It warrants mentioning that t he answering affidavit to the main application was also the
founding affidavit in the counter application.
[9] I will deal briefly with the applicant’s exposition in her replying affidavit , which
was also the opposing affidavit to the counter application. She reiterated what she said
in her founding affidavit and responded to the allegations made by the respondent in his
answering affidavit, particularly that he used the Trust and other entities as his personal
bank account. I will merely cite a few of such responses . She disputed the number of
sheep allegedly leased by the Trust , claiming it was a lesser number than claimed by
the respondent. She also indicated that the responden t sold three truckloads of sheep
during December 2024 and January 2025. All this was done without a proper resolution
by the trustees, demonstrating the respondent’s unilateral use of trust assets as though
they were his personal assets. The applicant further alleged that the Trust appeared to
have other banking or investment accounts and tabulated a list of transactions, which
she claimed proves her allegations. In addition, she countered the respondent’s
allegations regarding the Trust’s precarious financial position by arguing that the c ourt
cases he referred to were already dealt with in the Rule 43 earing, as was the issues
with the lease of the ewes. There is therefore nothing new in the respondent’s
answering affidavit and the circumstances remain unchanged since the granting of the
Rule 43 order.
[10] The applicant further alleges that the Trust receives rental income from leasing
out its property. However, t he lease agreement was enter ed into by the respondent,
without a proper resolution by the trustees. The applicant pointed out various expenses
without a proper resolution by the trustees. The applicant pointed out various expenses
reflected on the bank statements of the Trust, which indicated that the respondent was
using the trust funds to pay personal expenses . She listed a number of expenses from
August 2024 to January 2025, as appear on the Trust’s bank statements, many of which
were clearly personal or household expenses, as well as expenses incurred in different
parts of the Cape Province, and a few in other provinces. The respondent apparently
visited the parties’ daughter in Cape Town in August 2024. He made three more trips to
Cape Town between December 2024 and January 2025. She also put up documents
which she alleged was proof that certain of the respondents medical expenses were
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paid to the service provider from the Trust’s bank account. The applicant provided
various other examples which, she argued, indicate that the respondent uses the Trust’s
bank account as his personal account.
[11] The narrative continued in this vei n, with the applicant providing information,
supported by documentation, to counter the allegations of the respondent , creating a
picture of him as someone who continues to treat Trust monies as his own. The
applicant repeatedly asserted that these issues were all c anvassed at the Rule 43
hearing. The respondent clearly confirms this, when regard is had to the opening
paragraph under the heading in his answering affidavit marked ‘The Factual Context in
Respect of My Financial Position’, which is at para 8 and reads ‘The facts set out below
are not new to these proceedings; They were fully ventilated in my affidavit in opposition
to the applicant’s Rule 43 application . . .’ He ostensibly repeated the facts to
underscore that his failure to comply with the Rule 43 order was not wil lful or deliberate
disobedience, but due to an inability to meet the payment obligations imposed by the
Rule 43 order . Elsewhere, he again repeated that the issues were canvassed and
debated at the Rule 43 hearing.
[12] The respondent’s counter application is brought in terms of r ule 43(6) , which
provides that: ‘The court may, on the same procedure, vary its decision in the event of a
material change occurring in the circumstances of either party or a child, or the
contribution towards costs proving inadequate’. The respondent alleges that he seeks a
variation of the Rule 43 order on the basis that the order is patently wrong and
manifestly unjust. As I indicated, t he respondent concedes that the counter application
is not predicated on a change in circumstances, but on exceptional circumstances.
Where there are no changed circumstances, he argued, the court can still vary a rule 43
Where there are no changed circumstances, he argued, the court can still vary a rule 43
order in terms of the inherent power conferred by s 173 of the Constitut ion of South
Africa. The respondent referred the court to S v S and Another .
1 There, the
Constitutional Court held:
‘There may be exceptional cases where there is a need to remedy a patently unjust and
erroneous order and no changed circumstances exist, however expansively interpreted. In
those instances, where strict adherence to the rules is at variance with the interests of justice, a
court may exercise its inherent power in terms of s 173 of the Constitution to regulate its own
1 S v S and Another [2019] ZACC 22; 2019 (6) SA 1 (CC) para 54-58.
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process in the interests of justice’.2
[13] The respondent has re peated in this application much of what was said in the
papers and argued before the court in the Rule 43 application. The respondent’s alleged
exceptional circumstances were canvassed and considered by the court hearing the
Rule 43 application, which then issued the Rule 43 order. The role of this court is to
consider the merits of the main application and the counter application in the context of
the Rule 43 order. What the respondent attempts to do is oblige this Court to delve into
trust law and make a finding that , in terms thereof, the Rule 43 order is patently wrong
and unjust. In my view, that amounts to this Court reviewing the judgment of the Rule 43
court and setting aside the order it has made, ultimately resulting in this Court
performing an appellate function, which is impermissible in law, and cannot, in my view,
be read into r ule 43(6). The respondent has not asked for a variation of the Rule 43
order by reduc ing the amount of the maintenance or the contribution towards legal
costs. He seeks a setting aside of such order under the guise of a ‘variation’.
[14] The purpose of a rule 43 order is to provide a speedy and inexpensive remedy –it
is interim in nature and is granted pending the finalization of the divorce action. Any
inconvenience or difficulty is usually cured in the divorce proceedings, where the court
is able to entertain detailed evidence regarding the financial position of the parties,
enabling it to make a n order which more accurately reflect s the needs and means of
each party. Section 16(3) of the Superior Courts Act 10 of 2013 stipulates that orders in
terms of Rule 43 are not appeala ble. Although the constitutionality of this section was
challenged in
S v S, it was found to pass constitutional muster. The constitutionality of rule 43 is not in
issue in this matter. It appears that the respondent is attempting to cir cumvent the non-
issue in this matter. It appears that the respondent is attempting to cir cumvent the non-
appealability of the Rule 43 order and to extend the parameters of rule 43 by asking the
court to read into rule 46(3), that the exceptional circumstances exist in this matter ,
which would trigger the provisions of s 173 of the Constitution. Such a contention, in my
view, is unsustainable. The counter application, therefore, falls to be dismissed.
[15] I turn now to the main application. Both parties have correctly alluded to the
requirements to be met by the applicant with regard to contempt of court proceedings .
2 Ibid para 58.
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The applicant is required to prove that a court order exists, that the order has been
brought to the knowledge of the respondent and that the respondent has not complied
with the order. Once the applicant has established these elements, will fulness or mala
fides on the part of the respondent is presumed. The evidentiary burden then shifts to
the respondent to show that there was no willful disobedience of the order or that he did
not act in bad faith. In this matter, it is common cause that the applicant has established
all the elements required of her. The respondent has conceded this. He then bore the
burden of showing that his non- compliance with the Rule 43 order was not will ful or
mala fide. He claims that he has no assets nor the financial means to pay the
maintenance he was ordered to do.
[16] Approximately a week after the order was granted, the respondent’s view was
that the order was patently wrong and unjust. A day before he was due to make the first
maintenance payment in terms of the Rule 43 order, he unilaterally rem oved the
applicant as a signatory to the bank accounts of the Trust and Envan, of which she was
a co- trustee. No resolution of trustees authorising this action was produced. The
respondent, after claiming that he could not pay the maintenance ordered, offered to
pay R300 per month toward his contribution to the applicant’s legal costs. The applicant
pointed out that there was a court order in place, and he was required to comply with it.
The respondent took this as a rejection of his offer, completely ignori ng the existence of
the court order and failing to comply with his obligations in terms thereof . In my view, if
he genuinely intended to pay the amounts ordered but only to the extent he could
afford, he would have paid the amounts to the applicant or her attorney, as he was
provided with the latter’s banking details.
[17] Up to the time of the hearing of this matter, he made no payments at all in terms
[17] Up to the time of the hearing of this matter, he made no payments at all in terms
of the Rule 43 order. He suggested that the applicant , as a trustee of the Trust , should
take a loan from the Trust to cover her expenses. The Rule 43 order was made against
him. There is evidence on record that he utilized the money of the Trust for personal
expenses, but that it was reflected as a loan account in the books of the Trust , to
alleviate the tax burden (presumably on him and on the Trust). If he respected the court
order, even though he thought it was wrong, he would have utili sed his own loan
account in the Trust, or in one of the many other entities whose finances he controls, to
honour the court order , which the law obliges him to do. Even if he did so in part, it
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would have demonstrated his bona fides. As an astute businessman, he would have
known that this was a logical option open to him. I can only conclude that his conduct
indicates an intentional and deliberate non-compliance with the Rule 43 order . The
respondent’s actions, furthermore, lend credence to the applica nt’s allegation that the
respondent threatened to ruin her financially , evidencing deliberate and wi llful conduct
on his part. I am satisfied that the applicant has shown beyond reasonable doubt that
the respondent is in willful default of the Rule 43 order.
[18] I refrain from dealing with the specifics of the various allegations about the
involvement of the parties in the numerous entities I have mentioned, their alleged
conduct in respect of those entities , their conduct towards each other and the many
other acrimonious allegations levelled at each other. Such are not relevant for the
determination of the applications before me.
[19] In the circumstances, I make the following order:
1 The respondent is found to be in contempt of the court order issued out of this
Court, in terms of Uniform Rule 43, on 10 October 2024, under the hand of Acting
Judge De Kock (the Rule 43 order);
2 The respondent is sentenced to 90 days’ imprisonment, which is suspended for
three (3) months on condition that the respondent complies with the Rule 43 order;
3 Leave is granted to the applicant to approach this court on the same papers, duly
amplified, to put into operation the suspended term of imprisonment, mentioned in para
2 above, should the respondent fail or neglect to comply with the Rule 43 order;
4 The counter application is dismissed with costs
5 The costs of the contempt of court application shall be costs in the cause.
________________________
S NAIDOO
JUDGE OF THE HIGH COURT
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Appearances
For the Applicant: Adv JC Coetzer
Instructed by: Honey Attorneys
Honey Chambers
Northridge Mall
Bloemfontein
(Ref: M Van Aardt)
For the Respondent: Adv WA Van Aswegen
Instructed by: McIntyre Van Der Post
12 Barnes Street
Bloemfontein
(Ref: BCH109/LHW Cato/jb)