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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 12604/2015
In the matter between:
D[...] W[...] Applicant
and
J[...] L[...] K[...] Respondent
Neutral citation: W[...] v K[...] (Case no 12604/2015) [2026] ZAWCHC___ (17
June 2026)
Coram: DIANE DAVIS AJ
Heard: 9 October 2025, 27 November 2025, 19 March 2026
Delivered: 17 June 2026
Summary: Contempt of court – non-compliance with maintenance order –
evidentiary burden resting on maintenance debtor necessitates a full and frank
disclosure of the maintenance debtor’s assets, liabilities, income and expenditure
covering the entire period of the default – maintenance debtor required to provide
a full explanation in a spirit of candour – vague, bald and sketchy allegations will
not suffice to persuade a court that non -compliance was not wilful and mala fide –
inability to comply fully with a maintenance order does no t absolve the
maintenance debtor of the obligation to pay whatever he can towards satisfaction
of the court order, with priority being afforded to the court -ordered obligation
over all other claims on his resources save for basic necessities and urgent
medical care – expenditure on luxuries and non -essentials while court -ordered
maintenance obligations go unpaid is inconsistent with good faith.
ORDER
1 In addition to the amount of R 279 860.00 referred to in the order of 18 June
2025, the respondent is ordered to pay the applicant further arrear
maintenance in the amount of R 181,495.80, which amount shall be paid in
the manner directed by the Paarl maintenance court pursuant to the
maintenance enquiry pending in that court.
2 It is declared that the respondent is in contempt of:
2.1 the order of this Court granted under case number 126044/2015 on 5
August 2015;
2.2 the order of this Court granted under case number 126044/2015 on
18 June 2025;
2.3 the order of this Court granted under case number 126044/2015 on 9
October 2025.
3 The application is postponed to a date to be arranged with the presiding
Judge for the presentation of evidence and argument with regard to an
appropriate sanction for the respondent’s contempt of court.
4 The respondent is liable for the applicant’s costs incurred in the applications
brought in June and September 2025, to be taxed on the attorney and client
scale.
5 The provisions of paragraph 2 of this court’s order dated 19 March 2026
remain of full force and effect.
JUDGMENT
Davis AJ:
[1] This application deals with non -compliance with a maintenance order
embodied in a divorce order.
[2] The applicant is the mother of two minor girls, age 15 and 13, who was
previously married to the respondent, the girls’ father. The parties were
divorced in 2015 . In terms of the divorce settlement agreement, which was
made an order of court, the respondent undertook to pay cash maintenance
of R 10,000.00 per month per child, and to pay the children’s medical
expenses and maintain an educational policy to cover the cost of their
tertiary education . The order also made provision for the respondent to be
liable for half of the medical aid premiums in respect of the children. The
cash maintenance was to increase annually by 8% on the anniversary date of
the divorce.
[3] Until October 2024, the respondent complied with his maintenance
obligations in terms of the divorce order. However, i n October 2024, the
respondent informed the applicant that h e was earning significantly less and
would no longer be able to pay the children’s main tenance. He ceased
paying the cash maintenance from November 2024 , and he ceased paying
his share of the medical aid premiums from December 2024 . By that time
the amount payable as cash maintenance had increased to an amount of R
39,980.00 per mon th for both children. Correspondence was exchanged
between the parties’ respective attorneys, but the respondent did not take
steps at the time to apply to the maintenance court for a variation of the
divorce order.
[4] On 26 May 2025 the applicant launched an urgent application in this court
for an order directing the respondent to pay her the arrear cash maintenance
(which amounted to R 279,860.00 at the time), as well as a n order holding
the respondent in contempt of court and imposing a sanction of
imprisonment on him. The respondent initially opposed the application, but
did not deliver an answering affidavit.
[5] In the absence of opposition, this court granted an order on 18 June 2025 in
terms whereof the respondent was ordered a) to pay the applicant
R 279,860.00 within forty -eight hours and b) to comply with the provisions
of the divorce order . The declaratory relief pertaining to contempt of court
was postponed for hearing on 19 March 2026 (‘the 18 June order’).
[6] The respondent failed to comply with the 18 June order, and, on 15
September 2025, the applicant launched a second application for an order
directing the respondent to pay the arrear maintenance (which had now
increased to R 461,355.80 made up of the aforesaid amount of R 279,860.00,
further cash maintenance arrears, and the respondent’s share of medical aid
premiums totalling R 15,179.00 which he had failed to pay.) The applicant
further sought a declaration that the respondent was in contempt of the 18
June order, and the imposition on the respondent of a sanction of direct
periodical imprisonment. The second contempt application was set down for
hearing as a matter of urgency on 9 October 2025.
[7] When the matter came before me on 9 October 2025, no answering affidavit
had been filed . The parties had agreed to engage in m ediation, and I
therefore made an order postponing the matter to 27 November 2025, with a
timetable for the filing of answering and replying affidavits, and a direction
that the parties attend mediation in accordance with the agreement reached
between them (‘the 9 October order’ ). In terms of the 9 October order, the
respondent was obliged to deliver his answering affidavit by 13 November
2025.
[8] When the matter came before me on 27 November 2025, the matter had not
been resolved in mediation, and the respondent had not filed an answering
affidavit as directed in the 9 October order. The respondent’s attorneys ,
Abrahams and Gross, had withdrawn and the respondent appeared in person
to oppose the relief sought. The respondent informed me from the bar that he
had instructed his attorneys to prepare an answering affidavit, which had
been prepared but had not been filed. He could not tell me why this was the
case.
[9] I informed the respondent that he would be given one last opportunity to
deliver an answering affidavit and warned him that , if he failed to do so, he
was liable to be held in contempt and subjected to the sanction of
imprisonment. I also admonished the respondent that it was unacceptable for
him not to pay any maintenance whatsoever for the minor children, and that
he would have to start making payments towards their maintenance. The
respondent then tendered to pay the applicant an amount of R 9,000.00 on
account of the amount of R 279,860.00 arrear maintenance owing in terms
of the 18 June order.
[10] On 27 November 2025 I made an order in terms whereof I issued a Rule
Nisi, returnable on 19 March 2026, calling upon the respondent to show
cause, by filing an affidavit on or before 20 February 2026, as to why an
order should not be made declaring him to be in contempt of the divorce
order, the 18 June order, and the 9 October order, and imposing a sanction of
imprisonment on him (‘the 27 November order’). As I was mindful that the
respondent was unrepresented at that stage , I took care to explain in the 27
November order exactly what the respondent had to deal with in his
answering affidavit. Paragraph 3 of the said order read as follows:
‘3. The respondent, in order to show cause, shall deliver an affidavit on or before
Friday 20 February 2026, in which affidavit he shall:
3.1 explain his failure to comply with the court orders referred to in 2.1 and
2.2 above [the divorce order, the 18 June order and the 9 October order];
3.2 make a full and frank disclosure, with supporting documents, regarding his
financial position (including assets, liabilities, income and expenditure)
covering the entire period of his default in respect of his maintenance
obligations in terms of the court order.’
[11] The respondent duly delivered an answering affidavit on 20 February 2026.
He states that he was assisted in preparing the affidavit by his erstwhile
attorneys, who had delivered a notice of withdrawal on 27 November 2025 ,
but then apparently came on record and assisted him once more, before
withdrawing again on 5 February 2026.
The relevant legal principles
[12] In the landmark judgment of Fakie NO v CCII Systems (Pty) Ltd (‘Fakie’),
the Supreme Court of Appeal reformulated the law of civil contempt of court
to meet the requirements of our new constitutional dispensation, with
reference to the onus and procedure.1 The legal principles laid down in Fakie
1 2006 (4) SA 326 (SCA).
were affirmed by the Constitutional Court in Pheko and Others v Ekurheleni
City (‘Pheko’) 2 and Matjhabeng Local Municipality v Eskom Holdings Ltd
and Others3
[13] In Pheko the Constitutional Court explained as follows the nature of
contempt of court, and the purpose of contempt proceedings:
‘Contempt of court is understood as the commission of any act or statement that displays
disrespect for the authority of the court or its officers acting in an official capacity. This
includes acts of contumacy in both senses: wilful disobedience and resistance to lawful
court orders. … Wilful disobedience of an order made in civil proceedings is both
contemptuous and a criminal offence. The object of contempt proceedings is to impose a
penalty that will vindicate the court's honour, consequent upon the disregard of its
previous order, as well as to compel performance in accordance with the previous
order.’4
[14] The requirements for contempt of court are:
a) a court order;
b) service or notice of the order;
c) non-compliance with the order;
d) wilfulness and mala fides. 5
2 2015 (5) SA 600 (CC).
3 2018 (1) SA 1 (CC).
4 Pheko (supra) para 28.
5 Fakie (supra) para 42.
[15] An applicant bears the onus of proving these requirements beyond
reasonable doubt. But once the applicant has proved the first three
requirements, i.e., the order, service or notice of the order and non -
compliance therewith, a presumption arises that the non-compliance is wilful
and mala fide , and the respondent bears an evidential burden to lead
evidence sufficient to create reasonable doubt as to their existence. Should
the respondent prove unsuccessful in discharging this evidential burden,
contempt of court will have been established.6
[16] Contempt of court consists of the unlawful, intentional disobedience of a
court order. 7 The unlawfulness element may be negated if the respondent
proves objective impossibility or necessity as defences. 8 The offence is
committed not by mere disregard of a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or authority manifested in
the disregard of the court’s order.9
[17] A wilful, or deliberate, disregard for a court order is not enough, since the
non-complier may genuinely, albeit mistakenly, believe him or herself
entitled to act in the way said to constitute contempt. In such a case, the
good faith belief negates contempt. 10 An h onest belief that the non -
compliance is justified or proper is incompatible with an intention to violate
the court’s dignity, authority and repute .11 Even a refusal to comply with a
6 Pheko (supra) para 36; Fakie (supra) paras 41 and 42.
7 Fakie (supra) para 6.
8 H v M 2009 (1) SA 329 (WLD) footnote 5.
9 Fakie (supra) para 10.
10 Fakie (supra) para 9.
11 Fakie (supra) para 10.
court order which is objectively unreasonable may in fact be bona fide
(although unreasonableness could indicate a lack of good faith.)12
[18] Thus, the non -compliance with the court order must be both wilful
(deliberate or intentional) and mala fide in order to constitute contempt of
court. It has been held that the mala fides requirement in contempt of court
cases should be equated with dolus because, since knowledge of
unlawfulness has been acknowledged to be an essential ingredient of dolus,
mala fides has lost its role as an element separate from dolus.13 Thus mala
fides in the context of contempt of court means knowledge of unlawfulness
or consciousness of wrong -doing; it is the antithesis of a good faith belief
that non -compliance with the court order is justified in the particular
circumstances.
[19] Dolus eventualis suffices for contempt of court ; for this form of intention it
is sufficient if the alleged contemnor person subjectively foresaw the
possibility of the act being in contempt of court and he was reckless as to the
result.14 The subjective state of mind of the alleged contemnor may be
proved by inferences drawn from his or her conduct and the circumstances
under which the breach was committed. 15 Where a person deliberately
closes his or her eyes to what the law requires, dolus eventualis will be
found to have existed.16
12 Fakie (supra) para 9.
13 H v M (supra) para 11.
14 HEG Consulting Enterprises (Pty) Ltd and Others v Siegwart and Others 2000 (1) SA 507 (C)
518 H - I
15 HEG Consulting Enterprises (Pty) Ltd and Others v Siegwart and Others (supra) 518 I – J.
16 H v M (supra) para 12.
[20] In Dezius v Dezius 17 it was accepted that poverty may be a defence to non -
compliance with a maintenance order. Patel J referred with approval to the
judgment of the Supreme Court of India in Jolly George Verghese and
Another v Bank of Cochin,18 in which the court required proof of the debtor’s
failure to pay in spite of his sufficient means and absence of more terribly
pressing claims on his means such as medical bills to treat cancer of other
grave illness, and went on to say that:
‘The simple default to discharge is not enough. There must be some element of bad faith
beyond mere indifference to pay, some deliberate or recusant disposition in the past or,
alternatively, current means to pay the decree or a substantial part of it. The Provision
emphasises the need to establish not a mere omission to pay but an attitude of refusal or
demand verging on dishonest disowning of the obligation under the decree . Here
considerations of the debtor’s other pressing needs and straitened circumstances will play
prominently.’19 [Emphasis added]
[21] In Dezius the court accepted the respondent’s plea of poverty in
circumstances where the evidence showed that the respondent and his
partner had had to borrow money to buy food and pay their water and
electricity bills, and had been bathing in ice cold water and living in the dark
because they were unable to pay their electricity bill. In these circumstances
the court accepted that the respondent had put up sufficient evidence to show
that he did not have the means to comply with the court order. 20
17 2006 (6) SA 395 (TPD).
18 [1980] INSC 20 ([1980] 2SCR 913) at 921 – 2 (SCR)
19 Quoted in Dezius (supra) at para 28, 405 D - E
20 Dezius (supra) paras 33 – 35.
[22] In my view it should be borne in mind that there are degrees of impossibility
of performance of a court order . A maintenance debtor may lack the means
to comply fully with a court -ordered maintenance obligation. However, it
must be stressed that the inability to comply 100% with a court order does
not absolve the maintenance debtor of the obligation to pay whatever he can
towards satisfaction of the court order , with priority being afforded to the
court-ordered obligation over all other claims and needs save for basic
necessities, such as food and shelter, and urgent medical care. Expenditure
on luxuries and non -essentials while court -ordered maintenance obligations
go unpaid is inconsistent with good faith. It amounts to a dishonest
disowning of the court -ordered obligation through the prioritisation of other
claims which cannot be regarded as essential or urgent. In essence, the
maintenance debtor decides how he is going to spend his limited resources,
and he relegates the court -ordered obligation to the bottom of the list. In so
doing, he thumbs his nose at the authority of the court.
[23] It is established practice that civil contempt of court proceedings may be
brought on motion. A respondent in such cases is assisted by the so -called
Plascon-Evans rule to the effect that disputes of fact on motion fall to be
decided on the respondent’s version , unless the respondent’s allegations fail
to raise a genuine or bona fide dispute of fact, or are so far -fetched or
untenable that they can be rejected merely on the papers, and without a
recourse to oral evidence.21
[24] Bearing in mind the evidential burden which rests on a respondent in
contempt of court proceedings , where the alleged contempt relates to a
21 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634 – 5.
failure to pay in terms of a maintenance order, it is vital that the respondent
put up detailed reasons for the default, which should include a full and frank
disclosure of his or her financial position, comprising a complete disclosure
of all assets and liabilities as well as all income and expenditure during the
entire period of default. Vague, bald and sketchy allegations will not suffice
to persuade a court that non -compliance with a court order was in fact
impossible or was justified by necessity, or that the respondent held a
genuine belief that non -compliance was justified or proper in the
circumstances.
[25] The relevant facts with regard to wilfulness and mala fides will inevitably lie
within the unique knowledge of the respondent in contempt proceedings, and
will therefore be subject to close scrutiny. 22 For that reason, too, it is
imperative that a respondent in contempt of court proceedings should in his
or her answering affidavit engage fully with the issues of wilfulness and
mala fides and deal with the relevant facts in a spirit of candour. If the
respondent fails to do so, and contents him or herself with vague allegations
and a version and figures which do not add up , the respondent will fail to
discharge the evidential burden to which rests on him or her to advance facts
which raise a reasonable doubt as to whether the non -compliance with the
court order was wilful and mala fide.
The respondent’s version on oath
22 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2007 (2) SA 128 (C) para
13; Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) 93H .
[26] At the time of the divorce, the respondent earned well. He was employed as
an air traffic controller in the United Arab Emirates (‘UAE’), where he
earned approximately R 320,000.00 per month. In 2022, he relocated to
Qatar, where he earned approximately R 250,000.00 per month. (The
respondent does no t explain why he left the UAE to earn less in Qatar. The
circumstances referred to below tend to suggest that it may have had to do
with the fact that he ran up unpaid debts in the UAE.)
[27] The respondent remarried in April 2019. He went on to have three young
children with his new wife.
[28] Between July 2017 and July 2024, the respondent found himself supporting
his new wife’s family as his father-in-law, who was the sole breadwinner for
his family, was diagnosed with Alzheimer’s disease and lost his job. He was
only relieved of this burden in July 2024, when his brother -in-law obtained
employment as an airline pilot and took over the responsibility for caring for
his parents.
[29] By August 2024, the respondent had run up debts exceeding R 7 million
owed to numerous banks in the UAE and Qatar. While on holiday in South
Africa in August 2024, the respondent learned that someone from ENBD
Bank in the UAE had arrived at his place of employment in Qatar seeking
payment of a loan which the respondent had taken out. The respondent’s
employer in Qatar became aware that the respondent had failed to repay the
loan, and the respondent was advised that he would be dismissed on his
return to wor k. The respondent also feared that he would be arrested at the
instance of ENBD Bank for failure to repay the loan.
[30] By virtue of these developments, the respondent decided not to return to
Qatar, but to remain in South Africa in order to avoid the risk of his being
arrested for failure to pay his debts.
[31] Between August 2024 and October 2024, the respondent used his Absa Bank
overdraft facility to live and pay his maintenance obligations in terms of the
divorce order. He found employment with effect from 1 November 2024
with the Cape Winelands Airport Company, at a monthly salary of R
73,000.00.
[32] The respondent’s new wife is presently unemployed – she is allegedly
attempting to start a business in the form of a property management
company – and the respondent is currently the sole provider for his new
family.
[33] According to the respondent, the current monthly expenses for himself and
his new family amount to R 119,220.01 per month, leaving a shortfall of
R 66,220.01 per month. Th e expenses of R 119,220.01 do not include the
R 11,000.00 which he currently pays to the applicant, consisting of R
9,000.00 towards the arrear maintenance and R 2,000.00 per month as
maintenance for his two teenage daughters. The respondent does not say
how he is funding the monthly shortfall of R 66,220.01 . The expenses
totalling R 119,220.01 are listed on an annexure to the respondent’s
answering affidavit. I shall return to these expenses.
[34] The respondents mentions that he and his new wife have been selling
personal items to raise money, and he annexes images of various luxury
items for sale, such as a Tag Heuer watch. He alleges that his wife’s vehicle
was sold on 18 April 2025 for R 75,000.00 to cover overdue medical aid and
hospital bills. He also alleges that he has borrowed “substantial sums of
money” from his brother -in-law, but he does not provide details in this
regard.
[35] The respondent alleges that he was placed under debt review in January
2025, and pays a monthly instalment R 28,200.00 per month in respect of
the debt review. The respondent did not see fit to include details in his
affidavit of all debts involved in the debt review, and how the payment of R
28,200.00 is made up. The debt review statements annexed to the answering
affidavit are illegible.
[36] The respondent states that he has the following liabilities:
a) Absa overdraft R 198,421.61;
b) Absa credit card R 273,670.92;
c) Absa personal loan (i) R 113, 046.95;
d) Absa personal loan (ii) R 222,666.96;
e) Banks in UAE and Qatar ˃ R 7 million;
f) Toyota Finance lease on Toyota Fortuner R 674,617.71.
[37] What is notably absent from the respondent’s affidavit is any indication of
his assets . The respondent is simply silent in this regard. One is not told
whether or not he has any policies which could be surrendered to generate
funds. The respondent has not disclosed any details regarding the motor
vehicles which he and his wife have or had, save that one is told that a motor
vehicle belonging to his wife was sold in April 2025 for R 75,000.00 and
that the respondent currently drives a Toyota Fortuner vehicle, which he
leases at a cost of R 9,388.19 per month.
[38] On the basis of the state of his finances, the respondent denies that he is in
wilful default of the court orders. He states that, ‘Simply put, I am unable to
comply with the orders at present .’ His defence boils down to what he
describes as ‘genuine financial incapacity.’
[39] He alleges that he brought an application in the maintenance court to vary
his maintenance obligations in terms of the divorce order . The respondent
does not say when he first approached the maintenance court to seek a
variation of the maintenance order , but it appears his attorney’s letter of 1
July 2025 (a copy whereof is annexed to his answering affidavit as “A2”)
that the variation application was expected to be launched in the following
week. The respondent alleges, however, that he withdrew that particular
application – he does not say why - and issued a fresh application in the
Paarl maintenance court , which was postponed for financial enquiry on 24
April 2026. The respondent seeks a reduction of the maintenance order to R
1,000.00 per child per month, increasing annually by CPI. He says that this
is all he can afford.
Evaluation
[40] In evaluating the respondent’s professed inability to comply with his
maintenance obligations, the starting point is to bear in mind that the order
was based on what the parties agreed in 2015 was a fair and reasonable
amount of maintenance. Once a settlement agreement is made an order of
court, it is an order like any other and is enforceable as a court order. 23
Unless and util the maintenance order is varied, it stands and must be
obeyed. There is an unqualified obligation on every person against whom an
order is made by a court of competent jurisdiction to obey it unless and until
the order is discharged (or varied). It is not up to the person to decide
whether or not to obey the court order.24
[41] Although maintenance orders can be varied due to altered financial
circumstances, a maintenance debtor cannot simply take matters into his or
her own hands and reduce the amount payable in terms of the order. It is
necessary to approach the maintenance court for a variation of the
maintenance order, and it is for the court to decide the appropriate amount
after an enquiry into the circumstances of the parties.
[42] The respondent’s protestations that he was unable to comply with the
maintenance order must also be evaluated in the light of the fact that,
between October 2024, when he informed the applicant that he would no
longer be able to pay the children’s maintenance, and 20 February 2026,
when he delivered his answering affidavit, he only paid the following
amounts in respect of the children of his first marriage:
a) R 2,000.00 on 18 September 2025;
b) R 2,000.00 on 18 November 2025;
c) R 9,000.00 on 30 November 2025;
d) R 9,000.00 on 24 January 2026;
23 Eke v Parsons 2016 (3) SA 37 (CC) paras 29 and 31.
24 Minister of Home Affairs and Others v Somali Association of South Africa EC and Another
2015 (3) SA 545 (SCA) paras 34 and 35.
e) R 2,000.00 on 7 February 2026.
[43] It bears emphasis that between November 2024 and September 2025, the
respondent did not pay one cent in cash maintenance for the children. From
December 2024 he ceased paying his share of the medical aid premiums for
the minor children of R 1,533,00 per month.
[44] Against that backdrop, one has to consider how the respondent spent his
salary of R 73,000.00 per month , as well as other amounts which came into
the respondent’s bank accounts and the bank accounts of his new wife. For it
is clear from the various bank statements disclosed by the respondent that he
and his wife did in fact receive other income. The respondent did not see fit
to analyse these bank statements and tally up and provide a full explanation
of the income which he and his wife received from other sources (save for a
list of certain amounts which is bald, lacking in detail and inadequate). One
sees from the bank statements that he and his wife received the proceeds of
an insurance claim of some R 53,000.00, a policy was cashed in for
R 110,000.00, R 22,000.00 odd was received from selling biltong on
Christmas markets, consultancy fees of R 35,000.00 were earned, an amount
of R 95,000.00 was deposited by one Nicole Rocher , and an amount of
R 80,000.00 was received from one Mike Menenzes on 5 September 2025
for an undisclosed reason – to name but a few examples. One also knows
that the respondent and his wife were allegedly selling personal items to
raise money, but one is not told how much money they received for items
sold. The respondent mentioned that his wife’s motor vehicle was sold in
April 2025 for R 75,000.00, but he failed to disclose a receipt of R 50,000.00
on 10 March 2025 which bears the narration ‘ABSA Bank Buy Johan BMW’,
which suggests that the respondent sold his motor vehicle – or one of them if
he has more than one motor vehicle.
[45] The respondent’s treatment of his assets and liabilities and income is
woefully inadequate. As mentioned above, he has not provided any details
regarding his assets. The court should not be left guessing as to what assets
the respondent owns. If he in fact has no assets, he should say so on oath.
[46] The respondent has not given a full and frank account as to exactly when all
of his various liabilities were incurred, in particular the amounts owing to
Absa on overdraft, on credit card and for personal loans. The respondent has
not seen fit to disclose his ABSA credit card statements, which would show
when the debt of R 273,670.92 was run up and what it was spent on. All he
provided was a letter from the bank giving the settlement amount. He also
failed to provide details of exactly when the personal loans of R 113,046.98
and R 222,665.96 were taken out, and how the monies were spent. The
respondent alleges that he placed himself under debt review in January 2025,
and he should not have been able to obtain further credit after that. This
suggests that the ABSA credit card and personal loan debts were incurred
before January 2025. One the other hand, one sees that on 5 February 2025,
the respondent took out a contract with Toyota Financial Services for the
lease of the Fortuner vehicle which he currently drives. One therefore cannot
rule out that the ABSA credit card and personal loan debts might also have
been incurred after January 2025. Indeed, the respondent lists minimum
payments on his ABSA personal loan and credit cards on his list of monthly
expenses, over and above his debt review payment, which suggests that
these debts were incurred after January 2025 and are not included in the debt
review.
[47] The respondent’s failure to provide the necessary details regard ing when
these debts were incurred is a significant omission, because it has direct
bearing on the bona fides of his defence of inability to pay maintenance in
terms of the divorce order. If in fact the personal loans were taken out, and
the credit card debt incurred, after November 2024, when the respondent
ceased paying maintenance in terms of the divorce order – as appears to be
the case - then it indicate that, despite the fact that he was able to borrow
funds and access credit, the respondent did not use any of the debt thereby
incurred to pay towards the maintenance of the children from his first
marriage. And if the credit card statements w ere to reveal expenditure on
luxuries while the respondent was failing to pay a cent towards his
maintenance obligations in terms of the divorce order, that would negate his
protestations of financial inability. The respondent has failed to take the
court into his confidence in these regards.
[48] The respondent’s treatment of his monthly expenditure is also inadequate .
He attaches a list of his monthly expenditure at the time of deposing to his
answering affidavit on 20 February 2026, which reveals monthly expenses
amounting to R 119,220.01, excluding any provision for the children of his
first marriage.
[49] That list of expenses must be compared with the respondent’s list of
expenses furnished to the applicant’s attorneys under cover of a letter dated
1 July 2025 (annexed as “A4” to the founding affidavit.) In that list, the
respondent’s monthly expenses amount to R 111,208.00 per month,
excluding any provision for the children of his first marriage.
[50] I shall refer to the older expense list as ‘list A’ and the more recent expense
list as ‘list B.’
[51] In the first instance, the respondent does not explain how he is managing to
fund the shortfall between his salary and his alleged monthly expenses. It is
difficult to reconcile the list of expenses with the expenditure in the
respondent’s bank statements – an exercise which the respondent himself
should have done for the benefit of the court. If indeed the respondent is
spending what he claims in his list of expenses, the indications are that he is
receiving income other than his salary, and this appears t o be the case. But
the respondent has not made a full and frank disclosure in this regard.
[52] Secondly, to my mind the very act of failing to make any provision on his
lists of expenses for maintenance for the minor children born of his first
marriage indicates that this was not a priority for the respondent. It reveals
that his mindset was that of someone wishing to avoid having to pay any
maintenance, rather than someone who genuinely wished to pay, but could
not do so.
[53] One sees from list A that in July 2025, the respondent was allegedly paying
an amount of R 9,000.00 per month to a domestic worker. That amount has
now decreased in list B to R 4,000.00 per month. The respondent’s wife is
not employed. To my mind, t he employment of a domestic worker is a
luxury in the circumstances . This expense cannot justify non -payment of
maintenance for the respondent’s older children in terms of the divorce
order.
[54] One sees from list A that in July 2025, the respondent’s monthly rental
amounted to R 26,000.00 per month. In list B, the respondent’s monthly
rental has decreased to R 23,000.00 per month. This suggests that the
respondent has secured cheaper accommodation. One knows that the
respondent resides in the Hartenbos estate, which the applicant describes as
a luxury estate. The respondent has made no effort to put up evidence of
comparative rentals in the Mossel Bay area . Absent such evidence, the
respondent has not shown that it is impossible for him to obtain cheaper
rented accommodation in the area. The omission is important because, if in
fact the respondent were able to secure cheaper rented accommodation,
thereby freeing up money to pay towards his maintenance obligations, but
failed to do so, that indicates a deliberate prioritisation of his and his new
family’s lifestyle at the expense of the minor children born of his first
marriage.
[55] One sees from list B that the respondent pays the following amounts in
respect of the young minor children born of his second marriage:
a) School fees R 8,300.00;
b) Kids little readers classes R 400.00;
c) Kids swimming R 3,000.00;
d) Kids dance R 575.00;
e) Kids tennis R 250.00;
f) Kids playball 250.00;
g) Kids rugby R 300.00;
h) Occupational therapist R 3,200.00.
[56] The respondent was apparently spending over R 16,000.00 per month on the
young minor children born of his second marriage, while failing to pay his
court-ordered maintenance obligations in respect of the older minor children
born of his first marriage . The expenditure of so much money on extra -
mural activities for the young children is not a necessity. It is an
unjustifiable luxury – in particular the expenditure of R 3,000.00 per month
on swimming. If the respondent cannot make ends meet on his current
income, it is not up to him to prioritise the lifestyle of his new family at the
expense of the minor children born of his first marriage. It is incumbent on
him to approach the maintenance court for a re -assessment of his
maintenance obligations and a fair allocation of his resources between all the
minor children involved. It is difficult to credit that the respondent could
genuinely have believed that it was in order to pay for luxuries for the
children born of his second marriage, while ignoring his court -ordered
obligations to the children born of his first marriage.
[57] One knows from the Toyota Financial Services statement annexed to the
answering affidavit that on 5 February 2025 the respondent took out a lease
for a Fortuner vehicle at a cost of R 9,388.19 per month. It appears that he
thereafter sold his BMW vehicle for R 50,000.00 in March 2025, and that
his wife’s motor vehicle was sold for R 75,000.00 in April 2025. The
respondent did not deal in his answering affidavit with the sale of his BMW,
or the reason why he saw the need to sell his vehicle and enter into a
contract for a new vehicle at a cost of R 9,388.19 per month at a time when
he said that he could not afford to pay any maintenance in terms of the
divorce order, and had ceased making any maintenance payments.
[58] In the absence of a ny evidence to the contrary, the inescapable inference is
that the respondent exercised a deliberate choice to acquire this vehicle
rather than to keep driving his previous vehicle , and to spend money on the
Fortuner rather than his court-ordered maintenance obligations.
[59] One sees from the bank statements that on 5 November 2025 the respondent
paid an amount of R 17,850.00 to ‘Atkv Staanplek’. It appears to be
payment for a caravan holiday at an Atkv resort. Support for this inference is
to be found in the copies of Facebook posts by the respondent’s new wife,
showing the family enjoying a camping holiday next to the sea at Hartenbos.
Holidays are a luxury. It bears emphasis that, at the stage when the
respondent paid the R 17,850.00 to Atkv, he had only made one payment of
R 2,000.00 towards his maintenance obligations in terms of the divorce
order since October 2024 – a paltry R 2,000.00 in almost a year. The facts
speak for themselves. The respondent clearly exercised a choice to spend on
luxuries for his new family, rather than complying with his court -ordered
maintenance obligations.
[60] In my view, the respondent has not come close to discharging the evidential
burden which rests on him to show that his non -compliance with the divorce
order and the order of 18 June was not wilful and mala fide . While I can
accept that the respondent may not have been able to pay the full cash
maintenance amount of R 39,980.00 per month, and that he may not have
been able to pay R 279,860.00 to the applicant within 48 hours, as ordered in
the 18 June order, that is not the end of the enquiry. If he had been acting in
good faith, he would have made some attempt to comply with the court
order, even if only partially. He would have paid what he could to the best of
his ability, prioritising his court -ordered obligations above all other
obligations save those dictated by necessity, such as food, shelter and urgent
medical treatment for himself and his dependants. But instead, the
respondent made no payments whatsoever between November 2024 and 1 8
September 2025. And during that time, he saw fit to take out a lease for a
new motor vehicle at a cost exceeding R 9,000.00 per month, and when he
apparently had R 17,850.00 to spare, he did not pay it to the applicant in part
settlement of the maintenance arrears of R 279,860.00. Instead, he appears to
have spent it on a holiday.
[61] And if one has regard to the applicant’s analysis of the income and
expenditure of the respondent’s wife (since the respondent paid most of his
salary into his wife’s account) one sees that the respondent’s wife, who on
his own version is unemployed and dependant on him, was spending on
average R 19 588.00 per month on groceries, R 4,499.99 per month on
restaurants, takeaways and coffee shops, R 5,445.49 per month on clothing,
R 5,886.86 per month on entertainment, gifts and parties, R 12,889.00 per
month on general shopping and pets, R 16, 977 per month on life insurance,
policies and medical aid. The expenditure funded by the respondent through
his wife’s bank account reveals a luxurious lifestyle which gives the lie to
the respondent’s protestations of poverty and inability to comply with the
divorce order and the order of 18 June.
[62] Far from the respondent discharging the evidential burden which rests on
him, his bald and patchy version, taken together with various bank
statements annexed to his answering affidavit, demonstrate to my mind that
the respondent’s non -compliance with the divorce order and the 18 June
order was indeed in wilful and mala fide.
[63] In short, having ceased making maintenance payments in October 2024, he
waited until July 2025 to approach the maintenance court for a variation of
his maintenance obligations, and he accorded no priority whatsoever to
making payment towards his obligations in terms of the divorce order, or the
order of 18 June. Instead, he chose to spend all his resources on his new
family. He arrogated to himself the right to decide whether or not to comply
with the divorce order . He only began to start making small payme nts
towards his maintenance obligations on 18 September 2025, after the
applicant had launched the second contempt of court application against
him. His conduct speaks to a total disregard for the authority of the court and
its orders.
[64] One sees the same disregard in the respondent’s failure to deliver his
answering affidavit by 13 November 2025, as ordered in the order of 9
October 2025. The respondent’s explanation is that he did not have the
means to engage in contested litigation, and that he had earmarked the funds
at his disposal for the mediation scheduled for 20 November 2025. This
explanation does not pass muster. The mediation was expressly
contemplated in the order of 9 October 2025, and the respondent was also
ordered to delive r an answering affidavit by 13 November 2025. The two
processes were running parallel. Had the respondent wished to engage in
mediation before delivering an answering affidavit, he should have raised
this with the Court at the hearing on 9 October 2025. But he did not do so.
And having been ordered to deliver his answering affidavit by 13 November
2025, he arrogated to himself the right to decide to apply his funds to
mediation instead, and to ignore the deadline for delivering his answering
affidavit. Indeed, all indications are that the respondent had no intention of
complying with the filing deadline on 9 October 2025, when the order was
made. And one knows that, despite the respondent’s protestations of a lack
of means, he found the money on 5 November 2025 to pay R 17,850.00 for a
“staanplek” for a camping holiday. To my mind the circumstances
demonstrate that the respondent was guilty of a flagrant , deliberate and mala
fide disregard of the order of 9 October 2025.
[65] Indeed, the evidence, viewed as a whole, manifests a total lack of
appreciation on the part of the respondent for the importance of complying
with court orders. He has shown no respect for the authority of the court, and
his protestations of inability to comply lack sincerity and substance.
[66] I therefore find that the respondent is in contempt of the divorce order, the
order of 18 June 2025 and the order of 9 October 2025.
The declaratory relief sought in respect of the arrear maintenance
[67] In terms of the 18 June order, the respondent was ordered to pay the arrear
maintenance then owing in the amount of R 279,860.00 within 48 hours.
[68] The arrear maintenance has since increased to R 461,355.80, and the
applicant seeks an order directing the respondent to pay this amount within
48 hours.
[69] The respondent admits that he owes the amount, but he alleges that his non -
compliance is not wilful and mala fide.
[70] I have found that the respondent has not discharged the evidential burden
which rests on him to raise a reasonable doubt in regard to wilfulness and
mala fides, because of the fact that he failed for almost a year to make any
contribution towards his maintenance obligations, and has since September
2025 failed on contribute meaningfully to those maintenance obligations
while spending money on luxuries. I do accept, however, that the respondent
is probably not in a position to pay R 461, 355.80 within 48 ho urs, and I am
not inclined to grant such an order.
[71] I also consider it inappropriate to make an order for payment of R
461,355.80 which includes an amount of R 279,860.00 which is already the
subject of a court order. To my mind the appropriate order is to direct the
respondent to comply with the divorce order by making payment of the
additional arrear maintenance totalling R 181,495.80. I do not intend to
make an order as to the timing of the payment of the additional arrears, since
I am mindful of the fact that the respondent has approached the maintenance
court for a variation of his maintenance obligations under the divorce order,
and a financial enquiry will be held. To my mind it would be appropriate for
the payment of the arrears maintenance to be dealt with by the maintenance
court, which can schedule an appropriate arrear repayment plan in addition
to the current monthly maintenance payment.
Costs
[72] The applicant requests an order for costs on the attorney and client scale.
The respondent submits that he cannot afford to pay her costs.
[73] I have already indicated that, in my view, not much store can be placed in
the respondent’s protestations of inability to pay. He manages to find the
money for what he wants to pay.
[74] It would be most unjust to deprive the applicant of her costs when she has
had to come to court repeatedly in an attempt to enforce what is due to her
children in terms of the divorce order and the 18 June order. There is no
reason why the costs should not follow the result, in the usual way.
[75] As to the request for costs on the attorney and client scale, I consider that
such an order is warranted, both to mark the court’s displeasure at the
respondent’s contemptuous treatment of court orders, and to afford the
applicant the fullest possible recovery of her costs, as justice demands in this
case.
Conclusion
[76] I therefore make the following order:
1 In addition to the amount of R 279 860.00 referred to in the order of 18
June 2025, the respondent is ordered to pay the applicant further arrear
maintenance in the amount of R 181,495.80, which amount shall be
paid in the manner directed by the Paarl maintenance court pursuant to
the maintenance enquiry pending in that court.
2 It is declared that the respondent is in contempt of:
2.1 the order of this Court granted under case number 126044/2015
on 5 August 2015;
2.2 the order of this Court granted under case number 126044/2015
on 18 June 2025;
2.3 the order of this Court granted under case number 126044/2015
on 9 October 2025.
3 The application is postponed to a date to be arranged with the
presiding Judge for presentation of evidence and argument with
regard to an appropriate sanction for the respondent’s contempt of
court.
4 The respondent is liable for the applicant’s costs incurred in the
applications brought in June and September 2025, to be taxed on the
attorney and client scale.
5 The provisions of paragraph 2 of this court’s order dated 19 March
2026 remain of full force and effect.
_____________________________________
D M DAVIS
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the applicant: Adv R Steyn
Instructed by Faure & Faure Inc, per M. Meintjes
For the respondent: In person