SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT , CAPE TOWN )
Case no: 18688 /20 22
In the matter between:
C[...] V[...] S[...] Applicant
and
S[...] V[...] S[...] Respondent
Delivered electronically this 11th day of June 2026 by email to the parties
_____________________________________________________
REASONS FOR ORDER
_____________________________________________________
NDITA, J
[1] On 19 March 2026, the Applicant brought an application on
an urgent basis seeking an order holding the Respondent in
contempt for court for failure to comply with a maintenance Order
of this court. After hearing the parties, I issued the following order:
“(a) The forms and service provided for in the Rules are dispensed
with and this application is heard as an urgent application in terms of
Rule 6(12) of the Uniform Rules of Court.
(b) The Respondent is declared to be in contempt of the Order of
Court (“the Order”) granted by this court on 15 June 2023 in Case No:
18688/2022
(c) The Respondent is committed to prison for a period of 90
(ninety) days, which committal shall be wholly suspended for the period
until a decree of divorce is granted in the pending divorce action
between the parties on the following conditions:
(i) That the Respondent shall pay the current outstanding amount
of R136 000.00 (One hundred and Thirty -Six Thousand) due under the
Order to the Applicant within 20 days from the date hereof:
(ii) That the Respondent shall in future strictly comply with the terms
of the Order;
(d) The applicant is granted leave to approach the Court on the
same papers, duly supplemented, for an order committing the
Respondent to prison in terms of paragraph (c) above, if the
Respondent fails to comply with the Order.
(e) The Respondent shall pay the Applicant’s costs of this application
on the scale as between attorney and client.
[3] These are the reasons for the Order.
Factual background
[4] The Applicant instituted divorce proceedings against the
Respondent, and the trial has been enrolled for hearing on 22
February 2027. The parties have two minor children. On 26
January 2023, Erasmus J, issued an interim maintenance orde r for
a monthly payment in respect of the Applicant and the two minor
children as well as a contribution to the Applicant’s legal costs.
[5] During April 2023, the Respondent applied in terms of Rule
46(3) of the Uniform Rules of court for a variation of the order of
Erasmus J. Th e matter served before Pangarker AJ (as she then
was) and the learned judge on 15 June 2023 issued an order in
terms of which the Respondent was to pay a monthly
maintenance contribution of R42 000.
[6] During August 2023, the Respondent sought a variation of
the maintenance order s issued by Erasmus J and Pangarker J on
the basis that due to his financial circumstances, he could no
longer afford to pay the monthly maintenance of R42 000.00. The
Respondent’s application was dismissed by Lekhuleni J, on 25
October 2024.
[7] The Respondent applied again for a variation of the
maintenance order and Holderness J, dismissed the application
with costs on attorney and client scale on 16 February 2026.
The breach
[8] It is undisputed that the Respondent stopped making the
monthly maintenance contribution of R42 000.00 as ordered by
Pangarker J. O n 15 December 2025, the Respondent’s attorneys
made payment of a sum of R200 000.00 to the Applicant’s
attorneys in respect of the arrear maintenance. The payment of
R200 000.00 was less than the outstanding amount at that stage
of R210 000.00 (R42 000.00 x 5 months).
[9] The Respondent does not deny that he is in breach of the
court Order. His defence is that due to his dire financial
circumstances, it was not possible to comply with the terms of the
Order to render monthly payments in the amount of R42 000.00.
The legal principles
[10] The objective of contempt of court proceedings is explained
in Pheko and Others v Ekurhuleni Metropolitan Municipality
(CCT19/11) [2015] ZACC 10; 2015 (5) SA 600 (CC) thus:
“[1] The rule of Law , a foundational value of the Constitution,
requires that the dignity and authority of the courts are upheld. This is
crucial, as the capacity of the courts to carry out their functions
depends on it. As the Constitution commands, orders and decisions by
a court bind all persons to whom the organs of state to which they
apply, and no person or organ of state may interfere in any manner
with the functioning of the courts. It follows from this that disobedience
towards court orders or decisions risks rendering our courts impotent
and judiciary authority a mere mockery. The effectiveness of court
orders or decisions is substantially determined by the assurance that
they will be enforced.”
[11] The requirements and onus in contempt of court proceedings
are restated in Secretary, Judicial Services Commission of Inquiry
into Allegations of State Capture v Zuma 2021(5) SA 327 CC) para
37:
“As set out by the Supreme Court of Appeal in Fakie, and approved by
this court in Pheko 11, 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; (c) the alleged contemnor failed to comply
with the order. Once these elements are established, the wlfulness 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.”
[12] In Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 325
(SCA) at 344G -345A, the relevant principles were summarised in
more detail as follows:
(a) The civil contempt of court procedure is a valuable and
important mechanism for securing compliance with court
orders and survives constitutional scrutiny ln the form of a
motion court application adapted to constitutional
requirements.
(b) The respondent in such proceedings is not “an
accused person” but is entitled to analogous protections as
are appropriate in motion proceedings.
(c) In particular, the applicant must prove the requisites of
contempt of court (the order, service or notice, non -
compliance, and willfulness and mala fides) beyond
reasonable doubt.
(d) But once the applicant has proved the order, service or
notice and non -compliance, the respondent bears an
evidential burden in relation to the willfulness and mala fide,
Should the respondent fail to advance evidence that
establishes a reasonable doubt as to whether non -
compliance was willful and mala fide , contempt will have
been established beyond reasonable doubt.
(e) A declarator and other appropriate remedies remain
available to a civil applicant on proof on a balance of
probabilities.
[13] Although money judgments and orders (orders as pecunium
solvendam, as opposed to orders to do something ad factum
praestandum) cannot ordinarily be enforced by contempt
proceedings, it is well established that maintenance orders are in a
special category in which such relief is competent). (See
Bannatyne v Bannatyne (CGE as amicus curiae) 2003 (2) SA 63
(CC) at para 18).
Analysis
[14] The existence of the Court Order in terms of which the
Respondent must maintain the Applicant and the minor children is
not in dispute. In addition, and as earlier alluded to, the
Respondent has not denied his knowledge of the Order and that
he has failed to comply with it, willfulness is therefore presumed. In
the premises, the evidential burden in relation to willfulness and
mala fide, in line with Fakie NO, supra, shifts to the Respondent.
Put differently, should the Respondent fail to advance evidence
establishing a reasonable doubt as to whether his non -compliance
was willful and mala fide , contempt of court would have been
established beyond reasonable down.
[15] The Applicant in the founding affidavit aver s that when the
Respondent was in default of the Court Order, he had access to
substantial available balances on his credit card which could have
been utilised for the payment of his maintenance obligations in
that:
15.1 On 5 August 2025, i.e. on the day when his latest Rule
46(3) application was launched, and four days after he had
failed to pay maintenance in terms of the Court Order of 1
August 2025, the Respondent had an available balance on
the credit card of R405 803.23 which could have been used
to meet his maintenance responsibilities.
15.3 From the statement of the balances of the
Respondent’s bank accounts, it is clear that the Respondent
still had a balance of R396 229.26 available on his credit
card on 9 October 2025, and one month later on 28
November 2025, an available balance of R119 046.15.
[16] It was contended on behalf of the Applicant that in light of the
fact that the aforegoing has not been denied by the Respondent,
the inevitable conclusion is that the Respondent has failed to show
that his failure to comply with his maintenance obligations was not
mala fide , and accordingly his contempt has been established
beyond reasonable doubt.
[17] Of course the above must be considered and weighed
against the facts established in the Respondent’s answering
affidavit.
[18] The Respondent has disclosed during November and
December 2025, he loaned Vikla Properties (“Vikla”) an amount of
R375 000.00 which he accessed from his credit card. Vikla
properties is a company of which the Respondent is a director and
of which the C[...] V[...] S[...] Trust (“Trust”) owns 33% of the
shares. The Respondent is a founder and trustee of the Trust.
[19] By 1 November 2025, the Respondent was in arrears in
respect of the monthly maintenance Order in the sum of
R42 000,00 in a total amount of R168 000,00 (4 X R42 000,00),
and by 1 December in a total amount of R210 000,00. It is difficult
to discern the Respondent’s conduct of loaning Vikla the amount of
R375 000,00 from his credit card when he knew or ought to have
known that his maintenance obligations to the Applicant were
already in arrears. Neither has he advanced a cogent explanation,
for wantonly disregarding the obligations imposed on him by the
Order of court whilst loaning a substantial amount to Vikla . On this
basis alone, I find that his non -compliance was willful and mala
fide.
[20] The following remarks by Rogers J, (as he then was) in KPT
and Others v APT (1215/2019) [2020] ZAWCHC 110 (2 October
2020) at paragraph 95 are apposite:
“Compliance with court orders is always important. There is a particular
scourge in this country of spouses, particularly husbands, failing to pay
judicially ordered maintenance. While a spouse facing a criminal
sanction is entitled to the benefit of reasonable doubt, a court should
not too readily find such doubt to exist where the spouse has failed to
put up evidence which should have been available to him to support a
claim of unaffordability.”
In the circumstances of the present matter, a finding of willfulness
and/or mala fides is i nescapable. Thus, contempt has been
established beyond reasonable doubt.
[21] There is yet a further basis for reaching a conclusion that the
Respondent’s non-compliance was willful and mala fide. It must be
pointed out that there are a number of applications that the parties
have brought against each other. In paragraph 2 3 of the founding
affidavit, the Applicant refers to an application brought by the
Respondent and asserts that:
“23. In paragraph 19 of his founding affidavit in that application the
Respondent stated that after he got the position with En Route during
December 2024, he became aware that the staff were stealing stock
and that vital kitchen equipment was not maintained and was left
derelict and unusable. He then decided to do certain renovation work
and replace some kitchen equipment in order to make a success out of
the restaurant. According to him, he therefore had no alternative but to
withdraw the R2 million of his money that was being held in the bond of
Vikla Properties and loan En Route the amount of R1million.
Furthermore, he utilised R800 000,00 from his Trust (the C[...] V[...]
S[...] Family Trust) to purchase further Equipment for En Route.”
[22] The Respondent has not dealt with these allegations. The
upshot of these allegation s is that the Respondent is owed an
amount close to R2 million by the owner s of En Route and Whole
Meals. This is so because it is undisputed that he lent En Route a
sum of R1million and used R800 000,00 in kitchen renovations.
Inasmuch as this information is according to the Respondent
“historic”, it is baffling that the Respondent failed to honour his
maintenance obligations while he could have complied with the
Court Order by calling up the loans to En Route and Whole Meals.
After all, the maintenance of his minor children should , all things
being fair, even without a court order, be his priority . Nowhere in
his affidavit does he set out that when it became impossible to
comply with the court order, he sought repayment of the loans he
had made to the En Route and Whole Meals. Neither does he
explain what the actual terms of repayment of the aforesaid loans
were.
[23] As already pointed out, the Trust, of which the Respondent is
the founder and trustee, received an amount of R1,9 million for the
sale of its shares in Bergzicht which was then paid to Whole
Meals. The Respondent is also the director of En Route owned by
Whole Meals. In his answering affidavit, the Respondent has not
made a full and proper disclosure of the financial affairs of the
Trust and Whole Meals. In D v D (55507/2012) [2016] ZAGPPHC
368 (16 May 2016) Kollapen J held thus:
“The obligation to pay maintenance is a serious and indeed onerous
one and in my view the very generalized nature of the respondent’s
assertions of being in constant financial crisis falls considerably short of
what is expected of him discharging the evidentiary burden that rests
upon him.”
[24] In the instant matter too, the Respondent’s assertions of
being in financial difficulties are unconvincing and appear to me to
be contrived given that he readily loaned substantial amounts of
money to entities whilst neglecting his maintenance obligations.
Furthermore, his failure to give a proper disclosure of the financial
affairs of entities he is in control of in my view casts aspersions to
his claim of unaffordability. It is my judgment that a finding of non -
compliance being based on willfulness and mala fides is justified.
[25] It remains to be said that the Respondent paid an amount
R200 000,00 on 15 December 2026. This amount fell short as the
full outstanding amount at the time of the launching of the
application was a sum of R210 000,00. The question that then
arises is whether the partial compliance which occurred at a later
stage exonerates the Respondent from a sanction for contempt of
court. Put another way, does the payment excuse his failure to
comply with a court order from 1 August 2025 to 1 December
2025. The answer to this question has already been answered in
LAN v OR Tambo Airport Department of Home Affairs 2011(3) SA
461 (GNP) as follows:
“[71] However, the question arises whether a court can simply ignore
the fact that a person, for a specific period of time, acted in court of a
court order, and then, thereafter, through much force and persuasion,
changed his mind to then comply with the court order. Should such a
person be regarded as not having committed an offence, should a court
order be sought against him in that regard? I do not think so. Once the
requirements of the offence have been established to have existed at a
certain period in time, and once it is found that no valid defence has
been raised in that regard, a positive finding should follow.
[72] It must be kept in mind that contempt of court proceedings are
not only directed towards the perpetrator, but are directed towards the
protection of the courts, respect towards the courts and court orders,
and the protection of the integrity of the court system. Non -compliance
at a specific period in time cannot therefore simply be ignored because
compliance did in fact occur at a later stage.”
[26] I align myself fully with the above remarks. It follows that the
subsequent payment tendered by the Respondent on 1 December
2025, albeit still short of the amount due, does not excuse his
willful and mala fide failure to comply with a court order.
Conclusion
[27] I have in this judgment found that the explanation of
unaffordability of the Respondent’s maintenance obligations false
short of the standard required of him in discharging the evidentiary
burden of proving lack of willfulness and mala fide.
[28] For all these reasons, I issued the order referred to in
paragraph 1 of this judgment.
________________
NDITA J
Appearances
Counsel for the Applicant: Advocate P F Cloete SC
Instructed by: Nabal Attorneys
Email: rian@nabalattorneys.co.za
Counsel for the Respondent: Advocate L Buikman SC
Instructed by: Cluver Markotter Inc
Email:catherine@cluvermarkotter.law;
stephanieo@cluvermarkotter.law