REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE:
(1) REPORTABLE: ¥eS/NO
(2) OF INTEREST TO OTHER JUDGES ¥eS/NO
(3) REVISED:
DATE: 22 May 2026 SIGNATURE:
CASE NR: 2016-131543
In the matter between :
JSM APPLICANT
and
SRM FIRST RESPONDENT
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to
the Parties I their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date of the
judgment is deemed to be 22 May 2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MARUMOAGAE AJ
1. This is an opposed application for leave to appeal against the judgment and order
granted on 10 September 2025. This application is brought on the basis that the
appeal would have a reasonable prospect of success.1
2. On 10 September 2025, the Applicant was found to be in contempt of the interim
maintenance order granted by Mokose J. The matter was referred to the
maintenance court to, among others, assess the Applicant’s ability to contribute
towards the Respondent’s maintenance because the Applicant claimed to lack the
financial means to meet the Respondent’s maintenance needs.
3. The Respondent was ordered to initiate the maintenance proceedings within 30
days of the order sought to be appealed against. It was further ordered that should
the Applicant fail to institute the maintenance proceedings, the Respondent could
approach this court to enforce the contempt of court order. The Applicant failed to
institute the maintenance proceedings as ordered. Instead, he changed his
attorneys and instituted an application for leave to appeal.
4. Various factors have been raised in support of this application. There is no need to
state all the grounds in detail. It suffices to record that the allegations at the heart
of this application are that the court misapplied the test for civil contempt, failed to
consider relevant evidence, made findings that were unsupported by the evidence
in the record, and exercised its discretion based on incorrect principles.
1 Section 17(1)(a)(i) of the Superior Courts Act.
5. To succeed with the ground relied upon, the judge who granted an order must be
on an opinion that the appeal would have a reasonable prospect of success. 2 It
cannot be denied that there is always a possibility that a different judge can reach
a different conclusion. However, that is not the test. The test is a subjective view
of the judge who granted an order sought to be appealed against whether the
appeal would have a reasonable prospect of success, and not ‘may’ or ‘could’ have
a reasonable prospect of success. In MEC for Health, Eastern Cape v Mkhitha and
Another, the SCA held that ‘… leave to appeal, especially to this court, must not
be granted unless there truly is a reasonable prospect of success’.3
6. In MEC for Health, Eastern Cape v Mkhitha and Another, the Supreme Court of
Appeal authoritatively stated that:
‘[a]n applicant for leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic chance of success on appeal. A mere possibility
of success, an arguable case or one that is not hopeless, is not enough. There must
be a sound, rational basis to conclude that there is a reasonable prospect of success
on appeal’.4
7. It was argued on behalf of the Applicant that in making the contempt order, the
court failed to adequately assess the bank statements placed before it and the
various income challenges experienced by the Applicant, as well as the payment
efforts he made towards the required maintenance.
8. At the start of the hearing, counsel for the Applicant was asked by the court whether
it was necessary to bring this application, having regard to the way the order in the
main contempt proceedings was crafted. While counsel insisted that it was
necessary, it appears that there was a serious lack of appreciati on of the way in
which the orders were crafted.
9. The parties in this matter are two elderly people who should be enjoying life apart
9. The parties in this matter are two elderly people who should be enjoying life apart
from each other since they no longer wish to be together. Instead, they are
2 Section 17(1)(a)(i) of the Superior Courts Act.
3 (1221/2015) [2016] ZASCA 176 (25 November 2016) para 16.
4 Ibid para 17.
spending much of their time in court dealing with various applications against each
other. The contempt order empowered the Applicant to approach the maintenance
court for a proper inquiry to be made to determine whether he has the means to
honour his maintenance obligations towards the Respondent.
10. The maintenance court (situated at the magistrate's court with jurisdiction) is better
situated to conduct this inquiry. However, the Applicant has failed to comply with
the order that required him to institute the maintenance proceedings at the
maintenance court within the prescribed time.
11. During the hearing, the court was informed that the Applicant desires to approach
the High Court to vary the 10 September 2025 order. It is surprising that the
Applicant has the financial means to litigate in the High Court but claims to lack the
financial means to contribute toward the Respondent’s maintenance. The
contemplated application is not only ill-advised, but it is also unnecessary, having
regard to the way in which the order contemplated to be varied is worded.
12. In this order, while the Applicant was found in contempt, he was given an
opportunity to avoid the consequences of the contempt order by submitting to a
maintenance inquiry to determine his alleged lack of means. The most effective
way to avoid enforcement of the contempt order was to initiate a maintenance
inquiry so that he could provide evidence to substantiate his claim of lack of means.
The fact that he failed to do so and is now contemplating instituting anot her high
court litigation may indicate that he does not want to disclose his true financial
position.
13. There is no merit in any of the factors raised on behalf of the Applicant in support
of this application. The Applicant is a businessman who owns several assets and
has not been consistent in paying maintenance to the Respondent. At this stage,
the Applicant cannot merely say he cannot afford to pay; it is important that there
the Applicant cannot merely say he cannot afford to pay; it is important that there
is a proper maintenance inquiry to establish the Applicant’s alleged lack of means.
I am of the view that there is no reasonable prospect of success on appeal and the
application must be dismissed.
14. It is not in the interest of any of the parties to be continuously embroiled in High
Court litigation. It is also unfair to the Respondent to be continuously forced to fight
to receive the entitled maintenance and incur legal costs while doing so. For this
reason, costs must follow the cause.
ORDER
15. In the result, I make the following order:
13.1. Application for leave to appeal is dismissed.
13.2. The Applicant is ordered to pay the costs of this application, including the
costs of one counsel at scale B.
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE APPLICANT : Adv N Terblanche
INSTRUCTED BY : Rathidili Attorneys Inc
COUNSEL FOR THE RESPONDENT : Mr Matlala
INSTRUCTED BY : Matlala & Associates
DATE OF THE HEARING : 20 April 2026
DATE OF JUDGMENT : 22 May 2026