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: 15012/2020
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: YES
DATE: 5 May 2026
SIGNATURE OF JUDGE:
In the matter between:
L[...] L[...] Applicant
and
E[...] L[...] Respondent
JUDGMENT
Woodrow, AJ:
Introduction:
[1] The applicant brings an application seeking to hold the respondent in
contempt of a divorce court order incorporating a settlement agreement.
[2] The respondent opposes the contempt application. The respondent further
counter applies for a variation of the deed of settlement (which was made an
order of court and upon which the contempt application is based.)
[3] In terms of the draft order furnished by the applicant, the applicant seeks an
order against the respondent as follows:1
1. The Respondent is declared in contempt of the Court Order granted by the
HONOURABLE JUSTICE LUKHAIMANE AJ on 12 OCTOBER 2020 under case
number 15012/2020 as mentioned above;
2. The Respondent is [ordered] to purge his contempt by making payment in
the amount of USD 237,500.00 to the Applicant within 30 days of the
granting of this order.
3. That in the event that the Respondent fails to purge his contempt, he be
committed to imprisonment for contempt of court for 30 (THIRTY) days;
1 Draft o rder, CaseLines, 008-328 (which is largely in line with the notice of motion:
Notice of motion, CaseLines, 008-1).
4. In the event that the Respondent does not comply with the
abovementioned order the Applicant is to approach the Police Station
closest to the Respondent with this Court Order whereby the Police Official
at the Police Station will immediately employ all lawful measures to
lawfully ensure compliance with this Court Order;
5. That the Respondent pay the costs of this application on an attorney and
client scale including the costs of an attorney appearing as counsel on scale
B;
[4] The respondent seeks an order in the counter application as follows:2
1. That the deed of settlement marked Annexure "B" to the applicant's
founding affidavit be varied in the following manner:
1.1 Variation of clause 1 of the deed of settlement, to be varied and
substituted with the following, and incorporated into the said order:
“1. MAINTENANCE:
1.1. The Plaintiff has up to date paid an amount of $ 137 500.00
(one hundred and thirty thousand five hundred United States
dollars) in respect of maintenance to the Defendant.
1.2. The plaintiff will pay an amount of R 1 million South African
rand in full and final settlement of the maintenance obligation
to the Defendant.
1.3. The amount of R 1 million rand is to be paid on/before 31
December 2025.
2 Notice of motion in counter application, “EL8”, CaseLines, 008-151.
1.4. The aforementioned amount of maintenance will be a gross
amount, including the United States tax levied by the tax
authority of the United States government, if at all.
1.5. The maintenance amount will be paid into the bank account
nominated by the defendant from time to time.”
1.2. Variation of clause 2 of the deed of settlement, to be varied and
substituted with the following, and incorporated into the said order:
“2. CAPITAL AMOUNT:
2.1. The Plaintiff has up to date paid an amount of $ 150 000.00
(one hundred and fifty thousand United States dollars) in
respect of the capital amount to the Defendant.
2.2. The Plaintiff undertakes to pay an amount of R 3 million South
African Rand to the Defendant in the following monthly
installments:
2.2.1. One million South African Rand to be paid [on] / before
31 January 2026.
2.2.2. One million South African Rand to be paid [on]/ before
28 February 2026.
2.2.3. One million South African Rand to be paid [on]/ before
31 March 2026.
2.2. The payments as per prayers 2.2.1 - 2.2.3 towards the capital
amount is in full and final settlement and is a gross amount
including any United States tax levied by the tax authorities of
the United States government if at all.”
2 The order referred to in prayer one (inclusive of prayer 1.1 and 1.2 thereof)
will be of a retrospective effect, effective 31 December 2023.
3. That the Applicant be ordered to pay the costs of this application on an
attorney and client scale, alternatively on a party and party scale, Scale B in
terms of Uniform Rule 67A.
4. Further and/or alternative relief which the Honourable Court deems
reasonable and appropriate under the prevailing circumstances.
Background facts:
[5] The parties were married. Their marriage relationship broke down.
[6] On 21 February 2020, the parties concluded a written ‘deed of settlement’
(the “settlement agreement”) which would later be made an order of court
on date of divorce of the parties.
[7] In April 2020, the applicant returned permanently to the United States of
America.3
[8] On 12 October 2020, this court, Lukhaimane AJ (as she then was), granted a
final decree of divorce dissolving the marriage and making the settlement
agreement an order of court.4 (the “divorce order”) (In the divorce action,
the applicant was the defendant and the respondent was the plaintiff . The
settlement agreement refers to the parties as such).
3 This is of relevance to the pro -rata amount of maintenance due in terms of the
settlement agreement for 2020, as addressed later herein.
4 Decree of divorce, order of Lukhaimane AJ, CaseLines, 008 -13, incorporating
settlement agreement between the parties, CaseLines, 008-14.
[9] The clauses of the divorce order / settlement agreement that are relevant to
the present application are quoted below.
a. Under the heading “ MAINTENANCE” in clause 1 of the settlement
agreement, the following:
1.1 The Plaintiff will pay an amount of USD50 000 (fifty thousand United
States dollars) per calendar year to the Defendant, as maintenance.
1.2 The aforementioned amount of maintenance will be a nett amount,
after United States Tax levied by the tax authorities of the United
States Government, if at all.
1.3 The amount of maintenance will be paid annually on or before the
31st of December, however commencing in 2020 by payment of a
pro-rata amount relative to the months remaining in 2020 calculated
from the end of the calendar month that the Defendant returns from
South Africa to the United States of America permanently. The
Second payment for 2021 will be paid on or before 31 December
2020 and then annually thereafter before 31 December of each
subsequent year.
1.4 Maintenance will be payable by the Plaintiff to the Defendant for the
rest of her life, subject thereto that should the Defendant enter into
a marriage subsequent to the Divorce Order being granted, the
maintenance obligation of the Plaintiff towards the Defendant will
cease.
1.5 The maintenance amount will be paid into a bank account nominated
by the Defendant to the Plaintiff in writing from time to time.
1.6 The Parties confirm that they will, in their capacities as trustees of
the T[...] Trust (Registration number: IT12295/98 (T)), have the
attached resolution to be adopted by the trustees of the trust, with
respect to the payment of the maintenance provided for herein, to
be paid to the Defendant in the event that the Plaintiff dies prior to
the Defendant and insufficient funds is available in his estate to
satisfy the maintenance payable to the Defendant.
b. Under the heading “ CAPITAL AMOUNT ” in clause 2 of the
settlement agreement, the following:
2.1 The Plaintiff undertakes to pay an amount of USD750000 (seven
hundred and fifty [thousand] United States dollars) to the Defendant
upon the first of the following occurring:
2.1.1 Upon the property or the shares of E[...] F[...] E[...] (Pty) Ltd
(Registration number: 1999/013127/07) a company of which
the Plaintiff and Defendant have full control, being
transferred to any prospective buyer; or
2.1.2 5 (Five) years from date of the Divorce Order.
2.2 The capital amount will be a nett amount after United States Tax
levied by the tax authorities of the United States Government, if at
all.
2.3 In the interim, until payment of the capital amount to the Defendant,
the Plaintiff will pay USD50 000.00 (fifty thousand United States
dollars) per annum, as of 31 December 2020 and annually thereafter
on the 31 st December in redemption of the capital and to be
deducted from the USD750000.00 (seven hundred and fifty thousand
United States dollars), as [and] when it becomes payable in terms of
clause 2.1.1 or 2.1.2 above.
[10] The respondent states that he has paid the following amounts over the years
in respect of ( a) maintenance ( b) the capital amount (referred to as
“settlement” in the answering affidavit of the respondent):
YEAR: MAINTENANCE: SETTLEMENT:
2020 $ 37 500.00 $ 50 000.00
2021 $ 50 000.00 $ 50 000.00
2022 $ 50 000.00 $ 50 000.00
[11] In respect of the amounts due in terms of the divorce order under the
heading “MAINTENANCE” in clause 1 of the settlement agreement, it is not
in dispute that the respondent has failed to make payment of maintenance in
terms of the divorce order for the years 2023 to 2025. It is not in dispute that
the respondent has breached the divorce order and his maintenance
obligations to the applicant. The respondent states that he made regular and
due payments in terms of the divorce order up until about December 2022
but that his financial position reached such a state thereafter that it was not
possible to comply with the divorce order any further.5 For the period 2023 to
5 Answering affidavit, CaseLines, 008-92, par 13.2.
2025, the respondent is in arrears in respect of maintenance due in terms of
the divorce order in the sum of USD 150,000.00 (one hundred and fifty
thousand United States dollars).
[12] In respect of the amounts due in terms of the divorce order under the
heading “CAPITAL AMOUNT” in clause 2 of the settlement agreement, and
as appears from the affidavit of the respondent, the respondent states that
he has made payment of the total sum of USD 150,000.00 (one hundred and
fifty thousand United States dollars), leaving a balance of USD 600,000.00
(six hundred thousand United States dollars). It is further apparent that the
trigger events referred to in clause 2.1.1 and 2.1.2 of the settlement
agreement have occurred. In terms of the divorce order , the respondent is
indebted to the applicant in terms of clause 2 of the divorce order in respect
of the “CAPITAL AMOUNT”.
[13] The respondent provides some detail regarding how his financial affairs have
significantly deteriorated . At the time of the divorce, the respondent had a
successful business which was doing very well financially . He was able to
make the payments as required in the divorce order. He states that he made
such payments until about December 2022 , but that during or about 2021
the success of the business changed drastically. The respondent explains
that his business was affected first by the Covid 19 pandemic and thereafter
by the looting that occurred in Kwa-Zulu Natal in 2021.
[14] The respondent addresses facts regarding how his financial affairs have
significantly deteriorated in support of ( a) his defence that he was not in a
financial position to comply with the divorce order and accordingly not in
wilful default, and ( b) his counter application for a variation of the divorce
order. In my view however, and insofar as the contempt application is
concerned, these details need not detain us as on the version of the
respondent himself, he has funds available to make payment of the arrear
maintenance amounts.
[15] In this regard further, the respondent states that the T[...] Trust sold shares in
E[...] F[...] E[...] (Pty) Ltd, and that the shares were sold for R6 ,000,000.00
(six million rand). The respondent then states that: “ I made an offer which I
again repeat herein, to pay R4 000 000.00 (four million rand) to the
Applicant, and for me to retain only R2 000 000.00 (two million rand) to take
care of my personal situation …”.6 This offer is reflected in the notice of
counter application, being an offer in ‘full and final settlement’ of the
maintenance and capital obligations of the respondent in terms of the
divorce order.
6 Answering affidavit, CaseLines, 008 -84, par 5.10 – 5.13. See also : CaseLines , 008-87,
par 6.7.
The evidence tendered by the applicant:
[16] The respondent , in his affidavits ( his answering affidavit 7 and his replying
affidavit to the answering affidavit filed on behalf of the applicant in answer to
the respondent’s counter application 8), questions who the driving force is
behind the contempt application, 9 expresses doubt over whether the
applicant is of sound enough mind to bring the application, 10 and states that
the replying affidavit deposed to by the applicant’s daughter constitutes
hearsay and establishes disputes of fact.11
[17] In heads of argument on behalf of the respondent, it is contended that the
fact that the applicant’s daughter is the deponent to the replying affidavit “…
creates a situation where the replying affidavit ought to be disregarded
alternatively treated with circumspection.” It is further contended that this “…
then either creates a Plascon Evans scenario or a dispute of fact. ” The
respondent attacks the weight to be attached to the evidence in the affidavits
filed on behalf of the applicant and not the mandate given by the applicant to
her attorney of record to bring the contempt application. Pursuant to a
question from the court to counsel for the respondent the aforesaid position
was confirmed in open court.
7 Commencing at CaseLines, 008-73.
8 Commencing at CaseLines, 008-244.
9 At inter alia CaseLines, 008-78, par 3.19; 008-89, par 8; 008-91, par 11.9, et cetera.
10 At inter alia CaseLines, 008-78, par 3.20 - 3.21; 008-79, par 3.20, et cetera.
11 At inter alia CaseLines, 008-247 to 252, par 3.1 – 3.30, et cetera.
[18] In an application, it is for the parties to set out and define the nature of their
dispute in their affidavits ( which serve the function of both pleadings and
evidence). It is for the court to adjudicate upon those issues. But for certain
exceptions, it is for the parties to identify the dispute and for the court to
determine that dispute and that dispute alone.12
[19] The respondent argues that the deponent to the replying affidavit is the
daughter of the applicant who has no personal knowledge of the facts and
that “… the replying affidavit ought to be disregarded alternatively treated
with circumspection.” The respondent alleges that there is a dispute of fact
on the papers which ought to have been foreseen.
[20] Whilst it is so that there may be some concerns regarding the weight to be
attached to parts of the evidence tendered on behalf of the applicant, and
that parts of the evidence deposed to by the daughter of the applicant would
not fall within her personal knowledge – such as the financial position of the
respondent – the argument on behalf of the respondent does not take his
case any further as far as the contempt of court application is concerned .
This is due to the fact that , insofar as the contempt application is concerned ,
the facts which are either common cause on the papers or deposed to by the
respondent himself make out a case for contempt.
The contempt application:
12 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) par [13]. See also
par [14] of the aforesaid SCA judgment.
[21] The trite principles of law relevant to contempt were again set out in Snowy
Owl Properties 284 (Pty) Ltd v Celliers and Another13 as follows:
[22] It is trite that an applicant who alleges contempt of court must establish
that: ( a) an order was granted against the alleged contemnor; ( b) the
alleged contemnor was served with the order or had knowledge of it; and
(c) the alleged contemnor failed to comply with the order. Once these
elements are established, wilfulness and mala fides are presumed and the
respondent bears an evidentiary burden to establish a reasonable doubt.
Should the respondent fail to discharge this burden, contempt will have
been established.
[22] In casu , it is common cause that the requirements in (a) to (c) have been
met.14
It is common cause that there is a court order, that the respondent is aware
of the order and that the respondent has failed to comply therewith. These
material facts are not in dispute.
[23] The respondent contends that the element of ‘willfulness and mala fides’ “…
proves to be the problem. ” The respondent stakes his defence on his
changed financial position and an impossibility to perform in terms of the
maintenance order.
13 (1295/2021) [2023] ZASCA 37 (31 March 2023) at par [22].
14 See inter alia Respondent’s heads of argument, CaseLines, 008-275, par 3.1 – 3.2.
[24] However, on the version of the respondent himself he has R6,000,000 (six
million rand) available . On his version, he wishes to retain R2,000,000 (two
million rand) for his own needs and he offers to make payment to the
applicant of R4,000,000 (four million rand) in full and final settlement of his
maintenance and capital obligations in terms of the divorce order. The offer
to pay is conditional on such payment being in full and final settlement . The
offer does not constitute an offer to comply with the court order.
[25] The stance adopted by the respondent and the facts that he deposes to put
pay to the defence raised by the respondent that he is unable to make
payment in terms of the divorce order. On his own version he has funds
available to make payment of the arrear maintenance. Accepting for the
moment the dollar –rand exchange rate stated by the respondent in his
answering affidavit of R17.50 to the USD, 15 the maintenance liability for the
period 2023 to 2025 of USD 150,000.00 (one hundred and fifty thousand
United States dollars) equals R2,625,000 (two million , six hundred and
twenty-five thousand rand). On the version of the respondent himself he is
able to comply with his arrear maintenance obligations . The respondent has
not met his evidentia l burden to establish a reasonable doubt regarding
wilfulness16 – he has in fact confirmed wilfulness under oath and beyond a
doubt. The defence of the respondent is without merit. The respondent is in
contempt of the divorce order.
15 Answering affidavit, CaseLines, 008-93, par 14.5.
16 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at par 42(d).
[26] The applicant bases her case not only on the maintenance obligations in
terms of the divorce order but also on the arrear amounts due in terms of
clause 2 of the divorce order / settlement agreement in respect of the
“CAPITAL AMOUNT”. In this regard, the applicant makes out no case – the
order in respect of payment of the capital amounts constitutes an order ad
pecuniam solvendam, not ad factum praestandum. The applicant is at liberty
to exercise her rights regarding execution in respect of the ‘capital’ portion of
the divorce order. No case is made out for contempt in this regard.17
[27] The respondent is in contempt of clause 1 of the settlement agreement
regarding his maintenance obligations under the heading “ MAINTENANCE”
of the divorce order. The respondent continues with such contempt. An
appropriate order shall issue.
[28] I intend to afford the respondent an opportunity to purge his contempt.
Should he fail to do so, the order I intend to grant will make provision for the
applicant to take further steps in pursuit of committal for such contempt.
[29] The applicant seeks costs on an attorney and client scale. In my view, the
applicant is entitled to such costs . The respondent states under oath that he
17 See Montsha v Road Accident Fund and Others (2025/105649) [2026] ZAGPPHC 225
(6 March 2026) and the cases referred to therein , including Jayiya v Member of the
Executive Council for Welfare, Eastern Cape and Another 2004 (2) SA 611 (SCA) at par
[15]: “Save for one exception, an order for the maintenance of one whom the judgment
debtor is liable to maintain, a money judgment is not enforced by contempt
proceedings but by execution. …”.
has funds available, which funds, on his version, exceed the amount due as
maintenance in terms of the divorce order, yet has failed to make payment
and persists with his contempt of the court order. The respondent has put
the applicant to unnecessary trouble and expense which the applicant ought
not to bear. Such conduct is vexatious and justifies the cost order sought.18
The respondent’s counter application:
[30] The respondent brings his counter application in terms of section 8(1) of the
Divorce Act, Act 70 of 1979 (the “ Divorce Act”). The relief that he seeks in
his counter application is quoted in the introduction section of this judgment.
[31] Section 8 of the Divorce Act is titled “ Rescission, suspension or variation of
orders”. The portion of s ection 8(1) of the Divorce Act that is relevant to the
present counter application reads as follows (those portions that are
irrelevant have been omitted from the quote below):
A maintenance order … made in terms of this Act, may at any time be
rescinded or varied … if the court finds that there is sufficient reason therefor:
…
[32] Apart from seeking to amend the section of the divorce order dealing with
maintenance, the respondent also seeks to amend the section of the divorce
order dealing with the payment of the capital amount. No case is made out
18 In re Alluvial Creek Ltd 1929 CPD 532 at 535.
for such amendment of the divorce order. Apparent from the wording of
subsection 8(1) of the Divorce Act is that the existence of a ‘maintenance
order made in terms of this Act’ is a prerequisite to the exercise of the court’s
power in terms of s 8(1).19 The amounts due in terms of the divorce order
under the heading “ CAPITAL AMOUNT ” in clause 2 of the settlement
agreement do not constitute amounts due in terms of a maintenance order.
Simply put, clause 2 of the settlement agreement does not constitute a
maintenance order. The respondent makes out no case for the variation of
the court order insofar as the respondent seeks a variation of the clause
dealing with payment of a capital amount. 20 This portion of the relief in the
counter application stands to be dismissed.
[33] Insofar as the case for a variation of the maintenance order is concerned,
the case of the respondent is that his financial position has drastically
changed, that he is in dire financial straits, and that the aforesaid and his
changed circumstances constitute ‘sufficient cause’ for the amendment of
the maintenance order. The respondent states that the situation of the
applicant and her needs have also changed since the signing of the
settlement agreement.
[34] The allegations of the respondent are disputed by the deponent on behalf of
the applicant. The disputes of fact go directly to whether the respondent is
able to demonstrate sufficient cause or sufficient reason as contemplated in
19 Georghiades v Janse van Rensburg 2007 3 SA 18 (C) par [14].
20 Notice of motion in counter application, EL8, CaseLines, 008-151, prayer 1.2.
section 8(1) of the Divorce Act. Without being exhaustive, such disputes
include disputes regarding whether the respondent is unable to make
payment in terms of his maintenance obligations in the divorce order,
whether the respondent has access to further funds and means of satisfying
his maintenance obligations, what the financial circumstances of the
respondent in fact are, including also his access to funds from other sources
and entities. These disputes are set out in more detail in the affidavits filed
by the parties. Ultimately, the counter application cannot properly be decided
on affidavit as these disputes of fact impact directly u pon whether the
respondent has shown sufficien t cause or sufficient reason for variation of
the maintenance order as contemplated in section 8(1) of the Divorce Act.
[35] The respondent states that insofar as a dispute of fact is found to exist , that
the matter be referred to oral evidence, alternatively referred to trial.
[36] In my view there are disputes of fact regarding the relief sought by the
respondent in his counter application , and the counter application cannot
properly be decided on affidavit.
[37] Rule 6(5)(g) of the Uniform Court Rules provides as follows:
Where an application cannot properly be decided on affidavit the court
may dismiss the application or make such order as it deems fit with a view
to ensuring a just and expeditious decision. In particular, but without
affecting the generality of the aforegoing, it may direct that oral evidence
be heard on specified issues with a view to resolving any dispute of fact
and to that end may order any deponent to appear personally or grant
leave for such deponent or any other person to be subpoenaed to appear
and be examined and cross examined as a witness or it may refer to trial
with appropriate directions as to pleadings or definition of issues, or
otherwise.
[38] In my view, it is in the interests of justice to refer to trial the claim of the
respondent for the variation of clause 1 of the deed of settlement in terms of
section 8(1) of the Divorce Act.
[39] The costs of the counter application shall be reserved for determination of
the trial court.
Order:
[40] Accordingly, I make the following order:
a. In respect of the applicant’s contempt application:
1. The respondent is declared in contempt of clause 1 of the
settlement agreement that was made an order of court in
terms of the c ourt order granted by this court on 12 October
2020 under case number 15012/2020.
2. The respondent is ordered to purge his contempt by making
payment to the applicant within 30 days of the granting of
this order of the arrear maintenance due in terms of clause 1
of the settlement agreement for the years 2023 to 2025 in
the amount of USD 150,000.00 (one hundred and fifty
thousand United States dollars).
3. In the event that the respondent fails to purge his contempt,
the applicant is granted leave to supplement her affidavits in
order to seek an order for the committal of the respondent to
imprisonment as sought in prayers 3 and 4 of the notice of
motion.
4. The respondent is directed to make payment of the costs of
the applicant’s application on an attorney and client scale.
b. In respect of the respondent’s counter application:
1. The order sought in prayer 1.2 of the notice of counter
application, filed as “ EL8” at CaseLines, 008 -151 (the
“notice of counter application”), for variation of clause 2 of
the deed of settlement is dismissed.
2. The claim of the respondent for the variation of clause 1 of the
deed of settlement in terms of section 8(1) of the Divorce Act,
Act 70 of 1979, is referred to trial.
3. The notice of counter application, excluding prayer 1.2 of the
counter application, will stand as a simple summons.
4. The applicant’s replying affidavit will stand as the notice of
intention to defend.
5. The respondent is granted leave to amend the notice of
counter application and, insofar as the respondent elects to
amend the notice of counter application, will deliver such
amended notice of counter application together with his
Declaration within 20 (twenty) days of this order.
6. The respondent shall within 20 (twenty) days of this order
deliver his Declaration.
7. The applicant shall within 20 (twenty) days of delivery of the
respondent’s Declaration deliver her plea thereto.
8. The further exchange of pleadings and pre -trial procedures,
including discovery and the request for and provision of trial
particulars, shall be regulated by the uniform rules of court in
respect of action proceedings. Discovery of documents not
forming part of the application papers shall take place in
accordance with the provisions of the rules of court.
9. The costs of the counter application are reserved for
determination in the trial.
WOODROW AJ
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties and or
parties’ representatives by e-mail and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 10h00 on this 5TH day of May 2026.
Appearances:
Attorney for the Applicant: TJ Dawson (with right of appearance) of Naude Dawson
Incorporated
Counsel for the Respondent: J Prinsloo
instructed by: Benennecke Thom Incorporated
Date of Hearing: 12 March 2026
Date of Judgment: 5 May 2026