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, JOHANNESBURG
Case Number: 2022-25133
In the matter between:
P[…] A[…] T[...] APPLICANT
and
N[…] L[…] T[...] (née P[…] ) FIRST RESPONDENT
F[...] J[…] H[…] T[...] SECOND RESPONDENT
D[...] M[...] T[...] THIRD RESPONDENT
JUDGMENT
Mahosi, J
Introduction
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
17/06/2026 _________________________
DATE SIGNATURE
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[1] The applicant, the husband and father in a pending divorce action, seeks the
joinder of the two major children, F[...] J[…] H[…] T[...] (“F[...]”) and D[...] M[...] T[...]
(“D[...]”) as the second and third respondents respectively; an i nterdictory relief
compelling the first respondent to comply with clause 1.3.3 of an order granted by
Gundelfinger AJ on 08 August 2023, and to suspend his maintenance liability
towards the third respondent pending such compliance; and a variation of the said
order on the ground of material changed circumstances, effectively terminating
maintenance for the two major children and reducing maintenance for the first
respondent.
[2] The joinder of the second and third respondents is unopposed. The first
respondent opposes the interdictory and variation relief on both factual and legal
grounds. The second respondent has filed a confirmatory affidavit supporting the first
respondent’s stance.
[3] Coupled with this application is the first respondent’s c ondonation application
for the late filing of the answering affidavit . The delay, although substantial, is
adequately explained. There is no significant prejudice to the applicant that a costs
order cannot compensate. Moreover, the answering affidavit raises factual disputes
that are material to the just determination of the matter. It is , therefore, in the interest
of justice that the answering affidavit be admitted. Accordingly, condonation ought to
be granted.
Background
[4] The applicant and the first respondent married on 15 January 2000, out of
community of property with the exclusion of the accrual system.
Their marriage still
subsists. On 14 July 2022, the applicant issued a summons for divorce against the first
respondent. On 14 September 2022, the first respondent filed a plea and counterclaim. The
divorce action is still pending.
[5] Following the first respondent’s application for interim maintenance,
[5] Following the first respondent’s application for interim maintenance,
Gundelfinger AJ, by agreement between the parties, ordered on 08 August 2023,
inter alia, that:
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“1. That the Respondent is ordered to pay maintenance towards the
Applicant and the major children, pendente lite, as follows:
1.1 An amount of R 25 000.00 per month for the Applicant on or
before the 1 st of the month following this order and thereafter
on or before the 1 st of each consecutive month directly into a
bank account so indicated by the Applicant.
1.2 An amount of R 7 500,00 per month for the major child F[...] on
or before the 1 st of the month following this order and
thereafter on or before the 1st of each consecutive month
directly into a bank account so indicated by the Applicant.
1.3 An amount of R 7 500,00 per month for the major child D[...] on
or before the 1 st of the month following this order and
thereafter on or before the 1st of each consecutive month
directly into a bank account so indicated by the Applicant.
1.3.1 The maintenance in 1.3 supra for D[...] is subject
thereto that a claim for maintenance for D[...] be
submitted to the trustees for the time being of the D[...]
M[...] T[...] Trust ("Trust") and the claim being rejected.
1.3.2 In the event that the claim is met in full alternatively
only partially met, D[...] will only be entitled to the
payment of maintenance as stated in paragraph 1.3
from the Respondent to the extent of what is not met by
the Trust.
1.3.3 The Applicant, insofar as the Applicant takes care of
D[...], is directed to seek repayment from the trust for
the expenses paid on behalf of D[...] as provided for in
clause 10 of the D[...] M[...] T[...] Trust deed.
1.3.4 That the Respondent be ordered to pay such
maintenance as stated in paragraph 1.3 pending the
finalisation of such claim by the Trustees of the D[...]
M[...] T[...] Trust.”
2. That the Respondent is ordered to pay the following expenses directly
to the service provider:
2.1 Mortgage bond of the matrimonial home to FNB
2.2 MNET/DSTV
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2.3 Short-term Insurance for the matrimonial property and vehicles
of the Applicant and the major children , excluding the
insurance pertaining to the Kwid motor vehicle
2.4 Cell-phone contracts of the Applicant and the major children
2.5 Maintenance of the vehicles of the Applicant and the major
children
2.6 Car-track for the vehicles of the Applicant and the major
children
2.7 Life Insurance Policy held at Discovery Health
2.8 Gym Fees
2.9 Levies for the matrimonial home
2.10 Vodacom Fibre
2.11 Salary of the domestic worker working at the matrimonial home
directly to the domestic worker
2.12 Vehicle instalments for the vehicle of the major child, D[...],
directly to the service provider where the debit order on the
Applicant's bank account is to be terminated and replaced with
that of the Respondent, within 7 days from the date of this
order by the Respondent
2.12.1 The Respondents' obligation to make payment of the
instalment referred to in 2.12 is subject thereto that a
claim for maintenance for D[...] for the payment of the
vehicle instalments is submitted to the trustees for the
time being of the D[...] M[...] T[...] Trust by D[...] and the
claim being rejected.
12.1.2 In the event that the claim is met, the Respondent will
no longer be liable for the instalment payment.
12.1.3 The Applicant, insofar as the Applicant takes care of
D[...], is directed to seek repayment from the trust for
the expenses paid on behalf of D[...] as provided for in
clause 10 of the D[...] M[...] T[...] Trust deed.
12.1.4 That the Respondent be ordered to pay the motor
vehicle instalments of D[...] as stated in paragraph
2.12. pending the finalisation of such claim by the
Trustees of the D[...] M[...] T[...] Trust,
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2.13 All reasonable costs of the maintenance and repairs at the
matrimonial home, including but not limited to pool care at the
matrimonial home.
2.14 Rates and taxes and municipal service accounts for the
matrimonial home including but not limited to electricity, water,
sewerage and refuse removal.
12.15 Fuel for the generator to be used at the matrimonial home
12.16 Policies at MCC and OUTA.
3. The Respondent is to retain the Applicant and major children on the
existing medical aid and pay the monthly subscriptions directly to the
service provider and all excess medical expenses of the Applicant and
the major children not covered by the Applicant's medical aid directly
to the service provider.
3.1 If and in the event that the Applicant pays the costs of such
medical expenses that the Respondent be ordered to repay
the Applicant within 7 days from date of being provided with a
statement or receipt from the service provider to be paid
directly into a bank account so indicated by the Applicant.
3.2 The Respondents' obligation to make payment of the costs of
the medical aid for D[...] is subject thereto that a claim for
maintenance for D[...] for the payment of the costs of the
medical aid is submitted to the trustees for the time being of
the D[...] M[...] T[...] Trust by D[...] and the claim being rejected.
3.3 In the event that the claim is met, the Respondent will no
longer be liable for the medical aid for D[...].
3.4 The Applicant, insofar as the Applicant takes care of D[...], is
directed to seek repayment from the trust for the expenses
paid on behalf of D[...] as provided for in clause 10 of the D[...]
M[...] T[...] Trust deed.
3.5 That the Respondent be ordered to pay the costs of the
medical ais as stated in paragraph 3 pending the finalisation of
such claim by the Trustees of the D[...] M[...] T[...] Trust.
4. That the Respondent is ordered to pay a contribution towards the
Applicant's legal costs in the divorce proceedings to the amount of R
Applicant's legal costs in the divorce proceedings to the amount of R
20 000.00 within 10 days of granting of this Order directly into a bank
account so directed by the Applicant.
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5. Costs of this application to be costs in the cause.”
[6] The above order is the subject of this application. Prior to considering whether
the applicant has made a case for an order compelling the first respondent to comply
with paragraph 1.3.3 of the above order and to vary it, the joinder application is dealt
with.
Joinder
[7] The applicant seeks the joinder of F[...] J[…] H[…] T[...] and D[...] M[...] T[...]
as the second and third respondents , respectively. Considering that they have a
direct and substantial interest in the relief sought , particularly the proposed
termination of maintenance payable to them , they must be joined to these
proceedings.
The interdictory relief
[8] In prayers 2 and 3 of the notice of motion, t he applicant seeks an order
compelling the first respondent to comply with clause 1.3.3 of the Gundelfinger AJ
order and to suspend his maintenance liability towards the third respondent until the
first respondent provides evidence that she has made the necessary enquiries with
the D[...] M[...] T[...] Trust (“the Trust”) and that the Trust has rejected (or partially
rejected) her claims.
[9] The applicant contends that the first respondent ignored the terms of the order
because she has never “sought repayment” of the expenses paid on D[...]'s behalf
from the Trust , and the Trust never rejected any claims from them. Instead, she
merely instructed an attorney, Mr. Krause, to write a letter requesting a roundtable
meeting. To support his contention, the applicant s ubmitted that he attempted to
communicate with the Trust, which was represented by Ms. Yolanda Alberts, an
employee of Standard Bank Trust. The highlights of his allegations in the founding
affidavits that:
“26. The First Respondent is for all intents and purposes in contempt of the
Court Order and accordingly I am entitled to the relief which is sought
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vis-à-vis interdicting the First Respondent to comply with her
obligations flow from the Court order.
27. What the First Respondent has done, through her blatant disregard for
the Court Order, is to extend the term of my obligation, whilst knowing
that I will have to continue to pay because she simply did not comply
with her Court Order obligations and never intended to comply.”
[10] The nature of the relief sought in prayers 2 and 3 of the notice of motion
needs analysis. Although the applicant labels it “interdictory relief”, it is in substance
final relief. A finding that the first respondent has failed to comply with a court order
and a direction that she must comply under threat of suspension of the applicant’s
own obligations is a final determination of her rights and duties under the order. The
first respondent correctly contended that w here the relief sought will have the
practical effect of a final order, the test applicable to final interdicts must be applied.
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[11] The requirements for a final interdict are trite. The applicant must show a clear
right, an injury actually committed or reasonably apprehended, and the absence of
another suitable remedy.2 It is also established that under the Plascon-Evans rule, in
motion proceedings, a final order can only be granted if the facts averred by the
applicant, which have been admitted by the respondent, together with the facts
averred by the latter, justify the order.
3
[12] In a contempt application, the applicant must establish the existence of the
order, service, or notice thereof on the respondent , and the respondent's non -
compliance therewith. Once t he applicant has proved the order, service or notice,
and non- compliance, the respondent bears an evidential burden in relation to
wilfulness and mala fides . S hould the respondent fail to advance evidence that
establishes, on balance of probabilities, that non- compliance was wilful and mala
establishes, on balance of probabilities, that non- compliance was wilful and mala
1 See Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA), at para 4;
BHT Water Treatment (Pty) Ltd v Leslie & Another 1993 (1) SA 47 (W), at 54 J – 55E.
2 See ABSA Bank Ltd v Dlamini 2008 (2) SA 262 (T), at para 10.
3 National Director of Public Works v Zuma 2009 (2) SA 277 (SCA) at para 26.
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fide, contempt will have been established. 4 The standard of proof is summed up in
Matjhabeng Local Municipality v Eskom Holdings Ltd and Others as follows:
“Summing up, on a reading of Fakie, Pheko, and Burchell, I am of the view
that the standard of proof must be applied in accordance with the purpose
sought to be achieved, or differently put, the consequences of the various
remedies. As I understand it, the maintenance of a distinction does have a
practical significance: the civil contempt remedies of committal or a fine have
material consequences on an individual's freedom and security of the person.
However, it is necessary in some instances because disregard of a court
order not only deprives the other party of the benefit of the order but also
impairs the effective administration of justice. There, the criminal standard of
proof — beyond reasonable doubt — applies always. A fitting example of this
is Fakie. On the other hand, there are civil contempt remedies — for example,
declaratory relief, mandamus or a structural interdict — that do not have the
consequence of depriving an individual of their right to freedom and security
of the person. A fitting example of this is Burchell. Here, and I stress, the civil
standard of proof — a balance of probabilities — applies.”
5
[13] In the current matter, the existence of the order and service thereof on the
alleged contemnor, the first respondent, is not disputed. There is a factual dispute as
to whether the first respondent’s actions amount to compliance with clause 1.3.3 of
the order. To the extent that the relief sought is not committal, the civil standard of
proof, a balance of probabilities, applies.
[14] The first respondent alleges that immediately after the order was granted, she
instructed attorney Mr. Krause to act on her behalf in relation to the D[...] M[...] T[...]
Trust. On 14 November 2023, Mr. Krause directed a letter to the Trust, which reads:
“Dear Mrs. Alberts
D[...] M[...] T[...] TRUST/ STANDARD TRUST LTD
“Dear Mrs. Alberts
D[...] M[...] T[...] TRUST/ STANDARD TRUST LTD
4 See Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), at para 42.
5 2018 (1) SA 1 (CC), at para 67.
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1. We refer to the above matter and record that we are acting herein on
behalf of the D[...] M[...] T[...] Trust (hereinafter "our client").
2. We record firstly that our offices have been representing the parents of the
beneficiary of the Trust, said D[...] M[...] T[...] (ID 0 [… ]) and that the
parents are well known to writer.
3. We secondly confirm that there is a developing dispute between the parents
not only with regards to the interpretation of their Divorce Settlement
Agreement but also with regards to the impact that the aforementioned
Settlement Agreement has on the inter vivos Trust.
4. In light of the aforementioned, writer is of the opinion that there is value to
be had in a round table meeting as soon as possible wherein which we
invite both parents as well as your good self in your capacity as
representative of the Standard Trust ltd. for purposes of discussing the
impact of the Divorce Settlement Agreement as well as the content of the
Trust Deed and explaining to the parents their rights and obligations as
contained in both the said documents.
5. Writer is more than prepared to arrange the meeting on an “online" platform
and advise that our offices are currently making use of MS Teams in that
regard.
6. We would therefore appreciate it if you could revert to our offices with your
availability accordingly and advise times and dates for such envisaged
meeting.
7. In closing, and with regards to the general administration of our file, we would
appreciate it if you could provide us with a copy of the letter of Authority of
the Trust Deed insofar as we are only in possession of the Trust Deed itself.
8. We also confirm that you may contact the writer telephonically at any stage
should you wish to discuss the matter with the writer.
9. We thank you in anticipation.”
[15] The applicant argues that, to the extent that the above letter does not request
a specific sum or include any expenses, i t falls far short of compliance. However, the
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order does not prescribe a particular form of “seeking repayment”. A reasonable
interpretation could include a request through an attorney to facilitate a meeting to
determine how the Trust will meet its obligations under clause 10 of the Trust Deed.
The first respondent submitte d that by instructing Mr. Krause to send this letter, she
believed she had complied with the order.
[16] Notably, even before the order was granted, the first respondent had made
attempts to engage the Trust . On 05 April 2023, she wrote a letter requesting a
payment of R450 000, and she sent a follow ‑up letter on 30 May 2023. After the
order, when the Trust’s representative, Yolanda Alberts, requested D[...]’s contact
details to engage with her directly, the first respondent promptly provided them . On
07 November 2023, the trustees requested that D[...] provide a breakdown of her
monthly expenses so they could load a monthly income into her bank account.
However, D[...] responded, stating that she was seeking legal advice. Mr. Krause
sent a further follow ‑up letter on 06 December 2023, but received no response from
the trustees, who effectively declined to continue discussions with the first
respondent.
[17] In these circumstances, the first respondent did not ignore the order . She
engaged her attorney , corresponded with the Trust, provided the requested
information, and made repeated attempts to initiate the process of seeking
repayment, but was met with the Trust’s unresponsiveness and its decision to deal
directly with D[...]. It c ould, therefore, not be said that she deliberately defied the
court order. In light of the above, the applicant failed to establish willfulness and mala
fides on the part of the first respondent. Accordingly, the relief sought under prayers
2 and 3 of the notice of motion must be dismissed.
Variation
[18] The applicant seeks to vary the 0 8 August 2023 maintenance order ,
essentially terminating all maintenance for the second and third respondents and
essentially terminating all maintenance for the second and third respondents and
substantially reducing maintenance for the first respondent. He relies on the grounds
of a material change in his financial position, the respondents' improved financial
positions, and cessation of dependency.
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[19] Rule 43(6) enables t his court, having made an interim order in a matrimonial
matter, to vary its decision in the event of a material change occurring in the
circumstances of either party or a child, or the contribution towards costs proving
inadequate. A variation due to changes in financial situation under this subrule
requires proof of a material change in circumstances since the original order . The
applicant bears the onus of establishing, on a balance of probabilities, that a material
change has occurred. To succeed, the applicant must provide a clear , detailed
account of those changes.6
[20] Regarding his financial position, the applicant contends that his sole income -
generating business, D […] E[…] CC t/a P […] I[…] (P[…] I[…] s), has suffered a
severe downturn, as demonstrated by a profit and loss statement for the period
November 2024 to February 2025 showing a net loss of over R405 000.00 largely
due to the loss of a substantial client in Mozambique amid the current political
climate.
[21] However, the first respondent has produced evidence that this period is
historically the worst for Pat Industries due to the December/January shutdown.
More tellingly, she has produced figures showing that annual sales increased from
R12,827,892.89 in the 2023 financial year to R13,884,198.92 in 2025. The
applicant’s own replying affidavit does not seriously dispute these figures . Instead,
he merely argues that increased sales do not automatically translate into increased
profits. He does not, however, provide full ‑year profit figures for the years following
the 2023 order.
[22] Furthermore, evidence shows that the applicant has not behaved as a person
in financial distress. He purchased a new Suzuki Jimny vehicle in February 2025 at a
monthly cost of R13 444.55 and spent R180 889.59 on its accessories. He also
owns an Audi QRS3 and went on holiday trips, including a 10 ‑day cruise for New
owns an Audi QRS3 and went on holiday trips, including a 10 ‑day cruise for New
Year’s Eve. These expenditures seriously undermine his claim that he cannot afford
the maintenance ordered in 2023.
6 C.L.J v C.L.E (34367/19) [2023] ZAGPJHC 386 (26 April 2023), at para 22.
12
[23] Therefore, the applicant has failed to prove a material change in his financial
circumstances. The selective reliance on four poor months, contrasted with his
personal spending and the overall increase in his company’s turnover, leads to the
conclusion that his financial position has not deteriorated materially and may, in fact,
have improved.
[24] Turning to the respondents, the applicant argues that F[...]’ R7 500.00 monthly
maintenance should be terminated, as he is no longer a dependent major child,
having become gainfully employed at Sign Facets and engaged to be married. The
undisputed facts are that F[...] is 24 years old, has been employed since December
2023, and earns a net salary of R8 000.00 per month. He is also engaged to be
married. However, the first respondent has provided a detailed breakdown of his
monthly expenses amounting to R19 621.00.
[25] Even if the Court were to accept that some of these items may be generous,
the shortfall between his income and his reasonable living expenses is
approximately R11 621 per month. The applicant has not provided any alternative
calculation or demonstrated that F[...] can support himself without assistance.
Employment alone does not automatically terminate a parent’s duty of support where
the child’s earnings are insufficient to meet his reasonable needs. On the evidence,
F[...] remains a dependent major child. The applicant’s contention that he is no
longer entitled to maintenance is therefore rejected.
[26] As for D[...], it is undisputed that D[...] is 21 years old and has a trust fund with
assets exceeding R3.5 million. Clause 10 of the Trust Deed directs the trustees to
make available so much of the net income and capital as is necessary for her
maintenance and general well ‑being. The applicant argues that the Trust effectively
accepted a maintenance claim on 0 7 November 2023 when Ms Alberts wrote to her
requesting a breakdown of her monthly expenses to load a monthly income to her
requesting a breakdown of her monthly expenses to load a monthly income to her
bank account. The applicant claims that from that date onwards, his liability towards
her fell away, resulting in an overpayment of approximately R580 000.00.
[27] However, D[...] responded to Ms. Alberts’ email, stating that she was seeking
legal advice. She has not provided the breakdown, and t he Trust has not paid a
single cent . The order of 0 8 August 2023 was premised on a mechanism that
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requires the first respondent to submit a claim to the Trust. If the Trust rejects the
claim, the applicant remains liable. If the Trust meets the claim only partially, D[...]
will be entitled only to the maintenance payment stated in paragraph 1.3 from the
respondent to the extent not met by the Trust . That mechanism has not been
completed. The Trust’s request for a breakdown is neither a rejection nor an
acceptance. It is an invitation to provide the necessary information. D[...] ’s failure to
provide that information is not attributable to the first respondent, who is not a
trustee. Moreover, it does not trigger the termination of the applicant’s liability.
[28] The applicant also alleges that D[...] is gainfully employed through her sole
proprietorship, OSISS. The evidence of OSISS’s profitability is thin, as a profit and
loss statement for April to June 2025 shows a net profit of only R7 563.41 over three
months. That does not demonstrate self ‑sufficiency. Nor is there any evidence that
D[...] draws a salary sufficient to meet her monthly expenses, which, according to the
first respondent, are largely covered by the applicant’s payments under the order.
The existence of a small business does not, without more, prove that a major child is
no longer dependent.
[29] With respect to the first respondent, the applicant contends that she is also
gainfully employed through her involvement in managing OSISS and, accordingly,
her need for spousal maintenance is reduced. Furthermore, because D[...]'s
maintenance claim has been acceded to by the Trust, the applicant's liability to pay
the first respondent the amounts she expends on D[...]'s care should concomitantly
be reduced or terminated.
[30] The first respondent denies receiving any salary or income from OSISS. The
only evidence is an email in which she says , “I manage the business, ” and a
WhatsApp signature that suggests involvement in sales. The applicant has not
WhatsApp signature that suggests involvement in sales. The applicant has not
provided any payslips, employment contracts, or bank statements showing regular
deposits from OSISS to the first respondent. On this record, the applicant has failed
to prove that the first respondent has any undisclosed income. An adverse inference
cannot be drawn where the evidence is as equivocal as it is here.
[31] The applicant points to a family holiday to Mauritius in February 2025 as
evidence of hidden wealth. The first respondent has explained that the holiday was
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for D[...]’s 21st birthday. She submitted that it was funded by a discounted package,
savings, and contributions from family members, and it cost approximately R57 085
for five people. The applicant himself has a history of international travel with his
partners. The holiday, in context, does not establish a material change of
circumstances.
Conclusion on variation
[32] The applicant has not proved a material change in his own financial position.
He has not proven that D[...] and F[...] have become self‑supporting, and that the first
respondent has undisclosed income. The Trust mechanism remains incomplete, but
that is the very condition the parties agreed to. The applicant cannot use the Trust’s
non‑payment as a ground to vary the order when the necessary claim has not been
properly pursued. For these reasons, t he application for variation falls to be
dismissed.
Costs
[33] Both parties seek costs of this application, including costs of counsel, on scale
B. There is no reason to depart from the ordinary principle that costs follow the
result.
[34] Accordingly, the following order is made:
Order
1. The c ondonation application for the late filing of the respondents’
answering affidavit is granted.
2. F[...] J[…] H[…] T[...] and D[...] M[...] T[...] are hereby joined as the
second and third respondents in these proceedings.
3. The applicant’s claims for relief in prayers 2, 3, and 4 of the notice of
motion are dismissed.
4. The applicant shall pay the respondents’ costs of the application, such
costs to include the costs of counsel on scale B.
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___________________________
D. Mahosi
Judge of the High Court
Gauteng Division, Johannesburg
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The hand-down date is deemed to be 17 June
2026.
Appearances
For the applicant: Advocate S McTurk
Instructed by: Fick-Haupt Incorporated Attorneys
For the first respondents: Advocate JW Kloek
Instructed by: Tim Fourie Attorneys