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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
GAUTENG DIVISION, PRETORIA
Case No. 011890/24
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 30 March 2026
SIGNATURE
In the matter between:
M[...] M[...]
Applicant
and
J[...] M[...]
Respondent
_________________________________________________________________________________
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NEUKIRCHER J:
1] The parties in casu were previously married. Two minor children were born of
their marriage. The marriage irretrievably broke down and on 27 November 2018 the
court granted a decree of divorce and the parties’ settlement agreement (the
Agreement)1 was made an order of court.
2] The paragraphs of the Agreement pertinent to the issues before me are set
out in paragraph 2 of the Agreement, and they read as follows:
“2.1 The Defendant undertakes to pay maintenance in respect of the two minor
children…at the rate of R10 000.00 per month per child from the 1 st day of the
first month subsequent to the granting of a final decree of divorce and on or
before the 1 st day of each and every successive month thereafter, which
maintenance shall be paid by the Defendant directly to the Plaintiff or at such
other place as the Plaintiff may, from time to time, advise the Defendant in
writing…
2.2 Over and above the payment of maintenance as aforesaid, the Defendant
hereby undertakes to, as soon as the minor children are enrolled in a pre -
primary school, to pay an amount proportional to the parties’ respective gross
incomes in respect of the TWO minor children’s reasonable pre -primary
school fees, primary school fees and secondary school fees [at a private
school unless specifically otherwise agreed upon between the parties in
writing], prescribed school books, prescribe[d] school stationery, prescribed
school uniforms, prescribed school tours, reasonable after care school fees,
reasonable extramural activities [limited to two activities per annum, unless
otherwise specifically agreed upon between the parties in writing], and
1 Signed on 7 September 2018
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reasonable extramural activity equipment, which expenses the Defendant
shall pay directly to the appropriate service provider and deliver documentary
proof of the payment thereof to the Plaintiff on demand.
2.3 …
2.4 The amount payable in paragraph 2.1 above, shall escalate annually on the
anniversary of the date of the divorce, by the percentage change in the
Headline Consumer Price Index [“CPIX”]…”
3] It is also common cause that:
a) the respondent has never applied CPI to the maintenance he pays in
terms of clause 2.1 of the Agreement;
b) the parties have yet to determine the “amount proportional to the
parties’ respective gross incomes” in respect of the children’s schooling
and other listed school -related expenses as set out in clause 2.2 the
Agreement.
4] It is common cause that, as from the end of May 2019, and by agreement
between them, the respondent began to deduct R3 000 from the cash portion of the
maintenance payable in terms of clause 2.1 of the Agreement. The R3 000
represented the applicant’s contribution towards the children’s school fees 2 until her
proper pro rata portion was properly calculated.
5] The applicant alleges that the respondent was to have applied the following
CPI rates to the maintenance payable:
2 Payable in terms of clause 2.2 and as an interim measure
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a) 1 December 2019 = 4.1%
b) 1 December 2020 = 3.3%
c) 1 December 2021 = 4.3%
d) 1 December 2022 – 6.7%
e) 1 December 2023 = 6.3%3
6] Unfortunately, the source of the information was neither identified nor
corroborated by an expert who had properly calculated the resultant maintenance
increases. The respondent denies the applicant’s calculations and has attached a
report penned by Mr Gilbey of Gilbey Forensic and Financial Services. It is
unfortunate that no confirmatory affidavit by the author of this report was attached to
the respondent’s affidavit either. The point is that neither party gives an inch vis -à-vis
the calculation.
7] The applicant alleges that, as a result of the respondent’s failure to increase
the maintenance payable by the relevant CPI yearly, he is in willful default of the
court order and she seeks the following relief:
a) that he be found to be in contempt of court;
b) that he be committed to jail for a period of six months suspended on
condition that he complies with the order of 27 November 2018 within
14 days of the date of contempt order.
8] The respondent has filed a counter-application in which he seeks, inter alia:
3 The CPI rates were only available until October 2023
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a) to vary, retroactively and as from 27 November 2018, paragraph 2.2 of
the Agreement by deleting the words “proportional to the parties’
respective gross income” and to substitute it with “equal to 50%”; and
b) to exact payment of R473 636 from the applicant in respect of her
portion of the school fees that he alleges she should have contributed
since the children started school in 2019.
9] Contempt of court is the deliberate, intentional refusal or failure to comply with
a court order. 4 For the applicant to succeed in the contempt application, she must
prove, beyond reasonable doubt, 5 that a valid order exists, that the respondent has
knowledge of the order, that there was non -compliance with the order and that the
non-compliance was willful and mala fide.
10] It is clear on these papers that a valid order exists, that the respondent has
knowledge of the order and that the respondent has not applied CPI to the
maintenance payable. However, the issue is whether this court can find that the
respondent’s non -compliance is willful and mala fides. The respondent bears an
evidentiary burden in relation to willfulness and mala fides.6
11] The crux of it all is that it is common cause that the parties’ minor children 7 at
the time of their divorce were three and one years old. The Agreement makes
provision for the applicant to pay her pro rata portion of their school fees from the
time they are enrolled in pre -primary school. Given that they agreed to deduct
4 Consolidated Fish Distributors (Py) Ltd v Zive 1968 (2) SA 517 (C) at 522B-C
5 Fakie NO v CCII Systems (Pty) Ltd 2006 (6) SA 326 (SCA) (Fakie NO)
6 Els v Weideman and Others 2011 (2) SA 126 (A) pars 66-67
7 Now 10 years and 8 years old
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R3 000 from the children’s maintenance as from end May 2019, I must assume that
– at least by this stage – the children were in pre-primary school.
12] It is also clear from these papers that despite much to -ing and fro -ing and
demands from each that the other make full financial disclosure, that never took
place. Thus it is abundantly clear that, without a full financial disclosure from each,
no cogent calculation of the applicant’s pro rata portion of the school fees can take
place.
13] Even were one to find that, irrespective of this, CPI should have been applied
to the maintenance the respondent did pay 8, the issue is whether this non -
compliance satisfies the test of willfulness and mala fides.
14] In Fakie NO, Cameron JA stated:
“[9] The test for when disobedience of a civil order constitutes contempt has come
to be stated as whether the breach was committed ‘deliberately and mala
fide’. A deliberate disregard is not enough, since the non -complier may
genuinely, albeit mistakenly, believe him or herself, entitled to act in the way
claimed to constitute contempt. In such a case, good faith avoids the
infraction. Even a refusal to comply that is objectively unreasonable may be
bona fide (though unreasonableness could evidence lack of good faith).
[10] These requirements – that the refusal to obey should be both wilful and mala
fide, and that unreasonable non-compliance, provided it is bona fide, does not
constitute contempt – accord with the broader distinction of the crime, of
which non-compliance with civil orders is a manifestation. They show that the
offence is committed not by mere disregard of a court order, but by the
8 Ie the agreed R20 000 less R3 000 = R17 000
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deliberate and intentional violation of the court’s dignity, repute and authority
that this evinces. Honest belief that non -compliance is justified or proper is
incompatible with that intent.”
15] In Consolidated Fish Distributors (Pty) Ltd v Zive and Another 9 (Zive) it was
stated:
“…That is to say, even though a respondent may be wilful, and admittedly so, he may
yet escape liability if he can show he was bona fide in his disobedience, that is, that
he genuinely, though mistakenly, believed that he was entitled to commit the act, or
the omission, alleged to be contempt of Court.”10
16] As was pointed out in Zive11, in Wickee v Wickee12
“…a divorced husband, against whom an order for maintenance had been made by
consent, paid such maintenance less certain sums which he claimed to be entitled to
deduct and which had been perforce paid by him, being debts incurred by his ex -
wife, of which he had been unaware at the time he agreed to the maintenance order
being made against him. His ex -wife applied for his committal. The Court (Tindall, J.)
holding that the ex -husband was not in law entitled to make the deduction
nevertheless refused to commit him because he believed genuinely, though
mistakenly, that he was entitled to make the deductions.”
17] The court in Wickee13 ultimately stated:
“In the case of an order to pay maintenance I do not think that the disobedience can
be said to be wilful where the spouse himself believes he has a goof ground for not
9 1968 (2) SA 517 (C) at 524 C-D
10 Also see Noel Lancaster Sands (Edms) Bpk v Theron 1974 (3) SA 688 (T) at 691; Haddow v Haddow
1974 (2) SA 181 (C) at 183; Gold v Gold 1975 (4) SA 237 (D) at 239D-G that the inference of willfulness and
mala fides would be rebutted by evidence establishing that the order was not intentionally disobeyed
11 At 523D – 524A
12 1929 WLD 145 at 148
13 At pg 148
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making the payment ordered. This view has been taken in previous cases in this
Court…14But, of course, the onus lies on the spouse who has been ordered to pay
maintenance to satisfy the Court that hid failure does not amount to contempt of
Court.”
18] In casu, the issue pertaining to the pro rata calculation of the children’s school
fees has effectively led to an agreed deduction of the respondent’s maintenance
payments under clause 2.1 of the Agreement. On his version, once the parties finally
agree how much the applicant will have to contribute to the children’s schooling, his
maintenance obligation will be further reduced.
19] In my view however, the cash maintenance component set out in 2.1 of the
Agreement and the payment of the school fees set out in 2.2 of the Agreement are
two completely separate issues. And it is very clear from paragraph 2.4 of the
Agreement that that CPI is linked to paragraph 2.1 of the Agreement. But what is
also clear is that the parties themselves conflated the two clauses by agreeing that
the R3 000 should be deducted from the cash component of the maintenance
payable by respondent. In doing so it is therefore not at all surprising that the
respondent has adopted the view that he has.
20] Applying the principles set out in Plascon Evans, and given the background,
the facts and the parties’ conduct, I cannot find that the respondent’s version is so
far-fetched or untenable that it should be rejected. Even though he may be incorrect,
I cannot find that he has been willful and mala fide in his conduct. At best, I can find
14 Case citations omitted
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that he is incorrect in his interpretation of clause 2.4 as read with clause 2.1 of the
Agreement, but that does not found a finding of willfulness or mala fides.
21] This being so, the contempt application must be dismissed.
The Counter-application
22] The respondent did not persist with his counter -application before the court.
Instead, he informed the court that “the matter” was before the Maintenance Court
and that the hearing was imminent. What he sought was an order that the counter -
application be removed from the roll.
23] But I am not inclined to do that. At the outset, the respondent argued that the
disputes of fact on the papers before the court were of such a nature that they were
irresoluble and that the matter should be referred to oral evidence. This being so,
and the issues of maintenance and school fees being inextricably intertwined in both
applications, it does not behoove the respondent now to suddenly change his view –
this he does by asking for a removal. All that this will achieve is that the counter -
application will be set down in due course in the Family Court once more and a
motion court burdened with issues better suited to hearings in the Maintenance
Court.
24] In my view, the High Court is unsuited to hear issues pertaining to the
determination of children’s maintenance and school fees post divorce – that should
be determined by a Maintenance Court where the parties can conduct a full
evidentiary hearing and ventilate their issues.
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25] In any event, the dispute of fact as regards the counter -application itself
cannot be resolved in this application or in motion proceedings as a whole. Given
this, the counter -application must be refused. I emphasize that the counter -
application has not been adjudicated on its merits as no argument was presented on
it and an order merely removing it from the roll was sought.
26] As neither application has been successful, each party shall pay his/her own
costs.
ORDER
1. The application for contempt of court is dismissed.
2. The respondent’s counter-application is refused.
3. Each party shall pay his/her own costs in respect of both the contempt
application and the counter-application.
____________________________
B NEUKIRCHER
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be 30 March 2026.
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For the Applicant : Adv M Fabricius
Instructed by : Salome Eilers Attorneys
For the Respondent : Adv de Wet SC
Instructed by : Moumakoe Clay Inc Attorneys
Matter heard on : 3 March 2026
Judgment date : 30 March 2026